FILED

United States Court of Appeals

Tenth Circuit

June 3, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-2040

LEHMAN SMITH,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR-1:07-00791-MCA-1)

Mark D. Standridge (Mark D. Jarmie with him on the briefs), Jarmie &

Associates, Albuquerque, New Mexico, for Appellant.

Laura Fashing, Assistant United States Attorney (Gregory J. Fouratt, United

States Attorney, with her on the brief) Office of the United States Attorney,

Albuquerque, New Mexico, for Appellee.

Before BRISCOE, Chief Judge, McWILLIAMS, Senior Circuit Judge, and

TYMKOVICH, Circuit Judge.

TYMKOVICH, Circuit Judge.

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1

 The factual background is based on the district court’s findings and

holdings relating to, as well as, the hearing on Smith’s motions to suppress, the

trial, and Smith’s sentencing hearing, respectively. 

2

 A type of traditional Navajo dwelling.

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A jury convicted Lehman Smith of sexual assault, and he was sentenced to

60 months’ imprisonment and 36 months of supervised release. Smith appeals his

conviction and sentence, raising four pretrial and trial issues: the district court

erred by (1) refusing to suppress his confession, (2) admitting hearsay evidence

under the excited-utterance exception, (3) finding that evidence sufficient to

sustain his conviction was introduced, and (4) imposing special conditions of

supervised release restricting his contact with minors and the disabled. 

Our jurisdiction arises under 18 U.S.C. §§ 1291 and 3742. We AFFIRM

the rulings of the district court. 

I. Background1

On March 24, 2007, Smith, an Indian, and the victim, “Jane Doe,” both

attended a party at a hogan2

 located in the Navajo Nation. They and other

attendees at the party consumed beer, and some used drugs. The party broke up

after midnight. While everyone else left the hogan, Smith and Jane Doe

remained. Jane Doe fell asleep on a couch at around 2:00 a.m.

Jane Doe awoke to find Smith having sex with her. She pushed Smith off,

confronted him, and fled the hogan. She sought assistance at a neighbor’s trailer,

claiming she had been raped. She then called the police. Jane Doe was taken to

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an emergency room. DNA samples taken by an examining doctor were later

matched to Smith. 

That same day, Smith was arrested on charges based on the Navajo tribal

code. He was taken to a local jail, where he was advised of his rights and

questioned by law enforcement officials, including a member of the FBI. During

the interview, Smith confessed to sexually assaulting Jane Doe. He then provided

a written statement of confession.

After additional investigation, a federal arrest warrant was obtained for

Smith on March 27, 2007. In accordance with that warrant, Smith was transferred

into federal custody. 

Ultimately, a jury convicted Smith of knowingly engaging and attempting

to engage in a sexual act with a person incapable of apprising the nature of the

conduct and of communicating unwillingness to engage in the sexual act, in

Indian Country, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). The

district court sentenced Smith to 60 months’ imprisonment and 36 months of

supervised release. The district court also established special conditions of

supervised release, limiting Smith’s ability to have contact with children and

disabled adults. 

II. Discussion

Smith argues the district court made four errors. First, he contends the

district court should have suppressed his confession because (a) it was not made

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knowingly and voluntarily, and (b) he was not promptly taken before a federal

magistrate judge. Second, he asserts that the district court improperly allowed

Jane Doe’s statement to the neighbor—“Help me, help me. He raped me.”—to be

admitted under the excited-utterance exception to the hearsay rule. Third, he

challenges the district court’s conclusion that evidence sufficient to sustain his

conviction was presented at trial. Finally, Smith seeks reversal of the special

conditions of supervised release relating to children and disabled adults that the

district court imposed.

We address each contention in turn.

A. The Confession

When reviewing the district court’s denial of a motion to suppress, we

review legal conclusions de novo and findings of fact for clear error. See United

States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). We view the evidence

in the light most favorable to the government. See id.

1. Voluntariness

Smith first argues his confession should have been suppressed because it

was not made knowingly and voluntarily. We do not agree.

