United States v. Grigsby

FILED
United States Court of Appeals
Tenth Circuit

October 10, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 14-3067
v. (D.Ct. No. 6:12-CR-10174-JTM-1)
(D. Kan.)
PHILIP ANDRA GRIGSBY,

Defendant-Appellant.
______________________________

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

Appellant Philip Andra Grigsby, appearing pro se, appeals the district

court’s March 14, 2014 order denying certain motions filed after imposition of his

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
260-year sentence, supervised release, forfeiture of certain property, and victim

restitution. Exercising our jurisdiction, we remand for reconsideration and an

expedited hearing on that portion of the district court’s order, as identified below,

concerning Mr. Grigsby’s March 7, 2014 motion for reconsideration, for

modification of the restitution judgment. We affirm the remainder of the district

court’s order on Mr. Grigsby’s March 7, 2014 motion for reconsideration, March

10, 2014 motion for reconsideration pertaining to certain transcripts, and February

27, 2014 motion for return of certain photographs.

I. Factual and Procedural Background

Mr. Grigsby’s instant appeal involves a procedural maze of motions

following his conviction, as shown hereafter. On November 15, 2012, Mr.

Grigsby pled guilty to eight counts of sexual exploitation of a nine-year-old child

for the purpose of producing visual depictions, in violation of 18 U.S.C.

§ 2251(a), one count of possessing with intent to view child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B), and one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). Prior to sentencing,

the government requested, and the court granted its motion for, preliminary

forfeiture of certain property identified in the superceding indictment and related

to the pornography and firearms charges against Mr. Grigsby, including computer

equipment, various cameras, and the photographs contained therein. Thereafter,

on February 28, 2013, the district court granted Mr. Grigsby’s motion for access

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and permission to copy certain family photographs contained in his forfeited

computer which he alleged were non-pornographic.

On March 28, 2013, the district court conducted an evidentiary hearing for

the purpose of sentencing; the government presented the testimony of a “licensed

master of social work and certified therapist at St. Francis Community Services,”

Jesse Lemuz, who testified on his counseling sessions with the minor victim and

his assessment of the victim’s mental state. Following the sentencing hearing, the

district court entered a judgment on May 21, 2013, sentencing Mr. Grigsby to a

total of 260 years’ imprisonment and ordering forfeiture of the same or similar

property previously forfeited, including computer equipment involving a laptop,

desktop, webcam, modem, router, external hard drive, and flash drives; digital or

pixel cameras; video cameras; a DVD player; sex toys and lingerie; and five

rifles, two shot guns, two revolvers, and ammunition. It also imposed a ten-year

term of supervised release with certain general and special conditions, including a

special condition prohibiting him from contacting the minor victim. However, the

district court continued its ruling on restitution, scheduling a hearing for June 24,

2013, for the purpose of considering evidence on the issue of restitution for the

nine-year-old victim and her mother and stating an amended judgment would be

issued at that time. On May 31, 2013, Mr. Grigsby filed a timely notice of appeal

of his 260-year sentence but did not appeal his conviction, supervised release, or

the forfeiture of his property; nor did he raise any restitution issue pending the

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upcoming hearing on that matter.

The restitution hearing, which was continued, was held on July 29, 2013,

and on July 30, 2013, the district court issued an amended judgment modifying

the original judgment by including its ruling on the restitution amount and

awarding $126,440 to the minor victim and $13,560 to the minor victim’s mother.

The rest of the judgment remained the same, including the length of his sentence,

supervised release, and forfeiture of property. Mr. Grigsby did not appeal the

amended judgment.

Six months later, and prior to our disposition of the appeal of his 260-year

sentence, Mr. Grigsby began filing multiple motions. On January 31, 2014, he

filed a motion to modify the restitution order. In his motion, he advised the court

the restitution payments were being made to the mother of the minor victim and

that, as a relative of the minor victim, he is interested in the child’s well-being.

