United States v. Frederick Ahlemeier ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1651
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Frederick Ahlemeier, III, *
*
Appellant. *
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Submitted: September 14, 2004
Filed: December 10, 2004 (corrected 12/16/04)
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
I. Background
On January 29, 1999, Ahlemeier pled guilty to possession of child
pornography. He was sentenced to twenty-one months imprisonment, followed by
thirty-six months of supervised release. He voluntarily surrendered on June 14, 1999
and was imprisoned. Ahlemeier was released from prison and was placed on
supervised release on October 3, 2000. The term of supervised release was to expire
on October 2, 2003.
Ahlemeier’s conditions of supervised release were modified on June 10, 2002
to include the additional condition that Ahlemeier enter and complete a sexual
offender treatment program. Ahlemeier entered the sex-offense specific program of
Psychological Services under counselor William B. Brown (“Brown”) on September
18, 2001 and began attending counseling sessions.
On July 6, 2003, Ahlemeier was involved in an incident at a Best Buy Store in
Chesterfield, Missouri. Ahlemeier allegedly paced around the store with a camera
and took pictures of women. After observing this behavior, the store manager asked
Ahlemeier to leave the store. Ahlemeier left, and employees subsequently called the
police. The next day, July 7, 2003, Ahlemeier attended a group counseling session
and failed to mention the incident to his counselor or support group. On July 8, 2003,
Kenneth R. Fitzgerald (“Fitzgerald”), U.S. Probation Officer, informed Brown of the
incident. Brown concluded at that time that he would terminate Ahlemeier from the
treatment program.
Ahlemeier was charged with stalking based on his actions at the Best Buy
store.1 He received notice of the charge by mail on July 8, 2003 and apparently was
1
The local ordinance prohibiting stalking reads:
A person commits the crime of stalking when a person purposely and
repeatedly harasses or follows with the intent of harassing another
person. As used in this Ordinance, “Harasses” means to engage in a
course of conduct directed at a specific person that serves no legitimate
purpose, that would cause a reasonable person to suffer substantial
emotional distress. As used in this ordinance, “Course of Conduct”
means a pattern of conduct composed of a series of acts over a period of
time, however short, evidencing a continuity of purpose.
Constitutionally protected activity is not included within the meaning of
“Course of Conduct.”
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not contacted by the police before that time. The stalking charges were dismissed on
December 16, 2003.
On July 10, 2003, Fitzgerald filed a petition with the district court requesting
that the court revoke Ahlemeier’s supervised release. The petition stated that
Ahlemeier had violated his supervised release because he had committed a local
crime and because he was not in compliance with his treatment program.2
Ahlemeier informed Fitzgerald of the charge by a letter dated July 14, 2003.
Ahlemeier continued to attend his counseling sessions until July 28, 2003. On July
30, 2003, he was arrested by the U.S. Marshal and incarcerated. On August 4, 2003,
Ahlemeier had his Preliminary Supervised Release Revocation and Detention
Hearing. The magistrate judge found probable cause to believe Ahlemeier had
violated a condition of his supervised release and ordered Ahlemeier be detained until
his revocation hearing.
On September 4, 2003, the district court held a Supervised Release Revocation
Hearing. The government did not pursue its claim that Ahlemeier had committed a
2
The terms of probation at issue read:
1) While on supervised release, the Defendant shall not commit another
federal, state, or local crime; and
2) Special Condition (as modified 6/10/2002): 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
determined by the probation office.
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local crime. However, the government proceeded with its charge that Ahlemeier had
failed to participate in a sex-offense specific treatment program. The court agreed
and sentenced Ahlemeier to nine months in prison, followed by twenty-seven months
supervised release.
On September 11, 2003, Ahlemeier filed a Motion to Arrest Judgment and/or
Reconsideration. He filed an amended version of this motion October 1, 2003. On
October 2, 2003, following a telephone conference between the attorneys and the
district court, the district court set aside its September 4 judgment and set a
Supervised Release Revocation hearing for October 24, 2003.
On October 24, 2003 and March 5, 2004, the district court held two Supervised
Release Revocation hearings. The district court heard testimony from Fitzgerald,
Brown, Josh King, the Chesterfield Police Officer who investigated the Best Buy
incident, Craig Houseman, a Best Buy employee and witness of the incident, and
Renee Mansker, a Best Buy employee and alleged victim of the incident. The district
court found Ahlemeier had violated the terms of his supervised release by failing to
mention the Best Buy incident to Brown. Because Ahlemeier withheld this
information during counseling, the district court found that he had failed to cooperate
and complete the program. The district court again sentenced Ahlemeier to nine
months imprisonment, followed by twenty-seven months of supervised release.
