                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-4075
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
John A. Davies,                       *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: June 15, 2004
                                  Filed: August 16, 2004
                                  ___________

Before LOKEN, Chief Judge, BYE and MELLOY, Circuit Judges.
                              ___________

MELLOY, Circuit Judge.

       John A. Davies appeals the district court’s1 modification of the conditions on
his term of supervised release. Less than one year into Davies’s three-year term of
supervised release, his probation officer sought, and the district court imposed, a new
condition: participation in an alcohol abuse program and periodic testing for alcohol


      1
     The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
use. Davies challenges the modification on two grounds. First, Davies argues that
the district court based the modified conditions on testimony from witnesses he was
not able to confront. Second, he argues that the periodic alcohol testing involves a
greater deprivation of liberty than is reasonably necessary. We find that the district
court based the modification on evidence that was available to Davies and not on the
hearsay testimony of an absent witness. Further, we find that the district court
narrowly tailored the modified conditions of Davies’s term of supervised release to
address a specific concern, namely, the impact of alcohol use on Davies’s mental
health and alcohol as a contributing factor in Davies’s two prior suicide attempts.
Accordingly, we affirm.

                                          I.

       Davies owned and operated a business from July 1998 to April 2000. In this
business, he served as a qualified intermediary to hold the proceeds of sales intended
for the purchase of like kind property in accordance with the like kind exchange
restrictions of the Internal Revenue Code. Davies represented to his clients that he
would invest their sales proceeds in low-yield, conservative investments and pay
them the investment proceeds in exchange for a fixed, per-transaction fee. Instead,
he invested his clients’ funds in risky, potentially high-yield investments with the
intention of collecting for himself the difference between the actual investment
returns and the low-yield returns promised to his clients. His risky investments
resulted in losses that totaled approximately $2 million, and, in April 2000, he
declared bankruptcy.

      On May 1, 2000, Davies voluntarily committed himself to a hospital. He
exhibited many depressive symptoms, including tearfulness, sleep disturbance,
anxiety, hopelessness, and suicide ideation. He reported that he tried to commit
suicide twice in the two weeks prior to his commitment, both times while intoxicated,
by placing a bag over his head and by trying to hang himself. Testing indicated

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severe depression with some compromise in thought process. According to Davies’s
presentence report, he never used illicit drugs, and, “[w]hen he was hospitalized in
May, 2000, it was determined that his chemical intake should be closely monitored
but he was not specifically diagnosed as chemical dependent.” He was discharged
on May 12, 2000, with improved symptoms and a final diagnosis of Major
Depression and Personality Disorder.

       On January 26, 2001, the government indicted Davies on two counts of wire
fraud. Davies pleaded guilty, and, on April 19, 2001, received a sentence of thirty-
four months imprisonment and three years of supervised release. The conditions on
his term of supervised release included restrictions regarding employment in a
fiduciary capacity and requirements for the disclosure of financial information. In
addition, Davies was required to undergo psychiatric or psychological counseling.
He began his term of supervised release on August 13, 2003, and has thus far
complied with all the original conditions.

       On November 5, 2003, Davies’s probation officer petitioned the court to add
the following condition:

      The defendant shall participate in a program for drug and alcohol abuse
      as approved by the probation officer. That program may include testing
      and inpatient or outpatient treatment, counseling or a support group.

In the petition, the probation officer stated, “Mr. Davies[’s] presentence investigation
as well as information received from the Bureau of Prisons indicates that the
defendant has a significant alcohol problem which has in the past exacerbated his
problem with depression.” The probation officer indicated that Davies refused to
consent to treatment or testing and strenuously resisted the proposed modification.

      The district court held a hearing on December 9, 2003. No witnesses testified.
At the outset of the hearing, the district court stated:

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      Now the reason the probation officer has recommended this for Mr.
      Davies, based on the presentence investigation and information from the
      Bureau of Prisons personnel, which leads him to believe that Mr. Davies
      does have or could have a problem with alcohol that exacerbates his
      depression, and as the probation officer spoke to me, he indicated it[’]s
      not that he knows that’s the case, but he wants to find out if that’s the
      case, and that’s the reason for the request for the change.

Later in the hearing, counsel for Davies objected to any reliance on information
received from the Bureau of Prisons. The following exchange occurred between
Davies’s counsel and the district court:

      Court:       Well, let’s make it very clear on the record what the court
                   is relying on. The Court is relying on the recommendation
                   of the probation officer, who in turn I think is relying on
                   the PSI, and I’m relying on the PSI, and all that
                   information has been before . . . Mr. Davies . . . .

      Counsel:     Is it truly the presentence investigation report and the
                   information that is there and not any new information that
                   is occasioning this modification?

      Court:       To my knowledge there is no new information. The
                   probation officer did indicate that there was some comment
                   or indication by the Bureau of Prisons personnel, but that’s
                   not information. I don’t think we would have a hearing,
                   and we couldn’t get it out even if there were a hearing.
                   What I’m going to be relying on and what I think the
                   probation officer is relying on is that information contained
                   in the PSI, something that has been before you and Mr.
                   Davies all along, so it[’]s not going to be a hearing or a
                   need for one. I’m going to make some findings of fact in
                   this case, and the Court will find that the representations of
                   the probation officer that Mr. Davies may or is likely to
                   suffer from an addiction to alcohol and that this condition
                   may exacerbate his psychological problems.

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      The district court imposed the requested modification, and Davies appealed.

                                          II.

       District courts enjoy broad discretion in the imposition or modification of
conditions for terms of supervised release, and we review only for abuse of discretion.
United States v. Behler, 187 F.3d 772, 778 (8th Cir. 1999); United States v. Cooper,
171 F.3d 582, 585 (8th Cir. 1999). Underlying questions regarding compliance with
the rules of criminal procedure and the provision of due process, however, are purely
legal questions that we review de novo. See United States v. Pardue, 363 F.3d 695,
697 (8th Cir. 2004); United States v. Reynolds, 49 F.3d 423, 426 (8th Cir. 1995)
(conducting a de novo review of the procedure a district court employed in the
application of Rule 32.1(a)(2)(D) without explicitly declaring a standard); United
States v. Zentgraf, 20 F.3d 906, 908-09 (8th Cir. 1994) (same).

      A district court may modify the conditions imposed on a term of supervised
release even when, as in the present case, the modification is based only on evidence
that was available at the original sentencing. This is because the statute that
authorizes district courts to modify the conditions of supervised release does not
require new evidence, nor even changed circumstances in the defendant’s life.
Rather, 18 U.S.C. § 3583(e)(2) provides that the district court:

      may modify, reduce, or enlarge the conditions of supervised release, at
      any time prior to the expiration or termination of the term of supervised
      release, pursuant to the provisions of the Federal Rules of Criminal
      Procedure relating to the modification of probation and the provisions
      applicable to the initial setting of the terms and conditions of post-
      release supervision[.]

The applicable Rules in the present case include Federal Rule of Criminal Procedure
32.1(c), which provides a right to a hearing and representation by counsel. The

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comments to Rule 32.1(c) provide, “Probation conditions should be subject to
modification, for the sentencing court must be able to respond to changes in the
probationer’s circumstances as well as new ideas and methods of rehabilitation.”
Fed. R. Crim. Pro. 32.1(b) Advisory Committee Notes (1979) (Rule 32.1(c) was
added in 1993) (emphasis added). Further, we previously stated that a “district court
is free to modify the terms of supervised release at any time after considering factors
such as the nature and circumstances of the offense or the history and characteristics
of the defendant.” Behler, 187 F.3d at 778 n.3. Accordingly, although it is inefficient
to omit important conditions and later, upon further reflection, petition the court to
incorporate such conditions, the relevant statutes and rules do not prohibit such
practice.

       Davies argues on appeal, as he did below, that the modification of the
conditions upon his term of supervised release resulted from comments made by some
unknown person at the Bureau of Prisons and that reliance on these hearsay
comments violated both Rule 32.1(c) and the general protections of the Fifth
Amendment’s Due Process Clause. While it is true that the probation officer made
vague reference to such a person, the district court, as quoted above, made it
abundantly clear that the actual decision to impose an alcohol treatment and testing
provision was based solely on information contained in the original presentence
report. Our own review of the presentence report confirms this assertion. Davies
suffered from depression. Alcohol exacerbated his depression. On two occasions he
tried to commit suicide, and on both occasions, he was intoxicated. Davies received
notice of the proposed modification, was represented by counsel during the hearing
concerning the modification, and the information necessary to support the
modification was contained in the presentence report. The fact that the probation
officer might have been motivated by comments received from an unknown Bureau
of Prisons employee does not change the fact that the district court properly relied on
information contained in the presentence report to justify the modified conditions.



                                         -6-
       Regarding Davies’s second argument, that the district court applied an
overbroad and unnecessary condition on his term of supervised release, we find no
abuse of discretion. The district court did not impose a total ban on the use of
alcohol, as we approved under the facts of Behler, 187 F.3d at 779. Rather, the
district court imposed a condition that empowers the probation officer to verify
Davies’s claims that he does not abuse alcohol. The district court did not “impose[]
limitations on the basis of pure speculation or assumptions unrelated to the
rehabilitative process.” Id. Rather, the district court narrowly tailored the condition
to address the specific concern regarding the fact that alcohol exacerbated Davies’s
mental health issues and led him, twice, to attempt suicide while intoxicated.

       In short, there was no abuse of discretion as the added condition clearly relates
to rehabilitation goals, is based on facts contained in the presentence report (facts that
cannot be the basis of factual dispute since probation officers amended the report
before initial sentencing to address Davies’s earlier objections), and reflects a lesser
deprivation of liberty than a complete ban on alcohol use.

      The judgment of the district court is affirmed.
                     ______________________________




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