United States v. Sandra Dennis ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10316
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRA DENNIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00302-ELR-1
____________________
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2 Opinion of the Court 21-10316
Before WILLIAM PRYOR, Chief Judge, JORDAN, and ANDERSON, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns the notice that a probationer must re-
ceive before her probation can be revoked. One of the mandatory
conditions of Sandra Dennis’s probation for stealing social security
funds was that she not commit any new state crimes. A police of-
ficer later investigated Dennis for theft of services after he sus-
pected that she took food from a restaurant without paying. Dur-
ing a heated exchange with the officer, Dennis repeatedly diso-
beyed his commands. Based on this encounter, a probation officer
provided written notice that Dennis had committed theft, battery,
and felony obstruction. After a hearing, the district court found that
Dennis committed misdemeanor obstruction and sentenced her to
a term of supervised release. Dennis objected to that sentence on
the ground that she had not been given written notice that her pro-
bation could be revoked for committing misdemeanor obstruction.
Because misdemeanor obstruction is a lesser included offense of
felony obstruction, the notice given to Dennis satisfied the require-
ments of “due process of law.” See U.S. CONST. amend. V. We af-
firm.
I. BACKGROUND
After the United States filed an information against Sandra
Dennis alleging one count of theft of government property for
knowingly converting to her use $21,433 of social security
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21-10316 Opinion of the Court 3
payments, see 18 U.S.C. § 641, she pleaded guilty. The district court
sentenced her to 24 months of probation. The district court also
required, as a condition of her probation, that Dennis not commit
any state crime.
Shortly before Dennis completed her sentence, her proba-
tion officer filed a petition to revoke her probation for violating her
“conditions of supervision.” The petition alleged that Dennis vio-
lated the condition that she not commit any state crime based on
an interaction she had with a police officer. It “alleged[] [that Den-
nis] committed the new crimes of Willful Obstruction of Law En-
forcement by Threats or Violence (felony), Simple Battery on a Po-
lice Officer (misdemeanor), and Theft of Services (misdemeanor)
in Henry County, Georgia.” The petition described Dennis’s ob-
structive conduct as follows:
According to Henry County, Georgia, Police Officer
Worrell, officers were called to the Silver Bay Seafood
restaurant located in Stockbridge, Georgia, in refer-
ence to a theft of services. Officer Worrell determined
that Dennis had obtained food from the restaurant
without paying for it, and he provided Dennis with
multiple opportunities to pay for the food or other-
wise make amends with the business. Dennis refused
to cooperate and would not follow any of the officer’s
instructions. Officer Worrell attempted to place Den-
nis in handcuffs, at which time she attempted to strike
Officer Worrell and a physical confrontation ensued.
Dennis was eventually subdued and arrested. Accord-
ing to Henry County Sheriff’s Office, Dennis posted a
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4 Opinion of the Court 21-10316
$5,000.00 property bond and was being released from
jail as of December 2, 2020.
Based on the petition, the district court ordered the issuance of a
warrant to arrest Dennis and ordered Dennis to “show cause why
Probation . . . should not be revoked.”
The district court later convened a revocation hearing at
which the parties gave evidence on the allegations. The govern-
ment reiterated its allegation that Dennis committed three state
crimes: “willful obstruction of law enforcement by threats or vio-
lence, felony; simple battery on a police officer, that’s a misde-
meanor; and theft of services, misdemeanor.” The district court
asked Dennis if she “ha[d] . . . received a written copy of these al-
leged violations” and Dennis responded that she had. Dennis also
responded that she would be denying the allegations that formed
the basis for the alleged violation.
The government called Officer Worrell to testify about the
encounter and to explain the video from the body camera he was
wearing at the time. Officer Worrell testified that the cashier at the
restaurant informed him that, after an order was placed over the
phone, a young woman and an older man walked into the restau-
rant, checked the food, and took the food without paying. Officer
Worrell then called the cellphone number used to place the order
and spoke with Dennis’s husband, who said that he thought his
wife had paid for the food. After Officer Worrell spoke with her
husband, Dennis told Officer Worrell that they were not going to
pay for the food, but that they would return the food instead.
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21-10316 Opinion of the Court 5
Dennis later arrived at the restaurant. Officer Worrell testi-
fied that, after Dennis stated again that she would not pay for the
food, he asked Dennis for her driver’s license so that he could pos-
itively identify her. Despite asking her multiple times, Dennis re-
fused to give Officer Worrell her license. And after Officer Worrell
asked Dennis several times to get off her phone, Dennis failed to
comply. After Officer Worrell grabbed the phone out of her hand,
Dennis “started swinging.” The government rested its evidence on
Officer Worrell’s testimony.
Dennis testified in her own behalf. Dennis admitted that she
had in her right hand a cellphone that Officer Worrell “snatched.”
But she maintained that she did not swing at him. Dennis testified
that she raised her hand to put on her glasses, after which Officer
Worrell “thr[ew] [her] against the wall.” She also testified that she
neither hit nor attempted to hit Officer Worrell “at any point.” And
she asserted that her hand appeared “balled up” to Officer Worrell
because she had attempted to put her mask over her face.
Dennis admitted that Officer Worrell “ask[ed] for [her]
driver’s license” twice. She admitted that she told him “no” because
she “need[ed] [her] license to drive home.” She acknowledged that
Officer Worrell “explain[ed] to [her] that if [she] didn’t give him
[her] license, . . . [h]e would have to arrest [her].” But Dennis re-
fused to comply. Dennis also admitted that Officer Worrell asked
her “repeatedly” to get off the phone when he was attempting to
speak with her and she again refused to comply.
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6 Opinion of the Court 21-10316
During closing arguments, defense counsel argued that
Dennis “never did anything that equates to felony obstruction.”
She maintained that felony obstruction was the charge at issue.
And she argued that felony obstruction “requires something more
than a misdemeanor obstruction. She is alleged to have committed
felony obstruction, and she did not do that.”
In response to that argument, the district court asked de-
fense counsel if it was her “position that [Dennis] could not be
found to have committed misdemeanor obstruction based on the
way that the alleged violation is pled.” Defense counsel responded
in the affirmative and argued that Dennis was “entitled to written
notice of what the allegations are against her.” And she argued that
there was “no allegation of misdemeanor obstruction,” so Dennis
could not “be found to have committed that [offense].”
When the government presented its argument, the district
court asked two questions related to the obstruction allegation.
First, the district court stated that the petition “specifically says fel-
ony obstruction,” and asked the government whether its “position
[was] that the evidence supports felony obstruction.” Second, the
district court asked the government if the district court could find
that Dennis committed misdemeanor obstruction “for not provid-
ing the phone and the driver’s license,” “[e]specially considering
that the pleading only says felony obstruction.”
The government responded that the evidence supported
both felony and misdemeanor obstruction. And the government
argued that “the violation is that she committed a new crime,” and
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“misdemeanor obstruction is a new crime.” “So,” the government
reasoned, if the district court were to find that Dennis committed
misdemeanor obstruction, it “c[ould] still revoke her” probation.
On the specific allegations, the district court could not “find
that [Dennis] committed theft.” And the district court found that
there was not enough evidence that Dennis committed battery or
felony obstruction. The district court reasoned that, although it
found that Officer Worrell’s testimony was highly credible and be-
lieved Officer Worrell’s testimony that Dennis had raised her hand,
it could not find from the video whether Dennis’s purpose was to
pull up her mask or to do violence.
The district court found that Dennis “definitely . . . commit-
ted the act of misdemeanor obstruction in not providing [her] li-
cense and in refusing to get off the phone.” The district court found
that Dennis’s attitude—that she “d[id] not have to listen to or re-
spect” Officer Worrell—“c[ame] across on th[e] video.” The district
court rejected defense counsel’s argument that Dennis lacked
“proper notice just because the petition says felony obstruction.”