Ahlemeier now appeals.
II. Discussion
A. Standard of Review
If the government proves by a preponderance of the evidence that the defendant
violated a condition of supervised release, the district court has the discretion to
revoke supervised release. 18 U.S.C. § 3583(e)(3) (“The court may . . . revoke a term
of supervised release, and require the defendant to serve in prison all or part of the
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term of supervised release authorized by statute for the offense that resulted in such
term of supervised release . . . if the court . . . finds by a preponderance of the
evidence that the defendant violated a condition of supervised release.”). We review
the district court’s decision to revoke supervised release for an abuse of discretion.
United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
B. Notice, Non-Disclosure of Evidence, and Hearsay Evidence
Before the court revokes supervised release, the defendant is entitled to a
revocation hearing. Fed. R. Crim. P. 32.1(b)(2). In connection with that hearing, a
defendant is entitled to: (A) “written notice of the alleged violation,” (B) disclosure
of the government’s evidence against him or her, (C) “an opportunity to appear,
present evidence, and question any adverse witness unless the court determines that
the interest of justice does not require the witness to appear,” and (D) notice of the
right to retain counsel or to request appointed counsel. Id. at (A)-(D).
Ahlemeier makes three arguments involving Rule 32.1. First, he argues that
his written notice was insufficient. Second, he argues that the government failed to
properly disclose evidence against him. Third, he argues that the district court erred
in relying on hearsay evidence presented at the revocation hearing. We will address
each argument in turn.
1. Notice
Ahlemeier states that his written notice of his alleged violation consisted of the
Petition for Revocation of Supervised Release (the “Petition”), a document prepared
by the probation officer.3 The pertinent part of this document reads:
3
The government claims that Ahlemeier received a document entitled
Supervised Release Revocation Sentencing Computation Summary, as well as
discovery, including the police report. In our analysis, we assume that Ahlemeier’s
version of the facts are correct.
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Violation Number
Special Condition (as modified on 6/10/02): The defendant shall
participate in a sex-offense specific treatment program. The defendant
shall enter, cooperate, and complete said program until release 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.
Nature of Noncompliance
On July 8, 2003, this officer contacted Bill Brown of Brown
Psychological Services, the offender’s sexual offender treatment
provider, to inform him of the above charge. Brown indicated that the
offender would be terminated from treatment for lack of treatment
progress, however, Brown would continue to counsel the offender, for
community safety reasons, until action was taken by the Court.
(Petition, p. 2.) The Petition also outlines Ahlemeier’s alleged behavior during the
Best Buy incident. It relays the observations of the Best Buy manager, who stated
that Ahlemeier approached an “employee so he would be able to see down inside her
blouse and take photographs” and took a picture of another woman who was bending
down to look at merchandise. Id.
Ahlemeier contends that this notice was insufficient because it did not specify
that his violation was based, in part, on his failure to mention the Best Buy incident
at counseling. However, the notice did state that he was being “terminated from
treatment for lack of treatment progress.” Id. This put Ahlemeier on notice that his
progress in counseling was unsatisfactory. The detailed allegations about his
behavior at the Best Buy store informed Ahlemeier that his unsuccessful performance
in treatment was related to the Best Buy incident. This was enough to put Ahlemeier
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on notice that his alleged violation concerned his participation in counseling, or lack
thereof, in relation to the Best Buy incident.
Moreover, Ahlemeier had the benefit of seeing evidence that identified the
particular allegations against him on multiple occasions prior to his October 2003 and
March 2004 Revocation Hearings. Ahlemeier contends that the government’s
original position was that Ahlemeier simply failed to attend sessions and that the
government did not assert that Ahlemeier failed to cooperate with counseling until
the October 24, 2003 hearing. (Ahlemeier’s Brief, p. 18.) However, the record shows
that during his Preliminary Supervised Release Revocation and Detention Hearing on
August 4, 2003, Fitzgerald testified that Ahlemeier had failed to cooperate in
counseling and was therefore terminated from the program. Defense counsel asked
Fitzgerald about how Ahlemeier allegedly violated the special condition of his
supervised release regarding counseling. Fitzgerald testified that “under that
condition he is to cooperate and complete the program, and by his actions he was not
meeting the requirements of the program, so he was terminated.” (Preliminary
Supervised Release Revocation and Detention Hearing, August 4, 2003, p. 12
(emphasis added).)
