Federal Probation Revocation Hearings

An interesting case out of the Fourth Circuit was brought to my attention by this post by the Federal Criminal Appeals Blog entitled “Just Because It’s A Supervised Release Hearing Doesn’t Mean There Are No Rules.”

As the title suggests, federal probation revocation hearings are far less formal than a criminal trial. In fact, the rules that govern these hearings appear in only one section of the Federal Rules of Criminal Procedure: Rule 32.1. Below is an excerpt from the article.

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.

So, it’s possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn’t show up to mental health treatment, or to meet with his supervising probation officer.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist’s report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, “notwithstanding the objection,” the drug analysis report was “sufficient to support the [heroin] violation alleged.” Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, “in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell’s supervised release].” The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn’t have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn’t require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

We don’t do many posts on revocation hearings here, but the issue is important to both the federal process and our clients. If you have any questions regarding revocation (and especially how to avoid them) please give us a call at (480) 382-9287.

Good Advise for those Entering Federal Prison

In an article posted Thursday by former Missouri state senator Jeff Smith, a set of tips for entering federal prison were laid out.

The article was written to former Illinois Governor Rod Blagojavich on his impending report to federal prison. These tips are seem very remedial to those that have been inside federal prison, they don’t really need saying. However, for those who have never experienced it themselves, the tips are spot-on.

Below are excerpts from the original article from the Chicago Tribune.

After spending a year in federal prison on an obstruction of justice charge stemming from a 2004 congressional campaign violation, I have a few tips for former Illinois Gov. Rod Blagojevich as he heads for prison.

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion.

• When you get to prison, listen, watch and learn. You’ll have a hundred questions on your first day and in one month you will know the answer to 90 of them without having to ask and risk looking stupid.

• Don’t ever ask anybody about their crime. If they want to tell you what they did, fine. But you won’t know if they’re telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

• Don’t talk about how you got railroaded. So did everyone else.

• Don’t ask anything about anyone’s family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

• Don’t ever talk about how much time you have. Someone else has more.

2. Embrace your background, but don’t try to be a politician.

• The prison guards and administration will probably resent your presence, as it will mean added scrutiny on prison operations. Your charm will not work on them, so don’t try it. Instead, be as deferential as possible and try to blend in.

• You will have a nickname. It will probably be “Governor.” Accept that, but do so with deep humility.

• As a politician you were known for your gregariousness. But prison isn’t the Loop; not everyone wants to shake your hand. In fact, because of a collective obsession with hygiene and a fear of illness, no one in prison shakes hands — they bump fists. That doesn’t mean you should stroll down the compound fist-bumping dudes on your first day. As a hoops announcer might advise a star player in a big game, don’t press too hard; let the game come to you.

3. Get in the best shape of your life.

• Unlike most people, you are coming to prison in great shape. But you can always be in better shape. Set personal goals — maybe you want to run a marathon in prison; maybe you want to bench press 300 pounds. Working out every day will help pass the time, keep your endorphins pumping and keep you in a better frame of mind.

• Use your knowledge of running to help others lose weight. Inmates can control almost nothing, and since their body is one of the few things they can change, most work assiduously to improve themselves. Going running with others and helping them get in shape may be an effective way to build alliances.

• Play sports, but if your taste runs to contact sports such as basketball, be careful. Some people who have it out for you may exploit the opportunity to try to hurt you on the athletic field and not get in trouble for it.

4. Correspond with anyone who writes you.

5. Forgive your enemies.

6. Don’t complain about how bad your prison job is, and don’t brag about how good it is.

• Try to get a job working in the rec center or as a warehouse clerk, two of the most pleasant jobs in prison. But if you don’t get one, don’t complain about it. Just as is the case in any other environment, no one likes complainers. But in prison, people really don’t like them, because it’s a given that everyone is miserable.

7. Learn something new.

• Read all the books you wanted to read, but never had time. Then read all the ones you should have read, but didn’t want to.

• When the novelty wears off and the people who approach you are doing more than rubbernecking, don’t discount the possibility of making lifelong friends. You will meet some of the most fascinating people you have ever met, from all walks of life. Listen to their stories, and learn from them.

8. Use your unique knowledge and skills to help other inmates.

• Use your legal background to help prisoners who are bringing appeals pro se (representing themselves), but do so quietly so that you aren’t swamped with requests.

9. Don’t snitch, under any circumstances.

• The only people in prison who have it harder than child molesters are snitches. You need to learn how to see things (weapons, illegal drugs, people making hooch, pornography, etc) without seeing them; that is, learn to look away before anyone has seen you see the contraband.

• Stay away from snitches, and in general, watch the company you keep: in prison, you are your car (car = the people you “ride” with).

• If you committed other crimes for which you were not prosecuted, or are plotting any, don’t discuss them. As I’m sure you are now aware, you never know who’s listening.

• Don’t be seen talking to the Cos (correctional officers). Just like you could be cordial to Republicans but not be best friends with them without arousing suspicion among Democrats, you cannot be “friends” with the guards. Sure, there may be gangs and racial/ethnic division among prisoners. But there are really only two teams: inmates versus the prison. When guards try to get you to regale them with stories, resist the impulse to be on stage again. Do not forget this rule.

10. Don’t break prison rules.

• This may seem contradictory. The last rule suggested that you should tolerate prison rule-breaking — and you should. But try not to violate rules yourself.

• Don’t gamble. If you lose, you’ll be in debt and you do not want to be compromised like that. If you win, someone is likely to be very angry and may figure out a way to get his money back — a way that might leave you unrecognizable.

• Don’t “hold” anything someone asks you to hold, even if it looks innocuous; it’s probably got contraband inside of it.

• If you need a hustle to survive (i.e., stealing and selling food from the kitchen, washing and ironing others’ clothes), try not to encroach on someone else’s hustle. Presumably, others will need the stamps (money) more than you. Competition can be fierce.

11. Don’t look for trouble.

• Don’t change the TV channel, especially if women’s track is on, or “Ice Loves Coco.” There is an inscrutable yet stringent seniority-based regime when it comes to TV watching, and your celebrity does not entitle you to alter it in any way.

• Don’t stare.

• There is generally no reason to make eye contact with people unless they say your name.

12 Don’t eat the Snickers.

• You’ll go through orientation. You will be shown a mandatory sexual assault prevention video featuring a guy warning you not to eat the Snickers bar that may be waiting for you on your bed in your cell. (The actor ate the one left under his pillow, unwittingly signaling the predator who left it for him that he was ready and willing.) All the guys watching the video will laugh. But take the video’s message to heart: Don’t accept sweets from anyone.

Good luck, Governor. One day at a time.

Although these tips may not be most applicable with higher security prisons (the writer was a very low security level), the advice still resonates and can be applied with reasonable liberalness.