Filed: Jun. 25, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-25-2004 USA v. Poellnitz Precedential or Non-Precedential: Precedential Docket No. 03-4044 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Poellnitz" (2004). 2004 Decisions. Paper 534. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/534 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-25-2004 USA v. Poellnitz Precedential or Non-Precedential: Precedential Docket No. 03-4044 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Poellnitz" (2004). 2004 Decisions. Paper 534. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/534 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-25-2004
USA v. Poellnitz
Precedential or Non-Precedential: Precedential
Docket No. 03-4044
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Poellnitz" (2004). 2004 Decisions. Paper 534.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/534
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PRECEDENTIAL MARY BETH BUCHANAN
United States Attorney
BONNIE R. SCHLUETER
UNITED STATES COURT OF Assistant U.S. Attorney, Chief of Appeals
APPEALS Division
FOR THE THIRD CIRCUIT LAURA S. IRWIN
Assistant U.S. Attorney
Office of United States Attorney
No. 03-4044 700 Grant Street, Suite 400
Pittsburgh, PA 15219
UNITED STATES OF AMERICA Counsel for Appellee
v. LISA B. FREELAND
Acting Federal Public Defendner
SHAWN L. POELLNITZ, KAREN S. GERLACH
Assistant Federal Public Defender
Appellant Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
On Appeal from the United States
District Court Counsel for Appellant
for the Western District of Pennsylvania
(Dist. Ct. No. 95-cr-00158)
District Judge: Honorable William L.
Standish OPINION
CHERTOFF, Circuit Judge.
Submitted Under Third Circuit LAR Shawn L. Poellnitz appeals from
34.1(a) the District Court’s order finding that he
May 14, 2004 violated a condition of his supervised
release by committing a state crime.
Before: NYGAARD, McKEE and Poellnitz argues that (1) there was
CHERTOFF, Circuit Judges. insufficient evidence to prove that he
committed a state crime, namely because
(Filed: June 25, 2004) he pled nolo contendere (instead of guilty)
to the crime in state court and passed a
polygraph test, and (2) the delay between
1
the filing of the supervised release petition 2001, the United States Probation Office
and the supervised release violation (USPO) issued a “Status Report/Request
hearing was not “reasonably necessary,” as for Warrant in Abeyance.” The letter
required by 18 U.S.C. § 3583. The reported that Poellnitz was arrested on
District Court exercised jurisdiction June 7, 2001, and charged with indecent
pursuant to 18 U.S.C. § 3231. This Court assault, corruption of a minor, and
has jurisdiction under 28 U.S.C. § 1291. endangering the welfare of a child. On
For the reasons stated below, we will November 13, 2001, the probation office
reverse the District Court’s order and filed a Petition on Supervised Release
remand for a determination of whether (“Petition”), alleging Poellnitz violated
there is sufficient evidence (under a conditions of supervised release and
preponderance standard) that Poellnitz requesting the court issue a bench warrant
committed a crime. to be held in abeyance until the pending
state charges were resolved. On
I. November 15, 2001, the District Court
On November 16, 1995, Poellnitz granted the Petition, and on November 16,
pled guilty to engaging in monetary 2001, the District Court issued the arrest
transactions in property derived from warrant, to be held in abeyance.
specified unlawful activity, in violation of On February 10, 2003, Poellnitz
18 U.S.C. § 1957(a), and making a false, entered a plea of nolo contendere in the
ficticious or fraudulent claim, in violation Court of Common Pleas of Allegheny
of 18 U.S.C. § 287. The District Court County, Pennsylvania, to the charge of
sentenced Poellnitz to 37 months in prison corruption of a minor.2 On February 20,
followed by 3 years of supervised release.1 2003, the USPO filed a Supplemental
The terms of the sentence included a Petition on Supervised Release
provision that “[w]hile on supervised (“Supplemental Petition”), alleging
release, the defendant shall not commit violations of the supervised release and
any crimes, federal, state, or local and requesting issuance of a summons for
shall abide by the standard conditions of Poellnitz to appear to show cause why the
supervised release.” App. at 3 (emphasis District Court should not revoke his
added). supervised release. On February 25, 2003,
Poellnitz was released from custody the District Court granted the
and began to serve his term of supervised Supplemental Petition and scheduled the
release on November 19, 1998. The term revocation hearing for April 11, 2003.
of supervised release was set to expire on The District Court subsequently sua
November 18, 2001. On November 9,
2
The other counts—indecent
1
Poellnitz received this sentence assault and endangering the welfare of a
for each count, to be served concurrently. child—were withdrawn.
