U.S. v. Spangle

• Decision Date: 19 November 2010
• Docket Number: No. 09-50508,09-50508
• Citation: 626 F.3d 488
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Lyle SPANGLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

626 F.3d 488

UNITED STATES of America, Plaintiff-Appellee,

v.Kenneth Lyle SPANGLE, Defendant-Appellant.

No. 09-50508.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 21, 2010.

Filed Nov. 19, 2010.

Jonathan D. Libby (argued), Assistant Federal Public Defender; Kathryn A. Young, Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for defendant-appellant Kenneth Lyle Spangle.

Daniel B. Levin (argued), Assistant United States Attorney; Michael R. Wilner, Assistant United States Attorney, Deputy Chief, Major Frauds Section; Christine C. Ewell, Assistant United States Attorney, Chief, Criminal Division; Andre Birotte, Jr., United States Attorney, Los Angeles, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Central District of California, Alex Kozinski, Chief Circuit Judge, Presiding by Designation. D.C. No. 2:03-cr-00588-AK-1.

Before: RICHARD C. TALLMAN, RICHARD R. CLIFTON, and CARLOS T. BEA, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

Defendant-Appellant Kenneth Lyle Spangle appeals from the twenty-four-month term of imprisonment imposed upon the revocation of his supervised release. Spangle contends that he was denied his Sixth Amendment right to represent himself, that the district court judge should have recused himself, and that the sentence imposed was procedurally and substantively unreasonable. Because all ofSpangle's contentions are without merit, we affirm the judgment and sentence.

I

This appeal has its genesis in Spangle's 1996 guilty plea to a charge of bank robbery. In April 1997, Spangle was sentenced to fifty-seven months imprisonment, followed by three years of supervised release. Upon his first release from federal prison on March 23, 2001, Spangle never reported to his probation officer. A bench warrant was issued, and he was arrested in early June 2001. The district court conducted three evidentiary hearings to determine whether to revoke Spangle's supervised release, and Spangle's probation officer participated in all three hearings. The district court eventually did revoke his supervised release and sentenced him to an additional twenty-four months in prison.

After Spangle was sentenced, he sent two threatening letters to his former probation officer, and he called the federal public defender's office and stated that he wanted to kill a judge. Two weeks before Spangle was to be released, in May 2003, he sent a third letter to his former probation officer, directing her to look at a calendar and stating that her time was "running out." The probation officer did not directly receive this letter as she no longer worked at the office where the letter was sent, but the supervisor for that office read the letter and immediately contacted the probation officer's new supervisor.

Spangle was indicted on two counts of mailing threatening communications, a violation of 18 U.S.C. § 876(c), for two of the letters he sent to the probation officer. On February 11, 2004, the Honorable Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation, found Spangle guilty after a bench trial on one of the counts of mailing a threatening communication. In June 2004, Judge Kozinski sentenced Spangle to seventy-two months imprisonment with an additional three-year term of supervised release.

Spangle was again released from federal custody on January 8, 2009. At the time of this release, Spangle was fitted with a monitoring device to track his whereabouts during his three-year term of supervised release. Prior to absconding, Spangle failed to inform his probation officer ¹ that he had purchased a car notwithstanding the requirement that he disclose any purchase over $500. On February 15, 2009, less than six weeks following his release and while his probation officer was out of town, Spangle cut the monitoring device off of his ankle, and he absconded from his approved residence at his sister's home in Santa Rosa, California.

Before Spangle violated his supervised release this time, he made suspicious statements both to his sister and to a teller at the local branch of his bank. He told his sister that he was about to do something that she and the probation officer would not like. He complained to the bank teller about the fifteen-day waiting period for purchasing a gun imposed by California law. Spangle also withdrew approximately $2,000 from his bank account a week before removing and discarding his monitoring device and leaving Santa Rosa.

A warrant was issued for Spangle's arrest on February 17, 2009, because he had violated the terms of his supervised release. He was picked up the next day. Although the terms of his supervised releaseprohibited Spangle from leaving Santa Rosa, he was arrested by officers from the Los Angeles Police Department ("LAPD") at a Citibank branch in Canoga Park, over four hundred miles from Santa Rosa. The officers impounded Spangle's car, and it was later searched by two probation officers and an agent from the Federal Bureau of Investigation.

During the search, law enforcement officers found numerous items of interest. In the front passenger compartment of Spangle's car, the officers found several pieces of paper. One particular sheet had the name of Spangle's former probation officer, the one he had previously threatened, and what appeared to be her address. Other papers contained personal information about an assistant United States attorney who had previously prosecuted Spangle and information about both state and federal judges. A search of the trunk of Spangle's car uncovered similar documents, including personal information about Judge Kozinski and his family. Officers also found numerous magazines and periodicals about firearms and bullets, as well as a directory of California state governmental offices. However, no weapon was found in Spangle's vehicle.

When he appeared before Judge Kozinski on February 20, 2009, Spangle admitted violating the terms of his supervised release by removing the monitoring device and fleeing Santa Rosa. At a status conference on April 6, 2009—held three days before a pre-sentencing evidentiary hearing—Spangle asked to proceed pro se because his appointed attorney allegedly refused to provide certain documents to Spangle. Spangle's attorney explained that he did not provide the requested documents because they were irrelevant to the evidence that was to be presented at the pre-sentencing evidentiary hearing. Judge Kozinski denied Spangle's request, stating that it was too close to the date of the evidentiary hearing, but notified Spangle that he could renew his request to proceed pro se before sentencing. Judge Kozinski then addressed the prosecution's suggestion that he might want to consider whether to recuse himself in light of the fact that materials in Spangle's possession contained personal information about the judge. Judge Kozinski noted the fact that such personal information is now readily available on the Internet, and he stated that he had no subjective belief that Spangle presented a danger to him. Judge Kozinski found that Spangle's "modus operandi" was to make lists, and that these lists did not, without more, constitute a basis for recusal. Spangle said nothing at the hearing on this issue.

At the evidentiary hearing held on April 9, 2009, the prosecution presented evidence of Spangle's interaction with his probation officer, the testimony of Spangle's sister and the bank teller regarding Spangle's statements, and evidence about the materials found during the search of Spangle's automobile. The court made specific factual findings, including the fact that Spangle deliberately tracked down his former probation officer's address and was on his way to menace her. Judge Kozinski found that Spangle presented a threat to the former probation officer and expressed his concerns about Spangle's mental competency. The court postponed final sentencing pending a mental evaluation of Spangle under 18 U.S.C. § 4244. That evaluation concluded that Spangle was competent to understand the proceedings and assist in his defense.

Spangle's sentencing hearing was held on September 29, 2009. At the hearing, Spangle's counsel informed the court that Spangle wished to represent himself. The court, through repeated interruptions by Spangle, denied the request as untimely.It reiterated its finding that Spangle was headed to southern California to threaten or harass his former probation officer, and sentenced Spangle to two years imprisonment with an additional term of supervised release. Judgment was entered on October 9, 2009, and Spangle filed a timely notice of appeal.

II

The Sixth Amendment indisputably provides criminal defendants with the right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Spangle contends that the court's denial of his requests to proceed pro se deprived him of his Sixth Amendment right. The Sixth Amendment does not apply to parole revocation proceedings; it also does not apply to probation revocation proceedings if the defendant was previously sentenced. See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Stocks, 104 F.3d 308, 311 (9th Cir.1997). Because the revocation of supervised release is indistinguishable from the revocation of parole, we hold that the Sixth Amendment has no application to supervised release proceedings. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.... Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly...