In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1153
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER M USSO ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:05-cr-30101— David R. Herndon, Chief Judge.
A RGUED JUNE 6, 2011 — D ECIDED JULY 1, 2011
Before K ANNE, E VANS, and S YKES, Circuit Judges.
E VANS, Circuit Judge. In 2005, Christopher Musso pled
guilty to 11 counts of possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). He subsequent-
ly was sentenced to a term of 37 months’ imprisonment
and three years of supervised release. Five years later,
the government filed a petition to revoke Musso’s super-
vised release, alleging that he had committed three viola-
2 No. 11-1153
tions of standard conditions and three violations of a
special condition of the release. Musso admitted two of the
three standard conditions violations (the third was dis-
missed by the government) but contested the alleged
special condition violations, all of which related to his
sexual offender treatment.1
After a revocation hearing, the district judge found that
all of the allegations had been proven, revoked Musso’s
release, and imposed a within-guidelines sentence of six
months’ imprisonment and 30 months of supervised
release.2 The judge also announced several new special
conditions of the supervised release. Musso appeals.
Back in 2006, when Musso received his original sen-
tence for possession of child pornography (specifically,
“graphic visual depictions . . . show[ing] an actual child
engaged in a sex act”), the district judge imposed a
special condition of supervision requiring Musso to
“participate in an approved sexual offender treatment
program” and to “abide by all rules, requirements, and
conditions of the treatment program.” Accordingly, in
2009, after his release from prison, Musso entered a
1
At oral argument, we questioned whether Musso’s admissions
regarding the standard conditions violations alone justified the
revocation. At the revocation hearing, however, the district
judge indicated that his findings on the contested issues could
affect the disposition and sentence.
2
Musso was sentenced on January 5, 2011, so as of the date of
oral argument, he had less than a month of imprisonment
remaining.
No. 11-1153 3
treatment program and signed a contract regarding his
responsibilities. The contract stated that Musso would
“participate in group discussions, treatment activities, and
written assignments” and that “simply showing up for
sessions is not enough to be considered cooperative with
treatment.”
The contract also required Musso to avoid sexual mate-
rial, including “[a]ny visual depictions of children en-
gaged in sexual activity,” “[a]ny other visual . . . materials
intended for the purpose of causing sexual arousal fea-
turing or describing children in a sexual or erotic man-
ner,” “[a]ny material not generally intended to be erotic,
but used by me for the purpose of arousal or other
sexual purpose featuring children” (to be identified
through therapy), and “[m]aterial showing . . . overt sex-
ual activity involving adults.” The contract further speci-
fied that Musso should have no contact with children,
except “[r]elatives, with direct eyesight supervision by
an adult aware of offense history.”
In August 2010, probation officers conducted a routine
search of Musso’s apartment. There, they found a box
containing 37 photos of “female erotica.” One of the
pictures showed a girl of a questionable age in a bra and
underwear. According to the officers’ report, Musso
explained that the photos were of women over the age of
18 and that it had been acceptable for him to possess the
photos while in prison. Musso said that he had sent
the photos to his parents before his release, and his parents
recently had returned them to him. Musso’s father later
verified this information and surmised that his son had
not looked through the box since its return.
4 No. 11-1153
The officers also searched Musso’s cell phone and found
seven pictures that he had taken at a high school car
wash fundraiser. The photos showed Musso’s young
nephew with high school girls who were wearing shorts
and t-shirts or tank tops. According to the officers’ report,
Musso explained that he went to the car wash with
his family and that it was the girls’ idea to involve
his nephew in the car washing. Musso’s mother later
verified this information and also stated that she suggested
that Musso take the pictures because she had left
her camera in her car.
Also during the search, Musso volunteered that he had
recently been helping a female friend, Sarah McBride.
Specifically, on several occasions, Musso drove McBride
and her infant daughter to the daughter’s day care center
while McBride’s car was being repaired. On one occasion,
Musso had McBride’s daughter alone with him in his
car while McBride test drove another vehicle. McBride
later verified this information during a phone interview
with a defense investigator.
