8th Circuit agrees parolee can’t have disputed decals

Thursday, February 5, 2009

A federal appeals court has affirmed a lower court’s order preventing a man convicted of impersonating a federal officer from keeping on his vehicle decals and emblems related to his offense. The case reaffirms the principle that First Amendment freedoms can be curtailed to a greater extent with respect to parole conditions than they can in general society.

The controversy began when Carl Dean Wynn Jr. falsely presented himself as an agent with the U.S. Border Patrol to a construction company in Little Rock, Ark. Wynn allegedly damaged property at the construction company and sent literature and threatening letters charging the company with employing illegal aliens.

Surveillance video from the company showed a green Jeep bearing emblems similar to that of the U.S. Border Patrol, displaying the words “United States of America Citizens Task Force.” Federal agents arrested Wynn and discovered two U.S. Border Patrol badges, T-shirts and literature that matched what was mailed to the construction company.

Officials charged Wynn with violating a federal law prohibiting the impersonation of a federal officer. Wynn pleaded guilty in April 2007 and originally received a sentence of 12 months’ probation.

In its August ruling, the federal district court imposed several probation conditions of probation, including that Wynn be “precluded from displaying or causing to be displayed the seal of the United States, or any likeness thereof, capable of conveying the false impression that such seal represents an official department, agency, bureau, or instrumentality of the United States or is sponsored by the United States in any way.”

The court said the restriction was necessary to ensure that Wynn would not “intimidate or cause people to change their actions” on the mistaken belief that he was a federal agent. And it ordered Wynn to remove the decals from the Jeep “immediately” and “in any event not later than September 2007.” The government petitioned the court in October to consider several probation violations, including the fact that Wynn had failed to remove the decals.

Wynn left town and skipped a revocation hearing, at which a court decides whether to imprison a parole violator. In December 2007, Wynn was arrested on a traffic stop and later that month had the revocation hearing. At the hearing, Wynn claimed that he thought it sufficient to cover the decals with black plastic.

The district court found that Wynn had violated several terms of his probation and sentenced him to one year in prison followed by 12 months of supervised release. Wynn appealed to the 8th U.S. Circuit Court of Appeals, challenging several aspects of the district court’s ruling.

One of his challenges focused on the decal restriction, contending that it violated his First Amendment free-speech rights. He contended that the restriction would prohibit him from displaying even “common emblems” such as the American eagle and the “geographic outline of the United States.”

A three-judge panel of the 8th Circuit rejected his free-speech challenge (and other challenges) in its Feb. 2 opinion in United States v. Wynn. The panel unanimously affirmed the lower court’s ruling.

In an opinion by Judge Steven Colloton, the panel wrote that a district court can impose restrictions on fundamental rights, including freedom of speech, if the conditions are reasonably related to relevant factors allowed to be considered under federal law, such as the nature of the crime and the goal of deterring future crime.

“The decals that the district court ordered Wynn to remove from his vehicle were instrumentalities of his offense of conviction,” Colloton wrote. “He used them to impersonate a federal officer. The condition that Wynn remove the decals is thus reasonably related to the nature and circumstances of the offense, and it is reasonably necessary to deter criminal conduct, and to protect the public from further crimes of the defendant.”

He added that the district court’s restriction “was tailored to prevent Wynn from displaying only those decals used in the commission of his offense” and “did not extend to other objects or images that Wynn would use to communicate patriotic ideas in a lawful manner.” Colloton concluded that the district court had the discretion to impose this “special condition.”