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
Roy 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 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conditions, his supervised release was revoked and he returned to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. The 1

supervised release included several conditions, which required Roy,

among other things, to participate in a mental health treatment
This 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 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. 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 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
seriously enough."

-4-

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
Efland testified, "[P]art of the understanding that I have 4

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-

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. At that point, Roy was no 4

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."
-6-

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
-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 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:
-8-

[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
These factors are: (A) the defendant's history and 5

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-

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

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.
-10-

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
-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.

For the reasons stated above, the district court's

decision is affirmed.