                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                        18-2844
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                  RUBEN COTTO, JR.,
                                                  Appellant
                                   ______________

                          On Appeal from the District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. 5-16-cr-00203-001)
               Honorable Lawrence F. Stengel, Retired U.S. District Judge
                                  ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     July 9, 2019

             Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges


                              (Opinion filed: July 30, 2019)


                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
KRAUSE, Circuit Judge.

       Ruben Cotto, Jr. appeals his conviction for production of child pornography,

arguing that the District Court erred in denying his motion to dismiss the indictment for

outrageous government conduct. He also challenges two conditions of his sentence. We

will affirm the District Court’s denial of Cotto’s motion and vacate the two conditions.

I.     Background

       Cotto was arrested after initiating an online chat with an undercover detective who

had posted on a forum “frequented by [people] with a sexual interest in children and in

incest.” Appellee’s Br. 5. During the messaging, in which the detective represented that

he too had a “daughter,” Cotto told the detective that he had engaged in sexual acts with

his two-year-old daughter and that he would send explicit pictures of her later.

Appellee’s Br. 6 (citing Sealed App. 210–11). Concerned Cotto might use the occasion

to produce pictures, the detective left the conversation. Two hours later, Cotto revived

the chat by volunteering a photograph of an exposed child. When the detective received

a contemporaneous photograph, confirming the child was in danger at that moment, he

activated his task force to locate Cotto, while he continued messaging him to collect

additional information for the investigation. During this conversation, Cotto sent more

photographs and also requested multiple times for the detective to send him pictures of

the detective’s purported daughter in return.

       Cotto was charged with production, distribution, and possession of child

pornography under 18 U.S.C. §§ 2251(a), (e), 2252(a)(2), (a)(4). After the District Court

denied his motion to dismiss the indictment on the grounds of outrageous government

                                                2
conduct, Cotto pled guilty to the charges.1 He was sentenced to the mandatory minimum

sentence of 180-months’ imprisonment, a $5,000 special assessment under the Justice for

Victims of Trafficking Act, and ten years of supervised release, with, among other

conditions, the special condition that he “submit to a sex-offender assessment which may

include the use of specific assessment tools, including . . . a plethysmograph . . . .”

Appellant’s Br. 12 (quoting Sealed App. 284). Cotto timely appealed.

II.    Discussion2

       Cotto argues on appeal that the District Court should have granted his motion to

dismiss the indictment and that the $5,000 special assessment and authorization of

plethysmograph testing should be vacated. We address these arguments in turn.

       A.     Outrageous Government Conduct

       Cotto posits that the government acted outrageously by inciting and acquiescing in

the production of child pornography. We disagree. Because this is a constitutional due

process challenge, we exercise plenary review over the District Court’s legal conclusions.

United States v. Voigt, 89 F.3d 1050, 1064 (3d Cir. 1996).

       Government conduct warrants the dismissal of an indictment when it is “so

outrageous” as to be “shocking to the universal sense of justice.” United States v.

Russell, 411 U.S. 423, 431–32 (1973) (internal quotation marks and citation omitted).


       1
        As Cotto notes on appeal, Count 1 charges Cotto with a violation of 18 U.S.C.
§ 2251(a), (e), but the judgment lists Count 1 as charging a violation of 18 U.S.C.
§ 2252(a), (e). On remand, the District Court is instructed to correct this clerical error.
       2
         The District Court had jurisdiction under 18 U.S.C § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              3
This defense rarely succeeds, as we are “extremely hesitant to find law enforcement

conduct so offensive that it violates the Due Process Clause.” Voigt, 89 F.3d at 1065;

see, e.g., United States v. Barbosa, 271 F.3d 438, 472 (3d Cir. 2001) (finding an

investigation where the defendant was induced to swallow and smuggle cocaine at the

risk of his life was not outrageous). Though the doctrine is still alive in this Circuit, it is

“hanging by a thread.” United States v. Nolan-Cooper, 155 F.3d 221, 230 (3d Cir. 1998).

