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United States v. Leiter

United States District Court, D. Minnesota

October 11, 2017


          Douglas Earl Leiter, pro se.


         Defendant Douglas Leiter was convicted of tax-related offenses after a jury trial at which he represented himself and relied mostly on tax-protester arguments. Leiter was sentenced to 121 months in prison and three years of supervised release. ECF No. 207. Leiter's conviction became final in September 2009, after his time to appeal expired. See Fletcher v. United States, 858 F.3d 501, 504 (8th Cir. 2017). Leiter did not challenge his conviction or sentence under 28 U.S.C. § 2255. Leiter was recently released from prison and is now serving his three-year term of supervised release.

         This matter is before the Court on Leiter's motion under 18 U.S.C. § 3583 challenging most of the conditions of his supervised release. Much of Leiter's motion is devoted to arguing that the Court erred in rejecting his numerous challenges to his criminal prosecution. Because Leiter's conviction became final many years ago, however, it is far too late for Leiter to make such arguments. See 28 U.S.C. § 2255(f) (imposing one-year statute of limitations on challenges under § 2255); Fed. R. App. P. 4(b)(1)(A) (2009) (allowing ten days for a defendant to file a notice of appeal in a criminal case). Even if it were not too late, the Court would reject Leiter's arguments, as they are as frivolous today as they were eight years ago.

         As for his challenges to his supervised-release conditions, Leiter contends that they are only now ripe for review because, at the time that he filed his motion, his release (and therefore the enforcement of those conditions) was imminent. The Court recognizes that some support for Leiter's argument can be found in United States v. Thomas, 198 F.3d 1063 (8th Cir. 1999). The Court nevertheless holds that Leiter's challenges are untimely.

         In Thomas, the defendant argued on direct appeal that a condition of his supervised release was unconstitutionally vague and fundamentally unfair. Id. at 1065. The Eighth Circuit declined to entertain the defendant's challenge, finding that it was premature. Id. The court reasoned that, during the defendant's nearly ten-year prison sentence, “any number of events may occur that would make the condition irrelevant.” Id. Thus, the court concluded, “[u]ntil such time as the condition's enforcement is imminent, the dispute is only abstract.” Id. The court went on to note that the defendant could move to modify the conditions and, if the defendant's supervised release were later revoked, he would have “the opportunity for appellate review at that time.” Id.

         Thomas therefore could be read to suggest that at least some of Leiter's challenges to his supervised-release conditions are timely. For several reasons, however, the Court respectfully declines to follow Thomas:

         First and most importantly, Thomas is inconsistent with numerous cases involving lengthy prison sentences in which the Eighth Circuit considered, on direct appeal, challenges that were materially indistinguishable from those raised in Thomas. See, e.g., United States v. Deatherage, 682 F.3d 755 (8th Cir. 2012) (defendant sentenced to 70 months allowed on direct appeal to raise First Amendment challenge to conditions); United States v. Schaefer, 675 F.3d 1122 (8th Cir. 2012) (defendant sentenced to 97 months allowed on direct appeal to challenge conditions on ground that they infringed his constitutionally protected relationship with his children); United States v. Stults, 575 F.3d 834 (8th Cir. 2009) (defendant sentenced to 144 months allowed on direct appeal to challenge condition as unconstitutionally vague); United States v. Choate, 101 F.3d 562 (8th Cir. 1996) (defendant sentenced to 38 months allowed on direct appeal to challenge condition as overly broad); United States v. Smith, 972 F.2d 960 (8th Cir. 1992) (defendant sentenced to 51 months allowed on direct appeal to challenge condition of supervised release as infringing his right to father children).

         Second, Thomas is in considerable tension with the fact that district courts are charged with making an individualized inquiry into the reasonableness and necessity of each condition of supervised release at the time of sentencing. See Schaefer, 675 F.3d at 1124. Thomas's concern with avoiding “abstract” questions therefore seems misplaced; if a district court is obligated to make certain that a condition of supervised release is valid at the time it is imposed, why would an appellate court not have the same obligation on direct appeal? The issue is no more “abstract” for the appellate court than it is for the district court.

         Third, the fact that circumstances might change while a defendant is in prison is a particularly odd basis on which to hold that a purely legal challenge of the type raised in Thomas is premature. Thomas's vagueness challenge-that is, an argument that a condition of supervised release was invalid on its face-is not affected by the passage of time. That challenge was, in fact, more concrete and amenable to decision on direct appeal than, say, an argument that a condition of supervised release is more restrictive than necessary under the circumstances. Yet the Eighth Circuit routinely considers the latter type of challenge on direct appeal, even in cases involving lengthy sentences. See, e.g., Stults, 575 F.3d at 850 (defendant sentenced to 144 months allowed, on direct appeal, to challenge four conditions of supervised release on the ground that they constituted a greater deprivation of liberty than necessary).

         Finally, Thomas makes it difficult to know how and when a defendant is supposed to challenge a condition of supervised release. As noted, Thomas seemed to suggest that the defendant's “opportunity for appellate review” would be after a revocation proceeding. Thomas, 198 F.3d at 1065. But in United States v. Miller, 557 F.3d 910 (8th Cir. 2009)-a decision issued ten years after Thomas-the Eighth Circuit held that a defendant cannot challenge the validity of his supervised-release conditions in a revocation proceeding and further noted that such challenges should be raised on direct appeal or in a “habeas corpus proceeding.” Id. at 913. The Miller panel was apparently unaware that the Thomas panel had already held that such challenges cannot, in fact, be raised on direct appeal-at least where the defendant has received a lengthy prison sentence.[1] Likewise, a motion under 28 U.S.C. § 2255 is unlikely to be a suitable vehicle for challenging supervised-release conditions in cases involving even modestly long prison sentences. The applicable statute of limitations will normally dictate that such motions be brought at a time when the defendant's challenge would presumably still be considered premature under Thomas. Oddly, then, a motion under 18 U.S.C. § 3583(e)(2)-a provision permitting courts to “modify, reduce, or enlarge the conditions of supervised release”-appears to be the only way for a defendant to challenge the legality of a condition of supervised release, at least when the defendant has been sentenced to a long prison term. The Court has difficulty believing that the Eighth Circuit intended such a result.

         For all of these reasons, then, the Court concludes that Thomas is inconsistent with Eighth Circuit precedent-including precedent that predates it-and therefore declines to follow the decision. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (when panel opinions conflict, the earlier of the opinions must be followed, as it should have controlled the subsequent panels). Leiter should have challenged the validity of his supervised-release conditions on appeal or by way of a § 2255 motion. It is too late for Leiter to challenge those conditions now, eight years after they were imposed.

         Even if Leiter's challenges were timely, however, the Court would reject them on the merits:[2]

         First, Leiter challenges several conditions on the ground that they violate the Fourth Amendment's prohibition on unreasonable searches. Defendants under supervision have a diminished expectation of privacy, however, and suspicionless searches are generally permissible so long as the defendant had notice that he was subject to such searches. See United States v. Jackson, 866 F.3d 982, 985 (8th Cir. 2017) (“Given Jackson's diminished expectation of privacy as a supervised releasee, and the clear notice that his cell ...

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