USA v. ABAIR

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cr-00035-JPH-TAB
)
DEVERE L. ABAIR, 	) 	-01
)
Defendant. 	)
ORDER
Devere Abair was sentenced in the Southern District of Illinois for
Accessing Child Pornography with Intent to View and Failure to Register. 	Dkt.
1 at 1. 	His supervised release was transferred to this district in March 2024.
Dkt. 2. 	In October 2024, Mr. Abair admitted eight supervised release
violations, including Possession of a Dangerous Weapon, Noncompliance with
Sex Offender Treatment, Possession of Unapproved Devices, Failure to Report
Internet Accounts, and Leaving the Southern District of Indiana Without
Permission. 	Dkt. 25 at 1. 	He was sentenced to twelve months' incarceration
followed by ten years' supervised release. 	Id. at 2–3.
Mr. Abair has filed a motion to stay his probation for thirty days, dkt. 31,
and a motion challenging most of his conditions of supervised release, dkt. 32.
He argues that the challenged conditions are arbitrary, overbroad, too
restrictive of his ability to work, or otherwise unconstitutional. 	Id.
The Court "may modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the term of
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supervised release." 	18 U.S.C. § 3583(e)(2). 	When assessing whether to do so,
the Court must consider most of the same factors under 18 U.S.C. § 3553(a)
that are considered in fashioning the original sentence. 	Id.; United States v.
Neal, 810 F.3d 512, 516 (7th Cir. 2016) (Section 3583(e) incorporates "nearly
all of the original sentencing goals, excepting only the need for a sentence to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment, and the directive to consider the 'kinds of sentences
available.'").
At the outset, Mr. Abair argues that some of his conditions of supervised
release lack sufficient evidence or adequate explanation, or are unrelated to his
offense. 	E.g. dkt. 32 at 2, 4–5, 8, 12, 14, 16–18. 	These procedural challenges
are waived. 	United States v. St. Clair, 926 F.3d 386, 388–39 (7th Cir. 2019).
Procedural challenges "include arguments that the condition was not
adequately explained or linked to the offense of conviction, or that evidence or
other information presented at the original sentencing did not provide sufficient
support." 	Neal, 810 F.3d at 520. 	Mr. Abair was informed of the supervised
release conditions at his revocation hearing and waived having them read in
open court. 	Dkt. 22; dkt. 23 at 8. 	The magistrate judge then included the
conditions in his report and recommendation. 	Dkt. 23 at 5–8. 	Mr. Abair did
not object to those conditions and waived any objection to the report and
recommendation. 	Id. at 8. 	He therefore may not challenge the legality of the
supervised release conditions on procedural grounds now. 	St. Clair, 926 F.3d
at 388 ("St. Clair expressly acknowledged at the revocation hearing that he had
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reviewed the conditions with his lawyer and that he did not object to any of
them. 	That is quintessential waiver for supervised release conditions."); Neal,
810 F.3d at 520 ("To stay consistent with the statutory scheme for appeal of
sentences, . . . procedural shortcomings must be raised at the first opportunity
or not at all.").
Mr. Abair may nevertheless seek modification of his supervised release
conditions under 18 U.S.C. § 3583(e)(2) on other grounds. 	See Neal, 810 F.3d
at 516 ("[A]s a general proposition, a district court may modify conditions of
supervised release at any time under 18 U.S.C. § 3583(e)(2)."). 	That provision
"allow[s] a defendant to bring substantive challenges to the current legality of
conditions of supervised release." Id. at 518.
Condition 4: You shall not knowingly leave the judicial district
without the permission of the court or probation officer.
Mr. Abair argues that Condition 4 is an arbitrary occupational
restriction. 	Dkt. 32 at 2.
Condition 4 "is an administrative requirement that can be imposed
without explanation." 	United States v. Warren, 843 F.3d 275, 281 (7th Cir.
2016); see USSG § 5D1.3(b)(2)(C) (2025). 	Although not required to do so, the
Court explained that Condition 4 is meant to ensure the community’s safety
and assist the probation officer in knowing Mr. Abair’s whereabouts. 	Dkt. 23
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at 6; 18 U.S.C. § 3553(a)(1), (a)(2)(C). 	Mr. Abair's motion as to Condition 4 is
denied.1
Condition 6: You shall not meet, communicate, or otherwise
interact with a person you know to be engaged, or planning to be engaged,
in criminal activity. 	You shall report any contact with persons you know
to be convicted felons to your probation officer within 72 hours of
contact.
