U.S. v. Barth, 828

• Decision Date: 27 March 1990
• Docket Number: No. 828,D,828
• Citation: 899 F.2d 199
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie R. BARTH, Defendant-Appellant. ocket 89-1534.
• Court: U.S. Court of Appeals — Second Circuit

Page 199

899 F.2d 199

UNITED STATES of America, Plaintiff-Appellee, v. Leslie R. BARTH, Defendant-Appellant.

No. 828, Docket 89-1534.

United States Court of Appeals, Second Circuit.

Argued Feb. 27, 1990.

Decided March 27, 1990.

Herald Price Fahringer, New York City (Lipsitz, Green, Fahringer, Roll, Schuller & James, Diarmuid White, of counsel), for defendant-appellant.

Calvin B. Kurimai, Bridgeport, Conn., Asst. U.S. Atty., D. Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., of counsel), for plaintiff-appellee.

Before OAKES, Chief Judge, and FEINBERG and WALKER, Circuit Judges.

FEINBERG, Circuit Judge:

Defendant Leslie R. Barth appeals from an order of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, J., revoking appellant's probation, and sentencing appellant to one year in jail. Judge Daly found that appellant had knowingly and willfully violated a condition of his probation, by traveling to Europe in April 1989. We affirm in part and remand in part.

Background

In 1986, appellant pled guilty to a one-count information, charging willful failure to file a tax return in violation of 26 U.S.C. Sec. 7203. Judge Daly sentenced appellant to four years of probation and a $10,000 fine; in addition, as special conditions of probation, the judge required appellant to file lawful tax returns and to perform 1000 hours of community service.

In July 1989, the Probation Department filed a Petition for Probation Action with the district court. The Probation Department alleged that appellant had misstated his income on a number of tax returns. It thus charged appellant with violating Standard Condition One of his probation, which required appellant not to break any laws, as well as one of the two special conditions of probation referred to above.

A hearing was held before Judge Daly in August 1989. By the time of the hearing, the probation officer had learned that appellant had also traveled outside of the United States in apparent violation of Standard Condition Four of his probation, which provided that a probationer "shall not leave the judicial district without permission of the probation officer." At the conclusion of the hearing, the judge found that there was probable cause to hold appellant, and remanded him to the custody of the United States Marshal pending a bail hearing. That hearing was subsequently held before Judge Eginton, who found that there was clear and convincing evidence that appellant would not flee; the judge released appellant on $100,000 bail.

In September 1989, Judge Daly held a further hearing on appellant's probation violation. The focus of the hearing was not appellant's alleged failure to file lawful tax returns, but only the travel abroad. ¹ At the close of the hearing, Judge Daly concluded that appellant had violated his probation finding by a preponderance of the evidence that by traveling to Europe in April 1989 appellant had knowingly and willfully violated Standard Condition Four of his probation. As evidence of willfulness and intent, the judge pointed to additional overseas trips that appellant had made, as well as appellant's prior failure to turn over his passport when ordered to by the judge. The judge also noted appellant's "somewhat cavalier attitude," finding that "in most material respects ... [appellant's] evidence is not credible."

In October 1989, Judge Daly held a sentencing hearing. At the conclusion of this hearing, the judge revoked appellant's probation, and sentenced appellant to one year in jail. The judge also denied appellant's motion for bail pending appeal, and this appeal followed. Thereafter, a panel of this court granted bail pending appeal.

Discussion

Appellant attacks the revocation of his probation on three grounds. First, he argues that his due process rights under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and its progeny, see, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), were violated because Judge Daly failed to give specific written reasons for revoking his probation, and failed to consider whether appellant's violation was sufficiently serious to warrant revocation of probation. Second, appellant asserts that there was insufficient evidence in the record to support the revocation of probation, which was based on a single blameless incident. And third, appellant contends that he has been denied due process because he never received written notice of the specific condition of his probation--i.e., no travel outside the United States--whose violation led to his probation revocation.

With regard to the first prong of appellant's due process argument, under Morrissey and Gagnon due process entitles a probationer, among other things, to "a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation." Black, 471 U.S. at 612, 105 S.Ct. at 2258 (citing Gagnon, 411 U.S. at 786, 93 S.Ct. at 1761); see also Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. After the revocation and sentencing hearings, Judge Daly announced his findings in open court, which included the evidence he relied upon and the reasons for the revocation of probation, and they were ultimately included in the written transcript. Thus, appellant's claim that his due process rights were violated because Judge Daly failed to give specific written reasons for revoking his probation boils down to the question whether transcribed oral findings can satisfy the "written statement" requirement of Morrissey.

We can find no opinion of our Court deciding this issue. Appellee urges us to follow the Seventh and Tenth Circuits in holding that transcribed oral findings can indeed satisfy the written statement requirement of Morrissey, citing United States v. Yancey, 827 F.2d 83, 88-89 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 437 (1988), and Morishita v. Morris, 702 F.2d 207, 209-10 (10th Cir.1983). Appellee acknowledges, however, that there are two circuit court decisions pointing the other way. See United States v. Smith, 767 F.2d 521, 524 (8th Cir.1985); United States v. Lacey, 648 F.2d 441, 445 (5th Cir. Unit A 1981). In both, it should be noted that the statements of the district judge in open court, which were ultimately transcribed, were not sufficient to allow meaningful review.

We see no reason why transcribed oral findings cannot satisfy the written statement requirement of Morrissey, at least where, as here, we possess a record that is sufficiently complete to allow the parties and us to determine "the evidence relied on and the reasons for revoking probation." Black, 471 U.S. at 612, 105 S.Ct. at 2258. "The basis for requiring a written statement of facts is to ensure accurate fact finding and to provide 'an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence.' " Yancey, 827 F.2d at 89 (quoting Black, 471 U.S. at 613-14, 105 S.Ct. at 2258-59). We agree with the Seventh Circuit that "these goals are satisfied when the oral findings in the transcript enable a reviewing court to determine the basis of the judge's decision to revoke probation." Id.; see also Morishita, 702 F.2d at 210. Of course, we might rule differently were we faced with "general conclusory reasons by the district court for revoking probation," Lacey, 648 F.2d at 445, or with a record from which we were "unable to determine the basis of the district court's decision to revoke probation." Smith, 767 F.2d at 524. But absent such situations, to demand that a district court turn its transcribed oral findings into a written order seems to us unduly formalistic. Cf. Black, 471 U.S. at 611, 105 S.Ct. at 2257 (previous cases have sought to accommodate, while avoiding the imposition of rigid requirements, the probationer's interest in retaining liberty and the state's interest in preserving its discretion and assuring the accuracy of probation proceedings).

The second aspect of appellant's due process argument--that Judge Daly failed to consider whether the violation...