U.S. v. Ahlemeier
| Decision Date | 10 December 2004 |
| Docket Number | No. 04-1651.,04-1651. |
| Citation | 391 F.3d 915 |
| Parties | UNITED STATES of America, Appellee, v. Frederick AHLEMEIER, III, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anthony B. Ramirez, argued, St. Louis, MO, for appellant.
Donald G. Wilderson, argued, Asst. U.S. Attorney, St. Louis, MO, for appellee.
Before BYE, BOWMAN, and MELLOY, Circuit Judges.
On January 29, 1999, Ahlemeier pled guilty to possession of child pornography. He was sentenced to twenty-one months imprisonment, followed by thirty-six months of supervised release. He voluntarily surrendered on June 14, 1999 and was imprisoned. Ahlemeier was released from prison and was placed on supervised release on October 3, 2000. The term of supervised release was to expire on October 2, 2003.
Ahlemeier's conditions of supervised release were modified on June 10, 2002 to include the additional condition that Ahlemeier enter and complete a sexual offender treatment program. Ahlemeier entered the sex-offense specific program of Psychological Services under counselor William B. Brown ("Brown") on September 18, 2001 and began attending counseling sessions.
On July 6, 2003, Ahlemeier was involved in an incident at a Best Buy Store in Chesterfield, Missouri. Ahlemeier allegedly paced around the store with a camera and took pictures of women. After observing this behavior, the store manager asked Ahlemeier to leave the store. Ahlemeier left, and employees subsequently called the police. The next day, July 7, 2003, Ahlemeier attended a group counseling session and failed to mention the incident to his counselor or support group. On July 8, 2003, Kenneth R. Fitzgerald ("Fitzgerald"), U.S. Probation Officer, informed Brown of the incident. Brown concluded at that time that he would terminate Ahlemeier from the treatment program.
Ahlemeier was charged with stalking based on his actions at the Best Buy store.1 He received notice of the charge by mail on July 8, 2003 and apparently was not contacted by the police before that time. The stalking charges were dismissed on December 16, 2003.
On July 10, 2003, Fitzgerald filed a petition with the district court requesting that the court revoke Ahlemeier's supervised release. The petition stated that Ahlemeier had violated his supervised release because he had committed a local crime and because he was not in compliance with his treatment program.2
Ahlemeier informed Fitzgerald of the charge by a letter dated July 14, 2003. Ahlemeier continued to attend his counseling sessions until July 28, 2003. On July 30, 2003, he was arrested by the U.S. Marshal and incarcerated. On August 4, 2003, Ahlemeier had his Preliminary Supervised Release Revocation and Detention Hearing. The magistrate judge found probable cause to believe Ahlemeier had violated a condition of his supervised release and ordered Ahlemeier be detained until his revocation hearing.
On September 4, 2003, the district court held a Supervised Release Revocation Hearing. The government did not pursue its claim that Ahlemeier had committed a local crime. However, the government proceeded with its charge that Ahlemeier had failed to participate in a sex-offense specific treatment program. The court agreed and sentenced Ahlemeier to nine months in prison, followed by twenty-seven months supervised release.
On September 11, 2003, Ahlemeier filed a Motion to Arrest Judgment and/or Reconsideration. He filed an amended version of this motion October 1, 2003. On October 2, 2003, following a telephone conference between the attorneys and the district court, the district court set aside its September 4 judgment and set a Supervised Release Revocation hearing for October 24, 2003.
On October 24, 2003 and March 5, 2004, the district court held two Supervised Release Revocation hearings. The district court heard testimony from Fitzgerald, Brown, Josh King, the Chesterfield Police Officer who investigated the Best Buy incident, Craig Houseman, a Best Buy employee and witness of the incident, and Renee Mansker, a Best Buy employee and alleged victim of the incident. The district court found Ahlemeier had violated the terms of his supervised release by failing to mention the Best Buy incident to Brown. Because Ahlemeier withheld this information during counseling, the district court found that he had failed to cooperate and complete the program. The district court again sentenced Ahlemeier to nine months imprisonment, followed by twenty-seven months of supervised release. Ahlemeier now appeals.
