United States Court of Appeals For the First Circuit
No. 23-1819
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN MILLETTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Gelpí, Thompson, and Kayatta, Circuit Judges.
Edward S. MacColl, with whom Thompson, Bull, Bass & MacColl LLC, P.A. was on brief, for appellant.
Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
November 20, 2024 GELPÍ, Circuit Judge. Defendant-Appellant Kevin
Millette ("Millette") was subject to several special conditions of
supervised release. One special condition specifically prohibited
Millette from unsupervised contact with minors. The district court
found that Millette violated that condition. As a result, the
court revoked his supervised release and sentenced him to two
months' imprisonment followed by a five-year term of supervised
release with the same special condition reimposed. Millette now
appeals the revocation of his supervised release and the
reimposition of the special condition prohibiting him from having
unsupervised contact with minors. Upon review, we discern no error
and affirm.
I. BACKGROUND
A. Millette's Criminal History and Supervised Release
We begin by recounting the facts. In 2016, a one-count
information was filed against Millette, charging him with
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). According to the presentence report, Millette
possessed 24,277 still images and 1,022 videos of child
pornography. When law enforcement interviewed him, Millette
admitted, among other things, that viewing child pornography was
a "life-long" problem for him. Subsequently, Millette pleaded
guilty to the possession of child pornography, and the district
- 2 - court sentenced him to 120 months' imprisonment followed by a
seven-year term of supervised release.1
In December 2020, after Millette had served about
sixty-one months of his sentence, the district court granted
Millette's motion for compassionate release. To mitigate the risks
associated with Millette's release, the district court imposed
several special conditions. The special condition at issue,
Special Condition 9, prohibits unsupervised contact with minors.
It specifically states:
Defendant shall not associate, or have verbal, written, telephonic or electronic communication, with persons under the age of eighteen, except in the presence of a responsible adult who is aware of the nature of the defendant's background and current offense, and who has been approved by the probation officer. This restriction does not extend to incidental contact during ordinary daily activities in public places (emphasis added).
Millette's daughter was a minor at the time of his release.
In January 2021, a probation officer reviewed the
conditions of Millette's supervised release with Millette over the
phone. Millette confirmed to the officer that he understood those
conditions. About two months later, however, Millette's internet
activity revealed that he was searching for "tykable diapers" and
1 This was Millette's second offense related to child pornography. In 2010, Millette was convicted in Maine state court for possession of sexually explicit materials depicting a minor under the age of twelve.
- 3 - "ABDL," which stands for "Adult Baby Diaper Lovers." When a
probation officer confronted Millette about his internet usage in
April 2021, Millette admitted to the searches and was instructed
not to do it again.
Millette continued to exhibit troublesome behavior over
the following year. For example, in April 2021, his probation
officer again reprimanded Millette for his internet activity. And,
in May 2022, Millette disclosed to his supervising probation
officer that he had magazines that depicted both adults and minors
he found sexually attractive and that he had subscribed to the
magazine "Parenting" for "arousal purposes."
On August 12, 2023, Probation Officer Kate Phillips ("PO
Phillips") made an unannounced visit to Millette's residence.
Millette lived with his mother, an adult whom the Probation Office
approved to supervise Millette's contact with his
then-fifteen-year-old daughter. When PO Phillips entered the
house, she found Millette's teenage daughter on an inflatable
mattress in Millette's bedroom. Millette's mother was found in
the backyard near the pool -- about twenty to thirty feet from the
house -- wearing a wet bathing suit.
PO Phillips asked Millette where he had slept the
previous night, and he answered that he slept on the living room
couch while his daughter slept on a "cot" in his bedroom. But
when PO Phillips separately questioned Millette's mother, she
- 4 - answered that Millette slept in his room with his daughter.
Millette then admitted that his daughter and he slept in his
bedroom the night before, and on previous occasions. PO Phillips
subsequently moved the court to revoke Millette's supervised
release for violating Special Condition 9.
B. Revocation Hearing
The district court held the final revocation hearing on
September 25, 2023. At that hearing, PO Phillips testified that
Millette's mother had stated that Millette slept in the same room
as his daughter more than once. PO Phillips also stated that she
had instructed Millette that it was his responsibility to leave a
room whenever he was in it with a minor and no supervisor was
present.
