DocketNumber： 16-4127
Judges： Phillips, McHugh, Moritz
Filed Date： 2/27/2018
Status： Precedential
Modified Date： 10/19/2024
Following a jury trial, Aaron Bradley Jereb was convicted of forcibly opposing a federal officer, in violation of
Mr. Jereb asks this court to vacate his § 111(b) conviction and remand for a new trial. In the alternative, he asks us to reverse the imposition of mental health treatment and remand for resentencing. Exercising jurisdiction under
I. BACKGROUND
A. Factual History
This case arises out of a roadside brawl between Mr. Jereb and Darren Schiedel,
Mr. Jereb was seated in the Blazer's front passenger seat. His girlfriend at the time, Amber Haanpaa, was in the driver's seat. That morning, Mr. Jereb and Ms. Haanpaa each took three to five hits of methamphetamine and then drove from their home in Rock Springs, Wyoming, to Salt Lake City, Utah, apparently for the purpose of retrieving Mr. Jereb's motorcycle from impoundment.
Ms. Haanpaa attempted to hide the drug paraphernalia, but her efforts were to no avail. About two hours later, after investigation and questioning not relevant on appeal, Officer Schiedel wrote drug possession citations for both Mr. Jereb and Ms. Haanpaa. Believing Mr. Jereb was sober enough to drive back to Wyoming, Officer Schiedel told them they were free to go. At trial, Officer Schiedel testified that he "wanted out of there at that point." App. App'x, Vol. III, at 355. Mr. Jereb's erratic behavior worried him. He was "wild eyed," with "a real direct gaze about him," and "it was getting to the point where I was starting to get a little bit concerned about his demeanor towards me."
Mr. Jereb exited from the driver's seat, put on a black leather jacket, and retrieved jumper cables from the back of the Blazer. That concerned Officer Schiedel because the jumper cables "seemed like a pretty good weapon."
... Mr. Jereb was standing by the front right quarter panel on the passenger side. He looked [at] me, I would say close to my eyes but not really. It appeared to me that he was looking at my face or slightly above my eyes, not like making eye contact at this point.
....
When I started to retreat back to my vehicle, he stated, you don't look so good, officer, something to that effect. And I said, I feel great. I feel fine. He moved around the vehicle to where we were both in front of the red Chevy Blazer and said, again, stated, you don't look so good. And I again replied, you know, I feel fine. Confusing words to me at that time.
[Prosecutor:] What did you do after the second time the defendant told you you didn't look so good?
[Officer Schiedel:] The way my radio is positioned on my body, I would have reached up with my left hand and engaged the radio and stated my name or my call sign and asked for a backup unit at that point.
....
[Prosecutor:] When you called for backup, was Mr. Jereb within a distance where he would have heard what you said?
[Officer Schiedel:] Within slightly over probably an arm's reach, probably within four feet of me.
[Prosecutor:] And would you have said it loud enough so he could have heard?
[Officer Schiedel:] I would have to.
[Prosecutor:] When you called for backup, what happened?
[Officer Schiedel:] I don't remember anything happening on the radio. Our radio, there's a beep prior to the transmission or after, and I can't recall at this time, to allow you to know that that *1330transmission has gone out. I don't remember hearing anything on the radio at that point.
[Prosecutor:] And did the defendant say something at that point?
[Officer Schiedel:] Yes.
[Prosecutor:] What did he say?
[Officer Schiedel:] They're not going to get here in time to help you.
[Prosecutor:] Officer Schiedel, how did you take that statement from the defendant?
[Officer Schiedel:] Aggressive, assaultive statement.
[Prosecutor:] Did you have a reaction to his statement that they wouldn't get there in time to help?
[Officer Schiedel:] I did. I reached out and pushed my deployment button for canine Livo.
At around this time Ms. Haanpaa exited the Blazer, where she had been sitting, and asked Mr. Jereb to return to the Blazer. According to Officer Schiedel, Livo responded by repositioning himself in between Officer Schiedel, Mr. Jereb, and Ms. Haanpaa, bringing him closer to Mr. Jereb than he had been previously. Mr. Jereb then "reached out very quickly and grabbed canine Livo" by his collar, twisting it and causing Livo to scream in pain.
[Officer Schiedel:] When I heard the scream, I don't remember anything from that point. I have a very hard time remembering. My guess is I stepped forward to defend my partner.
....
[Prosecutor:] Was there a physical confrontation?
