United States v. Brennan, III

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4730
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM A. BRENNAN, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:02-cr-00059-sgw)
Argued: May 16, 2008 Decided: July 22, 2008
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Terry L.
WOOTEN, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. C. Patrick Hogeboom, III, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON
BRIEF: John L. Brownlee, United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William A. Brennan, III, raises a number of challenges to the
district court’s order revoking his term of supervised release and
imposing a 24-month prison sentence under 18 U.S.C.A. § 3583(e)
(West 2000 & Supp. 2008). We affirm.
I.
On April 14, 2003, Brennan was sentenced to concurrent prison
terms of twenty months for conspiracy to defraud the United States
government, see 18 U.S.C.A. § 371 (West 2000), and interstate
transportation of stolen goods, see 18 U.S.C.A. § 2314 (West 2000).
The sentencing court also imposed a three-year term of supervised
release to follow Brennan’s period of incarceration. The order of
judgment included the mandatory condition of supervised release
that “the defendant not commit another Federal, State, or local
crime during the term of supervision.” 18 U.S.C.A. § 3583(d) (West
Supp. 2008). Brennan was released from prison on June 6, 2004.
On June 7, 2005, one year after his release from prison,
Brennan was arrested in West Virginia for the June 6 murder of his
wife, Lisa Brennan. Brennan’s probation officer immediately filed
a Supervised Release Violation Report recommending that Brennan’s
term of supervised release be revoked on the grounds that Brennan
violated the mandatory condition of release that he not commit
another crime. The revocation petition classified Brennan’s
2
violation as a Grade A violation, see U.S.S.G. § 7B1.1(a)(1), and,
in light of his category I criminal history, calculated a guideline
range of 12 to 18 months, see U.S.S.G. § 7B1.4(a).
Accompanying the Violation Report was the probation officer’s
petition for an arrest warrant for Brennan for violating the
conditions of supervised release. The warrant petition alleged
that, “[o]n June 7, 2005, William Brennan was arrested for the
murder of Lisa Brennan in Logan County, West Virginia.” J.A. 29.
No other factual allegations about the arrest or the underlying
facts were included in the petition. On June 14, 2005, the
district court issued the warrant and directed that it be filed
with West Virginia officials as a detainer pending resolution of
the state murder charges. The warrant was executed in October
2006, while Brennan was in jail awaiting trial on the murder
charge.
In April 2007, Brennan went to trial on a reduced charge of
voluntary manslaughter in the death of Lisa Brennan. The jurors
were unable to reach a verdict, and the state judge was forced to
declare a mistrial. Immediately after Brennan’s trial, he was
transferred to federal custody and brought before the district
court on the charge that he violated the conditions of his
supervised release. Brennan refused his court-appointed counsel
and insisted on proceeding pro se, but the district court directed
that counsel remain in a stand-by capacity.
3
Brennan’s revocation hearing was held on July 11, 2007, after
the expiration of his three-year term of supervised release in June
2007. The evidence presented at the revocation hearing showed that
Brennan ran numerous errands on the morning of June 6 and returned
home at 2:00 p.m. In a written statement for investigators,
Brennan claimed that when he noticed Lisa was gone, he looked for
her purse but was unable to find it. The evidence showed, however,
that Brennan made at least two phone calls that day to friends and
relatives during which Brennan indicated that Lisa was missing and
that her purse was still in their home.
Later that afternoon, Brennan picked up his teenage son from
a gym and revealed that Lisa had been missing for a few hours.
When they returned home, Brennan asked his son to clean the house.
The boy did so, including removing and laundering the sheets from
his mother’s bed -– something that he typically did not do when
cleaning the house. Following dinner, Brennan decided to look
outside their trailer for a note and to search various vehicles
that were parked on Brennan’s property. After checking several
cars, Brennan reached a Toyota Camry and decided to look inside of
the trunk. Before doing so, however, he examined the trunk for
fingerprints. He then opened the trunk of the Camry and saw the
body of his wife, as well as her purse and some shoes.
4
Brennan called 911 at 10:00 p.m. on June 6, 2005, and reported
that he had discovered his wife’s body. Brennan declined the
dispatcher’s offer to help him perform CPR because he was certain
Lisa Brennan was dead: “Buddy, I don’t want to move her. She is
clearly dead. I tried to pour water down her mouth and she is
stiff as a board. She has been in there since 2:00.” J.A. 180.
Brennan then immediately added, “I have been looking for her since
2:00.” J.A. 180. There was also evidence that, when responding
officers arrived at the scene, Brennan was extremely calm and
unemotional.
The Logan County medical examiner set the time of death
between 1:00 p.m. and 3:00 p.m, a period of time during which Mike
Caldwell, one of Brennan’s business associates, tried
unsuccessfully to call Brennan several times. The medical examiner
initially determined that Lisa died as a result of blunt force
trauma, but ultimately concluded that Lisa’s death occurred as a
result of being shaken violently.
