U.S. v. Morin, s. 88-2181

• Decision Date: 06 June 1989
• Docket Number: 88-2228,Nos. 88-2181,s. 88-2181
• Citation: 889 F.2d 328
• Parties: UNITED STATES of America, Appellee, v. Roger MORIN, a/k/a Paris Video, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 328

889 F.2d 328

UNITED STATES of America, Appellee, v. Roger MORIN, a/k/a Paris Video, Defendant, Appellant.

Nos. 88-2181, 88-2228.

United States Court of Appeals, First Circuit.

Heard June 6, 1989.

Decided Nov. 15, 1989.

June Zellers Schau with whom Stephen B. Wade and Skelton, Taintor & Abbott, Auburn, Me., were on brief, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., and Joseph H. Groff III, Asst. U.S. Atty., Portland, Me., were on brief, for U.S.

Before BREYER, REINHARDT, ^* and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Roger Morin appeals from two district court orders. The first revoked his probation and reinstated his original sentence of two years in prison. The second order denied, for lack of jurisdiction, his motion for reconsideration of the first order.

On April 30, 1985, an indictment was filed charging Morin with two counts of criminal conduct: unauthorized distribution of eight films and copyright violations with respect to 222 films. Morin entered into a plea agreement with the government on July 31, 1986. In exchange for dismissal of count one, Morin entered a plea of guilty to the second count. The plea was accepted, and the district court sentenced Morin to two years of imprisonment. In consideration of Morin's health--among other things, he has severe kidney problems which require him to be on dialysis three times a week and has had two heart attacks--the district court suspended execution of his sentence and placed Morin on probation for two years.

Morin has an extensive record of criminal activity. Since 1955, when Morin was 21, twenty one different charges have been brought against him. 1987 Presentence Investigation Report at 3-4. One of his prior convictions, for illegally buying food stamps in 1984, was entered by the same district judge that presided over this case. In that case, Morin had also pled guilty, and been placed on probation. During the sentencing procedures, the district court found that Morin had deliberately lied to it regarding his prior convictions. Despite the fact that the court found that Morin was an "unremorseful, unrepentant and unreconstructed violator," Appendix at 260 (hereinafter "App."), and had shown a "consistent disregard and disrespect for the orderly processes of the law," App. at 266, the district court suspended the execution of a one year prison term and placed Morin on probation for two years because of his poor medical condition.

The copyright offenses that are the subject of this case were committed while Morin was still on probation for the earlier food stamps conviction. ¹ While sentencing Morin on the copyright offenses, the district court warned him that "this is the last time that your conditions of health are going to keep you out of federal prisons so far as this court is concerned. If you come back in here and are found in violation of this probation I will put you in jail." App. at 93.

One of the conditions of probation was that Morin not leave the judicial district of Maine without the permission of the probation officer. Although Morin's original probation officer was content if Morin obtained oral permission for this purpose, Morin's new probation officer, Vincent Frost, had orally informed Morin that he had to obtain written permission before leaving the district. On March 9, 1988, Morin orally requested permission from Frost to visit his sister in Connecticut. Frost said he would approve the trip, but instructed Morin to submit a written request listing his travelling schedule and indicating where he would be staying. Morin does not deny that Frost said as much, but claims that he does not remember hearing it. Morin called the probation office before he left. He spoke to a secretary and told her that he was leaving for Connecticut and that he had discussed the trip with Frost. The secretary did not give him permission to take the trip, but promised to relay the message to Frost. Morin does not remember whether he mentioned to the secretary that he would also be going to New York during this trip. Morin left for Connecticut and New York on Saturday, March 19, and returned to Maine on the following Friday. He called Frost on Monday for some other purpose. During that conversation, Frost asked him where he had been. Morin explained that he had gone to Connecticut and New York. Frost told him that he should have obtained written permission before travelling, and that his failure to do so amounted to a violation of probation.

