20 F.3d 7 (1st Cir. 1994), 93-1628, United States v. Gallo

Docket Nº:93-1628.
Citation:20 F.3d 7
Party Name:UNITED STATES of America, Appellee, v. Edward L. GALLO, Defendant, Appellant.
Case Date:March 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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20 F.3d 7 (1st Cir. 1994)

UNITED STATES of America, Appellee,


Edward L. GALLO, Defendant, Appellant.

No. 93-1628.

United States Court of Appeals, First Circuit

March 31, 1994

Argued Dec. 9, 1993.

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[Copyrighted Material Omitted]

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Miriam Conrad, Federal Defender Office, for appellant.

Timothy Q. Feeley, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

This appeal tests the propriety of an order revoking appellant's probation and sentencing him to serve a portion of a previously suspended prison term. We affirm.


We succinctly summarize the facts necessary to place this appeal into proper perspective, recounting disputed facts in a manner consistent with the district court's supportable findings of fact.

On November 5, 1987, a federal grand jury in the District of Columbia indicted defendant-appellant Edward L. Gallo on a medley of firearms charges. 1 Initially, the district court found appellant incompetent to stand trial and ordered him civilly committed. He was diagnosed as suffering from paranoid schizophrenia, thought to be incurable but, hopefully, controllable through medication. Thereafter, in July of 1989, appellant pleaded guilty to a single count of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(j). The district court then dismissed the remaining five counts of the indictment; sentenced appellant to three years of imprisonment, suspended; placed him on probation for five years; and crafted a special set of conditions ancillary to the probationary term. The first and second conditions possess particular pertinence for present purposes. They read in relevant part:

  1. The defendant shall be confined to St. Elizabeth's Hospital for a period of sixty days.

  2. Defendant shall continue to submit to proper psychiatric treatment, inclusive of medication, upon his release from impatient [sic] hospitalization and shall consent to the Probation Office having access to his medical records....

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In fact, appellant stayed at St. Elizabeth's for much longer than sixty days following the imposition of sentence. In the fall of 1990, the hospital discharged him. In the same time frame, three other interrelated events occurred: appellant took up residence at his mother's home in Massachusetts; the sentencing court transferred jurisdiction over the matter to its sister court in the District of Massachusetts; and probation supervision began in that district.

While at St. Elizabeth's, appellant first met Dr. Geller, a Massachusetts-based psychiatrist. After appellant sojourned to Massachusetts, he consulted regularly with Dr. Geller. 2 His course of treatment centered around a monthly injection of haloperidol decanoate (Haldol). The treatment protocol featured gradual decreases in dosage, aimed at lessening the patient's dependence upon the drug. Appellant, who steadfastly maintained that he had no psychiatric disorder and that he should not be on medication at all, favored the dosage-reduction program.

Over a period of more than two years, Dr. Geller decreased Gallo's dosage from 150 milligrams per month to 25 milligrams per month. In January of 1993, however, the doctor noted ominous behavioral changes. For example, appellant began writing of his belief that satellites and lasers were attacking him and threatening national security; in addition, he began acting in a manner reminiscent of how he had behaved immediately prior to his arrest in 1987. When the dosage dropped to 20 milligrams per month, Dr. Geller became concerned that appellant was no longer responding appropriately to the medication. Nonetheless, appellant expressed staunch opposition to resuming heavier doses of Haldol.

The dosage-reduction program continued until May 21, 1993, when Dr. Geller, due in part to Gallo's opposition to increasing the dosage and in part to the reported recurrence of hallucinogenic experiences, advised the probation office of his opinion that "proper psychiatric treatment" demanded "an inpatient psychiatric admission" because Gallo could not "be effectively or safely managed on an outpatient basis." 3 A probation officer immediately visited appellant and informed him of Dr. Geller's recommendation. Appellant debunked the need for inpatient treatment and refused to cooperate. The probation officer concluded that "given Mr. Gallo's current mental state, ... he presents a potential risk to himself and/or others." On the following day, the officer requested that the district court issue a warrant for violation of the conditions attendant to probation.

