U.S. v. Rasmussen

• Decision Date: 02 August 1989
• Docket Number: No. 88-1697,88-1697
• Citation: 881 F.2d 395
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Herbert RASMUSSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 395

881 F.2d 395

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Herbert RASMUSSEN, Defendant-Appellant.

No. 88-1697.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 7, 1988.

Decided Aug. 2, 1989.

J. William Roberts, U.S. Atty., Byron G. Cudmore, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Allan A. Ackerman, Chicago, Ill., for defendant-appellant.

Before CUDAHY and RIPPLE, Circuit Judges, and WILL, Senior District Judge. ^*

RIPPLE, Circuit Judge.

Gerald Herbert Rasmussen appeals from the district court's order revoking his probation. The defendant entered a plea of guilty to charges that he conspired to transport and aided and abetted in the transport of stolen securities in interstate commerce. He was sentenced to one year in prison to be followed by a five-year term of probation. While still on probation, the defendant was convicted of other crimes. These additional convictions violated the terms of Mr. Rasmussen's probation and resulted in its revocation. The defendant argues that the probation revocation must be reversed because a thirteen-month delay before the revocation hearing was a denial of due process. He also submits that the denial of a request for a continuance was an abuse of discretion and that he was deprived of counsel of his choice in violation of the sixth amendment. We affirm the judgment of the district court revoking probation.

I BACKGROUND

A. The 1984 Conviction and Resulting Probation

On April 4, 1984, Gerald Herbert Rasmussen entered a plea of guilty in the United States District Court for the Central District of Illinois to conspiring to transport forged securities in interstate commerce in violation of 18 U.S.C. Sec. 371 and to aiding and abetting in the transport of forged securities in violation of 18 U.S.C. Sec. 2 and Sec. 2314 (Case No. 84-30028). On April 5, 1984, he was sentenced to a one-year term of imprisonment on the conspiracy count. On the aiding and abetting count, he received a suspended sentence and was placed on a five-year term of probation to commence at the expiration of any parole term on the conspiracy count. On May 14, 1985, the supervision of defendant's probation was transferred to the Northern District of Illinois.

The terms of Mr. Rasmussen's probation included, inter alia: 1) refraining from violation of any law; 2) associating only with law-abiding persons and maintaining reasonable hours; 3) remaining within the judicial district unless receiving permission of the probation officer; and 4) not possessing or transferring any firearm or ammunition. R.8 at 2.

B. The Events of February 14, 1987 and the Resulting Charges and Probation Action

On February 14, 1987, while still on probation, Mr. Rasmussen was arrested for speeding in the Western District of Missouri. At the time he was stopped, Mr. Rasmussen, who had a license bearing a fictitious name, was accompanied by three convicted felons. R.8 at 2. A search of his trunk revealed that Mr. Rasmussen was in possession of a "loaded .357 Cop stainless The events of February 14 also led to a federal indictment. On May 14, 1987, in the United States District Court for the Western District of Missouri, Mr. Rasmussen entered a plea of guilty to an indictment charging him with being a convicted felon in possession of firearms (Case No. 87-03064-01-CR-S-4). R.10 at 2. Also on May 14, a two-count information (Case No. 87-03130-01-CR-S-4) was filed in the Northern District of Indiana. Count 1 charged the defendant with mail fraud and Count 2 charged him with making a false statement to a licensed firearm dealer. On May 20, 1987, the Indiana case was transferred to the Western District of Missouri pursuant to Rule 20(a) of the Federal Rules of Criminal Procedure ¹ and, eight days later, Mr. Rasmussen entered a guilty plea on both counts. In July of 1987, Mr. Rasmussen was sentenced to five years for each of the three offenses with the sentences to run concurrently. R.10 at 2.

                steel derringer (four barrel) and a 12 gauge Mossberg pump shotgun (assault type having a pistol grip)."    Id.  He advised the arresting state trooper that he was traveling to Texas.  Four days after the arrest, a probation officer filed a petition for probation action with the United States District Court for the Central District of Illinois alleging that Mr. Rasmussen had violated the terms of his probation by participating in these activities
                

On July 8, 1987, a detainer was lodged against Mr. Rasmussen based upon the petition for probation action.

