United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
Sarah A. Churchill and Nichols & Webb, P.A., on brief for appellant. Renée M. Bunker, Assistant United States Attorney, and Thomas E. Delahanty II, United States Attorney, on brief for appellee.
April 13, 2016
TORRUELLA, Circuit Judge. This case concerns whether
the district court abused its discretion when it imposed sex
offender treatment on Nicholas Webster ("Webster") as a condition
of supervised release. Webster was convicted of attempted gross
sexual assault and solicitation of a child by computer in Maine
state court in 2007. He was subsequently convicted for failing
to register as a sex offender in Maine and New Hampshire state
In 2012, Webster pleaded guilty to charges in the United
States District Court for the District of New Hampshire stemming
from his failure to register as a sex offender, as required by the
Sex Offender Registration and Notification Act ("SORNA"), 18
U.S.C. § 2250(a), after moving from Maine to New Hampshire.
In 2014, Webster pleaded guilty in the United States
District Court for the District of Maine to violating the
conditions of supervised release that were imposed on him due to
his SORNA violation. Namely, Webster pleaded guilty to: (1)
failing to stop for a police officer; (2) driving to endanger; (3)
criminal mischief; (4) operating under the influence of alcohol;
(5) driving without a license; and (6) consumption of an unknown
quantity of alcoholic beverages. The district court sentenced him
to eleven months of incarceration and a supervised release term of
120 months, subject to a number of conditions. These included
that Webster participate in sex offender treatment and undergo
random periodic polygraph exams if required by the therapeutic
program. He appeals the sex offender and polygraph conditions
In 2007, Webster was convicted of attempted gross sexual
assault and solicitation of a child by computer in Cumberland
County Superior Court in Maine. Specifically, he was found guilty
of arranging a meeting with a thirteen-year-old female in order to
engage in sexual acts.1 During the course of the conversation
between Webster and the individual posing as an underage female,
Webster provided sexually explicit descriptions of his own
anatomy, and informed the minor that he could "teach her how to
please a man." Police arrested Webster as he drove to meet the
underage female at a prearranged meeting place.
Webster was sentenced to a term of five years
imprisonment, with all but fifteen months suspended, to be followed
by a probation term of three years. Webster was also required to
register as a sex offender.
1 The record reveals that Webster was in fact communicating with an individual working for Perverted Justice, an organization devoted to catching sex offenders online, who was posing as a thirteen-year-old child.
After completing his incarceration, Webster's probation
was revoked on two separate occasions in Maine state court. 2
Webster's second probation revocation was due in part to his
failure to register as a sex offender with the Maine Sex Offender
Registry. Additionally, Webster was convicted of failing to
register as a sex offender in the state of New Hampshire. In
addition to his state convictions for failing to register as a sex
offender, Webster has a 1998 state conviction for Reckless Conduct,
which involved domestic violence, various motor vehicle offenses,
and multiple counts of Burglary and Theft by Unauthorized Taking.
On December 12, 2012, a federal grand jury returned a
one-count indictment against Webster, charging him with traveling
in interstate commerce while knowingly failing to register as a
sex offender in the state of New Hampshire, in violation of 18
U.S.C. § 2250(a). On June 25, 2013, Webster pleaded guilty to one
count of failure to register as a sex offender, and was sentenced
2 Three parole revocation petitions were filed in Maine state court. However, his second and third revocation petitions were adjudicated together. Webster's second revocation petition alleged that he failed to notify the Maine Sex Offender Registry of a change of address, which led to him being charged with a new offense. The second revocation petition also alleged that Webster changed his address without permission, failed to report as directed, and failed to undergo sex offender treatment. His third revocation petition alleged that Webster committed theft, failed to identify himself as a probationer to law enforcement, provided a false name to a police officer, and failed to refrain from the use or possession of marijuana.
to 18 months imprisonment and 15 years of supervised release. The
district court recommended that he participate in sex offender
treatment during his incarceration, but did not mandate sex
offender treatment as a supervised release condition.