2
sponte rescheduled the hearing on three Amended Order, pursuant to Federal Rule
occasions: On February 27, 2003, the of Criminal Procedure 35(a).4 In the
hearing was rescheduled for May 2, 2003; Amended Order, the District Court found
on April 8, 2003, the hearing was again Poellnitz guilty of violating a state law
rescheduled for May 16, 2003; and, on while on supervised release, but contrary
May 28, 2003, the hearing was again to the original Order did not find him
rescheduled for June 20, 2003. guilty of failing to pay full restitution.
Additionally, on July 10, 2003, the The Court treated the state law violation as
District Court granted Poellnitz a a grade C violation and, pursuant to 18
continuance due to Poellnitz’s health U.S.C. § 3583(e)(3) and (h), revoked
problems, and the hearing was Poellnitz’s supervised release and
rescheduled for July 21, 2003. Similarly, sentenced him to a term of one month’s
on two occasions the District Court imprisonment, to be served in home
granted Government motions to confinement pursuant to 18 U.S.C. §
reschedule because of the unavailability of 3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of
Probation Officer Verne Howard: On July the United States Sentencing Guidelines. 5
16, 2003, the District Court granted a
motion and reset the hearing for 4
September 12, 2003; and on July 24, 2003, “(a) Within 7 days after
the District Court granted a motion sentencing, the court may correct a
resetting the hearing for September 26, sentence that resulted from arithmetical,
2003. The hearing ultimately took place technical, or other clear error.” Fed. R.
on October 2, 2003. There is no Crim. P. 35(a).
indication on the docket sheet as to why 5
The Notice of Appeal was filed on
the hearing was postponed between October 3, 2003. Pursuant to Federal Rule
September 26 and October 2.3 of Appellate Procedure 4(b)(5), “[t]he
In an October 3, 2003 Order, the filing of a notice of appeal under this Rule
District Court found that Poellnitz had 4(b) does not divest a district court of
violated a state law while on supervised jurisdiction to correct a sentence under
release and failed to pay full restitution. Federal Rule of Criminal Procedure 35(a),
The District Court ordered that the term of nor does the filing of a motion under 35(a)
supervised release be reinstated to affect the validity of a notice of appeal
commence October 2, 2003, and to run for filed before entry of the order disposing of
a term of five months. On October 9, the motion.” Fed. R. App. P. 4(b)(5).
2003, the District Court issued an Thus, the District Court retained
jurisdiction to amend the judgment. The
Government argues that this appeal
3
All dates are derived from the properly flows from the October 9, 2003
District Court docket entries. See App. at Amended Order, and not the October 3
27-34. Order, as suggested by Poellnitz. Because
3
II. The plain language of 18 U.S.C. §
Poellnitz argues there was 3583(e)(3) requires a finding by “a
insufficient evidence to prove that he preponderance of the evidence that the
violated a condition of his supervised defendant violated a condition of
release by committing a crime because he supervised release.” When the condition
pled nolo contendere (rather than guilty) is that the defendant not commit a crime,
to the crime charged and passed a there is no requirement of conviction or
polygraph test. Poellnitz’s challenge to even indictment. This Court has
the propriety of the District Court’s emphasized “the broad discretion which is
consideration of a nolo contendere plea as traditionally given to district courts to
proper evidence that he committed a crime revoke probation when probation
in violation of his supervised release is a conditions are violated.” United States v.
question that is “essentially legal in Gordon, 961 F.2d 426, 429 (3d Cir. 1992).
nature, [and] we will exercise de novo A “court can revoke probation when it is
review.” United States v. Blackston, 940 reasonably satisfied that the probation
F.2d 877, 882 (3d Cir. 1991) (citing conditions have been violated, without the
United States v. Ortiz,
878 F.2d 125, 126- government being required to present
27 (3d Cir. 1989)). We conclude that the proof beyond a reasonable doubt that the
District Court erred as a legal matter in defendant committed the alleged acts.”
