U.S. v. Lowenstein

• Decision Date: 25 February 1997
• Docket Number: 96-1956,Nos. 96-1505,s. 96-1505
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 80

108 F.3d 80

UNITED STATES of America, Plaintiff-Appellee, v. Leonard LOWENSTEIN, Defendant-Appellant.

Nos. 96-1505, 96-1956.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 3, 1997.

Decided Feb. 25, 1997.

Patricia G. Blake (argued and briefed) and Rafael M. Gonzalez, Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

David C. Tholen (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Defendant-Appellant.

Before: KENNEDY, NELSON, and GODBOLD ^*, Circuit Judges.

KENNEDY, Circuit Judge.

In these consolidated appeals, defendant appeals the District Court's (1) modification of the terms of his supervised release, and (2) subsequent revocation of his supervised release. Defendant argues that the District Court could not modify the terms of his supervised release without first finding that he had violated one of those terms. Defendant further argues that the evidence does not support either the violation finding upon which the modification is based, or the violation finding upon which the subsequent revocation is based. For the following reasons, we AFFIRM the modification and subsequent revocation of defendant's supervised release.

From March through October, 1991, defendant telephoned death threats to a state assistant attorney general who had been attempting to collect inheritance taxes on the estate of the father of defendant. Based upon this conduct, a jury convicted defendant on June 10, 1992 of one count of transmitting a threatening communication, in violation of 18 U.S.C. § 875(c). The District Court sentenced defendant to forty-eight months of incarceration and a three-year term of supervised release. Defendant unsuccessfully appealed his conviction and sentence. See United States v. Lowenstein, 1 F.3d 452 (6th Cir.1993).

On April 28, 1995, defendant began to serve his term of supervised release. On January 15, 1996, the United States Department of Probation ("Probation Department") granted defendant permission to travel to Florida between January 20, 1996 and January 28, 1996. On January 18, 1996, however the Probation Department petitioned the District Court to issue a summons; the petition alleged that defendant had violated the terms of his supervised release on August 10, 1995 by leaving the judicial district without permission and travelling to Miami, Florida. The District Court issued the requested summons on February 20, 1996.

The District Court held a violation hearing on March 27, 1996. Through counsel, defendant filed a motion to dismiss the petition to hold him in violation, arguing that the government's delay in bringing the petition and its grant of permission to defendant to travel to Florida in January, 1996 estopped it from bringing the violation charge. Defendant neither admitted nor denied in his motion that he travelled to Florida in August, 1995.

At the violation hearing, counsel for defendant reasserted the estoppel argument, and the government and the Probation Officer argued that defendant had violated the terms of his supervised release by leaving the judicial district without permission in August, 1995. The District Court stated that it was much less disturbed by the allegation that defendant had travelled without permission than by a letter which it had received from the Probation Department and which defendant had reviewed. This letter described threatening phone calls made by defendant in November, 1995 to the assistant attorney general involved in the earlier conviction and a state court judge.

The District Court denied the motion to dismiss and found that defendant in fact had violated the terms of his supervised release by leaving the judicial district without permission. It did not state on what evidence it relied. Rather than revoking defendant's supervised release, however, the District Court modified its terms by prohibiting defendant from making "harassing or otherwise inappropriate contact with, or telephone calls to, any judge, attorney, or other person." Defendant thereafter filed a timely notice of appeal of the modification.

On June 27, 1996, the Probation Department petitioned the District Court to issue another summons, alleging that defendant had violated the amended term of his supervised release on May 9, 1995 by placing a harassing phone call to Jill Daly, an attorney for the Oakland County Probate Court.

A hearing on the summons was held on July 15, 1996. Because Daly, the witness to the harassing call, was not present, the hearing was rescheduled to July 17, 1996.

At the July 17, 1996 hearing, Daly testified that she had become acquainted with defendant when she had worked as an attorney in the Probate Estates Division of Oakland County Probate Court. Daly confirmed that defendant had called her on May 9, 1996 and that she had transcribed their conversation. The District Court read into the record her transcription, which in part stated the following:

[Defendant] claims his daughter took his money while he was in prison and that she will pay for that. He further says several other people will pay. He says this is not a threat, this is a promise. Included in his threat list are, of course, D____K______, that low life s__-of-a-b____ tax collecting piece of s___, [state court judges] F.X. O'Brien [and] Hilda Gage, [Magistrate Judge] Paul Komives and [District Court Judge] Horace Gilmore, all with varying degrees of obscenities. He had kind words for Hugh Dean. He is a good man.

Daly testified that after she notified the Probation Department of this call, her previously cordial relationship with defendant changed. Specifically, defendant left Daly a message on her voicemail on May 24, 1996. Daly confirmed that she prepared the following transcription of that message:

Thanks for the good advice you gave me about, you know, forgetting everything and going on with it. Ah, I'm sure going to try it. I wonder, I wonder how you'd handle it if you got f_____ over for no reason and had all your money cleaned out, you know, by forgeries with the help of the bank and came out and you were destitute and in the streets. Hey, thanks for the good advice, Jill, and ah, I'm going to follow it. Call me if you have anything you want to add. I can be reached at 313-___-____. Enjoy your lunch. Enjoy your status and position. Ah, and Ah, God forbid you should ever have to walk in somebody else's shoes cause your feet might hurt. They might get hurt. But thanks for the good advice, Jill. So long.

Likewise, Daly confirmed that defendant left another message on her voicemail on June 28, 1996. This message stated:

Jill, this is Lenny and I am truly disappointed in you as a human being. I truly am. And I want you to share some of the responsibility for my suicide if I do tend, if I do commit suicide. You are a no good piece of s___ c___-sucker, Jill, and ah, that is the best, basest thing I can say about you. So long.

Daly had recorded this final message on tape, and it was played at the hearing.

During cross-examination, Daly stated that neither the May 9, 1996 conversation nor the May 24, 1996 voicemail message contained a threat directed at her. Daly identified the caller as defendant, with whom she had dealt many times between the late 1980's and 1991. She was able to identify him from the use of a nickname he had used previously. Daly also testified that after she had realized during the May 9, 1996 conversation that she was speaking to defendant, she said "Oh, it's Lenny," and the caller agreed. Defendant neither produced witnesses nor testified on his own behalf at the hearing.

The District Court found that defendant had violated the amended term of his supervised release by placing harassing calls to Daly on May 9, May 24, and June 28, 1996. Accordingly, the District Court revoked his supervised release and imposed a sentence of ten months of incarceration. Defendant filed another timely notice of appeal of the revocation and sentence.

A. March, 1996 modification of terms

Defendant asserts that the doctrine of estoppel barred the government from petitioning the District Court in January, 1996 to revoke or modify the terms of his supervised release based upon his alleged trip to Florida in August, 1995. Specifically, he argues that "the Probation Department's conduct in not timely reporting the violation to the district court and subsequently granting written permission for future travel constituted 'retroactive permission' to travel outside of the jurisdiction in August, 1995." Defendant cites Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), for the proposition that the defense of entrapment by estoppel bars the government from holding an individual criminally responsible for conduct which government officials explicitly have approved.

This assertion is without merit. Both Cox and Raley involved facts in which the government had told the defendants in those cases that a certain activity was acceptable before they undertook it. See Cox, 379 U.S. at 571, 85 S.Ct. at 484 (city officials told defendant he could demonstrate near a courthouse before he did so); Raley, 360 U.S. at 426, 438-39, 79 S.Ct. at 1260, 1266-67 (legislators told witnesses that they could rely on privilege against self-incrimination; witnesses later received convictions for contempt for having invoked that privilege); see also United States v. Levin, 973 F.2d 463, 468 (6th Cir.1992)(entrapment by estoppel applies only when defendant reasonably relied upon a pronouncement by government that the charged criminal act was legal). The government, however, never suggested to defendant that he could travel to Florida in August, 1995.

Defendant also argues that there was insufficient evidence to support the finding by the District Court that he violated the terms of his release by leaving the district without permission. We agree with defendant...