On March 7, 2014, Webster was released from custody and
began serving his term of supervised release. On April 2, 2014,
the District of Maine assumed supervision of Webster's terms of
On April 5, 2014, a Maine State Police trooper pulled
Webster over for travelling at seventy-four miles per hour in a
fifty-five mile per hour zone. The trooper stepped out of his
cruiser and, as he approached the rear side door of the vehicle,
Webster drove away. Following a brief chase, the trooper found
the vehicle with two female passengers inside, who informed the
officer that the driver had absconded on foot. Another officer
subsequently apprehended Webster who "smelled of alcohol" and had
"glassy and bloodshot" eyes. Although one of the passengers
attested to Webster's alcohol consumption, Webster did not consent
to a breathalyzer test.
Thereafter, on April 7, 2014, the United States
Probation Office filed a Petition for Warrant or Summons for
3 Previously, the United States District Court for the District of New Hampshire had jurisdiction over Webster's supervision.
Offender Under Supervision alleging six parole violations.
Specifically, the petition adduced that Webster violated the
following conditions of supervision: (1) eluding an officer;4 (2)
driving to endanger; (3) criminal mischief; (4) operating a vehicle
under the influence of alcohol; (5) driving without a license; and
(6) consuming an unknown quantity of alcoholic beverages.
The district court conducted a revocation hearing on
December 19, 2014. At the start of the hearing, Webster admitted
that he committed all six violations. Probation Officer Kristin
Cook 5 testified that sex offender treatment is generally not
imposed as a release condition in the District of New Hampshire.
However, "[e]very case that has a prior sex offense or is convicted
of failure to register" in the District of Maine is ordered to
undergo sex offender treatment as a condition of release. The
treatment includes a psychosexual assessment, as well as a
polygraph exam. Ms. Cook added that, without the polygraph,
probation officers would be forced to take sex offenders on their
4 The charge for eluding an officer was later re-filed as failure to stop for a police officer. 5 The transcript of the proceedings incorrectly refers to the Probation officer as "Crystal Cook," however, her name is Kristin Cook.
Webster retained Dr. Peter Donnelly ("Dr. Donnelly"),6
a psychologist, to perform competency and criminal responsibility
evaluations, as well as a psychosexual risk assessment.
Dr. Donnelly diagnosed Webster with schizoaffective disorder, a
serious mental illness. Further, Dr. Donnelly testified that
Webster's responses to his questions failed to correlate to those
of "known child molesters or known rapists." In Dr. Donnelly's
view, Webster's sexual deviance was subsequent to Webster's
primary issues of mental health and substance abuse. However,
Dr. Donnelly noted that Webster can "fall into criminal problems"
including sexual offenses when he is engaging in substance abuse
or not properly managing his mental illness. Dr. Donnelly's
written report did not address whether sex offender treatment would
be beneficial. Nonetheless, Dr. Donnelly conceded that Webster
could benefit from sex offender treatment in his testimony.
6 We note that Dr. Donnelly also evaluated Webster in 2007 in relation to the sex offense charges brought against him in Maine state court. In his 2007 report, Dr. Donnelly noted that Webster acknowledged committing a sex offense and that Webster endorsed the position that his sex offense "happened because [he] knew the person already had sexual experience and they wanted it" and that his "sexual offense happened because of stress in [his] life." Webster also admitted to "some sex play between [himself] and the person who accused [him] but the truth is the person invited it and wanted it." As part of his recommendations, Dr. Donnelly noted that therapeutic efforts will need to be tailored to ensure that Webster achieves greater self-awareness "of how he could have made himself vulnerable to committing a sex-related crime."
Although Dr. Donnelly initially questioned the effectiveness of
polygraph exams, he ultimately acknowledged their helpfulness.
