USA_v_DANIEL_9910268oAmended July 7, 2000
| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
UNITED STATES OF AMERICA, No. 99-10268 Plaintiff-Appellee, D.C. No. v. CR-96-00280-LKK ALLEN DAVID DANIEL,ORDER AND Defendant-Appellant.AMENDED OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Chief District Judge, Presiding
Submitted March 14, 20001
San Francisco, California
Filed April 19, 2000
Amended July 7, 2000
Before: Diarmuid F. O'Scannlain and Pamela Ann Rymer,
Circuit Judges, and Jeffrey T. Miller, District Judge2
Opinion by Judge Miller
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Criminal Law and Procedure/Parole
The court of appeals affirmed an order of the district court.
The court held that evidence and oral findings on the record
are sufficient to satisfy the due-process requirement of a writ-
ten statement of reasons and facts relied on when a district
court revokes a term of supervised release.
After completing a federal prison sentence, appellant Allen
Daniel began a term of supervised release. Before the term
was over, a probation officer filed a petition asserting that
Daniel had violated the conditions of his supervised release
(submitting accurate and complete monthly reports, and obey-
ing all laws). The petition alleged that Daniel had received
$6000 from his fiancee and $2000 from his girlfriend that he
did not report as "other income," and had defrauded his fian-
cee of the $6000.
The district court determined that Daniel had violated the
terms of his supervised release and sentenced him to three
years in prison.
On appeal, Daniel contended revocation of his supervised
release was improper because the district court failed to make
written findings as to the reasons and facts underlying the
revocation.
[1] An individual whose probation or parole is being
revoked is entitled to a written statement by the factfinders as
to the evidence relied on, and reasons for the revocation.
These due-process protections extend to an individual whose
supervised release is being revoked.
[2] The rationale for imposing the written statement
requirement is to ensure accurate factfinding, and to assist in
judicial review of the revocation decision. These purposes are
met when a district court states the reasons for its decision on
the record.
[3] Although the district court failed to support its conclu-
sion that Daniel engaged in fraud with sufficiently detailed
findings, the record established that Daniel engaged in fraud
so as to support revocation of his supervised release.
_________________________________________________________________
COUNSEL
Mary M. French, Assistant Federal Defender, Sacramento,
California, for the defendant-appellant.
William C. Hahesy, Assistant United States Attorney, Sacra-
mento, California,, for the plaintiff-appellee.
_________________________________________________________________
ORDER
The opinion filed on April 19, 2000, is hereby ordered
AMENDED by the addition of a footnote at the end of the
first full paragraph on page 4220 of the slip opinion. The foot-
note shall read:
We need not remand Daniel's sentence for recon-
sideration in light only of his violation as alleged in
Charge III, because the district court made it per-
fectly clear that it departed upward from the range
indicated in the Sentencing Guidelines on the
grounds that there was "a high risk" of "repeated
felonious conduct." The likelihood of future felonies
was not perceived, of course, in Daniel's failure to
report income but in his repeated perpetration of
frauds, i.e., his violation as alleged in Charge III.
With this amendment, the panel has unanimously voted to
deny Appellant's Petition for Rehearing.
The full court has been advised of Appellant's Petition for
Rehearing En Banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The Petition for Rehearing and Petition for Rehearing En
Banc are thus DENIED.
_________________________________________________________________
OPINION
MILLER, District Judge:
Defendant Allen David Daniel ("Daniel") appeals the revo-
cation of his supervised release. This appeal raises the ques-
tion of whether a district court must make written findings in
support of a decision to revoke supervised release and also
requires us to review the sufficiency of the district court's oral
findings in this case. We hold oral findings made on the
record satisfy due process and otherwise affirm the district
court.
Background
In February of 1995, Daniel was sentenced to 10 months
imprisonment for wire fraud in violation of 18 U.S.C. S 1343.
That sentence was to be followed by 36 months supervised
release. After serving his custodial sentence, Daniel com-
menced the term of his supervised release on March 12, 1996.
On March 8, 1999, United States Probation Officer Richard
Ortiz filed a petition alleging that Daniel had violated the
terms of his supervised release. Charges I and II charged Dan-
iel with failing to submit truthful and complete written
monthly reports on two occasions in violation of Standard
[Release] Condition Number Two, and Charge III charged
Daniel with obtaining money under false pretenses in viola-
tion of the condition to obey all laws. With respect to Charges
I and II, it was alleged that Daniel received $6,000 from his
fiancee and $2,000 from a girlfriend which he did not report
as "other income" on his monthly report. As to Charge III, it
was alleged that Daniel defrauded his fiancee of the $6,000.