According to testimony at the suppression hearing, Smith drank a

substantial amount of alcohol, smoked marijuana, and ingested cocaine on

Saturday, March 24, 2007. He was last seen consuming those substances

sometime before 3:00 a.m. on Sunday, March 25, 2007. 

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On March 25, at approximately 7:30 a.m., Officer Anthony Ashley of the

Navajo Nation Department of Public Safety responded to Smith’s residence. 

Officer Ashley had been told that Smith sexually assaulted Jane Doe and was

following up on the victim’s call to tribal police. After Smith’s grandmother let

him into the house, Officer Ashley found Smith asleep and smelling of alcohol. 

Officer Ashley woke Smith, introduced himself, and arrested Smith on tribal

sexual assault charges. During this time, Officer Ashley noticed that Smith spoke

to his grandmother clearly and coherently. 

Smith was subsequently taken to a local jail. Shortly after 11:00 a.m. that

morning, FBI Special Agent Rob Sayegh and Navajo Nation Criminal Investigator

Rosina Ford interviewed Smith. The interview took place in a room roughly eight

feet by eight feet in size. Smith was not handcuffed during the interview. At the

time the interview was conducted, Smith did not appear to be intoxicated and he

did not smell of alcohol. In response to some preliminary questions, Smith

indicated that he was sober and able to talk, he had been educated through the

tenth grade, and he could understand the English language. 

At 11:29 a.m., Agent Sayegh read Smith his Miranda rights and provided

him an advice of rights form to read and sign. Smith signed the form at

11:31 a.m. After signing the form, Smith stated he was willing to answer

questions without a lawyer being present. 

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Throughout the interview, Smith provided clear, responsive, and specific

answers to the interviewers’ questions. Smith proceeded to confess that he had

sexually assaulted the victim. Thereafter, prompted by Agent Sayegh, Smith

agreed to make a written statement. Agent Sayegh provided Smith a form upon

which he wrote: “What I did was not me. I was not thinking. I was [d]runk. I

feel sick of [myself] because of what I did. I had sex with her. I pulled down her

pants . . . . I had sex with her for 30 min[utes,] while she was [asleep].” Aple.

Br., Ex. 2. Smith signed the form, attesting to both the statement he wrote on it

and its pre-printed contents. The pre-printed portions of the form acknowledge

that the written statement it contains is true and correct, and was made by Smith

after he was advised of his constitutional rights and without pressure or coercion.

The interview ended on March 25 at 12:39 p.m.

Smith moved the district court to suppress his written statement, claiming

that he was intoxicated at the time he was apprised of his constitutional rights and

that Agent Sayegh coerced his confession by instructing him on what to include in

his statement and with promises of leniency. The district court refused to

suppress Smith’s confession, concluding he knowingly and voluntarily waived his

Miranda rights and voluntarily made his written statement while sober and

coherent. In particular, the district court did not credit witness testimony that

Smith consumed at least 20 cans of beer during the party. 

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A waiver of Miranda rights must be made voluntarily, knowingly, and

intelligently. See Smith v. Mullin, 379 F.3d 919, 932 (10th Cir. 2004). Our

inquiry into a waiver’s validity has two dimensions:

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather

than intimidation, coercion, or deception. Second, the waiver must

have been made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it. 

Only if the totality of the circumstances surrounding the

interrogation reveal both an uncoerced choice and the requisite level

of comprehension may a court properly conclude that the Miranda

rights have been waived.

Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In determining

whether rights were voluntarily waived, we consider: the suspect’s age,

intelligence, and education; whether the suspect was informed of his or her rights;

the length and nature of the suspect’s detention and interrogation; and the use or

threat of physical force against the suspect. See Smith, 379 F.3d at 934; United

States v. Minjares-Alvarez, 264 F.3d 980, 985 (10th Cir. 2001).

The same factors are assessed in determining whether a confession was

voluntarily given. See Smith, 379 F.3d at 934; Minjares-Alvarez, 264 F.3d at

984S85. In addition, identifying coercive police activity is a necessary predicate

to finding that a confession is not voluntary. See Smith, 379 F.3d at 934. 

