US v. Hohag, No. 17-30049 (6-28-18)(Graber w/M. Smith & Hellerstein).

The 9th affirms imposition of SR conditions related to a SORNA conviction. The conditions imposed at issue are (1) participation in a sex offense specific assessment; and (2) polygraph testing at the discretion of the probation officer in conjunction with the assessment. The defendant argued that the conditions were unnecessary and an imposition because his sex offense was 27 years ago. He had undergone treatment, and in 2002, he submitted a polygraph showing he had no sexual contacts with minors.

The test for imposition of conditions, especially in sex cases, is whether the conditions are (1) burdensome; and (2) whether the condition is reasonably related to SR. The leading cases for sex offender conditions are Johnson, 697 F.3d 1249 (9th Cir 2012) and US v. T.M., 330 F. 3d 1235 (9th Cir 2003).

The 9th affirmed here because the conditions were related to the present conviction (SORNA) and were not a burdensome imposition.  The conditions are an assessment and possible testing. The court weighed and balanced. The 9th found this matter was closer to Johnson, where sex offender assessment was imposed after two sex offenses; both old, but one involving weapons, as was Johnson’s present offense. In T.M., the conditions were deemed too burdensome and stringent for an old sex offense, with a history of continued sex offender treatment, and not related to the present offense. Here, the present SORNA offense is given great weight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/28/17-30049.pdf