U.S. v. Brown, 81-1011
| Decision Date | 25 September 1981 |
| Docket Number | No. 81-1011,81-1011 |
| Citation | 656 F.2d 1204 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Otis BROWN, Defendant-Appellant. Summary Calender. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
James F. Gaulding, Dallas, Tex., Court-Appointed, for defendant-appellant.
Paul E. Coggins, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.
Defendant-Appellant Otis Brown appeals from the revocation of a probationary sentence imposed when he pleaded guilty to a one count information charging him with possession of a United States Treasury check stolen from the mail. He alleges that the district court abused its discretion in its finding that he had violated the conditions of his probation and that the conduct of the hearing was prejudicial and fundamentally unfair to him. Because we find no merit in either of Brown's asserted grounds, we affirm the district court's revocation of probation.
On August 11, 1978, Brown pleaded guilty to a one-count information charging him with possession of a United States Treasury check stolen from the mail in violation of 18 U.S.C. § 1708 (1976). Judge Sarah T. Hughes imposed as punishment a $500 fine and four years probation. 1
On April 4, 1980, U.S. Probation Officer Leonard McGowan filed a petition for a probation violator's warrant alleging as grounds for the warrant that subsequent to his being placed on probation:
(1) Brown had been convicted of a state theft charge on March 12, 1980 (a violation of probation condition No. 1);
(2) Brown had been arrested on a charge of retaliation on March 19, 1980 (a violation of probation condition No. 1);
(3) Brown had failed to immediately notify the probation officer of his March 19, 1980 arrest (a violation of probation condition No. 1); and (4) Brown had failed to secure and maintain gainful employment (a violation of probation condition No. 3).
The warrant was executed on April 8, 1980.
Less than two weeks after the execution of the warrant and prior to any hearing on possible revocation of probation, Officer McGowan filed and the district court granted a second petition to withdraw the warrant. McGowan stated that it was his opinion that Brown "will now respond favorably to the conditions of probation and will sincerely attempt to avoid violations of the law." (Record on Appeal 7).
On November 26, 1980, McGowan filed a second petition for a probation violator's warrant, reiterating the same four grounds he had alleged in the first withdrawn petition and adding a fifth ground: that Brown had been convicted by a Texas state court on October 10, 1980 for possession of a Preludin, a controlled substance. Pursuant to the issuance of the warrant, Brown was arrested on December 8, 1980. At the time of his arrest he had in his coat pocket six rounds of .22 caliber ammunition. A supplemental petition was filed by McGowan on December 11, 1980, adding possession of ammunition as a sixth ground of probation violation.
A hearing on revocation of Brown's probation was held on December 16, 1980, with District Court Judge Barefoot Sanders presiding. Brown was represented by court appointed counsel at the hearing.
At the conclusion of testimony by Officer McGowan and Brown, Judge Sanders revoked Brown's probation, sentencing him to two years imprisonment. Of the six allegations of probation violation, the court cited four as bases for the revocation:
(1) conviction of a violation of Controlled Substance Act (possession of Preludin);
(2) failure to notify probation officer of arrest on March 19, 1980;
(3) possession of six live rounds of hollow point .22 caliber ammunition which had been received in interstate commerce; and
(4) failure to secure and maintain gainful employment.
The other two grounds alleged by McGowan were not cited by the court as reasons for the revocation. 2
On appeal, Brown posits two arguments to support reversal of the trial court's judgment. The first is that the evidence relied upon by the court was insufficient to support revocation. Second, Brown maintains that he was denied a fair hearing and was unfairly prejudiced by inclusion of the ultimately withdrawn theft conviction in the evidence presented to the district court, inclusion of the charges in the second petition which were the basis for the first petition, and hearing of the revocation petition by Judge Sanders rather than Judge Hughes, the original convicting and sentencing judge. We address each of these arguments in turn.
