United States v. Raney

• Decision Date: 12 August 2015
• Docket Number: No. 14–3265.,14–3265.
• Citation: 797 F.3d 454
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth RANEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

797 F.3d 454

UNITED STATES of America, Plaintiff-Appellee

v.Kenneth RANEY, Defendant–Appellant.

No. 14–3265.

United States Court of Appeals, Seventh Circuit.

Argued May 21, 2015.

Decided Aug. 12, 2015.

Meredith P. Duchemin, Office of the United States Attorney, Madison, WI, Plaintiff–Appellee.

Daniel J. Hillis, Office of the Federal Public Defender, Springfield, IL, George F. Taseff, Office of the Federal Public Defender, Peoria, IL, Defendant–Appellant.

Before WOOD, Chief Judge, and ROVNER, and WILLIAMS, Circuit Judges.

Opinion

ROVNER, Circuit Judge.

Kenneth Raney was convicted of interstate travel with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b), and attempt to manufacture child pornography, in violation of 18 U.S.C. § 2251(a). He was sentenced to 145 months' imprisonment, followed by three years of supervised release. After successfully serving the term of imprisonment, Raney faltered during the period of supervised release, skirmishing with three different probation officers. The district court ultimately revoked his supervised release and returned him to prison. He appeals from the order revoking his supervised release. We affirm the court's revocation of supervised release but we vacate and remand for resentencing.

A.

At the time of his initial sentencing, the district court imposed on Raney thirteen “Standard Conditions of Supervision” and five additional “Special Conditions.” Raney subsequently agreed to four additional Special Conditions, for a total of twenty-two. Shortly after his release from prison in February 2012, Raney's probation officer reported to the court that Raney violated two of the conditions of his supervision. In May 2012, the officer reported that Raney had failed to report to the probation office within seventy-two hours of his release, and that he had associated with a felon, Timmy Reichling, without the permission of his probation officer. The court took no action on these violations because Raney was otherwise compliant and was shortly transferring out of the Northern District of Illinois to the Western District of Wisconsin. Raney was admonished not to associate with the felon (who was also Raney's cousin) without seeking the permission of his probation officer.

A new probation officer took over Raney's supervision in Wisconsin in July 2012. In September 2012, the new probation officer filed two petitions for warrants alleging violations of the Standard and Special Conditions of supervision. In particular, the officer alleged that Raney was again in unsupervised contact with his cousin, and that he was found in possession of a memory stick without prior approval from his probation officer. After a hearing, the district court decided not to revoke Raney's supervised release but warned him to adhere scrupulously to the conditions imposed.

In January 2014, Raney was again assigned a new probation officer, Kristin Kiel. In April of that year, Kiel requested a modification to the conditions of supervised release, requiring Raney to submit to electronic monitoring for 120 days because a polygraph examiner had determined that Raney was not truthful in answering two questions during a polygraph test. Raney consented to the monitoring and the court accordingly modified the conditions. Against this backdrop of Raney's repeated issues with supervised release, in September 2014, Kiel filed another petition for a warrant, this time alleging that Raney had violated Standard Condition 3, and that he had failed to make agreed payments towards the cost of his electronic monitoring.¹

Standard Condition 3 provided that “the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer[.]” R. 2–4, at 3. According to Kiel's petition,

On May 31, 2014, Kenneth Raney was granted permission to travel outside the Western District of Wisconsin to visit the Milwaukee County Zoo with his cousin, Dan, and Dan's girlfriend, Cindy. Although Mr. Raney specifically informed this officer that only he, Dan and Cindy would be going on the trip, a Jackie Hauser and her two minor sons also went with them.

On September 10, 2014, during the pre-test phase of a sex offender polygraph evaluation, Kenneth Raney told the polygrapher that his U.S. probation officer was aware of a sexual relationship he had with “Jackie,” and said that his U.S. probation officer was aware that he went camping with “Jackie” and her two minor sons during the weekend of September 6, 2014. At the time Mr. Raney was interviewed by the polygrapher, this officer was not aware of Mr. Raney's relationship with Jackie or of the camping trip.

