U.S. v. Myers

• Decision Date: 27 September 2005
• Docket Number: Docket No. 04-3498-CR.
• Citation: 426 F.3d 117
• Parties: UNITED STATES of America, Appellee, v. Duane Arthur MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

426 F.3d 117

UNITED STATES of America, Appellee, v. Duane Arthur MYERS, Defendant-Appellant.

Docket No. 04-3498-CR.

United States Court of Appeals, Second Circuit.

Argued: March 24, 2005.

Decided: September 27, 2005.

COPYRIGHT MATERIAL OMITTED

Timothy W. Hoover, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant.

Stephan J. Baczynski, Assistant United States Attorney, of counsel (Michael A. Battle, United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for Appellee.

Before: SOTOMAYOR, RAGGI and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Duane Arthur Myers ("Myers") appeals from a judgment entered on June 10, 2004, in the United States District Court for the Western District of New York (Skretny, J.). Myers pled guilty to one count of receiving child pornography in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(2)(A). The court sentenced Myers to a 78-month term of imprisonment and five years of supervised release. The court imposed several special conditions as part of Myers's term of supervised release. On appeal, Myers challenges only the special condition prohibiting him from spending time alone with his child absent advance authorization from the U.S. Probation Office. Because the present record does not permit us to assess the validity of the special condition, we vacate the condition and remand for resentencing consistent with this opinion.

BACKGROUND

During the summer of 2001, Myers, a thirty-nine-year-old male New York resident, struck up an internet relationship with a thirteen-year-old girl in Colorado. Myers posed as a sixteen-year-old boy in his email exchanges with the girl. The girl sent Myers pictures of herself. In response, Myers encouraged the girl to email him sexually explicit photos. She complied, emailing Myers a photograph that she had taken of her breasts and genitals. Myers pressed the girl for more photographs of herself. When she expressed reluctance, Myers threatened to tell the girl's father about the photo she had already sent. The girl sent additional nude photographs of herself.

On February 21, 2003, Myers pled guilty to one count of knowingly, through the use of a computer, receiving child pornography in interstate commerce consisting of a visual depiction of an actual person less than eighteen years of age, in violation of 18 U.S.C. § 2252A(a)(2)(A). Prior to sentencing, the probation office prepared a Pre-Sentence Report ("PSR"). The PSR detailed Myers's prior New York State conviction for sexual misconduct involving another young girl. The incident underlying that conviction took place in 1996, while Myers was staying overnight at his girlfriend's home. The girlfriend's eight-year-old niece, who was also staying overnight, climbed into his bed while he slept. Upon waking, Myers began to tickle her, but later placed his hand down her underwear and touched the girl's vaginal area. In a subsequent interview, Myers admitted to tickling the girl and to touching her inappropriately, but stated that he had realized "within seconds" that what he was doing was wrong and sent her back to bed. In 1997, Myers pled guilty to second-degree child abuse, a misdemeanor under New York State law. As a condition of probation for that offense, Myers participated in sex offender treatment. The PSR indicates that he was diagnosed with "pedophilia, sexually attracted to females, nonexclusive type."

The PSR also described Myers's family circumstances. Myers has never been married, and has a son, now five years old, with his girlfriend.¹ His girlfriend has eight children and was married to another man at the time she had Myers's child. After one of her children had an accident, Social Services removed all eight children from her care. At the time of his presentence interview, Myers was attempting to obtain visitation rights to see his son, who was in foster care. Myers asserts that "[u]p until the date of his arrest... [he] played an active role in his son's life, residing with his son, his girlfriend, and his girlfriend's other children," and that he has played and will continue to play an important role in raising his son.

