Date: 06-21-2018

Case Style:

Case Number: 16-4114

Judge: Melloy

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Northern District of Iowa (Linn County)

Plaintiff's Attorney: Patrick J. Reinert, Daniel C Tvedt, Shawn Stephen Wehde

Defendant's Attorney: John Bishop

Description: Defendant-Appellant Lawrence Glover appeals a special condition of
supervised release imposed as part of a revocation sentence. The special condition
prohibits Glover from having contact with his fiancée, Myesha Watkins, who is the
mother of his child. We vacate the special condition.
I.
In September 2011, Glover was sentenced to 71 months’ imprisonment and 5
years’ supervised release for distributing cocaine base. The district court later reduced
his term of imprisonment to 60 months. In November 2015, he began serving his term
of supervised release. In October 2016, he was arrested for unlawfully possessing
marijuana packaged for delivery and interfering with official acts.
Based in part on these acts, the district court found him in violation of the terms
of his supervised release. The district court imposed a revocation sentence of 8
months’ imprisonment and 4 years’ supervised release, with the new special condition
that he not have contact with Watkins. We recount the details of events leading to his
2016 arrest as relevant to the challenged condition of supervised release.
A Cedar Rapids police officer noticed a van without license plates and began
pursuit. A car between the officer and the van appeared to be trailing the van, but
turned onto a different street, and the officer continued following the van. After the
van pulled into a driveway, the officer pulled in directly behind the van, blocking the
driveway.
Upon approaching the van on foot, the officer and her partner smelled raw
marijuana. Another officer arrived and also smelled raw marijuana. Eventually,
officers asked Glover to exit his van, and they attempted to place him in the back of
a squad car. When officers opened the door to the squad car, however, Glover
escaped on foot.
Other officers captured Glover several blocks away. Upon searching the van,
officers discovered a mason jar holding a small quantity of marijuana packaged in
seven bags worth an estimated total of $140. In addition, a later search of his home
revealed $3,800 in bundled cash, identification materials belonging to another person,
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evidence showing that he had repeatedly traveled outside the district in violation of
his supervised release, a baggie fragment containing three Lorazepam tablets not
prescribed to him, and an abundance of possibly stolen clothes still bearing store tags.
Glover shared the home with Watkins.
At Glover’s revocation hearing, an officer testified that the car that had initially
been between the squad car and the van was a “trailing car.” According to the officer,
a trailing car will often follow a lead car carrying drugs, guns, or cash so that the
trailing car can prevent police from apprehending the lead car. Typically, the trailing
car will physically block the police, perform a blatant traffic violation, or employ
other means to draw police away.
The same officer testified that, during a recorded phone call after Glover’s
arrest, Glover and Watkins discussed the driver of the trailing vehicle. Neither the
recording of the phone call nor a transcript of the recording were introduced at the
hearing. The officer testified about the call as follows:
Q. And can you tell me what you heard during that conversation with
the defendant regarding trailing vehicles?
A. During — that conversation kind of reaffirms what I know to be
true with the use of trailing vehicles. During that conversation,
she [Watkins] was upset that that trailing car didn’t do its job,
which would be to run interference for the police so the lead
vehicle would not have contact with the police.
Q. Did the defendant talk about Chuck [the trailing-car driver] going
one way?
A. Yes.
Q. What did he say about that, do you recall?
A. I believe he — there was some conflict between the girlfriend and
this Chuck person. Chuck’s recollection was that the first vehicle
had sped up, making it difficult for him to do his job, and that’s
why he pulled off.
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Q. So did the defendant also talk about seeing Chuck in his rearview
mirror pulling off?
A. Yes.
Q. So they were both upset that the trailing vehicle disappeared
before the defendant was stopped by the police that morning?
A. Yes.
On cross-examination, defense counsel asked the officer about his recollection
of the phone call:
Q. You testified about the phone conversation that you listened to.
And, I guess, as I understood it, and correct me if I’m wrong, you
seemed to be kind of generalizing what the conversation was
rather than giving a more verbatim version of the conversation.
Is that a fair characterization?
A. Yes.
Q. Do you remember — I don’t expect you to be able to regurgitate