The government also presented evidence of an incident that
occurred one month prior to Lisa Brennan’s murder, in which Lisa
urinated on herself in their van, prompting Brennan, in front of a
witness, to “jerk[] Lisa out of the van by the arm, and spray[] her
with a steam genie front and back.” J.A. 191.
At the revocation hearing, Brennan highlighted the lack of DNA
or fingerprint evidence linking him to Lisa’s death. Also, there
5
was no evidence presented of scratches or bruises sustained by
Brennan, but investigators noticed several scratches on Brennan’s
son.
The district court concluded that the evidence showed Brennan
was at least an accessory to his wife’s murder, which is a
violation of his supervised release:
Lisa Brennan was the victim of an unlawful
felonious homicide. The evidence presented . . . is not
sufficient for the Court to determine whether that
unlawful felonious homicide was first degree murder,
second degree murder or involuntarily manslaughter.
Nevertheless, she was the victim of an unlawful
felonious homicide. The likely cause of death was blunt
force head trauma caused by acceleration and
deceleration. Essentially, she was shaken to death.
William Brennan was a principal or accessory to the
unlawful felonious homicide. In reaching that
conclusion, I look to the following facts which I find
more likely true than not.
First, Brennan previously had been abusive and
cruel to Lisa as exemplified by the incident where . .
. [Brennan] sprayed [Lisa] with a Steam Genie. . . .
Second, Brennan showed little emotion in content or
intonation when dealing with law enforcement officers
under circumstances that some emotion would be expected
from a person who had just suffered a grievous loss.
Indeed, even the dialogue in the 9-1-1 call lacks any
hint of the kind of emotion I would expect. . . .
Third, nothing remotely suggested that his wife
might be in the trunk of the car. Yet he looked there.
Obviously, this is a highly unusual place to look in the
absence of some indicia that he should be looking for
his wife in the trunk.
I have no hesitancy in concluding that he knew she
was there and was not looking for her. The search was
a charade or ruse. Mr. Brennan, either assisted or
unassisted, put her in that trunk.
6
J.A. 179-81.
The district court concluded, based on the evidence, that
Brennan had committed a crime in violation of his conditions of
supervised release. The court found, however, that the recommended
sentencing range of 12-18 months was inadequate for the seriousness
of Brennan’s offense. The court imposed the statutory maximum of
two consecutive twenty-four month terms. See 18 U.S.C.A.
§ 3583(e). Brennan filed this appeal.1
II.
A.
Brennan first argues that the district court lacked
jurisdiction over the revocation proceedings and erroneously denied
his motion to dismiss. Because Brennan’s revocation hearing took
place after his term of supervised release expired, the
jurisdiction of the district court was governed by § 3583(i):
The power of the court to revoke a term of supervised
release for violation of a condition of supervised
release, and to order the defendant to serve a term of
imprisonment . . . extends beyond the expiration of the
term of supervised release for any period reasonably
necessary for the adjudication of matters arising before
its expiration if, before its expiration, a warrant or
1
While the appeal was pending before this court, Brennan was
retried in West Virginia state court. On February 25, 2008, he was
convicted by a jury of voluntary manslaughter in the death of Lisa
Brennan. We note this fact for the sake of completeness; this
subsequent conviction, however, has no bearing on the disposition
of this appeal.
7
summons has been issued on the basis of an allegation of
such a violation.
18 U.S.C.A. § 3583(i) (West 2000).
The warrant in this case was issued in June 2005 and executed
in October 2006, clearly before the expiration of Brennan’s
supervised release. Brennan argues, however, that a “warrant” did
not technically issue because the warrant did not contain
sufficient factual allegations to establish probable cause; it
merely stated that Brennan had been “arrested for the murder of
Lisa Brennan in Logan County, West Virginia.” J.A. 33. This
claim is without merit.
Section 3583(i) grants federal courts reach-back jurisdiction
if, prior to the expiration of the term of supervised release, “a
warrant or summons has been issued on the basis of an allegation of
such violation.” The text of the statute does not require that the
warrant be founded upon probable cause or sworn allegations in
order for the district court to exercise jurisdiction. See United
States v. Garcia-Avalino, 444 F.3d 444, 445-46 (5th Cir. 2006); cf.