Millette, through counsel, admitted that he and his
daughter slept on different beds in his bedroom without an approved
supervisor in the room, but challenged that his conduct violated
Special Condition 9. Millette's counsel argued that his conduct
was consistent with Special Condition 9 because Millette was within
his mother's presence. Arguing that the word "presence" made the
condition "inherently ambiguous," Millette's counsel stated that
the term is subject to different interpretations and that the
interpretation of that term in the defendant's favor would be that
an approved adult is present when within the same dwelling as
Millette, even if in a different room. The government argued that
- 5 - Special Condition 9 is clear enough to prohibit Millette from
sleeping in the same room with a minor without supervision.
The district court ultimately found that Millette's
conduct constituted a "clear violation" of Special Condition 9.
The district court explained that "any reasonable person would
see" that Millette's conduct constituted a violation in light of
his criminal background and the purpose behind conditions that
limit interactions with minors in this context -- namely, to
protect them from a "serious epidemic" of adults who circulate
images of sexually assaulted children. The district court noted
that Millette has contributed to such epidemic "now twice."
Indeed, the district court reasoned, Millette's initial response
to lie to PO Phillips when she first questioned him about the
sleeping arrangement with his daughter indicated that he "knew
full well" that he violated Special Condition 9. While the
district court acknowledged that Special Condition 9 may be
"ambiguous in its outer recesses," it deemed Millette's conduct
"so far beyond the line" not to be "really debatable," emphasizing
that "no contact with minors means no minors sleeping in your
room." Before sentencing, the district court noted that Millette
was "in denial" about his conduct and urged him to "behave
differently."
For said violation, the district court sentenced
Millette to two months' imprisonment followed by five years of
- 6 - supervised release. At the same time, it reimposed Special
Condition 9 (now, Special Condition 8).
Millette timely appealed. We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
Millette advances several related arguments on appeal.
First, he asserts that "in the presence of" is ambiguous and, if
the ambiguity is interpreted in his favor with the benefit of the
rule of lenity, then the district court erred in finding that he
violated Special Condition 9. Second, Millette argues that the
district court erred by reimposing, without sufficient
explanation, an ambiguous condition that restricts his ability to
parent his child. We address each argument in turn, applying the
appropriate standard of review.
A. Revocation of Supervised Release
Millette's challenge to Special Condition 9 centers on
the phrase "in the presence of." He argues that the phrase is
ambiguous. And so, he contends, the rule of lenity dictates that
we construe the ambiguity in his favor, such that Special Condition
9 is satisfied when an approved adult is anywhere within the same
house.
In a revocation proceeding, the government bears the
burden of proving by a preponderance of the evidence that the
defendant violated a condition of his release. United States v.
- 7 - Teixeira, 62 F.4th 10, 17 (1st Cir. 2023); 18 U.S.C. § 3583(e)(3).
While the Federal Rules of Evidence do not apply in revocation
proceedings, the government must present "reliable" evidence.
Teixeira, 62 F.4th at 17. If the court finds a violation, it must
then decide whether to modify or revoke the defendant's supervised
release. United States v. Colón-Maldonado, 953 F.3d 1, 3 (1st
Cir. 2020).
"We review the district court's ultimate decision to
revoke supervised release for abuse of discretion, and the
underlying finding of a violation of supervised release for clear
error." United States v. Dudley, 100 F.4th 74, 81 (1st Cir. 2024)
(quoting United States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016)).
Within the limits of the abuse of discretion standard, we review
de novo "embedded questions of law" while "embedded findings of
fact engender clear-error review." United States v. Del
Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015) (quoting United States
v. Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir. 2009)).
The clear error standard is "exceedingly deferential."
United States v. Matos, 328 F.3d 34, 39–40 (1st Cir. 2003)
(citation omitted). This court will find that a district court
abused its discretion "only when [we are] left with a definite
conviction that 'no reasonable person could agree with the judge's
decision.'" United States v. McCullock, 991 F.3d 313, 317 (1st
- 8 - Cir. 2021) (quoting United States v. Cruz-Ramos, 987 F.3d 27, 41
(1st Cir. 2021)).
A supervised release condition must be "sufficiently
clear and specific to serve as a guide for the defendant's
conduct." 18 U.S.C. § 3583(f). However, conditions of supervised
release need not be "precise to the point of pedantry" and must be
read "in a commonsense way." United States v. Gallo, 20 F.3d 7,
12 (1st Cir. 1994); see also United States v. Cruz, 49 F.4th 646,
653-54 (1st Cir. 2022) (holding that a condition of supervised
release was not "unconstitutionally vague" based on a commonsense
and contextual reading).
Millette did not and does not dispute his conduct. He
admits to having slept in the same room as his minor daughter on
multiple occasions without a supervisor in the room. His only
contention is that he did not violate Special Condition 9 because
his mother -- an approved "responsible adult" -- was at the home
while he and his daughter slept in the same room. The district
court disagreed with Millette, and in so doing, made clear its
view that "in the presence of" requires more than the "responsible
adult" be in a different room while Millette had prolonged contact
with a minor in his bedroom.
We agree with the district court. A reasonable person
would not conclude that A is in B's presence if A is in the bedroom
and B is elsewhere in the house, out of sight and earshot, much
- 9 - less out swimming in a pool. "Presence" suggests a person's
"immediate vicinity." See Presence, Merriam-Webster (Nov. 18,
2024), https://www.merriam-webster.com/dictionary/presence
(emphasis added). And even if a less immediate scope were
suggested in some context, here the context -- an attempt to ensure
that Millette was supervised when with a minor -- belies any notion
that Millette could closet himself away with a minor overnight,
free from observation by any adult.
Millette's own conduct supported the district court's
interpretation of the condition as a sufficiently clear guide to
his behavior. Millette initially lied to PO Phillips, telling her
that he slept on a couch in the living room while his teenage
daughter slept on a "cot" inside his bedroom. He later admitted
that he slept in the same room with his daughter only after his
mother had indicated as much. The district court reasoned that
Millette's lie demonstrated that he "knew full well" that sleeping
alone in a room with his underaged daughter constituted a violation
of his supervised release. We agree that Millette's perceived
need to cover up his sleeping arrangement provided support for the
conclusion that he himself read the condition as likely barring
such conduct.
Millette argues that the district court committed an
error of law by refusing to apply the rule of lenity when
interpreting Special Condition 9. But even if we were to assume
- 10 - that lenity has a role to play that is not played by 18 U.S.C.
§ 3583(f) in construing conditions of supervised release, by its
own terms lenity only applies where there is a "grievous ambiguity"
that cannot otherwise be resolved. United States v. Dion, 37 F.4th
31, 39 (1st Cir. 2022). No such ambiguity exists here.
B. Reimposition of the Special Condition
Millette next argues that the district court erred by
reimposing Special Condition 9 (now, Special Condition 8) without
an adequate explanation. Millette insists that the reimposition
of that condition is particularly inappropriate in this case
because it restricts his constitutionally protected interest in
parenting his minor daughter. We disagree.
We review "preserved objections to the imposition of a
special condition of release for abuse of discretion and
unpreserved objections for plain error." United States v. Windle,
35 F.4th 62, 67 (1st Cir. 2022) (citing McCullock, 991 F.3d at
317). Here, we assume that Millette properly preserved his
challenge to the district court's decision to reimpose a condition
that limits his unsupervised contact with minors. See United
States v. Mulero-Algarín, 866 F.3d 8, 11 (1st Cir. 2017).
1. Abuse of Discretion Review
District courts have "significant flexibility" in
imposing conditions of supervised release. McCullock, 991 F.3d at
319 (quoting United States v. Marino, 833 F.3d 1, 10 (1st Cir.
- 11 - 2016)). That flexibility, however, is not without limits. New
(or reimposed) conditions of release must be "reasonably related"
to, among other things, "the nature and circumstances of the
offense and the history and characteristics of the defendant." 18
U.S.C. §§ 3583(d)(1), 3553(a)(1). Of note, too, is that conditions
must "involve[] no greater deprivation of liberty than is
reasonably necessary" to deter and rehabilitate the defendant and
"protect the public from [any] further crimes." See 18 U.S.C.
