In Re: Morrissey v. ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

In Re: JOSEPH D. MORRISSEY,
 No. 00-4656
Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(MISC-97-16)
Submitted: December 8, 2000
Decided: December 22, 2000
Before WILLIAMS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert H. Smallenberg, James T. Maloney, Richmond, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, James B. Comey,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 IN RE: MORRISSEY
OPINION
PER CURIAM:
Joseph P. Morrissey appeals a district court order revoking proba-
tion and sentencing him to ninety days’ imprisonment. Morrissey
argues that he was denied due process because the district court did
not issue a written statement of its findings of fact forming the basis
for its order revoking probation. Morrissey further argues that the dis-
trict court’s factual findings are clearly erroneous. We affirm.
After a hearing during which several witnesses testified, the district
court made findings of fact from the bench and ordered Morrissey’s
probation revoked. Those findings of fact have been transcribed and
are in the record.
As a matter of due process, prior to revocation of probation, Mor-
rissey was entitled to: (1) written notice of the alleged violations of
probations; (2) disclosure of the evidence against him; (3) opportunity
to be heard in person and to present witnesses and documentary evi-
dence; (4) the right to confront witnesses; (5) a neutral and detached
hearing body; and (6) a written statement by the factfinder as to the
evidence relied upon and the reasons for revoking probation. Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973). "A transcribed oral finding can
serve as a ‘written statement’ for due process purposes when the tran-
script and record compiled before the trial judge enable the reviewing
court to determine the basis of the trial court’s decision." United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (concerning revo-
cation of supervised release); see also United States v. Barth, 899
F.2d 199, 201 (2d Cir. 1990) (same concerning revocation of proba-
tion). Accordingly, we find that because the district court’s factual
findings were transcribed there is no due process violation.
A district court’s factual findings are reviewed for clear error.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). The fact-
finder, in this instance the district court, "not the reviewing court,
weighs the credibility of the evidence and resolves any conflicts in the
evidence presented." United States v. Murphy, 35 F.3d 143, 148 (4th
Cir. 1994). We find that the district court’s factual findings are not
clearly erroneous.
IN RE: MORRISSEY 3
Accordingly, we affirm the order of the court. We dispense with
oral argument because the facts and legal conclusions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED