United States v. Mary Schipke , 446 F. App'x 51 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10052
Plaintiff - Appellee, D.C. No. 4:04-cr-02195-JMR-BPV
v.
MEMORANDUM*
MARY ELIZABETH SCHIPKE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted July 14, 2011
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and LYNN, District Judge.**
Mary Schipke appeals the district court’s revocation of supervised release
and denial of a motion to modify conditions of release regarding DNA collection.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
Schipke’s claim under the Religious Freedom Restoration Act of 1993
(RFRA) to remove the condition of release requiring her to submit a DNA sample
is barred by collateral estoppel because it was previously decided by the United
States District Court for the Northern District of Texas. Schipke v. Chapman, 4:08-
cv-228-A, 2008 WL 2123749 (N.D. Tex. May 19, 2008) (unpublished decision).
The RFRA issue raised in the Texas district court is sufficiently similar to that
raised here, and was fully litigated and necessarily decided in the Texas case.
Contra United States v. Edwards, 595 F.3d 1004, 1012 (9th Cir. 2010).
Further, the magistrate judge in Tucson did not abuse his discretion in
allowing the probation officer in Dallas to testify by telephone to uncontested facts
in this supervised release proceeding. But even assuming error, it was harmless
because Schipke does not dispute the material portions of the officer’s testimony.
See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (“A due process
violation at a revocation proceeding is subject to harmless error analysis.” (internal
quotation marks omitted)).
Finally, the Petition to Revoke Supervised Release provided sufficient notice
of Schipke’s alleged violation of her conditions of release, such that her due
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process rights were not violated when the court took the action it took against her
on that Petition. Contra United States v. Havier, 155 F.3d 1090, 1094 (9th Cir.
1998).
AFFIRMED.
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