United States Court of Appeals
For the First Circuit
No. 04-2448
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY SMITH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Victoria M. Bonilla and Bourbeau & Bonilla on brief for
appellant.
Michael J. Sullivan, United States Attorney, Michael J. Pelgro
and Virginia Vander Jagt, Assistant United States Attorneys, on
brief for appellee.
February 8, 2006
SELYA, Circuit Judge. Defendant-appellant Gregory Smith
challenges a condition of supervised release, imposed by the United
States District Court for the District of Massachusetts, that
directs him to stay away from his minor daughter, Alisa McDonald.
The appellant claims that this supervised release condition (i)
denies him his fundamental right to associate with family members
and (ii) lacks any reasonable relationship to the permissible goals
of supervised release. After careful consideration, we uphold the
challenged condition.
The background facts are readily rehearsed. The
government charged the appellant and his paramour, Megan McDonald,
with a medley of narcotics offenses. It charged the appellant with
multiple firearms counts as well. McDonald and the appellant both
pleaded guilty. On September 8, 1995, the district court sentenced
the appellant to a ten-year incarcerative term, to be succeeded by
an eight-year term of supervised release.
Megan McDonald's cooperation saved her from a prison
sentence. During the pendency of the proceedings, she gave birth
to the appellant's daughter. The relationship between the
appellant and McDonald had soured. One consequence was that the
appellant did not see the child during his immurement.
In 1998, while still incarcerated, the appellant
initiated a proceeding in the Barnstable Probate Court to obtain
visitation rights. That proceeding remains pending.
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Shortly before the appellant's release from custody,
correctional authorities transferred him to a halfway house. The
appellant finished serving his sentence on January 8, 2004, and
left the halfway house at that juncture. He signed a written set
of standard supervised release conditions that directed him, among
other things, to eschew any contact with convicted felons and to
obey the instructions of his probation officer.
Upon the appellant's release from the halfway house, the
probation officer ordered him to stay away from both his minor
daughter and his former girlfriend (with whom his daughter resided)
unless he first obtained permission from the Probate Court.
Probation officers subsequently repeated this instruction.
On March 26, 2004, the appellant, without leave from
either the Probate Court or his probation officer, set out to
contact his daughter. His odyssey began at an elementary school in
Falmouth, Massachusetts. He became visibly agitated when he
realized that Alisa did not attend that school. He then went to
the school district's administrative offices, entered the building,
and demanded access to his daughter. School officials informed him
that he could not see any student unless his name was on the
"emergency contact" list for that pupil. Because the appellant's
name did not appear on Alisa's emergency contact list, the
officials turned him away.
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The appellant made yet a third attempt to find his
daughter. Although he located the correct school, his quest failed
once again; he spoke to the principal, who stated that the matter
would have to be sorted out by the Probate Court.
School officials notified Megan McDonald of the
appellant's meanderings through the Falmouth school system. She
alerted the local constabulary and police officers were dispatched
to Alisa's school. The appellant gave the officers circular
explanations for his presence at the school.1 He then grudgingly
left the premises.
The appellant's actions had three immediate
repercussions. First, Megan McDonald obtained a state court
restraining order against the appellant. Second, the principal of
Alisa's school filed a notice of trespass that forbade the
appellant from setting foot on the institution's grounds. Last —
but far from least — on March 31, 2004, the Probation Department
moved to revoke the appellant's supervised release, claiming in
relevant part that he had violated the order to stay away from his
minor daughter.
1
When the police arrived, the appellant was in the company of
a woman who provided false identification information. Smith's
probation officer eventually learned that the mystery woman was
Karen McGauley, a convicted felon whom the appellant had met while
in residence at the halfway house. Although the probation officer
had told the appellant specifically to stay away from McGauley, the
appellant nevertheless pursued a relationship with her.
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On April 6, 2004, the district court issued an arrest
warrant. Eight days later, the appellant called his probation
officer to discuss the warrant. Contrary to the officer's
importuning, the appellant did not self-surrender.