[Officer Schiedel:] I believe so, yes.
[Prosecutor:] Tell us, walk us through, Officer Schiedel, what you recall transpiring after the defendant had grabbed the collar.
[Officer Schiedel:] I have no memory from the initial contact. I remember from the front left quarter panel where we were standing next to my vehicle, I remember-my next recollection is farther from there to the west, which would have been towards the hillside, the next recollection that I have is canine Livo had Mr. Jereb down on the ground by his right forearm. Our dogs are bite and hold. He had bitten his right arm and was holding him down. And I can remember his back, and I remember thinking, this is probably a good place to use a Taser. I think the Taser was already in my hand at that point, so I deployed the Taser at that point.
Ms. Haanpaa was sitting in the driver's seat when the Blazer was jumpstarted; she turned the key in the ignition. Once the car was running, she remained in the driver's seat for a minute or two, waiting for Mr. Jereb, who was still outside. It was late at night and she could not see either man from the driver's seat, so she exited the vehicle "to go see what was going on and why we were not leaving."
[Ms. Haanpaa:] I saw Aaron and the officer just standing looking at each other. They were talking. I couldn't hear what they were saying because the Blazer was on and it is a really loud vehicle.
[Prosecutor:] What did you see next?
*1331[Ms. Haanpaa:] I saw the officer say something in his radio and he pulled out his taser and it got crazy.
[Prosecutor:] What is Officer Schiedel saying now?
[Ms. Haanpaa:] Telling Aaron to get down.
[Prosecutor:] How are you able to hear him now?
[Ms. Haanpaa:] Because I had walked over to him. I was in front of the vehicle, in front of Aaron's vehicle.
[Prosecutor:] How many times does Officer Schiedel tell Mr. Jereb to get down?
[Ms. Haanpaa:] Well, he took out his taser and tased Aaron. That kind of dropped him down but it didn't completely-like he was not like on his back or anything. It didn't completely like stop him. Aaron just kind of sat on his butt and that is when Schiedel came up to him and grabbed him on his shoulder and was telling him that he needs to get on his stomach and put his hands behind his back.
....
[Prosecutor:] Can you briefly describe to the jury how Mr. Jereb is sitting on the ground now?
[Ms. Haanpaa:] He is kind of sitting Indian style, but he has got his left leg up, so his one leg was crossed like he was sitting Indian style and the other leg was up just like he was posted up on his leg.
[Prosecutor:] What is Officer Schiedel saying to him?
[Ms. Haanpaa:] He is just telling him that he needs to get his hands behind his back, but at that time the dog appeared out of nowhere. I don't know how the dog got there, but he just-Schiedel kept telling Livo-he would just nod his head to the dog and the dog would bite him.
Officer Schiedel acknowledged that he could not recall whether he drew his Taser before or after Mr. Jereb grabbed Livo's collar. He did recall, however, that Livo was still biting Mr. Jereb's right arm while he discharged the Taser onto Mr. Jereb's back while Mr. Jereb lay on his stomach. From there, Officer Schiedel believes he was on top of Mr. Jereb trying to handcuff him, which proved difficult with a Taser in his left hand and Livo attached to Mr. Jereb's right forearm. So Officer Schiedel commanded Livo back to the patrol truck. But Officer Schiedel still was unable to handcuff Mr. Jereb, who, free of Livo, flipped onto his back so that the two men were on the ground, face to face. At around this time, Officer Schiedel believes he lost his Taser to Mr. Jereb, who then used it "against my face, my neck and maybe down my arm," before Officer Schiedel was able to take it back.
Officer Schiedel commanded Livo to return and told him to bite and hold Mr. Jereb again. He also used his Taser to drive Mr. Jereb back onto his stomach. Still unable to handcuff Mr. Jereb, the fight continued:
[Officer Schiedel:] At some point from when we were engaged on the left side of the vehicle just behind the driver's side door, I remember Livo biting his *1332right arm. It would have been a full mouth bite. Mr. Jereb, I'm assuming it was his left, it would have to be his left thumb, he was taking his left thumb and trying to get it into the dog's eye. He was jabbing it into his eye, which I would have guessed it was to try to get the dog to come off the bite, to stop biting him at that point.
THE COURT: What's a full mouth bite?
