U.S. v. Correa-Torres
| Decision Date | 09 April 2003 |
| Docket Number | No. 01-1172.,01-1172. |
| Citation | 326 F.3d 18 |
| Parties | UNITED STATES of America, Appellee, v. Jorge L. CORREA-TORRES, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Stephen J. Weymouth, by appointment of the court, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney (Chief, Criminal Division), were on brief, for appellee.
Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.
This appeal requires us to decide, for the first time, what requirements must be met when a probationer, parolee, or person on supervised release purposes to waive his right to a revocation hearing under Federal Rule of Criminal Procedure 32.1.1 We conclude that the record must show, affirmatively or by fair implication, that any such waiver was knowingly and voluntarily made. Because the record in the instant case reflects no such showing, we vacate the appellant's sentence and remand for further proceedings consistent with this opinion (including an opportunity for the appellant to withdraw his attorney's concession that a sufficient factual basis existed to justify the revocation of his term of supervised release).
On July 9, 1993, defendant-appellant Jorge L. Correa-Torres pleaded guilty to one count of possessing more than five kilograms of cocaine with intent to distribute and aiding and abetting in the commission of that offense. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. The district court sentenced him to eighty months in prison, to be followed by a five-year term of supervised release. The appellant was discharged from the federal penitentiary in 1998, and his term of supervised release commenced at that time.
Two years later — while the appellant was still under supervision — the Commonwealth of Puerto Rico charged him with beating and threatening his girlfriend and damaging her car. See 8 P.R. Laws Ann. §§ 632, 633. Although these charges were eventually dropped because the girlfriend refused to cooperate with the local authorities, the incident continued to dog the appellant: the terms of his supervised release prohibited him from committing any federal, state, or local crime, and the domestic abuse allegations, if proven, constituted a clear violation. See 18 U.S.C. § 3583(d). So long as the government could prove that the appellant committed the proscribed acts, the terms of his release would be violated even in the absence of an actual conviction. See United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002); see also USSG § 7B1.1, cmt. (n. 1).
The appellant's probation officer brought the underlying facts to the district court's attention and moved for an order requiring the appellant to show cause why his term of supervised release should not be revoked. The district court issued the show-cause order. That order, along with a notification of the appellant's procedural rights, was served upon the attorney who had represented the appellant at the original trial. Both documents were written in English, and neither contained a Spanish translation.
At the revocation hearing, the appellant's counsel — the same lawyer upon whom the show-cause order had been served — informed the court that, based on his (counsel's) conversations with the appellant's girlfriend, the appellant would not contest the charge. The lawyer then asked the court to be as lenient as possible, emphasizing that the local court had dismissed the domestic violence complaint and that the appellant had an otherwise untarnished record during supervised release. The district court did not inquire of the appellant either as to his understanding of his rights or as to his guilt. In fact, the appellant did not speak at all throughout most of the proceeding, but, instead, relied upon a court-appointed interpreter to follow the ongoing dialogue.
The district court correctly explained that the absence of a conviction was beside the point; revocation of supervised release could be ordered as long as the appellant had committed a proscribed act. Relying upon the waiver — the fact that the appellant, through counsel, had declined to contest the probation officer's allegations — the court revoked the term of supervised release.
The court then proceeded to the imposition of sentence. Asked if he wished to say anything in mitigation of punishment, the appellant stated cryptically: "I think that it is unfair because that was a problem with my former girlfriend." The court did not ask him to elaborate. The prosecutor then suggested a sentence at the nadir of the applicable guidelines range, see USSG §§ 4B1.2(a), 7B1.1(a), 7B1.4, surmising "that the defendant [apparently] has accepted the fact that he abused his girlfriend and threatened her, and also threatened to kill her, and damaged her vehicle." The court imposed the recommended two-year sentence and added a new three-year term of supervised release.
The appellant filed a pro se notice of appeal. We appointed counsel for him. The attorney who represents the appellant in this court is not the attorney who represented him below.
