U.S. v. Napulou

• Decision Date: 01 February 2010
• Docket Number: No. 08-10190.,08-10190.
• Citation: 593 F.3d 1041
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cherlyn A. NAPULOU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

593 F.3d 1041 UNITED STATES of America, Plaintiff-Appellee,
v.
Cherlyn A. NAPULOU, Defendant-Appellant. No. 08-10190. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2009. Filed February 1, 2010.

[593 F.3d 1043]

Fernando L. Cosio, Honolulu, HI, for the defendant-appellant.

Florence T. Nakakuni, Assistant U.S. Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, Helen Gillmor, District Judge, Presiding. D.C. No. 1:03-cr-00538-HG-3.

Before: STEPHEN REINHARDT, SIDNEY R. THOMAS, and RICHARD A. PAEZ, Circuit Judges.

REINHARDT, Circuit Judge:

The district court revoked Cherlyn Napulou's supervised release for associating with Karla Kahau, her "life partner" and a convicted felon, on three comparatively innocuous occasions. In addition to sentencing Napulou to prison for these violations, the district court imposed additional conditions on her supervised release, including forbidding her from having regular contact with anyone with a misdemeanor conviction without the prior permission of the probation office, and—more important— from maintaining any personal, telephonic, or written contact with Kahau. We vacate the first condition as overbroad. We also vacate the second condition and remand for further proceedings, as we cannot determine from the record whether this condition would serve the ends of deterrence, rehabilitation, or public safety.

I. Factual Background

On February 5, 2004, Cherlyn Napulou pleaded guilty to two counts of distributing methamphetamine.¹ She was sentenced to 10 months of imprisonment, followed by six years of supervised release, and successfully served her term of confinement. She was less successful, however, with her supervised release. The district court first revoked that status in 2005, finding that she failed to submit timely and truthful written reports, failed to follow the probation officer's instructions and failed to answer his inquiries truthfully; it also found that she associated with a person convicted of a felony without permission of the probation officer on two separate occasions, misused a handicap placard and operated a motor vehicle without a license; finally, it found that she failed to participate in a substance abuse program, failed to complete an anger management program, failed to notify the probation officer at least ten days prior to a change in residence, and pleaded guilty to abuse of a family member in state court. She was sentenced to 24 months of imprisonment and 42 months of supervised release, subject to a number of standard and special conditions of supervision.

593 F.3d 1044

Napulou again successfully served her term of imprisonment. Shortly after her release from prison, however, she again found herself in district court for violation of the terms of her supervised release, this time for associating with Karla Kahau in violation of the overlapping standard and special conditions that prohibited contact with convicted felons without the prior approval of the probation officer. Napulou and Kahau, a former felon, had met and developed a close relationship while incarcerated. They were seen together on three occasions during Napulou's supervised release: when Kahau accompanied Napulou to her intake interview with her substance abuse counselor; when Kahau visited Napulou's halfway house, the Mahoney Hale Community Corrections Center, to drop off food; and when they appeared together for an employment interview.² Napulou admitted to all of those encounters, but protested the restriction on their relationship, stating: "[Kahau] has been a very big support ... for me in my life. I mean I'm not going to stop it. I'm sorry, but I'm not. If she's going to give me that support and motivate me to get back out there and get my kids, I'm going to hold on to that."

The district court sentenced Napulou to 10 months imprisonment for her willful association with Kahau, followed by 32 months of supervised release. The court again imposed several special conditions of supervision, including special condition 8, a prohibition on "regular contact with anyone having a misdemeanor or felony conviction, without prior permission of the Probation Office," and special condition 12, a prohibition on "any contact telephonic, written or personal with Karla Kahau." On appeal, Napulou does not contest her sentence of imprisonment, which she was scheduled to complete shortly after oral argument, but seeks review of the imposition of the two special conditions of supervised release.

II. Analysis

We review for abuse of discretion the conditions of supervised release set by the district court and challenged on this appeal. See United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.2008).

The district court "enjoys significant discretion in crafting terms of supervised release," as it has "at its disposal all the evidence, its own impressions of a defendant, and wide latitude." United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006) (internal quotation marks and citations omitted). In determining the conditions to be imposed, however, the court must consider certain factors set forth in 18 U.S.C. § 3553(a), including "the nature and circumstances of the offense and the history and characteristics of the defendant" and the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford adequate deterrence, to protect the public, and to encourage rehabilitation. The district court's discretion is further curtailed by 18 U.S.C. § 3583(d), which provides that any condition must: (1) be reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a). See United States v. Soltero, 510 F.3d 858, 866 (9th Cir.2007), cert. denied,

593 F.3d 1045

___ U.S. ___, 129 S.Ct. 35, 172 L.Ed.2d 48 (2008). The government bears the burden of demonstrating that these statutory standards are met. Weber, 451 F.3d at 558.

A. Prohibition on regular contact with anyone having a misdemeanor conviction absent prior permission from the probation office

Napulou argues that the restriction on regular contact with persons convicted of misdemeanors is vague and overbroad. She contends that it is vague because she could be held liable for inadvertently associating with someone whom she did not know had a misdemeanor conviction. Conditions of supervised release, however, must be interpreted consistently with the "well-established jurisprudence under which we presume prohibited criminal acts require an element of mens rea." United States v. Vega, 545 F.3d 743, 750 (9th Cir.2008). Properly construed, then, the condition regulates only knowing contact with persons with misdemeanor convictions. See id. (reading a "knowing" element into the condition prohibiting association with members of a criminal gang). In addition, because this condition proscribes only "regular...