During his allocution, Webster sought to explain his
previous transgressions. He told the court that he was undergoing
a "dark period" in December of 2006 due to his divorce and engaging
in alcohol abuse. He admitted to inappropriate sexual behavior
in his past, but claimed that it did not involve minors. According
to Webster, the person he spoke with online in 2007 did not have
an age profile and he did not "remember all of the circumstances"
regarding what transpired. Webster also denied that he was
driving to meet the purported minor with whom he was chatting
online. Instead, he was driving to meet adults whom he also had
Webster also sought to explain why he failed to register
with the Maine sexual offender registry. In his view, he did not
blatantly refuse to register or attend treatment, but did so as a
result of his circumstances. He told the court that he was living
with his father at the time and the police told him to leave after
his father assaulted him. Instead of going home, Webster "ended
up [. . .] with friends that were not right."
Webster also told the court that he did not maliciously
break the law during his most recent supervised release violation
because he thought he had a valid driver's license. Finally,
Webster expressed that he felt that sex offender treatment was
"counterproductive," because in his view his principal issues are
substance abuse and depression.
After listening to witness testimony and Webster's
allocution, the district court sentenced Webster to eleven months
imprisonment and a 120-month period of supervised release. In
addition, the district court ordered Webster to undergo sex
offender treatment and periodic polygraph examinations, if
required by the therapeutic program, as conditions of his
The district court ably explained that sex offender
treatment and polygraph examinations were necessary in light of:
(1) Webster's self-medication and mental health issues; (2) the
court's understanding that Webster had not been forthright; (3)
Webster's statement to Dr. Donnelly that he thought he was chatting
with a sixteen- or seventeen-year-old girl and "was doing a quick
two-step with regard to when he was arrested and how he was
arrested;"(4) the fact that Webster's sex offense conviction is at
odds with Webster's statement to Dr. Donnelly that he never had
sexual interest in a child or engaged in deviant sexual behavior;
(5) Dr. Donnelly's statement that sex offender treatment could be
beneficial; (6) sex offender treatment had been previously ordered
by the Maine state court; and (7) the court's concern that
Webster's refusal to register as a sex offender could indicate
that Webster sought to deny or rationalize his past sexual
While the court noted that the scientific community is
divided on the usefulness of polygraphs, the court found that its
use is appropriate where a sex offender lacks candor. Given
Webster's less than forthcoming allocution, the district court
reasoned that the polygraph component was necessary.
We review challenges to conditions of supervised release
for abuse of discretion. United States v. Morales-Cruz, 712 F.3d
71 , 72 (1st Cir. 2013).
"There are two basic kinds of supervised release
conditions. The first kind are mandatory conditions. By
operation of statute, mandatory conditions are automatically
imposed in every case in which a defendant receives supervised
release as part of his sentence." United States v. Medina, 779
F.3d 55 , 60 (1st Cir. 2015) (citing 18 U.S.C. § 3583(d)). The
second kind are those special conditions imposed at the discretion
of the court. Id.
District courts enjoy "significant discretion to impose
special conditions of supervised release." Id. However, district
courts may impose a special condition only if the court determines
that the condition:
(1) is reasonably related to the factors set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. §] 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(a).
18 U.S.C. § 3583(d).
Section 3553(a)(1) requires that the district court take
account of "the nature and circumstances of the offense and the
history and characteristics of the defendant." District courts
must also take account of the need "to afford adequate deterrence
to criminal conduct," id. § 3553(a)(2)(B), "to protect the public
from further crimes of the defendant," id. § 3553(a)(2)(C), and
"to provide the defendant with needed educational or vocational
treatment, medical care, or other correctional treatment in the
most effective manner," id. § 3553(a)(2)(D); see also Medina, 779
F.3d at 60. Thus, district courts may impose a special condition
only if the condition will further at least one of the goals of
supervisory release, which include: (1) the need to protect the
community; (2) deterrence; and (3) the effective educational,
vocational, medical, or other correctional treatment of the
defendant. United States v. York, 357 F.3d 14 , 20 (1st Cir. 2004)
(citing U.S.S.G. § 5D1.3(b)(1)); see also Medina, 779 F.3d at 60-
"The critical test is whether the condition is
reasonably related to one or more of the goals of supervised
release." Morales-Cruz, 712 F.3d at 74 (citing York, 357 F.3d at
20). Importantly, sex offender treatment may be imposed in a case
in which the underlying crime is not a sex offense. York, 357
F.3d at 19-20.
