U.S. v. Pratt, 94-1345

• Decision Date: 13 April 1995
• Docket Number: No. 94-1345,94-1345
• Citation: 52 F.3d 671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony PRATT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 671

52 F.3d 671

UNITED STATES of America, Plaintiff-Appellee, v. Anthony PRATT, Defendant-Appellant.

No. 94-1345.

United States Court of Appeals Seventh Circuit.

Argued Jan. 25, 1995.

Decided April 13, 1995.

Stephen A. Ingraham, Asst. U.S. Atty. (argued), Office of U.S. Atty., Milwaukee, WI, for U.S.

Allen E. Shoenberger, Debran Rowland, Law Student (argued), Chicago, IL, for defendant-appellant.

Before PELL, FLAUM, and MANION, Circuit Judges.

MANION, Circuit Judge.

In 1993 Anthony Pratt pleaded guilty to two counts of bank fraud, 18 U.S.C. Secs. 2, 1344, and was sentenced to 38 months of imprisonment to be followed by three years of supervised release. After he was released from custody, ¹ Pratt was arrested for mail theft. The district court revoked Pratt's supervised release and sentenced him to 24 months of imprisonment. Pratt appeals the revocation, alleging that he was denied the effective assistance of counsel because counsel failed to call adverse witnesses and to present a valid defense during the revocation hearing. We affirm.

I. Background

In August 1993, Pratt was placed on supervised release after serving a 38 month prison term for his bank fraud convictions. Several months later, Pratt was arrested by postal inspectors for stealing mail in Wauwatosa, Wisconsin. Pratt's probation officer petitioned the district court to revoke Pratt's supervised release, stating that Pratt had been arrested on a federal offense, which was a "Grade B" violation. The petition also charged other violations of the conditions of supervised release, which were all "Grade C" violations. They included failing to pay restitution, failing to report to his probation officer as directed, failing to submit to random urinalysis tests on five occasions, testing positive for marijuana and cocaine, and failing to comply with drug abuse treatment and attending only one drug counseling session.

A preliminary hearing was held in January 1994. Pratt was represented by the same appointed counsel who had represented him at the underlying bank fraud case. At the hearing, Pratt's probation officer, Lisa M. Kohn, was called to testify and was subject to cross-examination. Based upon Kohn's testimony, Magistrate Judge Goodstein found that there was probable cause that Pratt had violated some of the conditions of his supervised release.

The district court held a final revocation hearing in February 1994. Probation Officer Kohn did not testify again, although she was in attendance and had submitted a revocation hearing report to which counsel made several objections. For instance, counsel objected to Kohn's statement that Pratt had attended only one counseling session. With the court's permission, Kohn responded that Pratt's first appearance was merely to schedule a date for the actual counseling session. Counsel also objected to Kohn's statement that Pratt was reluctant to maintain employment. Counsel explained that Pratt was gainfully employed at the time and that there had been an on-going conflict between Pratt and Kohn concerning whether Pratt should attend school full-time and whether he should have full-time employment.

The government called only one witness, Postal Inspector James Gill. Over counsel's hearsay objection, the district court allowed Gill to testify as to Pratt's mail theft, possession of stolen mail, as well as aiding and abetting the passing of stolen checks. According to Gill, a Kathryn Manschot had fraudulently cashed two checks at the Badger Bank in Milwaukee, Wisconsin on December 21, 1993, and in one of the photographs produced by Badger Bank's surveillance camera during the transaction, Pratt was standing next to Manschot. The photographs were introduced into evidence. Gill stated that he was told by bank employees that when asked if he needed help, Pratt approached the teller window and asked for change.

Gill further testified that the day after the bank fraud incident, a citizen reported that a woman had come onto her porch where outgoing mail had been placed. Based on the citizen's description of the woman and her car (in which a man was waiting), the police arrested Pratt and Manschot. Pratt was wearing the same coat he wore the day before at Badger Bank. According to Gill, at the time of the arrest, the police found in Manschot's car several pieces of undelivered mail, including mail of the complaining citizen, and blank checks from the two accounts Manschot had used to cash checks at Badger Bank. Neither bank account belonged to Pratt or Manschot. The police also found two pieces of undelivered mail, including one from a bank, on Pratt's person. Photographs of those two pieces of stolen mail, the blank checks found in Manschot's car, and the checks fraudulently cashed at Badger Bank were introduced into evidence. Also introduced into evidence were the statements of the intended recipients of the stolen mail.

