United States v. Mullane
480 F. App'x 908
10th Cir.2012Background
- Mullane was convicted of possession with intent to distribute marijuana and released in Oct 2009 on supervised release.
- In 2011, police investigated Mullane’s wife for meth distribution; a search of their apartment yielded meth, paraphernalia, and cash.
- Mullane was arrested and charged with three supervised-release violations, including drug possession and possession with intent to distribute.
- A violation report indicated a Grade A violation (drug distribution) and Grade C violations, implying different imprisonment ranges.
- At the revocation hearing, the district court found Mullane guilty of possession with intent to distribute or aiding and abetting, a Grade A violation, and sentenced him to 36 months.
- Mullane argues the notices were inadequate to charge distribution and that the evidence did not prove intent to distribute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the notice plain error for not specifying distribution? | Mullane: notice failed to identify distribution statute; inadequate for Grade A charge. | Government: notice stated drug offense and Grade A potential; sufficient to inform and prepare. | Notice not plain error. |
| Was the evidence sufficient to prove intent to distribute? | Mullane: insufficient nexus, no proof of his involvement in distribution. | Government showed Mullane linked to wife’s drug distribution and to paraphernalia at the apartment. | Sufficient evidence by preponderance. |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (fundamental due-process protections in revocation proceedings)
- United States v. Copeland, 20 F.3d 412 (11th Cir. 1994) (due process and notice in supervised release revocation)
- United States v. Martin, 984 F.2d 308 (9th Cir. 1993) (Rule 32.1 incorporation of Morrissey protections)
- United States v. Story, 635 F.3d 1241 (10th Cir. 2011) (plain-error standard for supervisory-release notice)
- United States v. Disney, 253 F.3d 1211 (10th Cir. 2001) (abuse of discretion review; preponderance standard for revocation)
- United States v. Leach, 749 F.2d 592 (10th Cir. 1984) (credibility and weigh of testimony in revocation)
- United States v. Jones, 530 F.3d 1292 (10th Cir. 2008) (plain-error review framework)
- United States v. Chatelain, 360 F.3d 114 (2d Cir. 2004) (strict specificity of notice varied by circuit)
- United States v. Kirtley, 5 F.3d 1110 (7th Cir. 1993) (notice specificity in violations reports)
- United States v. Havier, 155 F.3d 1090 (9th Cir. 1998) (requirement of specificity for drug-related charges)
- United States v. Verners, 53 F.3d 291 (10th Cir. 1995) (nexus requirement for possession with intent to distribute)