Mr. Abair contends that Condition 6 is arbitrary because it "forc[es] him
to know what conduct people are up to" and is not narrowly tailored. 	Dkt. 32
at 3. 	Condition 6 is based on a standard condition of supervised release.
USSG § 5D1.3(b)(2)(H). 	Because the condition imposes a knowledge
requirement on Mr. Abair, it is not too vague or broad. 	See United States v.
Douglas, 806 F.3d 979, 986–87 (7th Cir. 2015). 	And it deters future criminal
conduct. 	See 18 U.S.C. § 3553(a)(2)(B).
Mr. Abair also argues that this requirement prevents him from working
at a felon-friendly job or attending religious services with "repentant felons."
Dkt. 32 at 3. 	The condition, however, prevents Mr. Abair from interacting only
with those who are "engaged, or planning to be engaged, in criminal activity."
Interactions with law-abiding citizens who have a prior felony conviction, by
contrast, are not flatly prohibited—though they must be communicated to the
probation officer. 	Mr. Abair's motion as to Condition 6 is denied.
1 Mr. Abair includes Condition 5—which requires him to be truthful with his probation
officer—in his list of conditions he is challenging, but he identifies no basis for a
challenge or any argument. See dkt. 32 at 1.
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Condition 8: You shall not own, possess, or have access to a firearm,
ammunition, destructive device or dangerous weapon.
Condition 8 is also a standard condition of supervised release. USSG §
5D1.3(b)(2)(J). 	Mr. Abair argues that Condition 8 infringes on his Second
Amendment rights. 	Dkt. 32 at 4. 	However, "the right secured by the Second
Amendment is not unlimited" and a restriction that fits within the "historical
tradition of firearm regulation . . . is lawful under the Second Amendment."
United States v. Rahimi, 602 U.S. 680, 690 (2024). 	Restricting access to
dangerous weapons for those who the court has deemed "to pose a credible
threat to the physical safety of others" is within our nation's history and
tradition. 	Id. at 700; District of Columbia v. Heller, 554 U.S. 570, 626 (2008)
(recognizing "longstanding prohibitions on the possession of firearms by
felons"); see also 18 U.S.C. § 922(g). 	Condition 8 is necessary to protect the
public. 	Dkt. 36 at 4, 8; 18 U.S.C. § 3553(a)(2)(C). 	Mr. Abair's motion as to
Condition 8 is denied.2
Condition 12: As directed by the probation officer, you shall notify
third parties who may be impacted by the nature of the conduct
underlying your current or prior offense(s) of conviction and/or shall
permit the probation officer to make such notifications and/or confirm
your compliance with this requirement.
2 Mr. Abair includes Condition 10—which requires him to maintain lawful full-time
employment—in his list of conditions he is challenging, but he identifies no basis for a
challenge or any argument. See dkt. 32 at 1.
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Condition 12 is based on a standard condition of supervised release.
USSG § 5D1.3(b)(2)(L). 	Mr. Abair argues that Condition 12 is improper
because it does not give him fair notice of who is considered a "third party," so
it is vague and overbroad. 	Dkt. 32 at 5.
"A condition of supervised release is unconstitutionally vague if it would
not afford a person of reasonable intelligence with sufficient notice as to the
conduct prohibited." 	United States v. Armour, 804 F.3d 859, 868 (7th Cir.
2015). 	The Seventh Circuit has indicated that supervised release conditions
should define which third parties must be notified. 	See United States v.
Canfield, 893 F.3d 491, 495 (7th Cir. 2018); United States v. Kappes, 782 F.3d
828, 849 (7th Cir. 2015). 	Condition 12 is therefore amended to add the
additional language:
"Third party who may be impacted" means both (1) any
individual who has regular and frequent contact with
the defendant and has care, custody, or control over a
minor, such the defendant may have contact with the
minor and (2) any entity where minors frequent, such
as the defendant’s employment or volunteer activities.
Otherwise, Condition 12 is appropriate to protect the public and deter criminal
conduct. 	Dkt. 36 at 3; 18 U.S.C. § 3553(a)(1).
Condition 13: You shall make a good faith effort to follow
instructions of the probation officer necessary to ensure compliance with
the conditions of supervision.
Condition 13 is a standard condition of supervised release. 	USSG §
5D1.3(b)(2)(M). 	Mr. Abair alleges that Condition 13 is vague, encourages
arbitrary enforcement, and improperly delegates authority to the probation
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officer. 	Dkt. 32 at 6. 	But Condition 13 concerns instructions "necessary to
ensure compliance" with the enumerated conditions of supervision, so this
condition in conjunction with the others informs Mr. Abair what is required of
him. 	See United States v. Johnson, 911 F.3d 849, 854 (7th Cir. 2018); cf.
United States v. Hill, 818 F.3d 342, 344 (7th Cir. 2016). 	Mr. Abair’s motion as
to Condition 13 is denied.3
Condition 15: All employment shall be approved in advance by the
probation officer.
Mr. Abair contends that Condition 15 is an unconstitutional
occupational restriction. 	Dkt. 32 at 8. 	Occupational restrictions, however, are
authorized by statute and in the Sentencing Guidelines. 	18 U.S.C. § 3563(b)(5)
(incorporated by 18 U.S.C. 3583(d)); USSG § 5D1.3(b)(3)(N). 	The restriction
must "bear a reasonably direct relationship to the conduct relevant to the
offense of conviction." 	United States v. Farmer, 755 F.3d 849, 856 (7th Cir.
2014). 	This condition is appropriate because many jobs involve contact with
minors, and Mr. Abair's probation officer must know where he is employed to
"monitor him in the community" and "hold him accountable" by restricting his
access to minors. 	Dkt. 24 at 6. 	Condition 15 therefore protects the public and
3 Mr. Abair includes Condition 14—which requires him to pay, to the extent he is able,
for psychosexual treatment, polygraph examinations, and computer monitoring—in
his list of conditions he is challenging, but he identifies no basis for a challenge or any
argument for the payment provision. Dkt. 32 at 1. Mr. Abair only argues against the
activities, which are not imposed by Condition 14. The Court addresses these
activities in its discussion of Condition 22.
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deters future criminal conduct. 	18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C). 	Mr.
Abair's motion as to Condition 15 is denied.
Condition 16: You shall not have unsupervised meetings, activities,
or visits, or intentional communications with any minor unless they have
been disclosed to the probation officer and approved by the court. You
shall not have supervised meetings, activities, visits, or intentional
communications with any minor unless they have been approved by the
probation officer. Before you may request approval for such meetings,
activities, visits, or intentional communications (unsupervised or
supervised), you must notify the person(s) having custody of any such
minor(s) about the conviction in this case and the fact that you are under
supervision.
Mr. Abair challenges Condition 16, alleging that it violates his rights to
intimate association. 	Dkt. 32 at 9–11, 14. 	However, Condition 16 allows Mr.
Abair to request approval for events like the family holiday gatherings he
argues that he should not be required to miss. 	See dkt. 32 at 10; see Douglas,
806 F.3d at 986–87. 	Given the nature of his offense, Condition 16 is proper to
protect the public and deter criminal conduct. 	18 U.S.C. § 3553(a)(1), (a)(2)(B)–
(C). 	Mr. Abair's motion as to Condition 16 is denied.
Condition 17: You shall not be employed in any position or
participate as a volunteer in any activity that involves unsupervised
meetings, intentional communications, activities, or visits with minors
except as disclosed to the probation officer and approved by the court.
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Mr. Abair first argues that Condition 17 is vague because it "does not
identify the parties that the condition would violate," and because
"unsupervised" and "intentional communications" are vague terms. 	Dkt. 32 at
12. 	Again, "a condition of supervised release is unconstitutionally vague if it
would not afford a person of reasonable intelligence with sufficient notice as to
the conduct prohibited." 	Armour, 804 F.3d at 868. 	The terms "unsupervised"
and "intentional" each "has a generally understood meaning," so this condition
is not unconstitutionally vague. 	Id.
Mr. Abair next argues that Condition 17 is an impermissible
occupational restriction and infringes on his rights to intimate association.
Dkt. 32 at 12–13, 15. 	As explained above with Condition 15, occupational
restrictions are permitted and Condition 17 similarly protects the public and
deters future criminal conduct. 	18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C). 	Moreover,
Condition 17 allows Mr. Abair to participate in the activities listed in the
condition if he obtains Court approval. 	See Douglas, 806 F.3d at 986–87. 	Mr.
Abair's motion as to Condition 17 is denied.
Condition 18: You shall not participate in unsupervised meetings,
intentional communications, activities, or visits with persons you know
to be a registered sex offender or to have been convicted of a felony sex
offense involving an adult or minor, including any child pornography
offense, except as disclosed to the probation officer and approved by the
court. This condition is not intended to prevent you from participating in
treatment programs or religious services with felons in such
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programs/services so long as the activity has been disclosed as described
above.
Mr. Abair contends that Condition 18 is unconstitutional because it
violates his First Amendment rights and improperly delegates judicial functions
to his probation officer. 	Dkt. 32 at 16. 	This condition, however, states that it
is not intended to prevent Mr. Abair from attending religious services with
appropriate disclosure and approval. 	See Douglas, 806 F.3d at 896–87. 	It also
does not delegate any judicial authority to the probation officer because any
exception is considered by the Court, not the probation officer. 	See United
States v. Isbell, 148 F.4th 557, 563 (7th Cir. 2025) ("[A] provision that imposes
treatment 'as deemed necessary by probation' violates the non-delegation rule
because it lets probation decide whether the condition will be imposed at all.").
Last, Condition 18 is appropriate to protect the public and provide correctional
treatment in the most effective manner. 	Dkt. 24 at 6; 18 U.S.C. § 3553(a)(2)(B),
(D). 	Mr. Abair's motion as to Condition 18 is denied.
Condition 19: You shall not enter or remain at a place for the
primary purpose of observing or contacting children under the age of 18.
Mr. Abair argues that Condition 19 unconstitutionally violates his
intimate association rights and ability to visit his family. 	Dkt. 32 at 17. 	But
Condition 19 instead prohibits Mr. Abair only from going somewhere for the
primary purpose of observing or contacting minors. 	This condition is
appropriate to protect the public and deter criminal conduct. 	See United States
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v. Jones, 798 F.3d 613, 621 (7th Cir. 2015); 18 U.S.C. § 3553(a)(2)(B), (C). 	Mr.
Abair's motion as to Condition 19 is denied.
Condition 20: You shall submit to the search by the probation
officer of your person, vehicle, office/business, residence, and property,
including any computer systems and hardware or software systems,
electronic devices, telephones, and Internet-enabled devices, including
the data contained in any such items, whenever the probation officer has
a reasonable suspicion that a violation of a condition of supervision or
other unlawful conduct may have occurred or be underway involving you
and that the area(s) to be searched may contain evidence of such violation
or conduct. Other law enforcement may assist as necessary. You shall
submit to the seizure of contraband found by the probation officer. You
shall warn other occupants these locations may be subject to searches.
Mr. Abair argues that Condition 20 is overly intrusive. 	Dkt. 32 at 18.4
The Supreme Court has expressly authorized this type of supervised release
condition. 	United States v. Knights, 534 U.S. 112, 119–22 (2001)
("Probationers do not enjoy the absolute liberty to which every citizen is entitled
. . . . [T]he warrantless search of [defendant], supported by reasonable
suspicion and authorized by a condition of probation, was reasonable within
the meaning of the Fourth Amendment."). 	And the Sentencing Commission
has authorized this condition for those convicted of sex offenses. 	USSG §
4 Mr. Abair also alleges that Condition 20 is an occupational restriction but does not
advance any argument to support this assertion.
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5D1.3(b)(3)(G)(iii). 	Moreover, Condition 20 is tailored by requiring the
probation officer to have reasonable suspicion that Mr. Abair is violating a
condition of his probation or engaging in another type of unlawful conduct.
Mr. Abair's motion as to Condition 20 is denied.
Condition 21: You shall not possess any child pornography or visual
depictions of child erotica or nude minors. Any such material found in
your possession shall be considered contraband and will be confiscated by
the probation officer.
Mr. Abair challenges the "nude minors" portion of Condition 21 as vague
and overbroad, worrying that he will be penalized for possessing his own
childhood bathtub photographs, religious depictions of cherubs, or medical
textbooks. 	Dkt. 31 at 19. 	The Seventh Circuit has held that some restrictions
on sexual material protected by the First Amendment is overbroad when they
are too "all-encompassing" to reasonably achieve the goals of supervised
release. 	E.g. United States v. Adkins, 743 F.3d 176, 194–96 (7th Cir. 2014).
The Seventh Circuit has therefore encouraged district courts to ensure that
such conditions are "not broader than reasonably necessary to achieve" the
relevant goals of § 3553(a) and to "narrow[ ] the scope of proscribed conduct"
accordingly. 	Id. at 196.
Under this guidance, Condition 21 is amended to read:
You shall not possess any child pornography or visual
depictions of child erotica, or knowingly or intentionally
possess 	visual 	depictions 	of 	nude 	minors 	for 	the
purpose of sexual stimulation or gratification. Any such
material found in your possession shall be considered
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contraband and will be confiscated by the probation
officer.
See United States v. Bordman, 895 F.3d 1048, 1060 (8th Cir. 2018) (explaining
that while blanket prohibitions on possessing nudity are overbroad, "[t]his court
has held that when a defendant is convicted of an offense related to child
pornography, a ban on the possession of pornography is appropriate tailored to
serve 	the 	dual 	purposes 	of 	promoting 	the 	defendant's 	rehabilitation 	and
protecting children from exploitation"); United States v. Ellis, 720 F.3d 220, 227
(5th Cir. 2013) ("Because Ellis's crime was sexual in nature, it was reasonable
for the district court to restrict Ellis's access to sexually stimulating material
more broadly in an effort to prevent future crimes or aid in his rehabilitation.");
As modified, Condition 21 is appropriate to help Mr. Abair in his recovery,
avoid relapse, and protect children. 	See dkt. 24 at 6; 18 U.S.C. § 3553(a)(2)(B)–
(D).
Condition 22: You shall participate in a program of treatment for
sexual disorders, including periodic polygraph examinations, as directed
by the probation officer. The treatment provider should determine the
type and timing of such polygraph examinations. The court authorizes the
release of the presentence report and available psychological evaluations
to the treatment provider, as approved by the probation officer.
Condition 22 follows the Sentencing Guidelines. 	USSG §
5D1.3(b)(3)(G)(i); 18 U.S.C. § 3553(a)(5). 	In seeking a modification of Condition
22, Mr. Abair challenges only the polygraph examinations. 	Dkt. 32 at 20. 	He
contends that submitting to polygraph examinations would force him to
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incriminate himself in violation of his Fifth Amendment rights. 	Id. However,
Condition 22 does not require Mr. Abair to waive these privileges. 	See Kappes,
782 F.3d at 850 (explaining that such a condition "does not prevent the
defendant from invoking his Fifth Amendment privilege against self-
incrimination"); see also United States v. Brewster, 627 F. App’x 567, 571 (7th
Cir. 2015). 	Mr. Abair's motion as to Condition 22 is denied.
Condition 23: You shall consent, at the direction of the probation
officer, to having installed on your computer(s), telephone(s), electronic
devices, and any hardware or software, systems to monitor your use of
these items. Monitoring will occur on a random and/or regular basis. You
will warn other occupants or users of the existence of the monitoring
hardware or software. To promote the effectiveness of this monitoring,
you shall disclose in advance all cellular phones, electronic devices,
computers, and any hardware or software to the probation officer and may
not access or use any undisclosed equipment.
Condition 23 follows the Sentencing Guidelines. 	USSG §
5D1.3(b)(3)(G)(ii); 18 U.S.C. § 3553(a)(5). 	Mr. Abair argues that Condition 23 is
vague and violates his First Amendment rights. 	Condition 23 is meant to help
Mr. Abair’s probation officer monitor his conduct, aid in his recovery, prevent a
relapse, and hold him accountable by making sure he is not again accessing—
or attempting to access—child pornography. 	Dkt. 24 at 6; 18 U.S.C. §
3553(a)(2)(B)–(D).
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Moreover, internet monitoring is not a complete ban on Mr. Abair’s
computer or Internet use. 	Cf. United States v. Scott, 316 F.3d 733, 737 (7th
Cir. 2003) (vacating a sweeping no-internet condition); Packingham v. North
Carolina, 582 U.S. 98, 107 (striking a state law prohibiting sex offenders from
using social media because it restricted their access to lawful, useful
information). 	Mr. Abair's motion as to Condition 23 is denied.
* 	* 	*
After consideration of the applicable 18 U.S.C. § 3553(a) factors, the
Court modifies Conditions 12 and 21 as explained above, and Mr. Abair's
motion is otherwise DENIED. 	Dkt. [32]. 	An amended judgment will issue by
separate entry. 	His motion to stay his probation for thirty days is DENIED.
Dkt. [31].
SO ORDERED.
Distribution:
All electronically registered counsel
Devere Abair
611 N. Capitol St.
Indianapolis, IN 46204
Electronic Notice to USPO
Date: 3/2/2026
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