Id.
relying on the nolo plea as evidence of at 429; see also United States v.
commission of a crime.6 Chambers,
429 F.2d 410, 411 (3d Cir.
1970) (citations omitted). In other words,
“to revoke probation it is not necessary
the challenges mounted by Poellnitz are
equally applicable to both orders, the
technical question of which order is being
appealed is not dispositive. However, to lacked sufficient evidence to support its
avoid duplicative and unnecessary finding of commission of a crime. While
litigation, we treat this as an appeal from the District Court admitted the polygraph
the October 9 Amended Order. examination, it concluded that the
examination was not “particularly relevant
6
We do not address the factual . . . because . . . [it] relates to . . . conduct
question of whether there is sufficient different from the conduct . . . alleged to
evidence to establish a violation, a have been the basis for the corruption
determination that would be reviewed for charge.” App. at 262. On remand, the
clear error. See Blackston, 940 F.2d at District Court should consider this
879. Therefore, we need not address evidence, in conjunction with other
Poellnitz’s argument that in light of the evidence in the record, to determine
polygraph examination results indicating whether a preponderance of the evidence
that Poellnitz was truthful in denying supports the conclusion that Poellnitz
certain alleged activities, the District Court committed a crime.
4
that the probationer be adjudged guilty of was convicted of a crime, the court may
a crime, but only that the court be automatically revoke release based on the
reasonably satisfied that he has violated defendant’s commission of the underlying
one of the conditions.” United States v. offense. That is not so when it comes to
Manuszak, 532 F.2d 311, 317 (3d Cir. the peculiar legal effect of the plea of nolo
1976). contendere. While a nolo plea is
The novel question presented here indisputably tantamount to a conviction, it
is whether Poellnitz’s nolo contendere is not necessarily tantamount to an
plea, without more, is sufficient to admission of factual guilt. See United
establish that he violated a condition of States v. Adedoyin, No. 02-3042, slip op.
supervised release even under the at 8-9 (3d Cir. May 28, 2004); see also
relatively relaxed burden of proof that United States v. Wyatt, 762 F.2d 908, 911
applies. The answer depends upon (1) (11th Cir. 1985) (holding nolo plea was
what actually constitutes a violation of the not admissible to prove defendant had
condition of release, and (2) what admitted his guilt, although the underlying
significance we attribute to a nolo plea. facts were admissible); United States v.
The condition of release specified Graham, 325 F.2d 922, 928 (6th Cir.
in the revocation proceeding was that the 1963) (internal citations omitted) (“It is
“defendant shall not commit any crimes, true that a nolo contendere plea permits a
federal, state or local.” App. at 3. The judgment of conviction and the imposition
condition was not that defendant shall not of punishment the same as if a plea of
be convicted of another crime. What is guilty had been made. However, it has
forbidden is illegal conduct, not another been held that it is not admissible to aid
judgment of conviction. In order to proof of guilt in another proceeding.”).
establish that Poellnitz was guilty of a And since the condition of release in this
violation of this condition of release, case was to avoid the commission of a
therefore, the government did not have to crime—not to avoid a conviction for a
show that he was convicted of a new crime—establishing that Poellnitz was
crime, but did have to show that he convicted of a new crime through his plea
actually committed a new crime. In this is not enough. What matters is whether he
case, the District Court’s finding that committed that crime as a matter of fact.
Poellnitz committed a new state crime was Thus, we are obliged to ask whether the
not based exclusively or primarily on plea that Poellnitz entered can be deemed
evidence of the facts underlying the to establish underlying guilt, and not
alleged new state crime. Rather, the merely the fact of a criminal conviction.
