United States v. Smith

961 F.3d 1000

UNITED STATES of America, Plaintiff-Appellee,

v.Gary Lee SMITH, Defendant-Appellant.

No. 19-2513

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2020

Filed: June 5, 2020

Shane Cantin, Carver, Cantin and Mynarich, Springfield, MO, for appellant.

David Wagner, Asst. U.S. Atty., Kansas City, MO (Timothy A. Garrison, U.S. Atty., on the brief), for appellee.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

BENTON, Circuit Judge.

Gary Lee Smith appeals the denial of his motion to modify two conditions of supervised release. Smith was convicted in 2003 of producing, transporting, and reproducing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and 2252(a)(2). The district court sentenced him to 235 months in prison, followed by 5 years of supervised release. This court affirmed. United States v. Smith , 367 F.3d 748, 751 (8th Cir. 2004). The district court denied his motion under 28 U.S.C. § 2255. Smith v. United States , 2006 WL 2338254, at *1 (W.D. Mo. Aug. 14, 2006), aff'd, 256 Fed. Appx. 850, 851 (8th Cir. 2007), cert. denied, 552 U.S. 1270, 128 S.Ct. 1681, 170 L.Ed.2d 377 (2008). In 2019, the district court¹ partly granted and partly denied his motion to modify the conditions of supervised release. Smith appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

This court reviews for abuse of discretion a district court's decision to modify conditions for supervised release. United States v. Winston , 850 F.3d 377, 379 (8th Cir. 2017). Underlying questions of compliance with due process and the rules of criminal procedure are reviewed de novo. Id. at 379-80.

Smith argues that the district court should have held a hearing before modifying two conditions of supervised release. A court "may modify, reduce, or enlarge the conditions of supervised release ... pursuant to the provisions of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3583(e)(2) . A court must hold a hearing before modifying conditions of supervised release, unless, as relevant here, (A) waived;² or the relief sought (B) is favorable to the defendant ..., and (C) is not, after notice and reasonable opportunity, objected to by the government. Fed. R. Crim. P. 32.1(c) .

I.

The original Condition 6, imposed at Smith's sentencing, said:

The defendant will not associate or have any contact (including incidental contact such as being present in locations where minors frequent) with persons/females/males under the age of 18, except in the presence of a responsible adult who is aware of the nature of the defendant's background and current offense and who has been approved by the Probation Office.

Smith moved to modify this condition, objecting that "being present in locations where minors frequent" was overly broad. He asserted it would restrict him from almost every common space, including grocery stores, mass transit, sporting events, and restaurants. He suggested:

Defendant shall have no contact with any person under the age of 18 except (1) in the presence of an adult who is aware of the nature of the defendant's background and current offense, and who has been approved by the U.S. Probation office; (2) in the course of normal commercial business; or (3) in other cases of unintentional and incidental contact.

The government did not object to this modification, but requested adding a sentence:

The defendant is barred from places where minors (under the age of 18) congregate, such as residences, parks, pools, daycare centers, playgrounds and schools, unless written consent is granted by the Probation Office.

Agreeing with both Smith and the government, the district court replaced the original condition with Smith's suggestion, plus the added sentence. The district court said in its order that it was granting Smith's motion for Condition 6 and "will modify" the condition. See United States v. James , 792 F.3d 962, 972-73 (8th Cir. 2015) (holding that a court modifies conditions when it "broadens the deprivation of liberty" or "expands the burden" on the defendant). Cf. United States v. Durham , 618 F.3d 921, 934 (8th Cir. 2010) (holding that a court does not modify conditions by issuing a later version with an innocuous discrepancy that does not conflict with an earlier version, even if the two do not track word-for-word). Concluding that "the relief sought is favorable" to Smith, the district court denied a hearing.