The district court reasoned that “[t]he petition clearly sets forth
that the prohibited conduct is committing a new offense,” and “the
description of felony obstruction is just additional information.”
The district court concluded that there was no problem with
“find[ing] a reduced charge of the felony obstruction in the form of
misdemeanor obstruction.”
The district court found that Dennis violated her probation,
revoked it on the ground that she committed a new offense, and
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8 Opinion of the Court 21-10316
sentenced her to two years of supervised release. Defense counsel
again objected to the finding of misdemeanor obstruction on the
ground that Dennis had not been given proper notice of that alle-
gation.
II. STANDARD OF REVIEW
We review questions of law de novo. See United States v.
Brown, 364 F.3d 1266, 1268 (11th Cir. 2004).
III. DISCUSSION
The Fifth Amendment provides that “[n]o person shall be
. . . deprived of . . . liberty[] . . . without due process of law.” U.S.
CONST. amend. V. The revocation of probation is a deprivation of
liberty that entitles the probationer to due process. Gagnon v. Scar-
pelli, 411 U.S. 778, 782 (1973). But because the revocation of pro-
bation is “not a stage of a criminal prosecution,” id., “the full pan-
oply of rights due a defendant” in criminal prosecutions “does not
apply to . . . revocations” of probation, see Morrissey v. Brewer,
408 U.S. 471, 480 (1972); Gagnon, 411 U.S. at 782.
Revocation proceedings are more “flexible” than criminal
prosecutions, and it is improper to equate the two. Morrissey, 408
U.S. at 489. Although “[p]robationers have an obvious interest in
retaining their conditional liberty,” courts must “avoid[] the impo-
sition of rigid requirements that would threaten the informal na-
ture of probation revocation proceedings.” See Black v. Romano,
471 U.S. 606, 611 (1985).
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21-10316 Opinion of the Court 9
Because the proceeding involves “the revocation of the con-
ditional liberty created by probation,” id. at 610, “the question re-
mains what process is due,” Morrissey, 408 U.S. at 481. Before pro-
bation can be revoked, due process entitles the probationer to
“written notice of the claimed violations of” probation; disclosure
of the evidence against him; the “opportunity to be heard in person
and to present witnesses and documentary evidence”; “the right to
confront and cross-examine adverse witnesses”; a neutral and de-
tached hearing body; and “a written statement by the factfinders as
to the evidence relied on and reasons for revoking []probation.”
Gagnon, 411 U.S. at 786 (quoting Morrissey, 408 U.S. at 489). These
rights have also been incorporated into the Federal Rules of Crim-
inal Procedure, see FED. R. CRIM. P. 32.1(b)(2), and we construe
them harmoniously.
At issue here is whether the petition to revoke Dennis’s pro-
bation constituted “written notice of the claimed violations” of her
probation. Gagnon, 411 U.S. at 786 (internal quotation marks omit-
ted); see also FED. R. CRIM. P. 32.1(b)(2)(A) (requiring “written no-
tice of the alleged violation”). Notice “give[s] the charged party a
chance to marshal the facts in his defense and to clarify what the
charges are, in fact.” Wolff v. McDonnell, 418 U.S. 539, 564 (1974).
But—consistent with the Supreme Court’s admonition against the
imposition of rigidity—our predecessor Court has explained that
“[a] revocation hearing need not be as rigid or as formal as a crim-
inal trial either with respect to notice or specification of charges.”
United States v. Evers, 534 F.2d 1186, 1188 (5th Cir. 1976).
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10 Opinion of the Court 21-10316
Dennis argues that the district court “surprised” her by
“finding evidence that she had committed misdemeanor obstruc-
tion and revoking her probation on that basis.” Dennis maintains
that this finding deprived her of notice and “an opportunity to con-
test” the finding in violation of the Due Process Clause and Federal
Rule of Criminal Procedure 32.1. She argues that the petition ade-
quately notified her only of the allegations that she had committed
“felony obstruction, simple battery, and theft.” And she asserts that
the petition failed to give her “adequate notice of the elements of ”
misdemeanor obstruction.
We disagree. As the government argues, “Dennis had notice
of the state obstruction statute at issue, and in being warned that
she was charged with committing the felony-level offense, she re-
ceived adequate notice to defend against the misdemeanor-level of-
fense.” Dennis received all the notice she was due.
Two principles lead us to that conclusion. First, as we have
explained, the processes and rights to which one is entitled in rev-
ocation proceedings are less rigid and plentiful than the processes
and rights to which one is entitled in criminal prosecutions. See
Morrissey, 408 U.S. at 480, 489; Gagnon, 411 U.S. at 782; Evers, 534
F.2d at 1188. Second, even the process due to defendants in crimi-
nal prosecutions does not require the specific identification of lesser
included offenses in charging instruments if the greater offense is
adequately identified and explained. See Nave v. Helms, 845 F.2d
963, 964 (11th Cir. 1988) (“Regardless of the charge of a criminal
indictment, the defendant is generally subject to conviction under
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21-10316 Opinion of the Court 11
that charge or any lesser included offense.”); see also FED. R. CRIM.
P. 31(c) (providing that “[a] defendant may be found guilty of . . .
an offense necessarily included in the offense charged”). It follows
from these two principles that requiring such notice in the context
of revocation proceedings would require more of the government
than in criminal prosecutions, which is inconsistent with our obli-
gation to “avoid[] the imposition of rigid requirements that would
threaten the informal nature of probation revocation proceedings.”
Black, 471 U.S. at 611.
“The Due Process Clause of the Fifth Amendment . . . in-
cluded the right generally to enjoy those privileges long recognized
at common law.” Ingraham v. Wright, 430 U.S. 651, 672–73 (1977)
(internal quotation marks omitted); see also 3 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 1783, at 661 (Bos., Hilliard, Gray, & Co. 1833) (explaining that
“this clause in effect affirms the right of trial according to the pro-
cess and proceedings of the common law”). Because “[t]he lan-
guage of the Constitution . . . could not be understood without ref-
erence to the common law,” “it must be interpreted in the light of
the common law.” See United States v. Wong Kim Ark, 169 U.S.
649, 654 (1898). So, when addressing the scope of “due process of
law,” U.S. CONST. amend. V, we “refer to traditional common-law
concepts,” “to what has always been the law of the land,” Ingra-
ham, 430 U.S. at 659–60 (alteration adopted) (internal quotation
marks omitted), and “to the decisions in England and in the several
states of the Union, whose laws have the same source,” United
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12 Opinion of the Court 21-10316
States v. Sanges, 144 U.S. 310, 311–12 (1892); cf. Uzuegbunam v.
Preczewski, 141 S. Ct. 792, 797–99 (2021) (explaining that “[i]n de-
termining whether nominal damages can redress a past injury, [the
Court] look[s] to . . . cases at common law . . . both before and after
ratification of the Constitution”). And we have explained that “a
process of law must be taken to be due process of law, if it can show
the sanction of settled usage both in England and in this country.”
United States v. Approximately $299,873.70, 15 F.4th 1332, 1337
(11th Cir. 2021) (alterations adopted) (quoting Burnham v. Supe-
rior Ct. of Cal., 495 U.S. 604, 619 (1990) (plurality opinion)); see also
Ingraham, 430 U.S. at 679 (“[W]here the State has preserved what
has always been the law of the land, the case for [additional] admin-
istrative safeguards is significantly less compelling.”(citation and in-
ternal quotation marks omitted)).