District Judge treated the nolo plea as the We observe at the outset that the
proof that Poellnitz committed the effect of the nolo plea in question here is
underlying crime. See App. at 18. governed by state law. The Federal Rules
In the normal course, one might of Criminal Procedure and the Federal
expect that if the court finds defendant Rules of Evidence establish certain
5
limitations on the effect of a nolo plea as regards a nolo plea as constituting an
a matter of federal criminal law, or in the admission or evidence of criminal
context of federal trials. See Adedoyin, conduct, then it was entitled to whatever
No. 02-3042, slip op. at 7-8. Here, weight the District Court chose to give it.
however, the nolo plea in question is not a So, for example, in United States v.
federal plea, and the rules of evidence do Verduzco, 330 F.3d 1182, 1185 (9th Cir.
not apply in a supervised release 2003), the Ninth Circuit relied on
proceeding.7 See Fed. R. Ev. 1101(d)(3). California Penal Code § 1016, which
The critical question therefore is provides that the “legal effect of [a nolo
how Pennsylvania law regards the legal contendere] plea, to a crime punishable as
effect of the nolo plea that Poellnitz a felony, shall be the same as that of a plea
entered in response to the state criminal of guilty for all purposes,” in holding that
charge of corrupting a minor. If the District Court properly relied on nolo
Pennsylvania treats such a plea as a plea to find violation of supervised
judgment of conviction, but not an release. See also United States v.
admission of guilt, then that plea was Guardarrama, 742 F.2d 487 (9th Cir.
entitled to no evidentiary weight at the 1984) (per curiam) (same).8
revocation hearing. Cf. Olsen v. Correiro, A review of the applicable statutes
189 F.3d 52, 60 (1st Cir. 1999) (citations and case law reveal that in Pennsylvania a
omitted) (“[I]n most jurisdictions, nolo plea does not constitute an admission
including Massachusetts, a nolo plea is not of factual guilt, and thus has no
a factual admission that the pleader
committed a crime. Rather, it is a
statement of unwillingness to contest the 8
Several circuit courts have noted
government’s charges and an acceptance that “[a] certified copy of a conviction is
of the punishment that would be meted out proper evidence that a defendant violated
to a guilty person.”). a state or federal law and, thereby,
On the other hand, if state law violated a condition of his supervised
release.” United States v. Hofierka, 83
F.3d 357, 363-64 (11th Cir. 1996) (per
7
In Adedoyin, the defendant at trial curium) (citing cases); see also United
sought to exclude a California conviction. States v. Fleming, 9 F.3d 1253, 1254 (7th
We did not, however, examine the Cir. 1993) (per curium). These cases,
meaning of a nolo plea under California however, deal with an entirely different
law. Rather, because federal evidentiary situation—instances where the defendant
rules applied, the case was analyzed entered a guilty plea. A nolo plea is an
pursuant to Federal Rule of Evidence 410. entirely different species—“a nolo plea is
not a factual admission that the pleader
committed a crime.” Olsen, 189 F.3d at
59.
6
evidentiary value in assessing whether the evidence of guilt in a subsequent
defendant committed a crime. The proceeding.
Pennsylvania Rules of Evidence Unlike its federal counterpart,
differentiate between the admissibility of Federal Rule of Evidence 410, the
guilty pleas and nolo pleas in subsequent Pennsylvania Rules of Evidence appear to
proceedings: be equally applicable to revocation
proceedings. See Pa.R.E. 101 (“These
Except as otherwise rules of evidence shall govern proceedings
provided in this rule, in all courts of the Commonwealth of
evidence of the following is Pennsylvania’s unified judicial system,
not, in any civil or criminal except as otherwise provided by law.”).
proceeding, admissible While the revocation proceeding at issue
against the defendant who is a federal proceeding, and thus not
made the plea or was a governed by the Pennsylvania Rules of
participant in the plea Evidence, the Pennsylvania Rules provide
discussions: substantial support for the conclusion that,
.... under Pennsylvania law, nolo pleas do not
(2) a plea of nolo have any evidentiary value as an
contendere admission of guilt.10
.... Pennsylvania case law further
supports this conclusion. Under
Pa.R.E. 410. The Comment clarifies that Pennsylvania law, “[a]lthough the effect
the Rule “does not prohibit the use of a of a plea of nolo contendere is equivalent
conviction that results from a plea of nolo to a plea of guilty, the import of the pleas
contendere, as distinct from the plea itself,
to impeach in a later proceeding (subject
to Pa.R.E. 609) or to establish an element 10
As the District Court noted, §
of a charge in a later administrative 71.4 of the Pennsylvania Administrative
proceeding.” Pa.R.E. 410 cmt. (citing Code provides, in pertinent part, that “[a]
Commonwealth v. Snyder, 182 A.2d 495 revocation hearing shall be held within
(Pa. 1962); Eisenberg v. Commonwealth, 120 days from the date the Board received
516 A.2d 333 (Pa. 1986)).9 Thus, the official verification of the plea of guilty or
Pennsylvania evidence code draws a nolo contendere or of the guilty verdict at
distinction between the permissible use of the highest trial court level.” 37 Pa. Code
a nolo plea to prove the fact of conviction § 71.4. While this provision may support
and the impermissible use of a nolo plea as the conclusion that a guilty plea and a nolo
plea have the same effect in terms of
triggering a revocation hearing, the
9
Rule 609’s limitations are not section in no way suggests that both types
applicable to this case. of pleas have the same evidentiary value.
