Judge denies sex offender is further threat
The government fails to convince the court to retain the man past his release date
A federal judge has denied the government's attempt to keep a convicted sexual offender in custody even after he completed his prison sentence.
U.S. District Judge Helen Gillmor ordered the government yesterday to release Jay Abregana, 38, from federal custody. The government immediately asked Gillmor to stay her order for seven days as it considers whether it will appeal. Gillmor did not decide on the request, but Abregana remains in custody.
The case involves the first test in Hawaii of the Adam Walsh Child Protection and Safety Act, designed to protect children from sexual exploitation, violent crime, child abuse and child pornography. One of the law's provisions allows judges to send someone who is deemed a sexually dangerous person to prison not because he committed a crime, but because he poses a danger to the public.
Adam Walsh is the 6-year-old boy whose abduction and murder in 1981 spurred his father, John Walsh, to create the National Center for Missing and Exploited Children and the long-running television show "America's Most Wanted."
In a written decision issued yesterday, Gillmor said the government did not prove, by clear and convincing evidence, that Abregana is sexually dangerous to others. She said the government has not proved that Abregana suffers from a serious metal illness, abnormality or disorder that would make it difficult for him to refrain from sexually violent conduct or child molestation if he is released.
Abregana pleaded guilty in November 2001 to transporting child pornography for sending 16 diskettes containing child pornography to an undercover U.S. postal inspector. The diskettes contained images of Abregana having sex with a 15-year-old boy. Gillmor sentenced Abregana in March 2002 to 44 months in prison followed by three years' probation.
Also in 2002, a state judge sentenced Abregana to a concurrent one-year jail term for fourth-degree sexual assault for exposing himself and masturbating in front of a 12-year-old boy in a movie theater in November 2000.
While in federal prison Abregana was kicked out of a sex offender treatment program for having sex with other inmates.
Abregana completed his federal prison term in November 2004 but was back in prison by June 2005 after he admitted having sex with a 17-year-old boy in a Neiman Marcus restroom at Ala Moana Center.
Gillmor resentenced Abregana to 20 months in prison followed by 16 months' probation.
Abregana completed his second prison term but was back in custody in March 2007 for failing to submit for drug testing, possessing a computer, viewing pornography and for contacting minors through e-mail communications.
Gillmor sent Abregana back to prison for four more months. He was supposed to be released last July, but the government kept him in prison pending its application to keep him there indefinitely as a sexually dangerous person.