United States of America v. Paul Peter Swehla

United States Court of Appeals
For the Eighth Circuit
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No. 22-3443
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Paul Peter Swehla
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: June 12, 2023
Filed: October 2, 2023
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Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
In 2005, Paul Peter Swehla was convicted of distributing morphine within 1000
feet of a school. He was sentenced to 262 months imprisonment followed by 6 years
of supervised release. Swehla began supervised release in September 2021. On
October 24, 2022, he was arrested and charged in Iowa state court with Domestic
Abuse Assault for pushing his fiancée, Jessamyn Johnson, into a wall while
inebriated. Ms. Johnson requested a no-contact order. The United States Probation

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Office filed a petition to revoke supervised release that day. On October 28, the Iowa
court, consistent with an Affidavit of Complaining Witness re: Lifting No Contact
Order filed by Ms. Johnson, issued an Order of Protection (“State Court Order”)
prohibiting Swehla from communicating with Ms. Johnson, except “via telephone and
text regarding billing, inventory and financial information regarding the restaurant
they run together.”
On November 1, Probation filed an amended petition to revoke supervised
release, alleging four violations -- using alcohol, failing to participate in substance
abuse testing, and new law violations including the domestic assault of his fiancée,
Ms. Johnson. The sentencing recommendation included 8 months imprisonment
followed by 120 days in a Residential Reentry Center, 3 years of supervised release,
and a new proposed Special Condition 8 prohibiting all communication between
Swehla and Ms. Johnson during the term of supervised release. Swehla filed a Notice
of No Contested Violations stating that he would not contest the four alleged
violations and agreed with the recommended 8 months imprisonment and 4 months
in a reentry center. However, noting that the State Court Order provided that Swehla
and Ms. Johnson could communicate “via telephone and text regarding . . . the
restaurant they run together,” Swehla requested “that the Condition 8 be modified to
require Mr. Swehla to follow any no contact order filed in [the state court action].”
In a Status Report on Special Condition 8 filed the day before the revocation
hearing, Swehla stated that victim Johnson “has requested that the no contact order
. . . track the no contact order entered” by the state court. Without that modification,
Swehla argued, the “blanket restriction” in Special Condition 8 is overbroad and
violates “his fundamental liberty interest” in marrying Ms. Johnson:
[W]here, as here, the victim requests that the condition track the no
contact order in state court, the special condition would restrict liberty
more than necessary. The State court is perfectly capable of ensuring
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that any restriction or any decision to lift the restriction is based upon
the victim’s preferences.
At sentencing, the government advised that the victim “has indicated that she
would like the condition to correspond to the state court no-contact order, which
essentially is that they may communicate via telephone and text regarding billing,
inventory, and financial information with regard to the restaurant that they run
together.” The government argued that the record supports the no-contact order “as
written,” but “if the Court feels that the victim’s wishes as portrayed . . . [are]
appropriate, the modification of that condition, the government does not oppose that.”
In response to a question by the district court, the Probation Officer advised that
Swehla owns the restaurant and his fiancée “manages the day-to-day and . . .
financial and bookkeeping stuff.” Defense counsel then noted that Swehla and Ms.
Johnson are engaged to be married and argued:
I would also note that the State of Iowa no-contact order has reflected
whatever the victim’s preferences were, allowing this particular contact
related to the business. . . . [I]n terms of that language in condition 8 . . .
if we could put in there if there’s any discretion or need on the part of
probation for no contact whatsoever based on the victim’s preferences,
we have no objection to that either. . . . [W]e’d simply ask that the Court
reflect what her preferences are relating to what’s already been done in
the State court. [That] would be the least restrictive condition in terms
of liberty interests.
The district court1 noted that the no-contact condition would not be in effect
while Swehla is in the custody of the Bureau of Prisons, and that the restaurant “may
not even be in existence” when Swehla is released:
1The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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So perhaps one way to handle this is to say in the no-contact order if the
business . . . . is still operating, then they can have contact, and then you
could mirror the language of the State court no-contact order. But I
want to make it clear that victims do not dictate no-contact orders.
Judges do based on what they see as the risk to the victim and the rest
of the public.
After hearing lengthy allocution by Mr. Swehla and addressing at length the relevant
revocation sentencing factors, see 18 U.S.C. § 3583(e), the district court ruled:
[T]he Court finds that revocation is entirely appropriate and totally
supported by the record here. I agree with the probation office that 8
months in prison followed by 3 years of supervised release is
appropriate. With regard to the special condition . . . number 8 . . .
we’ve talked about how I would like that modified so that the contact
only exists if the restaurant is still an operating business. And I’ll ask
that [probation] change the language a little bit for me . . . . And if you
have any questions, you could run it by the two attorneys, and they can
put their two cents in so that it’s the way that apparently the victim
wants it.
. . . The Court has modified condition 8, the no-contact order, as
we have discussed. And if the parties object when it’s finally written
out, please let me know and we’ll try to arrive at appropriate wording.
The following day, the district court entered its Judgment in a Criminal Case,
including in the Special Conditions of Supervision:
8. Except as specifically provided herein, defendant must not have contact
during his term of supervised released with Jessamyn Johnson, in person
or through a third party. This includes no in-person contact and no
direct or indirect contact by mail, email, or by other means. However,
defendant may have telephone contact (including text messaging) with
Jessamyn Johnson for the exclusive purpose of discussing billing,
inventory, and financial information relating to the Artesian Ghost
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Kitchen restaurant. The United States Probation Office may contact
Jessamyn Johnson to determine whether the defendant is in compliance
with this condition.
Swehla did not object to the wording of Special Condition 8, either before or
after the entry of Judgment. He now appeals the revocation sentence, arguing the
district court erred in imposing an overly broad no-contact order restricting
communication between Swehla and his fiancée. We conclude this issue was not
preserved for appeal.
On appeal, Swehla argues the district court failed to consider a less restrictive
alternative -- his request that the federal no-contact order “track” the State Court
Order. However, at sentencing Swehla noted “that the State of Iowa no-contact order
has reflected whatever the victim’s preferences were, allowing this particular contact
related to the business,” and then requested “that the Court reflect [in Special
Condition 8] what her preferences are relating to what’s already been done in the
State court.” The district court granted that request, modifying Special Condition 8
to permit communication between Swehla and Ms. Johnson regarding the restaurant
they run together, incorporating almost word for word the only “additional directive”
the State Court Order added at Ms. Johnson’s request. So this issue was waived. “On
appeal, [Swehla] cannot complain that the district court gave him exactly what his
lawyer asked.” United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002)
(citation omitted).
Swehla further argues that Special Condition 8 is overbroad “because it
provides no discretion to modify the conditions based upon the preferences of Ms.
Johnson.” At sentencing, Swehla’s counsel did not clearly request that Special
Condition 8 provide that any future modifications of the State Court Order based on
Ms. Johnson’s “preferences” would apply to this federal no-contact order. However,
Swehla’s pre-hearing Status Report on Special Condition 8 appeared to take that
position when it argued that “[t]he State court is perfectly capable of ensuring that
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any restriction or any decision to lift the restriction is based upon the victim’s
preferences.” And at sentencing, the district court addressed -- and rejected -- that
contention: “But I want to make it clear that victims do not dictate no-contact orders.
Judges do based on what they see as the risk to the victim and the rest of the public.”
At the end of the hearing, the court stated it would modify Special Condition
8. The court directed Probation to prepare and circulate revised language to counsel
for both parties, and stated, “if the parties object when it’s finally written out, please
let me know and we’ll try to arrive at appropriate wording.” Swehla made no
objection to the final wording of Special Condition 8, either before or after Judgment
was entered.
We have repeatedly held that “[w]hen a party agrees to an instruction, the
doctrine of invited error applies, and any objection to the instruction is waived.”
United States v. Davis, 826 F.3d 1078, 1082 (8th Cir. 2016); see generally United
States v. Mariano, 729 F.3d 874, 880-82 (8th Cir. 2013). The invited error issue
arises most frequently when jury instruction error is argued on appeal, as in United
States v. Pickens, 58 F.4th 983, 989-90 (8th Cir. 2023). Here, the situation is
somewhat different because it was the district court that “invited,” indeed directed,
Swehla to raise with the court any objections he had to the modified Special
Condition 8, such as this objection that he raises on appeal. We conclude the
principle applies -- Swehla by failing to accept the court’s invitation to object failed
to preserve the issue for appeal. The failure was hardly inadvertent, so the alleged
“error” is not subject to plain error review. See United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2002) (en banc), cert. denied, 546 U.S. 909 (2005).
Swehla, with a long history of alcohol abuse, admitted he assaulted Ms.
Johnson while he was literally falling down drunk. By limiting contact, Special
Condition 8 seeks to protect the victim from further harm. Ms. Johnson had
requested a no-contact order from the state court, subject to a specific exception the
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district court incorporated in Special Condition 8. Our sister circuits have upheld
similar supervised release conditions. See, e.g., United States v. Santos Diaz, 66
F.4th 435, 448-50 (3d Cir. 2023) (special condition prohibiting communication with
the defendant’s fiancée); accord United States v. Rafferty, No. 21-2760, 2022 WL
1531921 (8th Cir. 2022) (unpublished). Should circumstances change, 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.” 18
U.S.C. § 3583(e)(2).
The judgment of the district court is affirmed.
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