United States of America v. Melvin Joseph Last Star

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN JOSEPH LAST STAR,
Defendant - Appellant.
No. 12-30398
D.C. No. 4:02-cr-00057-SEH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted December 6, 2013
Seattle, Washington
Before: HAWKINS and TALLMAN, Circuit Judges, and WHYTE,** Senior District
Judge.
Melvin Joseph Last Star (“Last Star”) appeals the district court’s revocation of
his supervised release for both possession of “sexually oriented” or “sexually
stimulating” videos and for failing to complete sex offender treatment as a result of
FILED
JAN 09 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
** The Honorable Ronald M. Whyte, Senior United States District Judge for the
Northern District of California, sitting by designation.

-- 1 of 4 --

possessing those videos. Last Star also challenges the court’s imposition of a new
condition of release that prohibits him from dating or socializing with any person
having children under the age of eighteen. Because of recent legal decisions in this
circuit that the district court did not have the benefit of at the time of the original
sentencing, we reverse and remand.
Last Star did not waive his facial challenge to the initial conditions of
supervised release, imposed immediately after his conviction, by failing to object to
them on direct appeal, as our court has permitted defendants to bring such challenges
during appeals of revocation. See, e.g., United States v. King, 608 F.3d 1122, 1128
(9th Cir. 2010); United States v. Antelope, 395 F.3d 1128, 1131-32, 1141 (9th Cir.
2005). We therefore permit Last Star to challenge his initial Special Release
Condition No. 4, which prohibited possession of “pornographic, sexually oriented, or
sexually stimulating materials,” as unconstitutionally vague. After Last Star’s initial
sentencing, this court determined in Antelope that an identical supervised release
provision was unconstitutionally vague because it failed to afford sufficient notice of
what conduct was prohibited. 395 F.3d at 1141-42. Applying Antelope, we conclude
that initial Special Release Condition No. 4 is likewise unconstitutionally vague and
2

-- 2 of 4 --

therefore cannot serve as a basis for revoking Last Star’s supervised release. We
therefore reverse the revocation of supervised release on this ground.1
Further, revocation of Last Star’s supervised release under initial Special
Release Condition No. 2, which required completion of sex offender treatment, also
cannot stand. Although the district court may permissibly defer to a licensed
treatment provider as to the particular treatment needs for a defendant and may require
general compliance with the terms of conditions of such treatment program, see
United States v. Fellows, 157 F.3d 1197, 1203-04 (9th Cir. 1998), in this case the sex
offender treatment contract suffered from the same vagueness problem as initial
Special Release Condition No. 4 in that it failed to give Last Star sufficient and
specific notice of what type of materials he was prohibited from possessing, see
United States v. Sales, 476 F.3d 732, 737 (9th Cir. 2007) (defendant “cannot be left
to guess about the intended meaning of the terms of his supervised release”).
Finally, under our precedent in United States v. Wolf Child, 699 F.3d 1082 (9th
Cir. 2012), the district court abused its discretion by imposing a new condition of
supervised release forbidding Last Star from “dat[ing] or socializ[ing] with anybody
1 We note that the new condition of supervised release that prohibits possession
of sexually explicit materials, imposed by the district court in 2012 (New Special
Release Condition No. 9), further defined and narrowed the definition of
impermissible materials by cross-reference to 18 U.S.C. § 2256(2), as approved by
this court in United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir. 2003).
3

-- 3 of 4 --

who has children under the age of 18.” As noted in Wolf Child, this provision is
overbroad because nearly half the people in the United States would be on the “‘do
not associate’ list,” seriously impairing the defendant’s ability to “develop friendships,
maintain meaningful relationships with others, remain employed, or in any way lead
a normal life [during supervised release].” Id. at 1100-01. Moreover, the remainder
of the condition (to which Last Star does not object) already prohibits him from being
in the residence or company of any child under eighteen without prior written
approval of the probation office and also precludes him from going to or loitering near
places frequented by children under eighteen; thus, the challenged portion of the
condition only inhibits Last Star’s interaction with other adults, and without sufficient
justification.
For the foregoing reasons, we reverse the district court’s revocation of
supervised release and remand so that the court may revise New Special Release
Condition No. 8.
REVERSED AND REMANDED.
4

-- 4 of 4 --