[Officer Schiedel:] Your Honor, when I'm referring to a full mouth bite, the rear of the teeth are engaging the forearm all the way. If I would have said frontal, it would have been the canine's shallow on the bite. Full mouth bite is deep. The individual that's being bit is going to have more pain response because the muscles are more powerful towards the rear of the jaw.
....
[Officer Schiedel:] When we were-somewhere between the driver's side and his door, there was, I would call it people litter. Somebody had taken a pile of brush up there, like thin sticks, maybe the diameter, large diameter to a pen or pencil, were on the ground in-between the pavement and the dirt itself right alongside my vehicle. Mr. Jereb was picking those up and stabbing the dog in his head and his neck underneath the collar, up underneath his throat, motions that were I would say consistent with if you're using an edged weapon, trying to drive the dog off of him.
Tricia Hazelrigg, a firefighter and paramedic employed by the Park City Fire Department, was summoned to the scene to assess Officer Schiedel's injuries. But Officer Schiedel refused assessment, and Ms. Hazelrigg did not see any obvious signs that he was physically injured. Ms. Hazelrigg assessed Mr. Jereb instead. Mr. Jereb was cold, wet, and shivering, having fallen or otherwise descended into Lambs Canyon Creek. His lips were blue. He had "obvious little abrasions and superficial marks ... all over his body," but "nothing that was bleeding profusely or appeared to have any great depth to it."
As for Officer Schiedel's injuries, Officer Schiedel testified that he suffered a "very minor" laceration on his hand and bruises on various spots on his body, including a black eye.
B. Procedural History
Less than a week after the October 15 incident, a grand jury charged Mr. Jereb with six counts, including assault on a federal officer (in violation of
The § 111 conviction-in particular the district court's instructions to the jury regarding that offense-is at the heart of Mr. Jereb's appeal. In its entirety, that statute reads:
(a) In general. -Whoever-
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty. -Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
At trial, the parties disagreed on two issues regarding the § 111 jury instructions. First, whether unanimity was required as to how the offense was committed-i.e., whether Mr. Jereb behaved in such a way as to assault, resist, oppose, impede, intimidate, and/or interfere with Officer Schiedel-or whether the jury need agree merely that the offense occurred without requiring agreement on which of § 111(a)(1) 's enumerated acts triggered it. The district court sided with the defendant and instructed the jury that it would need to be unanimous as to which of the § 111(a)(1) acts Mr. Jereb had committed. A special jury instruction was prepared to that effect:
Your verdict must be unanimous. For this first element, the Government does not need to prove all of these different acts-that is, forcibly assault, resist, oppose, impede, intimidate, or interfere-for *1334you to return a guilty verdict. But to return a guilty verdict, all twelve of you must agree upon which of the above acts, if any, the defendant committed and that he committed at least one of those acts.
App. App'x, Amended Vol. I, at 65. The district court's jury instructions elsewhere defined "forcibly assault" as "any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent attempt to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured." It defined "forcibly oppose" as "resist by physical means." The jury unanimously found Mr. Jereb "forcibly opposed" Officer Schiedel, but it did not reach unanimous agreement (to the extent it considered the question at all) as to whether Mr. Jereb also assaulted Officer Schiedel (forcibly or otherwise).
The second issue under dispute related to the requirement that the defendant "forcibly" commit any of the aforementioned prescribed acts. Mr. Jereb raised that issue in conjunction with the possibility that the jury be given a lesser-included-offense instruction for § 111(a) 's simple assault. After further deliberation, however, Mr. Jereb opted against seeking a lesser-included-offense instruction, and the jury was not given the option to convict Mr. Jereb of violating § 111(a) by committing "simple assault."
At sentencing, the district court calculated the base offense level for the § 111 conviction using United States Sentencing Guideline § 2A2.2 (the Guideline for aggravated assault) rather than § 2A2.4 (the Guideline for obstructing or impeding an officer), and Mr. Jereb was sentenced as a career offender under § 4B1.2, based on two prior convictions for Wyoming aggravated assault. See infra , n.12. The district court imposed a sentence of seventy-two months and ordered, over Mr. Jereb's objection, participation in a mental health treatment plan as a special condition of supervised release. On appeal, Mr. Jereb initially challenged the district court's application of the Sentencing Guidelines as well as the imposition of mental health treatment. In his reply brief, however, Mr. Jereb conceded that Beckles v. United States , --- U.S. ----,
II. DISCUSSION
Mr. Jereb contends that assault is an essential element of every § 111 conviction. Because the jury was not properly instructed as to the assault element-and because the jury verdict form shows the jury did not find that he committed an assault-he argues he is entitled to a new trial. Should his conviction stand, Mr. Jereb asks in the alternative that we reverse the district court's imposition of mental health treatment and remand for resentencing. The remainder of this opinion proceeds in two parts. We consider first the § 111 conviction. Because we find no reversible error, we proceed to consider the district court's imposition of mental health treatment as part of Mr. Jereb's sentence. Finding no reversible error there, either, we affirm the district court's judgment in full.
