U.S. v. Poitra

• Citation: 648 F.3d 884
• Decision Date: 10 August 2011
• Docket Number: No. 10–3480.,10–3480.
• Parties: UNITED STATES of America, Appellee,v.Deven J. POITRA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

648 F.3d 884

UNITED STATES of America, Appellee,

v.Deven J. POITRA, Appellant.

No. 10–3480.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2011.Filed: Aug. 10, 2011.

Neil Fulton, AFPD, argued, Pierre, SD, Orell D. Schmitz, AFPD, Bismarck, ND, and Scott D. McGregor, Rapid City, SD, on the brief, for appellant.Brandi Sasse Russell, AUSA, argued, Bismarck, ND, for appellee.Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

A jury convicted Deven Poitra of one count of aggravated sexual abuse under 18 U.S.C. §§ 1153, 2241(c) and one count of failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), under 18 U.S.C. § 2250. Poitra appeals, challenging his conviction as well as the district court's ¹ imposition of certain special conditions of supervised release. We affirm.

I.

We recite the facts in the light most favorable to the verdict. In 2009, Poitra began living in Leroy Nadeau's home located near Dunseith, North Dakota. Among those also living in the home was J.M., Nadeau's ten-year-old daughter. On December 20, 2009, Poitra grabbed J.M., forcibly took her to the laundry room of the Dunseith home, and inserted his finger into her vagina.

Poitra was initially indicted on a single count of aggravated sexual abuse of a child on January 13, 2010. The Government later filed a superceding indictment, adding a count for failure to register in violation of SORNA.² The basis for the second count was Poitra's failure to update his residence, as required by SORNA, when he began living in the Dunseith home.

Following a two-day trial, a jury convicted Poitra on both counts. Poitra was then sentenced to 360 months imprisonment—the statutory mandatory minimum—for the aggravated sexual abuse conviction and 120 months imprisonment for the SORNA violation conviction to be served concurrently. The district court also ordered concurrent ten-year terms of supervised release for each count. Poitra argues on appeal that the district court committed two errors in its final jury instructions and two errors in imposing the special conditions of supervised release.

II.

We typically review a challenge to jury instructions for an abuse of discretion. United States v. White Calf, 634 F.3d 453, 456 (8th Cir.2011). Where a party fails to timely object to an instruction at trial, however, we review only for plain error. United States v. Alcorn, 638 F.3d 819, 822 (8th Cir.2011). To obtain relief under a plain-error standard of review, the party seeking relief must show that there was an error, the error is clear or obvious under current law, the error affected the party's substantial rights, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Curry, 627 F.3d 312, 314–15 (8th Cir.2010) (per curiam).

A.

Poitra first argues that the district court erred by not including a definition for the term “reside” in the jury instructions even though that term is statutorily defined in SORNA. Poitra failed to object to this alleged error at trial, and we therefore review only for plain error.

“The district court has wide discretion in formulating appropriate jury instructions.” United States v. Cruz–Zuniga, 571 F.3d 721, 725 (8th Cir.2009) (quotation omitted). Accordingly, we will affirm the use of particular jury instructions “if they fairly and adequately submitted the issues to the jury.” United States v. Farish, 535 F.3d 815, 821 (8th Cir.2008) (quoting United States v. Hayes, 518 F.3d 989, 994 (8th Cir.2008)). Further, it is typically not necessary to define a particular term in the jury instructions if the meaning being attributed to that term is a matter of common knowledge. See United States v. Brown, 33 F.3d 1014, 1017 (8th Cir.1994).

SORNA explains that an individual “resides” at a location, for purposes of that statute, if that location is “the individual's home or other place where the individual habitually lives.” 42 U.S.C. § 16911(13). This definition is similar to the commonly held understanding of the term “reside.” See Oxford English Dictionary (3d ed. 2004 & online version 2011), http:// www. oed. com/ view/ Entry/ 163557 (defining “reside” as “[t]o dwell permanently or for a considerable time, to have one's settled or usual home in or at a particular place”). We therefore conclude that the omission of this definition from the jury instructions was not an error that is clear under current law because it did not prevent the district court from fairly and adequately submitting the issue to the jury. Moreover, Poitra's substantial rights and the fairness, integrity, and public reputation of judicial proceedings remain unaffected.