exactly what was said, but can you give a more, I guess, accurate
version of exactly what that conversation was?
A. I hesitate to do that. I’ve only heard it a couple of times.
As the sentencing hearing progressed, there was little additional reference to
Watkins. Glover admitted to possessing most of the materials found in the van and
at his home. He stated, however, that the tagged clothing belonged to Watkins.
Then, when making arguments as to possible sentences, defense counsel
advocated a lenient sentence based upon the fact that Glover had a newborn child. At
that time, the government had not requested a special no-contact condition as part of
supervised release. In fact, no party had raised the issue of a no-contact condition
between Glover and Watkins. In response to counsel’s reference to a newborn and
family, the following exchange took place:
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THE COURT: What is this girlfriend’s name, Myesha, what?
PROB. OFFICE: Watkins.
THE COURT: All right. He’s not going to be able to have contact
with her because she was engaged in criminal
activity with him. I don’t know if that’s the person
that’s going to have the baby, but we have the phone
call where she is obviously involved with this
marijuana and the trailing car and the like, so we’ll
have to work through that with him in terms of
visitation with the child when the child is born.
Finally, later in the hearing, when addressing Glover’s credibility and
announcing the sentence, the court again referenced Watkins, stating:
As far as the reference to stolen articles in the house, I don’t know if they
were stolen, the clothing. He claims those belong to his girlfriend. I’m
sure that those can be traced back. If he says they’re his girlfriend’s and
they’re stolen, they’re shoplifted, then that will be another issue for the
Cedar Rapids Police to look at.
Glover appeals only the no-contact special provision of his supervised release.
II.
District courts possess “wide discretion,” United States v. Wroblewski, 715
F.3d 701, 702 (8th Cir. 2013) (per curiam), in fashioning conditions of supervised
release, but such conditions must be “reasonably related” to several of the § 3553(a)
sentencing factors, 18 U.S.C. § 3583(d)(1). Those factors include “the nature and
circumstances of the offense and the history and characteristics of the defendant,” and
“the need for the sentence imposed . . . to afford adequate deterrence to criminal
conduct . . . to protect the public from further crimes of the defendant . . . and to
provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner.” Id. § 3553(a)(1),
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(a)(2)(B)–(D). Further, the conditions must “involve[] no greater deprivation of
liberty than is reasonably necessary” for the purposes of 18 U.S.C.
§ 3553(a)(2)(B)–(D). Id. § 3583(d)(2). Importantly, “[w]hen crafting a special
condition of supervised release, the 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) (citation omitted). In
other words, “a district court may not impose conditions on the basis of pure
speculation or assumptions.” United States v. Schaefer, 675 F.3d 1122, 1124 (8th Cir.
2012) (citation omitted).
This demand for an individualized review is the natural extension of the general
requirement that a condition involve “no greater deprivation of liberty than is
reasonably necessary.” 18 U.S.C. § 3583(d)(2). Without a careful analysis of the
personal relationship and its connection to a defendant’s conduct, the need for
deterrence, and possible correctional treatment or rehabilitation, it cannot be known
if a no-contact provision is appropriate or greater than necessary.
Here, we conclude the district court’s explanation was not sufficient to permit
meaningful appellate review. It appears Watkins had knowledge of at least some of
Glover’s criminal activity, but the nature of her involvement is unclear. The items in
the home bore little apparent connection to Watkins, and the district court made no
findings regarding her connection to the money or clothes. Finally, when imposing
the special condition, the district court expressed uncertainty as to whether Watkins
was the mother of Glover’s child. As such, we vacate the challenged special
condition.
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III.
“When the government has had a full and fair opportunity to present its
evidence, we follow the traditional path of limiting [it] to one bite at the apple.”
United States v. Hobbs, 845 F.3d 365, 369 (8th Cir. 2016) (alteration in original)
(citation omitted). Here, however, the government did not have a full and fair
opportunity to present its evidence as to Glover’s relationship with Watkins or her
involvement in his criminal activity. The government had not requested the condition,
and Glover made no contemporaneous objection.

Outcome: Accordingly, although we vacate the special condition, we do so without prejudice to the government’s ability to move for additional proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: