United States v. Nancy Ruth Iversen

___________
Nos. 95-2631, 95-2650, and 95-3869
___________
United States of America, *
*
Plaintiff-Appellee/ *
Cross-Appellant, *
* Appeals from the United States
v. * District Court for the
* District of South Dakota.
Nancy Ruth Iversen, *
*
Defendant-Appellant/ *
Cross-Appellee. *
___________
Submitted: June 11, 1996
Filed: July 25, 1996
___________
Before BOWMAN, LAY, and LOKEN, Circuit Judges.
___________
LAY, Circuit Judge.
Background
Nancy Ruth Iversen, a fee collection officer for the Badlands
National Park Service, was found guilty of theft and embezzlement of public
monies in violation of 18 U.S.C. § 641. The evidence at trial showed
Iversen took money she had collected as fees and later paid in cash for her
law school tuition. Iversen claimed the money was taken by a robber. The
district court, the Honorable Lawrence L. Piersol, sentenced Iversen to
four years probation, a $1,000 fine, a $50 special assessment, and
$9,695.50 in restitution to the Badlands National Park Service. The
district court denied the government's request for a two-level enhancement
for obstruction of justice.1 As special conditions of probation, the court
placed
1
Under the Sentencing Guidelines, her offense level was eight
and she had no criminal history. Her guidelines sentence was thus
zero to six months imprisonment and two to three years supervised
release--within Zone A of the Sentencing Table.
Iversen in home deten
and at the direction of the probation officer, the defendant shall undergo
Less than three weeks after sentencing, Iversen was issued a citation
her with shoplifting at a grocery store. The probation officer
directed Iversen to report to the U.S. Probation Office in Rapid
South Dakota on September 5, 1995, for placement in a communit
corrections facility for formal psychological evaluation. Iversen failed
appear in Rapid City and later notified the district court she had move
to r
probation due to her shoplifting offense, her failure to appear as directed
Rapid City, and her departure to Michigan without permission. The cour
revoked her probation, sentencing her to six months imprisonment and three
supervised release, the maximum penalty available for Iversen'
underlying theft and embezzlement offense.
fines and restitution imposed in the court's initial judgment.
In No. 95-2631, Iversen appeals her
probation. In No. 95-2650, the government cross-appeals Iversen'
sentence. r
probation. We have consolidated the appeals and affirm the district court.
Iversen contends her trial counsel was not effective because h
failed t f
Iversen's preserve Iversen's rights to
a speedy trial. We decline to address Iversen's
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ineffective assistance claim on direct appeal because no factual record has
been developed on her claims. Thus, we dismiss this claim without
prejudice to Iversen's right to bring a motion for relief under 28 U.S.C.
§ 2255. See United States v. Petty, 1 F.3d 695, 695-96 (8th Cir. 1993).
Government Agent at Counsel Table
Iversen contends she was prejudiced by the testimony of a government
agent who sat at the U.S. Attorney's counsel table and consulted with the
U.S. Attorney during the trial. Iversen asserts the district court would
have disallowed this testimony, or excluded the agent from the court during
the trial, if the court had known of the agent's allegedly false testimony
before the grand jury and an alleged incident of hostility by the U.S.
Attorney toward Iversen's brother during the trial. On the current record,
we find no abuse of discretion in the district court's decision to allow
the testimony and the agent's presence at the counsel table during the
trial. See Fed. R. Evid. 615(2); United States v. Sykes, 977 F.2d 1242,
1245 (8th Cir. 1992).2
Perjury
The government cross-appeals the district court's refusal to enhance
Iversen's sentence for obstruction of justice under the Sentencing
Guidelines. The government argues Iversen committed perjury by testifying
she had been robbed at the ranger station. Both the jury and the judge
rejected her testimony. Thus, the government urges, Iversen's sentence was
required to be enhanced. See U.S.S.G. § 3C1.1 & cmt. (n.3(b)) (Nov. 1994)
(obstruction of justice includes perjury by defendant). On the other hand,
Iversen
2
To the extent Iversen believes her trial counsel waived
certain arguments by failing to develop the record below, her
ability to bring that claim in a motion under 28 U.S.C. § 2255 is
not prejudiced by our decision.
