USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1628
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD L. GALLO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Miriam Conrad, Federal Defender Office, for appellant.
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Timothy Q. Feeley, Assistant United States Attorney, with
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whom A. John Pappalardo, United States Attorney, was on brief,
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for appellee.
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March 31, 1994
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SELYA, Circuit Judge. This appeal tests the propriety
SELYA, Circuit Judge.
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of an order revoking appellant's probation and sentencing him to
serve a portion of a previously suspended prison term. We
affirm.
I. BACKGROUND
I. BACKGROUND
We succinctly summarize the facts necessary to place
this appeal into proper perspective, recounting disputed facts in
a manner consistent with the district court's supportable
findings of fact.
On November 5, 1987, a federal grand jury in the
District of Columbia indicted defendant-appellant Edward L. Gallo
on a medley of firearms charges.1 Initially, the district court
found appellant incompetent to stand trial and ordered him
civilly committed. He was diagnosed as suffering from paranoid
schizophrenia, thought to be incurable but, hopefully,
controllable through medication. Thereafter, in July of 1989,
appellant pleaded guilty to a single count of possessing an
unregistered firearm in violation of 26 U.S.C. 5861(j). The
district court then dismissed the remaining five counts of the
indictment; sentenced appellant to three years of imprisonment,
suspended; placed him on probation for five years; and crafted a
special set of conditions ancillary to the probationary term.
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1Police officers, who were investigating a threat to harm
former Secretary of State George Schultz, intercepted Gallo as he
emerged from a Washington motel on November 3, 1987. The
officers found a small arsenal in the trunk of Gallo's
automobile, including a rifle, a sawed-off shotgun, a semi-
automatic shotgun, and various types of ammunition.
2
The first and second conditions possess particular pertinence for
present purposes. They read in relevant part:
1. The defendant shall be confined to St.
Elizabeth's Hospital for a period of sixty
days.
2. Defendant shall continue to submit to
proper psychiatric treatment, inclusive of
medication, upon his release from impatient
[sic] hospitalization and shall consent to
the Probation Office having access to his
medical records. . . .
In fact, appellant stayed at St. Elizabeth's for much longer than
sixty days following the imposition of sentence. In the fall of
1990, the hospital discharged him. In the same time frame, three
other interrelated events occurred: appellant took up residence
at his mother's home in Massachusetts; the sentencing court
transferred jurisdiction over the matter to its sister court in
the District of Massachusetts; and probation supervision began in
that district.
While at St. Elizabeth's, appellant first met Dr.
Geller, a Massachusetts-based psychiatrist. After appellant
sojourned to Massachusetts, he consulted regularly with Dr.
Geller.2 His course of treatment centered around a monthly
injection of haloperidol decanoate (Haldol). The treatment
protocol featured gradual decreases in dosage, aimed at lessening
the patient's dependence upon the drug. Appellant, who
steadfastly maintained that he had no psychiatric disorder and
that he should not be on medication at all, favored the dosage-
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2Throughout the course of treatment Dr. Geller submitted
periodic reports to the probation office.
3
reduction program.
Over a period of more than two years, Dr. Geller
decreased Gallo's dosage from 150 milligrams per month to 25
milligrams per month. In January of 1993, however, the doctor
noted ominous behavioral changes. For example, appellant began
writing of his belief that satellites and lasers were attacking
him and threatening national security; in addition, he began
acting in a manner reminiscent of how he had behaved immediately
prior to his arrest in 1987. When the dosage dropped to 20
milligrams per month, Dr. Geller became concerned that appellant
was no longer responding appropriately to the medication.
Nonetheless, appellant expressed staunch opposition to resuming
heavier doses of Haldol.
The dosage-reduction program continued until May 21,
1993, when Dr. Geller, due in part to Gallo's opposition to
increasing the dosage and in part to the reported recurrence of
hallucinogenic experiences, advised the probation office of his
opinion that "proper psychiatric treatment" demanded "an
inpatient psychiatric admission" because Gallo could not "be
effectively or safely managed on an outpatient basis."3 A
probation officer immediately visited appellant and informed him
of Dr. Geller's recommendation. Appellant debunked the need for
inpatient treatment and refused to cooperate. The probation
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3The straw that broke the dromedary's back may have emerged
on May 20, when Gallo for the first time voiced an inability to
assure Dr. Geller that he would not do something he or others
would regret.
4
officer concluded that "given Mr. Gallo's current mental state, .
. . he presents a potential risk to himself and/or others." On
the following day, the officer requested that the district court
issue a warrant for violation of the conditions attendant to
probation.
After an evidentiary hearing, the district court,
citing, inter alia, the risk to public safety, found that
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appellant needed inpatient care to determine the proper level of
medication and get his treatment program back on track. The
court then ruled that appellant had violated the outstanding
probation order by refusing to undergo hospitalization. On this
basis, the court revoked Gallo's probation, sentenced him to a
one-year term of immurement, see 18 U.S.C. 3565(a)(2) (1988)
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(stipulating that, upon finding a probation violation, a court
may "revoke the sentence of probation and impose any other
sentence that was available . . . at the time of the initial
sentencing"), and recommended that appellant serve the sentence
in "a facility that can provide the appropriate psychiatric
treatment and . . . hospitalization." The court also imposed a
follow-on term of supervised release, attaching seven special
conditions to that term (including a condition requiring
continued psychiatric care).
Gallo appeals. Although he parades several assignments
of error before us, they march beneath two broad banners. First,
appellant challenges the probation order, asseverating that it
neither required involuntary hospitalization nor afforded him
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adequate notice that, by refusing such care, he would be risking
imprisonment. Second, he challenges the revocation decision
itself, including the finding that a violation occurred.4
II. THE PROBATION ORDER
II. THE PROBATION ORDER
The Due Process Clause extends to probation revocation
proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).
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Fair warning of conduct that may result in revocation is an
integral part of due process in such situations. See United
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States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987). Here,
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appellant argues that the conditions of his probation did not
require him to acquiesce in hospitalization, or, alternatively,
did not provide fair warning that failure to do so might result
in revocation. We approach these arguments with full realization
that the interpretation of a probation condition and whether it
affords a probationer fair warning of the conduct proscribed
thereby are essentially matters of law and, therefore, give rise
to de novo review on appeal. See In re Howard, 996 F.2d 1320,
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1327 (1st Cir. 1993) (explaining that "unadulterated questions of
law" customarily entail plenary review); cf. Firestone Tire &
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Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (establishing
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4Initially, appellant also claimed that the district court,
in sentencing him to a period longer than that suggested in
U.S.S.G. 7B1.4, failed adequately to consider the Sentencing
Commission's policy statement. Since appellant has now served
the one-year sentence in full, he has withdrawn this claim. But
because he is still serving the supervised release term, the same
circumstance does not render the remainder of his appeal moot.
See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (holding
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that, although a sentence has been served, the presence of
"collateral consequences" can save a case from mootness).
6
standard of de novo judicial review for construction of employee
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benefit plans).
A. Scope of the Conditions.
A. Scope of the Conditions.
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The threshold question is whether inpatient treatment
falls within the scope of the probation order. We believe that
the conditions of probation definitely encompass such treatment.
The probation order states that appellant must
"continue to submit to proper psychiatric treatment, inclusive of
medication, . . . ." We are confident that this broadly phrased
directive, read naturally and with due regard for context, covers
inpatient care. After all, the sentencing judge attached no
qualifiers or words of limitation to the requirement of
treatment, other than that the treatment be "proper" and
"psychiatric." And in terms of language, we deem it significant
that the condition directs that appellant "continue to submit to
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proper psychiatric treatment. . . ." (Emphasis supplied.) When
this verb usage is examined against the backdrop of the
immediately preceding condition, which memorializes that
appellant "shall be confined to St. Elizabeth's Hospital" for his
initial treatment,5 continuation of that treatment cannot fairly
be read to exclude further hospitalization. And, moreover, an
expansive reading is especially compelling in light of the
incurable nature of appellant's illness and his previous three-
year stay in a psychiatric hospital.
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5By like token, Condition No. 2 itself states that it is to
take effect "upon [Gallo's] release from impatient [sic]
hospitalization. . . ."
7
We think, too, that the circumstances surrounding the
probation order necessitate such an interpretation. The plea
agreement commemorated appellant's understanding that he would
have to report on a regular basis to a "mental health physician
chosen by the government" and "follow the doctor's instructions
unless excused by an order of the Court." Thus, the plea
agreement made pellucid that appropriate medical care lay at the
heart of the agreed disposition of appellant's case and
hospitalization is a mainstay of appropriate medical care.
Moreover, the probationary period was to last for five years;
during so lengthy a span, it was certainly foreseeable that
appellant's medical needs might evolve in such a way as to
require rehospitalization. Put bluntly, inpatient care, having
proved necessary in the past, was well within the universe of
treatment modalities that might prove "proper" in the future.
Under the circumstances of this case, it is beyond
serious question that the words "proper psychiatric treatment"
were intended to include and did include the possibility of
hospitalization. Consequently, we reject appellant's complaint
that the conditions attached to his probation did not require
submission to inpatient medical care.
B. Sufficiency of the Warning.
B. Sufficiency of the Warning.
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Appellant has a fallback position. He strives to
persuade us that, even if the written conditions extended to
enforced hospitalization, they did not afford him adequate notice
that refusal to accept such treatment would constitute a
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violation of his probation. In studying this proposition, we
must ask whether appellant was chargeable with knowledge of the
probation order's inclusive requirements (and the penalties that
might be imposed for disregarding those requirements) when he
spurned the request to admit himself to the hospital.
When, as now, a court order is read to proscribe
conduct that is not in itself unlawful, the dictates of due
process forbid the forfeiture of an actor's liberty by reason of
such conduct unless he is given fair warning. See United States
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v. Grant, 816 F.2d 440, 442 (9th Cir. 1987); United States v.
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Dane, 570 F.2d 840, 843 (9th Cir. 1977), cert. denied, 436 U.S.
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959 (1978); see also Marks v. United States, 430 U.S. 188, 191
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(1977) (discussing fair warning in respect to conduct that is
deemed criminal); Bouie v. City of Columbia, 378 U.S. 347, 351
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(1964) (similar). Nevertheless, the fair warning doctrine does
not provide a safe harbor for probationers who choose to ignore
the obvious.
Furthermore, though a probationer is entitled to notice
of what behavior will result in a violation, so that he may guide
his actions accordingly, fair warning is not to be confused with
the fullest, or most pertinacious, warning imaginable.
Conditions of probation do not have to be cast in letters six
feet high, or to describe every possible permutation, or to spell
out every last, self-evident detail. See Green v. Abrams, 984
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F.2d 41, 46-47 (2d Cir. 1993) (holding that, though a probation
order did not specify the time for payment of a fine, it gave
9
sufficient notice that failure to pay the fine would work a
violation); see also United States v. Ferryman, 897 F.2d 584, 590
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(1st Cir.) (noting in an analogous context that defendants are
entitled only to "fair notice," not "letter perfect notice"),
cert. denied, 498 U.S. 830 (1990). Conditions of probation may
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afford fair warning even if they are not precise to the point of
pedantry. In short, conditions of probation can be written and
must be read in a commonsense way.
Adherence to these principles demands that we uphold
the adequacy of the warning furnished here. We have three main
reasons for reaching this conclusion. First, we cannot fault the
district court's finding that the phrase "proper psychiatric
treatment, inclusive of medication," on the basis of its plain
meaning, see supra Part II(A), put appellant on notice that a
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refusal to follow doctor's instructions and submit to
hospitalization would constitute a violation of the probation
order.6 Cf., e.g., Mace v. Amestoy, 765 F. Supp. 847, 849-50
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(D. Vt. 1991) (ruling that a condition of probation requiring
participation in and completion of a "sexual therapy program" put
defendant on notice that therapy might necessitate admitting his
sexual misconduct). The challenged condition, read in context,
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6Appellant contends that, under Simmons, 812 F.2d 561, a
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probationer is routinely entitled to receive more specific notice
of proscribed behavior than that delivered by means of formal
conditions of probation. We disagree. A careful reading of the
passage cited by appellant indicates that our view coincides with
that of the Simmons court. When the proscribed behavior is not
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itself criminal in nature, formal conditions of probation,
plainly written, are generally thought to supply sufficient
actual notice of proscribed activities. See id. at 565.
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itself provided fair warning.
Second, there is nothing in the record to suggest
either that appellant acted under a misapprehension or that he
believed a refusal to accept inpatient admission would comport
with the conditions of his probation. A probationer who does not
advance a credible claim that he was unaware, or misunderstood
the scope, of the conditions of his probation is hard pressed to
claim that he lacked fair warning. See, e.g., United States v.
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Laughlin, 933 F.2d 786, 790 (9th Cir. 1991). So it is here.
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Finally, the inquiry into fair warning is not
necessarily confined to the four corners of the probation order.
See Grant, 816 F.2d at 442; United States v. Romero, 676 F.2d
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406, 407 (9th Cir. 1982). The meaning of a probation order may
be illuminated by the judge's statements, the probation officer's
instructions, or other events, any or all of which may assist in
completing the notification process and in aiding the court to
determine whether a probationer has been forewarned about what
conduct could be deemed to transgress the probation order.
Here, several pieces of data buttress the district
court's finding that appellant received fair warning. In the
first place, the plea agreement provided a prism through which
the conditions of probation could be read and that agreement
made the scope of the conditions very clear. See supra pp. 7-8.
