United States v. Merhawi Haile

FILED
NOT FOR PUBLICATION JUN 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30138
Plaintiff - Appellee, D.C. No. 2:06-cr-00026-RSL-6
v.
MEMORANDUM *
MERHAWI HAGOS HAILE, also known
as Jimmy; et al.,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted June 4, 2013 **
Seattle, Washington
Before: McKEOWN and IKUTA, Circuit Judges, and CARNEY, District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
Merhawi Hagos Haile appeals the district court’s revocation of his
supervised release. He admitted to five violations of the conditions of his release,
and the district court found that he had committed an additional four violations
relating to cocaine distribution, threats, arson, and associating with persons
engaged in criminal activity and/or known felons. Haile contends that he received
insufficient notice of the “making threats” and “arson” crimes leading to the
revocation, that there was insufficient evidence he committed those crimes, and
that a condition of his supervised release is vague and overbroad. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review due process claims raised for the first time on appeal and
conditions of supervised release not challenged in the district court for plain error.
United States v. Williams, 547 F.3d 1187, 1202 n.13 (9th Cir. 2008) (due process);
United States v. Vega, 545 F.3d 743, 747 (9th Cir. 2008) (conditions of release).
Plain error is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial
rights.’ ” Johnson v. United States, 520 U.S. 461, 466–67 (1997) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 467 (internal quotation marks and citations omitted).
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On a challenge to the sufficiency of evidence supporting a supervised release
revocation, “we ask whether, 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 by a preponderance of the evidence.” United States v. King, 608
F.3d 1122, 1129 (9th Cir. 2010) (internal quotation marks omitted); United States
v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007); see also 18 U.S.C. § 3583(e)(3).
Haile argues that he was denied due process because the violation petition
did not identify the statutory provisions correlating to the crimes of “making
threats, by aiding and abetting” and “arson, by aiding and abetting” underlying the
allegations that he violated the terms of his supervised release by committing
federal, state, or local crimes. A defendant facing revocation of supervised release
is entitled to effective written notice of the violations with which he is charged.
United States v. Havier, 155 F.3d 1090, 1093 (9th Cir. 1998). “Thus, when a
revocation petition alleges the commission of a new crime and the offense being
charged is not evident from the condition of probation being violated, a defendant
is entitled to receive notice of the specific statute he is charged with violating.” Id.Haile has not established that the omission of statutory citations from the
violation petition was a plain error affecting his substantial rights that seriously
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affected the fairness, integrity, or public reputation of the revocation proceedings.
The violation petition contained a general description of the crimes at issue, and an
accompanying report set forth the relevant factual basis. Haile also received actual
notice of the applicable statutes through a police report provided to him during
discovery. Under a heading entitled “Offenses,” the report lists two crimes:
“ARSON 1ST DEGREE [ARSON-RESIDENCE-ENDANGERED LIFE]”
corresponding to Revised Code of Washington section “9A.48.020[2002],” and
“HARASSMENT NO PREV CONV,” corresponding to section “9A.46.020(2).”
Haile “could hardly have been puzzled about what he had to defend against” in
light of this information. United States v. Sesma-Hernandez, 219 F.3d 859, 860
(9th Cir. 2000) aff’d en banc, 253 F.3d 403 (9th Cir. 2001). Even if there was any
ambiguity about the charges against Haile, he was not prejudiced because the
specific statutes and their elements were irrelevant to his defense, which was based
solely on mistaken identity.
There also was sufficient evidence to establish that Haile committed the
crimes of making threats and arson by aiding and abetting. The government
presented evidence that Haile engaged in cocaine distribution and became involved
in a dispute with a customer over a drug debt. Haile and an associate made
menacing statements to the customer after he refused to pay, and the customer’s
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motorhome was set ablaze hours later as he slept inside. Video footage and cellular
telephone records place a car resembling Haile’s and a phone used by Haile in close
proximity to the motorhome within minutes of the time the arson was reported.
Viewing the evidence in the light most favorable to the government, the district
court could have found by a preponderance of the evidence that Haile violated
Washington state law by aiding and abetting the commission of harassment and first
degree arson. See RCW §§ 9A.08.020, 9A.46.020, 9A.48.020.
The condition of Haile’s new term of supervised release that he not “frequent
places where controlled substances are illegally sold, used, distributed, or
administered” is not impermissibly vague or overbroad. We recently rejected this
contention in United States v. Phillips, 704 F.3d 754, 768 (9th Cir. 2012), and held
that a district court did not commit plain error in imposing this standard condition.
Haile agrees that Phillips is dispositive.
AFFIRMED.
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