United States v. Nicholas Edwards ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18‐3282
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NICHOLAS EDWARDS,
Defendant‐Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18‐cr‐00023‐jdp‐1 — James D. Peterson, Chief Judge.
ARGUED SEPTEMBER 11, 2019 — DECIDED DECEMBER 6, 2019
Before RIPPLE, ROVNER, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. Nicholas Edwards pleaded guilty to
failing to register as a sex offender, in violation of the Sex
Offender Registration and Notification Act, 18 U.S.C.
§ 2250—his fourth conviction for a failure to register a change
of address as required by state and federal statutes. The district
court ordered him to serve a prison term of 27 months and
2 No. 18‐3282
imposed three conditions that will govern his supervised
release at the conclusion of that term: (1) a requirement that, as
required by his probation officer, he inform employers,
neighbors and family members with children, and others of his
criminal record, his obligation to register as a sex offender, and
the other requirements imposed by SORNA; (2) a ban on
meeting, spending time with, or communicating with any
minor absent the express permission of the minor’s parent or
guardian and the probation officer; and (3) a bar to working in
any job or participating any volunteer activity in which he
would have access to minors, absent prior approval of his
probation officer. Finding no flaw in any of these conditions,
we affirm the judgment.
I.
Edwards distributed child pornography in 2001 and
possessed child pornography in 2002. As a result of his
convictions in Minnesota state court in 2003 for those offenses,
Edwards incurred a lifetime obligation to register as a sex
offender under the Minnesota statute implementing SORNA’s
requirements for a sex offender registry. See 34 U.S.C. § 20912;
Minn. Stat. § 243.166(6)(d)(1). He failed to comply with that
obligation on multiple occasions when he changed addresses,
and he was convicted in state court of failing to register and/or
update his registration in 2004, 2009, and 2013.1
1
While this case was pending in 2018, Edwards was convicted again in
Minnesota state court for a registration violation that occurred in 2016.
Edwards’ criminal history also includes a number of convictions and arrests
for insufficient‐funds and forged checks and similar offenses.
No. 18‐3282 3
In 2018, Edwards was indicted in federal court for failing to
register under section 2250, after he began working in Wiscon‐
sin in or about February 2017 and ultimately moved to
Hudson, Wisconsin, in November of that year but failed to
register in Wisconsin or update his existing registration in
Minnesota. He pleaded guilty and was sentenced on the same
day.2
At sentencing, the district court imposed three conditions
upon Edwards’ eventual supervised release over his objection:
Condition 11: As directed by the probation officer,
defendant shall notify employers and third parties
providing volunteer opportunities and educational
opportunities; organizations to which defendant
belongs; and neighbors and family members with
minor children, of defendant’s criminal record based
on risk associated with his offense, his obligations to
register as a sexual offender, and the legal require‐
ments under the Sex Offender Notification Act. The
probation officer may also take steps to confirm
defendant’s compliance with this notification re‐
quirement or provide such notifications directly.
Special condition 16: Not meet or spend time with
any person under the age of 18 or have verbal,
written, telephonic or electronic communication
with any such person, except with the express
2
A parallel Minnesota charge based on Edwards’ failure to update his
registration in Minnesota from November 2016 to February 2017 was
ultimately dismissed following his conviction in this case.
4 No. 18‐3282
permission of the minor’s parent or legal guardian
and the supervising U.S. probation officer. This
provision does not include persons under the age of
18, such as waiters, cashiers, ticket vendors, etc.,
with whom defendant must deal in order to obtain
ordinary and usual commercial services.
Special condition 17: Not work in any occupation,
business or profession, or participate in any volun‐
teer activity where defendant has access to children
under the age of 18 without the prior approval of the
supervising U.S. probation officer.
R. 30 at 4–5.
II.
In addition to the mandatory conditions of supervised
release identified in 18 U.S.C. § 3583(d), the statute grants to a
sentencing judge the authority to impose other conditions that
(1) are reasonably related to the nature and circumstances of
the offense and the history and characteristics of the defendant,
the need to deter criminal conduct generally and protect the
public from further crimes of the defendant, and the need to
provide the defendant with appropriate training, care, and
treatment; (2) involve no greater deprivation of liberty than is
reasonably necessary to deter criminal conduct, protect the
public from further criminal conduct by the defendant, and
ensure that the defendant receives appropriate training, care,
and treatment; and (3) are consistent with the pertinent policy
statements of the Sentencing Commission. § 3583(d); U.S.S.G.
