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Juvenile Sex Offender Conditions

Strict Monitoring of Juvenile Sex Offender Internet Usage is a “Heavy Burden,” says Fifth Circuit

By | Sex Crimes

In United States v. Sealed Juvenile, the 5th Circuit Court of Appeals discusses how much oversight is too much when it comes to juvenile sex offenses.

Juvenile Sex Offender ConditionsPlease note: This article discusses sexual abuse of a child. Generally speaking, the reason the court system treats juveniles differently from adults is because of the hope of rehabilitation and restoration of the juvenile offender to society. With everything from school to job searching on the internet these days, should juvenile sex offenders be able to be on the internet? Is strictly monitoring a juvenile sex offender’s internet usage, down to the keystroke, an imposition on constitutional rights, or is society providing oversight to a juvenile defendant with the hope of rehabilitation?

A Juvenile Sexual Assault Occurs on a Military Base

While living with his family on a military base, a fifteen-year-old sexually assaulted a four-year-old. He was charged with violating 18 U.S.C. §§2241(c), 5032 (2012), “engaging in a sexual act with a person who had not attained the age of 12 years.” The juvenile defendant had a history of psychiatric illnesses, such as Oppositional Defiant Disorder and Bipolar disorder. He had a pattern of sending sexually explicit letters to classmates at school. Before sentencing the district court ordered a probation officer to render a special report, which concluded, “in the last year the juvenile’s problems transformed from being anger-oriented to being sexually-oriented.” In a plea agreement, the juvenile pleaded guilty to a lesser offense of “abusive sexual conduct with a minor who had not attained the age of 12 years,” violations of 18 U.S.C. § 2244(a)(5) (2012) and §5032.

The District Court Imposes Strict Sex Offender Conditions to Probation

The district court deemed the defendant a “juvenile delinquent” and sentenced him to eighteen months in a juvenile treatment facility and a term of juvenile delinquent supervision until he turned twenty-one. Further, the district court imposed four special conditions to his supervision

  1. a restriction on the defendant’s contact with children,
  2. choice of occupation,
  3. prohibition on loitering in specific places, and
  4. the use of computers and internet.

The juvenile appealed to the Court of Appeals for the Fifth Circuit, arguing that the district court had not provided adequate reasons for imposing the special conditions at the sentencing hearing, and failed to explain how the special conditions were reasonably related to the offense.

Under 18 U.S.C. § 3563(b), courts may place discretionary conditions on probation, so long as the conditions are reasonably related to the factors set forth in such deprivations of liberty or property and are reasonably necessary. In doing so, the sentencing court must consider the nature and circumstances of the offenses and the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)(2) (2012).

The Big Issue Before the Fifth Circuit | Were the Special Conditions of Probation Reasonably Related to the Offense?

The big issue before the Fifth Circuit was whether the conditions imposed by the district court were reasonably related to the offense, and if so, were they reasonably necessary. Did the district court provide adequate reasons for imposing the four special conditions? As the case was a matter of first impression, the Court examined each special condition and concluded in a surprising manner with regard to the internet and computer use.

Condition One: Restriction on Contact with Children

Under the first special condition, the juvenile was “not to have contact with children under the age of sixteen without prior written permission of the Probation Officer.” Further, he was required to “report unauthorized contact with children to the Probation Officer.” On appeal, the juvenile argued that this special condition was a “much greater deprivation of liberty…than reasonably necessary.” However, the Court disagreed with the juvenile. “Considering the threat posed by the juvenile based on his conviction [and other noted behaviors on record], we affirm this condition.” Also noting that the juvenile could attend school with permission of the Probation Officer, the Fifth Circuit agreed with the lower court.

Condition Two: Choice of Occupation

Under the second special condition, the juvenile was “restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” On appeal, the juvenile argued that the special condition was not reasonable and necessary because the offense was not related to work and that he would run a risk of never being able to be employed. The Court disagreed because the juvenile would be able to work upon prior permission from his Probation Officer. The Court affirmed the district court’s condition.