Importantly, “[t]he state of intoxication does not automatically render a statement

involuntary.” United States v. Muniz, 1 F.3d 1018, 1022 (10th Cir. 1993). 

Rather, the test is “whether a [suspect’s] will was overborne by the circumstances

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surrounding the giving of a confession.” Dickerson v. United States, 530 U.S.

428, 434 (2000) (internal quotation marks omitted). 

The district court determined that both Smith’s waiver of his constitutional

rights and confession were valid, and we see no clear error in its finding

concerning Smith’s mental state. Nothing suggests that Smith was intoxicated, or

otherwise incapable of sufficient comprehension, when Agent Sayegh advised him

of his Miranda rights or when he signed the form acknowledging that he had been

apprised of, understood, and waived those rights. At the time Smith waived his

constitutional rights, it had been eight and a half hours since he had last been seen

drinking, he did not appear intoxicated to the interviewers, he did not smell of

alcohol, he stated that he was sober when asked, and he provided clear responses

to a substantial number of questions. As to his contention that his Miranda

waiver was ineffective because he could not read the waiver form without his

glasses, at the time of the waiver he did not complain of vision trouble or

cognition problems. 

The record likewise demonstrates Smith’s waiver of his rights was

voluntary. When Smith waived his Miranda rights, he was nearly 21 years of age

and had completed the tenth grade. Smith waived his rights after he had been

informed of them both orally by Agent Sayegh and in writing through the advice

of rights form. Prior to waiving his rights, Smith had been under arrest for

approximately three hours but had not been questioned. The interview took place

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in a room large enough to accommodate adequately the interviewers. Smith was

not handcuffed during the interview. Additionally, there is no indication in the

record that Smith was treated impolitely or touched forcefully while being

interviewed.

Based on those same considerations, we conclude that Smith’s written

confession also was made voluntarily. The record does not demonstrate the law

enforcement officers who interviewed Smith used coercion. First, the statements

Agent Sayegh made to Smith concerning his confession and the structure of his

written statement were not objectively coercive. And, in fact, the written

statement form Smith signed states that he was not coerced or pressured in any

way. In addition, given the circumstances of Smith’s interview, even if it was

shown that he was imperceptibly intoxicated at the time, the district court did not

clearly err in rejecting the claim that his “will was overborne.” Dickerson, 530

U.S. at 434. 

In sum, the district court did not err in concluding that Smith waived his

rights and confessed knowingly, intelligently, and voluntarily. 

2. Presentment Rule

Smith next contends that his confession should be suppressed because he

was not presented to a federal magistrate within six hours of his arrest. 

Smith was arrested on tribal charges on Sunday, March 25, 2007, at

approximately 7:30 a.m. Agent Sayegh advised Smith of his rights at 11:29 a.m.

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and subsequently questioned him. Smith’s interview ended at 12:39 p.m. Smith

made his confession sometime between 11:29 a.m. and 12:39 p.m. Following

Smith’s interview, Agent Sayegh conducted some additional investigation before

obtaining a federal arrest warrant on Tuesday, March 27, 2007. Based on that

warrant, and on the same day it was issued, the Navajo authorities released Smith

into federal custody.

Smith moved the district court to suppress his written statement, claiming

he was not promptly presented to a neutral and detached judicial officer. The

district court denied Smith’s motion, ruling that his prompt-presentment argument

failed as a matter of law. 

Federal law requires an arrestee to be promptly presented to a federal

magistrate judge. See Corley v. United States, 129 S. Ct. 1558, 1563 (2009). 

