U.S. v. Loy

Decision Date09 March 2000
Docket NumberNo. 99-3827,99-3827
Citation237 F.3d 251
Parties(3rd Cir. 2001) UNITED STATES OF AMERICA, V. RAY DONALD LOY, APPELLANT Argued:
CourtU.S. Court of Appeals — Third Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 98-cr-00089) District Judge: Alan N. Bloch

[Copyrighted Material Omitted]

Attorney for Appellant: Marketa Sims, Esq. (Argued) Office of Federal Public Defender 960 Penn Avenue 415 Convention Tower Pittsburgh, PA 15222

Attorneys for Appellee: Bonnie R. Schlueter, Esq. Mary Beth Buchanan, Esq. (Argued) Office of United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219

Before: Becker, Chief Judge, Nygaard and Garwood,* Circuit Judges

OPINION FOR THE COURT

Becker, Chief Judge.

Ray Donald Loy is currently serving a 33-month term of imprisonment following his conviction for receiving and possessing child pornography. After being released from prison, he will be required to serve three years of supervised release, subject to several special conditions, two of which are at issue in this appeal. The first condition prohibits Loy from possessing "all forms of pornography, including legal adult pornography." The second condition bars Loy from having unsupervised contact with minor children, and further specifies that the requisite supervision must come from someone other than his wife. Loy challenges these conditions, arguing that the pornography condition is vague and overbroad, and that the condition restricting contact with minors is not only vague and unsupported by the record, but could also potentially inhibit Loy's ability to have and raise his own children, in violation of his rights of procreation and familial integrity.

At the threshold, we must address the government's contention that Loy's challenge to the pornography condition should not be addressed before an attempt has been made to enforce its terms. We disagree, holding that the challenge is properly made at this time. We therefore turn to the merits of Loy's arguments, and conclude that the prohibition on pornography is unconstitutionally vague because it fails to provide any method for Loy or his probation officer to distinguish between those items that are merely titillating and those items that are "pornographic"; nor, in fact, does the prohibition even provide any guidance as to whether the restriction extends only to visual materials, or whether purely textual works and sound recordings fall within its scope. Therefore, we vacate this condition and remand to the District Court so that it may, if it so chooses, impose a new condition in accordance with the standards we set forth.

As for the restriction on contact with minors, we conclude that, although the condition might arguably extend to Loy's own (infant) children should he sire any upon his release from prison and before the three-year term of supervised release ends, given the lack of evidence to suggest that such an unlikely interpretation was intended by the District Court (and the constitutional questions that such an interpretation would raise), we will construe this condition not to extend to any children that Loy might have for the brief period of time that would be involved. We also construe the condition not to extend to accidental or unavoidable contact with children, such as might occur in public arenas. So construed, we uphold the condition as written and find that it comports with statutory and constitutional requirements.

I. Facts and Procedural History

This is the second time Loy has asked us to review the special conditions imposed on his supervised release. The following facts are taken largely verbatim from our decision in Loy's first appeal. See United States v. Loy, 191 F.3d 360, 362-64 (3d Cir. 1999). Of course, we have supplemented our previous factual discussion as necessary to reflect developments that have occurred in the interim.

In 1997, the United States Postal Inspection Service and the Pennsylvania State Attorney General's Office conducted a joint undercover child pornography investigation. As part of that investigation, Special Agent Dave Guzy of the Attorney General's Office placed an advertisement in a sexually explicit magazine that, in a roundabout way, invited readers to trade pornographic materials involving children. The advertisement directed interested parties to respond in writing to Postal Inspector Thomas Kochman, although Kochman's affiliation with the Inspection Service obviously was not disclosed. On March 6, 1997, Ray Donald Loy wrote to Kochman indicating that he and his wife, Maria, both collected child pornography, and expressing an interest in trading tapes. Loy stated that if Kochman was serious about trading, he should call Loy so that they could discuss it over the telephone.

On March 17, 1997, Kochman monitored and recorded a call placed by Guzy to Loy. During that conversation, Loy gave detailed descriptions of some of the tapes in his collection, and told Guzy that he could "put together" tapes for trading. He also represented that he traded with many people and offered to give Guzy their names. Loy described how he had produced videos by hiding a camcorder in his bag and filming up the skirts of young girls as they rode the escalators at a mall, and, in the course of the conversation, Loy specified that he was interested in receiving material involving girls ranging from age eight to age thirteen. He specifically requested that Guzy send him a tape of girls between the ages of eight and ten in a bathtub ("Bath Time video"), which Guzy agreed to do. On April 28, 1997, Kochman received a letter from Loy bearing the return address of R. Loy, P.O. Box 114, Langeloth, Pennsylvania 15054. Again, Loy asked that the Bath Time video be sent to him. In exchange, Loy offered to send a video of twelve-and thirteen-year-old children engaged in sexually explicit conduct.