7
is not the same. In pleading nolo act. The judgment of
contendere; the defendant does not admit conviction follows upon
his guilt, but merely consents to being such plea as well as upon a
punished as if he were guilty.” plea of guilty.
Commonwealth v. Gunter, 771 A.2d 767, In 1970, the United States
773 (Pa. 2001) (Cappy, J., concurring) Supreme Court, in North
(citing Commonwealth v. Boyd, 292 A.2d Carolina v. Alford, [400
434, 435 (Pa. Super. 1972); North U.S. 25 (1970)] held that
Carolina v. Alford,
400 U.S. 25, 35 n.8 the courts could impose
(1970);
Eisenberg, 516 A.2d at 335).11 criminal penalties where a
In Eisenberg, the Pennsylvania defendant pleading nolo
Supreme Court explicitly addressed the contendere specifically
question of the effect of a nolo contendere denied guil t of th e
plea under Pennsylvania law: underlying facts. . . . The
Alf o r d procedure is
The effect of a nolo substantially similar to the
contendere plea in practice in Pennsylvania on
Pennsylvania is concisely nolo contendere pleas.
discussed in the leading
case of Commonwealth v. Eisenberg, 516 A.2d at 335 (internal
Ferguson, 44 Pa. Superior citations omitted).
Ct. 626 (1910): The Eisenberg court held that an
A plea of nolo contendere, Alford plea, which is “substantially
when accepted by the court, similar” to a Pennsylvania nolo plea, was
is, in its effect upon the sufficient to constitute a “conviction”
case, equivalent to a plea of pursuant to the state statute under which
guilty. It is an implied Eisenberg was charged. 516 A.2d at 336.
confession of guilt only, and In so holding, the court explained that “the
cannot be used against the Department here does not attempt to use
defendant as an admission the plea as judicial admission of the fact of
in any civil suit for the same fraud. Rather, the conviction entered
upon the plea itself is the operative fact
which authorizes suspension. This
11
In Gunter, the Pennsylvania evidence of the conviction itself is not
Supreme Court held that a nolo plea was affected by the procedure leading up to the
involuntary, in part because of the failure plea . . . . ” Id. The Eisenberg court,
of the colloquy to mention that the however, specifically noted that a nolo
defendant was entering a nolo plea, as plea is not proper evidence of the
distinct from a guilty plea. 771 A.2d at underlying facts of the conviction:
771.
8
A nolo plea to a criminal not the province of the court to occupy
charge is not evidence of itself with the question of guilt or
either its underlying or innocence.”); Ferrelli v. Commonwealth,
ultimate facts in a later civil 783 A.2d 891, 893 (Pa. Cmwlth. Ct.
action. It follows as a 2001).12
corollary that in a civil
action based on the same act
or transaction, the pleader is 12
It is certainly true that in some
not precluded from denying contexts a nolo plea has the same legal
or contesting the facts of the effect as a guilty plea under Pennsylvania
transaction by his nolo plea. law. These situations, however, are
distinguishable and entirely consistent
Id. at 336 n.6 (internal citations omitted). with the Pennsylvania rule that a nolo plea
is not an admission of guilt. See, e.g.,
The decisions of Pennsylvania’s Sontag v. Ward, 789 A.2d 778, 780 (Pa.