*1335A. The § 111 Conviction
A district court's decision to give or not give a particular jury instruction is reviewed for abuse of discretion; "however, we review the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law." United States v. Sharp ,
Mr. Jereb's argument for reversal focuses on the district court's interpretation of
Before we do that, however, we pause to address a question raised by the dissent: Does the invited error doctrine apply in this case at all? The dissent would hold that it does not, "because a defendant cannot invite error by providing a district court settled circuit law." Dissent at 1349 (citing United States v. Titties ,
We now turn to the district court proceedings to determine whether Mr. Jereb invited the error he seeks to challenge on appeal. Mr. Jereb proposed the following jury instruction regarding the § 111 charge:
The first element the government must prove beyond a reasonable doubt is that the defendant "forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with" a federal officer.
Although the indictment alleges the defendant "forcibly assaulted, resisted, opposed, impeded, intimidated, and interfered with" a federal officer, it is not necessary for the government to prove the defendant did all those things, that is, assaulted, resisted, opposed and so forth. It is sufficient if the government proves beyond a reasonable doubt that the defendant did any of those several alternatives as charged. You must, however, be unanimous in your finding of which act or acts has been proven. I will define for you the acts specified by the statute.
....
The phrase "forcibly oppose" means to resist by physical means.
....
Proposed Jury Instructions by Aaron Bradley Jereb, United States v. Jereb , No. 2:15-cr-00610-TC-1 (D. Utah), ECF No. 38.
THE COURT: ... We're meeting without the jury for a jury instruction conference. The attorneys are here. Mr. Jereb waived his right to be present. He will be here sometime around 8:00.
How I would propose that we proceed is I will say the number of the instruction, and if you have an objection, say objection, and we'll go off the record and try and work it out, and if not, put your objection on the record after I say finally what I'm going to do. If you don't have any objection, just don't say anything and I will just press on because the first ones are pretty much done....
....
THE COURT: ... Okay. Let's go off the record and talk about 18.
(Discussion off the record.)
*1337THE COURT: Let's go back on the record.
18 will read that to find Mr. Jereb guilty of this crime you must be convinced that, and let's put in that, that the government has proved each of the following elements beyond a reasonable doubt, that Mr. Jereb forcibly assaulted a federal officer or forcibly assaulted-where would I put it in really?
[PROSECUTOR:] Your Honor, what I would recommend-
THE COURT: Please.
[PROSECUTOR:]-is to simply follow the statute and that we state Mr. Jereb forcibly assaulted, resisted, opposed, impeded, intimidated or interfered with.
THE COURT: Okay.
[PROSECUTOR:] Your Honor, I also have a Tenth Circuit case, 2006, where the jury instruction read the defendant forcibly assaulted, resisted, opposed, impeded, intimidated or interfered with an officer in-
THE COURT: In other words, just follow the language of the statute. Does that work?
[DEFENSE COUNSEL:] I am fine with that.
THE COURT: Okay. Mr. Crapo, did you get that?
THE LAW CLERK: Yes. Forcibly assaulted and then adopt the slew of verbs that follow.
THE COURT: Resisted, opposed, impeded, intimidated or interfered with a federal officer, and then in our next couple of instructions we have to make clear that the resist, opposed, impeded are all modified with forcibly. Okay. 18 is taken care of.
App. App'x, Vol. III, at 643, 646-47 (emphasis added). But Instruction No. 18 was not taken care of. The government points to a second extended exchange recorded soon thereafter:
[DEFENSE COUNSEL:] Your Honor, at this point I am not sure if we want to discuss it, but as to the second element-the first element, we believe that the jury would have to make a unanimous finding as to which of those acts he committed.
THE COURT: Yes, and that is going to reflect-we probably need the jury instruction that says that as well as the verdict form. Okay.
[PROSECUTOR:] Your Honor, we take issue as to unanimity.
....
THE COURT: All right. What is your response, defense?
[DEFENSE COUNSEL:] Your Honor, I would just say, first of all, I think the plain language of the statute suggests that these are separate methods by which you could commit this crime . The title of the statute lists a couple of them and then the body of the statute lists a couple more. When I read them in a series like that and knowing that forcibly qualifies each of them, when I read it, I read them as you do, that they are separate offenses . If they are, if they are separate elements or distinguishable elements, I think the law requires that the jury be unanimous as to which element they find because it is an element of conviction.
It is a necessary element that they find one or the other, and I don't think this is the kind of case in which we have something like malice that is a general term that can be done in a bunch of different ways and the jury gets an instruction on ways it could make a finding as to one particular element. If we were talking about assault and the statute defined assault as all these different forms of conduct, I think the government would have a good point, but in this case it appears that Congress has *1338attempted to distinguish all the particular acts that could constitute this crime .
....
[PROSECUTOR:] ... The one thing I would add, Your Honor, is that the Kimes case in the Sixth Circuit talks about how having a unanimity instruction in 111 could make things actually more confusing for the jury rather than provide clarity to the jury. That was one of the reasons that they didn't think it was necessary in a 111 case.
[DEFENSE COUNSEL:] But when I think about that, you could have jurors back there, some of which who believe there is a resisting case, some of which believe there is an assault case, and he should not be convicted if there is a compromise or a split in terms of how they perceive the evidence. There should be unanimity in how they interpret the evidence and how he committed the crime, if he has .
Id. at 649, 652-54 (emphasis added).
The government argues these exchanges show Mr. Jereb taking a position below directly contrary to the position he now adopts on appeal. Mr. Jereb responds that the government is eliding its own complicity in misreading the statute and cherry-picking statements made by the defense counsel stripped from their proper context.
This case thus forces us to consider the scope of the invited error doctrine. We do not write on a blank slate. "The invited-error doctrine prevents a party who induces an erroneous ruling from being able to have it set aside on appeal." United States v. Morrison ,
Both parties cite United States v. LaHue , a case in which numerous defendants were tried together for conspiracy to violate the Medicare Antikickback Act and other related crimes.
On appeal those two defendants argued again that the variance between the indictment and the attorneys' acquittal substantially prejudiced their right to a fair trial.
LaHue tends to support the government's argument that the invited error doctrine applies here. Mr. Jereb asserts that LaHue is inapposite because he "did not argue that simple assault was not an essential element of the charge, nor did he propose any instruction that contradicts his position on appeal." Aplt. Reply Br. 10. But, as we have said, Mr. Jereb proposed an instruction stating that "it is not necessary for the government to prove the defendant ... assaulted , resisted, opposed and so forth. It is sufficient if the government proves beyond a reasonable doubt that the defendant did any of those several alternatives as charged." ECF No. 38 (emphasis added). This instruction "contradicts his position on appeal." Aplt. Reply Br. 10. The record further reflects that he meaningfully participated in crafting the jury instruction actually given at trial, which reflected the language Mr. Jereb sought.
Our opinions in Cornelius ,
Smith was decided first, and in an unpublished opinion a panel of this court rejected the government's invocation of the invited error doctrine. Smith ,
In Cornelius , a different panel saw the same facts in a different light. In that case, we found the same argument considered on the merits in Smith "fails ... under the invited error rule, because Cornelius waived his right to challenge the jury instruction on appeal by expressly endorsing it at trial." Cornelius ,
Cornelius , not Smith , is binding precedent, and the contrast between the holdings in the two cases demonstrates the robustness of our invited error doctrine. Nothing on the face of either opinion suggests defense counsel proposed or participated in the drafting of the original jury instruction. Rather, defense counsel (1) objected to a clarifying instruction from the court on the ground that the original jury instructions should be sufficient to guide the jury, and (2) replied in the negative when the judge asked whether the clarifying instruction contained a misstatement of the law or would in fact mislead the jury. Those actions were enough to convert the initial failure to object, a forfeiture that would be subject to plain error review, into an invited error that precludes appellate review. See Cornelius ,
The dissent would distinguish Cornelius on the ground that "the issue complained of on appeal was exactly the one that the defendant had expressly adopted in the district court," while Mr. Jereb, by contrast, "never adopted the position that assault is not an element of the other five methods of violating § 111(a)(1)." Dissent at 1351. But the dissent's use of a double negative to explain Mr. Jereb's position reflects the same rhetorical move taken in Smith , see
Other Tenth Circuit cases also support our conclusion that the invited error doctrine applies in cases such as this one, where the defendant requested the jury instruction he later challenges on appeal. In United States v. Sturm , we considered a challenge to the district court's jury instruction that "the mere act of observing child pornography, without possession or receipt, is not illegal."
