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YOU CAN’T TELL ME WHAT TO DO

It sounds like a teenager’s hormone-driven rant. Sadly enough, the story has a lot to do with a teenager. And, it turns out, the court can’t tell you what to do. But that doesn’t mean that someone else can’t.

A rather sketchy guy named Dave started a Facebook relationship with a 13-year old girl, Veronica Victim. Through some pretty textbook manipulation, he convinced Veronica he had been a talent scout for America’s Got Talent. He promised to could coach Veronica on “voice” lessons, sessions that included a sexual component.       Finally,
44-year Dave bedded the 13-year old girl. 

Veronica’s parents found out she had been lying about her whereabouts when she was really at Dave’s, and they grounded her. That was when Dave and Veronica hatched a plan for the two of them to flee the state together. They would live as though they were father and daughter – albeit with plenty of sex behind closed doors – until Veronica was 18. Then they would get married.

The pair made it to Arkansas before authorities – who figured out Dave’s involvement quickly when they examined Veronica’s social media – fingered him as the culprit. Dave went to trial, and was easily convicted of knowingly transporting 13-year old Veronica in interstate commerce with intent to engage in criminal sexual conduct (sex with a minor).

While he was awaiting sentencing, Dave wrote to Veronica, telling her “I took it to trial just so I could see you one last time… I don’t know if you understand I’m going to prison for over 20 years. You understand that right?… I’m going to try to get the prison in Kansas. Maybe when you’re old enough you would come visit me.” Of course, by now, Veronica understood Dave to be the middle-aged creep he was. Thus, the letter upset her, and her mother told the judge as much at sentencing.

The district court sentenced Dave to 420 months imprisonment followed by supervised release for the rest of his life (which won’t be that long after his release at age 74). As part of its sentence, the district court included: “I am going to order you not to ever have contact with the victims in this case again. Period.”

The court then explained, “I don’t know if I can use the word “order,” but I am going to send as strong of an admonition as I possibly can, both to the defendant but also to the Federal Bureau of Prisons… that they are to do what they can to ensure that there are no such communications, ever.”

Dave appealed. Two days ago, the 8th Circuit Court of Appeals handed Dave a Pyrrhic victory.

The Court of Appeals struck the “no contact” order, ruling that “the district court does not have statutory authority to issue such an order,” but rather, may only order probation, a fine, or a term of imprisonment under 18 USC 3551.

However, the district court didn’t just order no contact. Because the trial judge had doubts about whether he could do so, the court also couched the order as a recommendation, suggesting to the Federal Bureau of Prisons that it do whatever it could to ensure that Dave not communicate with Veronica. While Dave’s lawyer complained about the recommendation as well, the appellate panel ignored his plaint, saying “we do not have jurisdiction to review the provision recommending the BOP monitor Dave’s communications.”

But what good is a mere recommendation? Pretty good, it turns out. No contact? The BOP has an app for that.

The BOP maintains a rather draconian program known as the Communications Management Unit. In its dry bureaucratic speak, the BOP says the purpose of the program is to “provide an inmate housing unit environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community. The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and protection of the public. The volume, frequency, and methods, of CMU inmate contact with persons in the community may be limited as necessary to achieve the goal of total monitoring…”

CMU inmates may write one letter a week – no more than six pages – to an approved recipient. They may send two e-mails a week, all to the same person, and they get not more than three 15-minute phone calls a month, only to family members. Everything gets listened to or read. Given that one of the criteria for assignment to a CMU is that “the inmate has attempted, or indicates a substantial likelihood that the inmate will contact victims of the inmate’s current offense of conviction,” Dave can be confident that the Circuit’s reversal of the no-contact order is a hollow win for him. What the district court can’t order, the Bureau of Prisons sure can.

The BOP currently only has a few CMUs. A quick check of the BOP inmate locator shows, unsurprisingly, that Dave is at one of the prisons that has such a unit. Until his release in 2045, Dave probably should not be expecting a visit from Veronica.

United States v. Duffin, Case No. 16-1616 (8th Cir., Dec. 28, 2016)