Fowlkes

concurring in part and dissenting in part.

I concur in the determination that condition four of the judgment must be read in light of our recent decision in United States v. Antelope, 395 F.3d 1128 (9th Cir.2005), to allow Fowlkes to assert his Fifth Amendment rights during any polygraph questioning without fear of violating his probation. I also concur that under the plain error standard of review, that the other conditions imposed by the district court do not constitute plain error. However, I dissent from the majority’s conclusion that all aspects of condition four were “reasonably related to” Fowlkes’ offense or personal characteristics.

There is no evidence in the record to suggest that Fowlkes has ever acted on his fantasies. There is also no evidence in the record establishing that persons in general who view underage pornography have a propensity to act on related fantasies. Such a propensity or correlation may exist, but has not been established here. In such a case, the possibility of inpatient treatment, which I view as tantamount to incarceration, is not reasonably related to the nature of the offense or the personal characteristics of Fowlkes, who appears to be a…

MEMORANDUM *

Appellant Jesse Junior Fowlkes (“Fowlkes”) appeals special conditions of supervised release imposed on him by the district court as part of his sentence for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). We affirm.

Fowlkes contends that special condition number four violates his Fifth Amendment rights and is not reasonably related to his offense or personal characteristics. We construe condition four as allowing Fowlkes, in accordance with our recent decision in United States v. Antelope, 395 F.3d 1128 (9th Cir.2005), to retain his Fifth Amendment rights during any required polygraph testing. So construed, the condition poses no constitutional problems. We also hold that each of the treatment options potentially required by this condition is reasonably related to Fowlkes’ conviction for receipt of child pornography and his admissions that he fantasizes about and writes stories about young girls being raped. If, in the course of treatment, it becomes apparent that inpatient treatment is not reasonably related to Fowlkes’ rehabilitation or to the protection of the public, the district court has discretion to alter the condition at that…