United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1651

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Frederick Ahlemeier, III, *

*

Appellant. *

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Submitted: September 14, 2004

Filed: December 10, 2004 (corrected 12/16/04)

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Before BYE, BOWMAN, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

I. Background

On January 29, 1999, Ahlemeier pled guilty to possession of child

pornography. He was sentenced to twenty-one months imprisonment, followed by

thirty-six months of supervised release. He voluntarily surrendered on June 14, 1999

and was imprisoned. Ahlemeier was released from prison and was placed on

supervised release on October 3, 2000. The term of supervised release was to expire

on October 2, 2003.
1

The local ordinance prohibiting stalking reads: 

A person commits the crime of stalking when a person purposely and

repeatedly harasses or follows with the intent of harassing another

person. As used in this Ordinance, “Harasses” means to engage in a

course of conduct directed at a specific person that serves no legitimate

purpose, that would cause a reasonable person to suffer substantial

emotional distress. As used in this ordinance, “Course of Conduct”

means a pattern of conduct composed of a series of acts over a period of

time, however short, evidencing a continuity of purpose.

Constitutionally protected activity is not included within the meaning of

“Course of Conduct.”

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Ahlemeier’s conditions of supervised release were modified on June 10, 2002

to include the additional condition that Ahlemeier enter and complete a sexual

offender treatment program. Ahlemeier entered the sex-offense specific program of

Psychological Services under counselor William B. Brown (“Brown”) on September

18, 2001 and began attending counseling sessions.

On July 6, 2003, Ahlemeier was involved in an incident at a Best Buy Store in

Chesterfield, Missouri. Ahlemeier allegedly paced around the store with a camera

and took pictures of women. After observing this behavior, the store manager asked

Ahlemeier to leave the store. Ahlemeier left, and employees subsequently called the

police. The next day, July 7, 2003, Ahlemeier attended a group counseling session

and failed to mention the incident to his counselor or support group. On July 8, 2003,

Kenneth R. Fitzgerald (“Fitzgerald”), U.S. Probation Officer, informed Brown of the

incident. Brown concluded at that time that he would terminate Ahlemeier from the

treatment program. 

Ahlemeier was charged with stalking based on his actions at the Best Buy

store.1

 He received notice of the charge by mail on July 8, 2003 and apparently was
2

The terms of probation at issue read:

1) While on supervised release, the Defendant shall not commit another

federal, state, or local crime; and

2) Special Condition (as modified 6/10/2002): 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

determined by the probation office.

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not contacted by the police before that time. The stalking charges were dismissed on

December 16, 2003.

On July 10, 2003, Fitzgerald filed a petition with the district court requesting

that the court revoke Ahlemeier’s supervised release. The petition stated that

Ahlemeier had violated his supervised release because he had committed a local

crime and because he was not in compliance with his treatment program.2

 

Ahlemeier informed Fitzgerald of the charge by a letter dated July 14, 2003.

Ahlemeier continued to attend his counseling sessions until July 28, 2003. On July

30, 2003, he was arrested by the U.S. Marshal and incarcerated. On August 4, 2003,

Ahlemeier had his Preliminary Supervised Release Revocation and Detention

Hearing. The magistrate judge found probable cause to believe Ahlemeier had

violated a condition of his supervised release and ordered Ahlemeier be detained until

his revocation hearing.

On September 4, 2003, the district court held a Supervised Release Revocation

Hearing. The government did not pursue its claim that Ahlemeier had committed a
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local crime. However, the government proceeded with its charge that Ahlemeier had

failed to participate in a sex-offense specific treatment program. The court agreed

and sentenced Ahlemeier to nine months in prison, followed by twenty-seven months

supervised release. 

On September 11, 2003, Ahlemeier filed a Motion to Arrest Judgment and/or

Reconsideration. He filed an amended version of this motion October 1, 2003. On

October 2, 2003, following a telephone conference between the attorneys and the

district court, the district court set aside its September 4 judgment and set a

Supervised Release Revocation hearing for October 24, 2003.

On October 24, 2003 and March 5, 2004, the district court held two Supervised

Release Revocation hearings. The district court heard testimony from Fitzgerald,

Brown, Josh King, the Chesterfield Police Officer who investigated the Best Buy

incident, Craig Houseman, a Best Buy employee and witness of the incident, and

Renee Mansker, a Best Buy employee and alleged victim of the incident. The district

court found Ahlemeier had violated the terms of his supervised release by failing to

mention the Best Buy incident to Brown. Because Ahlemeier withheld this

information during counseling, the district court found that he had failed to cooperate

and complete the program. The district court again sentenced Ahlemeier to nine

months imprisonment, followed by twenty-seven months of supervised release.