We have only once dismissed an indictment for outrageous government conduct, see

United States v. Twigg, 588 F.2d 373, 376, 380 (3d Cir. 1978) (accepting the defense

because a government agent was “completely in charge of the entire [drug] laboratory,”

supplying materials, providing a location and “specific[ally] directi[ng]” the actual

manufacturing), and since then we have effectively limited Twigg to its own facts, see,

e.g., Nolan-Cooper, 155 F.3d at 234 n.8 (distinguishing Twigg and noting that “this is not

a case where law enforcement created new crimes solely for the sake of bringing charges

against a suspect who was lawfully minding her own affairs”); United States v. Ward,

793 F.2d 551, 554 (3d Cir. 1986) (noting that even facts “quite similar to those in Twigg”

may be found insufficient to dismiss the indictment).

       Cotto argues that the Government’s conduct was outrageous because it “incited”

Cotto to produce child pornography. Appellant’s Br. 22. But the detective’s messages

do not come close to the level of participation and “specific direction” required by the

outrageous conduct doctrine. Twigg, 588 F.2d at 381. Having carefully reviewed the

record of this case, including transcripts of the proceedings and the presentence report,

we perceive no direction or instruction by the detective that could be construed as

                                               4
facilitation. Instead, the record reflects that the detective used reasonable strategies to

confirm a child was in danger and collect evidence for the investigation.

       Nor was the detective’s purported “acquiescence” in the production of child

pornography sufficient to dismiss the indictment. Appellant’s Br. 27. This argument has

uniformly failed in cases involving child pornography. See United States v. Anzalone,

923 F.3d 1, 6 (1st Cir. 2019) (declining to dismiss an indictment for outrageous conduct

where the FBI ran a child-pornography website for two weeks after seizing control of it

instead of promptly shutting it down); United State v. Kienast, 907 F.3d 522, 531 (7th

Cir. 2018) (same); United States v. Kim, No. 16-CR-191 (PKC), 2017 WL 394498, at *4

(E.D.N.Y. Jan. 27, 2017) (collecting cases finding the same). And in a series of cases

involving the government’s distribution of already-produced child pornography, we and

other Circuits have found that such conduct is not outrageous. See United States v.

Osborne, 935 F.2d 32, 37 (4th Cir. 1991) (holding the government’s mailing of child-

pornography material to the defendant in order to issue a search warrant was not

outrageous); United States v. Duncan, 896 F.2d 271, 277 (7th Cir. 1990) (same); United

States v. Musslyn, 865 F.2d 945, 947 (8th Cir. 1989) (same); United States v. Driscoll,

852 F.2d 84, 85–87 (3d Cir. 1988) (same).

       In short, though this type of government operation may sometimes “fall[] close to

the line” of outrageous conduct, it is generally insufficient, as it is here, to merit the

dismissal of an indictment. Anzalone, 923 F.3d at 6. As the Seventh Circuit put it, an

argument like Cotto’s is “itself more than a little outrageous,” as the defendant “seeks to

shield himself from prosecution because the child[] he victimized [was] allegedly

                                               5
victimized by someone else too.” Kienast, 907 F.3d at 531. In light of the doctrine’s

high bar and the lack of participation by the government in the actual production of the

images, we will affirm the denial of the motion to dismiss the indictment.

       B.        Special Assessment

       Cotto argues, and the Government concedes, that the District Court erred in

imposing a $5,000 special assessment under the Justice for Victims of Trafficking Act.

Because Cotto did not preserve this issue at sentencing, we review for plain error.3 See

United States v. Holmes, 193 F.3d 200, 205 (3d Cir. 1999). Under 18 U.S.C.

§ 3014(a)(3), a special assessment applies to “any non-indigent person” convicted of an

offense “relating to sexual exploitation and other abuse of children.” At sentencing, the

District Court found “that [Cotto] is indigent,” Appellee’s Br. 34–35 (quoting Sealed

App. 284–85), and adopted the presentence report’s findings that Cotto has large debts

and no assets.

