                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3157
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
John Anthony Smith,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 9, 2009
                                 Filed: August 5, 2009
                                  ___________

Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH,1 District Judge.
                            ___________

LIMBAUGH, District Judge.

       After finding that John Anthony Smith had violated one of the conditions of his
supervised release, the District Court2 revoked Smith's release and sentenced him to
serve the remainder of his supervised-release term in prison. Smith appeals, arguing
that the District Court clearly erred in finding that he had violated the conditions of



      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
      2
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
his supervised release. Smith also contends that the court abused its discretion in
revoking his supervised release. We affirm.

        In 2003, Smith pleaded guilty to federal charges of sexual abuse of a minor in
Indian country and was sentenced to thirty-six months of imprisonment and three
years of supervised release. Smith began his term of supervised release in September
2005. In January 2007, the conditions of Smith's supervised release were modified
to prohibit contact with minors under the age of eighteen without probation-officer
approval and appropriate adult supervision. Smith's probation officer explained the
new condition to Smith in detail, and Smith acknowledged that he understood it.
Nevertheless, in August 2007, Smith violated this condition of his release, leading the
District Court to revoke Smith's supervised release and impose a sentence of eleven
months in prison and one year of supervised release. In July 2008, Smith was again
released from prison, subject to the continuing condition regarding his association
with minors. Smith's probation officer again explained the condition to Smith, and
Smith stated that he understood the condition. In August 2008, Smith's probation
officer filed a petition with the District Court alleging that on August 13, Smith had
again violated the condition that he not associate with minors. Smith was arrested
later that day and detained pending a revocation hearing.

       The dispute in this case involves whether the government proved by a
preponderance of the evidence that Smith violated the conditions of his release by
having a minor in his residence on August 13, 2008, without permission from his
probation officer and without the presence of a responsible adult. See United States
v. Black Bear, 542 F.3d 249, 252 (8th Cir. 2008) (standard of review). According to
the testimony presented at Smith's revocation hearing, on the morning of August 13,
2008, Senora Thompson, a child protection worker for the Red Lake Department of
Children and Family Services, visited the split-entry ranch residence of Smith and his
wife in search of a juvenile who had run away. Thompson testified that Smith
answered her knock at the front door, identified himself, and stated that he had not

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seen the missing juvenile. Thompson further testified that at her request, Smith called
out to his wife, who was in the kitchen and out of sight, about the missing juvenile.
While Smith and his wife were conversing, Thompson saw an eight-to-ten-year-old
boy peek over the edge of a couch that was located in Smith's living area, up a short
flight of stairs and visible to Thompson from her position in the entryway of the
residence. Thompson described the boy as having short black hair and wearing a
dark-colored T-shirt. According to Thompson, after looking directly at her for a
moment, the boy laid his head back on the couch. Thompson did not speak to the boy
and did not ask Smith or his wife about the boy.

       Thompson further testified that after leaving Smith's residence, she telephoned
a child welfare advocate to ask whether Smith was permitted to have minors in his
home and to report that she had seen a child in the residence. The child welfare
advocate told Thompson that Smith was generally not permitted to have contact with
minors and that the advocate would notify police to investigate the matter further.
Thompson testified that shortly after this telephone conversation, she saw a tan, four-
door sedan leaving the vicinity of Smith's house and in the back seat of that vehicle,
she saw the same boy she had earlier observed on the couch at Smith's residence.
When Thompson returned to her office later that morning, she prepared a report
describing what she had witnessed, and based in part on that report, Smith was
arrested for violating the conditions of his release. A few days later, Smith's wife and
her friend, a nineteen-year-old woman named Allison Rogers, arrived at Thompson's
office insisting that it was Rogers—not an eight-to-ten-year-old boy—that Thompson
had seen on Smith's couch the morning of August 13. The women demanded that
Thompson revise her report. Thompson testified that she refused to revise her report
because she was certain it was a young boy, not Rogers, that she had seen on the
couch the morning of August 13.

      Allison Rogers testified that she was staying temporarily at Smith's residence
during August 2008 and while she was there, she slept on the couch in Smith's living

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room. Rogers also testified that she was the individual who peeked over the couch at
Thompson on the morning of August 13. According to Rogers, there were no children
present in the Smith residence while she stayed there, including on the morning of
August 13. Rogers acknowledged that she and Smith's wife later went to Thompson's
office to demand that Thompson correct her report of the incident. Rogers also
testified that on the morning of August 13, she was wearing a white shirt and gray
sweat pants and that her hair was "tipped" or bleached on the ends.

       Smith's probation officer testified that on the morning of August 13, she was
contacted by the child welfare advocate who had earlier spoken with Thompson and
was advised that a young boy was in the Smith residence that morning. The probation
officer arrived at Smith's residence a short time later and found no children present at
the home. Nevertheless, based on Thompson's report that a young boy had been
present in the residence earlier that morning, Smith was arrested.

       The District Court found the evidence sufficient to establish that an eight-to-
ten-year-old boy was present in Smith's residence on the morning of August 13
without the approval of his probation officer and without a responsible adult also
present. The court found credible Rogers's testimony that she was present in the
Smith residence on August 13, but the court did not credit Rogers's testimony that she
was the individual Thompson observed peeking over the couch in Smith's living room
that morning. The court ultimately concluded that Smith had violated the conditions
of his release, and the court revoked Smith's supervised release.

       On appeal, Smith contends that "[b]ecause the district court explicitly found
[Rogers] to be credible, . . . it was clear error to nonetheless credit contradictory and
uncorroborated testimony provided by" Thompson that a minor was present in Smith's
residence in violation of his conditions of release. Br. of Appellant at 11. According
to Smith, the court abused its discretion by revoking his supervised release based on
these inconsistent factual findings. We review a district court's decision to revoke

                                          -4-
supervised release for an abuse of discretion, and we review the factual determinations
underlying the court's decision to revoke for clear error. Black Bear, 542 F.3d at 252.

      Here, the District Court found that "there was a child in [Smith's] home" and
that "Allison Rogers was also present in that home." Tr. of Proceedings (Final
Revocation) at 106. The court also made the following comments regarding Rogers's
testimony:

      The witness is a young woman, but . . . [s]he is not eight or ten years old.
      Her hair is not long, but she is not a young boy. Her hair is tipped, it is
      colored, as is not uncommon for young women. . . . And she was asked,
      "what were you wearing?": I was wearing a white T-shirt with gray
      sweats." That's what she was wearing. I have no doubt that she was
      telling the truth. She would have no reason to fudge or shape her
      testimony in any fashion. But the testimony of the witness who saw the
      child is [that] the child was wearing a dark shirt. That does not match up
      with the information I had before me.

Id. at 106–07. The District Court went on to declare, "I find very clear evidence that
there was a child wearing a dark shirt and a woman wearing light clothing." Id. at
108.

        Contrary to Smith's suggestions, the District Court's factual findings do not
leave us with a "definite and firm conviction that the District Court was mistaken."
Black Bear, 542 F.3d at 252. Viewing the District Court's comments regarding
Rogers's credibility in context, it is apparent that the court found her testimony to be
credible only insofar as it related to her presence in the Smith residence on August 13,
2008, and her attire on that morning. The court rejected Rogers's testimony that she
was the individual Thompson saw peeking over the couch and credited instead
Thompson's testimony that she saw a young boy peeking over the couch. As we have
long acknowledged, assessing a witness's credibility is a duty for the district court, and
its assessment is "virtually unreviewable on appeal." United States v. Ralph, 480 F.3d

                                           -5-
888, 890 (8th Cir. 2007) (quoting United States v. Carothers, 337 F.3d 1017, 1019
(8th Cir. 2003)). We decline to disturb the court's credibility assessments and related
factual findings in this case.

      In sum, we are satisfied that the government proved by a preponderance of the
evidence that Smith violated the terms of his supervised release. The District Court's
factual findings based on that evidence were not clearly erroneous, and the court did
not abuse its discretion in revoking Smith's supervised release. Accordingly, we reject
Smith's arguments on appeal and affirm the judgment of the District Court.
                          ______________________________




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