795 F.3d 682
7th Cir.2015Background
- Robert L. Lee was on federal supervised release following a §924(c) conviction and was prohibited from committing any federal, state, or local crime.
- Probation filed a revocation petition citing two violations based on South Bend police reports alleging domestic violence/battery and assault and battery; a warrant issued and Lee was detained.
- At the revocation hearing the government presented medical, police, and probation witnesses who reported Pulliam said Lee struck her with a small baseball bat; photographs and a bat were produced.
- Pulliam testified for Lee and recanted, claiming her injuries resulted from falls; the district court credited the earlier statements to police/medical personnel over her recantation.
- The district court found Lee committed battery with a deadly weapon under Indiana law, revoked supervised release, and sentenced him to four years.
- On appeal Lee argued (for the first time) that the written revocation notice was constitutionally and procedurally inadequate because it did not cite a specific statutory provision for the alleged crime.
Issues
| Issue | Plaintiff's Argument (Lee) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether written notice required specific statutory citation when allegation is commission of a new crime | Revocation notice lacked adequate written notice because it did not cite the specific statute; per se rule should require statute citation | Rule 32.1 and Morrissey do not mandate a per se statutory citation; notice can be adequate via other specifics (e.g., police report) | Court rejected per se rule; notice was adequate here because it identified the police report and basic facts of the alleged offense |
| Standard of review given Lee failed to object in district court | Argues constitutional deficiency; seeks reversal | Government: Lee forfeited objection; review is plain-error only | Appellate review limited to plain error; no clear and obvious error shown |
| Prejudice from any alleged notice deficiency | Lee: lack of statute citation hampered defense strategy and cross-examination | Government: Lee had access to police report and full opportunity to cross-examine; no concrete prejudice shown | Court held any potential deficiency was harmless; Lee failed to show prejudice |
| Whether Ninth Circuit’s Havier rule (mandatory statute citation) should be adopted | Lee urges adoption of Ninth Circuit’s per se rule | Government and court decline to adopt Havier; prefer flexible, fact-specific approach | Court declines to adopt Havier; follows Seventh Circuit precedent favoring flexibility |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation due process protections include written notice of claimed violations)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (Morrissey protections extend to probation revocation)
- United States v. Kirtley, 5 F.3d 1110 (7th Cir. 1993) (minimum notice standards for revocation petitions; factual specificity required)
- United States v. Havier, 155 F.3d 1090 (9th Cir. 1998) (held statute citation required when new-crime allegation not evident from condition violated)
- United States v. Sewell, 780 F.3d 839 (7th Cir. 2015) (plain-error standard applied to unpreserved claims on appeal)