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argues the district court's refusal to find perjury, under th
preponderance s
under the Sentencing
convict h h
parties' arguments.
3C1.1 provides: "This provision
is not intended to punish a defendant for the ex
right. . . e
testim or statements by the defendant, such testimony or statements
the defendant." U.S.S.G.
§ 3C1.1, cmt. (n.1). As this court has explaine
be t
could find the testimony true.'" v. Patel, 32 F.3d 340, 345
United States v. Willis, 940 F.2d 1136, 1140 (8th
1991), , 507 U.S. 971 (1993)). The district court
e standards and found that although neither the jury
nor ourt believed Iversen in this case, a reasonable trier of fact
have believed her testimony. Sent. Tr. at 10. Furthermore, the
Court has emphasized the enhancement should be applied only when
district court has made a "separate and clear finding" as to each
t of perjury, i.e., that the defendant "gives false testimon
concerning e
testimony, rather than as a result of confusion, mistake or faulty memory."
States v. Dunnigan See also d
Stat v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir. 1992) (per curiam
(enhancement proper when district court makes
based s
testimony" cert. denied, 507
district court made no such findings
required.
We also reject Iversen's contention that the district court's
failure to find perjury entitles her to judgment as a matter of law. The
fact that a reasonable trier of fact could have believed Iversen's
testimony does not mean that other reasonable triers of fact, including the
jury and the judge in this case, were not free to disbelieve her. Further,
as Dunnigan makes clear, there are a number of reasons a trial court could
decline to impose the enhancement on a defendant whom the court nonetheless
disbelieves. Thus, we find the evidence is sufficient such that a
reasonable jury could disbelieve Iversen, and convict her, but does not
mandate the imposition of an enhancement for obstruction of justice under
the Sentencing Guidelines.
Conditions of Probation
Iversen argues the district court erred by imposing home detention
and by authorizing psychiatric or psychological treatment as special
conditions of her probation. Iversen did not object to these conditions
at the time of sentencing and thus we review for plain error or miscarriage
of justice. See United States v. Marsanico, 61 F.3d 666, 668 (8th Cir.
1995).
We find the imposition of home detention as a condition of probation
was not plain error. Contrary to Iversen's contentions, home detention is
expressly authorized for offenses within Zone A of the Sentencing Table by
the guidelines commentary. See U.S.S.G. § 5B1.1, cmt. (n.1(a)) ("Where the
applicable guideline range is in Zone A of the Sentencing Table . . . a
condition requiring a period of community confinement, home detention, or
intermittent confinement may be imposed but is not required." (emphasis
omitted)).3 Further, the fact that home detention may be imposed
3
Iversen argues that sentences for offenses within Zone A of
the Sentencing Table may not include home detention because
U.S.S.G. § 5B1.1(a)(2) provides for sentences of probation
including home detention only for Zone B offenses. Iversen
misreads this provision of the guidelines.
First, § 5B1.1(a)(1) authorizes sentences of probation for
Zone A offenses; it is silent as to whether home detention may be
a condition of probation for Zone A offenses. As we have noted,
however, Application Note 1 expressly provides for home detention
as a condition of probation for Zone A offenses. See U.S.S.G.
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"only as for imprisonment[,]" U.S.S.G. § 5F1.2 (emphasis
adde see also (providing for home detention
"only as an alternative to incarceration"),
is a form of ment which cannot be coupled with probation under 18
U.S.C. 3561(a)(3). Cf. Reno v. Koray, 115 S. Ct. 2021, 2025 (1995
(admission n
within meaning of 18 U.S.C. § 3585(b)); United States v. Blumberg d
787, 792 (8th Cir. 19
within the meaning of 18 U.S.C.
in the imposition of home detention as a condition of Iversen's probation.
he district court's order giving
prob officers the authority to order psychiatric or psychological
ent as a special condition of probation. Iversen argues thi
condition e
and "the history and characteristics of
the defendant" under U.S.S.G. § 5B1.3(b)(1), nor
in acc e
Reform Act
in the Sentencing Guidelines are binding unless contradicted by the
See
v. United States, 508 U.S. 36, 37-38 (1993).
sentences of probation for Zone B offenses only if the probatio
includes home detention, community confinement, or intermitten
confinement. This provision requires eration
for t
whether sentences of probation
include home detention.