United States v. Presley, 487 F.3d 1346, 1349 (11th Cir. 2007) (“If
Congress had wanted, it easily could have said that for purposes of
supplying reach back jurisdiction under § 3583(i) a summons must be
supported by sworn facts. It didn’t say that.”). Nevertheless,
there is a disagreement among the circuits regarding whether a
warrant issued under § 3583(i) must strictly comply with the Fourth
Amendment in order to vest the court with jurisdiction. Compare
8
Garcia-Avalino, 444 F.3d at 445 (concluding that § 3583 contains no
“implicit sworn-facts requirement embedded in the very meaning of
the word ‘warrant’ as a legal term” and that the court’s
jurisdiction under § 3583(i) did not hinge on whether the warrant
complied with the Fourth Amendment sworn-facts requirement) with
United States v. Vargas-Amaya, 389 F.3d 901, 904 (9th Cir. 2004)
(concluding that, as used in § 3583(i), “warrant” is a “document
that is based on probable cause and supported by sworn facts”).
We need not take a position on this question. We conclude
that, under either view of the statute, the warrant issued by the
district court was sufficient to afford the court jurisdiction
under § 3583(i) to adjudicate the revocation petition. The
petition for the warrant identified the specific condition that
Brennan allegedly violated -- the no-other-crimes condition -- and
provided the date and location of Brennan’s arrest, as well as the
charge upon which he was arrested. This was sufficient to
establish probable cause to believe Brennan violated his conditions
of supervised release. In our view, it was unnecessary for the
warrant to include additional facts or more detail about the
alleged murder because Brennan was not being arrested for murder
under the warrant but for violating his conditions of supervised
release. The fact that state authorities formally charged and
arrested Brennan for murder is enough to supply probable cause that
a violation occurred. We conclude that the petition and resulting
9
order issuing the warrant satisfied the requirements of § 3583(i),
preserving the district court’s jurisdiction to address Brennan’s
alleged violation that occurred during his supervised release
period.
B.
Next, Brennan contends that the district court abused its
discretion in refusing to grant a continuance of the revocation
hearing. Immediately before the revocation hearing, Brennan
requested that the district court continue the hearing until the
completion of his manslaughter retrial. Brennan argued that he
could not take the stand at the revocation hearing without risking
that his testimony would be used against him if he took the stand
in the retrial of his manslaughter charges. Although Brennan did
not testify in his own behalf at the first manslaughter trial, he
claims that the district court’s denial of a continuance
effectively eliminated his choice and precluded him from taking the
stand in the retrial, in violation of his Fifth Amendment rights.
We disagree.
Brennan was not forced to remain silent and was free to
testify at his retrial. Although Brennan faced certain risks in
testifying at the revocation hearing, “[t]he Fifth Amendment does
not immunize a defendant from all the potentially negative
consequences of making such a choice.” United States v. Jones, 299
F.3d 103, 111 (2nd Cir. 2002). Even if the district court’s
10
refusal to grant a continuance required Brennan “to choose between
asserting his right to silence and pursuing what he believed to be
the most effective defense against revocation does not mean that
[he] faced the kind and intensity of coercion that could deprive
him of the right against compelled self-incrimination.” Id.; see
also id. at 109 (rejecting a “bright line rule that federal courts
should delay revocation proceedings until after the disposition of
state charges that form the basis of revocation requests”); cf.
Lynott v. Story, 929 F.2d 228, 230 (6th Cir. 1991) (“It is well
settled that a court is not constitutionally bound to postpone a
probation revocation hearing pending conclusion of a federal or
state criminal proceeding upon which parole revocation is
sought.”).
Furthermore, Brennan has failed to demonstrate that the
district court’s decision amounted to an abuse of discretion, and
he has failed to specifically articulate how the court’s ruling
resulted in prejudice to him. See United States v. Bakker, 925
F.2d 728, 735 (4th Cir. 1991) (“To prove that the denial of the
continuance constitutes reversible error, [the defendant] must
demonstrate that the court abused its broad discretion and that he
was prejudiced thereby.” (internal quotation marks omitted)).
We find no error in the district court’s refusal to grant a
continuance.
11
C.
Brennan next raises a series of arguments stemming from the
fact that the district court’s order did not specify whether
Brennan acted as a principal or an accessory in his wife’s murder.
Brennan argues that he was deprived of his due process right to
notice of the charges against him because the district court
revoked his supervised release based on the finding that Brennan
was “at least” an accessory to Lisa’s murder, but the petition for
revocation specified only murder as the basis for Brennan’s
violation.