Failure to bring an arrestee before a magistrate promptly may result in the

exclusion of a confession. See id. at 1571. Guiding the relationship between the

requirement of prompt presentment and the consequence of suppression, 18

U.S.C. § 3501(c) provides:

In any criminal prosecution by the United States . . . , a confession

made or given by a person who is a defendant therein, while such

person was under arrest or other detention in the custody of any

law-enforcement officer or law-enforcement agency, shall not be

inadmissible solely because of delay in bringing such person before a

magistrate judge or other officer empowered to commit persons

charged with offenses against the laws of the United States . . . if

such confession is found by the trial judge to have been made

voluntarily and if the weight to be given the confession is left to the

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jury and if such confession was made or given by such person within

six hours immediately following his arrest . . . . (emphasis added)

 

In construing this statute, the Supreme Court recognizes the six-hour period

between arrest and confession acts as a safe harbor against claims of improper

delay:

[A] district court with a suppression claim must find whether the

defendant confessed within six hours of arrest. If the confession

came within that period, it is admissible, subject to the other Rules of

Evidence, so long as it was made voluntarily and the weight to be

given it is left to the jury. If the confession occurred before [the

defendant’s] presentment [to a federal magistrate] and beyond six

hours, however, the court must decide whether delaying that long

was unreasonable or unnecessary under the McNabb-Mallory cases,

and if it was, the confession is to be suppressed. 

Corley, 129 S. Ct. at 1571 (internal parenthetical and punctuation omitted). 

But the presentment rule does not begin to operate, and the six-hour safe

harbor period is not implicated, until a person is arrested for a federal offense. 

See United States v. Alvarez-Sanchez, 511 U.S. 350, 358 (1994). Where a person

is under arrest on solely non-federal charges, neither the prompt-presentment rule

nor the safe-harbor period are relevant even when the arresting officers believe

the person also may have violated federal law or the person makes an inculpatory

statement to federal agents. See id. at 358S59. 

The district court correctly ruled the presentment rule did not support

suppressing Smith’s confession. First, Smith was not arrested on a federal charge

until March 27, 2007. The presentment rule did not become operative until that

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time and therefore it did not bear on Smith’s March 25, 2007 arrest and

confession.

Second, even if Smith had been arrested for a federal offense on March 25,

rather than on a Navajo charge, the presentment rule would not warrant

suppression of his written statement, because—at most—five hours and 10

minutes elapsed between Smith’s arrest and confession. Smith was arrested at

approximately 7:30 a.m. on March 25 and confessed before Agent Sayegh

terminated the interview at 12:39 p.m. Thus, had Smith’s initial arrest by Officer

Ashley implicated the presentment rule, the rule would have been satisfied

because Smith made his written statement less than six hours after this arrest.

Accordingly, we find the district court did not err by refusing to suppress

Smith’s written confession based on the presentment rule. 

B. Excited Utterance

Smith next asserts the district court improperly allowed hearsay evidence to

be introduced at trial. After realizing she had been sexually assaulted, Jane Doe

confronted Smith. An altercation ensued, Jane Doe struck Smith, and then fled

the hogan, seeking assistance at a neighbor’s trailer. Jane Doe’s pounding on the

trailer’s front door awakened the neighbor at approximately 4:30 a.m. The

neighbor answered the door and found Jane Doe crying and screaming—“Help

me, help me. He raped me.” R. at 536. 

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Prior to and during trial, Smith sought to exclude as hearsay Jane Doe’s

statement to the neighbor regarding the assault. The district court allowed the

challenged statement to be introduced, determining that it was covered by the

excited-utterance exception to the hearsay rule. 

We review the district court’s admission of evidence over a hearsay

objection for abuse of discretion. See United States v. Pursley, 577 F.3d 1204,

1220 (10th Cir. 2009), cert. denied, 130 S. Ct. 1098 (2010). “Due to the factspecific nature of a hearsay inquiry, the district court’s ruling necessitates

heightened deference.” Id. (internal quotation marks omitted).