4
April 1996 amendment, this provision appeared at
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of 1984, 18 U.S.C. §§ 4241-47. We disagree.
The presentence report (PSR) said Iversen's family and friends had
expressed concerns as to the "emotional toll" on Iversen from various legal
disputes, including this prosecution, and Iversen is reported as saying
that the conviction felt "like the end of her life as she knows it." PSR
at 7. Furthermore, the procedural requirements of the Insanity Defense
Reform Act on which Iversen relies--such as the requirement of a hearing
under 18 U.S.C. § 4244(a) as to the present mental condition of a convicted
defendant if "there is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect for the treatment
of which he is in need of custody for care or treatment in a suitable
facility"--apply to convicted persons committed to the custody of the
Bureau of Prisons, not persons placed on probation. See, e.g., 18 U.S.C.
§ 4244(d) (court may order defendant's hospitalization "in lieu of being
sentenced to imprisonment"). Conditions of probation are governed by 18
U.S.C. § 3563, which expressly authorizes "medical, psychiatric, or
psychological treatment" as a condition of probation if the "deprivations
of liberty or property" involved in such condition are "reasonably
necessary" to protect the public from future crimes by the defendant or to
provide the defendant with needed medical care. See 18 U.S.C.
§ 3563(b)(9);5 see also U.S.S.G. § 5B1.4(b)(24) ("If the court has reason
to believe that the defendant is in need of psychological or psychiatric
treatment, it is recommended that the court impose a condition requiring
that the defendant participate in a mental health program approved by the
United States Probation Office."). It was not plain error for the district
court to find that the deprivations of liberty involved in psychological
treatment, ordered at the probation officer's discretion, were reasonably
necessary to protect the public and to provide Iversen with needed medical
treatment under the
5
Prior to an April 1996 amendment, this provision appeared at
18 U.S.C. § 3563(b)(10).
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circumstances of this case.
Revocation of Probation
Iversen contends the district court erred by revoking her probation
and by sentencing her to six months imprisonment upon the revocation of her
probation. Iversen first argues that her sentence of probation could not
be revoked, and that the district court lacked jurisdiction to revoke her
probation, because the sentence of probation was illegal in the first
place. Having already found that Iversen was properly sentenced to
probation, including home detention, we reject this argument.
Second, Iversen argues that the evidence on which the district court
relied in revoking her probation was uncorroborated and unreliable and that
the failure of the prosecution to produce the video tape of her shoplifting
offense effectively denied her the opportunity to challenge evidence
presented against her. We reject this argument. Iversen admitted
violating her probation by failing to appear for psychological evaluation
in Rapid City, as directed by the probation officer, and by moving to
Michigan without first obtaining the probation officer's approval. If
Iversen thought the probation officer's directive that she appear for
psychological evaluation violated her rights, as she now contends, it was
incumbent upon Iversen to seek judicial relief from that order rather than
flee from the probation officer's authority. Furthermore, a security
official from the grocery store testified in detail about Iversen's
shoplifting. Iversen's counsel had the opportunity to cross-examine this
witness. We find that Iversen's rights to defend herself were protected
in this process and that the evidence is more than sufficient to establish
Iversen's violations of her probation.
Third, Iversen contends she should have received credit from the
district court for the three months she spent in home
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detention. We find, however, that the district court did not have the
authority under 18 U.S.C. § 3585(b) to credit Iversen for the time spent
in home detention for the prior sentence, and that this claim should have
been presented first to the Bureau of Prisons. See United States v.
Wilson, 503 U.S. 329, 333-34 (1992); United States v. Moore, 978 F.2d 1029,
1031 (8th Cir. 1992).
Fourth, Iversen contends that the maximum sentence for imprisonment
she could receive upon violating the terms of her probation was three
months imprisonment. Iversen's theory is that at the time of initial
sentencing, she could not have been sentenced to six months imprisonment
and three months home detention, and thus her sentence upon the revocation
of probation exceeds the maximum available at the time of initial
sentencing.
It appears to be true that at the original sentencing, if the
district court had decided to impose a period of incarceration as well as
three months home detention as a condition of supervised release, Iversen's
term of imprisonment would have been limited to three months. Cf. U.S.S.G.
§ 5C1.1(c)(2), (e) (calculating length of imprisonment term when home
detention is a condition of supervised release for Zone B offenses).
Nonetheless, after revoking Iversen's probation, the district court was
required to "resentence the defendant under subchapter A." See 18 U.S.C.
§ 3565(a)(2). Subchapter A, inter alia, generally requires the court to
sentence defendants in accordance with the Sentencing Guidelines. See 18
U.S.C. § 3553(b); United States v. Von Washington, 915 F.2d 390, 391 (8th
Cir. 1990) (per curiam). Chapter 7 of the Sentencing Guidelines states
that a court may "revoke probation and impose any other sentence that
initially could have been imposed." U.S.S.G. ch. 7, pt. A(2)(a).6
6
This statement is similar to an earlier statute governing
revocation of probations which empowered the district court to
"revoke the sentence of probation and impose any other sentence
that was available under subchapter A at the time of the initial
sentencing." See, e.g., 18 U.S.C. § 3565(a)(2) (1988). This
statute was amended in 1994 and now provides district courts with
the power to "revoke the sentence of probation and resentence the
defendant under subchapter A." See 18 U.S.C.A. § 3565(a)(2) (West
Supp. 1996). We agree with other courts which have recognized that
the amendment does not alter the district court's power to sentence
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Applying
a probation violator within the range of sentences available at the
time of the initial sentence. See, e.g., United States v.
Plunkett, 74 F.3d 938, 940 (9th Cir. 1996).
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this principle to this case, we find that the sentence imposed after
Iversen violated her probation--six months imprisonment plus three years
supervised release--was within the range of sentences available at the time
of initial sentencing. The fact that she had already served three months
home detention as a condition of probation did not limit the maximum
sentence available to the district court in sentencing Iversen after
revocation of her probation. Cf. U.S.S.G. § 7B1.5(a), p.s. ("Upon
revocation of probation, no credit shall be given (toward any sentence of
imprisonment imposed) for any portion of the term of probation served prior
to revocation.").
Finally, Iversen argues the district court denied her right of
allocution at the time of sentencing upon revocation of her probation. See
Green v. United States, 365 U.S. 301 (1961); United States v. Walker, 896
F.2d 295, 300-01 (8th Cir. 1990); Fed. R. Crim. P. 32(c)(3)(C) (1995); see
also Hill v. United States, 368 U.S. 424, 428 (1962) (no constitutional
right to be advised by district court of right to speak). Whether Rule
32's right of allocution applies to sentencing upon the revocation of
probation is an unsettled question in this circuit. See generally United
States v. Carper, 24 F.3d 1157, 1158-62 (9th Cir. 1994) (discussing
conflicting authorities on the right of allocution after revocation of
probation or supervised release). Nonetheless, assuming Iversen had a
right of allocution at sentencing upon revocation of her probation, we find
that her right was satisfied. Iversen had previously been informed of her
right of allocution. At the sentencing hearing after the revocation of her
probation, the district court asked Iversen's counsel if she had any
evidence to
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present. Iversen testified extensively about the alleged violations of her
probation, her preference for imprisonment in lieu of continuing probation,
and her belief that the district court lacked jurisdiction to revoke her
probation. Sent. Tr. 17-46. Following this testimony, the district court
asked if "the defense" knew of any reason why a sentence should not be
imposed. Id. at 51. The district court was given and read an unsigned
five-page document entitled "Defendant's Written Statement For Supplemental
Report Concerning Violations of Probation" apparently written by Iversen.
Id. at 51-52. The district court did not prevent, harass, or hurry any
effort on the part of Iversen or her counsel to speak. Iversen's views on
sentencing were fully known. Although the district court should have made
clear that it was asking Iversen personally if she had anything further to
say on her own behalf or in mitigation of her sentence, we think it is
clear from the course of the hearing that Iversen "knew [she] had a right
to speak on any subject of [her] choosing prior to the imposition of
sentence[,]" and actually availed herself of that right. See United States
v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). Under the unique
circumstances of this case, we find that Iversen's right of allocution was
satisfied.
Iversen raises other arguments which we find to be without merit.
For the foregoing reasons, the judgments are AFFIRMED.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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