United States v. Johnson, 16-2069

• Decision Date: 03 July 2017
• Docket Number: No. 16-2069,16-2069
• Parties: United States of America Plaintiff - Appellee v. Brion Dodd Johnson Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

United States of America Plaintiff - Appellee v. Brion Dodd Johnson Defendant - Appellant

No. 16-2069

United States Court of Appeals For the Eighth Circuit

Submitted: January 9, 2017

July 3, 2017

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

[Unpublished]

Before SMITH, Chief Judge,¹ GRUENDER and SHEPHERD, Circuit Judges.

PER CURIAM.

Brion Dodd Johnson appeals a condition of his supervised release which prohibits Johnson from having contact with certain adults. We find that the district court² did not abuse its discretion with respect to this condition and we affirm.

I.

We refer to the opinion of this court in Johnson's prior appeal for a history of this matter:

Johnson pleaded guilty to possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced him to 97 months' imprisonment followed by fifteen years of supervised release. The court revoked Johnson's supervised release after he committed twenty-one violations of his release conditions, including failure to comply with sex-offender treatment, unauthorized possession of a computer, possession of pornography, and use of illegal drugs. Finding that Johnson committed these violations, the court sentenced him to a second, eleven-month term of imprisonment followed by ten years of supervised release.

The district court revoked Johnson's second term of supervised release after he committed another fourteen violations, including associating with someone involved in criminal activity, failing to answer his parole officer truthfully, possessing drug paraphernalia, possessing pornography, and using photographic equipment to produce pornography. The court then sentenced Johnson to eleven months' imprisonment followed by a third, eight-year term of supervised release.

United States v. Johnson, 773 F.3d 905, 907 (8th Cir. 2014). Johnson began his third term of supervised release in November 2014. Following the imposition of this term of supervised release, probation officers instructed Johnson to have no contact with TT, Johnson's female friend.

In February 2016 probation officers determined that TT along with JA and JO, TT's adult children who both have special needs, were living with Johnson at his residence and that Johnson was engaged in a bondage, discipline, and sadomasochistic relationship with TT. Johnson failed to truthfully answer probationofficers' questions with respect to these facts and on March 11, 2016, the district court modified the conditions of Johnson's supervised release to add the provision that Johnson could not have contact with JA and JO. Johnson agreed to this condition.

In April 2016 the probation office filed a petition and then a supplemental petition to revoke Johnson's supervised release alleging, inter alia, that Johnson had committed the following violations of the terms of his supervised release: (a) failing to truthfully answer the questions of a probation officer, (b) using photographic equipment to view or store pornography, (c) possessing pornography, (d) failing to follow the instructions of the probation office, (e) failure to comply with substance abuse testing, and (f) having contact with JA.

Johnson admitted the violations. It is undisputed that on March 28, 2016, Johnson telephoned a probation officer to ask whether he could have contact with TT. The officer advised Johnson that his conditions of supervised release did not prohibit contact with TT but Johnson was prohibited from having contact with JA and JO. Later in the day, probation officers inspected the home of a federal offender which was located near Johnson's residence. As the officers left the residence they saw Johnson, TT, and JA leave Johnson's residence and walk towards Johnson's vehicle. When the officers confronted Johnson he admitted he was aware he was prohibited from having contact with JA but he explained that earlier TT had telephoned him and asked for a ride to an appointment. When Johnson picked up TT he discovered that she was accompanied by JA. Johnson transported TT and JA to TT's appointment and then drove them to his residence in order for him to pick up cigarettes. TT and JA accompanied Johnson into his residence. After officers spoke with TT and JA, JA "yelled that he was not afraid of [Brion], [and that] he doesn't know why everyone thinks [Brion] want[s] to have sex with him." JA also yelled that Rhonda (a probation officer) "is a bitch."³

The district court found that JA, age 19, and JO, age 20, although adults, are vulnerable individuals who, according to TT, cannot live alone. The court concluded that JA and JO "are not capable of making good decisions or protecting themselves or apparently living apart from their mother due to mental health issues." The court further noted that, according to TT, JA has been diagnosed as bipolar, with ADHD, defiant disorder, and Asperger's Syndrome, and has been a victim of sexual abuse. JO also has mental issues and receives services from the Iowa Department of Human Services. JA and JO both have issues with pornography. Johnson did not dispute these findings.

The district court revoked Johnson's third term of supervised release and sentence him to five months imprisonment to be followed by five years of supervised release. As a condition of supervised release, the district court reimposed the condition that: "[Johnson] must not have contact during [his] term of supervision with [JA] and [JO], in person or by a third-party. This includes no direct or indirect contact by telephone, mail, e-mail or any other means."

On appeal, Johnson objects to the...