Hearsay evidence is generally not admissible, see FED. R. EVID. 802, but an

exception is made for statements relating to a “startling event or condition,” see

FED. R. EVID. 803(2). The so-called “excited-utterance exception has three

requirements: (1) a startling event; (2) the statement was made while the declarant

was under the stress of the event’s excitement; and (3) a nexus between the

content of the statement and the event.” Pursley, 577 F.3d at 1220. “[T]here is

no precise amount of time between the event and the statement beyond which the

statement cannot qualify as an excited utterance.” United States v. Ledford, 443

F.3d 702, 711 (10th Cir. 2005). Admissibility hinges on a statement’s

contemporaneousness with the excitement a startling event causes, not the event

itself. See Pursley, 577 F.3d at 1221S22.

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For a number of reasons, the district court did not abuse its discretion in

admitting Jane Doe’s statement. First, a startling event occurred—the sexual

assault. That event was sufficiently supported by Jane Doe’s testimony at trial

that she was raped, and Smith’s confession that he raped Jane Doe. 

Second, we have little difficulty concluding Jane Doe was under the stress

of the assault’s excitement when she made the statement. In considering this

element, 

[a]mong the more relevant factors are: the amount of time between

the event and the statement; the nature of the event; the subject

matter of the statement; the age and condition of the declarant; the

presence or absence of self-interest; and whether the statement was

volunteered or in response to questioning. 

Id. at 1220. Here, Jane Doe fell asleep in the hogan around 2:00 a.m., Smith

sexually assaulted her for 30 minutes, and she made the challenged statement to

the neighbor at approximately 4:30 a.m. The record describes a confusing series

of events after Jane Doe realized and understood the nature of the assault. Jane

Doe confronted Smith, struck him, and eventually received assistance from the

neighbor. At the first possible moment to disclose the assault to another person,

she made the challenged statement. The neighbor’s testimony confirms Jane

Doe’s demeanor and tone, which were consistent with ongoing stress arising from

the assault.

Nor does the passage of time suggest the stress had dissipated. Other

courts have found the excited-utterance exception applies where more time

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elapsed between the startling event and the excited statement. For example, in

United States v. Cruz, 156 F.3d 22 (1st Cir. 1998), the First Circuit held a

statement could be admitted as an excited utterance when there was a four-hour

delay between a violent domestic altercation and statements made by the victim at

a battered women’s shelter. See id. at 30 (cited with approval in Pursley, 577

F.3d at 1221). Similarly, in United States v. Tocco, 135 F.3d 116 (2d Cir. 1998),

the Second Circuit ruled a statement could be admitted under the excitedutterance exception where three hours passed between the discovery that people

were in a burning building and the declarant’s statement that he was involved in

the arson. See id. at 128 (also cited with approval in Pursley, 577 F.3d at 1221). 

And, we have noted that a statement made by a child the day after being molested

could have been admitted as an excited utterance where the child was described as

frightened and on the verge of tears when the declaration was made. See United

States v. Farley, 992 F.2d 1122, 1123, 1125S26 (10th Cir. 1993). Here, less than

two hours after being raped and only upon escaping from Smith, Jane Doe—still

under obvious stress from the attack—made the statement to the neighbor. 

Smith suggests Jane Doe lied about the assault to hide what was a

consensual sexual encounter from her boyfriend. But that contention is not borne

out by the record and is inconsistent with the other evidence of the assault and the

circumstances indicating ongoing stress.

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 Smith also contends admission of the statement violated the Confrontation

Clause under the standard enunciated in Crawford v. Washington, 541 U.S. 36, 54

(2004). Even if Jane Doe’s statement were testimonial—and we do not

necessarily agree that it was—Smith’s Sixth Amendment argument would fail

because Jane Doe testified at trial. See Delaware v. Fensterer, 474 U.S. 15, 20

(1985) (“[T]he Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.”) (emphasis in original). 

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Finally, Smith does not contest the obvious nexus between the content of

the statement—Jane Doe’s utterance—“Help me, help me. He raped me.”—and

the startling event, her sexual assault. 

We cannot conclude therefore that the district court erred by permitting the

neighbor’s testimony concerning Jane Doe’s statement to be introduced at trial.3

The contested statement was correctly admitted as an excited utterance. 

