United States Court of Appeals
For the First Circuit
No. 05-2145
UNITED STATES,
Appellee,
v.
BILLY ROY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judges.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula
D. Silsby, United States Attorney, was on brief, for appellee.
March 1, 2006
STAHL, Senior Circuit Judge. Billy Roy pled guilty in
2001 to possession of child pornography and was sentenced to a term
of imprisonment followed by three years of supervised release. The
supervised release was subject to Roy's compliance with various
restrictions on his behavior. After Roy violated some of the
conditions, his supervised release was revoked and he returned to
prison for four additional months. When the prison term was
complete, Roy was again released subject to conditions of
supervision. This appeal concerns the circumstances that led to
the revocation of Roy's second term of supervised release. It also
involves a challenge to one of the conditions set forth in Roy's
third scheduled period of supervised release (which he has yet to
serve). Finding that none of Roy's arguments has merit, we affirm.
I. Background
In January 2001, Roy pled guilty in the United States
District Court for the District of Maine to possession of child
pornography and, that April, was sentenced to two years in prison,
to be followed by three years of supervised release.1 The
supervised release included several conditions, which required Roy,
among other things, to participate in a mental health treatment
1
Roy had been convicted in 1998 of unlawful sexual contact, a
misdemeanor. The victim was a 14-year-old girl who had been
babysitting Roy's two nephews. This conviction itself is not at
issue in this case, but Roy's past criminal behavior is relevant to
his current mental health treatment and his potential for
recidivism, both of which are implicated in this appeal.
-2-
program for sex offenders and to refrain from contact with children
under age 18 without prior approval of his supervising probation
officer. During this term of supervised release, Roy commenced a
romantic relationship with Jennifer Woodward, a woman with two
minor children, an 11-year-old daughter and a 6-year-old son. He
did not tell Woodward about his criminal history; she later learned
the information from a friend. Roy concealed the relationship from
his mental health program counselor, Scott Efland, and his
probation officer, Matthew Brown. In November 2004, a judge
determined that Roy had violated the conditions of his supervised
release, the release was revoked, and Roy was sentenced to four
months in prison.2 When his prison term was complete, he began a
second term of supervised release, this one to last 32 months.
Roy continued his relationship with Woodward, who allowed
him to have contact, sometimes unsupervised, with her children.
Efland and Brown became concerned that regular exposure to
Woodward's two young children, one of whom was close in age to the
victim of Roy's first sex offense, was posing a risk to the
children's safety as well as inhibiting Roy's rehabilitation.3
2
This first revocation is not at issue in this appeal.
3
Efland, a clinical social worker, testified that one concern
in treating sex offenders is that the offender will, consciously or
unconsciously, identify children as potential new victims and then
build relationships with them. He stated, "[Roy] acknowledged that
he was having contact with [Woodward's] children and that he was
spending the night at her home. . . . I was concerned if [Woodward]
would know how to protect the children, if she was taking the risk
-3-
Accordingly, Efland and Brown prohibited Roy from having contact
with Woodward or her children and reminded him repeatedly to stay
away from the family. Nonetheless, Roy continued to see Woodward
and to conceal the relationship from his supervisors.
In February 2005, Brown visited Roy's apartment and
spotted a number of empty beer cans, which Roy admitted were the
remnants of a night of drinking with Woodward. In March, Brown
paid another visit to Roy's apartment and saw a recent photograph
of Roy and Woodward together. On April 4, at Brown's request, Roy
took a polygraph examination. The examiner asked Roy whether he
had had any unsupervised contact with children or any contact at
all with Woodward's daughter. Roy admitted having had contact with
Woodward's children and that he had, on some occasions, initiated
that contact, including by means of sending a cell phone text
message to the daughter. Three days after the exam, Roy met with
Brown and Efland. The two supervisors expressed their concerns
about the progression of Roy's rehabilitation, and Efland told Roy
that any further contact with Woodward would preclude him from
successfully continuing in treatment.