B. The Imposition of Mental Health Treatment
"When the defendant objects to a special condition of supervised release at the time it is announced, this Court reviews for abuse of discretion." United States v. Bear ,
District courts enjoy broad discretion to order special conditions of supervised release, including mandatory mental health treatment. See
• the nature and circumstances of the offense and the history and characteristics of the defendant, seeid. § 3553(a)(1);
• the need to afford adequate deterrence to criminal conduct, seeid. § 3553(a)(2)(B);
• the need to protect the public from further crimes of the defendant, seeid. § 3553(a)(2)(C); and
• the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, seeid. § 3553(a)(2)(D).
See United States v. Barajas ,
Our analysis will proceed as follows: First, we consider the district court's explanation for imposing mental health treatment as a special condition of supervised release and its related findings. Second, we examine whether imposing mental health treatment is reasonably related to any of the § 3553(a) factors enumerated above. See
1. Did the district court adequately explain its reasons for imposing mental health treatment such that this court can conduct a proper review?
The district court must "provide at least generalized reasons for imposing special *1343conditions of supervised release." Martinez-Torres ,
Upon Mr. Jereb's objection at sentencing, the district court explained its reasoning for requiring mental health treatment:
I'm going to put that still as a condition. Mr. Jereb is very stoic. Something has caused Mr. Jereb to go off the rail at times. I think it's not just drugs. I think there is something underlying. I don't know whether it's in the fact that-I don't know what. I'm not a psychologist. But I think that you could benefit. And if your probation officer doesn't think you need it, he won't or she won't advise it.
App. App'x, Vol. III, at 95-96. On appeal Mr. Jereb zeroes in on this explanation in response to his objection and argues that it is insufficient. Stoicism, he says, is consistent with judicial expectations of courtroom decorum, and so the district court's explanation is unsatisfying. Taken in isolation the above-quoted explanation in response to Mr. Jereb's objection probably would not allow for meaningful appellate review. See Martinez-Torres ,
Mr. Jereb oversteps, however, because the above-quoted passage was not the only explanation given by the district court. Earlier in the sentencing hearing, the district court had the following exchange with the prosecutor:
[PROSECUTOR:] ... [S]omething of great concern to us is the PSR paragraph 68 that he has no desire for treatment.
THE COURT: I know. Despite your wishes, Mr. Jereb, I'm going to recommend treatment. You are free to refuse it. But I think you do need it. But you are the controlling person. I know [the Bureau of Prison's Residential Drug Abuse Program] isn't going to take you if you don't want to go. I certainly think that might help.
[PROSECUTOR:] That plays into another concern of ours, which we actually think the Court can take this into consideration for a departure as well, but, again, it raises a heightened concern to us is PSR paragraph 6[8], he doesn't feel he needs mental health treatment. Counsel again has referred to diminished capacity. I think it would be extremely important for him to get a psychiatric evaluation, psychological, psychiatric evaluation, neuropsychological evaluation. His history, especially I think he started out in juvenile court or some type of juvenile offender thing at 13, and I believe he was raised by his grandparents.
THE COURT: Here's a question and I'm going to ask it. I won't be asking Mr. Jereb, but I'm going to ask [defense counsel]. He said he had loving grandparents and no problems. Yet here he is, early on, going off the rails.
[PROSECUTOR:] That's what brings me back to the question of his mental health.
This has been a case that we have agonized over, Your Honor. We want to be fair. We want to be appropriate in our recommendations.
....
THE COURT: ... I think you would benefit and I think society would benefit if you could get out of this enjoying drugs and going on your binges. And I think mental health counseling is also an important consideration. You lose your temper, and that's exacerbated when you have been using drugs.
