U.S. v. Kent

• Citation: 209 F.3d 1073
• Decision Date: 18 February 2000
• Docket Number: Nos. 99-2004,99-2009,s. 99-2004
• Parties: (8th Cir. 2000) United States of America, Plaintiff-Appellee, v. Eugene P. Kent, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1073

209 F.3d 1073 (8th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Eugene P. Kent, Defendant-Appellant.

Nos. 99-2004, 99-2009

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: Feb. 18, 2000

Filed: April 19, 2000

Appeals from the United States District Court for the District of South Dakota

Before McMILLIAN, LAY, and FAGG, Circuit Judges.

LAY, Circuit Judge.

Eugene P. Kent appeals the district court's inclusion of a special condition to his three-year period of supervised release on the grounds that the condition was an abuse of discretion by the district court. Kent also urges that the district court improperly delegated his probation officer the authority to determine whether he must participate in a psychological or psychiatric counseling program. We reverse.

I. BACKGROUND

On February 24, 1997, Kent was sentenced to twenty-seven months plus three years supervised release after being found guilty of two counts of mail fraud in violation of 18 U.S.C. 1341. On May 18, 1998, Kent pleaded guilty to one count of attempting to cause a financial institution not to file a report required by 31 U.S.C. 5313 in violation of 31 U.S.C. 5324(a)(1). He was sentenced to five months incarceration to be served concurrently with his prior sentence of twenty-seven months, as well as a concurrent three-year term of supervised release. On March 23, 1999, the district court, upon motion of the government, filed an amended judgment adding two special conditions to Kent's supervised release. Specifically, the court ordered: (1) Kent shall have no contact, in person or otherwise, with his wife, Marijo Kent, unless Kent's probation officer approved such contact in advance and in writing; and (2) Kent "shall participate in an appropriate psychological/psychiatric counseling program as directed by his probation officer." (Am. J. at 3.1.) In this appeal, Kent challenges only the second special condition.¹

At the hearing on the government's motion on March 15, 1999, Marijo testified she suffered physical, mental, and emotional abuse at the hands of Kent. She explained that she was fearful of Kent's anger upon his release from prison. She also informed the court that she had initiated divorce proceedings in January of 1998, but cancelled the court date two weeks later due to pressure from her children. The dissolution action was still pending at the time of the hearing, however. On cross-examination, counsel for Kent asked Marijo if she knew that South Dakota Statute 25-4-33.1 provides that, upon filing for divorce, a temporary restraining order issues immediately. against both parties. Marijo expressed familiarity with the restraining order provision.² When asked whether Kent had disturbed her peace since filing, she recalled one 45- minute phone conversation occurring the month prior to the hearing. When asked on redirect examination whether she thought Kent was being abusive during the conversation, Marijo responded: "I don't know if you can term it abusive. It's just that he wears me down. He wears me out." (Tr. at 29.)

Marijo also specifically admitted that Kent had not physically abused or threatened her with abuse since 1986 at the latest. Upon being asked to recount instances of sexual abuse "in recent years," she alleged that Kent forced her to watch pornographic films against her will and awoke her in the middle of the night with sexual contact. The phrase "recent years" was not defined for the court other than to mean some time subsequent to 1985. Finally, Marijo conceded on cross-examination that Kent had not attempted to threaten, physically abuse, or inappropriately contact her since his release from prison a couple weeks earlier.

The government then called Connie Dawson, a mental health counselor at Children's Inn, a shelter where Marijo had spent some time. Dawson testified to her experiences with Marijo during counseling. Thereafter, the government called Krista Heeren-Graber, the operations director of Children's Inn, to testify about the general characteristics of abusers and their victims. Neither Dawson nor Heeren-Graber are psychiatrists or psychologists, and neither have met Kent or investigated Marijo's claims of abuse. The government provided no other testimony at the hearing.