Condition Three: Prohibition on Loitering in Specific Places

Under the third special condition, the juvenile was not to “loiter within one-hundred feet of schools, parks, playgrounds, arcades, or other places primarily used by children under the age of sixteen.” The juvenile argued that the special condition was not reasonably related to his offense because his offense did not occur at a school. The Court disagreed. “The juvenile’s history of sending sexually explicit letters to girls at school means that he poses a threat to children at school.” The Fifth Circuit affirmed the lower court’s special condition.

Condition Four: Computer and Internet Use

Under the fourth special condition, the juvenile was (1) not to possess a computer with internet access without the prior approval of the Probation Officer; (2) to submit to searches under the direction of the Probation Officer that could include software scans of his technological devices; (3) to consent to a key logger on his personal devices and to consent to a search of each internet query; (4) to inventory and to provide receipts for all devices and bills pertaining to the internet and technology.

The juvenile argued that the restrictions on his computer and internet use were not reasonably related to his offense, and that the special condition would prevent him from job searching, completing homework, and emailing his therapists. The juvenile argued that even though he could access the internet, to do so would place a heavy burden on him to request permission each time he accessed the internet, or to report any misstep such as an errant search or a “pop up” on the internet.

The Fifth Circuit points out that the juvenile is mentally ill and needs some internet oversight. “We affirm the monitoring provisions because we recognize [they] ensur[e] that the juvenile complies with the restrictions against accessing sexually explicit materials.”

However, the Fifth Circuit agreed with the juvenile on some of the internet and computer usage restrictions. “We must recognize that access to computers and the Internet is essential to functioning in today’s society.” The Fifth Circuit ordered the district court to construe the special condition so that the juvenile does not have to request permission from a Probation Officer each time he accesses the internet, removing what the Court deemed “a heavy burden” on the juvenile. Next, the Court modified the special condition that required the juvenile to provide receipts and payment records to the Probation Officer, “because the purpose is to verify that there have been no payments to an internet service provider, and payment for proper use should be made by the juvenile…there is no other basis to justify the restriction imposed by the [special condition].”

In sum, while the Fifth Circuit mostly affirmed the district court’s holding, it made some significant modifications where technology is concerned. Speaking to the hope of future rehabilitation, the Court added, “the juvenile may seek modification to any of the conditions, and the district court may lessen the burden of the [special conditions] if [his] behavior improves over time.”

Sex Offender Passport Law

New Law Requires Certain Sex Offenders to Have Identifying Mark on Their Passports

By | Sex Crimes

Sex Offender Passport LawOn February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan’s Law?

The new law provides two categories of “covered” sexual offenders that will have to have this mark on their passport:

  1. Sex offenders convicted of a sex offense against a minor; and
  2. Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

  • Determine if individuals traveling abroad are listed on the National Sex Offender Registry
  • Review lists of individuals who have provided advanced notice of international travel, and
  • Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.


Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers.  Interested parties should be diligent to stay informed as the implementation of this law is rolled out.

Fort Worth Failure to Register as Sex Offender Defense Lawyer

Failure to Register is Not a Separate and Distinct Sex Offense

By | Criminal Defense, Sex Crimes

Is Failure to Register as a Sex Offender a Sex Offense Itself?

Fort Worth Failure to Register as Sex Offender Defense LawyerAt his trial, Eric Putnam pleaded guilty for “failure to register as a sex offender,” a violation of 18 U.S.C. § 2250 that “carries a statutory range [of punishment] for supervised release of five years to life.” 18 U.S.C. § 3583(k). A Pre-Sentence Investigation Report (“PSR”), calculated Putnam’s punishment for supervised release at 15 years, treating his conviction of Failure to Register as an additional sex offense under section 5D1.2(b)(2). PSRs are reports used by federal courts to assist the court in measuring a defendant’s punishment under the US Sentencing Guidelines Manual. Courts have discretion in determining type and length of punishment, sometimes deviating from the recommendation of the PSR. For Putnam, the district court adopted the PSR, sentencing him to ten months imprisonment followed by a supervised release term of 15 years.

