United States v. Standefer ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50043
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY LEON STANDEFER
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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January 15, 1996
Before WISDOM, GARWOOD and JONES, Circuit Judges.*
GARWOOD, Circuit Judge:
Appellant-defendant Danny Leon Standefer (Standefer) appeals
the revocation of his supervised release. Because we find that the
evidence was insufficient to support revocation, we reverse.
Facts and Proceedings Below
On July 14, 1989, Standefer pleaded guilty to drug and firearm
charges before the United States District Court for the Western
District of Texas pursuant to a plea agreement and was sentenced to
serve two concurrent twenty-one month sentences, three years of
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
supervised release and fines totaling $7,100. Following his
release in June 1990, after completing service of the confinement
portion of his sentence, Standefer began serving his supervised
release in the Eastern District of Oklahoma.
On January 21, 1992, a Petition on Probation and Supervised
Release was filed in the district court by probation officer Jack
R. Skaggs (Skaggs) requesting that a warrant be issued for
Standefer’s arrest for violating the conditions of his supervised
release.1 The filing of the petition caused the district court to
order that a warrant be issued for Standefer’s arrest. Standefer
was arrested by the United States Marshal’s Service in Vanderwagen,
New Mexico on May 3, 1994. In November 1994, Standefer pleaded
guilty to one count of controlled substance manufacture in
violation of 21 U.S.C. § 846 before the United States District
Court for the Western District of Oklahoma. Meanwhile, the United
States District Court for the Western District of Texas set a
revocation hearing for January 4, 1995.
1
The petition alleged the following violations:
“The defendant has been charged in Case No.
CRF91-156, District Court for Pushmataha
County, Oklahoma, with (1) Trafficking
Drugs/Amphetamine; (2) Tax Stamp Violation
(Amphetamine); and, (3) Eluding Police
Officer; said offenses having occurred on or
about 11-29-91. A warrant has been issued for
his arrest in that case. The defendant has
not reported to his probation officer, Jack
Skaggs, for the month of December, 1991, and
his present whereabouts are unknown.”
2
At the revocation hearing, the government read the charges
alleged in the petition to which Standefer pleaded “not true.” The
government’s sole witness was Ken Beene (Beene), a supervisor in
the federal probation office in Austin, Texas. Beene testified
that while he had not dealt personally with Standefer, he had been
informed of the charges contained in the petition by Skaggs, and
had subsequently been informed of Standefer’s conviction in the
Western District of Oklahoma by probation officer Marcie Gray
(Gray). The government introduced a copy of the judgment obtained
in the Western District of Oklahoma, and Beene testified that he
believed that the offense contained in the judgment was based upon
the same conduct as the offenses alleged in the revocation
petition. Beene expressed the same belief on cross-examination
even when Standefer’s counsel noted that the conduct described in
the revocation petition was alleged to have occurred on or about
November 29, 1991 while the conduct which formed the basis of the
federal conviction in Oklahoma was alleged to have concluded
November 29, 1994.2
At the close of the government’s case-in-chief, Standefer’s
attorney requested a brief recess in order to obtain a copy of the
superseding information on which the judgment in the Western
District of Oklahoma rested in order to demonstrate that the
underlying conduct was distinct from that alleged in the revocation
2
Although the judgment reflected that the offense charged had
concluded on November 29, 1994, the superseding information
introduced in evidence by the defense alleges that the underlying
conduct occurred “on or about November 29, 1993.”
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petition. Following the recess, the government conceded that this
was in fact the case. At that time, the government moved “to
orally amend and use the information before the court now as the
basis for revocation.” The district court granted the government’s
motion over the objections of Standefer’s counsel.3 Relying on
Standefer’s conviction in the Western District of Oklahoma and his
“fugitive status,” the district court ordered the revocation of
Standefer’s supervised release.4
3
The defense urged that the petition be dismissed, objecting on
the grounds that the government could not amend the petition after
the supervised release term had expired. The government suggested
that the running of the supervised release period should be tolled
for the period that Standefer was a fugitive, and introduced a copy
of the Marshal’s Report of Standefer’s arrest as evidence that
Standefer had been a fugitive from the time that the district court
issued the arrest warrant until his arrest on May 3, 1994. Defense
counsel also objected on the grounds that written notice of the
alleged violation was required under Fed. R. Crim. P. 32.1
(a)(2)(A) and in order to comport with due process. Standefer’s
counsel further argued that the only evidence presented in support
of revocation had been hearsay which had been demonstrated to be
unreliable.
