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First Circuit Orders Clarification of Conditions of Release for Sex Offender

by Christopher Zoukis

The United States Court of Appeals for the First Circuit has ordered a lower court to clarify several conditions imposed upon a sex offender as part of his supervised release following a term of imprisonment.

Fernando DaSilva pleaded guilty to violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, by failing to register as a sex offender when he moved from Pawtucket, Rhode Island, to Fall River, Massachusetts, in early 2015. The district court sentenced him to time served and five years of federal supervised release. DaSilva objected to several of the conditions of supervised release imposed upon him. After the district court overruled his objections, he appealed to the First Circuit.

DaSilva specifically objected to the following conditions of release, arguing that they were not reasonably related to a conviction for failure to register, his history, or the goals of sentencing and that the conditions were overbroad.

-Special Condition 5: DaSilva shall "participate in sex offender treatment as directed by the probation officer and . . . submit to periodic polygraph testing."

-Special Condition 8: DaSilva shall "have no contact with any child under the age of 18, with the exception of your own children, without the presence of an adult who is aware of your history and who is approved in advance by the probation officer."

-Special Condition 9: DaSilva shall not "loiter in areas where children congregate [including] but not limited to schools, day care centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events."

-Special Condition 10: DaSilva shall not "be employed in any occupation, business or profession, or participate in any volunteer activity where there is access to children under the age of 18, unless authorized in advance by the probation officer."

-Special Condition 11: DaSilva shall "live at a residence approved by the probation office, and not reside with anyone under the age of 18 [with the exception of your own children] unless approved, in advance, by the probation office."

The appellate court began its analysis by noting that the law requires that conditions of supervised release "involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of the sentence, 18 U.S.C. § 3583(d)(2), and that the conditions be 'reasonably related' both to these goals and to the 'nature and circumstances of the offense and the history and characteristics of the defendant.' "

DaSilva argued that because the conviction requiring him to register -- possession of child pornography -- was over 9 years old, the conditions of release relating to children were no longer justified.

The court disagreed, noting that DaSilva had a lengthy criminal record spanning those nine years which illustrated his predilection to recidivate.

"[A]lthough the defendant's 2006 child pornography conviction occurred 10 years ago, he has been convicted of three more crimes in the intervening years," wrote the court. "Further, the defendant was incarcerated for the first five years after his 2006 conviction, which means that he has committed three crimes in the five years that he has been free."

Despite finding that the conditions were generally appropriate, the court found some of the specifics which could be read to inhibit DaSilva's ability to associate with his own children and step-children overbroad. For example, although the conditions allowed DaSilva to reside with his "own" children, they seemed to prohibit him from residing with his fianceé and her children, who would soon be his step-children. They also interfered with the everyday reality of parenthood. As such, the court remanded with instructions that the district court clarify the conditions.

"[W]e note that the restrictions on interaction with minors are not to be construed so strictly as to prohibit any manner of contact with other children," wrote the court. "Associational restrictions are usually read to exclude incidental encounters."

"Due to the defendant's concerns, we instruct the district court, in revising its order, to explain the limitations of the order and to elucidate the kinds of incidental contact that are permitted. For example, if the defendant were to drop his child off at a birthday party, pausing only to check in with the adult in charge and not speaking to any children, such an activity, without more, likely should not be read to violate the conditions of his release. Similarly, it may be that the district court did not intend to limit contact with children other than his own in situations where the children are in the presence of or being supervised by other adults." See:  United States v. DaSilva, No. 15-2103 (1st Cir. Dec. 16, 2016).

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Related legal case

United States v. DaSilva