Eighth Circuit Upholds Order Separating Child Porn Offender From His Kids – U.S. v. Hobbs

April 3, 2013 by David S. Seltzer

I was saddened to read a case recently in which a court was permitted to order a child pornography possession defendant separated from his children. In United States v. Hobbs, Todd Hobbs of Nebraska pleaded guilty to possession of child pornography. He was sentenced to five years in prison—a relatively light sentence for this crime—but also five years of supervised release. Among the conditions of that release: Hobbs will not be permitted to live with or contact any children under the age of 18, and he may not possess any “material that is sexually stimulating or sexually oriented.” The Eighth U.S. Circuit Court of Appeals ruled that the trial court did not abuse its discretion with the order, because the restrictions at issue affected constitutional rights but are not sweeping.

Police officers in Lincoln, Nebraska found Hobbs sharing child pornography online. They obtained a search warrant and ultimately found more than 20,000 images, including videos, in Hobbs’s collection. Hobbs admitted to collecting it for more than seven years. After an arraignment, Hobbs was granted pretrial release, but on the condition that he not drink alcohol, as well as attending counseling for a pornography addiction. He was caught drinking by a probation officer on Valentine’s Day, which led to the revocation of the supervised release. In the interim, he took a plea deal involving a guilty plea to one count of child pornography possession. The district court granted a downward variance on prison time, in part because of Hobbs’s alcoholism, but imposed five years of supervised release with the disputed conditions. Hobbs’s counsel objected, saying he should be able to live with his own children—two of whom will still be minors after his release—but the judge disagreed, in part because of the alcoholism.

The Eighth Circuit noted that Hobbs has a good relationship with both boys, that his psychological evaluation put him at low risk of molesting a child, and that the Due Process clause protects the parent-child relationship. Nonetheless, the Eighth Circuit said it has upheld this type of restriction repeatedly. The court agreed that if the sole focus of its analysis were on the risk of future sex offense, it would see no need to restrict Hobbs from living with his children without a probation officer’s okay. But because Hobbs’s probation officer found he was dangerous when drinking, and because Hobbs didn’t stop drinking despite the pretrial release restriction, the court found that the special condition was not an abuse of discretion. If Hobbs is able to stop drinking and kick his pornography addiction, the court said, his probation officer “will doubtless approve his living with his family.” It noted that the probation officer should decide quickly whether Hobbs can live with his family directly after release from prison, and advocated for him to do so.

As a cyber crime defense attorney, I’m used to stringent conditions of supervised release for child pornography offenders. The Eighth upheld the constitutionality of the condition preventing Hobbs from having pornography, and I’ve seen similar conditions upheld. But it’s very sad that the court agreed to separate Hobbs from his children. The court made it clear that its only concern is the defendant’s alcoholism and the bad behavior it apparently leads to; there was no concern that Hobbs might molest his kids. Furthermore, ex-child porn offenders have a very, very difficult time finding housing even when they are allowed to live with relatives. For that reason, I think a better result would have given Hobbs a chance to be released straight to his family’s home, rather than creating a situation where he would have to jump through bureaucratic hoops first.

If you are accused of a serious crime involving computers, technology or the Internet, you should call David Seltzer and the team at Seltzer Law, P.A., right away. You can reach us through our website or call 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Seventh Circuit Overturns Indiana Law Prohibiting Internet Use by Sex Offenders –Doe v. Marion County Prosecutor

Seventh Circuit Twice Vacates Very-Far-Above-Guidelines Sentence for Sex With Minor – U.S. v. Bradley

Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger