U.S. v. Lacey, 80-2052
| Decision Date | 19 June 1981 |
| Docket Number | No. 80-2052,80-2052 |
| Citation | 648 F.2d 441 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rick R. LACEY, Defendant-Appellant. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ernest Moulos, Wichita, Kan., for defendant-appellant.
James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
The defendant Lacey appeals from revocation of his probation. Because the findings upon which the revocation is based are inadequate to review Lacey's contentions, we remand for further proceedings.
On August 12, 1977, Lacey was placed on supervised probation for five years, after pleading guilty to an offense involving possession of marijuana with intent to distribute it. In 1980, primarily arising from an arrest on a drug offense in September, 1979, revocation proceedings were instituted against Lacey. Revocation was sought on the basis of three specific violations of probation-conditions:
1. That upon his arrest on September 19, 1979 for possession of illegal drugs, Lacey was found to be in possession of 48.82 grams of methamphetamine and 0.73 grams of marijuana. (It was noted that the state criminal charges for this violation had been dismissed on June 5, 1980.)
2. That upon his arrest, Lacey had in possession and displayed a fictitious and fraudulently altered driver's license, which conduct constituted a state misdemeanor.
3. That, according to investigative reports surrounding the September 1979 arrest, Lacey had travelled outside the district of his probation without proper authorization, in that he travelled to North Carolina where he transacted business under an assumed name.
Lacey denied the truth of all of these claimed violations. At the revocation hearing, in which Lacey was represented by counsel, two police officers and a state chemist testified. 1 Their testimony, which was not contradicted, was as follows:
(a) The first police officer testified that he had observed the defendant Lacey leaning over the front seat of a Volvo automobile and passing something to another man on the right side of the vehicle, who then walked to a Corvette parked six feet away and placed a red-covered object in the right side of the Corvette. Within five minutes, the officer walked over to the Corvette and saw a red baseball cap within the vehicle, within which was a plastic bag with a white substance. He was present when the second testifying officer (see below) made pictures of the cap and took it into his possession. When Lacey was asked for identification after his arrest, he referred the police officers to his identification papers in his pocket; when the officer retrieved the license there found, it was in the name of a Victor M. Wohrley. The driver's license so taken was introduced into evidence at the revocation hearing, with photocopy substituted for the original. 2
(b) The second police officer was a detective from the county sheriff's forensic unit. He was called out to the Volvo dealership, where he was shown the Corvette. He photographed the car and the open red baseball cap on its front seat, in which there was a clear plastic bag containing a white substance. (The latter photograph was introduced in evidence at the revocation hearing.) He placed the bag in a sheriff's evidence container, sealed under his name, and he identified its subsequent chain of custody. He also identified the evidence container and the clear plastic bag and contents at the revocation hearing.
(c) The state forensic chemist identified the evidence container and the plastic bag, obtained by her from the second testifying police officer, as containing the substance she tested. The substance was methamphetamine, an illegal drug.
None of the above evidence was contradicted.
In summary: As to Charge 1, from first-hand eyewitness testimony, the district court could reasonably find that the defendant Lacey was in possession of and handed over to another person a package containing (as properly connective subsequent testimony showed) methamphetamine, as charged. As to the remainder of Charge 1, there was no evidence introduced that Lacey also possessed marijuana (although from explanatory comment apparently some had been found in the ashtray of the Volvo).
As to Charge 2, from first-hand testimony the district court could properly find that, at the time of his arrest, Lacey had in his possession and displayed as his own identification a driver's license in the name of another. Although there was no evidence that the license was fictitious or fraudulently altered as alleged, this conduct constituted a violation of an applicable state misdemeanor statute that it was unlawful for any person "(t)o display or to report as one's own any driver's license not issued to such person." Kansas State Acts, Title 8-260(3) (1975).
As to Charge 3, the government introduced no evidence whatsoever that Lacey had left the district of his probation without authorization, as charged. 3
The defendant Lacey raises three contentions on appeal. Our difficulty in reviewing the first two contentions (1. alleged insufficiency of the evidence to support probation revocation; 2. improper admission and reliance upon hearsay and in denying confrontation) stems directly from the third contention: "The district court erred in not making findings as to the evidence relied upon and reasons for revoking probation."
As our summary of the evidence indicates, the district court could properly have found the first charge proved unlawful conduct, i. e., the possession of illegal drugs and could, in our opinion, within its discretion have revoked probation on that ground alone. Although the second charge is proved as consisting of less culpable conduct than charged, and the third charge is not proved and is at most hinted at in the hearsay summary of the probation officer (see note 1), the district judge would not abuse his discretion if, on the first ground alone, he had revoked probation and also (despite otherwise exemplary conduct for three years of probation) denied a reduction of imprisonment for the five-year sentence originally imposed.
Our difficulty here is that, without the district court's findings as to the reason for revocation of probation, we would ordinarily be uncertain as to whether, for instance, the district court additionally based its actions upon a hearsay report of other illegal conduct denied and not proved by the evidence to have occurred. 4
The reasons given for the revocation of probation...
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