United States v. Lopez-Ortiz , 875 F.3d 49 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2253
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR LOPEZ-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta
Circuit Judges.
Jamesa J. Drake, with whom Drake Law, LLC was on brief, for
appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, were on brief, for appellee.
November 8, 2017
KAYATTA, Circuit Judge. Victor Lopez-Ortiz appeals the
revocation of his supervised release and the imposition of a
statutorily authorized, but above-guidelines, three-year term of
imprisonment. He contends that the district court improperly
shifted the burdens of production and persuasion at his final
revocation hearing, an error requiring remand and resentencing.
For the reasons described below, we affirm the judgment and
sentence.
I.
In early 2015, Lopez-Ortiz completed a sentence of
imprisonment for conspiring to distribute cocaine in violation of
federal laws. Just three months into an eight-year term of
supervised release, he was charged with repeatedly violating the
conditions of that release.
The charges against Lopez-Ortiz led to a hearing on the
government's motion to revoke his supervised release. Revocation
involves two stages. First, the court conducts a preliminary
hearing "to determine whether there is probable cause to believe
that a violation occurred." Fed. R. Crim. P. 32.1(b)(1)(A).
Second, the court holds a final revocation hearing, at which the
defendant has "an opportunity to appear, present evidence, and
question any adverse witness" and to "present any information in
mitigation." Fed. R. Crim. P. 32.1(b)(2)(C), (E).
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At Lopez-Ortiz's preliminary revocation hearing on
August 11, 2015, the probation officer responsible for Lopez-Ortiz
testified that Lopez-Ortiz had reported an address of record at
which he did not actually live, failed to appear for scheduled
drug tests on three occasions, admitted to another probation
officer that he was using synthetic marijuana, failed to attend
scheduled mental health treatment, and failed to remain at his
transitional housing program and follow its rules, all in violation
of several stated conditions of his supervised release. On cross-
examination, defense counsel raised no challenge to the officer's
description of Lopez-Ortiz's conduct. Rather, counsel sought to
question the witness about the results of a mental health
examination performed on Lopez-Ortiz at his counsel's request
prior to the hearing. The government objected, arguing that Lopez-
Ortiz's mental health assessment was irrelevant to whether
probable cause existed for the charged violations. Defense counsel
responded that the information about Lopez-Ortiz's mental health
went "directly . . . to why he didn't participate" in the scheduled
mental health treatment. The government noted that defense counsel
must therefore be "making an admission that he violated the
conditions." Counsel for Lopez-Ortiz did not respond to this
characterization, and the questioning continued. At the
conclusion of the hearing, the magistrate judge determined that
probable cause existed for the charged violations.
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Before the final revocation hearing, counsel for Lopez-
Ortiz filed a motion requesting a continuance and updating the
court on the status of the case. In addition to requesting the
continuance due to a scheduling conflict, defense counsel used the
motion to explain Lopez-Ortiz's position. That explanation
eschewed any contention that Lopez-Ortiz had not acted as charged
by the government. Instead, counsel argued that "[o]f the alleged
violations, the only one which by statute requires mandatory
revocation [is] the failure to attend drug testing" and that Lopez-
Ortiz "did not violate said condition willfully and voluntarily."
Counsel also requested that "should the Court find that he
willingly and voluntarily incurred in [sic] any of the alleged
violation[s] other than the drug testing, his supervision be
modified rather than revoked." The motion further admitted that
Lopez-Ortiz, "without the [probation office's] consent, squatted
an apartment in [a] housing project and refused to leave the
apartment to attend appointments scheduled by [the probation
office]," claiming that Lopez-Ortiz did so "due to fear for his
[life]." Finally, the motion excerpted a portion of the report of
the psychologist, Dr. Alexandra Ramos, who conducted Lopez-Ortiz's
mental health examination, noting that the report's excerpt
"summarizes the arguments which will be presented at the final
revocation hearing." The report concluded that a "combination of
factors is the reason why [Lopez-Ortiz] violated the terms of his
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probation by fleeing his placement and not participating in mental
health treatment."
The beginning of the final revocation hearing evidenced
some confusion over which party should proceed first. Over Lopez-
Ortiz's objection, the district court ordered his counsel to
proceed first, stating that the burden is "on you."1
Defense counsel then called two witnesses: (1) Lopez-
Ortiz's probation officer and (2) the psychologist who evaluated
Lopez-Ortiz and authored the report containing her evaluation.
Both witnesses testified on direct examination that Lopez-Ortiz
did not comply with certain conditions of his supervised release.
The probation officer testified that Lopez-Ortiz had "left the
housing project" at which he was supposed to remain and "did not
attend" a scheduled appointment. The psychologist testified that
a "combination of . . . factors," including "a limited intellectual
capacity," a "severe beating" Lopez-Ortiz had endured, "the use of
synthetic marijuana," "and the perceived threat on his life and
subsequent paranoia," "explains why he violated the conditions of
1 THE COURT: [To the defendant] Have you decided what, how are we
going to proceed in this case? Are you going to want the hearing,
or are you going to waive the hearing?
THE DEFENDANT: I want it to be held.
THE COURT: All right. Call your first witness.
[DEFENSE COUNSEL]: Your Honor, I understand the burden is on the
government.
THE COURT: No. It's on you.
[DEFENSE COUNSEL]: Okay.
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his supervised release." The government cross-examined both
witnesses, eliciting further testimony that Lopez-Ortiz abandoned
his transitional housing program, failed to report for mental
health treatment, failed to follow the probation officer's
instructions, and missed three scheduled drug tests in February
and March of 2015.
The court concluded that "it is a fact that [Lopez-
Ortiz] has violated the conditions of his supervised release."
The court further explained that it had read the psychologist's
report as to Lopez-Ortiz's mental health and agreed that "he needs
treatment." The court then revoked Lopez-Ortiz's supervised
release. Lopez-Ortiz unsuccessfully sought reconsideration,
arguing again that his violations were not voluntary because of
his mental health issues. The court sentenced Lopez-Ortiz to a
three-year term of imprisonment, the maximum allowed under 18
U.S.C § 3583(e)(3), plus three years of supervised release. The
court also stated that it would "strongly recommend to the Bureau
of Prisons that . . . Mr. Lopez-Ortiz be designated to serve this
sentence at the Butner Medical Institute in Butner, North Carolina,
so that he can receive inpatient substance abuse treatment" and
other health services.
II.
Lopez-Ortiz contends that the district court erred in
announcing that he bore "the burden of proof and persuasion."
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Although that was not quite what the district court said, the
government does not seem to contest Lopez-Ortiz's spin on the
district court's statement, or that the district court erred. The
government also says that the district court erred because it
"required that Lopez-Ortiz present evidence at the final
revocation hearing," which is also not what the court said.
We think it more likely that the district court presumed,
although failed to confirm, that there was no challenge to the
fact of a violation, and that Lopez-Ortiz simply wanted to "present
any information in mitigation." Fed. R. Crim. P. 32.1(b)(2)(E).
Nevertheless, given the government's acquiescence, we will assume
that the district court did indeed err in announcing that Lopez-
Ortiz need proceed first as the party with the burdens of
production and proof. So the pivotal question is whether and with
what degree of confidence we can say there was no harm. Claiming
that his constitutional due process rights are at stake, Lopez-
Ortiz argues that we should vacate his sentence unless we can find
that the assumed error was harmless beyond a reasonable doubt,
citing Chapman v. California, 386 U.S. 18, 24 (1967). Whether
that is the appropriate standard we need not decide because any
error here was harmless by any measure.
To explain why this is so, we train our attention on
what was at issue in the final revocation hearing. As the parties'
pre-hearing filings made clear, Lopez-Ortiz indisputably conducted
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himself as claimed by the government. Even on appeal, Lopez-Ortiz
forthrightly makes no argument that he did not act as charged.
In theory, the parties' concordance nevertheless left
unresolved the question of mens rea. The relevant statute, 18
U.S.C. § 3583(e)(3), authorizes revocation of a term of supervised
release in favor of imprisonment if, pursuant to Federal Rule of
Criminal Procedure 32.1, the court "finds by a preponderance of
the evidence that the defendant violated a condition of supervised
release." Revocation is mandatory if the defendant "refuses to
comply with drug testing imposed as a condition of supervised
release." 18 U.S.C. § 3583(g)(3). Although the statute makes no
express mention of any mens rea requirement, the word "refusal"
arguably implies some such element, and at least one circuit court
has squarely held that revocation requires that a violation be
"knowing." See United States v. Napulou, 593 F.3d 1041, 1045 (9th
Cir. 2010); see also United States v. Muñoz, 812 F.3d 809, 822–23
(10th Cir. 2016) (reading a "knowing" standard into a condition of
supervised release); United States v. Adkins, 743 F.3d 176, 196
(7th Cir. 2014) (noting that Due Process requires clarity in
supervised release prohibitions). Such a conclusion is consistent
with our own case law presuming that one generally need know the
facts that make one's conduct unlawful in order to be convicted of
a crime. See United States v. Ford, 821 F.3d 63, 74–75 (1st Cir.
2016). So, had there been a dispute concerning whether Lopez-
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Ortiz knew that he was missing his required drug testing, an order
that he must proceed first to prove a lack of such knowledge might
well have caused prejudice.
Here, though, Lopez-Ortiz never even hinted that he was
unaware that he was skipping his required drug testing. To the
contrary, even before the final revocation hearing he left
undisputed the evidence that he understood his obligation to appear
for drug testing, and understood that he was choosing to fail to
appear. The probation officer testified at the probable cause
hearing that he spoke with Lopez-Ortiz on the phone about his
obligation to attend drug testing. His counsel never suggested
any interest in challenging the existence of such awareness. And
on appeal he makes no claim that his conduct was not knowing.
Instead, counsel sought to present evidence from a
psychologist aimed at establishing that Lopez-Ortiz did not act in
a manner that was "truly voluntary." In the words of the
psychologist, "a combination of a limited intellectual capacity,
[a] severe beating, the use of synthetic marijuana and [a]
perceived threat on his life and subsequent paranoia impaired
his . . . ability . . . to make a decision and evaluate the
consequences of his actions." This "combination of factors,"
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opined the psychologist, "explains why he violated the conditions
of his supervised release."2
The problem for Lopez-Ortiz is that he can cite no
precedent suggesting that "involuntariness" in the sense of being
fearful or experiencing duress negates an element of the charged
violation. The Model Penal Code does state that a person "is not
guilty of an offense unless [his or her] liability is based on
conduct that includes a voluntary act." Model Penal Code
§ 2.01(1). But, an omission constitutes a voluntary act when "[he
or she] is physically capable" of performing an act, and has some
duty to perform it. Id. § 2.01(1), (3) (noting that omission
liability must be based on a legal duty to act or an express
statement in the law that the omission constitutes the offense).
Involuntary acts are the product of "reflexes, convulsions, and
movements occurring during unconsciousness," United States v.
Torres, 74 M.J. 154, 158 (C.A.A.F. 2015), as well as actions
performed while sleepwalking, Smith v. State, 663 S.E.2d 155, 157
(Ga. 2008). Proof that one acts due to addiction, or out of fear,
is not proof that one acts involuntarily. See Powell v. Texas,
392 U.S. 514, 535 (1968) (plurality opinion) (alcoholism); United
States v. Solorzano-Rivera, 368 F.3d 1073, 1080–81 (9th Cir. 2004)
(fear of police harassment).
2 Lopez-Ortiz appears to have feared for his life if he ventured
outside.
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This is not to say that Lopez-Ortiz's evidence was
irrelevant. We can assume (without deciding) that it may have
provided some type of affirmative defense, such as duress.
Certainly, such proof might have been submitted under Rule 32.1 as
grounds for mitigation. In either event, though, Lopez-Ortiz would
have borne the burden of proof for those subjects. Cf. Dixon v.
United States, 548 U.S. 1, 17 (2006) (absent legislation to the
contrary, the defendant in a criminal trial bears the burden of
proving a defense of duress); see also Fed. R. Crim. P.
32.1(b)(2)(C), (E) (allowing the defendant to "present evidence"
and "present any information in mitigation").
As an alternative argument, Lopez-Ortiz posits that the
district court settled on a longer prison sentence than it
otherwise would have imposed because it placed the burden on Lopez-
Ortiz to convince the court that something shorter than the three-
year maximum was appropriate. Whatever one might think of this
argument in the abstract, it fails in practice. In explaining the
sentence, the district court evidenced no hint that the burden of
proof played any role at all. The district court expressly relied
on the entirely undisputed factual information submitted by the
government prior to the hearing (as confirmed at the hearing).
Nor did the court reject the evidence offered by Lopez-
Ortiz in mitigation. While the court properly did not view that
evidence as relevant to determining whether the charged violations
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occurred, or whether Lopez-Ortiz knew what he was doing, the court
indicated that it was "impressed by the report submitted by
Dr. Ramos." The court also expressly agreed with Dr. Ramos's
recommendation that Lopez-Ortiz be placed in a drug treatment
program in a restricted area, such as a prison with adequate
resources. This recommendation caused the court to "strongly
recommend to the Bureau of Prisons that based on the evaluation
performed by Dr. Ramos . . . Lopez-Ortiz be designated to serve
[his] sentence at the Butner Medical Institute in Butner, North
Carolina, so that he can receive inpatient substance abuse
treatment" and other health services.
In sum, Lopez-Ortiz knowingly violated the terms of his
supervised release. The only issue was what significance should
be assigned to the testimony of Lopez-Ortiz's expert in sentencing.
The district court actually accepted the factual gist of that
testimony (that Lopez-Ortiz was psychologically resistant to
compliance with the key terms of supervised release), rejecting
only the fully mitigative import defense counsel would draw from
that testimony. On such a record, the manner in which the district
court proceeded could not have caused Lopez-Ortiz any improper
prejudice.
III. Conclusion
We affirm the judgment and sentence.
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