United States v. Lisa Destefano , 178 F. App'x 613 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4152
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Lisa Marie Destefano, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: April 18, 2006
Filed: May 3, 2006
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Before LOKEN, Chief Judge, LAY and BYE, Circuit Judges.
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PER CURIAM.
I. BACKGROUND
In 2002, Lisa Marie Destefano pled guilty to bank fraud and was sentenced to
five years of probation. On September 15, 2005, Destefano’s probation officer filed
the first of two violation reports, alleging she violated a general condition of her
probation1 when she helped pass two forged checks and attempted to pass a third for
$4,500 each on August 16, 2005. The checks were passed at three branches of Arvest
1
One general condition of Destefano’s probation requires that she “not commit
another federal, state, or local crime.”
Bank in Lowell, Arkansas; Bentonville, Arkansas; and Anderson, Missouri.2 The
report also stated that Destefano had violated certain other conditions of her probation,
such as leaving the district without permission, using illegal drugs, and associating
with a felon.
On October 28, 2005, Destefano’s probation officer filed a supplemental
violation report, alleging further violations of the general conditions of her probation.
The report detailed the results of a search of Destefano’s residence, where officers
seized several items associated with fraudulent conduct. Specifically, officers
recovered, among other things, approximately $6,500 in cash, approximately fifty
blank identification cards, the driver’s license of Brooke A. Smith, and the social
security card of Kayla Denise Tarwater. The report also alleged that Destefano
intentionally set fire to her van in an attempt to fraudulently collect insurance monies.
A probation violation hearing was held on November 10, 2005. At the hearing,
Destefano admitted leaving the district without permission, using illegal drugs, and
associating with a felon. However, she contested the remaining offenses alleged in
the two violation reports. After hearing testimony, the district court concluded that
Destefano had: (1) engaged in a scheme to defraud individuals of money in August
2005; (2) possessed proceeds of illegal activity in her home; (3) possessed equipment
for the purpose of committing a future fraud or frauds; (4) possessed the identification
of others without their consent; and (5) engaged in a scheme to defraud her insurance
company. The district court3 then revoked Destefano’s probation and re-sentenced her
2
The probation officer’s report notes that Destefano and another individual,
David Reynolds, fled before obtaining any monies during the attempted fraud in
Anderson, Missouri.
3
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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to a thirty-six month term of imprisonment followed by a three-year term of
supervised release.
Destefano now appeals the district court’s order, alleging it abused its discretion
and violated her due process rights by revoking her probation.
II. DISCUSSION
Destefano first argues that her procedural due process rights were violated when
the district court revoked her probation. However, Destefano did not raise this
objection during the preliminary hearing, and we therefore review this claim for plain
error. United States v. Morris, 18 F.3d 562, 566 (8th Cir. 1994); see also Fed. R.
Crim. P. 52(b).
We note that Destefano has failed to specify the precise nature of her procedural
due process grievance and only vaguely alludes to it by quoting language from our
decision in United States v. Sutton, 607 F.2d 220, 221-22 (8th Cir. 1979).4 In the
relevant portion of Sutton, we held that due process requires that a probationer who
is in custody for an alleged probation violation be afforded a prompt “preliminary
hearing to determine whether probable cause exists to believe that a probation
violation has occurred.” Id. at 222 (citing Gagnon v. Scarpelli, 411 U.S. 778, 781-82
(1973)); see also Fed. R. Crim. P. 32.1(b)(1)(A).
Destefano was arrested on September 19, 2005. Two days later, she was
brought before a magistrate judge who conducted a preliminary hearing to determine
probable cause. To the extent Destefano now argues her due process rights were
4
Destefano’s procedural due process claim borders dangerously on a violation
of Fed. R. App. P. 28(a)(9)(A). We will nevertheless construe her argument to reflect
the portions of Sutton cited in her brief. See Sutton, 607 F.2d at 221-22.
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violated because she was not afforded a prompt preliminary hearing, this claim is
without merit.
Destefano next argues the district court erred when it revoked her probation.
We review this claim for an abuse of discretion. United States v. Shangreaux, 897
F.2d 939, 941 (8th Cir. 1990). “Revocation of probation requires only enough
evidence, within a sound judicial discretion, to satisfy the district judge that the
conduct of the probationer has not met the conditions of probation.” United States v.
Leigh, 276 F.3d 1011, 1012 (8th Cir. 2002) (internal citations and quotations omitted).
To warrant revocation, the violation of probation must be substantial. Id. Revocation
is not appropriate where the violation, or accumulation of violations, are merely
technical in nature. Id.
The record is replete with evidence documenting Destefano’s substantive
probation violations. First, there is substantial record evidence linking Destefano to
the three frauds committed on August 16, 2005. Second, the record supports the
conclusion that Destefano submitted a fraudulent insurance claim. Finally, evidence
recovered by law enforcement during a search of Destefano’s home supports the
district court’s finding that she possessed proceeds of illegal activity, possessed
equipment for the purpose of committing a future fraud, and possessed the
identification documents of others without their consent. Therefore, the district court
did not abuse its discretion when it revoked Destefano’s probation.
III. CONCLUSION
For the aforementioned reasons, we affirm the district court’s order.
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