U.S.A. v. Curtis
| Decision Date | 14 March 2000 |
| Docket Number | No. 98-6680,98-6680 |
| Citation | 237 F.3d 598 |
| Parties | (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Richard Perry Curtis,Defendant-Appellant. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 95-20020, Jon Phipps McCalla, District Judge.
Michael J. Stengel, Memphis, Tennessee, Richard Perry Curtis, Forrest City, AR, for Appellant.
Jennifer Lawrence Webber, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
Before: JONES, BATCHELDER, and CLAY, Circuit Judges.
JONES, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, J. (pp. 605-07), delivered a separate dissenting opinion.
Defendant-Appellant Richard Perry Curtis ("Curtis") appeals from a district court order revoking his supervised release. Although we find most of Curtis's arguments meritless, we REVERSE andREMAND for the district court to use the proper standard in reviewing the magistrate court's probable cause determination and to give Curtis the opportunity to allocute prior to sentencing.
On January 26, 1995, a federal grand jury sitting in the Western District of Tennessee indicted Curtis for three counts of access device fraud in violation of 18 U.S.C. § 1029. The indictment stemmed from allegations that on three occasions, Curtis attempted to charge over $1,000 on credit cards owned by others. Curtis pleaded guilty to the indictment and, on August 28, 1995, the district court sentenced him to thirty months' imprisonment followed by a three-year period of supervised release. The court also ordered Curtis to pay restitution of no less than fifteen percent of his income to the three credit card companies that he had defrauded. Curtis did not appeal the district court's judgment.
On December 26, 1997, Curtis was released from custody and began serving his supervised release. A number of conditions accompanied Curtis's supervised release, including that he 1) not commit another federal, state, or local crime; 2) pay court-ordered restitution in accordance with the court-ordered payment schedule; and 3) comply with standard supervised release conditions, including not leaving the judicial district without permission of the court or probation office, and answering truthfully all inquiries by the probation officer. J.A. at 28-29.
On May 1, 1998, the Germantown Police Department arrested Curtis and charged him with eighty-three counts of promoting prostitution. On June 23, 1998, a federal grand jury indicted Curtis with fifteen counts of money laundering, racketeering, and the use of facilities in interstate commerce to promote prostitution. The state charges were thereafter dismissed in lieu of the pending federal charges. Following these charges, the district court signed a Probation and Supervised Release petition ordering a hearing to determine whether it should revoke Curtis's supervised release. The petition alleged that Curtis violated all four conditions enumerated above. J.A. at 40-41.
The first alleged violation (alleged violation 1) was based upon three instances when Curtis allegedly violated a federal, state, or local law: (1) Curtis's May 1, 1998 arrest and eighty-three count state indictment for promoting prostitution; (2)the fifteen-count federal indictment filed on June 23, 1998; and (3) false statements provided by Curtis to the probation office on his monthly supervision reports filed from December 1997 through March 1998, in violation of 18 U.S.C. § 1001. Second, the petition alleged that Curtis was untruthful when he responded to the probation office's inquiries regarding his living expenses (alleged violation 2). Third, the petition alleged that Curtis failed to submit restitution payments in the amount of fifteen percent of his gross income, and therefore violated the restitution condition of his supervised release (alleged violation 3). Finally, the petition alleged that Curtis left the judicial district without obtaining proper permission because on or about April 8, 1998 and April 22, 1998, he traveled to Robinsonville, Mississippi and Nashville, Tennessee, respectively, without the permission of his probation officer (alleged violation 4).
The magistrate court presided over a hearing on these alleged violations and found probable cause that Curtis had violated three of the four conditions enumerated above. Regarding alleged violation 1, the court noted three instances establishing probable cause that Curtis violated federal or state law: the 83-count state indictment for promoting prostitution; the 15-count federal indictment; and Curtis's violation of 18 U.S.C. § 1001 by making false statements as to the nature of his employment. Concerning alleged violation 3, the court found that there was probable cause that Curtis had violated the court-ordered restitution program because Curtis did not make restitution payments of $150 for January and March 1998--when he had represented to the parole office that he had earned $1,000 in each month. Finally, the court found probable cause that Curtis had left the judicial district without the permission of his parole officer. The court thus ordered Curtis to be held for a final revocation hearing before the district court. See J.A. at 50-51.
At the same time, the magistrate court found that several of the petition's allegations were not supported by probable cause. Regarding the first alleged violation, the court found that the prosecution did not establish probable cause that Curtis provide false statements regarding his monthly income in violation of 18 U.S.C. § 1001. Moreover, the court found that alleged violation 2--that Curtis failed to answer truthfully all inquiries by the probation officer regarding living expenses--was unsupported by probable cause in its entirety. The United States filed a motion appealing the magistrate court's findings of insufficient evidence on these two issues.
After a hearing, the district court entered an order reinstating the allegations that the magistrate court had dismissed. The United States then filed an amended petition which alleged that the sole basis of alleged violation 1 was that Curtis provided false statements regarding the nature of his employment and monthly income in violation of 18 U.S.C. §1001. J.A. at 94-95. The other alleged violations remained unchanged.
The district court then held a final revocation hearing. The United States presented the testimony of parole officer Marnie Klyman and Detective Floyd Covey, Jr., who relayed in detail Curtis's activities while on supervised release as well as their conclusions that he had clearly violated the conditions of his release. 1 After hearing this testimony, the district court found that Curtis violated all four of the conditions of his supervised release alleged by the United States. The court revoked Curtis's supervised release and sentenced him to a term of imprisonment of twenty-four months. J.A. at 23. Curtis timely appealed this judgment.
Curtis advances six claims of error regarding the district court's finding that he violated the conditions of his supervised release. Three of these arguments are brought by Curtis's counsel and three are raised pro se in a supplemental brief filed by Curtis. First, Curtis disputes the standard of review utilized by the district court in reviewing the magistrate court's probable cause findings; while the district court should have reviewed those findings under a "clearly erroneous or contrary to the law" standard, Curtis contends that the court applied only de novo review. Second, Curtis argues that the evidence was insufficient to support the district court's revocation of Curtis's supervised release and that the district court exhibited bias toward Curtis. Third, Curtis argues that it was improper for Curtis to be sentenced by the district court without Curtis first being given an opportunity to allocute.
Curtis, pro se, raises three additional issues. First, he argues that he could not have violated 18 U.S.C. § 1001 because his alleged false statements were made to a member of the judicial branch of government. He also argues that the district court's sentencing proceeding violated the rules of criminal procedure because the district court did not specify the statute under which Curtis was being sentenced. Finally, Curtis argues that the district court erred by ruling that Curtis should have reported money received for his work at a half-way house as income to his probation officer.
We find that a remand is necessary for two reasons articulated by Curtis: the district court used the incorrect standard of review in reviewing the magistrate court's probable cause findings, and failed to provide Curtis with the opportunity to allocute. We find Curtis's other arguments meritless.
Curtis argues that the district court used the wrong standard of review in reinstating the allegations dismissed by the magistrate court. According to Curtis, the court erred because it did not review the magistrate court's finding that those allegations lacked probable cause under the clearly erroneous standard, the standard which Curtis maintains is required by 28 U.S.C. § 636(b). The court reviews a question of law de novo. See United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir. 1994). In doing so, we agree with Curtis that the district court was required to use the clearly erroneous standard. Because there is considerable ambiguity in the record as to whether the court did so, a remand is necessary.
Congress promulgated 28 U.S.C. § 636 to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates. See Gomez v. United States, 490 U.S. 858, 869-70 (1989) (). Section 636(b)...
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