United States v. Jeremiah ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10397
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00093-HG
ARTHUR JEREMIAH,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted
April 18, 2007—San Francisco, California
Filed May 24, 2007
Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
6195
UNITED STATES v. JEREMIAH 6197
COUNSEL
Richard S. Kawana of Honolulu, Hawaii, for defendant-
appellant Arthur Jeremiah.
Edward H. Kubo, Jr, United States Attorney, District of
Hawaii; Lawrence L. Tong, Assistant United States Attorney,
6198 UNITED STATES v. JEREMIAH
Honolulu, Hawaii, for plaintiff-appellee United States of
America.
OPINION
CALLAHAN, Circuit Judge:
The district court revoked Arthur Jeremiah’s supervised
release after he failed to make restitution payments required
as a condition of supervised release for a 2003 bank fraud
conviction. The district court sentenced Jeremiah to three
months’ imprisonment and additional time on a new period of
supervised release. On appeal, Jeremiah argues that the dis-
trict court lacked jurisdiction to revoke supervised release
because he was arrested without a valid warrant, that he was
denied a preliminary hearing in violation of Criminal Rule
32.1, that there was insufficient evidence to support revoca-
tion of supervised release, and that some of the conditions of
supervised release were improper. We have jurisdiction under
28 U.S.C. §§ 1291, 1294 and 18 U.S.C. § 3742. We affirm the
district court in all respects.
BACKGROUND
In 2003, Jeremiah was convicted of bank fraud and use of
a counterfeit device. He provided false information to the
Bank of Hawaii and induced the bank to provide him with a
credit card vendor machine, which he used to submit numer-
ous unauthorized credit card transactions. He was sentenced
to twenty-five months of incarceration, five years of super-
vised release and required to pay restitution of $64,000.
In the summer of 2005, Jeremiah was released from prison
and began making restitution payments. He soon failed to
make payments, although for a number of months he made at
least partial payments of the amounts due.
UNITED STATES v. JEREMIAH 6199
Jeremiah’s probation officer requested that the court issue
a “no bail warrant” for Jeremiah’s arrest. The request was
sworn and a statement of facts explaining Jeremiah’s conduct
was attached to the request. Jeremiah was arrested by a dep-
uty marshal.
The district court conducted a hearing and determined that
Jeremiah had violated supervised release. He was imprisoned
for three months, and sentenced to fifty-seven months of
supervised release. He also received new conditions of super-
vised release. These conditions include submitting to drug
tests up to eight times per month, not incurring credit charges
without approval, claiming no more than one exemption on
his W-4 forms, and timely filing tax returns.
DISCUSSION
On appeal, Jeremiah raises five issues: (1) the district court
lacked jurisdiction over him; (2) the district court erred in not
affording him a probable cause hearing; (3) the evidence was
insufficient to conclude that he had wilfully violated condi-
tions of release; (4) some of the conditions of supervised
release were improper; and (5) cumulative error entitles him
to a reversal.
A.
[1] Jeremiah argues that the warrant for his arrest was
invalid because it was not based on sworn facts and therefore
the district court lacked jurisdiction to revoke his supervised
release. Jurisdictional questions are reviewed de novo. United
States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir. 2004).
In Vargas-Amaya we held “that the district court lacked juris-
diction to consider the alleged violations of supervised release
because the warrant issued during the term of Vargas’ super-
vised release was not based on facts supported by oath or
affirmation, as required by the Fourth Amendment.” Id. at
902.
6200 UNITED STATES v. JEREMIAH
[2] In the petition for the no bail warrant to arrest Jeremiah,
the probation officer laid out the basic allegations against Jer-
emiah and declared “under penalty of perjury that the forego-
ing is true and correct.” A statement of facts then followed.
We need not decide whether the oath covered the statement
of facts because even if the arrest warrant was invalid “illegal
arrest or detention does not void a subsequent conviction.”
Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Vargas-Amaya
established a narrow exception to this general rule for a defen-
dant whose term of supervised release has expired. When a
term of supervision has expired, jurisdiction is based on 18
U.S.C. § 3583(i) which requires a valid warrant as a condition
of jurisdiction. Because Jeremiah was arrested during his
period of supervision the exception created by 18 U.S.C.
§ 3583(i), as interpreted by Vargas-Amaya, is not applicable.
B.
Jeremiah next argues that he should have been afforded a
preliminary hearing before a magistrate judge pursuant to
Criminal Rule 32.1 which requires that “a magistrate judge
must promptly conduct a hearing to determine whether there
is probable cause to believe that a violation occurred.” FED. R.
CRIM. P. 32.1(b)(1)(A). The Supreme Court has explained that
“a parolee is entitled to two hearings, one a preliminary hear-
ing at the time of his arrest and detention to determine
whether there is probable cause to believe that he has commit-
ted a violation of his parole, and the other a somewhat more
comprehensive hearing prior to the making of the final revo-
cation decision.” Gagnon v. Scarpelli, 411 U.S. 778, 781-82
(1973).
Jeremiah has waived this issue by failing to raise it in the
district court. Federal Rule of Criminal Procedure
32.1(b)(1)(A) states that “[t]he person may waive the hear-
ing.” By not raising his demand for a preliminary hearing
when initially brought before the district judge, when any
error could have been corrected, Jeremiah waived his right to
UNITED STATES v. JEREMIAH 6201
a preliminary hearing. See United States v. Pardue, 363 F.3d
695, 698 (8th Cir. 2004) (“Pardue appeared with counsel
before the district court or the magistrate judge three separate
times, and Pardue never requested a Rule 32.1 hearing during
any of these appearances. Accordingly, Pardue also waived
his rights to a Rule 32.1 hearing.”).
C.
Jeremiah next contends that there was insufficient evidence
to support revocation of supervised release. Jeremiah does not
deny that he missed making at least some full restitution pay-
ments, but he contends that these violations were not “wilful”
and the district court lacked evidence that the violations were
wilful.
[3] Ordinarily “[t]here is sufficient evidence to support a
conviction if, viewing the evidence in the light most favorable
to the government, any rational trier of fact could have found
the essential elements” of a violation. United States v. Weber,
320 F.3d 1047, 1050 (9th Cir. 2003). Moreover, “for purposes
of a supervised release revocation hearing, the district court
need only conclude that a preponderance of the evidence sup-
ports” revocation. United States v. Lomayaoma, 86 F.3d 142,
147 (9th Cir. 1996). In this case a finding of wilfulness was
supported by Jeremiah’s repeated failure to make restitution
payments on time. Although the evidence might have been
open to other interpretations, a trier of fact could reasonably
conclude that the failure was wilful, so there was no error.
D.
Jeremiah next challenges a number of special conditions of
supervised release as arbitrary and unduly restrictive of his
liberty. He specifically challenges the conditions requiring
that he: (1) maintain a single bank account; (2) truthfully and
timely file and pay taxes during the period of supervision; (3)
claim no more than one allowance on his W-4s; (4) incur no
6202 UNITED STATES v. JEREMIAH
credit charges without prior approval of the probation officer;
and (5) submit to up to eight drug tests per month.
We review conditions of supervised release for abuse of
discretion. United States v. Weber, 451 F.3d 552, 557 (9th
Cir. 2006). At sentencing “the government bears the burden
of showing that a discretionary condition of supervised
release is appropriate in a given case,” United States v. Sales,
476 F.3d 732, 735 (9th Cir. 2007), but on appeal “[t]he bur-
den of affirmatively showing error rests on the appellant.” 36
C.J.S. Federal Courts § 603 (2007). Furthermore, because
Jeremiah did not object to any of the conditions at sentencing,
our review of the conditions is limited to plain error. Sales,
476 F.3d at 735.
[4] Conditions of supervised release must satisfy the
requirements of 18 U.S.C. § 3583(d).1 Jeremiah challenges his
conditions based on § 3583(d)(2) which requires that a pro-
posed condition “must involve no greater deprivation of lib-
erty than is reasonably necessary for the purposes of
supervised release — that is, to achieve deterrence, public
protection, or offender rehabilitation.” Sales, 476 F.3d at 735
(citing United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.
