United States v. Puzzanghera ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5722
PAUL PUZZANGHERA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5724
PAUL PUZZANGHERA,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-94-326, CR-94-515)
Argued: May 10, 1996
Decided: September 27, 1996
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jim Odell Stuckey, II, NELSON, MULLINS, RILEY &
SCARBOROUGH, Columbia, South Carolina, for Appellant. Mary
Gordon Baker, Assistant United States Attorney, Charleston, South
Carolina, for Appellee. ON BRIEF: James Y. Becker, NELSON,
MULLINS, RILEY & SCARBOROUGH, Columbia, South Carolina,
for Appellant. Margaret B. Seymour, United States Attorney, Charles-
ton, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The defendant appeals from a revocation of parole and supervised
release. We affirm.
On November 22, 1988, in the Central District of Utah, the defen-
dant was sentenced for committing bank fraud, to serve five years of
probation. On November 15, 1990, in the District of Massachusetts,
the defendant was sentenced for escape, to serve 42 months in prison
followed by three years of supervised release.
On September 10, 1993, the defendant was released from FCI
Jesup and was placed on supervision in South Carolina. Since that
time, the defendant has been on both supervised release and proba-
tion. In March, 1994, the defendant absconded from supervision and
could not be located. On April 8, 1994, jurisdiction over the defen-
dant's probation case was transferred from Utah to the District of
South Carolina, and a probation violation warrant was issued. On
April 18, 1994, jurisdiction over the defendant's supervised release
case was transferred from Massachusetts to the District of South Car-
olina.
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On June 21, 1994, the defendant was arrested in Calgary, Canada
for offenses committed in Canada, theft and fraud. On August 15,
1994, Canadian Immigration Officials released the defendant to the
U. S. Marshal's Service in Salt Lake City, Utah. On August 16, 1994,
the defendant made an initial appearance in Salt Lake City before a
United States Magistrate Judge. The defendant was found to be a risk
of flight and was ordered detained pending probation revocation pro-
ceedings.
On August 24, 1994, the defendant made an initial appearance in
the District of South Carolina before a United States Magistrate
Judge, and an attorney with the Federal Public Defender's office was
appointed as his counsel. The defendant subsequently was housed at
the Charleston County jail.
Whether the defendant was dissatisfied with his appointed attorney,
the record does not show, but in all events, he decided to represent
himself. On November 21, 1994, the magistrate judge relieved his
first appointed attorney and agreed to appoint another in his stead. On
November 28, 1994, the magistrate judge appointed his present attor-
ney.
The attorney requested a hearing, which was scheduled for Decem-
ber 9, 1994 but was continued at the instance of the probation office.
Following that continuance, the judge to whom the case was assigned
had seven weeks of court, and on March 2, 1995 the case was set for
hearing on March 29, 1995, at which time it was heard.
The defendant admits the various charges of probation and super-
vised release violation.
The first indication of any dissatisfaction with the proceedings on
the part of the defendant was on December 14, 1994, when he filed
his motion to dismiss for violation of due process, which we consider
also to be a motion to dismiss under F.R.Cr.P. 32.1, which provides
that a probation violation hearing shall be held"within a reasonable
time in the district of jurisdiction." F.R.Cr.P. 32.1(a)(2).
On appeal, the defendant maintains his hearing was not held within
a reasonable time. Certainly until December 9, 1994, there was no
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significant delay at all. The defendant had convictions in the district
courts both in Utah and Massachusetts and had absconded to Canada
where he committed other crimes and was apprehended by the Cana-
dian authorities. There has been no indication of any undue adminis-
trative delay in getting the defendant back into the United States and
in transferring him and his case to the district of South Carolina. To
the same effect, an attorney was appointed for him, apparently which
he did not want for one reason or another, and he acted as his own
attorney for several weeks in the fall of 1994, until his present attor-
ney was appointed. The present attorney timely asked for a hearing,
which was set and then continued at the instance of the probation
office. The record shows no objection to the continuance, and the
motion to dismiss the case, filed December 14, 1994 was on account
of claimed delay prior to that date. In our opinion, there was hardly
any delay at all, much less any unreasonable delay prior to December
14, 1994, so there has been no violation of F.R.Cr.P. 32.1. There hav-
ing been no violation of the Rules of Criminal Procedure, certainly
there has been no violation of due process.
The defendant claims that a witness he had intended to call, a cer-
tain Mr. Rosenthal, would testify that he would have given the defen-
dant employment if the probation officer had not told Mr. Rosenthal
what the defendant had been convicted of and had been charged with.
The government stipulated that is what Rosenthal would have testi-
fied to had he lived, and so there was no prejudice accruing on
account of Rosenthal's death. In all events, we do not believe the pro-
bation officer was under any obligation to withhold from a prospec-
tive employer the nature of the defendant's convictions and
defalcations.
With respect to the claim that the delay between December 9, 1994
and March 29, 1995 was unreasonable, we think that is also without
merit. About 16 weeks was the total time between December 9, 1994
and March 29, 1995, during which time the district judge had been
occupied in trials for seven weeks. We do not think that nine weeks'
delay, even if it is all counted, is unreasonable, and it follows that it
is not a violation of due process.
The defendant also claims that his attorney in the Massachusetts
conviction, a federal public defender, had had his license to practice
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law suspended and he was ineffective on that account. He seeks to
attack his Massachusetts conviction in this case on account of ineffec-
tive counsel. We have decided, however, in Bloodgood v. Garrahty,
783 F.2d 470, 473-74 (4th Cir. 1986) that a parole board should not
consider the validity of underlying convictions in granting parole and
custody status, and we think that rule should apply here. The reason-
ing in the case of United States v. Francischine , 512 F.2d 827 (5th
Cir.) cert. denied 423 U.S. 931 (1975), upon which we relied in
Bloodgood, is not distinguishable from the case at hand.
The judgment of the district court is accordingly
AFFIRMED.
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