C. Sufficiency of the Evidence

Smith also contends that evidence sufficient to sustain his conviction was

not introduced at trial. Our review of the record for sufficiency of the evidence is

de novo. See United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997).

“Evidence is sufficient to support a [] conviction if a reasonable jury could

find the defendant guilty beyond a reasonable doubt, given the direct and

circumstantial evidence, along with reasonable inferences therefrom, taken in a

light most favorable to the government.” United States v. Mains, 33 F.3d 1222,

1227 (10th Cir. 1994). We consider the collective inferences that can be drawn

from the evidence as a whole in assessing the sufficiency of the evidence. See

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Wilson, 107 F.3d at 778. We disregard only incredible testimony—“i.e.,

testimony as to facts that the witness physically could not have possibly observed

or events that could not have occurred under the laws of nature.” Tapia v. Tansy,

926 F.2d 1554, 1562 (10th Cir. 1991) (internal quotation marks omitted).

To prove Smith guilty of the crime for which he was indicted, the

government was required to demonstrate beyond a reasonable doubt that:

(1) Smith knowingly engaged, or attempted to engage, in a sexual act

with Jane Doe;

(2) the sexual act consisted of the penetration, however slight, of

Jane Doe’s genital opening by Smith’s penis;

(3) Jane Doe could not communicate unwillingness to engage in the

sexual act;

(4) the sexual act took place on or about March 25, 2007;

(5) the sexual act took place in Indian Country; and 

(6) Smith is an Indian. 

R. at 5; see also 18 U.S.C. §§ 1153, 2242(2), 2246(2)(A). Smith specifically

contends insufficient evidence was presented to support the jury’s findings that he

acted knowingly and that Jane Doe was unable to communicate unwillingness to

partake in the sexual act.

 At trial, the government introduced evidence concerning the sexual assault,

Jane Doe’s post-assault physical exam, and Smith’s confession. Among that

already discussed above, the evidence as a whole adequately supported the jury’s

finding of each element of the crime. As to knowledge and Jane Doe’s ability to

communicate unwillingness, the evidence demonstrated the following:

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• Jane Doe was heavily intoxicated before the assault and wished to sleep in

the hogan; she fell asleep on a couch in the hogan around 2:00 a.m.

• Some time later, Jane Doe, who had been sleeping on her stomach, woke up

to find Smith on top of her and engaged in sex. 

• At first, Jane Doe believed she was dreaming; when she realized what was

actually happening, she pushed Smith off of her and pulled up her pants.

• Sometime later, Jane Doe fled the hogan and sought assistance at a

neighbor’s trailer, shouting, “Help me, help me. He raped me.” 

• Smith’s later written confession states, “I had sex with her. I pulled down

her pants . . . . I had sex with her for 30 min[utes,] while she was

[asleep]..” Aple. Br., Ex. 2. 

• During his interview with Agent Sayegh, Smith, in addition to writing the

confessional statement discussed above, admitted having sex with Jane Doe

while she was asleep. 

• Smith never stated that Jane Doe agreed to have sex with him.

The district court properly ruled that evidence sufficient to sustain Smith’s

conviction was presented at trial, and thus did not err by denying Smith’s requests

for a judgment of acquittal and a new trial. 

As a fall back position, Smith also argues that he could not meet the

requisite mental state because he was intoxicated at the time the assault took

place. However, Smith was convicted of a general intent crime—the element

“knowingly” corresponds with the concept of general intent, see United States v.

Blair, 54 F.3d 639, 641 (10th Cir. 1995)—and voluntary intoxication is no

defense to a general intent crime, see United States v. Hatatley, 130 F.3d 1399,

1405 (10th Cir. 1997). Accordingly, the contents of Smith’s written statement

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and Jane Doe’s testimony at trial, whether considered independently or in

combination, provide sufficient grounds for a reasonable jury to conclude that

Smith acted with the requisite intent. 

In sum, viewing all the evidence in the light most favorable to the

government, sufficient evidence was presented to sustain Smith’s conviction. The

district court did not err in denying Smith’s requests for a judgment of acquittal

and a new trial.

D. Supervised Release

Finally, Smith argues the district court erred by imposing conditions of

supervised release limiting his ability to have contact with children and disabled

adults. We review the district court’s imposition of special conditions of

supervised release for abuse of discretion. See United States v. Hahn, 551 F.3d

977, 982 (10th Cir. 2008), cert. denied, 129 S. Ct. 1687 (2009). 

In addition to sentencing Smith to a 60-month term of imprisonment and a

36-month term of supervised release, the district court established special

conditions of supervised release restricting Smith’s ability to have contact with

children and disabled adults. In doing so, the district court overruled Smith’s

objections to the following special conditions:

- The defendant is restricted from engaging in an occupation

where he has access to children, without prior approval of the

probation officer.

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- The defendant must not loiter within 100 feet of school yards,

parks, playgrounds, arcades, or other places used primarily by

children under the age of 18.

- The defendant must not volunteer for any activities in which

he supervises children or adults with mental or physical

disabilities without prior authorization of the probation officer.

- The defendant must not have contact with children under the

age of 18 without prior authorization of the probation officer. 

He must immediately report unauthorized contact with children

to the probation officer.

Aplt. Br., Ex. 1 at 5. 

 Smith objected to those conditions on the grounds that they were not

reasonably related to deterrence, public safety, or rehabilitation, and that they

were more restrictive than necessary. In overruling Smith’s objections, the

district court explained:

The victim here was a woman who was asleep when she was raped . .

. . She was in a situation that made her vulnerable. [T]he conduct of

the defendant, as viewed through the evidence presented to the jury,

was that he took advantage of someone who could not protect

[herself] . . . . I don’t know how you draw a line and say that[,]

because the victim in this case was over the age of 18 . . . , [] any

person, child, individual, teenager . . . may not be as vulnerable. I

think they can be.

[U]ntil we get the results of the psychosexual evaluation,

which will be conducted [] immediately after his release, we will

keep [these conditions] in place . . . . [V]ulnerability has, in my

view, no age limit. [O]nce that evaluation is completed, [] any and all

of these conditions will be revisited, if necessary, and all of the

conditions are subject to modification at that time.

R. at 897S98.

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We require conditions of supervised release to be linked to the offense and

be no broader than necessary to rehabilitate the defendant and protect the public. 

They must:

(1) be reasonably related to the nature and circumstances of the

offense and the history and characteristics of the defendant and (2)

involve no greater deprivation of liberty than is reasonably necessary

given the needs 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.

Hahn, 551 F.3d at 983. The district court is required to provide at least

generalized reasons for imposing special conditions of supervised release. See id.

at 982.

The district court did not abuse its discretion by imposing special

conditions of supervised release limiting Smith’s ability to have contact with

children and disabled adults. At sentencing, the district court explained its

reasoning for establishing the special conditions Smith challenges. First, the

district court considered Smith’s rape of Jane Doe to be an attack on a vulnerable

person—the fact that Jane Doe was sleeping rendered her vulnerable and unable

to protect herself. 

Second, the district court determined that vulnerability has “no age limit,”

noting that nothing suggests children, teenagers, and adults cannot be as

vulnerable as Jane Doe. R. at 898. We find that assessment of Smith’s crime

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 We are mindful that the special conditions imposed will not be enforced

until Smith is released from prison. While subject to later modification, the

requirements are part of the sentencing court’s final orders, and are in that sense

not contingent upon future events. For those reason, they are ripe for

consideration now. See United States v. White, 244 F.3d 1199, 1207 (10th Cir.

2001); cf. United States v. Rhodes, 552 F.3d 824, 628-29 (7th Cir. 2009)

(conditions too contingent).

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reasonable and thus conclude that the special conditions he contests are rationally

related to the nature and circumstances of his offense and the need to protect the

public. 

We also conclude that the special conditions the district court established

do not involve a greater deprivation of liberty than is reasonably necessary to

protect the public. The conditions will be informed by a psychological evaluation

performed after completion of his sentence, and they can be modified according

to the results of that examination. Moreover, we agree with the government that

we can fairly presume Smith’s probation officer will apply the conditions in a

reasonable manner.