Evidence that the charge concerned Ahlemeier’s failure to report the Best Buy
incident was also presented at Ahlemeier’s September 4, 2003 Sentencing Hearing.
At the hearing, the district court stated:
The allegation is that on July 8th of this year the Brown Psychological
Services where you were receiving this treatment was notified of the
situation in Chesterfield and indicated that because of that and your
failure to report to . . . Brown Psychological Services that you would be
terminated from that program[.]
(Transcript of Sentencing, September 4, 2003, p. 2 (emphasis added).) The charge
that Ahlemeier had failed to report the Best Buy incident at counseling and was
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terminated as a result was explicitly spelled out by the court.4 Ahlemeier was put on
notice that his failure to disclose the incident would be an issue at his revocation
hearing. Therefore, any possible defect in the written notice was harmless. See Fed.
R. Crim. P. 31.1(b)(1)(A), (b)(2), 52(a).
2. Non-Disclosure of Evidence
Ahlemeier contends that the government failed to disclose the evidence against
him because he did not receive a list of witnesses that the government planned to
present at the revocation hearing. Rule 32.1(b)(2) does not require the disclosure of
a witness list but rather a disclosure of the evidence upon which the government
relies to support the violation. In this case, the government provided Ahlemeier with
discovery that included the names of several witnesses: Police Officer King, the
alleged victim, Fitzgerald, and Brown, as well as the relevant police report. It should
have come as no a surprise to Ahlemeier that these witnesses testified, and we find
no evidence to suggest that the lack of a witness list inhibited Ahlemeier from
preparing his defense.
3. Hearsay Evidence
Ahlemeier argues that his revocation of supervised release is unsupportable
because the district court relied on an expert’s decision to terminate him from
treatment, and the decision to terminate him from treatment was based on incorrect
and unreliable hearsay.
4
The fact that the government subsequently referred to the charge in shorthand,
stating merely that Ahlemeier failed to attend counseling sessions, (see, e.g.,
Government’s Supervised Release Revocation Hearing Memorandum, filed October
6, 2003, p. 2, Hamilton Add. p. 68.), does not erase the prior testimonial evidence and
statements made by the court. The evidence and statements focused on Ahlemeier’s
failure to disclose his experience at Best Buy in counseling as giving rise to a
violation of a condition of his supervised release.
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First, we question whether this is truly a “hearsay” issue. Persons on probation
or supervised release are routinely ordered to participate in drug, alcohol, or sex
offender treatment programs. Successful participation in and completion of those
programs is a routine condition of supervision. In many cases, a court must rely upon
the group counselor to assess whether the person is making satisfactory progress and
can remain in the group. Those decisions made by a counselor can be based on a
number of factors, including hearsay from third persons, lack of participation, or
cooperation by the offender, as well as other subjective factors. There may well be
cases where the information relied upon by a counselor to terminate a person from the
program is so unreliable that the termination would not support a finding that a
condition of supervision had been violated. This is not such a case. There is no
indication the counselor acted in an arbitrary or capricious manner when he
terminated Ahlemeier for his failure to report an incident the counselor deemed to be
quite serious.
Moreover, the normal rules for use of hearsay at a revocation hearing were
clearly met in this case. “Hearsay evidence offered by the government may be
admitted at a supervised release revocation hearing if the evidence is sufficiently
reliable and the government has a ‘reasonably satisfactory explanation’ for not
producing the witness.” United States v. Martin, 371 F.3d 446, 448 (8th Cir. 2004),
(quoting United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994)). The district
court must engage in a balancing test and weigh the defendant’s right to confront
adverse witnesses against the grounds asserted by the government for not producing
the witness. United States v. O’Meara, 33 F.3d 20, 21 (8th Cir. 1994). “The
[g]overnment may show good cause by demonstrating the hearsay evidence is reliable
and by offering a reasonably satisfactory explanation why live testimony is
undesirable or impracticable.” Id.
Ahlemeier makes clear in his reply brief that his hearsay argument concerns the
information Fitzgerald told Brown that led Brown to determine that Ahlemeier was
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not progressing in treatment and terminate him from the program. It is true that
Brown did not see the incident at the Best Buy store first hand and that he relied on
this information when making his treatment decision. However, each person who
acted as an underlying source of information testified in the hearing, and Ahlemeier
had the opportunity to cross-examine each one. Brown made the ultimate decision
that Ahlemeier was not cooperating and should be terminated; Brown testified and
was cross-examined. In making this decision, Brown relied on information from
Fitzgerald; Fitzgerald testified and was cross-examined. Fitzgerald relied on the
police report, drafted by King; King testified and was cross-examined. King drafted
his police report based on statements from Houseman; Houseman testified and was
cross-examined. Houseman witnessed the events. Thus, Ahlemeier’s right to
confront adverse witnesses was not infringed.