The district court erred by denying Smith a hearing before modifying Condition 6. See Fed. R. Crim. P. 32.1(c) . Rule 32.1(c)(1) requires a hearing before "modifying" the conditions of supervised release. Id. 32.1(c)(1) . No exception to the hearing requirement applies here, because the government objected and the district court adopted the government's proposed changes to the condition. See id. 32.1(c)(2) . The relief that Smith received was less favorable than what he sought. See id. 32.1(c)(2)(B) . The district court should have held a hearing.³

Although the district court erred by denying a hearing, the government contends that any error was harmless. See Fed. R. Crim. P. 52(a) . Any error that does not affect substantial rights "must be disregarded." Id. See 28 U.S.C. § 2111 (requiring appellate court to give judgment "without regard to errors or defects which do not affect the substantial rights of the parties"). To affect substantial rights "in most cases ... means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings." United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The government has the burden to prove harmless error. United States v. Pirani , 406 F.3d 543, 550 (8th Cir. 2005) (en banc), citing Olano , 507 U.S. at 734-35, 113 S.Ct. 1770. When analyzing for harmless error, reversal is not required "if the basis for the imposed condition can be discerned from the record." United States v. Thompson , 653 F.3d 688, 694 (8th Cir. 2011) (upholding condition restricting pornography because record showed defendant's sexual interest in children).

The government reasons that the added sentence does not restrict Smith beyond the original condition, and is, in fact, favorable to him. The added sentence—barring Smith from places where minors "congregate"—means the same as the original restriction, barring him from places minors "frequent." See United States v. Bender , 566 F.3d 748, 753 (8th Cir. 2009) (analyzing restriction on places "minors are known to frequent" under "congregate" case law); United States v. Ristine , 335 F.3d 692, 696-97 (8th Cir. 2003) (upholding restriction on places where minor children "congregate" by relying on case upholding restriction on "places, establishments, and areas frequented by minors"). The added sentence's list of example locations gives Smith guidance, and does not bar him from places where minors do not actually congregate. See United States v. Crume , 422 F.3d 728, 733-34 (8th Cir. 2005) (holding that condition barring defendant "from places where minor children under the age of 18 congregate such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools" only barred him from places where children "actually congregate"); Ristine , 335 F.3d at 696-97 (same). Importantly, the new condition adds safe harbors for Smith, allowing him contact with minors in the course of normal commercial business, and unintentional and incidental contact. See United States v. Muhlenbruch , 682 F.3d 1096, 1104 (8th Cir. 2012) (noting that exception for incidental contact makes restriction on contact with minors reasonable). When modifying Condition 6, the court narrowed it favorably to Smith.

A hearing would not have changed this outcome by enabling Smith to obtain the even more favorable relief that he sought: the removal of any restriction on places where minors congregate or frequent. Conditions restricting defendants with child pornography offenses from places where minors frequent or congregate are common. See, e.g. , United States v. Wiedower , 634 F.3d 490, 497-98 (8th Cir. 2011) (upholding bar on "direct contact with minors ... and ... entering into any area where children frequently congregate including, but not limited to, schools, daycare centers, theme parks, theaters, and playgrounds" because defendant was convicted of possessing child pornography). Smith received notice of the government's added sentence (which the district court adopted). He had opportunity to reply to the government's proposal—and he did reply. The entire record shows no facts that would have affected the district court's decision to keep the restriction on places where minors congregate or frequent. Because denying a hearing did not affect Smith's substantial rights, the district court's order on Condition 6 is affirmed.

II.

A.

Smith argues that the court unfavorably modified Condition 7. The original condition, imposed at sentencing, said:

The defendant will neither possess nor have under his control any matter that is pornographic or that depicts or alludes to sexual activity or depicts minors under the age of 18. This includes, but is not limited to, any matter obtained through access to any computers or any material linked to computer access or usage.

Smith believed this condition was unconstitutionally vague, overbroad, and infringed his First Amendment right to view non-obscene material containing nudity. He sought to replace it with:

The defendant shall neither possess nor have under his control any material which contained [sic] child pornography, or photographic evidence of children engagerd [sic] in any sexual conduct as defined by 18 U.S.C. § 2256.

Instead, at the government's suggestion, the district court modified the condition to resolve Smith's constitutional concerns by replacing it entirely with:

The defendant will neither possess nor have under his control any matter that is pornographic/erotic; or that describes sexually explicit

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