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In the second place, appellant signed his name below the list of
conditions contemporaneous with the imposition of the original
sentence. In this fashion, he signified his understanding that,
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upon a finding of a violation, probation might be revoked. Such
a manifestation of acceptance of the terms, though rebuttable, is
prima facie evidence of a probationer's knowing acceptance of the
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conditions in place at the time probation commenced. See, e.g.,
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Green, 984 F.2d at 47; United States v. Barth, 899 F.2d 199, 203
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(2d Cir. 1990), cert. denied, 498 U.S. 1083 (1991).
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It is also significant that both the probation officer
and the court repeatedly explained to appellant the risk he was
running. The record reflects that the probation officer told
appellant on May 21 that Dr. Geller believed inpatient treatment
was essential to meet the goal of "proper psychiatric treatment"
and exhorted appellant to comply. Such a conversation may be
considered as a component of the notification process. See,
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e.g., Green, 984 F.2d at 47; Romero, 676 F.2d at 407; Mace, 765
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F. Supp. at 849-50. Furthermore, the district judge, who
exhibited great sensitivity in his thoughtful handling of a
difficult case, urged appellant on more than one occasion to
relent and told him in no uncertain terms that, if his
intransigence did not abate, he would be found in violation of
the probation order.
To sum up, appellant timely received the probation
order; the conditions of probation contained therein clearly
contemplated inpatient care if medically indicated; and the
penalties that might flow from violating those conditions were
apparent. Given the unvarnished terms of the special condition,
appellant's previous three-year hospital stay, the tenor of the
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plea agreement, the probation officer's guidance, and the
district judge's entreaties, appellant received ample notice of
both the proscription against refusing inpatient treatment and
the possible, if not certain, consequence of persisting in his
chosen course of conduct.
III. THE REVOCATION DECISION
III. THE REVOCATION DECISION
The standard of appellate review pertaining to
revocation decisions is not in doubt. When a district court,
after holding an evidentiary hearing, finds a probation violation
and determines that revocation is a condign response, we will not
prepare a palimpsest, but will scrutinize the district court's
decision only for abuse of discretion. See Burns v. United
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States, 287 U.S. 216, 222 (1932); United States v. Nolan, 932
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F.2d 1005, 1006 (1st Cir. 1991); United States v. Morin, 889 F.2d
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328, 331 (1st Cir. 1989).
To reach the point at which revocation of probation is
appropriate, a district court must complete a two-step pavane.
The first component is historical; it involves the "retrospective
factual question whether the probationer has violated a condition
of probation." Black v. Romano, 471 U.S. 606, 611 (1985). The
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second component is judgmental; it involves "a discretionary
determination by the sentencing authority whether violation of a
condition warrants revocation of probation." Id. We proceed to
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review the district court's determinations as to each component,
mindful, withal, that "[t]he Due Process Clause . . . imposes
procedural and substantive limits on the revocation of the
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conditional liberty created by probation." Id. at 610.
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A. The Violation.
A. The Violation.
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At a revocation proceeding, the prosecution need not
prove the conduct charged beyond a reasonable doubt; it is enough
if the proof, reasonably viewed, satisfies the court that a
violation occurred. See United States v. Gordon, 961 F.2d 426,
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429 (3d Cir. 1992); United States v. Czajak, 909 F.2d 20, 22 (1st
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Cir. 1990); United States v. Lacey, 661 F.2d 1021, 1022 (5th Cir.
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1981), cert. denied, 456 U.S. 961 (1982).
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The government met this burden in the instant case.
Despite being fully apprised of Dr. Geller's views and receiving
an urgent request from the probation officer, appellant did not
agree to institutionalize himself. Even after the judge drew a
line in the sand, appellant remained adamant in his insistence
that he would not submit to inpatient care. On this stark
record, the district court's explicit finding that appellant
knowingly and wilfully elected to ignore a condition of his
probation is entirely supportable. It follows that the first
step in the two-step pavane is easily ventured.7
B. The Disposition.
B. The Disposition.
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When revocation of probation is committed to judicial
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7Appellant argues that there was no medical need for
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hospitalization, but merely an administrative need, i.e., a
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desire to husband the costs of supervision. Assuming, without
deciding, that this is a meaningful distinction, we nonetheless
reject the argument. Dr. Geller's testimony at the revocation
hearing, fully credited by the district court, made it clear that
he treated appellant as he would have treated any other similarly
afflicted patient, and that hospitalization was needed as an
integral part of "proper psychiatric treatment."