2003)) (internal quotation marks omitted).
[5] Jeremiah’s violation of supervised release involved fail-
ure to make restitution payments. Allowing the probation offi-
cer to monitor Jeremiah’s finances is important to ensure that
1
18 U.S.C. § 3583(d) permits the district court to order discretionary
conditions of supervised release if the condition:
(1) is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a) . . . .
UNITED STATES v. JEREMIAH 6203
he makes proper payments. Accordingly, restrictions on bank
accounts and incurring credit charges, as well as ensuring that
he paid taxes, are reasonably related to supervising his ability
to make restitution payments. It was not an abuse of discre-
tion for the district court to impose these conditions. This con-
clusion is also supported by Jeremiah’s failure to explain how
these conditions are more than a de minimus deprivation of
his liberty.
[6] We scrutinize more closely the condition that Jeremiah
submit to as many as eight drug tests per month because test-
ing for drugs implicates Fourth Amendment rights.2 “[W]hen
fundamental rights are curbed it must be done sensitively and
with a keen appreciation that the infringement must serve the
broad purposes of the Probation Act.” United States v.
Consuelo-Gonzalez, 521 F.2d 259, 264-65 (9th Cir. 1975).
The district court is required by statute to order that a per-
son “submit to a drug test within 15 days of release on super-
vised release and at least 2 periodic drug tests thereafter (as
determined by the court),” unless the court finds that testing
is unnecessary for a particular defendant. 18 U.S.C.
§ 3583(d). In United States v. Stephens, 424 F.3d 876, 880-81
(9th Cir. 2005), we held that because the statute declares that
the number of tests shall be “determined by the court” it is a
decision for the court, rather than the probation officer, to
decide how many times a defendant may be tested for drugs.
We further explained that the court must set the maximum
number of tests to which a releasee may be subjected. Id. at
883. Here, the district court, in compliance with Stephens, did
determine the maximum number of tests.
2
The Supreme Court has repeatedly held that mandatory drug testing
“constitutes a ‘search’ subject to the demands of the Fourth Amendment.”
Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Special
needs, such as supervised release, justify drug testing but such searches
must be reasonable under the circumstances. See Samson v. California,
126 S. Ct. 2193, 2197 (2006).
6204 UNITED STATES v. JEREMIAH
[7] On appeal, Jeremiah bears the burden of showing that
the testing level set by the district court involves a greater
deprivation of liberty than is reasonably required to achieve
deterrence, public protection and offender rehabilitation.
Although there is no evidence of drug use by Jeremiah, he has
not established that the drug testing requirement is a signifi-
cant deprivation of his liberty. For example, at oral argument
for the first time Jeremiah noted that if he were required to
pay for the testing it would be a significant expense. Yet there
is nothing in the record suggesting that Jeremiah has been, or
will be, required to pay for such tests. Jeremiah, having failed
to object in the district court to the level of drug testing set by
the court, has not met the burden on appeal of showing that
the condition was an abuse of discretion.3
E.
[8] Finally, because we hold that there was no error com-
mitted by the district court, Jeremiah’s theory of cumulative
error necessarily fails.
CONCLUSION
For the above reasons, the judgment of the district court is
AFFIRMED.
3
Assuming, without concluding, that it was error to order up to eight
drug tests per month, this would not rise to the level of plain error. Plain
error is (1) error, (2) that is plain, (3) that affects substantial rights, and
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.
2005). Even if one could conclude that eight tests per month is excessive,
this would not seriously affect the fairness, integrity, or public reputation
of judicial proceedings.