4
The district court stated its findings in support of revocation
as follows:
“The court, having reviewed the evidence in
this case, the court has reviewed the judgment
out of Oklahoma . . . Has reviewed that, and
based upon those considerations and
information brought to the attention [sic] at
this hearing this morning, it’s the judgment
of this court and the court finds that
pursuant to the Sentencing Reform Act of 1984,
the defendant, Danny Leon Standefer, is
ordered committed to the custody of the
Bureau of Prisons to serve a term of
imprisonment of eighteen months.
This sentence is ordered to run consecutive to
the sentence ordered in CR 94101-C, which
represented the violation behavior [the
4
Standefer now appeals the revocation of his supervised release
on the grounds that (1) the government failed to prove any of the
allegations contained in the original petition; and (2) the oral
amendment granted by the district court at the revocation hearing
deprived him of the notice to which he was entitled under Fed. R.
Crim. P. 32.1 (a)(1)(A) and by due process.
Discussion
We review the district court’s decision to revoke supervised
release for abuse of discretion. United States v. McCormick, 54
F.3d 214, 219 (5th Cir. 1995, cert. denied, 116 S. Ct. 264 (1995).
In a revocation proceeding, the government has the burden to
prove that the releasee committed the alleged violation of the
conditions of release by a preponderance of the evidence. 18
U.S.C. § 3583 (e)(3); United States v. Alaniz-Alaniz, 38 F.3d 788,
792 (5th Cir. 1994), cert. denied, 115 S. Ct. 1412 (1995). In
reviewing the sufficiency of the evidence, we “‘must view the
evidence and all reasonable inferences that may be drawn from the
evidence in a light most favorable to the government.’” Id.
(quoting United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th
Cir. 1986)). “The evidence is sufficient if a reasonable trier of
fact could reach the conclusion being challenged.” Id. (footnote
omitted).
Western District of Oklahoma case], or at
least the——part of the violation behavior. I
think the fugitive status is what the court is
basing its revocation upon.”
5
It is undisputed that the government failed to produce any
evidence of the criminal charges alleged in the revocation
petition. Nonetheless, the government contends that there is
sufficient evidence in the record to support revocation either on
the basis of Standefer’s fugitive status as alleged in the
petition, or on the basis of his guilty plea in the Western
District of Oklahoma pursuant to the oral amendment. We disagree.
A. Fugitive Status
The government asserts that the district court’s revocation of
Standefer’s supervised release based upon his fugitive status was
supported by the following: (1) the district court issued a warrant
in January 1992 in response to Skaggs’ allegations that Standefer
had failed to report for the month of December 1991 and his
whereabouts were unknown; and (2) this warrant remained unexecuted
until Standefer’s arrest in New Mexico in May 1994 as evidenced by
the Marshal’s Report entered in evidence by the government.
Therefore, the government contends that the district court could
reasonably infer that Standefer had been a fugitive from the date
that the warrant was issued until the date of his arrest in New
Mexico. The government concludes that these facts necessarily
establish that Standefer violated the conditions of his supervised
release that he not leave the judicial district without permission
(Condition Two), make a written report within the first five days
of each month (Condition Three), and notify the probation office
within seventy-two hours of changing his residence (Condition
Seven).
6
The district court possesses considerable latitude in the
types of evidence it may consider in a revocation hearing as
compared with a criminal prosecution. See Morrissey v. Brewer, 92
S. Ct. 2593, 2604 (1972) (parole revocation hearing “should be
flexible enough to consider evidence including letters, affidavits,
and other material that would not be admissible in an adversary
criminal trial”). However, the government failed to introduce
sufficient evidence of Standefer’s fugitive status even under this
relaxed standard of admissibility.
