Florida Registrant Challenges Restriction on Access to His Own Child

Posted  on June 26, 2014 in Articles, Featured Articles 

http://floridaactioncommittee.org/florida-registrant-challenges-restriction-on-access-to-his-own-child/

The Supreme Court Press “Petition of the Month”_TM for June 2014 is Kyle E. McClamma v. Josepha Michele Remon, Supreme Court Dkt. No. TBD, an appeal coming out of the Eleventh Circuit. The petition was filed pro se by the petitioner Kyle E. McClamma, a resident of the Tampa, Florida Region.
Question Presented:

Whether a probation officer has the power to forbid a person from living in his own home, despite there being no residency restriction in the sentencing order. (paraphrasing three questions)

Supervised release conditions are often contained on a “check the box” form where a judge can tick off the conditions applicable to an offense. In a case of possession of child pornography, one check the box item is a restriction on contact with minors or frequenting a place where minors congregate. However, when such a check box item becomes artfully interpreted by a zealous probation officer, it can lead to absurd consequences as it did for petitioner Kyle McClamma. McClamma, a first time offender convicted of a single count of possession of child pornography, was deemed by the sentencing judge to be a low risk to the community and given a downward departure in sentencing. When he returned home from incarceration, his creative probation officer informed him that, since he had a newborn child at home, could not be at that home since it contained a minor (his child). She demanded he evict himself from his home and not see his baby without a supervising adult present. Nowhere in the sentencing order was mention made of a ban on contact with his baby or that he could not live in his own house. Predictable mayhem ensued – lack of stable housing, financial woes, and divorce – hardly the stated goals of supervised release. McClamma filed a 2255 petition to challenge these conditions, which stand in conflict to the majority of circuits that have found a ban on familial contact to be an unconstitutional infringement upon the home. This petition has stagnated for 2.5 years without action by the court. McClamma also filed a Bivens action, the subject of this petition, claiming damages for his forced homelessnes and other damages. The lower court stood by the probation officer and granted her conditional immunity. The petition McClamma v. Remon, Supreme Court Dkt. TBD, takes on this issue, asking the fundamental question – who is in charge of sentencing – judges or probation officers?

My wife and I were stunned at the probation officer’s enforcement of a boilerplate condition that prohibited contact with anyone under 18 without written approval to include our daughter.  [w]hile awaiting sentencing, the district court made it clear, at the government’s request, that my child would be excluded from any contact restrictions it enforced.                                                                                                                                         - Kyle McClamma

	Kyle –Thank you for sitting down with us and discussing your Supreme Court filing.Let’s get the tough part of the conversation out of the way first. You were convicted in federal court of a single count of possession of child pornography – but that’s it. Essentially the lowest grade offense in this category and you received a downward departure from the judge, who deemed you to be a low risk, correct?
	I was sentenced to 36 months in federal prison, a downward departure of 17 months, followed by a life term of supervised release.  The district judge commented that he had never sentenced anyone lower for this charge.  In his words, the decision for the downward departure was because I had no previous criminal record, had never produced or distributed the prohibited images, and enjoyed community and family support.  Additionally, evaluations and risk assessments were conducted by 4 mental health providers and sex addiction specialists which concluded that I displayed a long standing addictive behavior to pornography.  All determined that I was low risk to re-offend or to commit a contact offense. I make no excuses for the legal boundaries that I crossed or the damage I have caused through my participation as a possessor of illegal internet pornography.  I have never denied what I have done and I have fully cooperated with the authorities.
	As you were preparing for re-entry, a very unpleasant surprise was waiting for you. The probation officer unilaterally decided that you should have no unsupervised interaction with your own child. How did the probation officer justify this?
	My wife and I were stunned at the probation officer’s enforcement of a boilerplate condition that prohibited contact with anyone under 18 without written approval to include our daughter.  First, while awaiting sentencing, the district court made it clear, at the government’s request, that my child would be excluded from any contact restrictions it enforced.  Second, the probation officer conducting the pre-sentence report did not recommend any contact restrictions.  Lastly, the district judge at sentencing made no mention of contact restrictions with minors, especially one that would include my child. I actually had no idea that the judge included this restriction in his written order nearly 10 days after the sentencing.  I was whisked away to prison and did not see the order until my release 31 months later.  The probation officer offered no explanation as to why she chose to verbally enforce this condition the way she did; only permitting contact with my daughter provided that my wife was present.  Throughout the Bivens litigation process, the probation officer has maintained that she was interpreting and executing the district court’s directive which she asserts was left to her discretion.
	Are probation officers allowed to do that? To prevent you from spending time with your own flesh and blood without a court order?
	While the right to maintain an unfettered relationship with one’s child is not guaranteed, the vast majority of the circuit courts hold the lower court to an extremely high threshold of inquiry before subjecting the defendant to any condition requiring supervision with their own children.  It is clear and evident in my case that the district court did not provide notice that a contact restriction would even be imposed or conduct any kind of inquiry as to whether my daughter should be included in that restriction.   Even in cases where the defendant has committed a contact offense, unless their own child was involved, the majority of circuit courts have reversed the lower court’s inclusion of the defendant’s children in a boilerplate no-contact-with-minors restriction.
	Editor’s Note: See United States v. Myers, 426 F.3d 117 (2nd Cir. 2005), United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012), United States v. Doyle, No. 12-5516, decided April 3, 2013 (6th Cir.), United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009),   United States v. Voelker, 489 F.3d 139 (3rd Cir. 2007),  United States v. Smith, 606 F.3d 1270 (10th Cir. 2010), United States v. Malenya, No. 12-3069 decided on December 3, 2013 (D.C. Circuit).
	Interestingly, the circuit case most analogous to mine was decided one day before I was sentenced in 2006.  United States v. Davis, 452 F.3d 991 (8th Cir. 2006).  Davis was convicted of possessing child pornography without having any history of inappropriate conduct with a minor.  On plain error review, the Davis court concluded that his daughter be excluded from any condition restricting contact with minors as the condition was not reasonably related to his offense. “We believe that not to correct the error at hand would undermine the fairness and integrity of our judicial proceedings.”   “The public expects the courts to exercise that discretion, not to impose a special condition as a matter of course.” Id at 995.