*1344App. App'x, Vol. III, at 75-76, 92-93. The court then ordered Mr. Jereb to "[p]articipate in a mental health treatment program under a co-payment plan" and "[t]ake any medications that are prescribed for mental health" as part of his sentence. Id. at 94. Together with the district court's response to Mr. Jereb's objection, these excerpts of the sentencing transcript relay the full extent of the district court's explanation for imposing mental health counseling. Mr. Jereb says it is not enough. He asserts the district court "did not connect the dots between the special condition of mental health treatment and any of the factors identified in § 3583(d)." Aplt. Br. at 40. That much is true. The district court did not connect the special condition of mental health treatment to the § 3583(d) factors, at least not explicitly.
Still, it is possible to glean the factors the district court considered from careful examination of the record. In response to the government's recommendation that Mr. Jereb receive a mental health evaluation, the district court acknowledged that Mr. Jereb was "going off the rails" "early on" in his life. Considering that comment, together with the district court's observation of Mr. Jereb's demeanor in the courtroom (his stoicism), we can infer the district court believed mental health counseling was reasonably related to Mr. Jereb's "history and characteristics." See
We can also infer the district court believed mental health treatment was reasonably related to protecting the public. See App. App'x, Vol. III, at 92-93 ("I think you would benefit and I think society would benefit if you could get out of this enjoying drugs and going on your binges. And I think mental health counseling is also an important consideration. You lose your temper, and that's exacerbated when you have been using drugs."). In finding Mr. Jereb's tendency to lose his temper is "exacerbated" by his drug use, the district court signaled that it viewed Mr. Jereb's temper as a problem distinct from his drug habit and thus something that mental health counseling could potentially address.
Other record sources provide further context for the district court's comments at the sentencing hearing. The Presentence Investigative Report ("PSR") details Mr. Jereb's history of violent behavior,
Although the record could be clearer, we conclude the district court provided an adequate explanation of "generalized reasons" sufficient to enable us to conduct a proper review. The transcript of the sentencing hearing shows the district court considered Mr. Jereb's temperament in court, his upbringing, his proclivity for losing his temper, and his propensity for going "off the rails," when choosing to make mental health treatment a condition of supervised release. We see little merit in remanding for the purpose of explicitly "connect[ing] the dots," Aplt. Br. at 40, between mental health treatment and the § 3583(d) factors, when the district court has already said enough to enable us to conduct that elementary task. See United States v. Hahn ,
2. Is the imposition of mental health treatment reasonably related to at least one of the statutory factors?
On appeal, the government does not argue mental health treatment is reasonably related to either deterrence,
The government argues mental health treatment is reasonably related to Mr. Jereb's history and characteristics as well as the § 111 offense for which he was convicted. For his part, Mr. Jereb takes umbrage with the government's suggestion that "there is often a link between mental illness and violent conduct," calling it an inflammatory assertion devoid of any support.
And there is evidence aplenty in the record establishing Mr. Jereb's history of violent criminal behavior. See supra , n.12. Although not needed under Barajas , the record also supports the district court's finding of something amiss in Mr. Jereb's mental state. At trial, Officer Schiedel testified that Mr. Jereb's behavior leading up to the fight was unusual, marked by "wild eyed" stares and unexplained silences.
In arguing the district court abused its discretion, Mr. Jereb relies principally on United States v. Majors , an unpublished opinion in which we reversed the imposition of mental health treatment as a condition of supervised release where there was no evidence that the defendant was in need of such treatment. See
We hold that the district court did not abuse its discretion in finding mental health treatment reasonably related to the nature and circumstances of the offense as well as Mr. Jereb's history and characteristics. Because mental health treatment is reasonably related to
*
We affirm the imposition of mental health treatment as a special condition of supervised release. The district court provided an explanation adequate for this court to conduct a proper review. Upon conducting that review, we conclude the district court did not abuse its discretion in finding mental health treatment reasonably *1347related to Mr. Jereb's history and characteristics as well as the circumstances of the offense.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Jereb's conviction and sentence.
Officer Schiedel's last name is spelled inconsistently in the record, including at times in the trial transcript. At trial he testified that it is spelled "Schiedel." In this opinion, we use the correct spelling when quoting from record materials, without noting the alteration in each instance.
From the Presentence Investigation Report, we gather that Mr. Jereb's motorcycle was impounded after he was arrested in Utah about three weeks prior. On September 23, Mr. Jereb was riding a motorcycle in Wyoming when he was stopped by a Wyoming Highway Patrol officer. While the officer was checking Mr. Jereb's license information, Mr. Jereb allegedly fled the scene, leading officers on an interstate chase that reached speeds as high as 114 miles per hour. He eventually submitted to a traffic stop in Utah, where he was arrested and taken into custody. Mr. Jereb was extradited to Wyoming on October 6 and released on bond on October 7.
