United States v. Dwaine Copeland

20 F.3d 412

UNITED STATES of America, Plaintiff-Appellee,
v.
Dwaine COPELAND, Defendant-Appellant.

No. 92-3240.

United States Court of Appeals,
Eleventh Circuit.

May 5, 1994.

Julie Thomas, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, for appellee.

Darlene Calzon Barror, Tampa, FL, for appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT and DUBINA, Circuit Judges, and ESCHBACH*, Senior Circuit Judge.

PER CURIAM:

1

Dwaine Copeland appeals from a judgment revoking his supervised release. He contends that the district court abused its discretion in concluding that he violated the conditions of his release and violated his due process rights in failing to make written findings of the evidence on which it relied. We affirm the district court.

I.

2

Appellant, convicted and sentenced for importing cocaine into the United States, completed his three year prison term and commenced three years of supervised release. One of the conditions of his supervised release was that he not purchase, possess, use, or distribute drugs. Appellant violated this condition through the sale of cocaine to an undercover police officer on two occasions.

3

After a contested hearing, the district court found that the government proved, based on a preponderance of the evidence, that appellant had violated the conditions of his supervised release. See 18 U.S.C. Sec. 3583(e)(3) (Supp. IV 1992) (preponderance of the evidence standard used in deciding if person violated conditions of release). The district court revoked his release and sentenced him to eighteen months imprisonment.

II.

4

We review the district court's conclusion that appellant violated the terms of his supervised release for abuse of discretion. United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992). Appellant contends that the evidence introduced at the hearing was insufficient for the district court to conclude that he had sold cocaine. As the result of stipulations of the parties, the only issue before the district court at the hearing was whether appellant was the person from whom the undercover officer purchased cocaine on two occasions. A police officer testified that he went to appellant's home twice, and each time appellant sold cocaine to him. Although the appellant provided contrary evidence, the district court credited the officer's testimony. The credibility of a witness is in the province of the factfinder and this court will not ordinarily review the factfinder's determination of credibility. United States v. Billue, 994 F.2d 1562, 1563 (11th Cir.1993). The district court did not abuse its discretion in concluding that the government proved that appellant violated the terms of his release.III.

5

Appellant contends that he was denied due process when the district court failed to make written findings expressing its reasons for concluding that appellant violated the conditions of his supervised release as required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Supreme Court has held that a defendant facing possible revocation of parole or probation, although not entitled to all of the procedural protections afforded a defendant in a criminal proceeding, is entitled to certain protections. Morrissey, 408 U.S. at 480-82, 92 S.Ct. at 2599-2601; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The same protections granted those facing revocation of parole are required for those facing the revocation of supervised release. See United States v. Copley, 978 F.2d 829, 831 (4th Cir.1992).

6

One of the protections prescribed by Morrissey is "a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." 408 U.S. at 489, 92 S.Ct. at 2604. In this case, the district court did not issue written findings of fact, but instead stated from the bench the evidence it relied upon and the reasons for its conclusion. Appellant contends that the district court's oral statements do not satisfy due process because they are not written. We join our sister circuits in concluding that oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon. See Copley, 978 F.2d at 831; United States v. Gilbert, 990 F.2d 916, 917-918 (6th Cir.1993); United States v. Yancey, 827 F.2d 83, 89 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 437 (1988); United States v. Barth, 899 F.2d 199, 201-202 (2d Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 953, 112 L.Ed.2d 1042 (1991); United States v. Barnhart, 980 F.2d 219, 223 n. 3 (3rd Cir.1992). No circuit has directly held otherwise.1 Although some courts have stated that United States v. Lacey, 648 F.2d 441, 445 (5th Cir.1981)2 holds that written statements are required, see Barth, 899 F.2d at 201; Morishita v. Morris, 702 F.2d 207, 209 (10th Cir.1983); United States v. Kindred, 918 F.2d 485, 488 (5th Cir.1990), that conclusion is based upon a misinterpretation of Lacey. In Lacey, we found that "general conclusory reasons by the district court for revoking probation do not meet this due process requirement that the revoking judge state the factual findings and the reasons relied upon for revocation." 648 F.2d at 445. We did not address the question of whether the district court's specific oral findings could satisfy Morrissey. In looking to the district court's statements from the bench to determine what evidence it had relied upon and its reasons for revoking probation, the Lacey court indicated that oral findings from the bench could satisfy due process. Had the Lacey court determined that due process required written findings, it need not have considered the content of the district court's oral statements from the bench. Our holding in Lacey was simply that due process requires a factfinder to explicitly state the reasons for its decision in revoking probation, and that the district court had not complied with this requirement.3 We find nothing in Lacey to suggest that our conclusions today are in error.

7

When a district court has stated in the record its reasons for revoking the defendant's supervised release, and those statements are recorded and can be transcribed, we see no reason to demand that the district court turn its oral findings into a written order. Such a requirement would be "unduly formalistic." Barth, 899 F.2d at 202. The Supreme Court has stated that the requirement of written findings "helps to insure accurate factfinding with respect to any alleged violation and provides an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence." Black v. Romano, 471 U.S. 606, 613-14, 105 S.Ct. 2254, 2259, 85 L.Ed.2d 636 (1985). Although written findings are preferable for the reasons the Supreme Court stated, when a district court's oral findings satisfy those requirements, and are preserved, we will not require that the court duplicate its findings on paper.

8

Appellant argues that the district court's findings lacked the specificity required by due process. In stating its oral findings, however, the district court set forth the specific witness testimony it relied upon in reaching its conclusions, its reasons for crediting that witness, and its justification for revoking appellant's supervised release. Further, in this very appeal, appellant challenged the evidence relied upon in the district court's findings and the reasons the district court gave for its conclusion that appellant violated the terms of his release. It can not be disputed that the district court's findings gave appellant an adequate basis on which to contest the court's conclusions and satisfied the appellant's right to due process. Accordingly, we affirm the district court.

9

AFFIRM.

*

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation

1

Our holding is consistent with that of United States v. Smith, 767 F.2d 521, 523-24 (8th Cir.1985). The Smith court concluded that in the case before it, absent explicit findings stating the basis for revocation, it could not adequately review the case and remanded it. Smith did not address the question of whether explicit oral findings could satisfy Morrissey, as no findings existed, oral or written, in that case. The Smith court rejected the Tenth Circuit's holding that "written findings are constitutionally required only if the transcript and record before the judge do not enable a reviewing court to determine the basis of the judge's decision to revoke probation." Morishita v. Morris, 702 F.2d 207, 210 (10th Cir.1983). We need not decide whether we agree with Morishita since no party in this case has argued that we should look beyond the specific findings of the district court

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit rendered prior to October 1, 1981. Lacey was decided on June 19, 1981, and therefore constitutes Eleventh Circuit precedent

3

The opinion of the court after remand confirms this interpretation of Lacey. The same panel stated that "we remanded these proceedings because we found the findings upon which the revocation was based were inadequate to review Lacey's contentions." United States v. Lacey, 661 F.2d 1021, 1021 (5th Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2036, 72 L.Ed.2d 484 (1982). In other words, the Lacey Court looked to the oral findings of the district court and found that those findings did not comport with due process