On May 6, 1997, Postal Inspector Thomas Clinton delivered the package containing the Bath Time video to Loy's post office box in Langeloth and observed Loy accept delivery of the package. Other agents maintained surveillance of Loy as he left the post office and returned home with the package. Loy was observed entering his residence with the package in his possession. Clinton then executed a previously obtained search warrant, seizing from Loy's residence the Bath Time videotape as well as another tape depicting child pornography, fifteen computer disks containing child pornography, fifty videocassettes, several pornographic magazines, a VCR, and a television set. Clinton also seized various letters describing Loy's solicitation of child pornography and his offers to trade such materials.

In September 1998, Loy pled guilty to one count of knowingly receiving child pornography through the United States mail in violation of 18 U.S.C. S 2252(a)(2). He had also been indicted on one count of violating S 2252(a)(4)(B). At the time, Section 2252(a)(4)(B) made it a crime to knowingly possess: (1) three or more items; (2) containing visual depictions; (3) produced using materials transported in interstate and foreign commerce; (4) if production of the materials involved the use of minors engaging in sexually explicit conduct. See 18 U.S.C.A. S 2252(a)(4)(B) (West 1997). Prior to entering his plea, Loy had challenged the S 2252(a)(4)(B) count by filing a motion to suppress the evidence on which it was based. The District Court denied the motion, and Loy then entered a conditional guilty plea on the S 2252(a)(4)(B) count that preserved his right to appeal from the denial.

The District Court sentenced Loy to a 33-month term of imprisonment, followed by three years of supervised release. Additionally, the court imposed special conditions on Loy's supervised release, requiring him, inter alia, to undergo testing and treatment for drug and alcohol abuse, prohibiting him from having unsupervised contact with minors, and forbidding him from possessing pornography of any type. Loy objected to these special conditions, arguing that they were not supported by the record and that they violated his fundamental rights. In the first appeal, we upheld the denial of Loy's motion to suppress and the condition requiring drug testing, but remanded the case to the District Court to state its reasons why the remaining conditions had been imposed. See Loy, 191 F.3d at 369-71.

Following remand, the District Court entered an order amending Loy's sentence to eliminate the condition that he undergo testing and treatment for alcohol abuse while on supervised release. The court then reimposed the conditions barring Loy from possessing pornography of any type, as well as from having any unsupervised contact with minors, adding the further requirement that any supervision must come from someone other than his wife. In reimposing these conditions, the court explained that because "it is sometimes impossible to differentiate between children and adults in pornographic materials," the former condition was necessary to protect children who are victimized in child pornography as well as to deter Loy from further criminal conduct or from attempting to obtain illegal child pornography. The latter condition was imposed to protect the minors with whom Loy might come into contact, and to deter Loy from attempting to create "sexually explicit depictions of children." Loy now appeals for a second time, from an amended judgment of sentence entered in the District Court for the Western District of Pennsylvania. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231, which grants the district courts jurisdiction over all offenses against the laws of the United States. We have jurisdiction to review the District Court's final order pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a).

II. Standard of Review

A sentencing court's decision to impose conditions of supervised release is...

To continue reading

Request your trial
227 cases
  • Montoya v. Jeffreys
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 30, 2021
  • USA v. Burroughs, No. 08-3085.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 16, 2010
    ......        The government finally suggests that the computer restrictions will provide Burroughs with needed correctional treatment under 18 U.S.C. § 3553(a)(2)(D). Making passing reference to this factor, the government refers us to United States v. Johnson, which states that “[r]estrictions on Internet use may serve several sentencing objectives, chiefly therapy and rehabilitation, as well as the welfare of the community (by keeping an offender away from an instrumentality of his offenses).” 446 F.3d 272, 281 (2d ......
  • State v. Bahl
    • United States
    • United States State Supreme Court of Washington
    • October 9, 2008
  • Farrell v. Burke
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 31, 2006
    ...... all over write the naked, shameless truth in stories like, "Youth Displays Shit-Hole for Dog to Sniff, Lick," "Soldiers Grope Each Other in Back Row of Theater," "Pushes Partner's Face into Puddle of Piss," "Army Officer Sniffs Soldier's Jockey Shorts," "Suck Stops on the Highways of Vermont," "US Marine Displays Dick, Butt to Cubans," "Wipes Asshole With His Tongue, Then Screws It With His Tool," and "Cleric Fucks Army Vet's Mouth." Plus there's Boyd McDonald's incomparable "Sex in the News," and plenty of sexy photos, making Scum one of the hottest reads ever! .         The ......
  • Request a trial to view additional results
4 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT