United States of America v. The-Nimrod Sterling, also known as Nimrod Sanders
No. 19-1711
United States Court of Appeals For the Eighth Circuit
Submitted: January 13, 2020; Filed: May 13, 2020
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock
Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
The-Nimrod Sterling began a two-year term of supervised release in December 2018 after completing a 57-month prison sentence for impersonating a foreign diplomat in violation of
I. Background
After a series of Arkansas convictions in the 1990‘s, Sterling‘s federal incarceration began with a 2002 conviction in the Northern District of Illinois for a bank robbery during which he threatened a bank clerk with a BB gun. The PSR for that offense recited that he robbed the bank to force a police officer to kill him. While detained, Sterling attempted to hang himself with his sock and repeated threats to kill himself. He was hospitalized for suicidal intent and diagnosed with several mental health disorders. A pretrial Federal Medical Evaluation concluded he had a history of depression but was competent to be tried. After serving that sentence, Sterling‘s supervised release was transferred to the Eastern District of Arkansas in February 2007. A competency evaluation concluded he was competent to proceed with post-release proceedings, but his supervised release was twice modified to include a directive to obtain mental health counseling. The term of supervised release expired in February 2012.
In October 2013, an Arkansas State Police officer stopped Sterling for speeding and observed large stickers reading “Diplomatic Immunity Do Not Detain,” and “U.S. Republic of Conch Diplomat Do Not Detain.” Sterling presented the officer a “U.S. Conch Republic, Diplomatic Identification Card.” The officer released him with a warning, but sent a photograph of the card to the U.S. Department of State, which determined, not surprisingly, that Sterling‘s diplomatic credentials were fraudulent.2
In September 2014, two students told Pine Bluff police that Sterling emerged from a limousine and pointed a long gun at them from his driveway across the street from Pine Bluff High School. Investigating, police discovered a hidden firearm rack in the passenger seat of the limousine, and a warrant search of the residence uncovered a .12-gauge shotgun, ammunition, and a host of materials identifying Sterling as an ambassador with diplomatic immunity.
Charged with impersonating a diplomat and unlawful possession of a firearm, Sterling was determined to be competent to stand trial. District Judge Billy Roy Wilson then granted Sterling‘s motion to represent himself, but appointed Assistant Federal Public Defender Nicole Lybrand to serve as standby counsel. At trial and sentencing, Lybrand conducted voir dire, identified objections on Sterling‘s behalf, opposed a sentencing guidelines enhancement, and argued for a reduced sentence.
Judge Wilson held a hearing on this petition on March 26, 2019. Sterling appeared pro se with AFPD Lybrand as standby counsel. At the outset, the prosecutor stated, “On the first modification, the United States just requests that [Sterling] be assessed, go through a mental health assessment.” Probation Officer Sanders was called to testify in support of the three new conditions. Regarding the first modification, Sanders described at length mental health evaluations and treatment Sterling received between 2002 and 2009. He testified it is “typical with offenders who have a history of mental health to have an assessment when they begin supervision,” but that had not been made a condition of Sterling‘s supervision. Asked to relate his personal observations of Sterling, Sanders testified that when he visited Sterling‘s residence, he “conduced himself as sort of like a king,” claiming that his paintings are “worth millions of dollars” when clearly they are not; claiming he has letters from Queen Elizabeth that clearly are not; and saying “he was going to give [one] painting to President Trump afer he pardons him as an agreement that they had already made.” In addition, Sterling “dresses or appears to be very lavish and talks about a very lavish lifestyle, but the living conditions do[] not support that as well.”
Sterling cross-examined Officer Sanders. Regarding the first modification, Sterling questioned whether his prior mental health issues had extended into the 57-month imprisonment for this offense, which Sanders more or less conceded, and asserted that Sanders‘s opinions regarding Sterling‘s “erratic behaviors” are “just your opinion.” Sterling also presented documents showing that he consulted BOP “psychological services” when his father died in November 2017, that his BOP “reentry plan” stated “that mental health is not referred,” and that “I am not self-employed.” The district court admitted those documents into the record; counsel failed to make them part of the record on appeal.
After Sanders completed his testimony regarding the other two modifications (see Parts III.B and C, infra), Judge Wilson clarified that the government was now seeking only an initial mental health evaluation, not treatment: “At this point all the Government wants is an assessment; is that right?” The prosecution responded, “Yes, Your Honor.” The court then granted the government‘s motion “based on the things before the Court, including the testimony of the supervising officer.” The court‘s written Order modified the first new condition to state: “Defendant must
II. The Self-Representation Issue
Sterling first argues the district court “abused its discretion in allowing Mr. Sterling to proceed pro se at the modification hearing.” We disagree.
There is no Sixth Amendment right to counsel at a supervised release modification hearing. However,
Judge Wilson granted Sterling‘s request to represent himself with the aid of standby counsel at the 2015 trial and sentencing of his underlying conviction. Thus, there was no need for the court to rule on Sterling‘s February 2019 notice that he would again represent himself at any supervised release modification or revocation proceeding. The government then petitioned for modifications including a mental health treatment requirement, which raised the possibility that Sterling‘s mental health had deteriorated. However, when the parties appeared for the modification hearing in late March, the government changed its request to a mental health assessment. Sterling opposed that request, prepared to conduct the defense, again with standby counsel‘s assistance. The mental health issue required prompt attention, as it affected the ongoing supervised release. The court allowed the hearing to proceed with Sterling representing himself, as he had requested.
In cross examining Sanders, Sterling demonstrated knowledge of the fact issues and applicable law, the ability to defend his position without disruption or delay, and respect for the court and the proceeding. The hearing gave the court no reason to believe that Sterling‘s mental health had changed to the point that his prior knowing and voluntary decision to represent himself was now in doubt. Thus, there was no abuse of the court‘s sua sponte discretion. Rather, the court proceeded in a manner well suited to ensuring the prompt and fundamentally fair resolution of the issues. Sterling‘s motion to reconsider the court‘s unfavorable Order because he had not validly waived his right to counsel was an untimely expression of “buyer‘s remorse.”
III. The Challenged Conditions
In the Sentencing Reform Act of 1984, Congress authorized sentencing courts to impose a term of supervised release that includes conditions imposed in accordance with
The Conditions of Supervised Release provision of the advisory Sentencing Guidelines includes policy statements that separate discretionary conditions into two categories.
We review the district court‘s modification of supervised release conditions for abuse of discretion. Standard conditions are discretionary and therefore must satisfy the factors set forth in
A. The Mental Health Assessment Condition.
Probation Officer Sanders testified that a mental health assessment is common at the start of supervised release, but the BOP did not conduct or order an assessment when Sterling completed serving his 57-month sentence. Sanders recounted Sterling‘s long history of mental health issues, evaluations, and treatment, and he described the erratic behavior observed at Sterling‘s home across the street from a public high school. Judge Wilson knew from presiding at Sterling‘s initial sentencing that he had assaulted two students with a firearm from his driveway. Based on testimony regarding Sterling‘s current mental state, struggles including suicidal thoughts and impulses, and the likely connection between Sterling‘s troubled mental health and violent criminal conduct, the record clearly supported the reasonableness of requiring a prompt mental health assessment.
On appeal, Sterling argues only that we should reverse all three modifications because the district court did not “make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.” United States v. Brown, 789 F.3d 932, 933 (8th Cir. 2015) (quotation omitted). As to the mental health modification, this contention is clearly without merit. “[R]eversal is not required due to a lack of individualized findings if the basis for the imposed condition can be discerned from the record.” United States v. Newell, 915 F.3d 587, 590 (8th Cir. 2019) (cleaned up). We have no difficulty discerning that the basis for this condition is reasonably related
B. The Search Condition.
Standard Condition No. 10 of Sterling‘s supervised release provides that he “shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.” This is a standard condition recommended by the advisory guidelines policy statement. See
On appeal, Sterling argues that this search condition is only applicable to felons required to register under the Sex Offender Registration and Notification Act (“SORNA“), deriving the argument from the text of
Sterling argues more generally that this special condition is “totally unrelated” to his offense conduct and surrounding circumstances. Nothing could be further from the truth. His felon-in-possession offense included an enhancement for pointing a shotgun at two high school students. Weapons were found in his vehicle and home prior to his imprisonment for this firearm offense, and Officer Sanders testified that he saw a heavy BB gun resembling a firearm -- the same type of weapon Sterling used in the Northern District of Illinois bank robbery -- during a pre-release assessment of the home with Sterling‘s wife. The district court did not abuse its discretion in concluding that a search condition based upon reasonable suspicion was consistent with the requirements of
C. The Financial Disclosures Condition.
Sterling‘s Standard Condition No. 5 provides that he “shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons.” The Probation Office‘s Request for Modification stated:
A financial disclosure condition enables the probation officer to deter and detect
economic crimes, verify, and monitor self-employment. Mr. Sterling reports to be self-employed; therefore, additional documentation is required to verify self-employment.
At the modification hearing, Officer Sanders testified, “It is a condition that he has employment, but what we‘re asking for today is a financial disclosure to verify his employment. . . . [H]e gave me a transfer of powers from his company that he says that he runs and he also provided an employee nondisclosure agreement. . . . So I don‘t know exactly what he does.” The court then asked, “What specifically do you want me to order him to do?” Sanders replied, “To provide financial documents as far as how he‘s making his money, where the money is coming from.”
The advisory guidelines expressly provide, “Occupational restrictions may be imposed as a condition of supervised release.”
Here, the government did not propose prohibiting self-employment. It proposed the less restrictive condition of requiring Sterling to provide financial information permitting a determination of whether his self-employment complied with the employment requirement in Standard Condition 5. At the hearing, Sterling protested that “I do work for a company,” and Sanders is “trying to . . . get into my company‘s financial business which I am only an employee of.” That of course was an admission that he was attempting to satisfy the employment standard condition in a way that might warrant a restriction on self-employment.
We conclude that, cabined by the district court‘s careful questions, the government presented sufficient evidence to warrant a limited financial disclosure special condition for this purpose. But that is not the special condition the government proposed and the district court unfortunately entered. Rather, the district court entered an order requiring Sterling to “provide the probation officer with access to any business records or requested financial information (including unexpected financial gains),” which it may release “to the US Atty‘s Office.”
The guidelines expressly recommend imposing a special condition requiring the defendant “to provide the probation officer access to any requested financial information” in specific circumstances -- “[i]f the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine.”
The condition orders Sterling to provide “any requested financial information, a hopelessly vague and overbroad term
The government argues this condition will deter Sterling from fraudulent conduct like impersonating a diplomatic officer and is necessary in light of his history of “violent, monetary crimes against others.” But the government presented no evidence of prior “monetary crimes.” Bank robbery is a crime of violence, not deceit. And attempting to thwart traffic officers with a fraudulent claim of diplomatic immunity is criminal, but it is not a financial crime. Nothing in the record indicates Sterling has previously committed or is at risk of committing financial fraud. On this record, “[m]oney, greed, and debt simply had nothing to do” with Sterling‘s crimes. Sherwood, 850 F.3d at 396. Although the diplomatic immunity materials found in the warrant search of his home no doubt raised suspicions, that subject was not explored in his criminal trial and sentencing or at the modification hearing. The government had the burden of proof and does not prevail if it had relevant evidence it failed to present. The government also argues this condition is needed to monitor Sterling‘s self-employment. But absent evidence of other unlawful activity, there would not be valid grounds to revoke supervised release and incarcerate Sterling if his company proves to be a financial fantasy and “erratic behavior” makes him unemployable.
Because the government failed to tailor the proposed special condition to the employment circumstances that warranted modification of Standard Condition 5, the district court imposed an overbroad special condition that imposes a “greater deprivation of liberty than is reasonably necessary,”
IV. Conclusion
For these reasons, we vacate the special condition of Sterling‘s supervised release requiring him to provide “financial information” and otherwise affirm the Order of the district court dated March 26, 2019.
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