U.S. v. Davies
| Decision Date | 16 August 2004 |
| Docket Number | No. 03-4075.,03-4075. |
| Citation | 380 F.3d 329 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | UNITED STATES of America, Plaintiff — Appellee, v. John A. DAVIES, Defendant — Appellant. |
Appeal from the United States District Court for the District of Minnesota, David S. Doty, J 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.
John A. Davies appeals the district court's1 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.
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 presentence report, he never used illicit drugs, and, "[w]hen he was hospitalized in May, 2000, it was determined that his chemical intake should be closely monitored but he was not specifically diagnosed as chemical dependent." He was discharged on May 12, 2000, with improved symptoms and a final diagnosis of Major Depression and Personality Disorder.
On January 26, 2001, the government indicted Davies on two counts of wire fraud. Davies pleaded guilty, and, on April 19, 2001, received a sentence of thirty-four months imprisonment and three years of supervised release. The conditions on his term of supervised release included restrictions regarding employment in a fiduciary capacity and requirements for the disclosure of financial information. In addition, Davies was required to undergo psychiatric or psychological counseling. He began his term of supervised release on August 13, 2003, and has thus far complied with all the original conditions.
On November 5, 2003, Davies's probation officer petitioned the court to add the following condition:
The defendant shall participate in a program for drug and alcohol abuse as approved by the probation officer. That program may include testing and inpatient or outpatient treatment, counseling or a support group.
In the petition, the probation officer stated, "Mr. Davies['s] presentence investigation as well as information received from the Bureau of Prisons indicates that the defendant has a significant alcohol problem which has in the past exacerbated his problem with depression." The probation officer indicated that Davies refused to consent to treatment or testing and strenuously resisted the proposed modification.
The district court held a hearing on December 9, 2003. No witnesses testified. At the outset of the hearing, the district court stated:
Now the reason the probation officer has recommended this for Mr. Davies, based on the presentence investigation and information from the Bureau of Prisons personnel, which leads him to believe that Mr. Davies does have or could have a problem with alcohol that exacerbates his depression, and as the probation officer spoke to me, he indicated it[']s not that he knows that's the case, but he wants to find out if that's the case, and that's the reason for the request for the change.
Later in the hearing, counsel for Davies objected to any reliance on information received from the Bureau of Prisons. The following exchange occurred between Davies's counsel and the district court:
Court: Well, let's make it very clear on the record what the court is relying on. The Court is relying on the recommendation of the probation officer, who in turn I think is relying on the PSI, and I'm relying on the PSI, and all that information has been before ... Mr. Davies....
Counsel: Is it truly the presentence investigation report and the information that is there and not any new information that is occasioning this modification?
Court: To my knowledge there is no new information. The probation officer did indicate that there was some comment or indication by the Bureau of Prisons personnel, but that's not information. I don't think we would have a hearing, and we couldn't get it out even if there were a hearing. What I'm going to be relying on and what I think the probation officer is relying on is that information contained in the PSI, something that has been before you and Mr. Davies all along, so it[']s not going to be a hearing or a need for one. I'm going to make some...
To continue reading
Request your trial
-
United States v. Neal
...663 F.3d 1292, 1296, 1302–03 (10th Cir.2011) ; United States v. Begay, 631 F.3d 1168, 1170–73 (10th Cir.2011) ; United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004) ; United States v. Lowenstein, 108 F.3d 80, 84–85 (6th Cir.1997). We have not yet decided whether the scenarios allowing ......
-
USA v. KELLY
...15 not being reasonably related to § 3553(a) sentencing factors. We review the condition for abuse of discretion. United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004). “A condition is reasonably related to the statutory factors if tailored to the nature and circumstances of the offense......
-
United States v. Murray
...can show a change in circumstances, we refuse to impose that limitation on the district court's authority.”), and United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004) (“A district court may modify the conditions imposed on a term of supervised release even when ... the modification is ......
-
U.S. v. Begay
...a district court is not required to find changed circumstances in order to modify conditions of supervised release. In United States v. Davies, 380 F.3d 329 (8th Cir.2004), the government sought the district court's approval of its proposed addition of an alcohol and drug abuse treatment co......