The following month, early one morning, Brown knocked on
Roy's apartment door. When Roy appeared, Brown asked whether
anyone else was inside; Roy answered that he was alone. However,
Brown heard noises from inside the apartment and found Woodward
seriously enough."
-4-
hiding there. When Efland discovered this deception, he terminated
Roy's treatment program, citing Roy's lack of honesty and failure
to commit to pursuing rehabilitation.4 At that point, Roy was no
longer compliant with the condition of supervised release requiring
him to participate in a mental health treatment program. He had
also violated the condition requiring that he be honest with his
parole officer. As a result of these violations, the government
moved in May 2005 to revoke Roy's supervised release a second time,
and after a hearing held in July of that year, the district court
revoked Roy's release and returned him to prison once again, this
time for eight months. He was also sentenced to a third term of
supervised release, to last 24 months, to be served upon his third
release from prison. In addition to requiring that Roy participate
in counseling and stay away from minor children without permission,
the supervised release included the following condition: "Defendant
shall have no contact, direct or indirect, with Jennifer Woodward,
or her minor children, [names intentionally omitted], without prior
approval of the probation officer."
4
Efland testified, "[P]art of the understanding that I have
with people working with me in sex offender treatment is that they
will not have contact with children under the age of 18 without
getting permission from myself and the probation officer. . . . I
was concerned whether this was some sort of movement toward
sexually abusing these children . . . . [Roy] didn’t give me the
impression that he understood how important honesty was and how
related that is to keeping himself safe. . . . [I terminated the
treatment because] I had no reason to believe that he all of a
sudden would start being honest."
-5-
In this appeal, Roy contends that the district court
abused its discretion when, at the July 2005 revocation hearing,
the court determined that Roy had violated the conditions of his
second period of supervised release. He also argues that the
district court improperly considered information that Roy revealed
during the April 4 polygraph examination because the examination
was administered without Miranda warnings. Finally, Roy challenges
the newly imposed condition that he refrain from contact with
Woodward on the ground that it violates his First Amendment right
of association.
II. Discussion
This court reviews preserved challenges to conditions of
supervised release for abuse of discretion. See United States v.
Allen, 312 F.3d 512, 514 (1st Cir. 2002).
We turn first to Roy's argument that the district court
erred in concluding, at the July 2005 revocation hearing, that he
had violated the terms of his second supervised release period.
Roy contends that the real reason his release was revoked was that
he had had contact with Jennifer Woodward, and that this was an
abuse of discretion because such contact was not prohibited by the
supervised release terms then in effect. However, it is more than
evident from the record that Roy's violation, as determined by the
court, was not that he had contact with Woodward. Rather, as the
probation office charged, and the district court found, Roy had
-6-
violated two of the express conditions of his supervised release:
Standard Condition Number 3, which required Roy to answer
truthfully all inquiries by the probation officer, and Special
Condition Number 1, which required him to participate in a mental
health treatment program until released by the probation officer.
It is true that Roy's relationship with Woodward was one of the
subjects about which he lied to his treatment officers, but he was
penalized for the lie, not the relationship itself. Efland, the
treatment counselor, specifically identified Roy's lack of candor
as an impediment to his treatment, pointing out that with sex
offenders, "dishonesty is almost always a risk factor" for
recidivism. Roy's other violation was the termination of his
treatment program, which resulted from his unapproved contact with
the children as well as his dishonesty. These were legitimate
reasons to conclude that Roy had breached his supervised release
terms, and the district court did not err in revoking the release.
There is likewise no merit to Roy's claim that the
statements he made during the polygraph exam should have been
suppressed because he was not given Miranda warnings before the
exam. We recently held that the Fifth Amendment is not implicated
when an individual on supervised release is questioned during a
polygraph test about past conduct related to his or her release
terms, as opposed to a government investigation of unrelated
criminal activity:
-7-
[B]ecause revocation proceedings are not
criminal proceedings, [a person on supervised
release] will not be entitled to refuse to
answer questions solely on the ground that his
replies may lead to revocation of his
supervised release. . . .[A person on release]
will have a valid Fifth Amendment claim if his
probation officers ask, and compel him to
answer over his assertion of privilege, a
particular question implicating him in "a
crime other than that for which he has been
convicted."