lower courts similarly reflect this Cmwlth. Ct. 2001) (explaining in the
distinction between the use of a nolo plea context of holding that requiring
as evidence of the fact of conviction as defendant to admit guilt to attend sex
opposed to evidence of the commission of offender program did not violate right
the underlying crime. For example, in against self-incrimination that “a plea of
Strain v. Commonwealth, the court nolo contendere is to be treated the same
explained that “our Supreme Court has as a guilty plea”); Commonwealth v.
upheld the use of a conviction entered on Lewis,
791 A.2d 1227 (Pa. Super. Ct.
a plea of nolo contendere as evidence in a 2002) (holding in context of post-sentence
subsequent civil matter where it was the motion to withdraw a plea that a “‘plea of
fact of conviction, not the plea, that was nolo contendere is treated the same as a
the operative fact relied upon.” 784 A.2d guilty plea’”) (quoting Commonwealth v.
845, 848 (Pa. Cmwlth. Ct. 2001) (citing Miller,
748 A.2d 733, 735 (Pa. Super. Ct.
Eisenberg). The Strain court went on to 2000)).
explain that in that case “[s]uspension of a In addition, the instructions given
licensee’s operating privilege under the at Poellnitz’s sentencing hearing do not
Compact . . . does not turn on whether the affect the legal consequences of the nolo
licensee has admitted or denied guilty; it is plea. At the sentencing hearing on the
the conviction that triggers the provision.” charge of corruption of a minor, Poellnitz
Id.; see also Bourdeev v. Commonwealth, was specifically instructed and
755 A.2d 59, 61-62 (Pa. Cmwlth. Ct. acknowledged that “there is no difference
2000); Commonwealth v. Boyd, 292 A.2d between a plea of guilty and a plea of nolo
434, 435 (Pa. Super. Ct. 1972) (“Where a contendere,” App. at 133, and that “by
plea of nolo contendere is tendered by the pleading guilty to these charges, you’ll be
defendant and accepted by the court, it is in violation of that period of parole or
9
Thus, as a legal matter in pertinent part:
consideration of a nolo contendere plea as
evidence of Poellnitz’s commission of the The power of the court to
underlying crime was improper. On revoke a term of supervised
remand, the District Court should consider release for violation of a
whether there is sufficient evidence (under condition of supervised
the preponderance of evidence standard) release, and to order the
that Poellnitz violated a condition of defendant to serve a term of
supervised release. In conducting this imprisonment and . . . a
inquiry, the District Court should take into further term of supervised
account all evidence in the record, release, extends beyond the
including, but not limited to, evidence expiration of the term of
presented at Poellnitz’s plea hearing. supervised release for any
What the District Court may not do, period reasonably necessary
however, is treat the nolo plea as an for the adjudication of
admission by Poellnitz that he committed matters arising before its
the crime. expiration if, before its
expiration, a warrant or
III. summons has been issued
Poellnitz contends that the delay of on the basis of an allegation
nearly two years between the filing of the of such a violation.
supervised release violation petition and
the occurrence of the supervised release 18 U.S.C. § 3583(i) (emphasis added).
violation hearing was not “reasonably We exercise plenary review over questions
necessary.”13 18 U.S.C. § 3583 provides, of statutory interpretation. See United
States v. Thayer, 201 F.3d 214, 219 (3d
Cir. 1999).
probation,” id. at 132. These instructions, In analyzing this question, the
perhaps given erroneously, do not alter the District Court found instructive the
legal status of the nolo plea—such a plea Seventh Circuit’s decision in United
is not an admission of guilt under States v. Rasmussen,
881 F.2d 395 (7th
Pennsylvania law. Cir. 1989). In Rasmussen, the court
utilized the following factors in assessing
13
We address this issue, despite our whether the delay between the notice of
conclusion above that remand is probation action and hearing on the
warranted, because if Poellnitz is correct petition to revoke probation was a denial
we must reverse and the District Court of due process: length of delay, reason for
cannot reconsider on remand whether the delay, the probationer’s assertion of
there is sufficient evidence of commission his right, prejudice to the probationer, and
of a crime. the reason why the probationer was in
10
custody. Id. at 398 (citing Barker v. did not violate § 3583(i).”
Id. at 450.
Wingo,
407 U.S. 514 (1972); United In addition, we conclude that the
States v. Scott,
850 F.2d 316, 320 (7th Cir. delay in this case was not unreasonable.
1988)). Unlike the present case in which To begin, it was reasonable for the District
Poellnitz alleges the delay violated the Court to wait for the adjudication of the
terms of § 3583(i), Rasmussen claimed the state court charges before proceeding with
delay was a denial of due process. While the revocation hearing. Although it is not
Rasmussen may be distinguishable on necessary that the probationer be adjudged
these grounds and certainly does not guilty of a crime to revoke release, see
provide a rigid and exclusive set of factors
Manuszak, 532 F.2d at 317, it is certainly
that a court may consider, the decision understandable that the District Court
provides a useful framework for waited for adjudication of these state
considering whether the delay was charges because it might be relevant in the
unreasonable. We conclude that it was revocation proceeding.
not. Furthermore, the subsequent
To begin, we reject Poellnitz’s decisions to reschedule the hearing were
argument that the delay was not connected not unreasonable. The record does not
to the federal adjudication of the violation, reflect that Poellnitz objected to the
but was solely related to the adjudication District Court’s sua sponte decisions to
of state charges. Poellnitz’s reliance on reschedule, and the docket reflects
the Ninth Circuit’s decision in United considerable activity during this time,
States v. Garrett, 253 F.3d 443 (9th Cir. including Poellnitz’s motion for
2001) is misplaced. In Garrett, the court appointment of counsel and motion to
held that § 3583(i) “refers to the federal dismiss the petition. Moreover, granting
adjudication of the defendant’s supervised the Government’s motions requesting
release violations [and] [t]hus . . . extends rescheduling, which also appear to have
the jurisdiction of the federal court only to been unopposed, was reasonable in light
the period of time reasonably necessary to of the importance of Probation Officer
adjudicate pending supervised release Howard’s testimony. Cf. Rasmussen, 881
revocation issues.”
Id. at 459 (emphasis F.2d 395 (7th Cir. 1989) (holding 13-
added in Garrett). In other words, the month delay between notice of probation
jurisdiction of the federal court is action and hearing on petition to revoke
extended to permit adjudication of the probation was not a denial of due
federal supervised release revocation process); Bennett v. Bogan,
66 F.3d 812,
issue. But such adjudication can include 818 (6th Cir. 1995) (noting that “although
consideration of whether there was, as in the lengthy delay [of five and one-half
this case, the commission of a state law years] between the issuance and execution
violation. In fact, Garrett held that of the second warrant for Petitioner’s
“postponement of . . . [the] revocation arrest is lamentable, it does not rise to the
hearing until . . . release from state custody level of intolerable”).
11
The delay did not prejudice
Poellnitz’s ability to contest the validity of ****
his revocation. Poellnitz makes general For the foregoing reasons, the
assertions about how having to defend judgment of the District Court entered on
himself in 2003 against incidents allegedly October 3, 2003, as amended on October
occurring in late 1999 and early 2000 9, 2003, will be reversed and remanded
“caused the prospect of dimmed for further proceedings consistent with
memories, and the resulting possibility of this opinion.
inadequate cross examination.” Appellant
Br. at 29. Not only does Poellnitz not
identify any specific “dimmed memories,”
but his argument fails to recognize that he
was required to defend himself against
these charges in 2003 in the state court
proceedings, irrespective of the federal
supervised release hearing. In addition,
we are unpersuaded by Poellnitz’s
argument that he was prejudiced because
he was unaware of the pending charges
when he pled. At the plea hearing,
Poellnitz was instructed on and
acknowledged the potential impact of the
plea on his supervised release status.14
14
The testimony provides, in
pertinent part:
THE COURT: Were you on
parole or probation at the
t i me t h e s e o f f e n s e s
occurred?
THE DEFENDANT: Yes.
any sentence I might impose
T H E C OURT : Y ou upon you, that you would be
understand that by pleading subjecting yourself to an
guilty to these charges, additional penalty?
you’ll be in violation of that
THE DEFENDANT: Yes.
period of parole or
probation and in addition to App. at 132.
12