Neither the bare allegations contained in the petition nor the
warrant itself constitute evidence in any sense. Even assuming
that they could properly be considered, they were never offered in
evidence. Furthermore, despite the allegations in the petition
that Standefer’s “whereabouts [were] unknown,” we find no evidence
of this fact in the revocation hearing record.
The only piece of evidence introduced by the government in
this regard was a copy of the Marshal’s Report of Standefer’s
arrest in New Mexico in May 1994.5 This report alone establishes
no violation of the conditions of Standefer’s supervised release
because there is no evidence of when Standefer left the judicial
district to go to New Mexico. The report makes no reference to any
warrant (or to the revocation petition); nor does it otherwise give
any indication whatever of how long (prior to May 1994) Standefer
5
Although the government argued at the revocation hearing that
Beene’s testimony was evidence that Standefer had been a fugitive,
it concedes in its brief that Beene’s testimony provides no
evidence on this point.
7
had been a fugitive. It is entirely plausible that Standefer left
the judicial district after the expiration of the supervised
release period in June 1993. The fact that he pleaded guilty to
charges based upon conduct alleged to have occurred in Oklahoma in
November 1993 tends to support this conclusion. Nothing suggests
the contrary.
The dearth of evidence in the record on this point leads us to
reject the district court’s finding that Standefer’s supervised
release should be revoked based upon his fugitive status.
B. 1994 Conviction
The government contends that even if the evidence were
insufficient to support revocation of Standefer’s supervised
release on one of the bases alleged in the original petition,
Standefer’s guilty plea before the Western District of Oklahoma
constituted adequate grounds for the district court’s decision.
We reject this contention.
The oral amendment allowed by the district court so that the
guilty plea might be considered as a basis for revoking Standefer’s
supervised release fails to comport with the requirement of
“written notice of the alleged violation” mandated by Fed. R. Crim.
P. 32.1 (a)(1)(A). Indeed, it is questionable whether Standefer
was afforded any notice at all as the government did not specify
the basis of the oral amendment, but simply stated that it wished
to “use the information before the court now as a basis for
revocation.” The government suggests that allowing the oral
amendment was harmless error because: (1) Standefer knew that he
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pleaded guilty to the controlled substance manufacture charge; and
(2) his counsel raised the defense that the guilty plea fell
outside of the supervised release period at the revocation hearing.
The government’s first harmless error argument falls wide of
the mark because the issue is not whether Standefer knew that he
pleaded guilty to the controlled substance manufacture charge, but
rather whether he knew that that guilty plea or that offense was to
be the basis for revocation of his supervised release. Therefore,
even if we could excuse the lack of written notice, Standefer was
not afforded meaningful notice of any sort as to the violations
against which he was required to defend. Nor does the fact that
Standefer’s counsel was able to articulate some defense to the
amendment necessarily lead to the conclusion that the error was
harmless.
However, we need not rest our decision on this ground alone.
It is undisputed that the conduct for which Standefer pleaded
guilty in the Western District of Oklahoma occurred in November
1993 while his original supervised release term was to have ended
in June 1993. The government, relying on United States v. Crane,
979 F.2d 687, 691 (9th Cir. 1992), argues that the district court
could properly consider Standefer’s guilty plea in revoking his
supervised release because the running of the supervised release
period was tolled for the period that Standefer was a fugitive. We,
too, have previously recognized that the running of a probationary
term may be tolled by the flight of a probationer. See United
States v. Fisher, 895 F.2d 208, 212 (5th Cir. 1990), cert. denied,
9
110 S. Ct. 2192 (1990) (probationary term tolled for period during
which probationer not under supervision due to own misconduct).
Yet it necessarily follows from our conclusion that the government
failed to establish Standefer’s fugitive status for purposes of
revocation that the government cannot receive the benefit of this
rule. There is no evidence that Standefer became a fugitive before
July 1993. Therefore, the district court could not properly
consider Standefer’s guilty plea in revoking his supervised
release.
Because we find that the government failed to introduce
sufficient evidence of the alleged violations, we are forced to
conclude that the district court abused its discretion in revoking
Standefer’s supervised release.
The judgment of revocation is REVERSED.
10