Ahlemeier now appeals. 

II. Discussion

A. Standard of Review

If the government proves by a preponderance of the evidence that the defendant

violated a condition of supervised release, the district court has the discretion to

revoke supervised release. 18 U.S.C. § 3583(e)(3) (“The court may . . . revoke a term

of supervised release, and require the defendant to serve in prison all or part of the
3

The government claims that Ahlemeier received a document entitled

Supervised Release Revocation Sentencing Computation Summary, as well as

discovery, including the police report. In our analysis, we assume that Ahlemeier’s

version of the facts are correct.

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term of supervised release authorized by statute for the offense that resulted in such

term of supervised release . . . if the court . . . finds by a preponderance of the

evidence that the defendant violated a condition of supervised release.”). We review

the district court’s decision to revoke supervised release for an abuse of discretion.

United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). 

B. Notice, Non-Disclosure of Evidence, and Hearsay Evidence

Before the court revokes supervised release, the defendant is entitled to a

revocation hearing. Fed. R. Crim. P. 32.1(b)(2). In connection with that hearing, a

defendant is entitled to: (A) “written notice of the alleged violation,” (B) disclosure

of the government’s evidence against him or her, (C) “an opportunity to appear,

present evidence, and question any adverse witness unless the court determines that

the interest of justice does not require the witness to appear,” and (D) notice of the

right to retain counsel or to request appointed counsel. Id. at (A)-(D).

Ahlemeier makes three arguments involving Rule 32.1. First, he argues that

his written notice was insufficient. Second, he argues that the government failed to

properly disclose evidence against him. Third, he argues that the district court erred

in relying on hearsay evidence presented at the revocation hearing. We will address

each argument in turn.

1. Notice

Ahlemeier states that his written notice of his alleged violation consisted of the

Petition for Revocation of Supervised Release (the “Petition”), a document prepared

by the probation officer.3

 The pertinent part of this document reads:
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Violation Number

Special Condition (as modified on 6/10/02): The defendant shall

participate in a sex-offense specific treatment program. The defendant

shall enter, cooperate, and complete said program until release 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.

Nature of Noncompliance

On July 8, 2003, this officer contacted Bill Brown of Brown

Psychological Services, the offender’s sexual offender treatment

provider, to inform him of the above charge. Brown indicated that the

offender would be terminated from treatment for lack of treatment

progress, however, Brown would continue to counsel the offender, for

community safety reasons, until action was taken by the Court.

(Petition, p. 2.) The Petition also outlines Ahlemeier’s alleged behavior during the

Best Buy incident. It relays the observations of the Best Buy manager, who stated

that Ahlemeier approached an “employee so he would be able to see down inside her

blouse and take photographs” and took a picture of another woman who was bending

down to look at merchandise. Id. 

Ahlemeier contends that this notice was insufficient because it did not specify

that his violation was based, in part, on his failure to mention the Best Buy incident

at counseling. However, the notice did state that he was being “terminated from

treatment for lack of treatment progress.” Id. This put Ahlemeier on notice that his

progress in counseling was unsatisfactory. The detailed allegations about his

behavior at the Best Buy store informed Ahlemeier that his unsuccessful performance

in treatment was related to the Best Buy incident. This was enough to put Ahlemeier
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on notice that his alleged violation concerned his participation in counseling, or lack

thereof, in relation to the Best Buy incident. 

Moreover, Ahlemeier had the benefit of seeing evidence that identified the

particular allegations against him on multiple occasions prior to his October 2003 and

March 2004 Revocation Hearings. Ahlemeier contends that the government’s

original position was that Ahlemeier simply failed to attend sessions and that the

government did not assert that Ahlemeier failed to cooperate with counseling until

the October 24, 2003 hearing. (Ahlemeier’s Brief, p. 18.) However, the record shows

that during his Preliminary Supervised Release Revocation and Detention Hearing on

August 4, 2003, Fitzgerald testified that Ahlemeier had failed to cooperate in

counseling and was therefore terminated from the program. Defense counsel asked

Fitzgerald about how Ahlemeier allegedly violated the special condition of his

supervised release regarding counseling. Fitzgerald testified that “under that

condition he is to cooperate and complete the program, and by his actions he was not

meeting the requirements of the program, so he was terminated.” (Preliminary

Supervised Release Revocation and Detention Hearing, August 4, 2003, p. 12

(emphasis added).)