Myers's first sentencing hearing took place on May 30, 2003. The court sentenced Myers to, inter alia, 78 months of incarceration and a term of five years of supervised release. In its pre-sentencing submissions, the government did not move to impose any special conditions. The PSR did not recommend any special conditions of supervised release. Neither Myers nor the government objected to the PSR. The district court, however, imposed special conditions of supervised release in addition to a variety of standard conditions. Several of these special conditions curtailed Myers's access to minor children, including (1) a prohibition against unsupervised contact with any child under 18, absent supervision by a law-abiding adult who is aware of Myers's background and/or conviction; (2) a requirement that Myers report immediately any inadvertent contact with minor children to the probation office; and (3) a requirement that Myers secure authorization from the probation office before having any contact with his child.

At the sentencing hearing, defense counsel objected to several of the conditions of supervised release, including the restrictions on Myers's ability to visit, reside with, or take care of his son. Defense counsel initially objected that Myers "has to be precleared to visit with his own son without another adult present." Judge Skretny stated:

I did not think this through, but when I articulated the condition, I did not expect that that would mean that every amount of time that he spends with his son during that approved visitation would have to be in the presence of another adult, but that the visitation itself would have to be preapproved, so that the probation office would be on notice with respect to when this visitation took place, so if they had to speak with the child afterwards, they could do that.

The district court further emphasized the importance of prior notice to the probation office so that it could "randomly check on what was going on during the course of the visitation." The court observed that these conditions provided Myers with "the incentive to have a special relationship with his child, but yet put[] him on notice that ... visitation and the activities can still be in some fashion monitored for the best interests of the child."

Defense counsel also argued that restricting Myers's access to his son violated the "strong due process right ... to be with [one's] family members." He argued that the preapproval condition was unjustified in light of the fact that (1) the instant offense did not involve Myers's son, (2) the government had not alleged that Myers had committed misconduct towards his son in the past, and (3) other standard conditions, such as the probation office's ability to make unannounced visits to check with Myers's son, would adequately deal with the court's concerns. The district court responded by noting that Myers's prior conviction relating to the eight-year-old girl was "something that has to be considered here in terms of his interaction with his own child. And I think it makes [the condition] reasonable."

The written judgment of sentence that the district court subsequently entered on June 9, 2003, provided, however, that Myers was to have no unsupervised contact with any child. Myers appealed his sentence to this Court, arguing, inter alia, that this condition conflicted with the oral sentence, which did permit unsupervised contact with his son. This Court agreed that the oral sentence and written judgment were in conflict and that the oral sentence should control; in light of this and a separate error not relevant to the present appeal, we vacated the judgment of conviction and remanded the case for modification of the written judgment, in accordance with the oral sentence. United States v. Myers, 89 Fed.Appx. 298, 299-300 (2d Cir.2004).² We did not reach the merits of Myers's constitutional objection to the oral condition imposed.

At the second sentencing proceeding, which took place on June 7, 2004, defense counsel renewed his objection to the special condition. He argued that the limitations on Myers's contact with his son were a greater deprivation of liberty than reasonably necessary under 18 U.S.C. §§ 3553(a) and 3583(d), and unconstitutionally interfered "with the parent child relationship in the absence of any evidence that Mr. Myers is a threat to his own child." The court ultimately imposed the pertinent special conditions as follows:

The defendant is to have no unsupervised contact with any child under the age of 18 other than his child without supervision of a responsible, law-abiding adult aware of [his] background and/or conviction. If the defendant has an inadvertent contact with a child under the age of 18, it is to be immediately reported to the U.S. Probation Office. The Probation Office has the discretion to authorize the defendant to spend time alone with his child and to pick up his child from school or other functions; however, authorization must be obtained in advance.

This timely second appeal followed.

DISCUSSION

Myers challenges neither his conviction nor the reasonableness of his 78-month sentence.³ Myers also does not object to the restraints generally placed upon his contact with minor children. He only contests the special condition that requires him to obtain authorization from the probation office before he may spend time alone with his son. Myers argues that in the absence of evidence that he poses a threat to his own son, the condition encroaches upon the constitutionally protected parent-child relationship. In the absence of such evidence, Myers also argues that the condition transgresses 18 U.S.C. § 3583(d)(1)'s requirement that the condition must reasonably relate to the...