United States v. Lee

Decision Date29 July 2015
Docket NumberNo. 14–2010.,14–2010.
Citation795 F.3d 682
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Robert L. LEE, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Frank E. Schaffer, Attorney, Office of the United States Attorney, South Bend, IN, for PlaintiffAppellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for DefendantAppellant.

Before WOOD, Chief Judge, FLAUM, Circuit Judge, and KENNELLY, District Judge.*

Opinion

WOOD, Chief Judge.

While Robert L. Lee was on supervised release, his probation officer learned that he had assaulted his girlfriend Shelish Pulliam with a small souvenir baseball bat. The district court issued a warrant for Lee's arrest and initiated proceedings to revoke his supervised release. At the revocation hearing, the government offered the testimony of several law enforcement and medical personnel who interviewed or treated Pulliam. Pulliam had told each of them that Lee was the perpetrator. When Pulliam took the stand, however, she recanted and said that she had made up the assault story because she was mad at Lee. She explained her injuries, which were well documented, as the result of her tripping and falling down the stairs. After reviewing several Indiana criminal provisions, the court concluded that Lee had committed the offense of assault with a deadly weapon. On that basis, it revoked Lee's supervised release and imposed a four-year term of imprisonment.

Although he did not raise this point in the district court, Lee now argues that he was denied due process under both the Fifth Amendment and Federal Rule of Criminal Procedure 32.1 because he did not receive adequate written notice of the precise crime that ultimately led to the revocation. Lee asks us to adopt a per se rule that only the citation to a specific statute will suffice to provide written notice of the alleged violation. Only the Ninth Circuit has gone this far. We are not persuaded that either the criminal rules or the Constitution requires this approach, and so we decline the invitation to abandon our own more flexible practice and join the Ninth Circuit.

I

On September 10, 2009, Lee pleaded guilty to the crime of knowing possession of a firearm in furtherance of a drug trafficking crime. 18 U.S.C. § 924(c). The district court sentenced him on January 25, 2010, to a 60–month term of imprisonment and three years of supervised release. Under the provisions of his supervised release, Lee was commanded not to “commit another federal, state, or local crime.” He completed his prison term on August 9, 2013, at which time he was placed on supervised release.

On April 4, 2014, the United States Probation Office filed a petition to revoke Lee's term of supervised release. See 18 U.S.C. § 3583(e)(3). The petition informed the district court that

[t]he probation officer believes that the offender has violated the following conditions of supervision as set forth in the Judgment:
Mandatory Condition: The defendant shall not commit another federal, state or local crime.
Violation No. 1: On or about March 2, 2014, the defendant committed the offense of Domestic Violence/Battery, Class A Misdemeanor, as evidenced by South Bend Police Report # 14–2978.
Violation No. 2: On or about March 25, 2014, the defendant committed the offense of Assault and Battery, as evidenced by South Bend Police Report # 14–4162.

Three days later, the district judge signed the petition and issued a warrant for Lee's arrest. On April 9, 2014, Lee made an initial appearance before the court and waived his right to a preliminary hearing; the court ordered him to be detained pending the revocation hearing.

At the revocation hearing on April 24, 2014, the government called four witnesses, each of whom testified about an altercation between Lee and his girlfriend, Pulliam. Their testimony revealed that Lee had beaten Pulliam on March 26, 2014, severely enough to require her to be treated at a hospital near South Bend.

Dr. Bruce Harley, the emergency room physician who treated Pulliam, testified that she had told him that she had been hit with a baseball bat; he confirmed that her injuries were consistent with this account. The government also introduced photographs taken that evening, and Dr. Harley identified them as fair and accurate representations of how Pulliam looked when he examined her. Jill Perri, a nurse at the hospital, also testified that Pulliam had told her that her boyfriend had caused her injuries. Perri called the police on Pulliam's behalf, but Pulliam had been discharged by the time the police arrived after a CAT scan

showed no skull fracture or internal bleeding.

The police interviewed Pulliam at her home the next day. Officer Robert Anton testified that Pulliam told him that Lee had hit her several times including once on the head with a small baseball bat. The government also submitted photos of Pulliam's injuries that Officer Anne Hayes took at the time of the police interview. In her testimony, Officer Hayes described the photos. Finally, Kevin Reed, a U.S. Probation Officer who conducted a home visit at Lee's house on April 1, 2014, testified that he observed a small wooden baseball bat in Lee's living room and that Lee had lied to him about a “ladyfriend” staying in his bedroom.

Lee then called Pulliam to testify on his behalf. She acknowledged that she had accused Lee of hitting her with the bat, but she said that she had lied about that because she was angry at Lee. In fact, she asserted, her injuries had resulted from two falls. She suffered her head injury

, she said, when she tripped in the bedroom. The injuries to her buttocks (which were plain from the photographs) came about, she said, when she fell down the stairs, as she rushed down carrying her 11–month–old grandson, a diaper bag, and a car seat. In order to rehabilitate its witnesses, the government called an investigator from South Bend's Special Victims Unit, Amy Bennett. Bennett testified that she spoke with Pulliam on April 10, 2014, and that Pulliam had said Lee had hit her. Bennett also testified that domestic-violence victims often recant statements made to police or medical personnel.

The district court credited Pulliam's earlier statements over her later denials. Accordingly, it found that Lee had violated the terms of his supervised release by committing the crime of battery with a deadly weapon under Indiana law, and it imposed a four-year term of imprisonment. The district court entered its revocation judgment on April 24, 2014, and Lee filed a timely appeal.

II

A court may revoke a person's supervised release if it finds by a preponderance of the evidence that that person has violated a condition of supervision. See 18 U.S.C. § 3583(e)(3). Normally, we look only to ensure that a revocation decision was not an abuse of discretion; constitutional arguments, however, receive de novo review. United States v. Mosley, 759 F.3d 664, 667 (7th Cir.2014). But this all assumes that the defendant has properly preserved his objection. Lee did not object to the adequacy of the written notice he received on any ground—constitutional or otherwise—either before or at the revocation hearing. He has thus forfeited the point and our review is only for plain error. Fed.R.Crim.P. 52(b) ; see also United States v. Jordan, 742 F.3d 276, 278 (7th Cir.2014) (“Jordan's lawyer repeated his Fifth Amendment concerns in his closing argument.”). Under this limited standard, the error must [be] clear and uncontroverted at the time of appeal, ... affect substantial rights[,] and seriously impugn the fairness, integrity, or public reputation of judicial proceedings.” United States v. Sewell, 780 F.3d 839, 851 (7th Cir.2015) (citations and quotation marks omitted).

As supervised release revocation hearings are not criminal prosecutions, “the full panoply of rights that the Constitution guarantees to criminal defendants does not extend” to them. United States v. Neal, 512 F.3d 427, 435 (7th Cir.2008) ; see also Jordan, 742 F.3d at 279 ([A] revocation hearing is not a trial, so the defendant's interests are less compelling than for someone still presumed innocent.”). Nevertheless, reduced rights are not the same as no rights at all. The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488–89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), outlined six features of constitutional process that are due to a person already convicted of an underlying crime, but who now finds herself in danger of losing her conditional liberty. These procedural protections include “written notice of the claimed violations of parole.” Id. at 489, 92 S.Ct. 2593 (citation omitted). While Morrissey involved parole revocation, its holding has been extended to proceedings to revoke probation and supervised release. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation); United States v. Kelley,

446 F.3d 688, 690–91 (7th Cir.2006) (supervised release).

Federal Rule of Criminal Procedure 32.1, “largely a codification of Morrissey, United States v. LeBlanc, 175 F.3d 511, 515 (7th Cir.1999), requires the district court to follow detailed procedures in a proceeding to revoke or modify probation or supervised release. For the purposes of this appeal, our focus is on the rule's requirements for a revocation hearing. A person is entitled to written notice of the alleged violation; disclosure of the evidence against him; an opportunity to appear, present evidence, and question any adverse witnesses unless the court determines that the interest of justice does not require his appearance; notice that he has a right to retain counsel; and an opportunity to make a statement including presenting information in mitigation. Fed.R.Crim.P. 32.1(b)(2).

Lee maintains that both Rule 32.1 and the Constitution require a citation to a specific statute when the alleged violation...

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