During the hearing, counsel conceded the existence of the "Grade C" violations, with the exception of failure to pay restitution. Counsel argued, however, that the evidence was insufficient to prove the "Grade B" violations. Specifically, counsel argued that although two pieces of undelivered and unopened mail were found inside of Pratt's front coat pocket, they could have been "stuffed" there by Manschot while Pratt was sleeping. According to counsel, had Pratt really been responsible for the stolen mail, then he would have been furtive about them and placed them in an inside or side pocket. With respect to the bank fraud incident, counsel argued that there was no evidence that Pratt was directly involved in any criminal activity--he and Manschot were simply at the same place at the same time. Counsel also suggested that Manschot, knowing Pratt's past criminal history, may have tried to set Pratt up so that she could point the finger at him and divert criminal responsibility away from herself. Finally, counsel stated that he had attempted to locate Manschot but was unsuccessful. Counsel did not call any witnesses on Pratt's behalf.

The district court found that the evidence was "more than just by a preponderance that this defendant has what appears to be two grade B violations in the mail theft charge and the passing of--aiding and abetting in the passing of those checks." The court further noted that there was no evidence controverting the fact that Pratt had committed the "Grade C" violations listed in the probation officer's report. The district court then sentenced Pratt to 24 months of imprisonment.

II. Analysis

A. Ineffective Assistance of Counsel

Pratt argues that he was denied the effective assistance of counsel because counsel failed to call any adverse witnesses or to present any defense on his behalf during the revocation hearing. Particularly, Pratt argues that counsel (1) failed to demand that the government show cause why it was not producing the live witnesses, (2) failed to call Probation Officer Kohn to investigate her motive in initiating the revocation proceeding despite counsel's knowledge that there were conflicts between Kohn and Pratt concerning the conditions of release, (3) failed to controvert the probation officer's report, and (4) failed to cross-examine Kohn or contact the laboratory or hospital where Pratt's drug tests were administered to ascertain the actual test results.

This court has often cautioned that ineffective assistance of counsel claims are ordinarily best brought first in the district court because evidence outside of the record will ordinarily be required to demonstrate the deficiency in counsel's performance. Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993); see also United States v. Fish, 34 F.3d 488, 491 n. 1 (7th Cir.1994). However, this court will consider the ineffective assistance claim if the challenge to counsel's assistance is sufficiently clear-cut and can be conclusively determined from the record. ² Id.; United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). Pratt's case presents such a situation.

In order to succeed on the ineffective assistance of counsel claim, Pratt must show that his counsel's performance was deficient and that his deficient performance so prejudiced his defense as to render the result of his revocation proceeding "fundamentally unfair or unreliable." Lockhart v. Fretwell, --- U.S. ----, ---- - ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Kozinski, 16 F.3d 795, 813 (7th Cir.1994) (citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2070). This court will address the prejudice prong of the test first if it will resolve the case more expeditiously. See Barker v. United States, 7 F.3d 629, 633 (7th Cir.1993).

Pratt's opening brief focused heavily on the argument that counsel's failure to call and cross-examine adverse witnesses or to demand the government to show cause for not producing those witnesses violated his Sixth Amendment right to confrontation. His reply brief, however, shifted the focus to arguing that counsel's ineffectiveness violated his due process rights. It is true that under Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), a defendant has a due process right to confront and cross-examine adverse witnesses at a revocation hearing (unless good cause is shown for not allowing confrontation). See also Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656 (1973); Prellwitz v. Berg, 578 F.2d 190, 192 (7th Cir.1978) (parole revocation). However, in the context of an ineffective assistance claim, the key inquiry is whether counsel's alleged errors have rendered the defendant's revocation proceeding "fundamentally unfair or...