Around the same time, Musso’s probation officer, Mark
Bundren, received information suggesting that Musso
was not progressing in therapy. Bundren subsequently
requested a summary of Musso’s progress from his thera-
pist, Kristen O’Steen. O’Steen reported in a letter
that, while Musso offered appropriate feedback to other
group members and was attentive and well-mannered,
he “talked in group about superficial personal
topics without examining the core issues that brought
him to treatment.” Musso “frequently use[d] denial,
No. 11-1153 5
minimization, and victim stance to avoid accountability
for his actions.” He also “lack[ed] motivation to parti-
cipate meaningfully in group or consistently turn in his
treatment homework.”
Based on this information, the government filed
a petition to revoke Musso’s supervised release. Specifi-
cally, the government alleged that Musso violated a special
condition of supervision requiring him to “abide by
all rules, requirements, and conditions” of the sexual
offender treatment program by: (1) failing to participate
in sexual offender group treatment sessions and to turn
in homework assignments, (2) possessing prohibited sexual
materials, and (3) having prohibited contact with a minor.
After the revocation hearing, the district judge deter-
mined that the allegations had been proven by a prepon-
derance of the evidence. Regarding the first allegation,
the judge found that Musso was “not participating in
therapy in a meaningful way[,] . . . doesn’t do home-
work appropriately, . . . [and does] not talk about his
own problems.” Regarding the second allegation, the
judge found that the “picture that was put in evidence
of the young girl in her underwear [was] unquestionably
something that [Musso] should not have had
in [his] possession” and that Musso “ha[d] an obligation
to go through those [pictures] and get rid of any-
thing that’s going to put you in trouble.” The judge
also found that “[i]t’s a violation for [a] sex offender to
take a picture like [the ones of the high school girls].”
Regarding the third allegation, the judge found that
Musso having McBride’s daughter alone in his car was
“unsupervised contact with a minor.”
6 No. 11-1153
The judge concluded that “if one looks at the cumulative
effect of these offenses, they tell a more serious story, and
they at the very least raise a red flag for a concern about
the future[.]” In addition to a term of imprisonment and
supervised release, the judge also imposed new special
conditions of the release, requiring Musso to: (1) submit
to six months of “location monitoring” after his release
from prison, (2) observe a 9 p.m. to 6 a.m. curfew,
(3) refrain from frequenting, loitering, or residing within
500 feet of locations where children congregate, (4) have
no supervised or unsupervised contact with any minor,
and (5) forego volunteer activities that might result
in contact with minors. Musso did not raise an objection
to the new special conditions.
On appeal, Musso takes issue with the judge’s decision
to revoke his supervised release and the judge’s imposition
of new special conditions of the release. We review
a revocation of supervised release for an abuse of discre-
tion. United States v. Young, 41 F.3d 1184, 1186 (7th
Cir. 1994). A district judge’s factual findings are
reviewed for clear error. United States v. Berry, 583
F.3d 1032, 1034 (7th Cir. 2009). Supervised release may
be revoked if a violation of a condition of the release
is proven by a preponderance of the evidence. 18 U.S.C.
§ 3583(e)(3). To repeat, all of the contested allegations
relate to a special condition of supervision requiring
Musso to “abide by all rules, requirements, and condi-
tions” of the sexual offender treatment program.
The judge found that Musso did not participate meaning-
fully in sexual offender group treatment sessions and
No. 11-1153 7
failed to turn in homework assignments. Musso’s treat-
ment contract stated that he would “participate in group
discussions, treatment activities, and written assignments”
and that “simply showing up for sessions is not enough
to be considered cooperative with treatment.” Yet
O’Steen reported that Musso “talked in group about
superficial personal topics without examining the core
issues that brought him to treatment,” “frequently use[d]
denial, minimization, and victim stance to avoid account-
ability for his actions,” and “lack[ed] motivation to partici-
pate meaningfully in group or consistently turn in
his treatment homework.” This evidence clearly support-
ed the judge’s finding.
Musso’s only counterargument on this issue is that
O’Steen’s complaints were based primarily on Musso’s
contention that he did not commit the other alleged special
condition violations. But, as shown by the excerpts we
just discussed, O’Steen also determined that Musso
was not progressing in therapy because of his failure to
examine core issues, participate meaningfully in the group
sessions, and submit homework assignments. And Musso
specifically admitted the latter allegation in his appellate
brief. Thus, there was no error in the judge’s conclusion
that the first allegation had been proven.