In granting the government's motion, the court recognized that while Kent probably did not present a danger to anyone other than Marijo, the temporary restraining order was insufficient to address all of the court's concerns. Therefore, "to afford deterrence to any potential criminal conduct on the part of [Kent]," (Tr. at 65), the court imposed the two special conditions. With regard to the psychiatric counseling requirement, the court clarified that the condition did not require Kent to undergo treatment immediately. The court explained: "I'm not ordering him into anything right now. I'm just saying if, during the course of supervised release it becomes necessary, then it will happen. And I'm not going to make the determination. The probation officer will." (Tr. at 67.) When asked whether Kent could move the court for reconsideration if he disagreed with the probation officer's determination, the court responded: "I don't hope to be riding herd on such questions, but if necessary, I will. But remember, the probation officer is my personal staff and I have confidence in them." (Id.)

II. DISCUSSION

A. Standard of Review

District courts are normally afforded wide discretion in imposing terms of supervised release. See United States v. Behler, 187 F.3d 772, 778 (8th Cir. 1999). Thus, this court reviews the district court's imposition of special conditions for an abuse of discretion. See United States v. Cooper, 171 F.3d 582, 585 (8th Cir. 1999).

B. Sentencing Factors Under 18 U.S.C. 3553(a)

Kent argues that the district court's special condition does not comport with the standards set out by Congress and the United States Sentencing Commission (Commission). In imposing a sentence, a court shall consider: (1) the nature and circumstances of the offense and the defendant's history and characteristics; and (2) the need for the sentence to (A) 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. See 18 U.S.C. 3553(a)(1), (2)(A)-(D) (1998). These factors are equally applicable considerations in the imposition of a term of supervised release under 18 U.S.C. 3583(c), which expressly adopts each of the above-stated factors with the exception of (2)(A). Section 5D1.3(b) of the United States Sentencing Guidelines Manual (U.S.S.G.), which also addresses conditions of supervised release, mirrors 3583(c)'s adoption of 3553(a).³ Furthermore, 5D1.3(b) directs that the imposed conditions should not deprive the party of his or her liberty any more than is reasonably necessary to fulfill the purposes of Congress and the Commission. See U.S. SENTENCING GUIDELINES MANUAL 5D1.3(b) (1998). Finally, in order to impose the special condition of participation in a mental health program, the court must have reason to believe the party is in need of such treatment. See U.S. SENTENCING GUIDELINES MANUAL 5D1.3(d)(5) (1998).

In United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), the defendant pleaded guilty to state counts of theft by deception and federal counts of devising a scheme to sell fraudulent promissory notes over phone lines in violation of 18 U.S.C. 1343. The court added special conditions to Prendergast's supervised release requiring him to abstain from using alcohol and other controlled substances and forcing him to submit to random drug testing and warrantless searches to determine the presence of alcoholic beverages or controlled substances. This court concluded that the special conditions had no reasonable relationship to the goals of rehabilitation and protection. No evidence existed suggesting that the defendant suffered from alcoholism or that the use of alcohol in any way contributed to the offense at issue, and the court never made specific findings of such. Hence, this court held the district court abused its discretion in imposing the condition. In United States v. Bass, 121 F.3d 1218 (8th Cir. 1997), two defendants were found guilty of conspiring to distribute and possess with intent to distribute crack cocaine. One of the defendants challenged the court's special conditions of supervised release barring his possession and use of alcohol and subjecting him to testing and warrantless searches. In justifying the special condition, the lower court reasoned that the defendant might substitute alcohol dependency for his drug dependency. Similar to the situation in Prendergast, however, there was no evidence to suggest that the defendant abused alcohol or that alcohol played a role in the crime at hand. This court rejected the lower court's assumption that the defendant would substitute one controlled substance for another and found that the imposed conditions were not reasonably related to the defendant's rehabilitation and the protection of the public.

The government concedes that the special condition of mental health treatment is unrelated to the nature of Kent's offenses; however, it argues that the condition is consistent with the goals of rehabilitation and protection as found in Prendergast. The government cites Cooper, 171 F.3d 582, as support for the psychiatric counseling condition. In Cooper, the defendant pleaded guilty to unlawfully transporting explosive materials. Among the eight special conditions of his supervised release was a requirement that the defendant undergo mental health counseling. The lower court imposed this condition after hearing testimony that the defendant physically abused his wife and children,...