# U nit edSta tes C ou rt o f App eal s For t h e Firs t C ircu it

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, 2006Roy had been convicted in 1998 of unlawful sexual contact, a 1 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- STAHL, Senior Circuit Judge . Billy Roy ple d g u i lty 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 After Roy violated some of the conditions, his supervised release was revoked and he returned to prison for four additional months.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
superv i s i o n . T h i s a p p e a l c o n c e r n s t h e c i r c u m s t a n c e s t h a t l e dto the revocation of Roy's second term of supervised release. It also involves a challenge to one of the conditio n s s et 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 2 0 0 1, 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 t h ree years of supervised release. The 1 supervised release included several conditions, which required Roy, among other things, t o participate in a mental health treatmentThis first revocation is not at issue in this appeal. 2 Efland, a clinical social worker, testified that one concern 3 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- program for sex offenders and to refrain from contact with children under age 18 without pr i o r a pproval of his supervising probation officer. During this term of supervised release, Roy commenced a

r o m a ntic 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, an dh is 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. When his prison term was complete, he began a 2 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 c o n c erned that regular exposure to Woodward's two young children, one of whom was close in age to the victim of Roy's first s e x o f f ense, was posing a risk to the children's safety as well as inhibiting Roy's reh abilitation. 3seriously enough." -4-

A c c o rdingly, 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 apartmen t and spotted a number of empty beer cans, which Roy a d m i tted were the remnants of a night of drinking with Woodward
. I n M a r ch, 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. T he 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 apar t m e n t door. When Roy appeared, Brown asked whether anyone else was inside; Roy answered that he was alone. However,
Brow n heard noises from inside the apartment and found WoodwardEfland testified, "[P]art of the u n d erstanding that I have 4 with people working with me in sex offender treatment is that they will not h a v e c o n t a ct 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 i m p r e s s i o n t h a t h e u n d e r s t o o d h o w i m p o r t a n t h o n e s t y w a s a n dhow 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- hiding there. When Efland discovered this deception, he terminated Roy's treatment program, citing Roy's lack of honesty and failure to commit to pursui n g rehabilitation. At that point, Roy was no 4 longer compliant with the condition of supervised release requiring him to participate in a m e n t a l 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 wa s a l s o 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."-6- In this appeal, Roy contends that t h e district court abused its discretion w h e n , 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 becaus e t he examination was administered without Miranda warnings. Finally, Roy challenges the newly imposed condition that h e r e f rain 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 p e r iod. Roy contends that the real reason his release was revoked was that he had had contact with Jennifer Woodward, a n d t h a t t his 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 c o urt found, Roy had-7-

violated two of the express conditions of his supervised release: Standard Condition Number 3, which required Roy to answer truthfully all inquiries by the pro b a t ion 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 r e l a t i o nship 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 offe n d e r s , " d i s h o n e s t yi s a l m o s t a l w a y s a r i s k f a c t o r " f or recidivism. Roy's other violation w a s t h e 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 supervi s e dr elease terms, and the district court did not err in revoking the release.

There i s likewise no merit to Roy's claim that the statements he made during the polygraph e x a mshould have been suppressed because he was not g i ven Miranda warnings before the

exam. We recently held that the Fifth Amendment is not implicated when an individua l 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 o f u nrelated criminal activity:-8- [B]ecause revocation proceedings are not criminal proceedings, [a person on supervised r e l e a s e ] w i l l n o t b e e n t i t l e d t o r e f use 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, incl u d i ng 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. Instea d , h e claims that he sh o u l dnot have been compelled to, in effect, revoke his own release by telling the truth abou t his unsupervised contact with c h i l d r e n u n d e r 1 8
. I n l i g h t o f Y o r k , t h i s a r g u m e nt is meritless.

Roy's final and most substantial argument is that the provision in his newest supervised release order forbidding him from contact w i t h Woodward without the parole officer's approval violates his First Amendment r i ghts. 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 ofThese facto r s are: (A) the defendant's history and 5 charact e r i stics and the nature and circumstances of his offense; (B) the need for adequate deterrence of future cri m i n a l conduct; (C) th e n e e d t o 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- supervised release. United States v. Smith, __ F.3d __, __, 2006 5 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

con d i t i o n must entail "no greater deprivation of liberty than is reasonably necessary" to achieve the goals of supervised release; be consistent with any pertinent policy stateme n t s i ssued 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 qu e s t i o n intrudes

unneces s a r ily 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 co u r t i s p e rmitted 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 supe r v ised release is not rendered
aut o matically invalid "simply because it intrudes on a constitutionally protected right." Smith, __ F.3d at __, 2006 U.S.-10-

App. Lexis 3019 at *8. Rather, the test for ascertaining whether a release condition is permissible remains the "reasonably related" test described above, qualifi e d , 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 t o t h e 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 ha r m a nd encouraging Roy to refrain from recidivism. As to Roy's contention that the spe c i a l 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 disda i n ed their instructions to stay away from the family. In addition, the prohibition on Roy having contact with Woodw a r d o r h e r children is not absolute: such contact is to be permitted with prior approval o f 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-11-

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.

F o r t h e reasons stated above, the district court's decision is affirmed
.