U.S. v. Iversen

• Decision Date: 25 July 1996
• Docket Number: Nos. 95-2631,95-2650 and 95-3869,s. 95-2631
• Citation: 90 F.3d 1340
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Nancy Ruth IVERSEN, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1340

90 F.3d 1340

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Nancy Ruth IVERSEN, Defendant-Appellant/Cross-Appellee.

Nos. 95-2631, 95-2650 and 95-3869.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1996.

Decided July 25, 1996.

Mary Ann Giebink, Sioux Falls, SD, argued for appellant.

Karen E. Schreier, Sioux Falls, SD, argued for appellee.

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 Iversen in home detention for three months and directed that "[u]pon need and at the direction of the probation officer, the defendant shall undergo inpatient/outpatient psychiatric or psychological treatment."

Less than three weeks after sentencing, Iversen was issued a citation charging her with shoplifting at a grocery store. The probation officer later directed Iversen to report to the U.S. Probation Office in Rapid City, South Dakota on September 5, 1995, for placement in a community corrections facility for formal psychological evaluation. Iversen failed to appear in Rapid City and later notified the district court she had moved to Michigan. The district court found Iversen in violation of her probation due to her shoplifting offense, her failure to appear as directed in Rapid City, and her departure to Michigan without permission. The court revoked her probation, sentencing her to six months imprisonment and three years supervised release, the maximum penalty available for Iversen's underlying theft and embezzlement offense. The court also continued the fines and restitution imposed in the court's initial judgment.

In No. 95-2631, Iversen appeals her conviction and conditions of her probation. In No. 95-2650, the government cross-appeals Iversen's sentence. In No. 95-3869, Iversen appeals the subsequent revocation of her probation. We have consolidated the appeals and affirm the district court.

Ineffective Assistance of Counsel

Iversen contends her trial counsel was not effective because he failed to call an accountant to rebut the government's evidence of Iversen's financial condition and failed to preserve Iversen's rights to a speedy trial. We decline to address Iversen's 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 argues the district court's refusal to find perjury, under the preponderance of the evidence standard applicable to factual determinations under the Sentencing Guidelines, shows the evidence was not sufficient to convict her under a beyond a reasonable doubt standard. We reject both parties' arguments.

Application Note 1 under U.S.S.G. § 3C1.1 provides: "This provision is not intended to punish a defendant for the exercise of a constitutional right.... In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." U.S.S.G. § 3C1.1, cmt. (n.1). As this court has explained, " 'No enhancement should be imposed based on the defendant's testimony if a reasonable trier of fact could find the testimony true.' " United States v. Patel, 32 F.3d 340, 345 (8th Cir.1994) (quoting United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.1991), cert. denied, 507 U.S. 971, 113 S.Ct. 1411, 122 L.Ed.2d 782 (1993)). The district court properly applied these standards and found that although neither the jury nor the court believed Iversen in this case, a reasonable trier of fact could have believed her testimony. Sent. Tr. at 10. Furthermore, the Supreme Court has emphasized the enhancement should be applied only when the district court has made a "separate and clear finding" as to each element of perjury, i.e., that the defendant "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." United States v. Dunnigan, 507 U.S. 87, 95, 94, 113 S.Ct. 1111, 1117, 1116, 122 L.Ed.2d 445 (1993). See also United States v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir.1992) (per curiam) (enhancement proper when district court makes "strong finding of perjury based on the trial judge's independent evaluation of the defendant's testimony" (quotation omitted)) cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). The district court made no such findings here and thus an enhancement is not 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 "only as a substitute for imprisonment[,]" see U.S.S.G. § 5F1.2 (emphasis added); see also 18 U.S.C. § 3563(b)(19) ⁴ (providing for home detention "only as an alternative to incarceration"), does not mean home detention is a form of imprisonment which cannot be coupled with probation under 18 U.S.C. § 3561(a)(3). Cf. Reno v. Koray, --- U.S. ----, ----, 115 S.Ct. 2021, 2025, 132 L.Ed.2d 46 (1995) (admission to bail on restrictive conditions is not official detention within meaning of 18 U.S.C. § 3585(b)); United States v. Blumberg, 961 F.2d 787, 792 (8th Cir.1992) (pretrial house arrest is not official detention within the meaning of 18 U.S.C. § 3585(b)). Thus, we see no plain error in the imposition of home detention as a condition of Iversen's probation.

We also do not find plain error in the district court's order giving probation officers the authority to order psychiatric or psychological treatment as a special condition of probation. Iversen argues this condition was improper because it was not "reasonably related to the nature and circumstances of the offense" or "the history and characteristics of the defendant" under U.S.S.G. § 5B1.3(b)(1), nor was the condition imposed in accordance with the procedural requirements of the Insanity Defense Reform Act 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...