§§ 3583(d)(2), 3553(a)(2)(B)-(D). For that reason, we require
that the sentencing court "set forth a 'reasoned and case-specific
explanation' for the conditions it imposes." United States v.
DaSilva, 844 F.3d 8, 11 (1st Cir. 2016) (quoting United States v.
Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)).
A condition that limits Millette's unsupervised contact
with minors is indeed "reasonably related" to his specific offense
and his history and characteristics. Millette has admitted to law
enforcement that viewing child pornography has been a "life-long"
problem for him. And despite two convictions for
child-pornography-related offenses, his subsequent conduct -- his
internet activity in 2021, confessions to his supervising officer
in 2022, and inability or unwillingness to understand that it was
wrong to sleep in a bedroom with his 15-year-old daughter without
a supervisor -- suggests that this continues to be a problem for
him. In that way, Special Condition 9 (currently, Special
- 12 - Condition 8) is related to Millette's specific offense and history
and is also necessary to protect the public from further crimes.
In addition, the district court's explanation for
reimposing the special condition was adequate. The requirement
that the district court explain its reasoning for imposing (or
reimposing) a condition is satisfied "without a written or oral
explanation of the reasons supporting the condition if we can infer
the court's reasoning" from examining the record. See United
States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009); see also
United States v. Vega-Rivera, 866 F.3d 14, 21 (1st Cir. 2017).
Before rendering its sentence, the district court expressed
concerns that "there is serious epidemic" of people sexually
assaulting children and circulating those images and noted that
Millette has "fallen into it now twice." The court also concluded
that Millette was in "denial" about the seriousness of his recent
conduct. Against the backdrop of Millette's criminal history and
more recent conduct, we can infer from the record that Millette
poses an ongoing risk of danger to minors. Thus, we find that the
explanation here was sufficient considering the extensive
evidentiary record and Millette's criminal history and
characteristics.
Moreover, the special condition does not overly restrict
Millette's constitutional interest in parenting his daughter.
Conditions that "would impair a defendant's relationship with his
- 13 - child" require a "greater justification." United States v. Del
Valle-Cruz, 785 F.3d 48, 62 (1st Cir. 2015). Conditions that limit
a defendant's association with minors, including his children, are
proper when, among other things, "the defendant's conduct
otherwise indicates an enhanced risk to minors." United States v.
Pabon, 819 F.3d 26, 31 (1st Cir. 2016). Such conditions "are
sufficiently circumscribed when they do not place an outright ban
on association with minors, but only curtail association, such as
by requiring pre-approval by the probation officer." Id. at 31-32
(internal quotation marks and citations omitted). It is an added
"safeguard" that "defendant can petition the district court to
modify the condition in the event that approval has been
unreasonably withheld." Id. at 32.
In Millette's case, the condition does not impose an
"outright ban" on him from having any contact with his daughter.
See id. at 31. It requires only that his interactions with her
and other minors happen under the supervision of a responsible
person approved by the probation officer. See, e.g., United States
v. Tilley, 105 F.4th 482, 487 (1st Cir. 2024) (upholding a
condition prohibiting unsupervised contact with minors). That is
a proper limitation considering that Millette continues to pose an
"enhanced risk to minors," as evidenced by his previous internet
activity and more recent confessions to his supervising officer.
Further, as the record reflects, Millette's probation officers did
- 14 - not "unreasonably withhold permission" from Millette "to see his
own children." United States v. Acevedo-Osorio, 118 F.4th 117,
138 (1st Cir. 2024) (quoting United States v. Mercado, 777 F.3d
532, 539 (1st Cir. 2015)). Rather, he had regular supervised
visits with his daughter.
Since the record justifies limiting Millette's
unsupervised contact with minors, we find that the district court
did not abuse its discretion in reimposing such a condition.
III. CONCLUSION
For the foregoing reasons, we affirm the revocation of
Millette's supervised release and reimposition of a condition that
limits his contact with minors.
- 15 -