United States v. York, 357 F.3d 14, 24 (1st Cir. 2004) (citations
omitted) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)).
Here, the subject of the polygraph exam was Roy's conduct
during his second term of supervised release, including specific
questions about his contact with Woodward's children. Roy makes no
argument that truthful answers to the government's questions would
implicate him in any new and separate crime. Instead, he claims
that he should not have been compelled to, in effect, revoke his
own release by telling the truth about his unsupervised contact
with children under 18. In light of York, this argument is
meritless.
Roy's final and most substantial argument is that the
provision in his newest supervised release order forbidding him
from contact with Woodward without the parole officer's approval
violates his First Amendment rights. The federal Sentencing
Guidelines allow a district court to impose special conditions on
a defendant's supervised release if the conditions are "reasonably
related to" any or all of four factors tied to the goals of
-8-
supervised release.5 United States v. Smith, __ F.3d __, __, 2006
U.S. App. Lexis 3019 at *9 (1st Cir. February 8, 2006) (quoting 18
U.S.C. § 3583(d)(1)); York, 357 F.3d at 20. In addition, a special
condition must entail "no greater deprivation of liberty than is
reasonably necessary" to achieve the goals of supervised release;
be consistent with any pertinent policy statements issued by the
Sentencing Commission; and have adequate evidentiary support in the
record. York, 357 F.3d at 20 (quoting U.S.S.G. § 5D1.3(b)(2)).
Here, Roy argues that the special condition in question intrudes
unnecessarily and unreasonably upon his First Amendment right of
free association, given the purposes that supervised release is
meant to serve and the factors a district court is permitted to
consider when fashioning a special condition. He contends that he
and Woodward are both consenting adults, and that, on balance, to
interfere with their relationship does not serve any rehabilitative
or protective interests strongly enough to outweigh the constraint
on the two adults' freedom of association.
A condition of supervised release is not rendered
automatically invalid "simply because it intrudes on a
constitutionally protected right." Smith, __ F.3d at __, 2006 U.S.
5
These factors are: (A) the defendant's history and
characteristics and the nature and circumstances of his offense;
(B) the need for adequate deterrence of future criminal conduct;
(C) the need to protect the public from further crimes by the
defendant; and (D) effective provision of educational or vocational
treatment, medical care, or other needed correctional treatment to
the defendant. U.S.S.G. § 5D1.3(b)(2).
-9-
App. Lexis 3019 at *8. Rather, the test for ascertaining whether
a release condition is permissible remains the "reasonably related"
test described above, qualified, as always, by the statutory
requirement that a condition invade a defendant's liberty no more
than reasonably necessary in light of the goals the condition is
meant to serve. As to the first part of this test, it is clear
that the restriction on Roy's relationship with Woodward is
intended to keep Roy at a safe distance from Woodward's young
children. This serves the dual purposes of protecting the children
from harm and encouraging Roy to refrain from recidivism. As to
Roy's contention that the special condition deprives him of more
liberty than is reasonably necessary under the circumstances, the
condition was a considered response to a specific problem, imposed
only after Roy had repeatedly lied to his parole officer and
treatment counselor about his relationships with Woodward and her
children and disdained their instructions to stay away from the
family. In addition, the prohibition on Roy having contact with
Woodward or her children is not absolute: such contact is to be
permitted with prior approval of the probation officer, who can
allow future contact if and when Roy progresses in his sex offender
treatment. See Smith, __ F.3d at __, 2006 U.S. App. Lexis 3019 at
*12-13 (citing flexibility of special condition barring father from
contact with his daughter as one reason why condition did not
overly burden defendant's liberty). In sum, the special condition
-10-
on Roy's supervised release serves a permitted goal in a reasonable
manner, and the district court did not abuse its discretion in
imposing it.
III.
For the reasons stated above, the district court's
decision is affirmed.
-11-