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discretion, judges should not regard it as a routine response to
every probation violation. Rather, revocation should be reserved
for those instances in which the case history, coupled with the
probationer's behavior, indicates that it is a fair, just, and
sensible outcome. See, e.g., Nolan, 932 F.2d at 1006; United
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States v. Fryar, 920 F.2d 252, 257 (5th Cir. 1990), cert. denied,
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499 U.S. 981 (1991); see also Steven A. Childress & Martha S.
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Davis, Federal Standards of Review, 11.39 at 11-161 (2d ed.
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1986). This second step of the revocation analysis necessitates
individualized attention to the particular probationer and to the
idiosyncratic circumstances of his situation. And, it requires a
predictive decision, based in part on the court's assessment of
the probationer's propensity toward antisocial conduct. See
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Lacey, 661 F.2d at 1022; United States v. Reed, 573 F.2d 1020,
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1024 (8th Cir. 1978).
Although the trial court possesses wide latitude in
making such determinations, that latitude is not unbounded. The
test for abuse of discretion is well settled in this circuit:
In making discretionary judgments, a district
court abuses its discretion when a relevant
factor deserving of significant weight is
overlooked, or when an improper factor is
accorded significant weight, or when the
court considers the appropriate mix of
factors, but commits a palpable error of
judgment in calibrating the decisional
scales.
United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992);
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accord, e.g., Independent Oil & Chem. Workers of Quincy, Inc. v.
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Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988);
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15
United States v. Hastings, 847 F.2d 920, 924 (1st Cir.), cert.
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denied, 488 U.S. 925 (1988). Applying this test, we are unable
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to discern any smidgen of abuse in the district court's decision
to revoke probation in order to ensure that appellant receive
necessary medical treatment. Based on a careful combing of the
record we conclude that the court considered all the appropriate
factors and made no detectable mistake in weighing them.
Nor is this conclusion undercut by appellant's lament
that the district court, in revoking probation, impermissibly
punished him for faultless conduct. This thesis finds its
genesis in appellant's view that because his mental health status
is involuntary (most recently induced, he claims, by the
government, which placed him on, then tried to wean him away
from, Haldol), revocation of probation is an improper punishment
for it. This argument is lame. See Bearden v. Georgia, 461 U.S.
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660, 668 n.9 (1983) (explaining that "the probationer's lack of
fault in violating a term of probation [does not] necessarily
prevent a court from revoking probation"). In this vein, United
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States v. Brown, 899 F.2d 189, 193 (2d Cir. 1990), appropriately
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reminds us that "though a probation violation may result in
incarceration . . ., this punishment is imposed not for the
violation itself but for the prior criminal offense for which the
probationer was convicted."
We will not belabor the obvious, for it is difficult to
imagine a much clearer case than the case at bar. As appellant's
outpatient treatment program progressed, his mental and social
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state deteriorated; he began hallucinating about messages from
inanimate objects and felt threatened by satellites. Moreover,
he made it plain that he did not consider himself mentally ill;
that, left to his own devices, he would not take medication to
alleviate the manifestations of his disorder; and that he would
not submit voluntarily to inpatient care. Especially in light of
appellant's defiance of the doctor's instructions and his
previous involvement in threats of grievous bodily harm against a
public official, his situation called out for remediation. The
district court, after finding that appellant had violated the
terms of probation, simply answered the call, effecting a
disposition that ensured appropriate treatment for appellant's
affliction and, at the same time, alleviated a cognizable risk to
public safety.
IV. CONCLUSION
IV. CONCLUSION
We need go no further.8 In the original case,
appellant gained his liberty subject to a condition of probation
that required him to submit to inpatient psychiatric treatment
when medically indicated. Having been fairly warned of the
prospective consequences of intransigence, he nonetheless chose
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8The question of appellant's competency at the time of
revocation is not before us. Appellant did not make a claim of
incompetency; no party sought a competency hearing, see 18 U.S.C.
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4241(a) (1988); and the record contains no evidence of cause
sufficient to impel a court, sua sponte, to launch an inquiry
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into competency. A history of psychiatric treatment, in and of
itself, does not require a court to convene a competency hearing
on its own initiative. See Hernandez-Hernandez v. United States,
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904 F.2d 758, 760-61 (1st Cir. 1990); see also United States v.
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Teague, 956 F.2d 1427, 1431-32 (7th Cir. 1992); Hernandez v.
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Ylst, 930 F.2d 714, 717-18 (9th Cir. 1991).
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17
to flout the condition. Thereafter, he turned his back on
numerous opportunities to deliver himself from the revocation
proceeding by agreeing to enter the hospital. In the
circumstances of this case, the lower court did not err in
finding a violation of the probation order, revoking appellant's
probationary status, and imposing a one-year incarcerative
sentence, followed by a term of supervised release.
Affirmed.
Affirmed.
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