Although revocation proceedings are not criminal trials to
which the “full panoply” of constitutional rights attach, see
Morrissey v. Brewer, 408 U.S. 471, 480 (1972), such proceedings are
subject to certain minimum due process requirements, including
“notice of the alleged violations.” See Gagnon v. Scarpelli, 411
U.S. 778, 786 (1973); see also Fed. R. Crim. P. 32.1(b)(2). Due
process violations during a supervised release revocation hearing
are subject to harmless error review. See United States v. Havier,
155 F.3d 1090, 1092 (9th Cir. 1998).
We reject Brennan’s argument that the petition for revocation
failed to give him sufficient notice to prepare a defense,
concluding that any deficiency was harmless. Brennan does not
suggest that his defense strategy would have been affected had he
been expressly charged with being an accessory to his wife’s
12
murder, conceding that accessory to murder before the fact is a
lesser included offense arising from the same nucleus of operative
fact.2
We likewise reject Brennan’s argument that he was deprived of
due process because the district court failed to articulate its
specific basis for revoking his supervised release. Specifically,
Brennan complains that the district court failed to explain what
his role was in the killing of Lisa Brennan. Due process requires
that the court’s findings be “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.” United States v. Copeland, 20 F.3d 412, 414 (11th Cir.
1994) (per curiam). Brennan contends that the district court’s
findings fail this standard because it is unclear whether the
district court concluded that Brennan was an accessory after the
fact or an accessory before the fact. This distinction is crucial,
according to Brennan, because Brennan could not be convicted under
West Virginia law of being an accessory after the fact to a murder
carried out by his son. See W. Va. Code Ann. § 61-11-6; State v.
McCallister, 357 S.E.2d 759, 761-62 (W. Va. 1987).
2
To the extent Brennan argues that § 3583(i) permits “post-
term revocation only when the warrant or summons is issued . . . on
the specific basis of the alleged violation upon which revocation
is ultimately based,” we disagree based on the plain language of
the statute. United States v. Naranjo, 259 F.3d 379, 382 (5th Cir.
2001) (italics omitted); see Presley, 487 F.3d at 1349-50.
13
The district court’s findings were sufficiently clear to pass
muster under the requirements of due process. It is evident from
the record that the district court concluded that Brennan committed
a crime in violation of the terms of his supervised release, acting
either as the principal in his wife’s killing or as an accessory.
Nothing in the record remotely suggests that the district court
found Brennan to be an accessory after-the-fact to a murder
committed by his son. Accordingly, we conclude that the district
court provided an adequate explanation for its revocation decision.
Finally, Brennan contends that the district court’s order of
revocation cannot stand because it is not supported by sufficient
evidence. A district court need only find a violation of a
condition of supervised release by a preponderance of the evidence.
See 18 U.S.C.A. § 3583(e)(3). This court reviews the district
court’s decision to revoke supervised release for an abuse of
discretion, see United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995). We will not disturb the court’s underlying factual
determinations absent clear error. See United States v. Carothers,
337 F.3d 1017, 1019 (8th Cir. 2003).
Brennan bases his sufficiency of the evidence argument on the
district court’s conclusion that the evidence presented was not
sufficient for the court to determine whether Brennan was a
principal or an accessory in the murder of his wife. We reject
this argument. The evidence is sufficient to support the court’s
14
conclusion that, based on a preponderance of the evidence, Brennan
participated in his wife’s killing as no less than an accessory.
D.
Finally, we affirm the consecutive 24-month sentences imposed
by the district court following revocation of Brennan’s supervised
release. We will not disturb a sentence imposed after revocation
of supervised release unless it is “‘plainly unreasonable’ with
regard to those § 3553(a) factors applicable to supervised release
revocation sentences.” United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). We must determine initially whether the
revocation sentence is unreasonable, a process that includes
procedural and substantive components. See id. at 438. A
revocation sentence is procedurally reasonable if the district
court took into account the Chapter 7 policy statements and the
applicable factors in § 3553(a). See id. at 440. The sentence is
substantively reasonable if the court stated an appropriate basis
for imposing a sentence within the statutory maximum. See id.
Only if we determine that the sentence was unreasonable do we
proceed to the question of whether the sentence was plainly
unreasonable. See id. at 439 (explaining that the “plainly
unreasonable” prong incorporates “the definition of ‘plain’ that we
use in our ‘plain’ error analysis”).
Brennan argues that his sentence is unreasonable because the
district court considered an impermissible factor. In imposing a
15
24-month sentence instead of a sentence within the advisory 12-18
month range, the court explained that “it would trivialize
supervised release under the circumstances here . . . when the
crime involves the defendant’s participation in the . . . unlawful
felonious death and killing of his wife.” J.A. 182. Brennan
suggests that this statement reflects that the court improperly
considered the seriousness of the offense. See Crudup, 461 F.3d at
439. The court’s observation, however, is relevant to other
required considerations, including “the nature and circumstances of
the offense and the history and characteristics of the defendant.”
18 U.S.C.A. § 3553(a)(1) (West 2000) (emphasis added). Moreover,
the district court expressly considered the Chapter 7 policy
statements and the factors in § 3553(a) that are applicable to
revocation sentences. We conclude, therefore, that Brennan’s
sentence is not unreasonable, much less plainly so.
III.
For the foregoing reasons, we affirm the order of the district
court.
AFFIRMED
16