United States v. Bolyard

1

UNITED STATES OF AMERICA, Plaintiff, v. DESIREE BOLYARD, Defendant.

No. 7:15-CR-00010-M

United States District Court, E.D. North Carolina, Southern Division

July 12, 2023

ORDER

RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant Desiree Bolyard's (“Bolyard”) Motion to Terminate Supervised Release or, in the Alternative, to Modify Conditions [DE 44]. Bolyard seeks an order terminating her supervised release pursuant to 18 U.S.C. § 3583(e)(1) and argues that such termination is warranted by her compliant conduct and in the interest of justice. Alternatively, Bolyard requests that the court modify certain conditions of her supervised release pursuant to 18 U.S.C § 3583(d), arguing that they are not reasonably related to the purposes of her sentencing and involve a greater deprivation of liberty than necessary to achieve the goals of supervision.

The United States counters that Bolyard's motion should be denied because she has not demonstrated any new or unforeseen circumstance or the factors set forth in § 3553(a) justify early termination of supervision. Also, the government asserts that the court should not modify Bolyard's internet restrictions, because they are reasonably related to the underlying offense and reasonably necessary to prevent Bolyard from offending again.

The court concludes the Bolyard has failed to demonstrate that her supervised release should be terminated at this time. In addition, while the court finds Bolyard has demonstrated that the “association with minors” restriction should be modified, she provides insufficient information for the court to determine whether the “internet-use” restriction should be modified. Thus, the motion is denied in part, granted in part, and denied without prejudice in part.

I. Background

On March 3, 2015, Bolyard pled guilty to a Criminal Information alleging that Bolyard “travelled] in interstate and foreign commerce for the purpose of engaging in an any illicit sexual conduct, as defined in Title 18, United States Code, Sections 2423(f), with another person, in violation of Title 18, United States Code, Section 2423(b)” (see DE 6, 10, 13), based on the following allegations. In February 2014, the Naval Criminal Investigative Service (NCIS) launched an investigation related to sexual misconduct involving Bolyard and a 13-year-old female (“JH”). DE 19 at 3. Bolyard, age 35, was the mother of JH's boyfriend and a former employee of the school attended by both JH and her son at Camp Lester, Okinawa, during the 2012-13 school year. Id. The investigation revealed that Bolyard and JH met in approximately February 2013, and Bolyard engaged in inappropriate sexual contact and communication via smartphone with JH from at least July 2013 through February 2014, including after Bolyard moved to North Carjlina due to her husband's transfer to Camp Lejeune in July 2013. Id. at 3-5. This communication included sexually explicit photos and videos exchanged between Bolyard and JH. Id.

Specifically, on February 11,2014, NCIS located Bolyard in Okinawa and interviewed her. Bolyard admitted that she was in Okinawa to visit JH, and that she had snuck into JH's bedroom one r igFit to engage in sexual conduct. Id. Agents also interviewed JH and learned tha t Bolyard snuck into JH's bedroom on February 7, 2014, during which they kissed each other for two hours, and that they had planned to meet secretly on February 14, 2014, during which they planned “to remove their clothing” and “kiss each other all over.” Id. Agents searched Bolyard's luggage and cellular telephone and JH's cellular telephone and discovered that Bolyard and JH had created and exchanged multiple sexually explicit photos and videos of themselves. Id.

On June 9, 2015, Bolyard was sentenced to sixty months in prison followed by a ten-year term of supervised release. DE 31, 33. The court imposed multiple conditions on Bolyard's release, including restricting her associations and internet use. J., DE 33. Bolyard states that she was released from prison in July 2019 and asserts that she has been compliant with all conditions of her supervision since her release. Mot., DE 44 | 3. These conditions include prohibition (without the probation officer's permission) from any form of unsupervised communication with a minor, loitering within 1,000 feet of any area where minors frequently congregate, and possessing or purchasing any device that can be linked to the internet. DE 33 at 5. Bolyard must also consent to warrantless or unannounced searches and the installation of computer monitoring software by a U.S. Probation Officer. Id.

Bolyard contends that certain of these conditions place unnecessary burdens on her ability to work and live. Mot, 16. In particular, Bolyard argues that she is unable to advance in her career because of the restriction that prevents her from accessing computer systems. Id. | 11. Additionally, Bolyard asserts that the condition restricting her from unsupervised contact with minors creates unnecessary barriers to a normal relationship with her son and stepdaughter. Id. 9. Bolyard now moves this court to terminate the supervised release or, alternatively, modify the conditions of the supervised release to enable her reassimilation into society. Id. 12.

II. Legal Standards

In determining a particular sentence to be imposed, the court must consider the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, and the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a). In addition, under 18 U.S.C. § 3583(d), the court may order any condition of supervised release so long as the condition “(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); and (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C. § 3583(d).

The court may, after considering the § 3553(a) factors, “terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). The decision whether to terminate supervised release is left to the court's discretion. See United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999).

Furthermore, courts may modify or reduce the conditions of supervised release any time prior to the expiration of the of the term of supervised release under 18 U.S.C. § 3583(e)(2). Typically, defendants may seek modification or reduction of conditions based only on “new, unforeseen or changed legal or factual circumstances, including those that go to the legality of the sentence,” because challenges to conditions that existed at the time of the original sentencing are properly raised only on direct appeal. United States v. Morris, 37 F.4th 971, 976 (4th Cir. 2022) (citing United States v. McLeod, 972 F.3d 637, 644 (4th Cir. 2020)). Relevant to this case, however, the Fourth Circuit has held that district courts should consider challenges to internet-use conditions because recent Supreme Court and Fourth Circuit opinions have “created ‘new, unforeseen, or changed legal... circumstances.'” Id. at 977. Also, a party may seek modification or reduction based on new factual circumstances that were not present at the time of the original sentencing. Id.

III. Discussion

A. The court will not terminate Bolyard's supervised release.

Courts have discretion to grant early termination of supervised release, even when the conditions for termination are met. Folks v. United States, 733 F.Supp.2d 649, 651 (M.D. N.C. 2010). In deciding whether to terminate a term of supervised release, the court must first consider whether the defendant's conduct warrants early termination. 18 U.S.C. § 3583(e)(1). “Circumstances that justify early discharge have included exceptionally good behavior that makes the previously imposed term of supervised release ‘either too harsh or inappropriately tailored to serve' general punishment goals.” Folks, F.Supp.2d at 651 (quoting United States v. Lussier, 104 F.3d 32,36 (2d Cir. 1997)). Full compliance with the conditions of supervised release are expected of the defendant. Id. at 652. Thus, compliant and apparently unblemished conduct, while commendable, is not enough on its own to warrant early termination. Id.

Here Bolyard asserts that she has been compliant with all conditions since her release from prison in 2019. Bolyard claims to have complied with all mental health recommendations from her probation officer and has never received a violation for not following the terms of her release. Even if these claims were true, her compliant conduct alone does not constitute sufficient grounds for early termination. The terms of Bolyard's supervision were established to hold her accountable for her offenses, deter her from committing further offenses of the same nature, and protect those in the community around her. Bolyard is expected to comply with the conditions of her release for the entirety of its duration. Mere compliance for less than half of a ten-year release period does not qualify as exceptionally good behavior that renders the release...