§ 5D1.3(b) (Nov. 2016); United States v. Poulin, 809 F.3d 924, 929
(7th Cir. 2016) (quoting United States v. Armour, 804 F.3d 859,
No. 18‐3282 5
867 (7th Cir. 2015)). As Edwards has alleged no procedural or
legal error in the imposition of the conditions he challenges, we
review them for abuse of discretion. E.g., United States v. Bloch,
825 F.3d 862, 869 (7th Cir. 2016).
Edwards contends that the three conditions of release he
challenges are not appropriately tailored to the particulars of
his criminal history and his personal characteristics, fail to
promote compliance with the law, and restrict his liberty to a
degree greater than is necessary to deter criminal conduct and
protect the public. Edwards stresses that he has never engaged
in “hands‐on” sexual behavior with minors and that his two
convictions for possession of child pornography are now in the
remote past. As to General Condition 11, which requires him
to notify employers and other third parties of his criminal
background and registration obligations at the direction of the
probation officer, Edwards contends that the requisite notifica‐
tions duplicate but also go beyond those imposed by SORNA
itself, and because his criminal history presents no real danger
that he might abuse children, they do not serve to promote his
compliance with the law or protect the public. Likewise,
Special Conditions 16 and 17, which attempt to police his
access to and interactions with minors, in his view lack
justification in his criminal record, grant the probation officer
undue authority over his interpersonal life and relationships,
and burden his freedom to a greater extent than necessary.
Edwards secondarily argues that Special Conditions 16 and
17 are both excessively broad and unconstitutionally vague. He
suggests that the language of both conditions leaves him in
doubt as to exactly what interactions with and exposure to
minors is permissible absent the approval of his probation
6 No. 18‐3282
officer and, in turn, grants the officer unwarranted veto power
over even familial interactions.
We begin by addressing a threshold argument that impli‐
cates all three of these conditions—that because Edwards has
never committed a “hands‐on” sexual offense against a child,
the district court had no cause to impose restrictions crafted
with the evident aim of preventing such offenses. It is true that
Edwards has no record of engaging in sexual conduct with
minors; but the district court expressly considered that point
and articulated a reasonable basis to believe that such restric‐
tions were nonetheless warranted. We ourselves have sus‐
tained the imposition of such restrictions notwithstanding the
lack of evidence that a defendant has previously committed a
contact offense. See United States v. Warren, 843 F.3d 275, 282
(7th Cir. 2016) (collecting cases).
As recently as 2015, a discharge summary prepared at the
conclusion of Edward’s participation in a 14‐month sex
offender treatment program noted that he continues to have a
sexual interest in children. R. 25 ¶¶ 93–96. Although Edwards
is right to point out that there is a difference between thought
and action, his enduring sexual interest in minors certainly
presents cause for concern. Edwards has both possessed child
pornography and distributed child pornography, including
pornography depicting adults having sex with minors, and
those offenses do victimize children. And his consumption of
pornography did not cease following his convictions in 2003.
A home visit conducted in 2012 while Edwards was on
supervised release as a result of one of his Minnesota failure‐
to‐register convictions revealed that he was in possession of an
internet‐capable cell phone that had been used to access
No. 18‐3282 7
sexually explicit websites depicting, inter alia, teenagers, along
with a DVD depicting sexual activity between adults and
teenagers, both male and female. R. 25 ¶ 52. Even if we assume
that there may be only a modest likelihood of an online child
pornography offender like Edwards going on to commit a
contact offense with a minor, see Michael C. Seto, et al., Contact
Sexual Offending by Men with Online Sexual Offenses, 23 SEXUAL
ABUSE: A JOURNAL OF RESEARCH AND TREATMENT 124, 135–37
(2011), as to those individuals who do sexually abuse children,
there is some evidence to suggest that viewing child pornogra‐
phy may play a role in fostering and reinforcing abusive
behaviors, see Susan Faupel & Roger Przybylski, U.S. Dep’t of
Justice, Office of Justice Programs, SEX OFFENDER MANAGE‐
MENT ASSESSMENT AND PLANNING INITIATIVE, Ch. 2: Etiology of
Adult Sexual Offending, 44 (updated through Mar. 2017)
(discussing role child pornography may play in socially
learned sexual aggression), available at
https://www.smart.gov/SOMAPI/sec1/ch2_etiology.html
(visited Dec. 6, 2019). As the evidence in this area is still
developing, and there is no means of predicting whether
Edwards is an individual who might act out on his apparent
sexual fantasies regarding minors, it was not at all unreason‐
able for the district court to conclude that proactive measures
were necessary to avoid giving him the opportunity to do so.
Apart from his history of possession and distribution
offenses, Edwards has repeatedly failed to comply with
registration requirements in the years since his convictions and
engaged in a pattern of evasiveness and dishonesty with
respect to his own conduct. As documented in the pre‐sentence
report, Edwards in the intervening years has failed to notify his
8 No. 18‐3282
probation officer when his place of residence changed and
provided false addresses to the officer; he has accessed the
internet in violation of his conditions of release to view
pornographic sites and set up an account through which he
resold access to such sites, some of which featured young boys
and girls; he at one point stayed up to five nights a week with
a woman and her 14 year‐old daughter without disclosing his
criminal history and no‐contact restriction to her; he was thrice
convicted of failing to register as required by state law; when
he signed a lease agreement for an apartment in Hudson,
Wisconsin, in November 2017, he falsely represented to the
landlord that he was not a sex offender (needlessly, given that
the landlord was known to and did rent to sex offenders), and
falsely listed his previous place of residence as California; and
the 2015 sexual offender treatment discharge summary cited
him for an inability to remain honest and discuss his sexual
attraction to minors.
Consequently, the conditions at issue were imposed not
simply because Edwards had prior convictions for possessing
and distributing child pornography. Based on his enduring
sexual interest in children and his pattern of deception and
non‐compliance with the conditions of his release, the court
had reason to be concerned that Edwards presented a risk of
engaging in sexual contact with children, and consequently
conditions aimed at restricting his contact with children were
warranted. Edwards himself remarked at sentencing that he
needed close supervision. R. 37 at 44 (“When somebody is not
looking over my shoulder, I don’t do so good … .”).
Turning now to the particularized objections Edwards
makes to each of the three conditions at issue, we begin with
No. 18‐3282 9
General Condition 11, which requires that Edwards, as
directed by his probation officer, notify employers and others
(including third parties providing volunteer and educational
opportunities, organizations to which Edwards may belong,
and neighbors and family members with minor children) of his
criminal record, his obligation to register as a sex offender, and
the legal requirements under SORNA. Edwards contends that
the condition is unwarranted o the extent that it both dupli‐
cates the requirements of SORNA and exceeds those require‐
ments (as the parties agree that it does). We disagree. First, the
fact that this is Edwards’ fourth conviction for violating
registration requirements suggests that the statutory obliga‐
tions by themselves are not sufficient to ensure that he notifies
others of his status as a sex offender. Second, the fact that
Edward lied to his Wisconsin landlord about his status, and in
another instance stayed in a household with a 14 year‐old
without disclosing his status, suggests that closer supervision
as to what Edwards tells employers and other third parties is
warranted.
As for Special Conditions 16 and 17—which generally
forbid him from having contact with minors (except as
necessary to obtain commercial services) or from taking a job
or participating in any volunteer activity that gives him access
to children, absent the approval of his probation officer—we
have already dealt with Edwards’ lead objection, which is that
he has no history of proscribed “hands‐on” behavior with
minors. Given his ongoing sexual interest in minors (primarily,
but not exclusively, in minor females), his history of possessing
and distributing child pornography as recently as 2012, his
repeated failures to register, his failure to advise a woman with
10 No. 18‐3282
whom he stayed of his status and restrictions as a sex offender
despite the presence of the woman’s 14 year‐old daughter in
the home, and his record of evasions and lies regarding his
status, there is reason to be concerned about the possibility that
he might act out on his sexual desires. The conditions are
therefore not overly broad nor do they amount to an abuse of
discretion. See Warren, 843 F.3d at 283.
Edwards adds that Condition 16 would require him to
obtain the Probation Officer’s approval even in order to spend
time with his 11 year‐old nephew. The district court acknowl‐
edged as much. R. 37 at 65–66. But Edwards has given us no
reason to be believe that the probation officer would refuse
such permission, assuming that his brother and sister‐in‐law
themselves consent to Edwards interacting with their son. The
district court made clear to Edwards’ counsel that if disputes
arose as to the reasonableness of the probation officer’s
enforcement of the provisions, the court would be available to
mediate those disputes. R. 37 at 59. See Poulin, 809 F.3d at 935;
United States v. Kappes, 782 F.3d 828, 857–58 (7th Cir. 2015).
Finally, Edwards contends that Conditions 16 and 17 are
both unconstitutionally vague. Edwards contends that it is not
clear how broad the commercial‐services exemption in
Condition 16 is. He poses questions as to what counts as an
“ordinary and usual” as opposed to an extraordinary commer‐
cial service, whether the exemption covers interaction with
minors who might be customers as opposed to employees of
the commercial establishments he visits, and whether the
exemption applies at all to government or non‐profit services
(for example, food pantries) where minors might volunteer. He
also wonders whether it would preclude him from choosing a
No. 18‐3282 11
store checkout line staffed by a minor over one staffed by an
adult. As to Condition 17, he contends that it is not clear what
“access to children” means in terms of the jobs and volunteer
positions foreclosed to him—in particular, does it forbid him
from working or volunteering anywhere where children might
be present on occasion? And both conditions, he adds, lack a
scienter requirement, which increases the risk that he might
violate the conditions unwittingly. These arguments were not
made below,3 so our review is for plain error only. Bloch, 825
F.3d at 869.
Neither condition is so obviously vague that the ordinary
person would not understand what behavior is prohibited or
allowed. The language of the ordinary commercial services
exception found in Condition 16 derives from our cases, see
United States v. Thompson, 777 F.3d 368, 376 (7th Cir. 2015)
(error to impose no‐contact provision so broad that it could be
read preclude defendant, inter alia, from being served by
waitress or paying cashier who might be minor), and it is clear
from both the face of the provision and the reasoning of our
precedents that the exception is meant to enable Edwards to
obtain the ordinary goods and services he needs to live his life,
even if minors work at the establishments where those goods
and services are offered. See Warren, 843 F.3d at 279–80, 283
(sustaining similarly‐worded condition). So the exception
3
Edwards points out, accurately, that his counsel did argue the conditions
were overly broad below, but an argument that a provision is overbroad is
one distinct from an argument that the provision is vague. Having reviewed
the record, we find nothing that would have placed the district court on
notice that Edwards was challenging the purported vagueness of these
conditions.
12 No. 18‐3282
would cover government offices (like the DMV) and food
pantries and would not require him to choose a particular line,
though it would require him to avoid interacting with minor
patrons except in an incidental or necessary manner. See United
States v. Taylor, 796 F.3d 788, 796 (7th Cir. 2015). Condition 17
was intended, as Edwards himself recognizes, to cover
employment or volunteering where interaction with children
is a regular part of the position, such as a school security guard
or bus driver, attendant at an amusement park, or salesman at
a children’s bookstore. Because this provision concerns
employment or volunteer positions that typically would not
call for immediate decisions, it is reasonable to expect that
close questions could be run by the probation officer in
advance. We assume that the probation officer will apply these
provisions reasonably. Kappes, 782 F.3d at 857. We also pre‐
sume, as the government itself does, that the conditions will
not be construed so broadly as to include truly inadvertent
transgressions. See United States v. McMillen, 544 F.3d 71, 76 (2d
Cir. 2008); Taylor, 796 F.3d at 796.
As for the lack of a scienter requirement, this case is to be
distinguished from Thompson, on which Edwards relies.
Thompson invalidated a condition proscribing association with
convicted felons which lacked a scienter requirement because,
among other reasons, there are no sensory cues that enable one
to readily identify another person’s criminal history. 777 F.3d
at 376–77. By contrast, a person’s age can be estimated on sight
with enough accuracy to place someone in Edwards’ position
on notice of a need for caution and inquiry. As we have
discussed, the exception in Special Condition 16 grants
Edwards leeway to engage in ordinary commerce without
No. 18‐3282 13
worrying about the age of the individuals with whom he is
transacting business. Beyond that, to the extent that condition
requires him to be particularly careful, even reticent, with
teenagers who may or may not have reached their 18th
birthday, there is no obvious error in imposing a duty of
circumspection on Edwards by omitting a scienter require‐
ment. With respect to Special Condition 17, Edwards ought to
be on notice before he accepts a job or takes up a volunteer
activity as to whether the position will grant him sustained
access to children. He may need to exercise a degree of care in
that regard that the ordinary job applicant or volunteer would
not, and close questions will require the input of the probation
officer, as we have said. But the extra caution required in the
absence of a scienter requirement again does not strike us as
plain error.
III.
For the reasons we have discussed the district court did not
abuse its discretion or commit plain error in imposing the
conditions of release Edwards has challenged.
AFFIRMED