The judge also found that Musso possessed sexual
materials prohibited by his sex offender treatment contract.
The contract required Musso to avoid sexual material,
including: (1) “depictions of children engaged in sexual
activity,” (2) “visual . . . materials intended for the pur-
pose of causing sexual arousal featuring or describing
8 No. 11-1153
children in a sexual or erotic manner,” (3) “material not
generally intended to be erotic, but used by me for the
purpose of arousal or other sexual purpose featuring
children” (to be identified through therapy), and
(4) “[m]aterial showing . . . overt sexual activity
involving adults.”
But during a search of Musso’s apartment, probation
officers found a box containing 37 photos of “female
erotica.” The images, such as the one admitted into evi-
dence of the young female in her underwear, clearly violate
at least one of the contract provisions that we just listed.
And, contrary to Musso’s assertions, the record indicates
that he knew that the box was in his possession and that
he was familiar with the pictures in the box. Thus,
the judge did not err in finding that Musso “ha[d]
an obligation to go through those [pictures] and get rid
of anything that’s going to put you in trouble.”
Musso also knowingly possessed seven pictures showing
his young nephew at a car wash with high school girls
who were wearing shorts and t-shirts or tank tops.
Musso and his mother came up with several reasons
why Musso’s actions were innocent, but the point is that
Musso admitting to taking the pictures, all of which
featured scantily-clad teenage girls. Such images arguably
fall under the third prohibition in Musso’s contract.
But even giving Musso the benefit of the doubt on this
matter (the evidence was slim regarding whether images
like these were identified through therapy), Musso’s
possession of 37 photos of “female erotica” provided
sufficient support for the judge’s determination that
the second allegation had been proven.
No. 11-1153 9
Finally, the judge found that Musso engaged in prohib-
ited contact with a minor. The contract specified that
Musso should have no contact with children, except
“[r]elatives, with direct eyesight supervision by an adult
aware of offense history.” During the probation officers’
search of Musso’s apartment, he volunteered that, on
several occasions, he drove McBride and her infant daugh-
ter to the daughter’s day care center while McBride’s
car was being repaired. Musso further admitted that,
on one occasion, he had McBride’s daughter alone with
him in his car. This conduct clearly violates the contract,
as McBride’s daughter was not Musso’s relative. Thus,
the judge did not err in concluding that the third allegation
had been proven.
Musso also briefly challenges the judge’s imposition of
new special conditions of the release. Normally, we review
such decisions for an abuse of discretion. United States
v. Ross, 475 F.3d 871, 873 (7th Cir. 2007). But where, as
here, a defendant did not object to the special conditions,
our review is for plain error. Id. In his appellate reply
brief, Musso argues that we should not apply plain
error review because he had insufficient notice of the
new special conditions, he had a limited opportunity
to object, and any objection would have been futile.
No matter. We would find the judge’s decision proper
even under the more favorable standard.
Special conditions must be reasonably related to the
defendant’s offense, history, and characteristics; the
need for deterrence; the need to protect the public from
the defendant; and the need to provide the defendant
10 No. 11-1153
with treatment. See 18 U.S.C. § 3583(d). The conditions
cannot involve a “greater deprivation of liberty than
is reasonably necessary” to achieve the latter three goals.
Id. Here, the new special conditions required Musso to:
(1) submit to six months of “location monitoring” after
his release from prison, (2) observe a 9 p.m. to 6 a.m.
curfew, (3) refrain from frequenting, loitering, or residing
within 500 feet of locations where children congregate,
(4) have no supervised or unsupervised contact with any
minor, and (5) forego volunteer activities that might result
in contact with minors. Musso argues that these restrict-
ions seek to prevent contact offenses, and there is no
reason to believe that he is dangerous to children.
Musso’s original offense involved possessing “graphic
visual depictions . . . show[ing] an actual child engaged
in a sex act.” More importantly, we have already deter-
mined that Musso committed three violations of an original
special condition of the release, one of which involved
having prohibited contact with a minor. Based on these
facts, the judge did not abuse his discretion in imposing
new special conditions aimed at preventing contact
offenses.
For all of the foregoing reasons, the judgment of the
district court is A FFIRMED.
7-1-11