U.S. v. Barnhart, 92-3142

• Decision Date: 06 November 1992
• Docket Number: No. 92-3142,92-3142
• Citation: 980 F.2d 219
• Parties: UNITED STATES of America, Appellee, v. Charles BARNHART, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 219

980 F.2d 219

UNITED STATES of America, Appellee, v. Charles BARNHART, Appellant.

No. 92-3142.

United States Court of Appeals, Third Circuit.

Argued Oct. 2, 1992.

Decided Nov. 6, 1992.

Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Karen Sirianni Gerlach, Asst. Federal Public Defender, Counsel of Record, Jay J. Finkelstein (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.

Thomas W. Corbett, Jr., U.S. Atty., Paul J. Brysh (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.

Before: SLOVITER, Chief Judge GREENBERG and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Charles Barnhart, the appellant, violated his probation by failing to report to his probation officer on three separate occasions. After Barnhart's probation was revoked by the district court, he was sentenced to five years imprisonment. On appeal, Barnhart claims he was denied due process at the time he was sentenced because the district court was influenced by three unrelated arrests made while Barnhart was on probation. Barnhart also claims that the district court wrongfully revoked his probation because of his status as an alcoholic. Finding no merit in Barnhart's "alcoholic" claim, we address only his due process claim. We will affirm.

I.

On December 2, 1985 Charles Barnhart pled guilty in the United States District Court for the Western District of Pennsylvania to the first and third counts of a three-count indictment. Barnhart was sentenced on January 10, 1986. On Count 3, "Escaping from an Institution and Facility in violation of 18 U.S.C. § 751(a)," the district court sentenced Barnhart to five years imprisonment. On Count 1, "Altering, Passing, Uttering, and Publishing Forged and Altered United States Postal Service Money Orders in violation of 18 U.S.C. § 500," Barnhart was placed on probation for a five year period to run consecutively to the sentence imposed on Count 3. Upon motion by the government, the district court dismissed Count 2.

Barnhart was paroled from federal custody on November 10, 1988, at which time he was imprisoned for two years by the Commonwealth of Pennsylvania pursuant to a state detainer. Upon expiration of his federal parole on January 9, 1991, Barnhart began to serve his five-year probation term. Among several express conditions of his probation, Barnhart was required to "report to the probation officer as directed." ¹ Within nine months, Barnhart violated that condition on September 30, 1991 by failing to report to his probation officer. Barnhart was sent a notice on October 3, 1991, instructing him to report to the probation officer on November 4, 1991. Barnhart failed to report on that date. On November 15, 1991, Barnhart was directed to report on November 26, 1991 and, again, Barnhart failed to appear. On none of these occasions did Barnhart communicate with his probation officer to explain his absence. On December 10, 1991, the Probation Office filed a petition to revoke Barnhart's probation, charging that Barnhart had violated the express condition of his probation requiring him to report to the probation officer as directed.

At the probation revocation hearing on March 13, 1992, Barnhart admitted to the three missed meetings in violation of the terms of his probation, but he presented to the court what he believed to be mitigating circumstances. Barnhart testified that the stress of employment difficulties had aggravated his drinking problem and had driven him to depression. As his life went "down hill," he testified, he was afraid to meet with his probation officer.

After hearing this testimony, the district court ordered the revocation of Barnhart's probation, stating, "The Court finds, and it has been admitted by the defendant probationer, that he is in violation of the terms of his probation by not reporting on the dates that he was instructed to report." The court declined to sentence Barnhart to a long-term alcoholic treatment program, sentencing him instead to five years imprisonment with a recommendation that he receive treatment for alcohol and drug abuse during the course of his incarceration.

Prior to the revocation hearing, the probation officer had provided the district court with copies of police reports in connection with the criminal charges pending against Barnhart. On November 21, 1991 and again on December 8, 1991, Barnhart's grandmother and mother lodged criminal complaints against him for the alleged theft of their television set, purses, and cash. On February 24, 1992, Pittsburgh police arrested Barnhart for allegedly robbing an automobile salesman at knifepoint after taking a test drive.

Although Barnhart and his counsel apparently were not aware that the court had been provided with these specific documents, they were aware that the court had been apprised of the pending charges. At the revocation hearing, Barnhart's counsel addressed the court specifically on that issue, stating "I believe Your Honor's aware that Mr. Barnhart is facing state charges." The court responded, "Yes, he is." After thus confirming that the court was cognizant of the pending charges, defense counsel did not pursue the matter further. The district court entered its final order revoking probation and sentencing Barnhart to five years imprisonment on March 13, 1992. Barnhart timely appealed that order to this court.

We have appellate jurisdiction over the district court's final order pursuant to 28 U.S.C. § 1291. Our standard of review for Barnhart's due process claim is plenary.

II.

Barnhart claims that the district court denied him due process of law by revoking his probation and sentencing him based on the criminal charges pending against him. Although revocation of probation, like revocation of parole, is not a stage of a criminal prosecution, it "does result in a loss of liberty," Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973), and is subject, therefore, to "minimum requirements of due process." Id.; see also Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985) (citing Scarpelli ). Those requirements include

"(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body ... and (f) a written statement by the factfinder as to evidence relied on and reasons for revoking [probation or] parole."

Scarpelli, 411 U.S. at 786, 93 S.Ct. at 1762 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)). See Black v. Romano, 471 U.S. at 612, 105 S.Ct. at 2258 (restating Scarpelli requirements).

These due process requirements have been incorporated into the Federal Rule of Criminal Procedure which governs revocation or modification of probation or supervised release. See Fed.R.Crim.P. 32.1 and advisory committee's note (discussing derivation of Rule 32.1 from Scarpelli and Morrissey ). Rule 32.1(2) establishes the procedure for revocation hearings consistent with Scarpelli and Romano:

[32.1](2) Revocation Hearing. The revocation hearing, unless waived by the person, shall be held within a reasonable time in the district court of jurisdiction. The person shall be given

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

(C) an opportunity to appear and 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(2).

Barnhart claims that, in violation of due process and the Federal Rules of Criminal Procedure, ² he was not notified that the three arrests which were made during his probation would be considered by the district court. He claims that he was deprived of an opportunity to address them at the probation revocation hearing.

Barnhart has identified nothing in the record, however, to indicate that the district court based its revocation and its sentencing decision on the pending charges. Indeed, the district judge expressly stated that he was revoking Barnhart's probation solely because of his failure to appear at the three scheduled meetings with his probation officer, and that he was sentencing Barnhart to five years imprisonment only because of his failure to "put his life together." Moreover, the record reveals not only that Barnhart and his counsel were, themselves, aware of the pending charges, but that they knew that the district court was aware of them as well. If Barnhart and his attorney had desired to address those charges at the revocation hearing, they had ample opportunity to do so.

The record discloses that the district court complied in all respects with the requirements of Scarpelli, Romano, and Fed.R.Crim.P. 32.1 in conducting Barnhart's revocation hearing. First, the probation officer's petition for revocation provided Barnhart with written notice of the alleged probation violations: the failure to report to the probation officer on three different dates. Second, the probation officer testified that Barnhart had missed the three meetings in question. In addition, Barnhart himself admitted to his failure to report on the three specified dates. Third, Barnhart was provided with an opportunity to be heard and to present evidence in his own behalf. He used that opportunity to present what he believed to be mitigating circumstances which caused him to miss his probation meetings. Fourth, Barnhart was granted an opportunity to question the probation officer, the only adverse witness presented against him, but declined to do so. Fifth, Barnhart was...