Webster contends that the district court abused its
discretion by requiring that he participate in sex offender
counseling and submit to polygraph testing as part of his
supervised release.7 More specifically, Webster argues that the
court imposed sex offender treatment on him as a matter of policy
even though this condition is not reasonably related to the conduct
that triggered his violation of supervised release. Secondly,
Webster emphasizes that because his conviction for sexually
7 Arguably, Webster waived his challenge to the polygraph testing condition by failing to develop his argument in his brief. To the extent that he is alleging that the polygraph condition is unreasonable, we discuss his objections to the polygraph testing condition in tandem with his objections to the imposed sex offender treatment. Nonetheless, we note that the district court tailored the polygraph condition to ensure the protection of Webster's Fifth Amendment rights, as well as any concern that violation proceedings may arise solely from Webster's failure to pass a polygraph exam. See York, 357 F.3d at 23-25.
deviant behavior took place in 2007, it is too remote in time to
support the imposition of sex offender treatment or polygraph
testing.8 Thus, Webster contends that the imposed conditions are
not tailored to his particular history and characteristics.
In Morales-Cruz, the defendant violated the conditions
of his supervised release by failing to register as a sex offender
as required by SORNA. The district court sentenced the defendant
to 48 months of imprisonment and a ten-year term of supervised
release, which included participation in sex offender treatment
and/or mental health treatment programs. The majority upheld the
imposition of sex offender treatment as a condition of supervised
release even though the underlying sex offense was sixteen years
old. According to the majority, the defendant's multiple
convictions for failure to register as a sex offender in three
different jurisdictions warranted the imposition of sex offender
treatment because it permitted a reasonable inference that the
defendant "presented a recidivism risk and warranted deterrent
8 Webster cites the dissenting opinion in Morales-Cruz to support his argument that when the sexually offending behavior is temporally removed from the events that trigger the sentencing, a strong nexus between the need for sex offender treatment and the defendant's circumstances must be shown. 712 F.3d at 77 (Torruella, J., dissenting) (citing United States v. Dougan, 684 F.3d 1030 , 1036 (10th Cir. 2012)). Even under the dissent's reasoning, however, Webster's argument fails because the district court provided a sufficient nexus between Webster's characteristics and the need for sex offender treatment.
punishment." Id. at 75. The majority also noted that the
defendant had a recent conviction for battery on the woman with
whom he lived.9 Id. at 72.
Unlike the defendant in Morales-Cruz, Webster did not
violate his supervised release conditions because of a failure to
9 As part of its analysis, the majority distinguished the defendant in Morales-Cruz from cases in our sister circuits in which supervised release conditions were reversed because the conditions were premised on behavior that was too remote to justify sex offender or mental health conditions. See United States v. Sharp, 469 F. App'x 523 (9th Cir. 2012)(sex offender conditions reversed where the sex offense was more than a decade old, the defendant was convicted of being a felon in possession of a firearm, no suggestion of prior sex offender registration convictions, and the district court failed to provide justification for the sex offender condition); United States v. Carter, 463 F.3d 526 (6th Cir. 2006)(sex offender conditions reversed where the defendant was convicted of being a felon in possession of a firearm, the defendant's prior sex offense was 17 years old); United States v. Scott, 270 F.3d 632 (8th Cir. 2001) (sex offender conditions reversed where the defendant was convicted of armed robbery and the sex offense was 15 years removed); United States v. Kent, 209 F.3d 1073 (8th Cir. 2000) (reversing mental health conditions because they were unrelated to the mail fraud conviction and there was no evidence in the record to suggest that mental health counseling would further the goals of deterrence or public protection); Dougan, 684 F.3d 1030 (reversing imposed sex offender conditions because previous convictions for sexual battery took place 17 years prior); United States v. Rogers, 468 F. App'x 359 (4th Cir. 2012) (per curiam) (reversing sex offender conditions because the sex offense was over twenty years old and there was no suggestion that the defendant had chronically failed to comply with sex offender registration requirements).