If the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release, the district court has the discretion to revoke supervised release. 18 U.S.C. § 3583(e)(3) (). We review the district court's decision to revoke supervised release for an abuse of discretion. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003).
Before the court revokes supervised release, the defendant is entitled to a revocation hearing. Fed.R.Crim.P. 32.1(b)(2). In connection with that hearing, a defendant is entitled to: (A) "written notice of the alleged violation," (B) disclosure of the government's evidence against him or her, (C) "an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear," and (D) notice of the right to retain counsel or to request appointed counsel. Id. at (A)-(D).
Ahlemeier makes three arguments involving Rule 32.1. First, he argues that his written notice was insufficient. Second, he argues that the government failed to properly disclose evidence against him. Third, he argues that the district court erred in relying on hearsay evidence presented at the revocation hearing. We will address each argument in turn.
Ahlemeier states that his written notice of his alleged violation consisted of the Petition for Revocation of Supervised Release (the "Petition"), a document prepared by the probation officer.3 The pertinent part of this document reads:
Violation Number
Special Condition (as modified on 6/10/02): The defendant shall participate in a sex-offense specific treatment program. The defendant shall enter, cooperate, and complete said program until release by the United States Probation Officer. The defendant shall abide by all policies and procedures of the sex-offense specific program. During the course of said treatment, the defendant shall be subject to periodic and random physiological testing which may include but is not limited to polygraph testing and/or other specialized assessment instruments. The defendant shall contribute to the cost of treatment in an amount to be determined by the probation office.
On July 8, 2003, this officer contacted Bill Brown of Brown Psychological Services, the offender's sexual offender treatment provider, to inform him of the above charge. Brown indicated that the offender would be terminated from treatment for lack of treatment progress, however, Brown would continue to counsel the offender, for community safety reasons, until action was taken by the Court.
(Petition, p. 2.) The Petition also outlines Ahlemeier's alleged behavior during the Best Buy incident. It relays the observations of the Best Buy manager, who stated that Ahlemeier approached an "employee so he would be able to see down inside her blouse and take photographs" and took a picture of another woman who was bending down to look at merchandise. Id.
Ahlemeier contends that this notice was insufficient because it did not specify that his violation was based, in part, on his failure to mention the Best Buy incident at counseling. However, the notice did state that he was being "terminated from treatment for lack of treatment progress." Id. This put Ahlemeier on notice that his progress in counseling was unsatisfactory. The detailed allegations about his behavior at the Best Buy store informed Ahlemeier that his unsuccessful performance in treatment was related to the Best Buy incident. This was enough to put Ahlemeier on notice that his alleged violation concerned his participation in counseling, or lack thereof, in relation to the Best Buy incident.
Moreover, Ahlemeier had the benefit of seeing evidence that identified the particular allegations against him on multiple occasions prior to his October 2003 and March 2004 Revocation Hearings. Ahlemeier contends that the government's original position was that Ahlemeier simply failed to attend sessions and that the government did not assert that Ahlemeier failed to cooperate with counseling until the October 24, 2003 hearing. (Ahlemeier's Brief, p. 18.) However, the record shows that during his Preliminary Supervised Release Revocation and Detention Hearing on August 4, 2003, Fitzgerald testified that Ahlemeier had failed to cooperate in counseling and was therefore terminated from the program. Defense counsel asked Fitzgerald about how Ahlemeier allegedly violated the special condition of his supervised release regarding counseling. Fitzgerald testified that "under that condition he is to cooperate and complete the program, and by his actions he was not meeting the requirements of the program, so he was terminated." (Preliminary Supervised Release Revocation and Detention Hearing, August 4, 2003, p. 12 (emphasis added).)
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