U.S. v. Brigham
| Decision Date | 20 May 2009 |
| Docket Number | No. 08-10315.,08-10315. |
| Citation | 569 F.3d 220 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Russell BRIGHAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven M. Sucsy, Asst. U.S. Atty. (argued), Lubbock, TX, for U.S.
Stephen Lyle Hamilton (argued), (Court-Appointed), Boatwright & Hamilton, Lubbock, TX, for Brigham.
Appeal from the United States District Court for the Northern District of Texas.
Before SMITH and SOUTHWICK, Circuit Judges, and ENGELHARDT, District Judge.*
Upon release from prison in 2007, Defendant-Appellant David Russell Brigham ("Brigham") commenced a term of supervised release. On March 7, 2008, the United States Probation Office filed a petition alleging his violation of various supervised release conditions. On March 24, 2008, following Brigham's subsequent arrest and initial appearance, the magistrate judge found that no probable cause existed to believe that a violation warranting revocation had occurred. Accordingly, she ordered that the revocation proceeding be dismissed. Anticipating review of the ruling by the district judge, the magistrate judge alternatively concluded that Brigham should be released from custody pending further proceedings. Upon the Government's motion, however, the district judge stayed both orders, pending his review. Four days later, on March 28, 2008, the district judge conducted a final revocation hearing and, finding violations of two special conditions had occurred, revoked Brigham's supervised release.
On appeal, Brigham challenges the district judge's authority to review the magistrate judge's dismissal order and to stay both the dismissal and release orders pending review. In addition, Brigham argues that the district court improperly allowed the probation officer to require that he submit to polygraph examinations, and then considered the results in violation of Brigham's right against self-incrimination. Finally, Brigham contends that the two special conditions found to have been violated were improper under 18 U.S.C. § 3583 and/or unconstitutionally vague and overbroad. We reject all of Brigham's challenges and affirm the rulings of the district court as rendered by the district judge.
In 2003, Defendant-Appellant Brigham was convicted in the United States District Court for the Northern District of Texas of one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). On December 19, 2003, the district judge sentenced him to imprisonment for a term of 51 months and supervised release for 3 years. Brigham's term of supervised release commenced on September 20, 2007. On March 7, 2008, the United States Probation Office filed a petition alleging that Brigham had violated various supervised release conditions. In response, the district judge ordered that a warrant for his arrest be issued. Following his arrest, Brigham made an initial appearance, on March 10, 2008, before United States Magistrate Judge Philip R. Lane in the Abilene, Texas division of the Northern District of Texas. Thereafter, he was remanded to the custody of the United States Marshal. The Government then filed a Motion to Revoke Supervised Release on March 13, 2008.
On March 24, 2008, at a preliminary revocation and detention hearing in Lubbock, Texas, United States Magistrate Judge Nancy M. Koenig found that no probable cause existed to believe that a violation warranting revocation of supervised release had occurred. Thus, in accordance with Federal Rule of Criminal Procedure 32.1(b)(1)(C), she dismissed the revocation proceeding.1 Anticipating review of her ruling by the district judge, however, the magistrate judge additionally found that, if probable cause did exist, Brigham did not pose a risk of flight or danger to the community and, thus, should be released pending any further revocation proceedings, including appeal of the probable cause ruling. That same day, the Government filed a "Motion for Stay of Order Denying Government's Motion to Detain, and Appealing Order of Finding of No Probable Cause." The district judge granted the motion and stayed both the dismissal for lack of probable cause ruling and the release ruling. Thereafter, the district judge denied Brigham's request that the revocation proceeding be dismissed, as well as a subsequent request for reconsideration of that denial.
On March 28, 2008, four days after the preliminary hearing, the district judge conducted a final revocation hearing and revoked Brigham's supervised release based on violations of Special Condition Nos. 3 and 7. Those conditions state:
Special Condition No. 3: The defendant shall not possess nor have under his control, any pornographic, sexually oriented or sexually stimulating materials, including visual, auditory, telephonic, or electronic media, computer programs or services. The defendant shall not patronize places where such material or entertainment is available. The defendant shall not utilize any sex-related telephone numbers.
Special Condition No. 7: The defendant shall not possess or utilize a computer or internet connection device during the term of supervised release.
The district court found that Brigham had violated Special Condition No. 3 by "possess[ing] a personal video of himself and a former girlfriend having sexual intercourse." He violated Special Condition No. 7 by "utiliz[ing] a computer and [viewing] the social networking Internet Web site MySpace.com."2 The district judge sentenced Brigham to 18 months' imprisonment followed by an additional term of 18 months' supervised release.
On appeal, Brigham challenges: (1) the district court's authority to review the magistrate judge's order of dismissal based on her "no probable cause" determination; (2) the district court's stay of Brigham's release from custody pending review of the magistrate judge's "no probable cause" and "release" determinations; (3) the propriety of the district court's allowing the probation officer to impose "mandatory" polygraph examinations upon Brigham and then using the results thereof in violation of Brigham's right against self-incrimination; and (4) whether the special conditions involved were improper under 18 U.S.C. § 3583 and/or unconstitutionally vague and overbroad.
When probable cause to believe that a supervised release condition has been violated is absent, Federal Rule of Criminal Procedure 32.1 directs "the judge" to "dismiss the proceeding." See FED. R.CRIM. P. 32.1(b)(1)(C). Citing this directive, Brigham contends that the district judge had no jurisdiction to review the magistrate judge's order of dismissal, or to stay that ruling pending review. In other words, though Brigham acknowledges that the Government could re-file the revocation proceeding following such a dismissal, he contends that the statute prohibits any sort of review by the district court prior to the release from custody ordered by the magistrate judge.
These challenges rest on legal and constitutional grounds. Accordingly, the Court considers them de novo. United States v. Long, 996 F.2d 731, 732 (5th Cir.1993). Neither party has cited controlling jurisprudence directed to this specific issue. Nevertheless, under the guiding authorities that are available, and for essentially the reasons stated by the Government in its brief, we find no error by the district court.
For purposes of this dispute, Federal Rule of Criminal Procedure 32.1 provides, in pertinent part:
Rule 32.1. Revoking or Modifying Probation or Supervised Release
(1) Person In Custody. A person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge.
* * *
(2) Upon a Summons. When a person appears in response to a summons for violating probation or supervised release, a magistrate judge must proceed under this rule.
(3) Advice. The judge must inform the person of the following:
(A) the alleged violation of probation or supervised release;
(B) the person's right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and
(C) the person's right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).
(4) Appearance in the District With Jurisdiction. If the person is arrested or appears in the district that has jurisdiction to conduct a revocation hearing—either originally or by transfer of jurisdiction—the court must proceed under Rule 32.1(b)-(e).
(5) Appearance in a District Lacking Jurisdiction. If the person is arrested or appears in a district that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must:
(A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing under Rule 32.1(b) and either:
(i) transfer the person to the district that has jurisdiction, if the judge finds probable cause to believe that a violation occurred; or
(ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds no probable cause to believe that a violation occurred; or
(B) if the alleged violation did not occur in the district of arrest, transfer the person to the district that has jurisdiction if:
* * *
(6) Release or Detention. The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person.
(1) Preliminary Hearing.
(A) In General. If a person is in custody for violating a condition of probation or supervised release, a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a...
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