U.S. v. LeBlanc

• Decision Date: 21 May 1999
• Docket Number: No. 97-3994,97-3994
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alcee J. LeBLANC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 511

175 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Alcee J. LeBLANC, Defendant-Appellant.

No. 97-3994.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1998.

ecided April 21, 1999.

Rehearing Denied May 21, 1999.

Daniel P. Bach (argued), Peggy A. Lautenschlager, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Howard B. Eisenberg (argued), Milwaukee, WI, for Defendant-Appellant.

Before CUMMINGS, ROVNER and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Alcee LeBlanc pled guilty in 1994 to possession of stolen property, in violation of 18 U.S.C. § 2315. The district court sentenced him to twelve months of incarceration, followed by three years of supervised release. LeBlanc served his prison term, and had successfully completed two years and five months of the supervision period when he was arrested and charged with being a felon in possession of a weapon. The government petitioned for revocation of LeBlanc's supervised release. When LeBlanc appeared in court, his counsel represented that he was willing to stipulate to the firearms charge, and was willing to waive his right to a full revocation hearing under Federal Rule of Criminal Procedure 32.1. The court obliged and sentenced LeBlanc to twenty-four months of additional incarceration, the maximum allowed by the statute. See 18 U.S.C. § 3583(e)(3). LeBlanc now appeals, challenging the sufficiency of the evidence against him, and citing due process violations he claims occurred at the revocation hearing. He asks that the case be remanded for a new revocation hearing, or in the alternative that it be remanded for a new sentencing hearing. We agree that the proceedings were fatally flawed, and we reverse and remand for a new revocation hearing.

I.

On October 14, 1997, LeBlanc's probation officer petitioned the court for an arrest warrant and revocation of supervision, based on violations of three conditions of supervision. Namely, LeBlanc violated Standard Condition # 1, that he not commit another federal, state or local crime, when he was arrested on October 12, 1997, for being a felon in possession of a firearm. Also in support of a violation of Condition # 1, the petition charged that LeBlanc had been arrested on September 14, 1997, for battery, criminal damage to property, resisting arrest, disorderly conduct, and driving while intoxicated. Standard Condition # 8 required LeBlanc to refrain from the excessive use of alcohol, among other things, a condition violated on September 14, 1997, when he registered a blood alcohol content of .23 percent. Finally, he violated Standard Condition # 15, that he not possess a firearm, when he was found in possession of a shotgun and three shotgun shells on October 12, 1997. On that day, according to the petition, LeBlanc threatened to shoot himself and another person.

At a hearing to set a date for the revocation proceedings, the government alerted the court that no revocation hearing was necessary because LeBlanc had agreed to stipulate to a Grade B violation of his probation conditions. Specifically, he would stipulate to being a felon in possession of a firearm on October 12, 1997, in violation of state law. The government further informed the court that it could not establish a Grade A violation because it could not prove that this particular firearm travelled in interstate commerce, a requirement for proving a violation of Standard Condition # 15. ¹ Thus, the government relied on LeBlanc's violation of Standard Condition # 1, and admitted it could not prove the more serious violation of Standard Condition # 15. LeBlanc's attorney concurred with the government's portrayal of events, and explained that the parties had reached agreement only moments before entering court.

The court then allowed the government an opportunity to enter into the record an offer of proof relating to that violation. The government stated that it would have called Donna LeBlanc, the defendant's wife, to testify. Donna LeBlanc would have testified that on October 12, 1997, LeBlanc called her several times from the home of his friend Oburr Sperle. During one of the calls, LeBlanc told her he wanted her to hear something, and she then heard a loud bang. LeBlanc said he was practicing with a 12 gauge shotgun, and he was going to blow his head off. Donna LeBlanc would have further testified that he called again later that day and told her he only had one shell left from the five he had originally. When she questioned whether Sperle owned any guns, LeBlanc responded that he kept "a lot of them under his bed." She then called the police and directed them to Sperle's house.