He then provided statements and/or documents showing: 1) on September 3,

2013, the minor victim and a minor sibling were placed in the custody of the

Kansas Department for Children and Families as a result of lack of supervision

and medical neglect by their mother; 2) a state petition was pending concerning

the custody and care of the minor victim on grounds of inadequate parental care,

control, or subsistence concerning the minor victim’s physical, mental, or

emotional health; and 3) Mr. Grigsby is involved in a divorce proceeding which

will affect restitution to the minor victim and her mother. In support of the

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allegation of neglect, Mr. Grigsby provided a state court document in which the

government advised the Reno County District Court of medical and supervisory

neglect of the minor victim by the mother, including the fact the minor victim is

frequently or chronically left at home alone with her younger sibling while the

mother spends time at her boyfriend’s house. As relief, Mr. Grigsby requested

the payment structure for restitution be modified and a trust fund be created for

the minor victim, with the details approved by the court, and further requested his

union pension benefits, bonds, coin collection, insurance benefits, and any other

monetary interest be turned over to the executor of the trust. Mr. Grigsby also

stated his own mother was willing to make regular contributions to the trust

account for the benefit of the minor victim and that both the welfare and divorce

courts were aware of his efforts to create such a trust.

In addition, Mr. Grigsby requested the special condition, prohibiting his

contact with the minor victim, be modified and that he be allowed permission to

contact the minor victim at a time a psychologist deems appropriate and to

immediately contact another minor child to whom he is also related. Finally, he

requested a new assessment of psychological need because Mr. Lemuz received a

cease and desist order on February 28, 2011, prohibiting him from conducting

independent, unsupervised practice of social work and psychotherapy in Kansas

without a license.

On February 14, 2014, the district court issued a memorandum and order

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denying Mr. Grigsby’s motion to modify the restitution order and noting his

criminal “conviction” (rather than his sentence) was still on appeal. It summarily

ruled it retained only limited jurisdiction under 18 U.S.C. § 3664(k) to modify a

restitution order based on a claim of “material change in the defendant’s

economic circumstances” and that Mr. Grigsby’s motion was not grounded on any

such change. In addition, it declared it was limited to actions which would not

change the appealed judgment in any meaningful way.

Thereafter, Mr. Grigsby filed another motion, requesting certain evidentiary

and sentencing hearing transcripts, including those concerning restitution, as “a

substantial element of his appeal and other review matters.” On February 19,

2014, the district court denied the motion, ruling: 1) “the matter is presently on

appeal”; 2) the May 20, 2013 sentencing hearing transcript was made part of the

record on appeal; and 3) Mr. Grigsby was represented by counsel and made no

showing of his particularized need for the transcripts.

On February 27, 2014, Mr. Grigsby filed yet another a motion, under

Federal Rule of Criminal Procedure 41(g), for return of certain forfeited property

involving non-pornographic photographs gained through the district court’s

earlier order which allowed his copying of such photographs, and which he

released to his wife, whom he is now divorcing. Mr. Grigsby requested the

photographs be released to a third party for the benefit of the minor victim. On

March 7, 2014, Mr. Grigsby filed a motion for reconsideration of the order

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denying his motion to modify restitution and, on March 10, 2014, filed a motion

for reconsideration of the order denying his motion for certain transcripts.

On March 14, 2014, the district court issued a minute order denying Mr.

Grigsby’s motion for return of the non-pornographic photographs, for the same

reasons stated in its January 2014 order denying modification of the restitution

order, and further denying his two motions for reconsideration on grounds they

did not advance any legitimate grounds for relief. Mr. Grigsby sent a notice of

appeal of this order, which the district court filed on March 31, 2014; however,

the affidavit affixed to his appeal stated Mr. Grigsby placed the notice of appeal

in the prison mailing system on March 24, 2014.

On April 15, 2014, this court affirmed Mr. Grigsby’s 260-year sentence,

holding such a sentence was procedurally and substantively reasonable, despite

his contention United States Sentencing Guidelines § 2G2.1 lacked an empirical

basis. See United States v. Grigsby, 749 F.3d 908, 909-11 (10th Cir.), cert.

denied, 2014 WL 3428839 (Oct. 6, 2014). In disposing of the appeal, we declined

to recount “the heinous facts underlying [his] convictions,” other than to point out

his sentence was enhanced, in part, because his crime involved a relative who had

not attained the age of twelve and “material that portrayed sadistic or masochistic

conduct or other depictions of violence.” Id. at 909 n.2.

II. Discussion

Mr. Grigsby now appeals the district court’s order issued March 14, 2014,

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denying his two motions for reconsideration and his motion for the return of

certain photographs. In so doing, he raises the same issues he raised before the

district court. The government opposes his appeal, maintaining it is untimely and,

alternatively, that none of his motions had merit.

Federal Rule of Appellate Procedure 4(b)(1)(A)(i) requires a criminal

defendant to file a notice of appeal in the district court within fourteen days of the

entry of the order being appealed. Here, Mr. Grigsby’s appeal was not filed in the

district court until March 31, 2014–seventeen days after issuance of the district

court’s March 14, 2014 order on his motions for reconsideration and return of

photographs. However, Federal Rule of Appellate Procedure 4(c)(1) states a

criminal prisoner’s notice of appeal, when appearing pro se, is deemed timely if it

is deposited in the institution’s internal mail system on or before the last day for

filing, as shown by a declaration or notarized statement. In this case, in an

affidavit affixed to his appeal, Mr. Grigsby attests he placed the notice of appeal

in the prison mailing system on March 24, 2014. This makes his appeal of the

district court’s March 14, 2014 order timely under the prison mail box rule in

Rule 4(c)(1).

While Mr. Grigsby timely appealed the district court’s March 14, 2014

order disposing of his motions, we proceed to the issues raised in Mr. Grigsby’s

appeal, including whether such issues should have been raised on direct appeal or

have merit. We begin with his argument presented in his March 7, 2014 motion

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for reconsideration of his motion for modification of the restitution judgment.

Generally, a challenge to a restitution order should be brought on direct appeal

within fourteen days following the judgment or order of restitution 1. See Fed. R.

App. P. 4(b)(1)(A)(i). However, while 18 U.S.C. § 3664(o) states a sentence

imposing restitution is a final judgment, it also states restitution can subsequently

be modified or adjusted under certain statutes, including 18 U.S.C. §§ 3572 and

3664(k). See 18 U.S.C. § 3664(o)(1)(D). Section 3664(k) states, in part:

A restitution order shall provide that the defendant shall notify the
court ... of any material change in the defendant’s economic
circumstances that might affect the defendant’s ability to pay
restitution. The court may also accept notification of a material
change in the defendant’s economic circumstances from the United
States or from the victim.

18 U.S.C. § 3664(k). At least one court has defined a “material change in the

defendant’s economic circumstances,” under § 3664(k), as a bona fide positive or

negative change in the defendant’s financial circumstances which affects his

ability to pay restitution. See Cani v. United States, 331 F.3d 1210, 1215 (11th

Cir. 2003). Section 3664 also states that if the person obligated to provide

restitution receives substantial resources from any source during a period of

incarceration, such person shall be required to apply the value of such resources

to any restitution still owed. See 18 U.S.C. § 3664(n). In addition, 18 U.S.C.

1
A majority of circuit courts have also held a federal prisoner cannot
challenge the restitution portion of his sentence using 28 U.S.C. § 2255 as a
vehicle for such a challenge. See United States v. Bernard, 351 F.3d 360, 361
(8th Cir. 2003) (listing majority cases).

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§ 3572 allows a court to modify repayment due to a “material change in the

defendant’s economic circumstances that might affect the defendant’s ability to

pay,” stating that on receipt of such notice “the court may, on its own motion or

the motion of any party, adjust the payment schedule, or require immediate

payment in full, as the interests of justice require.” 18 U.S.C. § 3572(d)(3). If a

defendant is in default, 18 U.S.C. § 3613A also allows the court to adjust a

payment schedule or take any other action necessary to obtain compliance.

In this case, Mr. Grigsby filed a motion to modify the restitution order,

advising the district court the minor victim’s restitution payments were being

made to the mother of that minor victim, even though the minor victim was no

longer in the mother’s custody due to the mother’s negligence. He also provided

documentation showing a pending government petition on the custody and care of

the minor victim on grounds of inadequate parental care, control, or subsistence.

While this does not directly indicate a change in financial circumstances affecting

Mr. Grigsby’s ability to pay, it is clear the defendant raised a question as to who

should receive the restitution payments for the benefit of the minor child. We can

find nothing in the statutes concerning restitution payments which limits the

district court from modifying a restitution order for the purpose of changing the

recipient of restitution payments for the benefit of, or in the interests of, a minor

child.

In addition, in his motion to modify the restitution order, Mr. Grigsby also

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indicated he was involved in a divorce proceeding, which he intimated may affect

the financial circumstances concerning his ability to pay restitution to the minor

victim and her mother, and he further advised he was attempting in the divorce

proceeding to create a trust for the benefit of the minor victim, of which the

divorce court was aware. He also indicated his interest in placing the restitution

payments into the trust, his own mother’s willingness to provide monetary

payments to the trust, and that he would possibly be placing his union pension

benefits, bonds, coin collection, insurance benefits, and other monetary interests

in such trust. While this appears to be a matter more aptly dealt with by the

divorce court, Mr. Grigsby nonetheless notified the court, as required, of what

might be construed to be a change in his economic circumstances concerning his

ability to pay restitution. 2

For these reasons, we remand to the district court that portion of the district

court’s March 14, 2014 order on Mr. Grigsby’s March 7, 2014 motion for

reconsideration (on his motion for modification of the restitution judgment)

dealing with the issues indicated. The district court should hold an expedited

hearing to consider and determine: 1) whether the restitution payments due and

owing to the minor child should be modified with respect to who or what entity

2
Even though the district court held Mr. Grigsby’s pending appeal on his
sentence was a jurisdictional impediment to its ruling on Mr. Grigsby’s restitution
motion, our decision on the appeal has since issued, leaving no such impediment
to its review.

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should receive those payments for the benefit of the minor victim; and 2) whether

Mr. Grigsby’s economic circumstances have changed for the purpose of

modifying the restitution judgment with respect to the time, type, or method of

full or partial payment of such restitution to the minor child. 3

As to the other issues in Mr. Grigsby’s March 7, 2014 motion for

reconsideration, no remand is necessary. To begin, the conditions of Mr.

Grigsby’s supervised release are not part of the restitution judgment but part of

his sentence. However, when he appealed his sentence, Mr. Grigsby failed to

contest the conditions of his supervised release, including the special condition

prohibiting him from contacting the minor child. While Federal Rule of Criminal

Procedure 32.1(b) allows a defendant to file for modification of a special

condition of supervised release while still incarcerated, see United States v.

Pugliese, 960 F.2d 913, 914-15 (10th Cir. 1992), Mr. Grigsby’s motion is

woefully premature, given he only began serving his 260-year sentence in 2013,

3
While the Victim and Witness Protection Act (VWPA), 18 U.S.C.
§ 3663(a)(1)(A), requires courts to consider the economic circumstances of the
defendant in ordering restitution to a victim, the Mandatory Victims Restitution
Act (MVRA), pertaining to victims of crimes of violence, such as presented here,
does not permit a court to consider a defendant’s economic circumstances when it
imposes restitution. See 18 U.S.C. § 3664(f)(1)(A); United States v. Serawop,
505 F.3d 1112, 1117-18 (10th Cir. 2007). Only after restitution is determined is a
defendant required to notify the court of any material change in the defendant’s
economic circumstances that might affect the defendant’s ability to pay the
restitution imposed at sentencing. See 18 U.S.C. § 3664(k). In other words,
while a defendant cannot contest a district court’s initial restitution calculation
absent a direct appeal, a later argument his economic circumstances have changed
is “fully cognizable” under § 3664(k). See Cani, 331 F.3d at 1215.

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and he has not provided any legitimate change in circumstance to support

modifying the prohibition of his contacting the minor victim, against whom he

committed a multitude of abhorrent sexually-abusive acts, or any minor child for

that matter. Accordingly, the district court properly denied consideration of this

issue when it ruled on Mr. Grigsby’s March 7, 2014 motion for reconsideration,

and no remand is necessary.

As to the last issue raised in Mr. Grigsby’s March 7, 2014 motion for

reconsideration, regarding his request for a new assessment of psychological need

based on the February 2011 cease and desist order issued against Mr. Lemuz, he

failed to appeal the restitution judgment or any evidence in support thereof,

including Mr. Lemuz’s testimony. It is apparent Mr. Grigsby’s claim is directed

to the original amount of restitution awarded to the victim, as determined by such

testimony; however, such a challenge is required to be brought on direct appeal

within fourteen days of the restitution order. See Fed. R. App. P. 4(b)(1)(A)(i).

See also Cani, 331 F.3d at 1214-15 (holding that a defendant cannot contest a

district court’s initial restitution calculation absent direct appeal). While a

defendant may, under 18 U.S.C. § 3742, file an appeal for review of a final

sentence, such an appeal is limited to a sentence imposed in violation of law or as

a result of an incorrect application of the United States Sentencing Guidelines.

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See 18 U.S.C. § 3664(o)(1)(B). Mr. Grigsby has shown neither. 4 For these

reasons, the district court properly denied this issue in ruling on Mr. Grigsby’s

March 7, 2014 motion for reconsideration, and no remand is necessary.

As to Mr. Grigsby’s other motion for reconsideration, filed March 10,

2014, concerning his motion to obtain certain hearing transcripts, including those

on his sentence and restitution, we agree with the district court’s assessment in

denying his motion. Mr. Grigsby has made no showing of his particularized need

for the transcripts, including the sentencing hearing transcripts which were part of

the record in his initial appeal. Finally, with regard to Mr. Grigsby’s Rule 41(g)

motion for return of certain forfeited property involving non-pornographic

photographs, we review questions of law relating to Rule 41(g) motions de novo

and review the district court’s weighing of equitable considerations and its

decision to deny such a motion for an abuse of discretion. See United States v.

Shigemura, 664 F.3d 310, 312 (10th Cir. 2011). Here, the record clearly shows

any requested non-pornographic photographs contained in the forfeited property

were obtained by Mr. Grigsby pursuant to the district court’s order allowing him

4
Even if we were to give Mr. Grigsby the benefit of the doubt and
consider the cease and desist order as newly-discovered evidence of which he was
reasonably unaware for the purpose of contesting the original restitution amount
on direct appeal, the 2011 cease and desist order was issued two years before Mr.
Lemuz testified at the March 2013 sentencing hearing. Mr. Grigsby has not
shown Mr. Lemuz was still prohibited him from conducting independent,
unsupervised practice of social work and psychotherapy in Kansas at the time of
the 2013 hearings, or that the testimony of another expert would change the
restitution amount awarded.

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to copy them, and it is Mr. Grigsby who released them to his wife. Accordingly,

this is a divorce proceeding issue. In addition, it is clear Mr. Grigsby failed to

appeal the forfeiture order against him. Criminal forfeiture is part of a

defendant’s criminal sentence, see United States v. Libretti, 38 F.3d 523, 527

(10th Cir. 1994), which a defendant is required to challenge on direct appeal, 5 and

Mr. Grigsby has not otherwise shown he has a continuing right to pictures stored

in any forfeited items following the district court’s order allowing him one-time

access to them. For these reasons, the district court did not abuse its discretion in

denying Mr. Grigsby’s motion for return of non-pornographic photographs.

III. Conclusion

For the foregoing reasons, we REMAND for reconsideration and an

expedited hearing the portion of the district court’s March 14, 2014 order ruling

on Mr. Grigsby’s March 7, 2014 motion for reconsideration concerning his

motion for modification of the restitution judgment, as identified herein, and in

accordance with our directions. We AFFIRM the remainder of the district

court’s March 14, 2014 order as it pertains to Mr. Grigsby’s February 27, 2014

5
See id; Young v. United States, 489 F.3d 313, 315 (7th Cir. 2007); United
States v. Christunas, 126 F.3d 765, 767-68 (6th Cir. 1997); United States v.
Libretti, 161 F.3d 18, 1998 WL 644265, at *5 (10th Cir. Sept. 9, 1998)
(unpublished op.).

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motion for return of certain photographs; March 7, 2014 motion for

reconsideration, except as identified for remand; and March 10, 2014 motion for

reconsideration concerning his motion for certain transcripts.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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