See the Fifth Circuit’s opinion in United States v. Putnam

Putnam appealed the 15-year term of supervised release, contending the district court erroneously treated his conviction for Failure to Register on the sex offender registry as a separate sex offense in and of itself. Because Putnam failed to object to the length of the sentence at the time of trial, essentially waiving his right to appeal the sentence on the merits, he must show (1) that a “plain error” was made at the sentencing phase of his trial, and, (2) that the “plain error” affected his substantial rights. United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). The “Plain Error Doctrine” refers to Federal Rule of Criminal Procedure 52(b) that permits federal courts of appeals to consider “plain errors” even though they were not brought to the district court’s attention at the time of trial.

Here, the government “concedes that a plain error [did] occur with respect to the Guidelines calculation for the length of…the supervised release term.” In earlier case law, the Fifth Circuit has held, “that failure to register under the Sex Offender Registration and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2) of the Guidelines.” United States v. Segura, 747 F.3d, 323,329-31 (5th Cir. 2014). The Court agrees with the government and with Putnam—that a plain error did in fact occur at trial, and that the recommended sentence on the PSR should have included a supervised release from one to five years, instead of the range of five years to life.

Next, the Court explained, “Putnam has met his burden of showing that the [plain] error affected his substantial rights…[because] but for the district court’s misapplication of the [Sentencing] Guidelines, Putnam would have received a lesser sentence.” United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam). A defendant meets the burden of showing that plain error affected his substantial rights when:

  1. the district court mistakenly calculates the wrong Guidelines range;
  2. the incorrect range is significantly higher than the true range; and
  3. the defendant is sentenced incorrectly. Id.

Here, Putnam fulfills all three requirements—the district court miscalculated his range of punishment; the range was significantly higher (three times the correct amount); and Putnam was sentenced incorrectly. Although the courts may use discretion in sentencing—sometimes giving a longer sentence to a habitual offender, or someone with a long criminal history—Putnam had only one prior, lesser conviction. The district court did not have a compelling reason to go above the correct sentencing guidelines.

Lastly, the Court determined whether the plain error affected the “fairness, integrity, and reputation of the judicial proceeding.” Courts “often exercise…discretion to correct error when it result[s] in a custodial sentence in excess of the correct Guidelines recommendation.” United States v. Hernandez, 690 F.3d 623, 621-22 (5th Cir. 2012). Here, “miscalculation of a supervised release” is [un]common…but [nevertheless] is a substantial restraint on liberty.” United States v. Segura, 61 F.App’x 119, at *1 (5th Cir. 2003).

In sum, the Court concluded that there was, indeed, an error in Putnam’s case that resulted in a sentence ten years above the correct Guidelines range, “satisfying all the plain error inquiries.” The Court vacated the sentence and remanded to the district court for proper sentencing.

Sexting Message Texas

“Attempted Sexting” Lands 24 Year-Old on Sex Offender Registry

By | Sex Crimes

Attempted Transfer of Explicit Video of Self to a Minor (Sexting) Amounts to a ‘Sexual Act’ Resulting in Registration on the Sex Offender Registry

Sexting Message TexasUnited States v. Schofield – (5th Circuit Court of Appeals, 2015)

Should a person be ordered to register as a sex offender for sending explicit video to a minor (sexting), but never physically touching the victim? The Fifth Circuit Court of Appeals says yes.

In November 2013, twenty-four year old Nick Schofield began sending text messages to a fifteen-year-old girl. They sent text messages for four months, when an undercover federal agent assumed the girl’s side of the conversation. Believing he was still communicating with the girl, Schofield sent the undercover agent sexually explicit photos and videos of himself. A grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, violations of 18 U.S.C. § 1470. In his plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the other counts were dismissed at sentencing.