While still at large, the appellant married Karen
McGauley. See supra note 1. The wedding took place on April 22,
2004. Less than three weeks later, federal marshals arrested the
appellant at McGauley's family home in Yarmouthport.
At an ensuing evidentiary hearing, a magistrate judge
found as a fact that the appellant had sojourned to the Falmouth
schools for the express purpose of meeting with his daughter. This
finding is not seriously controverted and, in all events, is
supported by substantial evidence.
Before the district court, the appellant admitted to four
supervised release violations; three involved frustrating
instructions and inquiries of the probation officer and the fourth
involved associating with a convicted felon. The court sentenced
him to 318 days of additional incarceration and a new supervised
release term. It inserted as a special condition of supervised
release a direction that the appellant stay away from his minor
daughter unless and until the Probate Court ordered otherwise.
This timely appeal followed.
In this venue, the appellant asseverates that this
special condition is illegal for two reasons: (i) it deprives him
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of his fundamental right to associate with a close family member
(his minor daughter) and (ii) it is not reasonably related to the
permissible goals of his supervised release. We review the
imposition of a condition of supervised release for abuse of
discretion. United States v. Prochner, 417 F.3d 54, 62 (1st Cir.
2005). With that deferential standard of review in mind, we
examine each of the appellant's asseverations.
The appellant's flagship claim is that the contested
supervised release condition denies him his fundamental right to
associate with a close family member and, thus, impinges upon his
constitutionally prescribed freedom of intimate association. See
Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984) (discussing a
person's right "to enter into and maintain certain intimate human
relationships" and the constitutional protection afforded to that
right "against undue intrusion by the State"). We readily accept
the appellant's tripartite premise that the father-daughter
relationship is a close one, see Lehr v. Robertson, 463 U.S. 248,
256 (1983); that it is constitutionally protected, see Quilloin v.
Walcott, 434 U.S. 246, 255 (1978); and that the court-imposed
special release condition impinges upon it. We disagree, however,
with the appellant's conclusion that, given these facts, his
immutable right to see his child trumps the special release
condition.
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It is beyond hope of contradiction that those who are
convicted of crimes against society lose a measure of
constitutional protection. See, e.g., Griffin v. Wisconsin, 483
U.S. 868, 874 (1987). As a result, a sentencing court can infringe
upon a convicted felon's liberty in various ways, such as by
ordering incarceration or by imposing conditions of supervised
release. The fact that many conditions of supervised release limit
a convicted felon's liberty does not render them invalid. See
United States v. Brown, 235 F.3d 2, 7 (1st Cir. 2000). "The
hallmark that separates impermissible conditions from permissible
ones is whether, on a given set of facts, a particular restriction
is clearly unnecessary." Id. This dividing line is no less
appropriate when the parent-child relationship hangs in the
balance. Cf. United States v. Myers, 426 F.3d 117, 125 (2d Cir.
2005) ("The constitutional privileges attached to the parent-child
relationship . . . are hardly absolute.").
Accordingly, we reject the appellant's argument that the
challenged supervised release condition should be invalidated
simply because it intrudes upon a constitutionally protected
right.2 The mere existence of a biological link does not override
all other considerations. See Lehr, 463 U.S. at 261.
2
This holding renders academic the government's suggestion
that the appellant forfeited his constitutional claim by failing to
raise it squarely in the court below.
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This brings us to the appellant's "relatedness"
contention. In mounting this aspect of his argument, the appellant
emphasizes the absence of any direct connection between his minor
daughter and the offenses of conviction. Yet the critical test is
not whether such an offense-specific nexus exists but, rather,
"whether the challenged condition is sufficiently related to one or
more of the permissible goals of supervised release." Brown, 235
F.3d at 6.