C. Standards of Supervised Release
Ahlemeier contends that the district court abused its discretion when it revoked
his supervised release and sentenced him because his alleged violation does not fit
within the standard for revocation of supervised release. This argument is spurious.
One condition of Ahlemeier’s supervised release was that he was required to
“participate in a sex-offense specific treatment program.” The requirement further
stated: “The defendant shall enter, cooperate, and complete said program until
released by the United States Probation Officer.”
At the supervised release revocation hearing, Brown testified that Ahlemeier
attended a group counseling session on July 7, 2003, one day after the Best Buy
incident, and failed to mention the incident. Brown testified that by withholding this
information from the group, Ahlemeier was unable to use his resources to prevent a
relapse of deviant behavior. When asked directly whether Ahlemeier was cooperating
in treatment, Brown answered, “Certainly, he was not. My concern is the description
of what was given to me in that he was in fact relapsing and he was withholding the
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information, essentially. He was not cooperative.” (Transcript of Supervised Release
Revocation Hearing, 10/24/03 at 91.)
In addition, when Brown learned of the Best Buy incident on July 8, 2003, he
decided to terminate Ahlemeier from the treatment program. After this date and until
Ahlemeier’s incarceration, Brown continued to counsel Ahlemeier in “community
protection status,” an arrangement in which Brown would continue to see Ahlemeier,
though Ahlemeier remained terminated from the treatment program. An offender in
community protection status cannot complete the treatment program.
The government’s burden was to prove by a preponderance of the evidence that
Ahlemeier had violated a condition of his supervised release. The government
presented direct testimony from Ahlemeier’s counselor that Ahlemeier was not
cooperating in treatment. The district court also heard testimony that Ahlemeier had
been terminated from the treatment program and no longer had the ability to complete
the sex-offense specific treatment program, as required by a condition of his
supervised release. It was therefore not an abuse of discretion for the district court
to conclude that Ahlemeier had violated the condition that required him to cooperate
in a sex-offense specific treatment program.
D. Fairness
Ahlemeier also argues that withholding information in a counseling session
does not “rise[] to the level of an ultimate finding that there was a violation of the
conditions of supervised release for which the penalty is incarceration of nine (9)
months.” (Ahlemeier’s Brief, p. 24.) Ahlemeier’s assertion here seems to be that
being incarcerated for nine months is too stiff a penalty for not completing his
supervised release conditions. This is simply not the case. As discussed above,
The court may . . . revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release
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authorized by statute for the offense that resulted in such term of
supervised release without credit for time previously served on
postrelease supervision, if the court . . . finds by a preponderance of the
evidence that the defendant violated a condition of supervised release.
18 U.S.C. § 3583(e). Violating a condition of supervised release constitutes a Grade
C Violation. U.S. Sentencing Guidelines Manual § 7B1.1(a)(3). “Upon finding of
a Grade C violation, the court may . . . revoke . . . supervised release.” U.S.S.G.
§ 7B1.3(a)(2). For an individual with a Grade C violation and a criminal history
category of I, as in the case before us, the Guidelines suggest a term of imprisonment
between three and nine months. U.S.S.G. § 7B1.4(a). Ahlemeier received nine
months, within the suggested range.
E. Initiation of Proceedings by Probation Officer
Last, Ahlemeier argues that the probation officer exceeded his authority when
he commenced proceedings to revoke Ahlemeier’s supervised release. In support, he
cites United States v. Jones, 957 F. Supp. 1088, 1091 (E.D. Ark. 1997) (holding the
government, and not the probation office, should commence supervised release
revocation proceedings). However, the balance of the case law holds the practice of
probation officers petitioning the court to revoke supervised release is legal. The
circuit courts to address the issue have uniformly disagreed with Jones and upheld the
practice. United States v. Amatel, 346 F.3d 278, 280 (2d Cir. 2003) (holding that
Jones stands alone and that every case decided since Jones has affirmed the legality
of petitions by probation officers); United States v. Cofield, 233 F.3d 405, 408-09
(6th Cir. 2000) (holding probation officer has authority to file a petition to revoke
supervised release); United States v. Mejia-Sanchez, 172 F.3d 1172, 1174 (9th Cir.
1999) (same); United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (same).
We join our sister circuits and hold that probation officers may properly petition the
court for a revocation of supervised release.
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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