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The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3712

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Joseph F. Heidebur, * Eastern District of Missouri

*

Appellant. *

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Submitted: April 11, 2005

 Filed: July 26, 2005

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Before COLLOTON, McMILLIAN and BENTON, Circuit Judges.

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McMILLIAN, Circuit Judge.

Joseph F. Heidebur (defendant) appeals from a final order entered in the United

States District Court1

 for the Eastern District of Missouri granting the government’s

petition to modify the conditions of his supervised release. United States v. Heidebur,

No. 1:95CR00052 (E. D. Mo. Oct. 29, 2004) (Order Modifying the Terms of

Supervision) (hereinafter “Order”). For reversal, defendant argues that the district

court abused its discretion in imposing two special conditions of supervised release
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which, he contends, involve greater deprivation of liberty than is reasonably

necessary. We affirm.

Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.

Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal

was timely filed pursuant to Fed. R. App. P. 4(b).

Background

In the underlying criminal matter, defendant was indicted on August 22, 1995,

on one count of possession of materials involving the sexual exploitation of a minor,

in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment was based on three

sexually explicit photographs, found in defendant’s home, which he had taken of his

twelve-year-old stepdaughter. Defendant was tried before a jury and found guilty.

On appeal, this court vacated the conviction based upon an evidentiary issue. United

States v. Heidebur, 122 F.3d 577 (8th Cir. 1997) (holding that district court’s

admission of evidence that defendant had sexually molested his stepdaughter was

improper because it showed propensity and was not probative of his knowing

possession of the photographs). On remand, defendant pled guilty. On January 12,

1998, defendant was sentenced to sixty months imprisonment and two years of

supervised release.

After defendant had completed his prison term, the government filed a petition

requesting that the conditions of his supervised release be modified. The government

proposed numerous additional conditions, of which defendant opposed two on the

ground that they would deprive him of liberty more than is reasonably necessary. The

district court held a hearing on the matter, and on October 29, 2004, issued its order

modifying the terms of defendant’s supervised release. The district court imposed

eight additional special conditions, including the following two which defendant had

opposed: 
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2. The defendant shall participate in a sex-offense specific treatment

program. The defendant shall enter, cooperate, and complete said

program until released by the United States Probation Officer. The

defendant shall abide by all policies and procedures of the sex-offense

specific program. During the course of said treatment, the defendant

shall be subject to periodic and random physiological testing which may

include but is not limited to polygraph testing and/or other specialized

assessment instruments. The defendant shall contribute to the cost of

treatment in an amount to be determined by the probation office.

3. The defendant shall be prohibited from contact with children under

the age of 18 without the prior written permission of the probation

officer and shall report to the probation officer immediately, but in no

event later than 24 hours, any unauthorized contact with children under

the age of 18. 

Order at 1. 

Defendant timely appealed.

Discussion

We review the imposition of a special condition of supervised release for an

abuse of discretion. United States v. Carlson, 406 F.3d 529, 531 (8th Cir. 2005).

“District courts are normally afforded wide discretion in imposing terms of

supervised release.” United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000)

(Kent). 

In Kent, we noted that the district court, at sentencing, must consider the

following factors:

(1) the nature and circumstances of the offense and the defendant’s

history and characteristics; and (2) the need for the sentence to (A)
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reflect the gravity of the offense, promote respect for the law, and justly

punish the defendant for the unlawful behavior, (B) adequately deter

criminal behavior, (C) protect the public, and (D) effectively provide

necessary educational or vocational training, medical attention, or other

correctional treatment. 

Id. at 1075-76 (citing 18 U.S.C. § 3553(a)(1), (2)(A)-(D) (1998)).

We then went on to explain that each of the above factors, with the exception

of subsection (2)(A), are “equally applicable considerations in the imposition of a

term of supervised release.” Id. at 1076 (citing 18 U.S.C. § 3583(c)). Moreover, we

noted, U.S.S.G. § 5D1.3(b) also addresses conditions of supervised release, and it

“mirrors § 3583(c)’s adoption of § 3553(a).” Id. Both 18 U.S.C. § 3583(d)(2) and

U.S.S.G. § 5D1.3(b) instruct that conditions of supervised release should not involve

a greater deprivation of liberty than is reasonably necessary. 