C. The Revocation of Probation

Six months later, in January 1988, the defendant contacted the government and requested resolution of the probation revocation charges. In February, the district court for the Central District of Illinois set a formal hearing date of March 14, 1988. A docket entry dated February 10, 1988 indicated that all parties had been notified of the hearing by mail.

On March 8, 1988, an addendum to the petition for probation action was filed. This addendum advised the district court of the disposition of the Missouri-based charges and also alleged, as grounds for the revocation of probation, the Indiana-based charges that had been transferred to Missouri. These latter charges had not been alleged in the original petition for revocation of probation. On March 9, 1988, the defendant's attorney, Allan A. Ackerman, filed a motion to continue the probation revocation hearing for six weeks on the ground that he had not had a chance to prepare adequately for the proceedings. ² R.14. This motion was denied the following day. On March 14, Howard Feldman, an attorney also retained by the defendant, appeared before the district court and renewed Mr. Ackerman's motion for a continuance. The district court offered a continuance until later the same day, but, after determining that the revocation would be handled as a bifurcated matter (revocation first and later a separate sentencing hearing), the defendant and Mr. Feldman declined the court's offer and decided to proceed On March 29, the defendant appeared again with retained counsel Feldman. Attorney Ackerman was not present for sentencing and no reason was given for his absence. The district court heard the arguments of counsel and imposed a ten-year sentence to run consecutively to the five-year sentence imposed by the federal court in Missouri. A timely notice of appeal was filed on April 7, 1988.

immediately. R.25 at 13-15. Mr. Feldman argued that the thirteen-month delay between the original petition for probation action and the hearing date was unreasonable. However, the district court determined that the delay was not unreasonable, noting that the question of reasonableness under Rule 32.1 of the Federal Rules of Criminal Procedure is dependent on the surrounding circumstances of each individual case. The district court revoked the defendant's probation and set sentencing for March 29, 1988.

II DISCUSSION

Mr. Rasmussen asks that we focus on two time periods. He asks that we hold that the thirteen-month delay from February 18, 1987 (when the United States Probation Office filed a notice of probation action) until March 10, 1988 (when the district court held a hearing on the petition to revoke the probation) amounts to an inexcusable delay that justifies our vacating the revocation of his probation. Secondly, he asks that we examine the probation revocation proceedings and conclude that the district court deprived him of the right to counsel of choice in violation of the sixth amendment. He also submits that, by denying him a continuance, the district court deprived him of due process of law. We shall address each of these contentions separately.

A. The Thirteen-Month Delay

As both parties acknowledge, this court's decisions in United States v. Scott, 850 F.2d 316 (7th Cir.1988), and United States v. Williams, 787 F.2d 1182 (7th Cir.1986), provide the principal guidance in this circuit with respect to the matter of delay in disposing of probation revocation petitions. Scott squarely holds that, in assessing the impact of delay on the substantial rights of the probationer, we are to be guided by what Judge Oakes has termed the "somewhat analogous context of the Sixth Amendment right to speedy trial." United States v. Companion, 545 F.2d 308, 311 (2d Cir.1976). ³ In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court held that the following factors ought to be weighed in assessing the significance of a delay: 1) length of delay; 2) reason for the delay; 3) the defendant's assertion of his right; and 4) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192. To these factors, Scott adds, in an effort to tailor the inquiry to the unique circumstances of probation revocation, another factor: the reason why the probationer was in custody. 850 F.2d at 320.

In applying this analysis to the case before us, our starting point is the length of the delay. A thirteen-month delay must, as Chief Judge Bauer wrote in Scott, "give[ ] us pause." Id. It requires that our scrutiny of the remaining factors be a demanding one. When we turn to the remaining factors, it becomes quite evident that, at least on this record, the factual inquiry necessary for the assessment of each overlaps significantly. Therefore, our analysis of each factor necessarily must overlap with our analysis of the others. Consequently, a chronological assessment of the proceedings is most appropriate.

At the outset, it must be noted that the probation authorities fulfilled their initial responsibilities most expeditiously. A petition for probation action was filed four days after Mr. Rasmussen was arrested in Missouri. Mr. Rasmussen and his attorneys therefore had notice, actual or constructive, of the United States Probation Office's intentions throughout the disposition of the Missouri- and Indiana-based charges. It certainly was not unreasonable to postpone action on the...