It was well-settled at common law that a “jury was permit-
ted to find the defendant guilty of any lesser offense necessarily in-
cluded in the offense charged.” Beck v. Alabama, 447 U.S. 625, 633
(1980). In England, a prisoner indicted of burglary could be acquit-
ted of the burglary for a defect in the evidence of a “breaking and
entering” and convicted of stealing instead. See King v. Withal
(1774) 168 Eng. Rep. 146, 146 (rejecting the argument that the jury
could not convict a defendant merely of stealing because “there
was no separate and distinct count in the indictment . . . for stealing
in the dwelling-house” and holding “that the indictment contained
every charge that was necessary in an indictment . . . [for] stealing
in a dwelling-house”). Likewise, in an indictment charging that a
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21-10316 Opinion of the Court 13
defendant both authored and published a libel—the conjunction
being a “higher breach of the laws” than mere publication—it was
“enough to prove publication” alone for a conviction of that lesser
“breach of the laws.” See Rex v. Hunt (1811) 170 Eng. Rep. 1260,
1260 (“If an indictment charges that the defendant did and caused
to be done a particular act, it is enough to prove either.”). And a
defendant indicted of murder could be acquitted of the murder and
convicted of manslaughter. See 2 WILLIAM HAWKINS, A TREATISE
OF THE PLEAS OF THE CROWN ch. XLVII, § 4, at 619–20 (London, C.
Roworth, Bell Yard, Temple Bar 8th ed. 1824) (“[W]here the jury
find a man not guilty of an indictment . . . of murder, . . . they may,
according to the nature of the evidence, find him guilty of man-
slaughter.” (footnote omitted)); 2 MATTHEW HALE, THE HISTORY
OF THE PLEAS OF THE CROWN 302 (Phila., Robert H. Small 1st Am.
ed. 1847) (“So if a man be indicted of murder . . . the jury may find
him guilty of manslaughter.”). The distinction between greater and
lesser offenses “r[an] through the whole criminal law; and it [was]
invariably enough to prove so much of the indictment as [estab-
lished] that the defendant ha[d] committed a substantive crime
therein specified.” Hunt, 170 Eng. Rep. at 1260.
The doctrine of lesser included offenses obtained in Ameri-
can common law. See James A. Shellenberger & James A.
Strazzella, The Lesser Included Offense Doctrine and the Constitu-
tion: The Development of Due Process and Double Jeopardy Rem-
edies, 79 MARQ. L. REV. 1, 103 (1995) (explaining that there was “a
continuity of acceptance of the [lesser-included-offense] doctrine
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14 Opinion of the Court 21-10316
dating from before the adoption of . . . the original Fifth Amend-
ment Due Process Clause”). “It [was] a general rule at common
law, where the accusation in the indictment includes an offence of
inferiour degree, the jury may discharge the defendant of the
higher crime, and convict him of the less atrocious.” State v. Coy,
2 Aik. 181, 182 (Vt. 1827) (holding that a jury could lawfully acquit
a defendant of assault with intent to murder and convict him of
“common assault” instead) (internal quotation marks omitted); see
also Stewart v. State, 5 Ohio 241, 241 (1831) (“That a jury may find
a verdict of guilty for part, and acquit for the residue; that where
an accusation for a crime of a higher nature includes an offense of
a lower degree, the jury may acquit him for the graver offense, and
return him guilty of the least atrocious.”). “This rule originally de-
veloped as an aid to the prosecution in cases in which the proof
failed to establish some element of the crime charged.” Beck, 447
U.S. at 633. And in the United States, prosecutors could secure con-
victions for misdemeanor offenses that were necessarily included
in charged felony offenses. E.g., Hunter v. Commonwealth, 79 Pa.
503, 505 (1875); Coy, 2 Aik. at 183; Stewart, 5 Ohio at 241 (“[T]here
is no foundation in this country for the distinction . . . between fel-
onies and misdemeanors; for here, an indictment for the higher of-
fense rather adds to than subtracts from his privileges.”); Shellen-
berger & Strazzella, supra, at 107.
In the United States, notice of the greater offense has long
sufficed for notice of any lesser included offense. “It is an ancient
doctrine of both the common law and of our Constitution that a
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21-10316 Opinion of the Court 15
defendant cannot be held to answer a charge not contained in the
indictment brought against him.” Schmuck v. United States, 489
U.S. 705, 717 (1989). That doctrine “is based at least in part on the
right of the defendant to notice of the charge brought against him.”
Id. at 718. But what is critical for notice in the context of criminal
prosecutions is that all the elements of the offense of which the de-
fendant was convicted were in the indictment; “this right to notice
would be placed in jeopardy” if prosecutors were “able to request
an instruction on an offense whose elements were not charged in
the indictment.” Id. There is no notice violation “in those cases
where the indictment contains the elements of both offenses” be-
cause it “thereby gives notice to the defendant that he may be con-
victed on either charge.” Id. And contemporary practice reflects the
longstanding tradition of convicting defendants of lesser included
offenses not expressly charged. 3 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 515 (4th ed. 2021) (“In apply-
ing the [Schmuck] elements test, if the court concludes that one
offense is a lesser-included offense of the other, then the defendant
may be convicted of the lesser-included offense without it being
charged.”); FED. R. CRIM. P. 31(c) (“A defendant may be found
guilty of . . . an offense necessarily included in the offense
charged.”).
In the light of the long and unbroken history of allowing
convictions on lesser included offenses not expressly charged, we
conclude that a district court may find that a defendant committed
a lesser included offense of a greater offense that was expressly
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16 Opinion of the Court 21-10316
mentioned in the petition for revocation. The only question re-
maining is whether misdemeanor obstruction—the offense the dis-
trict court found that Dennis had committed—is a lesser included
offense of felony obstruction—the offense identified in the revoca-
tion petition. We conclude that it is.
Under Georgia law, a defendant is guilty of misdemeanor
obstruction if he “[1] knowingly and willfully [2] obstruct[ed] . . .
[3] any law enforcement officer . . . in the lawful discharge of his or
her official duties.” GA. CODE. ANN. § 16-10-24(a). By contrast, a de-
fendant is guilty of felony obstruction if he “[1] knowingly and will-
fully . . . [2] obstruct[ed] . . . [3] any law enforcement officer . . . in
the lawful discharge of his or her official duties [4] by offering or
doing violence to the person of such officer or legally authorized
person.” Id. § 16-10-24(b). Because “it is impossible to commit” fel-
ony obstruction “without also committing” misdemeanor obstruc-
tion, see 3 WRIGHT ET AL., supra, § 515, “misdemeanor obstruction
clearly is a lesser included offense of felony obstruction,” Watson
v. State, 763 S.E.2d 122, 125 (Ga. Ct. App. 2014). And Dennis does
not contest that conclusion.
It follows that the revocation petition provided “written no-
tice of the claimed violation[] of” Dennis’s probation. See Gagnon,
411 U.S. at 786 (internal quotation marks omitted). The petition
alleged that Dennis violated the mandatory condition that she not
commit another state crime because she had committed “Willful
Obstruction of Law Enforcement by Threats or Violence.” That
allegation refers expressly to “willful obstruction of law
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21-10316 Opinion of the Court 17
enforcement,” which is misdemeanor obstruction. See Shellen-
berger & Strazzella, supra, at 101 (explaining that the doctrine of
lesser included offenses “is shown most clearly when the indict-
ment actually referred to the lesser in describing the greater (e.g.,
assault with intent to murder or kill or ravish refer[s] to assault)”).
In that event, “both the greater and the lesser are stated in the
charge and either or both can be found by the [factfinder].” Id. The
petition further alleged that Dennis had “refused to cooperate and
would not follow any of the officer’s instructions,” which were the
facts on which the district court based its finding that Dennis had
committed misdemeanor obstruction. Because misdemeanor ob-
struction is a lesser included offense of felony obstruction, Watson,
763 S.E.2d at 125, the inclusion of felony obstruction in the petition
“thereby g[ave] notice to the defendant that [s]he may be [found
guilty] on either charge,” see Schmuck, 489 U.S. at 718.
IV. CONCLUSION
We AFFIRM Dennis’s sentence of supervised release.