Petition of the Month, June 2014: McClamma v. Remon

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.

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. 

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. 

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.

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. 

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. 

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.

I cannot describe the level of intimidation one feels when giving consideration to filing a Supreme Court petition.  The rules and formatting procedures are innumerable.  When I contacted The Supreme Court Press, I spoke with a friendly representative named Geary who thoroughly reviewed the services that would be provided.  I was extremely relieved not only by the affordability, but by the level of professionalism and guarantee that ensured compliance with all the filing rules. 

I was impressed with how receptive Geary was to my case, formulating arguments and providing suggestions as if he were my defense attorney.  And while it is understood that The Supreme Court Press does not provide legal counsel, their knowledge, experience, and quality time spent with me on this case clearly created the added credibility necessary to distinguish my petition in the competitive and elite world of a Supreme Court grant.