Ms. Haanpaa testified that both she and Mr. Jereb had accelerated their drug use since September 8, when Ms. Haanpaa's ovaries were unexpectedly removed during surgery. The couple had planned on getting married and starting a family, and they "both kind of just lost it after that." App. App'x, Vol. III, at 689. In the period between September 8 and October 15, she and Mr. Jereb "started doing ... all of the drugs that we could get our hands on basically. If meth came around, we did it."
Mr. Jereb did not testify.
Officer Schiedel also testified about Livo's injuries, which he described as "minor." App. App'x, Vol. III, at 428. On Officer Schiedel's account, Livo had "very small wounds around the neck area, scruff all the way down his shoulders consistent with the stick hits from the small sticks that Mr. Jereb picked up off the ground." Id. He didn't notice any deformity or injury to Livo's eye, and Officer Schiedel "[d]idn't get him assessed any more than I got myself assessed." Id.
Notably, Mr. Jereb concurs that the law was clear and obvious at the time of his trial. See, e.g. , Aplt. Br. at 22 ("At the time of Mr. Jereb's trial, the circuit authority was directly on-point, and the statute was equally clear. Assault is an essential element of any § 111 crime."); Aplt. Reply Br. at 5 ("The decision in Wolfname did not change the law of the circuit, but rather made explicit what was implicit."). The dissent is "taken aback" by Mr. Jereb's concessions. Dissent at 1349 n.3. It speculates that his counsel might mistakenly believe that "to prevail he must show that the error was plain at the time of trial," rather than at the time of our decision on appeal. Id. It seems more plausible to us that Mr. Jereb's counsel simply felt bound by Wolfname 's gloss on Hathaway , as do we.
Neither party included Mr. Jereb's proposed jury instructions in the appellate record. Because they are material to whether he invited error, we sua sponte supplement the appellate record to include them. See Fed. R. App. P. 10(e)(2)(C) ; United States v. Polly ,
In order to fairly consider Mr. Jereb's assertion of cherry-picking, we have quoted at some length from the trial transcript. The defense counsel statements quoted in the government's answer brief are in bold.
Mr. Cornelius's counsel expressly adopted the objections and positions stated by Mr. Smith's counsel. See United States v. Cornelius ,
The dissent would distinguish Sturm because, in that case, "the issue of 'receives' and 'receipt' was apparent, not hidden in a jumbled statute like
Mr. Jereb does not argue mental health treatment imposes a greater deprivation of liberty than is reasonably necessary for the purposes of deterrence, protecting the public, and/or rehabilitation. Therefore, we do not address whether the district court abused its discretion under
According to the Presentence Investigation Report ("PSR"), in 1998, when Mr. Jereb was sixteen years old, he was arrested for, charged as an adult, and later convicted of felony aggravated assault. Mr. Jereb drove his truck through a crowd of people, striking six of them and completely running over a female victim. Mr. Jereb continued forward and slammed into another truck containing four individuals.
In 2005, when Mr. Jereb was twenty-three years old, he was again arrested for and later convicted of felony aggravated assault. This time Mr. Jereb, drinking with his victim at a bar, continually asked the victim to go outside and fight him. After the victim obliged and Mr. Jereb and the victim stepped outside, Mr. Jereb hit the victim. After a witness told them to stop fighting, Mr. Jereb, the victim, and the witness got into a vehicle and drove to a remote location to continue the fight. Mr. Jereb then stabbed his victim. The victim tried to run away but fell, at which time Mr. Jereb climbed on top of him and stabbed him again in the chest. The victim and Mr. Jereb continued to fight and the victim was stabbed again in the stomach. The victim managed to get the knife away from Mr. Jereb and pinned him down. Officers then arrived at the scene, and the victim stated that during the assault Mr. Jereb told him, "die mother fucker."
In 2006, when Mr. Jereb was twenty-four years old and incarcerated, he was convicted of simple assault and battery after correctional officers witnessed him throwing punches at another inmate's face.
Mr. Jereb notes the government's "inflammatory" argument was not raised at sentencing, but he advances no argument as to why that is relevant. As always, we are free to affirm on any ground adequately supported by the record. See Tooele Cty. v. United States ,
At the sentencing hearing, the district court repeatedly stated that it found Officer Schiedel to be a credible witness.