Evidence that the charge concerned Ahlemeier’s failure to report the Best Buy

incident was also presented at Ahlemeier’s September 4, 2003 Sentencing Hearing.

At the hearing, the district court stated:

The allegation is that on July 8th of this year the Brown Psychological

Services where you were receiving this treatment was notified of the

situation in Chesterfield and indicated that because of that and your

failure to report to . . . Brown Psychological Services that you would be

terminated from that program[.]

(Transcript of Sentencing, September 4, 2003, p. 2 (emphasis added).) The charge

that Ahlemeier had failed to report the Best Buy incident at counseling and was
4

The fact that the government subsequently referred to the charge in shorthand,

stating merely that Ahlemeier failed to attend counseling sessions, (see, e.g.,

Government’s Supervised Release Revocation Hearing Memorandum, filed October

6, 2003, p. 2, Hamilton Add. p. 68.), does not erase the prior testimonial evidence and

statements made by the court. The evidence and statements focused on Ahlemeier’s

failure to disclose his experience at Best Buy in counseling as giving rise to a

violation of a condition of his supervised release.

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terminated as a result was explicitly spelled out by the court.4

 Ahlemeier was put on

notice that his failure to disclose the incident would be an issue at his revocation

hearing. Therefore, any possible defect in the written notice was harmless. See Fed.

R. Crim. P. 31.1(b)(1)(A), (b)(2), 52(a). 

2. Non-Disclosure of Evidence

Ahlemeier contends that the government failed to disclose the evidence against

him because he did not receive a list of witnesses that the government planned to

present at the revocation hearing. Rule 32.1(b)(2) does not require the disclosure of

a witness list but rather a disclosure of the evidence upon which the government

relies to support the violation. In this case, the government provided Ahlemeier with

discovery that included the names of several witnesses: Police Officer King, the

alleged victim, Fitzgerald, and Brown, as well as the relevant police report. It should

have come as no a surprise to Ahlemeier that these witnesses testified, and we find

no evidence to suggest that the lack of a witness list inhibited Ahlemeier from

preparing his defense.

3. Hearsay Evidence

Ahlemeier argues that his revocation of supervised release is unsupportable

because the district court relied on an expert’s decision to terminate him from

treatment, and the decision to terminate him from treatment was based on incorrect

and unreliable hearsay. 
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First, we question whether this is truly a “hearsay” issue. Persons on probation

or supervised release are routinely ordered to participate in drug, alcohol, or sex

offender treatment programs. Successful participation in and completion of those

programs is a routine condition of supervision. In many cases, a court must rely upon

the group counselor to assess whether the person is making satisfactory progress and

can remain in the group. Those decisions made by a counselor can be based on a

number of factors, including hearsay from third persons, lack of participation, or

cooperation by the offender, as well as other subjective factors. There may well be

cases where the information relied upon by a counselor to terminate a person from the

program is so unreliable that the termination would not support a finding that a

condition of supervision had been violated. This is not such a case. There is no

indication the counselor acted in an arbitrary or capricious manner when he

terminated Ahlemeier for his failure to report an incident the counselor deemed to be

quite serious.

Moreover, the normal rules for use of hearsay at a revocation hearing were

clearly met in this case. “Hearsay evidence offered by the government may be

admitted at a supervised release revocation hearing if the evidence is sufficiently

reliable and the government has a ‘reasonably satisfactory explanation’ for not

producing the witness.” United States v. Martin, 371 F.3d 446, 448 (8th Cir. 2004),

(quoting United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994)). The district

court must engage in a balancing test and weigh the defendant’s right to confront

adverse witnesses against the grounds asserted by the government for not producing

the witness. United States v. O’Meara, 33 F.3d 20, 21 (8th Cir. 1994). “The

[g]overnment may show good cause by demonstrating the hearsay evidence is reliable

and by offering a reasonably satisfactory explanation why live testimony is

undesirable or impracticable.” Id. 

Ahlemeier makes clear in his reply brief that his hearsay argument concerns the

information Fitzgerald told Brown that led Brown to determine that Ahlemeier was
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not progressing in treatment and terminate him from the program. It is true that

Brown did not see the incident at the Best Buy store first hand and that he relied on

this information when making his treatment decision. However, each person who

acted as an underlying source of information testified in the hearing, and Ahlemeier

had the opportunity to cross-examine each one. Brown made the ultimate decision

that Ahlemeier was not cooperating and should be terminated; Brown testified and

was cross-examined. In making this decision, Brown relied on information from

Fitzgerald; Fitzgerald testified and was cross-examined. Fitzgerald relied on the

police report, drafted by King; King testified and was cross-examined. King drafted

his police report based on statements from Houseman; Houseman testified and was

cross-examined. Houseman witnessed the events. Thus, Ahlemeier’s right to

confront adverse witnesses was not infringed.

C. Standards of Supervised Release

Ahlemeier contends that the district court abused its discretion when it revoked

his supervised release and sentenced him because his alleged violation does not fit

within the standard for revocation of supervised release. This argument is spurious.

One condition of Ahlemeier’s supervised release was that he was required to

“participate in a sex-offense specific treatment program.” The requirement further

stated: “The defendant shall enter, cooperate, and complete said program until

released by the United States Probation Officer.” 

At the supervised release revocation hearing, Brown testified that Ahlemeier

attended a group counseling session on July 7, 2003, one day after the Best Buy

incident, and failed to mention the incident. Brown testified that by withholding this

information from the group, Ahlemeier was unable to use his resources to prevent a

relapse of deviant behavior. When asked directly whether Ahlemeier was cooperating

in treatment, Brown answered, “Certainly, he was not. My concern is the description

of what was given to me in that he was in fact relapsing and he was withholding the
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information, essentially. He was not cooperative.” (Transcript of Supervised Release

Revocation Hearing, 10/24/03 at 91.) 

In addition, when Brown learned of the Best Buy incident on July 8, 2003, he

decided to terminate Ahlemeier from the treatment program. After this date and until

Ahlemeier’s incarceration, Brown continued to counsel Ahlemeier in “community

protection status,” an arrangement in which Brown would continue to see Ahlemeier,

though Ahlemeier remained terminated from the treatment program. An offender in

community protection status cannot complete the treatment program.

The government’s burden was to prove by a preponderance of the evidence that

Ahlemeier had violated a condition of his supervised release. The government

presented direct testimony from Ahlemeier’s counselor that Ahlemeier was not

cooperating in treatment. The district court also heard testimony that Ahlemeier had

been terminated from the treatment program and no longer had the ability to complete

the sex-offense specific treatment program, as required by a condition of his

supervised release. It was therefore not an abuse of discretion for the district court

to conclude that Ahlemeier had violated the condition that required him to cooperate

in a sex-offense specific treatment program.

D. Fairness

Ahlemeier also argues that withholding information in a counseling session

does not “rise[] to the level of an ultimate finding that there was a violation of the

conditions of supervised release for which the penalty is incarceration of nine (9)

months.” (Ahlemeier’s Brief, p. 24.) Ahlemeier’s assertion here seems to be that

being incarcerated for nine months is too stiff a penalty for not completing his

supervised release conditions. This is simply not the case. As discussed above, 

The court may . . . revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of supervised release
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authorized by statute for the offense that resulted in such term of

supervised release without credit for time previously served on

postrelease supervision, if the court . . . finds by a preponderance of the

evidence that the defendant violated a condition of supervised release.

18 U.S.C. § 3583(e). Violating a condition of supervised release constitutes a Grade

C Violation. U.S. Sentencing Guidelines Manual § 7B1.1(a)(3). “Upon finding of

a Grade C violation, the court may . . . revoke . . . supervised release.” U.S.S.G.

§ 7B1.3(a)(2). For an individual with a Grade C violation and a criminal history

category of I, as in the case before us, the Guidelines suggest a term of imprisonment

between three and nine months. U.S.S.G. § 7B1.4(a). Ahlemeier received nine

months, within the suggested range.

E. Initiation of Proceedings by Probation Officer

Last, Ahlemeier argues that the probation officer exceeded his authority when

he commenced proceedings to revoke Ahlemeier’s supervised release. In support, he

cites United States v. Jones, 957 F.Supp. 1088, 1091 (E.D. Ark. 1997) (holding the

government, and not the probation office, should commence supervised release

revocation proceedings). However, the balance of the case law holds the practice of

probation officers petitioning the court to revoke supervised release is legal. The

circuit courts to address the issue have uniformly disagreed with Jones and upheld the

practice. United States v. Amatel, 346 F.3d 278, 280 (2d Cir. 2003) (holding that

Jones stands alone and that every case decided since Jones has affirmed the legality

of petitions by probation officers); United States v. Cofield, 233 F.3d 405, 408-09

(6th Cir. 2000) (holding probation officer has authority to file a petition to revoke

supervised release); United States v. Mejia-Sanchez, 172 F.3d 1172, 1174 (9th Cir.

1999) (same); United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (same).

We join our sister circuits and hold that probation officers may properly petition the

court for a revocation of supervised release.
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III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

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