But one aspect of the special conditions of supervised release warrants

further consideration. Smith has a child, and, read literally, the conditions

prohibit contact with his child as well as other minor siblings.4

 Smith points to

United States v. Davis, 452 F.3d 991 (8th Cir. 2006), United States v. Voelker,

489 F.3d 139 (3d Cir. 2007), and United States v. Loy, 237 F.3d 251 (3d Cir.

2001), in support of his argument that the special conditions the district court

established unduly constrain his liberty. In each of those cases, the court used

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broad language to impose special conditions of supervised release limiting the

defendants’ contact with children. Read literally, the blanket language at issue in

those cases—like the language used in the special conditions challenged in this

case—could have barred the defendants from having any contact with their own

children. 

Those courts properly recognized the fundamental right of familial

association and acknowledged that only a compelling government interest can

override that right. For example, in Davis, after noting there was no evidence the

defendant had sexually abused or would sexually abuse his child, the court held

the conditions restricting the defendant’s access to children, including his own

child, were overbroad. See Davis, 452 F.3d at 994S96. Employing the same

rationale, the Voelker court, observing there was evidence the defendant may be

capable of exploiting his child, remanded the case so the district court could

define the scope of the condition in question and supplement the record to show a

compelling need for the condition. See Voelker, 489 F.3d at 153S55. Finding

there was no evidence the defendant would be a danger to his own children, the

Loy court ruled the challenged condition should be construed to apply only to

children other than his own. See Loy, 237 F.3d at 269S70. Given the

fundamental nature of the right to family integrity, the court concluded the

district court would have provided a clearer indication if it intended the condition

to operate otherwise. See id. at 270. 

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We agree with these courts that special conditions that interfere with the

right of familial association can do so only in compelling circumstances. While

we recognize Smith has demonstrated a willingness and ability to prey on

vulnerable individuals, the record does not unambiguously support a finding that

Smith is a danger to his own child or minor siblings. The district court should

clarify the scope of the special conditions as to them.

As to other children, the district court appropriately balanced the liberty

interests at stake. The behavior for which Smith was convicted—demonstrating

his capacity to prey on essentially incapacitated young women—warrants

significant concern for the public’s safety. The special conditions at issue

completely prohibit Smith from loitering within 100 feet of places primarily used

by children under the age of 18. Smith may still have contact with children under

18 years of age, work where he has access to children, and volunteer to supervise

children and disabled adults, but he must do so with his probation officer’s prior

authorization. 

Given Smith’s crime, we do not find those conditions create a greater than

reasonably necessary deprivation of liberty. Moreover, we note the district

court’s declaration at sentencing that the special conditions it established will be

reevaluated, and modified or suspended as called for, based on Smith’s postrelease psychosexual examination. That evidence-based tailoring will further

ensure the special conditions are no broader than is reasonably necessary. Smith

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5

 In his reply brief to this court, Smith raises, for the first time, the

argument that the special conditions the district court imposed impermissibly

delegate authority to the probation office. Because “issues raised by an appellant

for the first time on appeal in a reply brief are generally deemed waived,” we will

not consider this argument. Wheeler v. Comm’r Internal Revenue, 521 F.3d 1289,

1291 (10th Cir. 2008). We note, however, the district court’s psychosexual exambased tailoring of the special conditions of supervised release will likely ensure

that any power actually delegated to the probation office is adequately

constrained. 

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moreover remains free to ask the court to modify the conditions pursuant to Rule

32.1(c) of the Federal Rules of Criminal Procedure.

In sum we do not find the district court erred by imposing special

conditions on Smith’s supervised release.5

 The special conditions the district

court established are reasonable, subject to reconsideration of their application to

his child and siblings. 

III. Conclusion

For the foregoing reasons, we AFFIRM the rulings of the district court. We

REMAND to the district court for further proceedings as to the scope of the

special conditions. 

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