The district court sentenced Schofield to two years imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to establish a national sex offender registry, “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Under SORNA, a convicted sex offender must register his current address and employer’s address.

At trial, Schofield objected to the registration requirement of his sentencing. Schofield appealed to the Fifth Circuit Court of Appeals, contending (1) that the crime of attempted transfer of obscene material to a minor was not a sex act under SORNA and (2) that the statutory definition of a sex offense as a “criminal offense against a minor” was an unconstitutionally vague, all-encompassing residual clause.

First, the Court stated the purpose of SORNA is to “cast a wide net to ensnare as many child offenders as possible.” United States v Dodge, 597 F.3d 1347. The wide net was meant to apply to as many offenses against children that make sense according to the plain language and plain meaning of the statute. The Court also quoted an Eleventh Circuit case dealing with similar facts and charges. The Eleventh Circuit held that the 18 U.S.C. § 1470 intended “[not] to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.” Id. In short, the Fifth Circuit Court of Appeals held that the crime of attempted transfer of obscene material to a minor, was in fact, a sex act under SORNA’s plain language, structure, legislative history, and purpose.

Second, the Court found that Schofield’s conduct in sending the explicit video to a fifteen-year-old girl falls within the SORNA residual clause, noting, “the key is conduct that contains a sexual component toward a minor.” Because Schofield’s conduct “engaged with” a young girl in a sexual manner, the Court held that his conduct includes a sexual component toward a minor, falling under SORNA’s residual clause. The Court reiterated, “Judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id.

The Fifth Circuit Court of Appeals held that the language of SORNA’s residual clause was intentionally vague, with the purpose of including as many criminal offenses as possible. Even though the Defendant did not have physical contact with the girl, he was deemed by the Court to have behaved in a sexual manner, which amounted to a sexual act requiring registry on the sex offender registry. If you or a loved one is facing a sexual or computer crimes charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249.

Child Sexual Assault Grooming Texas

CCA Recognizes “Grooming” as a Legitimate Subject of Expert Testimony

By | Sex Crimes

Child Sexual Assault Grooming TexasToday, in Morris v. State, a 6-3 opinion authored by Presiding Judge Keller, the Texas Court of Criminal Appeals held (by taking judicial notice) that “‘grooming’ of children for sexual molestation is a legitimate subject of expert testimony.”  The opinion, which reads like a law review article at times, goes into great detail about the state and federal courts that have long recognized “grooming” as an appropriate (and helpful) area for expert testimony. (If you don’t know what “grooming” is, HERE is the Wikipedia definition.)

Judge Price’s Dissent is highly critical:

After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all.

Believing the trial record too bare for the Court to take judicial notice of the reliability of grooming-based testimony, Judge Price dissents.  Judges Meyers and Womack joined the dissent.

Judge Meyers also dissented, stating:

Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think [the expert in this case] was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior.

Judges Womack and Price joined the dissent.

Judge Cochran concurred in the judgment and would hold that grooming is an experiential field rather than a “soft science”:

This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.” It is just “horse sense” expertise developed over many years of personal experience and observation.

While they all seem to agree that “grooming” is an appropriate area for expert testimony, the lingering question (at least for me) is – What does it take to qualify someone to be an expert witness on child grooming?  A question for a later day I suppose.

Sex Offender Parole Conditions Lifted at Habeas Proceeding

By | Parole, Sex Crimes

Court Holds that Sex Offender Conditions Cannot be Added as a Condition of Parole for Cases That Do Not Involve a Sex Offense

Ex Parte Evans – The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. Also, the officers found two pornographic DVD’s – all of which were unlawful for Appellant to possess while a registered sex offender.

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;

(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;

(4) the right to confront and cross-examine witnesses, unless good cause is shown;

(5) an impartial decision maker;

(6) a written statement by the fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws