United States v. Joseph Heidebur ( 2005 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-3712
    ___________
    United States of America,                *
    *
    Appellee,                   *
    *
    v.                                 * Appeal from the United States
    * District Court for the
    Joseph F. Heidebur,                      * Eastern District of Missouri
    *
    Appellant.                  *
    ___________
    Submitted: April 11, 2005
    Filed: July 26, 2005
    ___________
    Before COLLOTON, McMILLIAN and BENTON, Circuit Judges.
    ___________
    McMILLIAN, Circuit Judge.
    Joseph F. Heidebur (defendant) appeals from a final order entered in the United
    States District Court1 for the Eastern District of Missouri granting the government’s
    petition to modify the conditions of his supervised release. United States v. Heidebur,
    No. 1:95CR00052 (E. D. Mo. Oct. 29, 2004) (Order Modifying the Terms of
    Supervision) (hereinafter “Order”). For reversal, defendant argues that the district
    court abused its discretion in imposing two special conditions of supervised release
    1
    The Honorable Catherine D. Perry, United States District Judge for the Eastern
    District of Missouri.
    which, he contends, involve greater deprivation of liberty than is reasonably
    necessary. We affirm.
    Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.
    Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal
    was timely filed pursuant to Fed. R. App. P. 4(b).
    Background
    In the underlying criminal matter, defendant was indicted on August 22, 1995,
    on one count of possession of materials involving the sexual exploitation of a minor,
    in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment was based on three
    sexually explicit photographs, found in defendant’s home, which he had taken of his
    twelve-year-old stepdaughter. Defendant was tried before a jury and found guilty.
    On appeal, this court vacated the conviction based upon an evidentiary issue. United
    States v. Heidebur, 
    122 F.3d 577
    (8th Cir. 1997) (holding that district court’s
    admission of evidence that defendant had sexually molested his stepdaughter was
    improper because it showed propensity and was not probative of his knowing
    possession of the photographs). On remand, defendant pled guilty. On January 12,
    1998, defendant was sentenced to sixty months imprisonment and two years of
    supervised release.
    After defendant had completed his prison term, the government filed a petition
    requesting that the conditions of his supervised release be modified. The government
    proposed numerous additional conditions, of which defendant opposed two on the
    ground that they would deprive him of liberty more than is reasonably necessary. The
    district court held a hearing on the matter, and on October 29, 2004, issued its order
    modifying the terms of defendant’s supervised release. The district court imposed
    eight additional special conditions, including the following two which defendant had
    opposed:
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    2. The defendant shall participate in a sex-offense specific treatment
    program. The defendant shall enter, cooperate, and complete said
    program until released by the United States Probation Officer. The
    defendant shall abide by all policies and procedures of the sex-offense
    specific program. During the course of said treatment, the defendant
    shall be subject to periodic and random physiological testing which may
    include but is not limited to polygraph testing and/or other specialized
    assessment instruments. The defendant shall contribute to the cost of
    treatment in an amount to be determined by the probation office.
    3. The defendant shall be prohibited from contact with children under
    the age of 18 without the prior written permission of the probation
    officer and shall report to the probation officer immediately, but in no
    event later than 24 hours, any unauthorized contact with children under
    the age of 18.
    Order at 1.
    Defendant timely appealed.
    Discussion
    We review the imposition of a special condition of supervised release for an
    abuse of discretion. United States v. Carlson, 
    406 F.3d 529
    , 531 (8th Cir. 2005).
    “District courts are normally afforded wide discretion in imposing terms of
    supervised release.” United States v. Kent, 
    209 F.3d 1073
    , 1075 (8th Cir. 2000)
    (Kent).
    In Kent, we noted that the district court, at sentencing, must consider the
    following factors:
    (1) the nature and circumstances of the offense and the defendant’s
    history and characteristics; and (2) the need for the sentence to (A)
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    reflect the gravity of the offense, promote respect for the law, and justly
    punish the defendant for the unlawful behavior, (B) adequately deter
    criminal behavior, (C) protect the public, and (D) effectively provide
    necessary educational or vocational training, medical attention, or other
    correctional treatment.
    
    Id. at 1075-76
    (citing 18 U.S.C. § 3553(a)(1), (2)(A)-(D) (1998)).
    We then went on to explain that each of the above factors, with the exception
    of subsection (2)(A), are “equally applicable considerations in the imposition of a
    term of supervised release.” 