       Given the express statutory language, applying the assessment to an indigent

defendant was a “clear” and “obvious” error. Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016). And because a special assessment is a “punishment” that affects

substantial rights, United States v. Tann, 577 F.3d 533, 539 (3d Cir. 2009), its erroneous


       3
         To prevail on plain-error review, Cotto must show that “(1) there was an error;
(2) the error was plain; (3) the error prejudiced or affect[ed] substantial rights; and (4) not
correcting the error would seriously affect[] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Greenspan, 923 F.3d 138, 147 (3d Cir. 2019)
(alteration in original and internal quotation marks omitted) (quoting United States v.
Olano, 507 U.S. 725, 732, 734–36 (1993)). Our determination on the fourth prong is
discretionary; “[e]ven if an error satisfies the first three prongs, we may correct the error
but need not do so.” Id. (citing Olano, 507 U.S. at 735).
                                               6
imposition “affect[ed] the fairness and integrity of this proceeding,” and thus constituted

plain error, United States v. Cesare, 581 F.3d 206, 209 (3d Cir. 2009). Accordingly, we

will vacate the special assessment.

       C.     Plethysmograph Testing

       Cotto also argues—and on this record, the Government again concedes—that the

District Court erred in authorizing plethysmograph testing (“PPG testing”) as a condition

of his supervised release without making the necessary findings under 18 U.S.C. § 3583.4

Cotto did not object to this condition of supervised release at sentencing, so we again

review for plain error. United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007).

       Under 18 U.S.C. § 3583, courts may impose conditions of supervised release

specific to the offense upon considering certain factors under 18 U.S.C. § 3553, including

the “nature and circumstances of the offense,” the “history and characteristics of the

defendant,” id. § 3553(a)(1), and the public need for the condition, id. § 3553(a)(2). The

condition must “involve[] no greater deprivation of liberty than is reasonably necessary”

to deter crime, protect the public, and effectively treat the defendant. Id. § 3583(d)(2).

PPG testing “implicates a particularly significant liberty interest” and requires a

“thorough, on-the-record inquiry” into whether it is reasonably necessary in light of the

defendant’s characteristics and circumstances. United States v. Weber, 451 F.3d 552,

563, 568 (9th Cir. 2006); see also United States v. McLaurin, 731 F.3d 258, 263 (2d Cir.




       4
         Given our disposition, we do not reach Cotto’s argument that PPG testing is
invalid “across the board” as a violation of substantive due process. Appellant’s Br. 44.
                                              7
2013) (requiring district courts to make “sufficiently informative and defendant-specific”

findings on the necessity of PPG testing in each case).

       The District Court made no inquiry into whether Cotto’s characteristics

“reasonably necess[itate]” the bodily intrusion attendant to PPG testing, as required under

18 U.S.C. § 3583(d)(2). To the contrary, the District Court found Cotto’s risk of

recidivism to be low, and it varied below the Sentencing Guidelines in part because of

this low risk of recidivism. As the Government concedes, those rulings support the

notion that Cotto’s “history and circumstances” do not necessitate PPG testing,

Appellee’s Br. 38, and it was plain error to authorize it absent findings of its necessity as

a condition of supervised release for this defendant, Voelker, 489 F.3d at 154; see United

States v. Velez-Luciano, 814 F.3d 553, 565 (1st Cir. 2016) (finding plain error where the

government conceded that PPG testing was erroneously imposed and “no countervailing

evidence or explanation” supported its imposition) .

       Accordingly, because the District Court provided no on-the-record justification for

imposing PPG testing and explicitly found that Cotto presents a low risk of recidivism

and because the Government agrees that “it would be appropriate to exclude PPG testing

from the condition[s of supervised release] for this defendant,” Appellee’s Br. 38, we will

instruct the District Court on remand to exclude this condition of Cotto’s supervised

release.5


       5
        While we recognize that remand to allow a district court to reconsider the
imposition of PPG testing after making the necessary factfinding is sometimes
appropriate, see, e.g., Velez-Luciano, 814 F.3d at 565 (vacating PPG testing and
remanding for the District Court to make findings on the record before reimposing it);
                                              8
III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s denial of the motion

to dismiss the indictment, vacate the special assessment under the Justice for Victims of

Trafficking Act, and instruct the District Court to exclude PPG testing as a condition of

Cotto’s supervised release and to correct the clerical error in the judgment. The sentence

is affirmed in all other respects.




United States v. Cope, 527 F.3d 944, 955–56 (9th Cir. 2008) (same); Coleman v. Dretke,
395 F.3d 216, 225 (5th Cir. 2004) (same), this is not such a case, as the District Court
already determined that Cotto’s risk of recidivism is low and the Government agrees that
such testing would be inappropriate.

                                             9