Brown attacks the sufficiency of each of the four grounds stated by the district court in its probation revocation. He claims that he was not guilty of the possession conviction by virtue of his possession of a prescription for the controlled substance Preludin; that the judgment of conviction is defective because of errors on its face; that he had attempted to notify Officer McGowan of his March 19, 1980 arrest; that he received no notice of the allegation of possession of ammunition added by Officer McGowan on December 11, 1980 subsequent to his arrest on December 8, 1980; that his possession of the ammunition was not a crime; and that there was sufficient evidence adduced at the hearing by testimony of Brown and by statements of Brown's counsel of his own investigation of Brown's employment record to refute any allegation of failure to secure and maintain employment.
To secure reversal of the revocation order, Brown must present to this court clear evidence that the district court abused its discretion in the probation revocation. Burns v. United States, 287 U.S. 216, 221, 53 S.Ct. 154, 156, 77 L.Ed. 266 (1932); United States v. Feinberg, 631 F.2d 388 (5th Cir. 1980). This Brown has failed to do.
Brown's conviction for possession of a controlled substance is, of itself, an adequate ground upon which the district court could revoke probation. "Conviction of a crime ... is compelling proof of the violation of a term of probation." United States v. Feinberg, supra at 391. United States v. Garza, 484 F.2d 88 (5th Cir. 1973).
Furthermore, Brown's state conviction cannot be attacked collaterally in the revocation proceeding by his claims of innocence or of the probation officer's knowledge of a prescription for the substance. United States v. Feinberg, supra at 391; United States v. Langley, 438 F.2d 91, 92 (5th Cir. 1970). Cf. Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1979) ()
Brown's further assertion that errors on the face of the judgment of conviction 3 render it worthless as evidence is frivilous. The arrest report stating that Brown was found in possession of a controlled substance, the information charging Brown with possession of a controlled substance, and Brown's own testimony at the revocation hearing admitting the conviction clearly demonstrate that Brown was convicted of possession of a controlled substance. Hearing Transcript 35-36.
Because the conviction for possession of a controlled substance serves as an adequate basis for the discretionary action of the district court, it is unnecessary for us to decide the claims of error advanced in regard to the other three grounds for revocation. Where a conviction is sufficient to justify revocation, possible error in the consideration of other allegations is harmless and need not be addressed. United States v. Montanez, 554 F.2d 696, 697 (5th Cir. 1977).
Brown's argument that there was an abuse of discretion by the district court because of insufficiency of evidence of probation violations is rejected.
It is axiomatic that probationers are entitled to due process guarantees of the Fourteenth Amendment, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and that probation hearings must comport with principles of fundamental fairness. See Morrissey v. Brewer, supra, 408 U.S. at 484, 92 S.Ct. at 2601. A review of Brown's allegations demonstrates no unfairness in his revocation hearing.
Brown's contention that...
To continue reading
Request your trial
-
United States v. Vandergrift
...violations, the district court did not abuse its discretion in revoking his supervised release. See United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. Unit A Sept.1981) (per curiam) (holding that where the district court's decision to revoke a defendant's supervised release is supported ......
-
U.S. v. Shampang, 92-30047
...recent ones because collectively they show "that the further attempt at rehabilitation had not succeeded." United States v. Brown, 656 F.2d 1204, 1208 (5th Cir. Unit A Sept.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982); 3 LaFave and Israel, Criminal Procedure § 2......
-
United States v. Neder, No. 07-12210 Non-Argument Calendar (11th Cir. 3/11/2008), 07-12210 Non-Argument Calendar.
...of a sentence. Thus, we need not address the district court's jurisdiction over Charges 5, 6 and 7. See United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. Sept. 1981) (providing that an appellate court need not additional claims of error when the district court had an adequate basis for ......
-
U.S. v. Turner, 84-1142
...of error as to other grounds that had been advanced as a cause for revocation. Dozier, supra, 707 F.2d at 865; United States v. Brown, 656 F.2d 1204, 1207 (5th Cir.1981), cert. denied, 404 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 We affirm the revocation of probation. II. Nevertheless, alt......
-
Sentencing
...conditions was no defense when defendant did not challenge constitutionality of conditions in earlier proceedings); U.S. v. Brown, 656 F.2d 1204, 1207 (5th Cir. 1981) (per curiam) (revocation proper because probationer cannot challenge initial conviction in probation revocation hearing); U.......