    Id. at 1076
    (citing 18 U.S.C. § 3583(c)). Moreover, we
    noted, U.S.S.G. § 5D1.3(b) also addresses conditions of supervised release, and it
    “mirrors § 3583(c)’s adoption of § 3553(a).” 
    Id. Both 18
    U.S.C. § 3583(d)(2) and
    U.S.S.G. § 5D1.3(b) instruct that conditions of supervised release should not involve
    a greater deprivation of liberty than is reasonably necessary.
    In the present case, defendant argues that special condition No. 2, requiring
    him to participate in a sex-offense specific treatment program, is not justified by any
    specific concerns articulated by his probation officer at the hearing and, moreover,
    it jeopardizes his ability to comply with another condition of his supervised release,
    retaining employment. See Brief for Appellant at 11-12. In support of the latter
    contention, he notes that he objected to this special condition at the hearing on the
    ground that he lives and works in rural Ste. Genevieve County, and it would take him
    several hours to travel to and from the City of St. Louis, the only place where he
    could attend the required type of treatment program. He further points out that,
    although the probation officer testified that she would not consider it a violation if he
    were to lose his employment because of his participation in a required treatment
    program, there is no certainty that she will continue to be his probation officer for the
    duration of his supervised release.
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    Upon review, we conclude that special condition No. 2 is justified by several
    relevant factors, including: the nature and circumstances of the underlying criminal
    offense, defendant’s history and characteristics, the need to deter future criminal
    behavior, and the need for effective correctional treatment. See 18 U.S.C.
    § 3553(a)(1), (2)(B)-(D). Having been convicted of possessing materials involving
    the sexual exploitation of his twelve-year-old stepdaughter, defendant is not in a
    position to argue that it was inappropriate for the district court to require him to
    participate in a sex-offense specific treatment program. Cf. 
    Kent, 209 F.3d at 1076
    -
    78 (where the defendant had been convicted of mail fraud and attempting to interfere
    with a financial institution’s reporting compliance, holding that the district court
    abused its discretion in imposing a special condition of supervised release requiring
    participation in mental health counseling at the probation officer’s direction where
    the government conceded that the special condition was unrelated to the defendant’s
    offenses). Moreover, although the probation officer testified that she knew of only
    one outpatient sex-offense specific treatment program in the area, she further testified
    that the program entails only one meeting per week in the evening. In view of the
    seriousness of the underlying offense, the appropriateness of the treatment program
    being required, the improbability that the program will significantly interfere with
    defendant’s employment, and the probation officer’s testimony that a loss of
    employment would not be considered a violation if caused by the required treatment,
    we hold that the minimal deprivation of liberty that may result from special condition
    No. 2 is not greater than that which is reasonably necessary under the circumstances.
    Defendant also challenges special condition No. 3, prohibiting him from
    contact with children under the age of 18 unless the probation officer has given prior
    written permission or defendant reports such contact to the probation officer within
    24 hours. Defendant argues that the district court abused its discretion in imposing
    this special condition because it is unreasonably vague, it is not justified by any
    specific concerns articulated at the hearing, and it is not “finely tuned” to his
    particular circumstances. Brief for Appellant at 13-14.
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    As previously emphasized, defendant was convicted of conduct involving the
    sexual exploitation of a minor. Special condition No. 3 is justified by several relevant
    factors set forth in 18 U.S.C. § 3553(a)(1), (2)(B)-(D), including: the nature and
    circumstances of the underlying criminal offense, defendant’s history and
    characteristics, the need to deter future criminal behavior, and the need to protect the
    public. The deprivation of liberty that may result from special condition No. 3 is not
    greater than that which is reasonably necessary under the circumstances. See United
    States v. Jodon, 
    2001 WL 1098100
    (8th Cir. 2001) (unpublished) (per curiam)
    (upholding a special condition of supervised release restricting the defendant’s access
    to children where the defendant had pled guilty to transportation of obscene matter
    after he transmitted a sexually explicit picture of himself over the internet to a minor);
    United States v. Bee, 
    162 F.3d 1232
    , 1235 (9th Cir. 1998) (upholding special
    condition of supervised release restricting the defendant from unapproved contact
    with children under the age of 18 where the defendant had been convicted of
    engaging in abusive sexual contact with a child under the age of 12), cert. denied, 
    526 U.S. 1093
    (1999).
    Conclusion
    The district court did not abuse its discretion in imposing the special
    conditions of supervised release challenged by defendant. The order of the district
    court is affirmed.
    ____________________
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