380 F.3d 329 (8th Cir. 2004), 03-4075, United States v. Davies

Docket Nº:03-4075.
Citation:380 F.3d 329
Party Name:UNITED STATES of America, Plaintiff--Appellee, v. John A. DAVIES, Defendant--Appellant.
Case Date:August 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 329

380 F.3d 329 (8th Cir. 2004)

UNITED STATES of America, Plaintiff--Appellee,

v.

John A. DAVIES, Defendant--Appellant.

No. 03-4075.

United States Court of Appeals, Eighth Circuit

August 16, 2004

Submitted: June 15, 2004.

Page 330

Virginia Guadalupe Villa, Assistant Federal Public Defender, argued, Minneapolis, MN, for appellant.

Francis J. Magill, Jr., Assistant U.S. Attorney, argued, Minneapolis, MN (Thomas B. Heffelfinger, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

John A. Davies appeals the district court's 1 modification of the conditions on his term of supervised release. Less than one year into Davies's three-year term of supervised release, his probation officer sought, and the district court imposed, a new condition: participation in an alcohol abuse program and periodic testing for alcohol use. Davies challenges the modification on two grounds. First, Davies argues that the district court based the modified conditions on testimony from witnesses he was not able to confront. Second, he argues that the periodic alcohol testing involves a greater deprivation of liberty than is reasonably necessary. We find that the district court based the modification on evidence that was available to Davies and not on the hearsay testimony of an absent witness. Further, we find that the district court narrowly tailored the modified conditions of Davies's term of supervised release to address a specific concern, namely, the impact of alcohol use on Davies's mental health and alcohol as a contributing factor in Davies's two prior suicide attempts. Accordingly, we affirm.

I.

Davies owned and operated a business from July 1998 to April 2000. In this business, he served as a qualified intermediary to hold the proceeds of sales intended for the purchase of like kind property in accordance with the like kind exchange restrictions of the Internal Revenue Code. Davies represented to his clients that he would invest their sales proceeds in low-yield, conservative investments and pay them the investment proceeds in exchange for a fixed, per-transaction fee. Instead, he invested his clients' funds in risky, potentially high-yield investments with the intention of collecting for himself the difference between the actual investment returns and the low-yield returns promised to his clients. His risky investments resulted in losses that totaled approximately $2 million, and, in April 2000, he declared bankruptcy.

On May 1, 2000, Davies voluntarily committed himself to a hospital. He exhibited many depressive symptoms, including tearfulness, sleep disturbance, anxiety, hopelessness, and suicide ideation. He reported that he tried to commit suicide twice in the two weeks prior to his commitment, both times while intoxicated, by placing a bag over his head and by trying to hang himself. Testing indicated severe depression with some compromise in thought process. According to Davies's...

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