The government stated that it would have next called a Dane County deputy sheriff, who would have testified that he went to Oburr Sperle's house, and found LeBlanc there, smelling strongly of alcohol. LeBlanc submitted to a blood alcohol test, and the sheriff found his blood alcohol was .23 percent. The sheriff found three unexpended shotgun shells on the kitchen counter, and a 16 gauge shotgun under Sperle's bed. The sheriff would have testified that he spoke with Sperle, and Sperle stated there was no reason for there to be shotgun shells laying around the house, that he had not used his gun for years, and that he did not know LeBlanc was at his house that day. The sheriff would have testified that he arrested LeBlanc that day on the charge of being a felon in possession.

After the government made this offer of proof, the court asked LeBlanc if he agreed with the government's statement. LeBlanc responded, "Yes, sir." The court then asked whether he disagreed with any part of the statement. LeBlanc again responded, "Yes, sir." When asked to explain his objection, LeBlanc first clarified that the "shells" were really just plastic tubing with brass caps, and had never been filled with gunpowder or buckshot. He also denied touching the gun, and explained that, in fact, he did not know it was in the house. The government, on hearing this denial, posited that LeBlanc was not prepared to stipulate to the offense conduct after all. LeBlanc interjected, "Oh, no, I am but I just wanted to get that on the record also that ... my fingerprints--". At this point, the court interrupted and stated, "We will go with the Class A violation and if you wish to have an expert come in I'll set this over for a week for the hearing relating thereto." The government again expressed doubt that it could prove a Class A violation because it could not show that the gun travelled in interstate commerce. The government even doubted whether proof of the gun travelling in interstate commerce (which would make LeBlanc's conduct a federal offense) would be enough to constitute a Class A violation.

The court attempted to clarify LeBlanc's position, asking whether he was in possession of a 16 gauge shotgun. LeBlanc replied that he admitted to the possession, but simply wanted clarification of "what is meant by possession." After this "admission," the government questioned whether LeBlanc understood the charge against him, and whether he was admitting to actual or constructive possession. LeBlanc's attorney explained that he was willing to stipulate to constructive possession, and that her client simply did not understand the procedure for the hearing. The court again attempted to question LeBlanc on the record about the charge of possession, without explaining, however, the terms "possession" and "constructive possession." LeBlanc confirmed that he was present at Sperle's house, that there were three shotgun shells at the house, that he understood he was being charged under state law with being a felon in possession of a firearm, and that he was "in possession" of the shotgun when he called his wife on October 12, 1997. He also admitted he told his wife he was practicing with a shotgun and was going to blow his head off. Finally, he admitted that the shotgun was in Sperle's house at the time he spoke with his wife. The government asked that LeBlanc clarify that he knew the shotgun was at Sperle's house, and LeBlanc obliged.

The court then accepted the stipulation, revoked LeBlanc's supervised release, and asked for argument on sentencing. Both sides were apparently under the impression that the maximum sentence for a Grade B violation was 18 months, and argued accordingly. Much to everyone's surprise, the court found the 18 months inadequate and sentenced LeBlanc to 24 months incarceration, the maximum allowed by statute. In explaining the sentence, the court cited the September 14, 1997 incident, when a drunken LeBlanc apparently went to the home of his in-laws, where his wife was staying, and accosted his brother-in-law. The court told LeBlanc that his attorney and "the government's stipulation have saved you from substantially a greater period of incarceration, for had it been a Grade A violation you would have had a further period of sentencing by this Court."

II.

LeBlanc's original attorney filed an Anders brief with this Court, stating that there were no non-frivolous matters to pursue on appeal, and requesting that she be allowed to withdraw from further representation. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although we allowed the attorney to withdraw, we rejected the Anders brief because we believed it raised non-frivolous issues. We appointed new counsel and directed the parties to brief whether a waiver of rights under Federal Rule of Criminal Procedure 32.1 need be knowing and voluntary. See United States v. LeBlanc, No. 97-3994, --- F.3d ---- (7th Cir. July 24, 1998). On appeal, LeBlanc through his new counsel, raises three issues. First, he contends that insufficient evidence was adduced at the hearing to support the revocation of supervised release. Second, he maintains that his right to due process was violated at the revocation hearing. Finally, he posits...