U.S. v. Smith

• Decision Date: 05 August 2009
• Docket Number: No. 08-3157.,08-3157.
• Citation: 576 F.3d 513
• Parties: UNITED STATES of America, Appellee, v. John Anthony SMITH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

576 F.3d 513

UNITED STATES of America, Appellee, v. John Anthony SMITH, Appellant.

No. 08-3157.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2009.

Filed: August 5, 2009.

Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for appellant.

Michelle E. Jones, AUSA, argued, Minneapolis, MN., for appellee.

Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH,¹ District Judge.

LIMBAUGH, District Judge.

After finding that John Anthony Smith had violated one of the conditions of his supervised release, the District Court² revoked Smith's release and sentenced him to serve the remainder of his supervised-release term in prison. Smith appeals, arguing that the District Court clearly erred in finding that he had violated the conditions of his supervised release. Smith also contends that the court abused its discretion in revoking his supervised release. We affirm.

In 2003, Smith pleaded guilty to federal charges of sexual abuse of a minor in Indian country and was sentenced to thirty-six months of imprisonment and three years of supervised release. Smith began his term of supervised release in September 2005. In January 2007, the conditions of Smith's supervised release were modified to prohibit contact with minors under the age of eighteen without probation-officer approval and appropriate adult supervision. Smith's probation officer explained the new condition to Smith in detail, and Smith acknowledged that he understood it. Nevertheless, in August 2007, Smith violated this condition of his release, leading the District Court to revoke Smith's supervised release and impose a sentence of eleven months in prison and one year of supervised release. In July 2008, Smith was again released from prison, subject to the continuing condition regarding his association with minors. Smith's probation officer again explained the condition to Smith, and Smith stated that he understood the condition. In August 2008, Smith's probation officer filed a petition with the District Court alleging that on August 13, Smith had again violated the condition that he not associate with minors. Smith was arrested later that day and detained pending a revocation hearing.

The dispute in this case involves whether the government proved by a preponderance of the evidence that Smith violated the conditions of his release by having a minor in his residence on August 13, 2008, without permission from his probation officer and without the presence of a responsible adult. See United States v. Black Bear, 542 F.3d 249, 252 (8th Cir.2008) (standard of review). According to the testimony presented at Smith's revocation hearing, on the morning of August 13, 2008, Senora Thompson, a child protection worker for the Red Lake Department of Children and Family Services, visited the split-entry ranch residence of Smith and his wife in search of a juvenile who had run away. Thompson testified that Smith answered her knock at the front door, identified himself, and stated that he had not seen the missing juvenile. Thompson further testified that at her request, Smith called out to his wife, who was in the kitchen and out of sight, about the missing juvenile. While Smith and his wife were conversing, Thompson saw an eight-to-ten-year-old boy peek over the edge of a couch that was located in Smith's living area, up a short flight of stairs and visible to Thompson from her position in the entryway of the residence. Thompson described the boy as having short black hair and wearing a dark-colored T-shirt. According to Thompson, after looking directly at her for a moment, the boy laid his head back on the couch. Thompson did not speak to the boy and did not ask Smith or his wife about the boy.

Thompson further testified that after leaving Smith's residence, she telephoned a child welfare advocate to ask whether Smith was permitted to have minors in his home and to report that she had seen a child in the residence. The child welfare advocate told Thompson that Smith was generally not permitted to have contact with minors and that the advocate would notify police to investigate the matter further. Thompson testified that shortly after this telephone conversation, she saw a tan, four-door sedan leaving the vicinity of Smith's house and in the back seat of that vehicle, she saw the same boy she had earlier observed on the couch at Smith's residence. When Thompson returned to her office later that morning, she prepared a report describing what she had witnessed, and based in part on that report, Smith was arrested for violating the conditions of his release. A few days later, Smith's wife and her friend, a nineteen-year-old woman named Allison Rogers, arrived at Thompson's office insisting that it was Rogers—not an eight-to-ten-year-old boy—that Thompson had seen on Smith's couch the morning of August 13. The women demanded that Thompson revise her report. Thompson testified that she refused to revise her report because she was certain it was a young boy, not Rogers that she had seen on the couch the morning of August 13.

Allison Rogers testified that she was staying temporarily at Smith's residence during August 2008 and while she was there, she slept on the couch in Smith's living room. Rogers also testified that she was the individual who peeked over the couch at Thompson on the morning of August 13. According to Rogers, there were no children present in the Smith residence while she...