Daniel entered a denial of all charges and an evidentiary hear-
ing was held. The district court determined that Daniel had
violated the terms of his release. On May 11, 1999, the district
court sentenced Daniel to three years in prison.
Analysis
A. Did the district court err in failing to make written
findings in support of its decision?
[1] An individual whose probation or parole is being
revoked is entitled to certain due process protections, includ-
ing "a written statement by the factfinders as to the evidence
relied on and reasons for" the revocation. Morrissey v.
Brewer, 408 U.S. 471, 489 (1972) (parole); Gagnon v. Scar-
pelli, 411 U.S. 778, 786 (1973) (probation). These due pro-
cess protections also extend to an individual whose supervised
release is being revoked. See United States v. Martin, 984
F.2d 308, 310 (9th Cir. 1993).
The threshold issue presented in this case is whether, in
light of the language of Morrissey and Gagnon, oral findings
made on the official court record satisfy the requirements of
due process in a revocation proceeding. We have not previ-
ously addressed this issue. In United States v. Rilliet, 595 F.2d
1138, 1140 (9th Cir. 1979), a case involving the revocation of
probation, the defendant "[i]ncluded under the umbrella of his
argument on insufficiency" the contention that reversal was
warranted because "the district court did not make written
findings." However, although we concluded that the district
court's oral findings on the record were sufficient, the defen-
dant did not raise, nor did we address, the due process issue
raised here. Of the circuits that have addressed this issue, all
but the Eighth Circuit have held that oral findings on the
record are sufficient to meet due process concerns. See United
States v. Barth, 899 F.2d 199 (2d Cir. 1990) (probation), cert.
denied, 498 U.S. 1083 (1991); United States v. Copley, 978
F.2d 829 (4th Cir. 1992) (supervised release); United States
v. Gilbert, 990 F.2d 916 (6th Cir. 1993) (supervised release);
United States v. Yancey, 827 F.2d 83 (7th Cir. 1987) (proba-
tion), cert. denied, 485 U.S. 967 (1988); Morishita v. Morris,
702 F.2d 207 (10th Cir. 1983) (probation); United States v.
Copeland, 20 F.3d 412 (11th Cir. 1994) (supervised release).
But see United States v. Smith, 767 F.2d 521 (8th Cir. 1985)
(probation).
[2] The rationale for imposing the "written statement"
requirement is to insure accurate fact-finding and to assist in
judicial review of the revocation decision. See Black v.
Romano, 471 U.S. 606, 613 -14 (1985) ("The written state-
ment required by Gagnon and Morrissey helps to insure accu-
rate factfinding with respect to any alleged violation and
provides an adequate basis for review to determine if the deci-
sion rests on permissible grounds supported by the evi-
dence."). Clearly, these purposes are met when a district court
states the reasons for its decision on the record. As the Sixth
Circuit aptly explained in Gilbert, 990 F.2d at 917, "to require
a judge to copy or paraphrase the transcript of his[or her]
findings in the wake of a revocation hearing would elevate
form over substance and do absolutely nothing to further
secure the rights of those on supervised release. " Thus, we
hold that oral findings made on the record by a district court
in a revocation proceeding comport with due process.
B. In its oral findings, did the district court sufficiently
identify the evidence relied on and reasons for the
revocation decision?
[3] Daniel argues that he was not given fair notice of the
requirement to report "other income." Beyond this, Daniel
argues that, even if separate written findings are not required,
the district court's oral findings are not sufficiently detailed
and the evidence is insufficient to sustain the revocation. We
need not decide whether Daniel was given fair notice of the
reporting requirement because we conclude that, although the
district court failed to support its conclusion that Daniel
engaged in fraud with sufficiently detailed findings, the
record establishes that Daniel engaged in fraud so as to sup-
port revocation of Daniel's supervised release.
We review a district court's decision to revoke a term of
supervised release for an abuse of discretion. United States v.
Schmidt, 99 F.3d 315, 320 (9th Cir. 1996). "A due process
violation at a revocation proceeding is subject to harmless
error analysis." United States v. Havier, 155 F.3d 1090, 1092
(9th Cir. 1998).
In this case, the district court stated there was"[n]o doubt
in the Court's mind that the government has sustained its bur-
den." The record clearly discloses sufficient evidence to
establish a violation of Charge III by Daniel as well as the dis-
trict court's finding of such a violation. Charge III alleged that
Daniel "fraudulently obtained $6,000 from Patricia Blake on
the pretense the money would be invested in a project, County
Line Communications, and would have a ten percent (10%)
return within six (6) months" and therefore alleged that Dan-
iel violated California Penal Code S 532(a), which provides in
relevant part:
Every person who knowingly and designedly, by any
false or fraudulent representation or pretense,
defrauds any other person of money . . . is punish-
able in the same manner and to the same extent as
for larceny of the money or property so obtained.
Here, the record establishes by a preponderance of the evi-
dence that Daniel defrauded Ms. Blake, as the following evi-
dence demonstrates:
Daniel and Ms. Blake lived together in 1997 and became
engaged in November 1997. After they became engaged, Ms.
Blake received $8,000 from a worker's compensation claim.
Ms. Blake was told by Daniel that if she invested $6,000 of
it with Daniel she would get back her $6,000 in six months
along with an additional $600. At Daniel's further suggestion,
Ms. Blake also set up a checking account into which Daniel
placed money from time to time. This account was basically
used to pay their living expenses. At the time he gave Ms.
Blake money to deposit in the account, Daniel never advised
her that the money was to be considered repayment for the
loan, and it was not her understanding that the money was to
be repayment for the loan. Ms. Blake never received any
money from Daniel on her supposed investment. Although on
cross-examination Ms. Blake admitted that the amount Daniel
gave her to put into the checking account was roughly $6,000,
the district court clearly could have believed her testimony
that the money Daniel gave her was not repayment for the
loan in light of their cohabitation and engagement as well as
Daniel's encouragement of Mrs. Blake to quit her job because
they had enough money in the bank. Finally, Daniel's proba-
tion officer investigated the "investment" presented to Ms.
Blake and discovered that the company for which Daniel told
Ms. Blake he was doing a project did not in fact exist.
The government buttressed its case on Charge III by pre-
senting evidence that Daniel had defrauded his girlfriend, Ms.
Jonsson, in the amount of $2,000 under a scheme similar to
that perpetrated upon Ms. Blake. The testimony of Ms. Jons-
son was detailed and compelling in this regard. The district
court clearly found fraud: "We all know what is going on. It's
a fraud."
Here, Charge III, fraud, was the violation which the district
court specifically found occurred. Supervised release can be
revoked based upon only one violation. See 18 U.S.C.
S 3565(a); see also United States v. Lindo , 52 F.3d 106, 108
(6th Cir. 1995). On this record, the district court's conclusion
that Daniel engaged in fraud as alleged in Charge III is sup-
ported by a preponderance of the evidence. See 18 U.S.C.
S 3583(e)(3) (a court may revoke a term of supervised release
if it finds by a preponderance of the evidence that the defen-
dant violated a condition of supervised release). 3
For the foregoing reasons, the decision of the district court
revoking Daniel's supervised release is
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
2 The Honorable Jeffrey T. Miller, District Judge for the Southern Dis-
trict of California, sitting by designation.
3 We need not remand Daniel's sentence for reconsideration in light only
of his violation as alleged in Charge III, because the district court made
it perfectly clear that it departed upward from the range indicated in the
Sentencing Guidelines on the grounds that there was "a high risk" of "re-
peated felonious conduct." The likelihood of future felonies was not per-
ceived, of course, in Daniel's failure to report income but in his repeated
perpetration of frauds, i.e., his violation as alleged in Charge III.
|
 |
LEGAL NEWS:
Top Headlines ·
Supreme Court ·
Commentary ·
Crime ·
Cyberspace ·
International US FEDERAL LAW: Constitution · Codes · Supreme Court Opinions · Circuit Opinions US STATE LAW: State Constitutions · State Codes · Case Law RESEARCH: Dictionary · Forms · LawCrawler · Library · Summaries of Law LEGAL SUBJECTS: Constitutional · Intellectual Property · Criminal · Labor · more... GOVERNMENT RESOURCES: US Federal · US State · Directories · more... INTERNATIONAL RESOURCES: Country Guides · Trade · World Constitutions · more... COMMUNITY: Message Boards · Newsletters · Greedy Associates Boards TOOLS: Office · Calendar · CLE · Email · FAX · West WorkSpace · FirmSite |
| Advertising Info · Add URL · Help · Comments | Jobs@FindLaw · Site Map |
|
|
| Company | Privacy Policy | Disclaimer | Copyright © 1994-2001 FindLaw |