United States v. Kennedy
Federal Bureau of Investigation (FBI) agents arrested Kennedy after he emailed an image
of child pornography to an undercover agent. Searching Kennedy’s computer, the FBI uncovered
seventy-seven images of child pornography in his email account. Kennedy cooperated with the FBI,
admitting that he had sent additional images to the undercover agent and had electronically traded
images with others.
The district court accepted Kennedy’s guilty plea, but deferred sentencing until the probation
officer could prepare a presentence investigation report (PSR). To this end, the probation officer
requested that Kennedy undergo a psychosexual evaluation, which consists of an interview,
plethysmograph, and polygraph. Kennedy moved the court to reject the request, but the court denied
Kennedy’s motion and ordered that he be evaluated. Kennedy moved the court to reconsider,
asserting that the examination would violate his Fifth Amendment right against self-incrimination.
The district court again denied Kennedy’s motion, holding that (1) it had authority to order
the examination under 18 U.S.C. § 3552(b) and (c), which permit the court to “order a study of the
defendant”; and that (2) although Kennedy maintained a Fifth Amendment right against self-
incrimination through sentencing under Mitchell v. United States, 526 U.S. 314 (1999), he must
assert that right “on an issue by issue basis, [and] not as a blanket claim.” Kennedy filed a Notice
of Appeal and had submitted a proof brief when the government asked the district court to revoke
Kennedy’s bond and order him incarcerated. The district court, troubled by Kennedy’s adamance
in opposing the examination, found that Kennedy posed a danger to the public, revoked his bond,
and remanded him to custody. See 18 U.S.C. § 3143(a)(1).
Seeking to avoid a lengthy presentence prison stay, Kennedy voluntarily dismissed his appeal
and agreed to be examined. The probation officer contracted with Counseling and Consultation
Services (CCS) to conduct the examination. CCS successfully interviewed Kennedy, but soon after
starting the plethysmograph portion of testing, CCS’s machine malfunctioned and testing terminated.
CCS contacted Kennedy’s lawyer, who was unaware that CCS had examined Kennedy in her
absence, to inform her that they would have to finish testing at a later date. Kennedy and CCS,
however, never completed the psychosexual examination.
At Kennedy’s sentencing hearing, the district court acknowledged that the PSR calculated
the appropriate Guidelines-recommended range as 70 to 87 months, and that both parties agreed a
sentence within that range would be reasonable. The government did not seek a specific Guidelines
sentence, but it did request a life term of supervised release. Kennedy’s counsel pressed for the
lowest Guidelines sentence and contested life supervision.
In making its determination, the district court considered Kennedy’s incomplete
psychosexual evaluation highly relevant, explaining:
One of the things that bears heavily in terms of any decision I have to make about
lifetime supervision is . . . Kennedy’s unwillingness to give the court any assurance
that he’s not dangerous. He refused to take the polygraph and has fought tooth and
nail against having the evaluation that this court ordered, and in fact has apparently
managed to obstruct it. What am I to make of that?
Kennedy’s counsel maintained that her client was merely following her advice, and that the local
Federal Defender’s Offices had adopted a policy of opposing on Fifth Amendment grounds
polygraph testing for defendants not yet sentenced, though later discussion suggested that the
offices’ concerns had yet to crystallize into a formal policy. Kennedy was willing to submit to the
polygraph and plethysmograph, she said, after sentencing or as part of supervision, but not prior to