The majority emphasized that these cases were distinguishable because they did not involve a defendant with a recent conviction for domestic violence. Moreover, in four of the cases the challenged conditions "bore no relationship to the offense of conviction and the defendant's recent criminal history provided no
register under SORNA. Nor was Webster's supervised release
violation a sexual offense. Nonetheless, we find that the
district court sufficiently articulated the need for sex offender
treatment and polygraph testing in this case. As mentioned
earlier, the district court provided a detailed accounting as to
why the imposed conditions were appropriate.
In light of Dr. Donnelly's testimony and Webster's
allocution, we find that the record supports that the sex offender
treatment and polygraph conditions are in fact tailored to the
nature and circumstances of Webster's sex offense and Webster's
particular characteristics. Webster's refusal to accept
responsibility for his sex offense, lack of candor towards the
court, and continued self-medication pose a real risk of
recidivism. See United States v. Roy, 438 F.3d 140 , 143 (1st Cir.
2006) (describing statement by a treatment counselor that with sex
offenders, dishonesty is commonly a risk factor for recidivism).
We have previously highlighted that sex offender treatment has
been linked to reduced recidivism. See United States v. Mercado,
777 F.3d 532 , 537 (1st Cir. 2015) (citing Morales–Cruz, 712 F.3d
at 75; York, 357 F.3d at 21). Further, Dr. Donnelly's testimony
linked Webster's mental illness and substance abuse to his sexual
basis for the conditions." Morales-Cruz, 712 F.3d at 75.
deviance. Thus, we conclude that the imposed conditions are
reasonably related to Webster's offense and his characteristics.
We also find that the imposed conditions are sufficiently related
to the supervised release goals of rehabilitation and the need to
protect the community.
Webster's argument that his 2007 sex offense is too
remote to be reasonably related to the imposition of sex offender
treatment also fails. In Morales-Cruz, the majority affirmed the
imposition of sex offender treatment when the underlying sex
offense was sixteen years old. 712 F.3d at 72. We are well aware
that "our sister circuits continue to take a dim view of equivalent
sentencing conditions based on temporally remote sex offense
convictions where there has been no subsequent similar conduct."
United States v. Del Valle-Cruz, 785 F.3d 48 , 59 (1st Cir. 2015).
The imposition of sex offender conditions is troubling when the
underlying sex offense conviction is temporally remote. However,
in this case, we find that the district court properly articulated
the need for sex offender treatment in light of Webster's personal
characteristics. As has been repeatedly mentioned throughout this
opinion, the court found that Webster's lack of candor, denials of
responsibility, continued self-medication, and the testimony from
his own retained therapist necessitated the imposed conditions.
Thus, even though Webster's underlying sex offense conviction
dates back to 2007, his history and characteristics support the
district court's imposed conditions. Further, the record amply
supports that Webster will likely benefit from sex offender
treatment as part of his rehabilitation. Similarly, Webster's
allocution indicates that his refusal to accept responsibility for
his conduct and his continuing self-medication present a danger to
Because we find that the sex offender treatment and
polygraph testing conditions were warranted by Webster's
individual characteristics and that such conditions were also
necessary to achieve the goals of supervised release, we conclude
that affirmance is appropriate in this case.
Accordingly, we affirm the district court's imposition
of sex offender treatment and polygraph examination.