U.S. v. Poellnitz

• Decision Date: 25 June 2004
• Docket Number: No. 03-4044.,03-4044.
• Citation: 372 F.3d 562
• Parties: UNITED STATES of America v. Shawn L. POELLNITZ, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

372 F.3d 562

UNITED STATES of America v. Shawn L. POELLNITZ, Appellant.

No. 03-4044.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) May 14, 2004.

June 25, 2004.

Mary Beth Buchanan, United States Attorney, Bonnie R. Schlueter, Assistant U.S. Attorney, Chief of Appeals Division, Laura S. Irwin, Assistant U.S. Attorney, Office of United States Attorney, Pittsburgh, for Appellee.

Lisa B. Freeland, Acting Federal Public Defender, Karen S. Gerlach, Assistant Federal Public Defender, Office of Federal Public Defender, Pittsburgh, for Appellant.

Before NYGAARD, MCKEE and CHERTOFF, Circuit Judges.

OPINION

CHERTOFF, Circuit Judge.

Shawn L. Poellnitz appeals from the District Court's order finding that he violated a condition of his supervised release by committing a state crime. Poellnitz argues that (1) there was insufficient evidence to prove that he committed a state crime, namely because he pled nolo contendere (instead of guilty) to the crime in state court and passed a polygraph test, and (2) the delay between the filing of the supervised release petition and the supervised release violation hearing was not "reasonably necessary," as required by 18 U.S.C. § 3583. The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291. For the reasons stated below, we will reverse the District Court's order and remand for a determination of whether there is sufficient evidence (under a preponderance standard) that Poellnitz committed a crime.

I.

On November 16, 1995, Poellnitz pled guilty to engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. § 1957(a), and making a false, ficticious or fraudulent claim, in violation of 18 U.S.C. § 287. The District Court sentenced Poellnitz to 37 months in prison followed by 3 years of supervised release.¹ The terms of the sentence included a provision that "[w]hile on supervised release, the defendant shall not commit any crimes, federal, state, or local and shall abide by the standard conditions of supervised release." App. at 3 (emphasis added).

Poellnitz was released from custody and began to serve his term of supervised release on November 19, 1998. The term of supervised release was set to expire on November 18, 2001. On November 9, 2001, the United States Probation Office (USPO) issued a "Status Report/Request for Warrant in Abeyance." The letter reported that Poellnitz was arrested on June 7, 2001, and charged with indecent assault, corruption of a minor, and endangering the welfare of a child. On November 13, 2001, the probation office filed a Petition on Supervised Release ("Petition"), alleging Poellnitz violated conditions of supervised release and requesting the court issue a bench warrant to be held in abeyance until the pending state charges were resolved. On November 15, 2001, the District Court granted the Petition, and on November 16, 2001, the District Court issued the arrest warrant, to be held in abeyance.

On February 10, 2003, Poellnitz entered a plea of nolo contendere in the Court of Common Pleas of Allegheny County, Pennsylvania, to the charge of corruption of a minor.² On February 20, 2003, the USPO filed a Supplemental Petition on Supervised Release ("Supplemental Petition"), alleging violations of the supervised release and requesting issuance of a summons for Poellnitz to appear to show cause why the District Court should not revoke his supervised release. On February 25, 2003, the District Court granted the Supplemental Petition and scheduled the revocation hearing for April 11, 2003. The District Court subsequently sua sponte rescheduled the hearing on three occasions: On February 27, 2003, the hearing was rescheduled for May 2, 2003; on April 8, 2003, the hearing was again rescheduled for May 16, 2003; and, on May 28, 2003, the hearing was again rescheduled for June 20, 2003.

Additionally, on July 10, 2003, the District Court granted Poellnitz a continuance due to Poellnitz's health problems, and the hearing was rescheduled for July 21, 2003. Similarly, on two occasions the District Court granted Government motions to reschedule because of the unavailability of Probation Officer Verne Howard: On July 16, 2003, the District Court granted a motion and reset the hearing for September 12, 2003; and on July 24, 2003, the District Court granted a motion resetting the hearing for September 26, 2003. The hearing ultimately took place on October 2, 2003. There is no indication on the docket sheet as to why the hearing was postponed between September 26 and October 2.³

In an October 3, 2003 Order, the District Court found that Poellnitz had violated a state law while on supervised release and failed to pay full restitution. The District Court ordered that the term of supervised release be reinstated to commence October 2, 2003, and to run for a term of five months. On October 9, 2003, the District Court issued an Amended Order, pursuant to Federal Rule of Criminal Procedure 35(a).⁴ In the Amended Order, the District Court found Poellnitz guilty of violating a state law while on supervised release, but contrary to the original Order did not find him guilty of failing to pay full restitution. The Court treated the state law violation as a grade C violation and, pursuant to 18 U.S.C. § 3583(e)(3) and (h), revoked Poellnitz's supervised release and sentenced him to a term of one month's imprisonment, to be served in home confinement pursuant to 18 U.S.C. § 3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of the United States Sentencing Guidelines.⁵

II.

Poellnitz argues there was insufficient evidence to prove that he violated a condition of his supervised release by committing a crime because he pled nolo contendere (rather than guilty) to the crime charged and passed a polygraph test. Poellnitz's challenge to the propriety of the District Court's consideration of a nolo contendere plea as proper evidence that he committed a crime in violation of his supervised release is a question that is "essentially legal in nature, [and] we will exercise de novo review." United States v. Blackston, 940 F.2d 877, 882 (3d Cir.1991) (citing United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989)). We conclude that the District Court erred as a legal matter in relying on the nolo plea as evidence of commission of a crime.⁶

The plain language of 18 U.S.C. § 3583(e)(3) requires a finding by "a preponderance of the evidence that the defendant violated a condition of supervised release." When the condition is that the defendant not commit a crime, there is no requirement of conviction or even indictment. This Court has emphasized "the broad discretion which is traditionally given to district courts to revoke probation when probation conditions are violated." United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992). A "court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed the alleged acts." Id. at 429; see also United States v. Chambers, 429 F.2d 410, 411 (3d Cir.1970) (citations omitted). In other words, "to revoke probation it is not necessary that the probationer be adjudged guilty of a crime, but only that the court be reasonably satisfied that he has violated one of the conditions." United States v. Manuszak, 532 F.2d 311, 317 (3d Cir.1976).

The novel question presented here is whether Poellnitz's nolo contendere plea, without more, is sufficient to establish that he violated a condition of supervised release even under the relatively relaxed burden of proof that applies. The answer depends upon (1) what actually constitutes a violation of the condition of release, and (2) what significance we attribute to a nolo plea.

The condition of release specified in the revocation proceeding was that the "defendant shall not commit any crimes, federal, state or local." App. at 3. The condition was not that defendant shall not be convicted of another crime. What is forbidden is illegal conduct, not another judgment of conviction. In order to establish that Poellnitz was guilty of a violation of this condition of release, therefore, the government did not have to show that he was convicted of a new crime, but did have to show that he actually committed a new crime. In this case, the District Court's finding that Poellnitz committed a new state crime was not based exclusively or primarily on evidence of the facts underlying the alleged new state crime. Rather, the District Judge treated the nolo plea as the proof that Poellnitz committed the underlying crime. See App. at 18.

In the normal course, one might expect that if the court finds defendant was convicted of a crime, the court may automatically revoke release based on the defendant's commission of the underlying offense. That is not so when it comes to the peculiar legal effect of the plea of nolo contendere. While a nolo plea is indisputably tantamount to a conviction, it is not necessarily tantamount to an admission of factual guilt. See United States v. Adedoyin, 369 F.3d 337, 344 (3d Cir.2004); see also United States v. Wyatt, 762 F.2d 908, 911 (11th Cir.1985) (holding nolo plea was not admissible to prove defendant had admitted his guilt, although the underlying facts were admissible); United States v. Graham, 325 F.2d 922, 928 (6th Cir.1963) (internal citations omitted) ("It is true that a nolo contendere plea permits a judgment of conviction and the imposition of punishment the same as if a plea of guilty had been made. However, it has been held that it is not admissible to aid proof of guilt in another proceeding."). And since the condition of release in this case was to avoid the commission of a crime-not to avoid a conviction for a crime-establishing that Poellnitz was convicted of a new crime...