The real shock of the probation officer’s enforcement of the boilerplate condition was that she prohibited me from residing in my own home with my wife and daughter.                                                                                                                                               - Kyle McClamma

	But there were more surprises in store, correct?
	The real shock of the probation officer’s enforcement of the boilerplate condition was that she prohibited me from residing in my own home with my wife and daughter.  I was forced to secure alternative housing arrangements which exhausted valuable funds that were already limited from my time in prison.  The frustration from not being able to fulfill my role as a father and husband took its toll on the marriage, and with no end in sight, my wife filed for divorce six months later.
	And thus you filed the Bivens claim?
	Initially, I had no idea or reason to believe that what the probation officer was doing was wrong.  I simply thought that this was a part of my sentence that I foolishly overlooked, or that it was some kind of protocol required by the court.  After all, I have no legal background, and when you are released from prison, the last thing you want to do is ruffle the feathers of your probation officer by challenging their authority. But as time passed and I became embroiled in a costly divorce and spoke with various attorneys, I realized that the probation officer had violated my constitutional due process rights to property (my home), and familial association (my wife and daughter) by verbally enforcing a residency restriction not imposed by the sentencing court. After a few failed attempts to interest law firms in taking my Bivens claim on a pro bono basis, I decided to file the claim pro se as the four year filing limit was rapidly approaching.  Through limited research capabilities due to my restrictions, I found case law involving qualified immunity defenses and discretionary actions performed by federal officers.  Put quite simply, case law, statutory law, and probationary policy does not authorize her verbal directive to enforce a condition not imposed by the court.  Therefore, her actions cannot be permitted as a discretionary function.  A finding to the contrary exposes the court to an improper delegation of judicial power in violation of Article III of the constitution.    However, the district court dismissed the Bivens claim by granting her qualified immunity on grounds that she was performing a job-related goal and that her actions were authorized.  The circuit court affirmed the district court’s order.
	It seems like they are doing everything in the power to make absolutely sure that you are completely unable to return to civil society. They don’t want to live in your house, be with your family, or communicate with the outside world. How have you survived so long after your release?
	While I had the support of my parents, church members, and surrounding neighbors, this counselor really helped me to remain focused throughout the divorce.  He also helped me navigate through the probation officer’s strict enforcement of my supervised release conditions. Finding employment was nothing short of a miracle.  I had worked in television broadcasting for 15 years, but was pretty much blacklisted after my conviction.  I took a correspondence course in medical coding when I was in prison, and 10 months after my release I passed the professional coding certification exam.  I had applied for numerous jobs, but with my criminal record, supervised release conditions, high unemployment, and an unsupportive probation officer, no one was interested.  I had even scored high enough on the 2010 census bureau exam to be considered for hire by an agency that touts itself as an equal opportunity employer, but my conviction promptly ended that effort.  Finally, in April 2010, I landed an interview with a medical billing company owned by two women.  The interview became really emotional as I laid out my criminal past and restrictions, but they hired me. Even then, there were obstacles that remained.  My probation officer had a negative and discouraging conversation with my employer in an attempt to persuade them to reconsider their offer because this position required the probation office to grant permission for me to use a computer with internet access.  Four years later, it still remains a sore topic with probation, but those ladies have provided me a safe sanctuary of stable employment to which I am very grateful. A year after my divorce, I began dating a woman in the church and two years later, we were married.  Last January, we discovered that we were expecting our first child.  My wife is an incredible woman who supports my legal efforts and believes in me.  She is a determined wife and soon-to-be mother who refuses to allow our family to be disrupted by the inappropriate and unnecessary actions of the court and its probation officers.
	You had mentioned your family’s advocacy on your behalf. Describe the organization they started and what it is trying to accomplish.
	Upon my arrest in 2005, my family began immediately to research the area of child pornography and related legal implications.  While we shared in the regret of my actions, we were also in response mode as best we could be!  The first eye opener was a book written by Pamela Paul title Pornified: How Pornography is Transforming Our Lives, Our relationships, and Our Families.  While my family was not necessarily prudish about pornography in general, the fact that it had led me to the point of being arrested for illegal viewing was shattering.  There were several  research articles found,  and eventually, even while I was awaiting sentencing, through research and study, they began seeking organizations that were involved in the sex offender ‘world’.  The first organization was the national Reform Sex Offender Laws (RSOL) http://nationalrsol.org/  and a state affiliate that has come to be known as the Florida Action Committee. http://floridaactioncommittee.org/ When the RSOL national conferences began in 2009, my mother attended in Boston, going alone not knowing what to expect. This is where she began to meet others who had a loved one caught up in the sex offender’ industry’.  She has attended each annual conference since that time, often facilitating and/or presenting at breakout sessions and serving on the organizing committees. She also became an affiliate member of the Association for the Treatment of Sexual Abusers (ATSA) http://www.atsa.com/  after coming across several articles written by members of the group.  (Incidentally she hates that organization’s title and sat in on a committee report at one of their national conferences where a name change was being discussed. To this date no change has been made but there is hope for a future change.) The organization’s membership includes top level national and international professional researchers, as well as treatment providers, some of whom fill dual roles as both researcher and treatment providers. The current  research reveals that there is little connection between possession of CP and hands on offending which is impetus for working to inform law makers to make some changes.  This is no way intended to minimize or disregard the seriousness of child pornography but given that public safety is given as the ultimate reason for sentences and subsequent probationary situations, this is significant and needs to become a considerate factor in the sentences and conditions required.   This year will be the 4th National ATSA conference my mom has attended! Through RSOL involvement, my mom became acquainted with several who had family members, typically sons or husbands, who were charged with what the US Sentencing Commission terms as simple possession, which indicates a low risk and non-production or distribution charge.  So it came as no surprise when we found an article in Feb. 2011 with the headline Prosecution of child Porn Soaring in which the FBI stated “No other crime is growing at the 2500 percent rate.” Out of a common need, the organization known as Cautionclick National Campaign for Reform (CCNCR) was formed.  My mom serves on the board as an advisory member.

When we reviewed the legal writing in the final draft of your petition, we were blown away. It was equal to the quality of a good appellate lawyer. But you didn’t start that way. Tell our readers about your journey from novice (dating back to your handwritten motion) to where you are today?

One month before my ex-wife filed for divorce, I struggled with the dilemma of taking legal action against my probation officer as I did not want to appear confrontational or uncooperative.  Additionally, my financial resources were very limited due to my incarceration and unemployment.  So, out of desperation, I carefully constructed a two-paged handwritten letter personally directed to my sentencing judge.   On a Sunday in October 2009, I drove 120 miles to the Ocala Federal Courthouse, said a quick prayer, and slid the letter through the locked lobby doors.  Four weeks later, I received a call from my defense attorney stating that my letter had been placed on the docket and construed as a motion for clarification of terms of supervised release.  Shortly thereafter, I became embroiled in divorce proceedings. Since my family law attorney had to carefully navigate my criminal charges and sentencing orders, I quickly received a crash course in the litigation process.  He recommended that I contact a federal appellate law firm in Orlando for help in filing a § 2255 motion claiming that the supervised release condition that restricts contact with my daughter is unconstitutional.  Incidentally, this motion has been pending for 2 ½ years. I carefully observed the strategies for formulating effective arguments by using facts and case law.  From there, I familiarized myself with the federal local rules of criminal and civil procedure, and began reading articles on qualified immunity defenses and the § 1983 remedy for civil violations of constitutional rights perpetrated by federal officers. Next, I formulated my arguments in anticipation of how the opposing side would defend their position, trying to leave open matters that I could refute in my reply brief.  Once I drafted this outline, I researched case law; first with the U.S. Supreme Court precedents, then with the 11th circuit rulings, and then persuasive opinions from other federal circuits to develop conflict.  It was also necessary to become familiar with pertinent statutory laws and policies which draw in the governing bodies of Congress and the Sentencing Commission as well. My goal was to be able to support every argument with case law no matter how insignificant.  It’s really satisfying when you can uncover a nugget that is both analogous to your circumstance and binding to the court.  I have found it helpful to closely study how the Supreme Court and circuit courts structure their case opinions (e.g., standard of review, analysis, conclusion, dissent), so that I can narrate my argument through their citations and statements.  I believe this adds tremendous credibility to a pro se filing while also mitigating the exposure to inexperience and mistakes. It is truly a process that takes time and practice, and while I have not reaped what one might call a victory, I have been able to address matters to the highest court in the land at a minimal cost and a satisfactory level of professionalism.   Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.