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United States v. Whitten

United States District Court, W.D. Virginia, Roanoke Division

April 24, 2018

UNITED STATES OF AMERICA
v.
BRANDON WALKER WHITTEN, Defendant.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE

         This case is presently before the court on the defendant's motions to modify his conditions of supervised release and for appointment of counsel. For the reasons set forth below, the motion to modify the conditions of supervised release will be granted in part and denied in part, and the motion for appointment of counsel will be denied.

         Background

         On August 21, 2014, a grand jury in the Western District of Virginia returned an indictment against the defendant, Brandon Walker Whitten. The indictment charged Whitten with multiple offenses involving child pornography. On October 17, 2014, Whitten entered a plea of guilty to Count One of the indictment, in which he was charged with receiving and/or distributing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1).

         In preparation for sentencing, a probation officer prepared a presentence investigation report (PSR) that summarized Whitten's offense conduct. According to the PSR, an undercover agent with the Federal Bureau of Investigation (FBI) downloaded images of child pornography from an internet protocol address assigned to Carole Streithof, Whitten's mother, in May of 2007. On January 15, 2008, FBI agents executed a search warrant at the home where Whitten and his mother resided. At that time, Whitten acknowledged that he had peer-to-peer file sharing software on his computer, and that he had used the software to download images of child pornography. Whitten's laptop computer was seized during the execution of the search warrant, and a forensic examination of the device revealed approximately 50 images of child pornography.

         In January of 2012, a witness contacted the FBI and reported that one of Whitten's neighbors had accused him of sexually molesting a six-month-old infant. The witness provided the infant's name but did not provide the name of the neighbor who had made the accusation. Later that year, the same witness contacted the FBI and reported that Whitten had used the witness's laptop computer to view child pornography on September 27, 2012. The witness consented to a forensic examination of the laptop. The examination revealed dozens of cartoon drawings depicting sexual abuse of prepubescent children, as well as a series of disturbing, sexually explicit messages on the computer's instant messaging service. The messages were communicated between a user account associated with Whitten and a user account utilized by an unknown person on September 27, 2012. They described potential sexual activity, including intercourse, with the same infant who Whitten had been accused of molesting.

         On January 21, 2015, the court sentenced Whitten to a term of imprisonment of sixty months, to be followed by a twenty-year term of supervised release. Based on the nature of Whitten's offense and his history and characteristics, the court also imposed a number of special conditions of supervision. Whitten did not appeal any portion of his sentence or file a motion to vacate under 28 U.S.C. § 2255.

         Whitten is scheduled to be released from imprisonment later this year. He has moved to modify a number of the special conditions of supervised release, arguing that they are unconstitutionally vague and overbroad. The specific conditions Whitten complains of are as follows:

(11) The defendant shall not use, purchase, possess, procure, or otherwise obtain any computer or electronic device or cellular telephone that can be linked to any computer networks, bulletin boards, the Internet, or other exchange formats involving computers unless approved by the probation officer for such purposes as the defendant's lawful gainful employment, use by an immediate family member living in the defendant's same household, or other legitimate activities. In addition, the defendant shall not access or use any computer that utilizes any "cleaning" or "wiping" software programs.
(13) The defendant may only use and possess a cellular telephone that is limited to vocal telephone communication without the capability to access the Internet.
(14) The defendant shall not purchase, possess, or use any camera or video recording devices without approval of the probation officer.
(19) The defendant shall contact the probation officer within 72 hours of establishing an ongoing romantic relationship with another individual and provide the probation officer with information about the other party. The defendant shall also inform the other party of his or her prior criminal history concerning sex offenses.
(20) The defendant shall not be in the company of or have contact with children under the age of 18, other than the defendant's own children, without prior permission of the probation officer. Contact includes but is not limited to letters, communication devices, audio or visual devices, and communication through a third party. The defendant shall immediately report any such contact to the probation officer.
(21) The defendant shall not possess or have under his control any material depicting sexually explicit conduct involving adults or minors, child pornography, or visual depictions of minors engaged in sexually ...

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