United States Court of Appeals

For the Eighth Circuit

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No. 19-3362

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Gary Lee Smith

lllllllllllllllllllllDefendant - Appellant

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No. 19-3520

___________________________

 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Gary Lee Smith

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court 

for the Western District of Missouri - Joplin

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Submitted: April 15, 2020

Filed: June 5, 2020

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Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges. 

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BENTON, Circuit Judge. 

Appeal No. 19-3520

Gary Lee Smith appeals the district court’s order imposing a new condition of

supervised release. Smith was convicted in 2003 of producing, transporting, and

reproducing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and

2252(a)(2). The district court sentenced him to 235 months in prison, followed by 5

years of supervised release. This court affirmed. United States v. Smith, 367 F.3d

748, 751 (8th Cir. 2004). The district court denied his motion under 28 U.S.C.

§ 2255. Smith v. United States, 2006 WL 2338254, at *1 (W.D. Mo. Aug. 14, 2006),

aff’d, 256 Fed. Appx. 850, 851 (8th Cir. 2007), cert. denied, 552 U.S. 1270 (2008). 

In 2019, Smith violated three conditions of supervised release. The district court1

imposed a new condition requiring polygraph testing. Smith appeals. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms. 

Smith began supervised release on August 30, 2019. Within weeks, the

probation officer reported he had violated three conditions of supervised release, to

(1) not commit another crime; (2) answer truthfully all inquiries by the officer and

follow the officer’s instructions; and (3) adhere to state registration and notification

procedures for sexual offenders. According to the officer, Smith tried to contact his

1The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri. 

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daughter over social media, by Twitter and Pinterest. He was permitted to access

computers only at the workforce center, not for social media purposes. By not

registering his Pinterest account as required by state law, he committed a felony. The

officer presented him with a waiver to add nine special conditions about computer use

and internet access, including a polygraph testing requirement. Smith refused to sign

the waiver and requested a hearing. 

At the hearing, Smith denied the violations, introduced no evidence, but

stipulated that the probation officer would testify consistently with the violation

report. The district court found Smith committed the violations. The court imposed

the nine special conditions that the officer offered Smith. He specifically objected to

the condition to “successfully participate in a program of polygraph testing to assist

in treatment and/or monitoring, as directed by the Probation Office.” He

acknowledged that “it is a common thing for polygraph testing to be added to

conditions of supervision for certain defendants.” However, he asserted that

“polygraph testing is inherently unreliable,” “more of a stress monitor” than a “truth

monitor.” He did not believe polygraph testing was “a valid supervision tool.”

After considering the factors in 18 U.S.C. § 3553(a), a district court may

enlarge conditions of supervised release. 18 U.S.C. § 3583(e)(2). A special

condition must be (1) reasonably related to the factors in 18 U.S.C. § 3553(a); (2) no

greater deprivation of liberty than reasonably necessary for the purposes in 18 U.S.C.

§ 3553(a); and (3) consistent with any pertinent policy statements by the Sentencing

Commission. Id. § 3583(d); United States v. Thompson, 888 F.3d 347, 351 (8th Cir.

2018). 

Smith argues that the special polygraph condition is not reasonably related to

any factors in § 3553(a). “This court reviews the imposition of special conditions of

supervised release for abuse of discretion.” United States v. Stelmacher, 891 F.3d

730, 733 (8th Cir. 2018). “District courts are encouraged to provide an explanation

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of how the conditions satisfy the requirements of § 3583(d), but where the basis for

the special conditions can be discerned from the record, reversal is not required.” 

United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019) (citing cases). 

 Here, although the district court did not explain how polygraph testing is

reasonably related to the § 3553(a) factors, the basis can be discerned from the record. 

Smith was convicted of producing, transporting, and reproducing child pornography. 

As he acknowledges, “it is a common thing for polygraph testing to be added to

conditions of supervision for certain defendants.” See United States v.

Muhlenbruch, 682 F.3d 1096, 1103 (8th Cir. 2012) (holding that a polygraph

condition was reasonably related to the offense of receiving child pornography); 18

U.S.C. § 3553(a)(1) (nature and circumstances of the offense). 

At Smith’s original sentencing, he showed no remorse and recidivism. His

comments “blaming the victim and everybody but” himself “troubled” the district

court. The court found Smith showed “incorrigibility” by continuing to commit

sexual misconduct with minors even after his trial. The court found Smith was

“repeating this conduct and not having learned any type of lesson from it, not any

indication of any realization that the conduct is wrong.” The court said four times it

was “concerned” by this post-trial “uncharged conduct,” noting “graphic” and

“certainly disturbing” evidence. Smith’s remorselessness and incorrigibility support

polygraph testing. See 18 U.S.C. § 3553(a)(1) (history and characteristics of

defendant); § 3553(a)(2)(C) (protect public from further crimes). See also

Muhlenbruch, 682 F.3d at 1103 (upholding polygraph condition because defendant

falsely denied at trial he had downloaded child pornography).

Smith’s behavior during supervised release, reported by his probation officer,

supports the polygraph condition. After Smith initially went to the residential reentry

center, he had to return to prison “due to reports that he was speaking to other inmates

about child pornography” and “saving encrypted files” on the computers there. 

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Within a month of his latest release, he created a Pinterest account and failed to

register it, violating state law. He was “contentious” with his probation officer

“regarding his conditions of release.” He was “argumentative when advised that he

will not be permitted to secure employment where he has access to unmonitored

computers.” He “routinely stated he is smarter than staff at the Residential Reentry

Center.” Smith’s unwillingness to obey rules restricting his access to child

pornography shows that polygraph testing is necessary to protect the public from

further crimes. See 18 U.S.C. § 3553(a)(2)(C). See also Simpson, 932 F.3d at 1156

(upholding polygraph condition because defendant repeatedly said he did not intend

to obey the terms of supervised release, repeatedly disobeying them); United States

v. Wiedower, 634 F.3d 490, 494 (8th Cir. 2011) (upholding polygraph condition

because defendant was convicted of possessing child pornography and “was not being

candid about his level of involvement”).

Smith’s sex-offender evaluation (another condition of his supervised release)

recommended he participate in polygraph testing. The testing will assist with his

correctional treatment. See 18 U.S.C. § 3553(a)(2)(D). Polygraph testing supports

the Sentencing Commission’s policy that sex offenders participate in a program for

treatment and monitoring. See U.S.S.G. § 5D1.3(d)(7)(A); United States v. Wright,

2020 WL 2123326, at *3 (8th Cir. May 5, 2020). See also 18 U.S.C. § 3553(a)(5)

(policy statements). 

Smith also contends that the district court should have required that polygraph

testing be proven, legitimized, or otherwise validated as an effective tool. However,

Smith’s polygraph testing is for treatment, not for evidence at trial or sentencing. Cf.

United States v. Bagola, 796 F.3d 903, 908 (8th Cir. 2015) (noting that polygraph

evidence is disfavored in trials); Ortega v. United States, 270 F.3d 540, 547 (8th Cir.

2001) (rejecting polygraph evidence at sentencing). 

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Smith’s special condition requiring polygraph testing is reasonably related to

the factors in § 3553(a). The district court did not abuse its discretion in imposing

it.

Appeal No. 19-3362

Smith appeals the district court’s denial of his motions for relief from several

decisions by the probation office, and for financial assistance. On appeal, Smith

presents no argument about these motions, and thus waives any challenges to them. 

See Fed. R. App. P. 28(a)(8); Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006)

(holding that party waived an issue because it was not developed in his briefs).

* * * * * * * 

The judgments are affirmed.

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