Relatedness must be evaluated against a statutory
backdrop. Congress has authorized courts to implement a wide
variety of discretionary supervised release conditions as long as
they are "reasonably related to" the goals of supervised release
and "involve[] no greater deprivation of liberty than is reasonably
necessary for [those] purposes." 18 U.S.C. § 3583(d)(1)-(2);3 see
USSG §5D1.3(b). This framework allows a court to order, as a
special condition of supervised release, that the defendant
"refrain from frequenting specified kinds of places or from
associating unnecessarily with specified persons." 18 U.S.C. §
3563(b)(6). The challenged condition fits within this taxonomy.
We turn, then, to whether "the nature and circumstances of the
offense and the history and characteristics of the defendant," id.
3
A discretionary condition of supervised release also should
be "consistent with any pertinent policy statements issued by the
Sentencing Commission." 18 U.S.C. § 3583(d)(3). Neither party
suggests that any such policy statements are germane to the
condition challenged here.
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§ 3553(a)(1), the need "to afford adequate deterrence to criminal
conduct," id. § 3553(a)(2)(B), and the objective of "protect[ing]
the public from further crimes of the defendant," id. §
3553(a)(2)(C), justified the condition's imposition in this
instance.
As said, the appellant takes a narrow, offense-specific
view of relatedness. In his estimation, the special condition
constitutes an abuse of discretion because it does not advance any
of the goals of supervised release or, at the very least, involves
a greater deprivation of liberty than is needed to achieve those
goals. This contention pales, however, in light of the appellant's
actions. We explain briefly.
Here, the challenged condition serves the laudable goal
of protecting public safety. When the appellant left the halfway
house, he was told to refrain from contact with his minor daughter.
The appellant did not abide by this directive. What is more, the
egregious manner in which he transgressed it set off warning
bells.4 His actions were sufficiently unsettling that they
produced both a state court restraining order and a trespass
notice. Under these circumstances, the district court reasonably
could have believed — as it apparently did — that both Alisa and
4
The appellant's proclivity for disrespectful behavior toward
his family members was also evidenced by his subsequent behavior.
After being denied access to his daughter at her elementary school,
he sent compromising photographs of Megan McDonald to Alisa's
school principal and to the Barnstable Probate Court.
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Megan McDonald, as members of the public, needed to be protected
from the appellant. The special release condition plainly served
that permissible purpose. See Wilkinson v. Russell, 182 F.3d 89,
104 (2d Cir. 1999) (emphasizing the strong governmental interest in
safeguarding minors, particularly when a child is in need of
protection against a parent's actions).
If more were needed — and we doubt that it is — the
appellant unquestionably violated an order that he refrain from
associating with convicted felons by consorting with McGauley (a
convicted felon) and eventually marrying her. Alisa's custodial
parent, Megan McDonald, likewise was a convicted felon — indeed,
she was the appellant's codefendant — and, given the likelihood of
coming into contact with her in the course of any attempt to
contact Alisa, it was within the district court's proper province
to direct the appellant to stay away from the child. Cf. United
States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) ("Probation
conditions may seek to prevent reversion into a former crime-
inducing lifestyle by barring contact with old haunts and
associates, even though the activities may be legal.").
The appellant's fallback position — that the special
condition of supervised release deprives him of more liberty than
is reasonably necessary — lacks force. After all, the condition
was not absolute. Family matters are best adjudicated in state
domestic relations courts, and the district judge sensibly
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constructed this condition to allow for its alteration by the
Probate Court (a court of competent jurisdiction that the appellant
already had petitioned for a grant of visitation rights). So
viewed, the challenged condition does not go too far. See, e.g.,
United States v. Crume, 422 F.3d 728, 734 (8th Cir. 2005) (allowing
condition barring defendant who possessed child pornography from
seeing his child without the permission of parole officer); see
also Myers, 426 F.3d at 127 (noting, in dictum, that condition
prohibiting appellant from spending time alone with his son absent
prior authorization would be acceptable if its goal was to "protect
other children").
We need go no further. For the reasons elucidated above,
we conclude that the district court did not abuse its discretion in
promulgating the challenged condition of supervised release.
Affirmed.
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