R. 16, at 1. After recounting Raney's past problems with supervision, the petition continued:

During the pre-test phase of a sex offender polygraph on September 10, 2014, Mr. Raney indicated that this officer [Kiel] was aware of his girlfriend “Jackie,” the fact that she has two young sons, and the fact that they went camping in his recreational vehicle the weekend of September 6, 2014. This was not a true statement. On the monthly supervision report form for sex offenders submitted by Mr. Raney on September 9, 2014, for the month of August, he indicated that he was seeing “Jackie Hauser” and noted that she had sons ages 10 and 12. On September 11, 2014, this officer received a text message from Mr. Raney indicating, “Woman im seeing, Jackie, phone number is xxx-xxx-xxxx.” Mr. Raney first told his sex offender therapist about “Jackie” on September 19, 2014. This officer conducted a telephone interview with Jackie Houser [sic] on September 16, 2014. Ms. Houser [sic] stated that she had been dating Mr. Raney since June 2014. She stated that she and her sons went to the zoo with Mr. Raney early in their relationship. She estimated they see each other every other weekend. She stated she and her two youngest children, sons ages 12 and 10, went camping with Mr. Raney in his camper the weekend of September 6, 2014.

R. 16, at 2.

At the revocation hearing, the United States presented testimony from Kiel and from Susan McDonald, Raney's therapist. Kiel testified that on May 31, 2014 at 4:23 p.m., Raney sent her a text message:

Dan and cindy are thinking of going to zoo in milwaukee. They asked me to go if they do. Told them i ld ask u. so is it ok

R. 24–3. Standard Condition 1 required Raney to ask for permission for this trip because Milwaukee is outside the Western District of Wisconsin, where Raney was serving his supervised release. R. 2–4, at 3 (“the defendant shall not leave the judicial district without the permission of the court or probation officer”). Kiel texted in response, “Who is driving?” Raney responded, “Dan, cindy is in wheelchair.” Kiel replied, “I need Dans phone number please. Then text when you leave and when you return please.” R. 24–3. Raney provided numbers for Dan and Cindy.

Kiel testified that the next morning at 7:09 a.m., Raney sent her a text message stating, “We are going to zoo now.” Kiel then called Dan, who was, at that very moment, driving to the zoo. Unbeknownst to Kiel, Dan was talking to her on a hands-free speaker phone, in a conversation that could be heard by all of the occupants of the car. Also unbeknownst to Kiel, those occupants included not only Dan, Cindy and Raney, but also Cindy's cousin Jackie Hauser and Jackie's two sons, aged ten and twelve. Kiel was concerned about Raney going to a zoo, a place where he was likely to have contact with children and she asked Dan to “act as a third-party custodian of sorts” to ensure that Raney was not alone with children at any time. She asked him to accompany Raney to the bathroom at the zoo and to ensure that he was not alone with children. With Dan's assent, she approved the trip. Kiel testified that she would not have allowed Raney to go on the zoo trip with children. Kiel did not learn that Raney was dating Jackie until she received a text from Raney on September 11, 2014, several months after the zoo trip, informing her of the relationship and passing along Jackie's phone number.

When Kiel subsequently called Jackie, she learned that Jackie had been dating Raney since approximately June 14, that Jackie and her sons had gone to the zoo with Raney early in the relationship, and that Jackie and her sons had gone camping with Raney in his camper on September 6. According to Kiel, Jackie equivocated when asked if her sons had been left alone with Raney during any part of the camping trip, at first saying that it was possible but then stating that she never left her sons alone with Raney, and that she took them to the bathroom with her consistently throughout the trip. Given the ages of the boys, Kiel did not believe this claim. During Kiel's testimony, the government admitted into evidence, without objection, Raney's monthly written supervision reports to Kiel for May, June, July and August.² Although Raney began dating Jackie in June, he denied being in an intimate relationship on the May, June and July reports. He admitted the relationship and the contacts with Jackie's children only in the August report, shortly before he was scheduled to submit to another polygraph examination.

Susan McDonald testified that Raney was referred to her for therapy by the United States Probation and Pretrial Office. McDonald first learned of Raney's relationship with Jackie Hauser in a session on September 19, 2014. At that time, Raney revealed that he had a new girlfriend whom he met through his cousin in April 2014. Raney told her that Jackie was dating someone else when they first met and that he first asked her out on June 1, when they went to the zoo with her sons. By August, they were dating regularly and Jackie's sons sometimes accompanied them on outings. He told McDonald that he planned to go camping with Jackie and her sons the next day (September 20) and that they had previously taken a camping trip.

In his defense, Raney called Dan Reichling, the cousin who...