In the present case, defendant argues that special condition No. 2, requiring

him to participate in a sex-offense specific treatment program, is not justified by any

specific concerns articulated by his probation officer at the hearing and, moreover,

it jeopardizes his ability to comply with another condition of his supervised release,

retaining employment. See Brief for Appellant at 11-12. In support of the latter

contention, he notes that he objected to this special condition at the hearing on the

ground that he lives and works in rural Ste. Genevieve County, and it would take him

several hours to travel to and from the City of St. Louis, the only place where he

could attend the required type of treatment program. He further points out that,

although the probation officer testified that she would not consider it a violation if he

were to lose his employment because of his participation in a required treatment

program, there is no certainty that she will continue to be his probation officer for the

duration of his supervised release.
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Upon review, we conclude that special condition No. 2 is justified by several

relevant factors, including: the nature and circumstances of the underlying criminal

offense, defendant’s history and characteristics, the need to deter future criminal

behavior, and the need for effective correctional treatment. See 18 U.S.C.

§ 3553(a)(1), (2)(B)-(D). Having been convicted of possessing materials involving

the sexual exploitation of his twelve-year-old stepdaughter, defendant is not in a

position to argue that it was inappropriate for the district court to require him to

participate in a sex-offense specific treatment program. Cf. Kent, 209 F.3d at 1076-

78 (where the defendant had been convicted of mail fraud and attempting to interfere

with a financial institution’s reporting compliance, holding that the district court

abused its discretion in imposing a special condition of supervised release requiring

participation in mental health counseling at the probation officer’s direction where

the government conceded that the special condition was unrelated to the defendant’s

offenses). Moreover, although the probation officer testified that she knew of only

one outpatient sex-offense specific treatment program in the area, she further testified

that the program entails only one meeting per week in the evening. In view of the

seriousness of the underlying offense, the appropriateness of the treatment program

being required, the improbability that the program will significantly interfere with

defendant’s employment, and the probation officer’s testimony that a loss of

employment would not be considered a violation if caused by the required treatment,

we hold that the minimal deprivation of liberty that may result from special condition

No. 2 is not greater than that which is reasonably necessary under the circumstances.

Defendant also challenges special condition No. 3, prohibiting him from

contact with children under the age of 18 unless the probation officer has given prior

written permission or defendant reports such contact to the probation officer within

24 hours. Defendant argues that the district court abused its discretion in imposing

this special condition because it is unreasonably vague, it is not justified by any

specific concerns articulated at the hearing, and it is not “finely tuned” to his

particular circumstances. Brief for Appellant at 13-14. 
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 As previously emphasized, defendant was convicted of conduct involving the

sexual exploitation of a minor. Special condition No. 3 is justified by several relevant

factors set forth in 18 U.S.C. § 3553(a)(1), (2)(B)-(D), including: the nature and

circumstances of the underlying criminal offense, defendant’s history and

characteristics, the need to deter future criminal behavior, and the need to protect the

public. The deprivation of liberty that may result from special condition No. 3 is not

greater than that which is reasonably necessary under the circumstances. See United

States v. Jodon, 2001 WL 1098100 (8th Cir. 2001) (unpublished) (per curiam)

(upholding a special condition of supervised release restricting the defendant’s access

to children where the defendant had pled guilty to transportation of obscene matter

after he transmitted a sexually explicit picture of himself over the internet to a minor);

United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (upholding special

condition of supervised release restricting the defendant from unapproved contact

with children under the age of 18 where the defendant had been convicted of

engaging in abusive sexual contact with a child under the age of 12), cert. denied, 526

U.S. 1093 (1999).

Conclusion

 The district court did not abuse its discretion in imposing the special

conditions of supervised release challenged by defendant. The order of the district

court is affirmed.

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