U.S. v. Maloney

• Citation: 513 F.3d 350
• Decision Date: 17 January 2008
• Docket Number: No. 06-3745.,06-3745.
• Parties: UNITED STATES of America v. Sharif MALONEY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

513 F.3d 350

UNITED STATES of America v. Sharif MALONEY, Appellant.

No. 06-3745.

United States Court of Appeals, Third Circuit.

Argued December 13, 2007.

Filed: January 17, 2008.

K. Anthony Thomas, (Argued), Office of Federal Public Defender, Newark, N.J., for Appellant.

George S. Leone, Office of United States Attorney, Newark, N.J., Glenn J. Moramarco, (Argued), Office of United States Attorney, Camden, N.J., for Appellee.

Before: SLOVITER, AMBRO, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The District Court found Sharif Maloney guilty of violating three conditions of his supervised release and sentenced him to imprisonment for a year and a day and one additional year of supervision. Maloney appeals. We must consider whether there was adequate evidence to support the District Court's findings. Although we review the record relating to all three conditions, the principal legal issue is whether the condition of supervised release requiring Maloney to notify his probation officer of questioning by law enforcement officers was impermissibly vague.

I.

In 2001, while on parole from a felony conviction in New Jersey state court, Maloney was convicted in federal court of possessing a firearm in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a term of twenty-eight months and eighteen days imprisonment and a three-year term of supervised release. After completing his term of imprisonment and beginning his period of supervision on January 12, 2004, Maloney undertook work as a shoe peddler in Newark.

It was the view of the Probation Office that Maloney "made a poor adjustment to supervision." App. at 215. In early 2006, it filed a petition charging Maloney with violating a number of the conditions of his supervised release. On May 16, 2006, Maloney pled guilty to one of the charges, i.e., that he had violated his conditions of supervision by associating with convicted felons; he was continued on supervised release with the additional condition that he serve six months in a halfway house. Before Maloney was designated to a facility, however, the Probation Office learned that he had attended the trial of a member of the "Bloods" street gang, entering and leaving the courtroom in close proximity with another convicted felon. The Probation Office also learned that Maloney had been issued a summons by the Newark Police Department for failing to display a peddler's license. Suspecting that Maloney had further violated the conditions of his supervised release, the Probation Office sought a warrant for his arrest.

While Maloney was detained pending a revocation hearing, the Probation Office learned that Maloney had been charged with eluding the police. This charge arose from New Jersey State Trooper Marcos Arroyo's report that a red Mercedes Benz registered to and driven by Maloney had fled after Trooper Arroyo attempted to stop the vehicle. Consequently, the Probation Office filed a petition charging Maloney with four violations of his supervised release: (1) failing to notify his probation officer that he had been questioned by police in connection with the summons for failure to display his peddler's license; (2) associating with a convicted felon;¹ (3) failing to report that he had purchased or had access to the red Mercedes; and (4) committing the crime of eluding a law enforcement officer during his period of supervision (hereafter referred to as Charges No. 1, No. 3, and No. 4).

At Maloney's revocation hearing, the government introduced testimony by Maloney's probation officer, Anthony Nisi, and by Trooper Arroyo. Nisi testified about the summons Maloney was issued for failing to display his peddler's license on May 4, 2006 (Charge No. 1). When Nisi asked the Newark Police Department about the issuance of the summons, he "was informed that in order for this summons to be issued, contact is necessary" because "the law enforcement officer simply just does not write a summons and walk away." App. at 51. Nisi testified that Maloney did not notify him of this incident, although the two had met on May 23, 2006, more than two weeks after the summons was issued. When Nisi asked Maloney why he did not notify him of the summons, Maloney simply shrugged and responded that he did not know. The summons was ultimately dismissed.

Trooper Arroyo testified about the facts underlying the charge of eluding a law enforcement officer (Charge No. 4). In the early hours of May 7, 2006, Arroyo spotted the red Mercedes near the highway, recognizing the vehicle from an unsuccessful pursuit he had engaged in earlier that week. As the car slowly turned onto the highway Arroyo verified the license plate number and then illuminated the vehicle's interior with his spotlight for approximately ten seconds. Arroyo activated the overhead lights of his patrol car, the signal to stop. Instead, the car "fled," at a speed that Arroyo estimated was in excess of 110 miles per hour. App. at 21-22. Before the Mercedes fled, Arroyo viewed four black males in the car, but he concentrated on the driver, whom he later described as having dreadlocks. Later that day, Arroyo learned that the red Mercedes was registered to Maloney, obtained pictures of him from state databases, and identified him as the driver of the vehicle that he had pursued that morning.

Arroyo testified that he encountered the red Mercedes a third time the very next day, and on this occasion a woman identified as Summer Sprofera was driving the car. Arroyo testified that Sprofera told him Maloney was driving the red Mercedes in the early hours of May 7. Nisi confirmed that the red Mercedes and two additional vehicles were registered in Maloney's name, and that Maloney failed to report his ownership of those vehicles in his monthly supervision report.

In his defense, Maloney presented the testimony of his girlfriend, a friend, and an investigator from the Federal Public Defender's office. Saleemah Graham, Maloney's girlfriend, testified that she was with Maloney during the early hours of May 7, that she did not believe Maloney would have purchased the red Mercedes, and that she had spoken to Tamar Watson, later identified as Rajan Ali, who stated that Maloney had registered the vehicle for him as a favor. Graham also stated that Maloney had braids, rather than dreadlocks. Maloney's friend, Otto Chase, testified that he had never seen Maloney in a red Mercedes and did not know him to own such a vehicle. The investigator, Ben Grade, testified that he interviewed the red Mercedes' previous owners and that they did not identify Maloney as the purchaser of the vehicle. He also testified that he interviewed Sprofera, and that she asserted that her boyfriend, Ali, was the red `Mercedes' actual owner, that she had never seen Maloney in the car, and that she did not remember telling Arroyo that Maloney was driving the car on May 7. Sprofera did not testify, nor did Ali. Investigator Grade did not interview Ali.

In a statement that he made to the Court at the end of the hearing, Maloney denied that he owned or had driven the red Mercedes; rather, he stated that he had registered the car as a favor to Ali whom he had met through his peddling business and who was the actual driver on the night in question. Regarding his failure to list the car in his monthly report, Maloney stated that he did not consider himself the owner of the vehicle, that the car was no longer registered in his name at the time he turned in his written report, and that he simply forgot to put it in his report. Finally, with respect to the summons, Maloney stated that he did not report that incident to his probation officer because he was asked for his peddler's license nearly every day and that on the occasion at issue he had not been arrested for wrongly displaying that license, but was merely issued a citation. Thus, he did not believe that he was required to report this incident.

The District Court found by a preponderance of the evidence that Maloney was guilty of violating his conditions of supervised release by failing to report that he had been questioned by a law enforcement officer, failing to report that he owned or drove the red Mercedes, and committing a crime by eluding a law enforcement officer. On August 8, 2006, the District Court sentenced Maloney to twelve months and one day imprisonment and an additional year of supervised release. Maloney timely filed a notice of appeal.

II.

The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3583(e)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.

A district court must find "by a preponderance of the evidence that the defendant violated a condition of supervised release. . . ." 18 U.S.C. § 3583(e)(3). The District Court's decision to revoke supervised release is reviewed for abuse of discretion. See Gov't of Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir.2001). However, the factual findings supporting that decision are reviewed for clear error; legal issues are subject to de novo review. United States v. Poellnitz, 372 F.3d 562, 565-66 & n. 6 (3d Cir.2004) (citing United States v. Blackston, 940 F.2d 877, 882 (3d Cir.1991)).

III.

Charge No. 1 concerns Maloney's failure to notify his probation officer of the incident during which he received a summons for improperly displaying his peddler's license. The other two charges relate to the red Mercedes: its ownership and the identification of Maloney as the driver on May 7, 2006. Accordingly, we separate our analysis of the charges.

A.

The charges relating to the red Mercedes do not require extensive discussion.

The standard conditions of supervision require that an individual "shall not commit another federal, state, or local crime during the term of supervision." App. at 210. They also require that the supervisee "shall submit a truthful and complete written report within the first five days of each month." App. at...