On April 13, 1988, Frost asked Morin more questions about his March trip to New York. Morin stated that he had stayed in New York City on Tuesday night and Thursday night, because he had been too tired to drive back to Connecticut after dialysis. On May 27, Frost asked Morin if he had only spent two nights in New York City. After much thought, Morin confessed that he had been in New York for four nights. Frost asked him if he was lying. Morin replied that he was not. When Frost confronted him with hotel records indicating that Morin had been in New York City for five nights, Morin conceded that it might have been five nights.

On June 15, 1988, Frost filed a petition for probation action, alleging that Morin had violated one of his probation conditions by travelling outside Maine from March 19-25 without advance written permission. A hearing on the probation petition was held before the district court on November 7, 1988. Morin pled guilty to having violated probation by travelling without permission. The court held that Morin knew that he had to obtain written permission before travelling outside Maine. Not only did he fail to do so, but he tried to prevent Frost, his probation officer, from discovering that the trip had included a stay in New York City. When confronted, Morin continued to lie about how long he had been in New York City. It was only when he was presented with evidence of the length of his stay that he admitted the truth. The court also questioned whether Morin's reasons for visiting New York were legitimate. Concluding that "[t]his is the kind of violation that strikes at the very heart of the probation system," App. at 153, the court revoked Morin's probation and reinstated the original two year sentence.

On November 11, 1988, Morin filed a motion to extend the time for filing a notice of appeal from the revocation order. He argued that he needed the extension to file a motion for reconsideration while preserving his right to appeal. The district court denied the motion. On November 16, 1988, Morin filed a motion for reconsideration of the order revoking probation, a motion to reduce sentence, and a third motion not relevant here. On November 18, 1988, Morin filed a notice of appeal from the revocation order. The government claimed that the taking of an appeal divested the district court of jurisdiction to hear the motion for reconsideration, relying on United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987). The district court was persuaded by this argument, and on December 2, 1988, entered an order dismissing the three motions because it no longer had jurisdiction over the case. Morin appeals this order, arguing that the notice of appeal should not deprive the district court of jurisdiction. He says judicial efficiency would be promoted if the notice of appeal were treated as being nullified by the motion for reconsideration. Morin points out that this approach has been adopted by the Seventh Circuit in United States v. Gargano, 826 F.2d 610 (7th Cir.1987) (Posner, J.).

A subsequent development has reduced the importance of this issue. In a memorandum issued on December 15, the district court amplified its December 2 order. According to Morin, this memorandum indicates the district court's unwillingness to reconsider its decision. Consequently, he concedes that the relief he requests--a remand for reconsideration on the merits--is moot. The government agrees that remanding this case to the district court is more likely to waste rather than conserve judicial resources. Under these circumstances, we will treat the combination of the December 2 and 15 pronouncements as a denial on the merits of the motion for reconsideration. The jurisdictional issue is therefore moot, and the appeals from both the November 7 and December 2 orders present the same substantive issues--whether the district court was justified in revoking Morin's probation and in reinstating his sentence.

We begin our analysis of the substantive issues by describing Morin's three contentions on appeal. He concedes that he violated one of his probation conditions--that he not leave the judicial district without the written permission of his probation officer. Morin first argues that this was an understandable, excusable and relatively technical violation, and that it did not justify the revocation of probation. Second, he claims that the court revoked his probation not because of his failure to comply with the reporting requirement, but because (a) he committed the copyright violations while he was on probation for the food stamps convictions; (b) the district court incorrectly believed that Morin had lied to him during the sentencing hearing for the food stamps conviction; and (c) the district court incorrectly believed that he had lied to his probation officer in an effort to conceal the details of his trip to New York City. Morin argues that because he was not given formal notice that these were the actual grounds for revocation of probation, and not allowed to present evidence rebutting these charges, due process requires that he be granted a new revocation hearing. Third, even if revocation were justified, Morin claims that the court abused its discretion in reinstating his full sentence of two years imprisonment. We address each of these arguments in turn.

District courts enjoy broad discretion when deciding...