After an evidentiary hearing, the district court, citing, inter alia, the risk to public safety, found that appellant needed inpatient care to determine the proper level of medication and get his treatment program back on track. The court then ruled that appellant had violated the outstanding probation order by refusing to undergo hospitalization. On this basis, the court revoked Gallo's probation, sentenced him to a one-year term of immurement, see 18 U.S.C. Sec. 3565(a)(2) (1988) (stipulating that, upon finding a probation violation, a court may "revoke the sentence of probation and impose any other sentence that was available ... at the time of the initial sentencing"), and recommended that appellant serve the sentence in "a facility that can provide the appropriate psychiatric treatment and ... hospitalization." The court also imposed a follow-on term of supervised release, attaching seven special conditions to that term (including a condition requiring continued psychiatric care).

Gallo appeals. Although he parades several assignments of error before us, they march beneath two broad banners. First, appellant challenges the probation order, asseverating that it neither required involuntary hospitalization nor afforded him adequate notice that, by refusing such care, he would be risking imprisonment. Second, he challenges the revocation decision itself, including

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the finding that a violation occurred. 4


The Due Process Clause extends to probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). Fair warning of conduct that may result in revocation is an integral part of due process in such situations. See United States v. Simmons, 812 F.2d 561, 565 (9th Cir.1987). Here, appellant argues that the conditions of his probation did not require him to acquiesce in hospitalization, or, alternatively, did not provide fair warning that failure to do so might result in revocation. We approach these arguments with full realization that the interpretation of a probation condition and whether it affords a probationer fair warning of the conduct proscribed thereby are essentially matters of law and, therefore, give rise to de novo review on appeal. See In re Howard, 996 F.2d 1320, 1327 (1st Cir.1993) (explaining that "unadulterated questions of law" customarily entail plenary review); cf. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (establishing standard of de novo judicial review for construction of employee benefit plans).

  1. Scope of the Conditions.

    The threshold question is whether inpatient treatment falls within the scope of the probation order. We believe that the conditions of probation definitely encompass such treatment.

    The probation order states that appellant must "continue to submit to proper psychiatric treatment, inclusive of medication,...." We are confident that this broadly phrased directive, read naturally and with due regard for context, covers inpatient care. After all, the sentencing judge attached no qualifiers or words of limitation to the requirement of treatment, other than that the treatment be "proper" and "psychiatric." And in terms of language, we deem it significant that the condition directs that appellant "continue to submit to proper psychiatric treatment...." (Emphasis supplied.) When this verb usage is examined against the backdrop of the immediately preceding condition, which memorializes that appellant "shall be confined to St. Elizabeth's Hospital" for his initial treatment, 5 continuation of that treatment cannot fairly be read to exclude further hospitalization. And, moreover, an expansive reading is especially compelling in light of the incurable nature of appellant's illness and his previous three-year stay in a psychiatric hospital.

    We think, too, that the circumstances surrounding the probation order necessitate such an interpretation. The plea agreement commemorated appellant's understanding that he would have to report on a regular basis to a "mental health physician chosen by the government" and "follow the doctor's instructions unless excused by an order of the Court." Thus, the plea agreement made pellucid that appropriate medical care lay at the heart of the agreed disposition of appellant's case--and hospitalization is a mainstay of appropriate medical care. Moreover, the probationary period was to last for five years; during so lengthy a span, it was certainly foreseeable that appellant's medical needs might evolve in such a way as to require rehospitalization. Put bluntly, inpatient care, having proved necessary in the past, was well within the universe of treatment modalities that might prove "proper" in the future.

    Under the circumstances of this case, it is beyond serious question that the words "proper psychiatric treatment" were intended to include--and did include--the possibility of hospitalization. Consequently, we reject

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    appellant's complaint that the conditions attached to his probation did not require submission to inpatient medical care.

  2. Sufficiency of the Warning.

    Appellant has a fallback...

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