U.S. v. Dodson, 93-3985

• Decision Date: 06 June 1994
• Docket Number: No. 93-3985,93-3985
• Citation: 25 F.3d 385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven A. DODSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 385

25 F.3d 385

UNITED STATES of America, Plaintiff-Appellee, v. Steven A. DODSON, Defendant-Appellant.

No. 93-3985.

United States Court of Appeals Sixth Circuit.

Argued March 8, 1994.

Decided June 6, 1994.

Randall E. Yontz (argued and briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

Keith E. Golden (argued and briefed), Golden & Meizlish, Columbus, OH, for defendant-appellant.

Before: KENNEDY and MILBURN, Circuit Judges; and ALDRICH, District Judge. ^*

MILBURN, Circuit Judge, delivered the opinion of the court, in which ALDRICH, District Judge, joined. KENNEDY, Circuit Judge (pp. 391-392), delivered a separate dissenting opinion.

MILBURN, Circuit Judge.

Defendant Steven A. Dodson appeals the district court's order revoking his probation and sentencing him to six months' imprisonment. On appeal, the issues are (1) whether the district court violated defendant's due process rights in failing to allow defendant's attorney to question defendant during the revocation hearing, (2) whether the district court erred in failing to rule on defendant's motion to modify the terms of probation, and (3) whether the district court abused its discretion in revoking defendant's probation. For the reasons that follow, we vacate and remand.

I.

On October 15, 1992, the district court sentenced defendant for embezzlement in violation of 18 U.S.C. Sec. 656, imposing, among other things, a fine ¹ and also placing defendant on probation for a term of two years. As part of the conditions of probation, defendant was required, among other things, to submit a truthful and complete written report within the first five days of each month during the period of probation, to complete 200 hours of community service, and to reside for six months in the Ralph W. Alvis House, a community treatment center.

In July 1993, a probation violation report was filed in the district court by Patricia L. Del Vecchio, defendant's probation officer. In the report, Del Vecchio alleged a number of instances where defendant violated conditions of his probation. Specifically, Del Vecchio noted that defendant had failed to submit written monthly reports for February, March, April, and May 1993, that defendant had failed to perform 200 hours of community service, and that defendant had failed to report to the Alvis House. With respect to the latter violation, Del Vecchio stated that defendant had been given two notices to surrender to the Alvis House: one in April 1993 and one in June 1993.

A preliminary revocation hearing was subsequently held before a United States Magistrate Judge, wherein the magistrate judge concluded that probable cause existed to believe that defendant violated the probation condition requiring him to report to the Alvis House. ² The district court thereafter conducted a final revocation hearing on September 2, 1993. After hearing the statements of Del Vecchio surrounding the failure of defendant to timely submit the monthly reports and the failure of defendant to report to the Alvis House, and after hearing the explanations provided by defendant's retained counsel of why defendant failed to submit the reports on time and to appear at the Alvis House, the district court asked defendant whether he personally wished to offer a statement before the court made a decision. Before defendant responded, defendant's counsel interjected, stating:

Your Honor, with all due respect, I think his [defendant's] response is--what he had to say would be more appropriate in the line of testimony, something that he would say to the Court. And in that regard, with regards to those missing--those missing months of the reports, there was a misunderstanding as to whether he was supposed to get the form or go in and get the form. It was truly a misunderstanding there; and at this point, I would prefer to provide that in the way of testimony. There was--

J.A. 29 (emphasis added). In response, the district court stated:

Well, you may prefer that, but I asked the witness--I asked the Defendant for a statement. He is under Federal Probation to me, and I asked him for a statement. If you don't have anything to say, that's your answer to that. I am giving you an opportunity to give the Court an explanation. I don't need testimony. You know, he doesn't need to be sworn. I will hear what he has to say without that.

Id. (emphasis added). Thereafter, defendant, without the assistance of his retained counsel, explained that because of the travelling required by his job, he was unable to arrange a meeting with Del Vecchio in order to provide her the completed monthly reports. He also explained that he did not know whether he was to send the completed reports, or presumably, to deliver them in person. Moreover, in response to the district court's question regarding the reasons why he failed to report to the Alvis House, defendant responded:

At the time I got my notices, I wasn't in town, and I just--when I tried to get a hold of my Probation Officer, she wasn't in, or we couldn't--I mean, she would call me, but I couldn't catch her or when she--you know--when she was in a particular office and I was out on the road. I filled out each and every--all of the paperwork, but I just didn't know where to physically give it.

The community service hours, I filled those out, filled out my report every month. I signed it. I hadn't physically given to it someone. When I called in, they said that you need speak with your Probation Officer, let her receive your paperwork. I came down a couple of times. She hadn't seen her in a few months. So, I held onto the paperwork, thinking I will give it to her when I see her.

J.A. 31-32.

At the conclusion of this statement, the district court revoked defendant's probation and ordered that defendant be committed to the custody of the Bureau of Prisons for six months' imprisonment. This timely appeal followed. On September 29, 1993, we granted defendant's motion to stay execution of his sentence pending disposition of this appeal.

II.

Petitioner first argues that he was denied due process because the district court prohibited him from testifying at the final revocation hearing through direct examination. Petitioner insists that had the district court afforded him the right to testify in response to questions posed by his counsel, as opposed to simply being permitted to make a limited statement which was unaided by counsel, he would have been able to show that even though he may have violated his probation, he had mitigating circumstances which warranted against revoking probation. In response, the government argues that while due process requires that a defendant be permitted to be heard and present his case, due process does not require that the evidence presented by a defendant be made under oath and in response to an attorney's inquiries. Thus, the government argues that because defendant was permitted to address the charges and respond to the allegations of conduct violating the terms of probation, no due process violation occurred.

We agree with defendant that under the circumstances of this case, his inability to testify in response to questions posed by his attorney violated due process. The Fifth Amendment provides that no person shall be deprived of liberty without due process of law. Although revocation of probation is not part of a criminal prosecution, and thus the full panoply of due process protections accorded a defendant in such a proceeding do not apply to a revocation proceeding, the loss of freedom embodied in the revocation of probation constitutes a deprivation of a defendant's liberty. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); see also Minnesota v. Murphy, 465 U.S. 420, 435 n. 7, 104 S.Ct. 1136, 1146 n. 7, 79 L.Ed.2d 409 (1984). Consequently, a defendant's probation may not be revoked without first according the defendant due process. Bearden v. Georgia, 461 U.S. 660, 669, 103 S.Ct. 2064, 2071, 76 L.Ed.2d 221 (1983).

Where, as here, the sentencing authority is given discretion to determine whether violation of a condition is sufficient to revoke probation, see 18 U.S.C. Sec. 3565(a), due process requires that the probationer be afforded a hearing before the final decision on revocation is made. Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985). This final revocation hearing, which must lead to an ultimate consideration of whether the facts as ascertained warrant revocation, is intended to provide the probationer with the "opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972). In order to ensure a constitutionally sufficient opportunity to contest the allegations and provide evidence in mitigation, a defendant must also be afforded as a matter of due process the opportunity to be heard in person and to present witnesses and documentary evidence. See Gagnon, 411 U.S. at 782, 93 S.Ct. at 1760 (adopting the due process requirements for revocation of parole as set forth in Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604).

The ability of a defendant to present effectively his case by himself, however, necessarily depends on the complexity of the evidence. Thus, in a relatively simple case where the facts are undisputed, a defendant in most instances will be able to articulate the circumstances in his favor in the form of a statement to the court which would suggest that the probation violation does not warrant revocation. In contrast, where the facts surrounding the alleged violation are convoluted or in dispute, a defendant's opportunity to show that circumstances in mitigation weigh against revocation may be rendered meaningless. Indeed, the Supreme Court has said as much in Gagnon where it...