The government challenges our jurisdiction in this matter. It points out that the district court's judgment was entered on November 27, 2000, but that the notice of appeal was not docketed until late December. On this basis, the government insists that the appellant failed to comply with Fed. R.App. P. 4(b)(1)(A), which requires a defendant in a criminal case to file a notice of appeal within ten days after the entry of judgment. See United States v. Podolsky, 158 F.3d 12, 14-15 (1st Cir. 1998); see also United States v. Morillo, 8 F.3d 864, 867 (1st Cir.1993) (). This argument lacks force.
By the time that the district court judgment was entered on the docket, the appellant was in custody. Under Fed. R.App. P. 4(c)(1), an inmate confined in a correctional institution may file a notice of appeal in a criminal case by depositing it in the institution's internal mail system on or before the last day for filing. The record indicates that the appellant deposited his notice of appeal in the prison's internal mail system on December 4, 2000.2 That was less than ten days after the hearing.
That ends this aspect of the matter. Applying the "prison mailbox" rule, we hold that the appellant essayed a timely appeal. Accordingly, this court has jurisdiction to hear and determine it.
Before us, the appellant advances only a single claim: that his waiver of rights was insufficiently informed (and, thus, impuissant). To address this claim, we must consider three discrete but related points. The first implicates the showing that must attend a waiver of Rule 32.1 rights. The second involves the validity of the waiver effected in this case. The third concerns the remedy associated with an invalid waiver.
Although revocations of probation, parole, or supervised release are not considered part of a criminal prosecution, they nevertheless entail a loss of freedom and a deprivation of liberty. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 484 n. 12, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Fundamental fairness therefore requires that defendants facing such revocations should be afforded notice of the charges against them, an opportunity to confront their accusers, and a chance to present evidence to their own behoof. See Bearden v. Georgia, 461 U.S. 660, 669 & n. 10, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Federal Rule of Criminal Procedure 32.1 addresses this need.
When the revocation of a term of probation, parole, or supervised release hangs in the balance, the target is entitled to a panoply of procedural rights. These include:
(A) written notice of the alleged violation; (B) disclosure of the evidence against the person; (C) an opportunity to appear and to present evidence in the person's own behalf; (D) the opportunity to question adverse witnesses; and (E) notice of the person's right to be represented by counsel.
Fed.R.Crim.P. 32.1(a)(2) (2000). These protections serve a variety of interests. Among other things, they safeguard the defendant's obvious stake in preserving his liberty. See, e.g., United States v. Stocks, 104 F.3d 308, 312 (9th Cir.1997). They also serve the sovereign's more nuanced interest in ensuring that important legal determinations are informed by an accurate account of verified facts. See, e.g., Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985); Morrissey, 408 U.S. at 484, 92 S.Ct. 2593.
In our system of criminal justice, most rights can be waived. See United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001) (cataloguing examples). The rights enumerated in Rule 32.1 are no exception. As a general proposition, however, the waiver of virtually any right closely affecting individual liberty must be knowingly and voluntarily made. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (); Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (); Teeter, 257 F.3d at 24 (). Because adherence to the processes prescribed by Rule 32.1 is instrumental to the fair and efficient operation of revocation proceedings, we hold that a waiver of the rights conferred thereunder cannot be effective unless that waiver is made both knowingly and voluntarily. Accord United States v. LeBlanc, 175 F.3d...
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...have not found in the criminal procedure a limitation on revocation under federal law.14 1. Federal CourtsIn United States v. Correa–Torres , 326 F.3d 18 (1st Cir. 2003), defendant pleaded guilty to violating 21 U.S.C. §§ 841(a)(1) and 2. He was sentenced to a five-year term of imprisonment......
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...and that such waiver can be assessed under the totality of the circumstances." Id. at 489, 17 N.E.3d 469. See United States v. Correa-Torres, 326 F.3d 18, 24 (1st Cir. 2003). Like the First Circuit, the Appeals Court also concluded that "no particular colloquy is constitutionally required a......
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...advised of the due process rights articulated in Morrissey. Beaulieu contends that such a right can be found in United States v. Correa–Torres, 326 F.3d 18, 25 (1st Cir.2003), and United States v. LeBlanc, 175 F.3d 511, 515 (7th Cir.1999). But the issue in Correa–Torres and LeBlanc was not ......
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