B.

Poitra's next contention—which we review for an abuse of discretion—is that the district court erroneously included elements of North Dakota law in its instruction to the jury regarding the elements of a SORNA violation. In its instruction, the district court stated that an element of the SORNA violation was that “the Defendant knowingly failed to update his sex offender registration at least ten days prior to a change of residence or within three business days after a change of residence.” On its face, this instruction appears to adopt portions of both North Dakota law and SORNA. North Dakota law requires a convicted sex offender to update his or her registration “at least ten days before the change [of residence],” N.D. Cent.Code § 12.1–32–15(7), whereas SORNA only requires that a registration be updated “within three business days after a change of residence,” 42 U.S.C. § 16913(c).

Assuming without deciding that the court's instruction was erroneous, the error was harmless. The period within which Poitra was required to update his sex offender registration was not an issue at trial because Poitra did not dispute the Government's claim that he failed to update his registration. Rather, Poitra's defense at trial was that he continued to live at his grandmother's home throughout the relevant period and that he never actually changed his residence to the Dunseith home. Accordingly, Poitra argued that he never violated SORNA's registration requirements because he never changed his residence. Therefore, because this alleged error in the jury instruction did not relate to an issue that was disputed at trial, it did not affect Poitra's substantial rights. See United States v. Manes, 603 F.3d 451, 458–59 (8th Cir.2010) (concluding that “[t]he failure to instruct the jury on a theory which was never presented to it could not have affected [the defendant's] substantial rights”).

III.

Poitra next alleges that the district court committed two sentencing errors when it imposed various conditions of his supervised release. Because Poitra failed to object to either alleged error before the district court, we review each claim only for plain error.

A.

Poitra's first allegation of sentencing error is that the district court improperly delegated judicial authority to non-judicial officers with respect to two of the special conditions of his supervised release. Special Condition 3 states that Poitra “shall participate in psychological/psychiatric counseling and/or a sex offender program, which may include inpatient treatment as approved by the probation officer.” Special Condition 8 states that Poitra shall also “participate in a program for substance abuse as approved by the supervising probation officer.” Because Poitra did not object to the imposition of these conditions at trial, we review his claim for plain error. Curry, 627 F.3d at 314.

We have previously addressed similar arguments on multiple occasions. See, e.g., United States v. Wynn, 553 F.3d 1114, 1120 (8th Cir.2009); United States v. Smart, 472 F.3d 556, 559–60 (8th Cir.2006). We will uphold “a district court's limited delegation of authority to a probation officer where the court gives no affirmative indication that it would not retain ultimate authority over all of the conditions of supervised release.” Wynn, 553 F.3d at 1120; see also United States v. Fenner, 600 F.3d 1014, 1027 (8th Cir.2010). The district court made no affirmative indication in this case that it would not retain ultimate authority over Poitra's conditions of supervised release, and we therefore find no plain error in the imposition of Special Conditions 3 and 8.

B.

Poitra also argues that the district court committed procedural error when it imposed Special Condition 6 without first explaining why the condition was necessary. Special Condition 6 states:

The Defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, computer images, videos, or video games, depicting and/or describing “sexually explicit conduct” as defined at 18 U.S.C. § 2256(2) and 2256(8).

Although a district court is given wide discretion in imposing conditions on a defendant's supervised release, each condition must be “reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, deterrence of criminal conduct, protection of the public, and treatment of the defendant's correctional needs.” United States v. Mayo, 642 F.3d 628, 631 (8th Cir.2011) (per curiam). In addition, the imposed conditions must involve “no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). As a result, when imposing a special condition of supervised release, a “district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.2011) (internal quotation omitted).

The parties agree that the district court failed to make the necessary individualized findings, and this error was plain under current law from this Court. See,...