                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2002

USA v. Kissinger
Precedential or Non-Precedential: Precedential

Docket No. 01-4247




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PRECEDENTIAL

       Filed October 29, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4247

UNITED STATES OF AMERICA

v.

CHARLES KISSINGER,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

District Judge: Honorable Bruce W. Kauffman
(D.C. No. 00-m-00253)

Argued May 23, 2002

BEFORE: MCKEE, STAPLETON and WALLACE,*
Circuit Judges

(Filed: October 29, 2002)

       Peter Goldberger (Argued)
       50 Rittenhouse Place
       Ardmore, PA 19003-2276

        Lead Appellate Counsel
       for Defendant-Appellant,
       Charles Kissinger
_________________________________________________________________

* Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.




       Ronald L. Kuby
       740 Broadway, 5th Floor
       New York, NY 10003

        Attorney for Appellant,
       Charles Kissinger

       Patrick L. Meehan
       United States Attorney
       Richard W. Goldberg (Argued)
       Asst. United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106-1250

        Attorneys for Appellee,
       United States of America

OPINION OF THE COURT

WALLACE, Circuit Judge:

Kissinger appeals from the sentence he received for
violating his probation. The magistrate judge had
jurisdiction to impose the sentence under 18 U.S.C.
S 3401(a). The district court had jurisdiction under 18
U.S.C. S 3742(g). We have jurisdiction over this timely
appeal pursuant to 28 U.S.C. S 1291. Because Kissinger
has been unconditionally released from custody and
probation in the interim, we dismiss this appeal as moot.

I

On July 3, 1999, Kissinger was arrested while protesting
the conviction of Mumia Abu-Jamal at the Liberty Bell
Pavilion in Independence National Historic Park. Kissinger
was convicted under 36 C.F.R. S 2.32(a)(2) for violating a
lawful government order "where the control of public
movement and activities [was] necessary to maintain order
and public safety." The magistrate judge sentenced
Kissinger to a one-year term of probation with a condition
that Kissinger not leave New York City without obtaining
permission from his probation officer.

                                  2


During this probationary period, Kissinger requested
permission to speak at a political demonstration in
Philadelphia. The magistrate judge denied this request, but
Kissinger nevertheless traveled to Philadelphia. The
magistrate judge sentenced Kissinger to three months
imprisonment and one year probation for violating his
probation condition. Kissinger contends that the imposition
and administration of the probation condition violated his
First Amendment rights.

II

Our statutory jurisdiction to consider Kissinger’s appeal
is not necessarily lost by his unconditional release from
custody. United States v. Antar, 38 F.3d 1348, 1355-56 (3d
Cir. 1994). However, we are precluded by Article III, S 2 of
the Constitution from entertaining an appeal if there is no
longer a live case or controversy. Nextel Partners Inc. v.
Kingston Tp., 286 F.3d 687, 693 (3d Cir. 2002). We must
determine whether Kissinger’s claim has become moot even
if the parties did not raise the issue in their original briefs.
Chong v. INS, 264 F.3d 378, 383 (3d Cir. 2001). Although
this action was live when filed and may have become moot
only during the pendency of this appeal, Article III requires
that an actual controversy exist through all stages of
litigation, including appellate review. See Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78 (1990).

Kissinger does not attack his underlying conviction.
Instead, he challenges the probation condition limiting his
ability to travel. While his appeal was pending before this
court, Kissinger completed the probationary and
incarceration period. The question is whether his appeal is
now moot.

A

Generally, once a litigant is unconditionally released from
criminal confinement, the litigant must prove that he or she
suffers a continuing injury from the collateral consequences
attaching to the challenged act. Sibron v. New York, 392
U.S. 40, 55-56 (1968), carved an exception to this rule by
allowing the presumption of collateral consequences when

                                3


a litigant challenges a criminal conviction. Kissinger urges
us to presume collateral consequences stem from his
allegedly invalid probation revocation. To be successful,
Kissinger must persuade us that he need not prove, but
may presume, collateral consequences sufficient to satisfy
Article III. Spencer v. Kemna, 523 U.S. 1, 14 (1998).

In Spencer, the petitioner was convicted of felony stealing
and burglary. Id. at 3. The petitioner did not attack his
convictions, but his parole revocation. Id. at 8. Spencer
refused to extend Sibron’s presumption of collateral
consequences to attacks of parole revocations, Spencer, 523
U.S. at 12, and required the petitioner to demonstrate
collateral consequences adequate to meet Article III’s
injury-in-fact requirement. Id. at 14. While"it is an ‘obvious
fact of life that most criminal convictions do in fact entail
adverse collateral legal consequences,’ [t]he same cannot be
said of parole revocation." Id. at 12, quoting Sibron, 392
U.S. at 55. Because the petitioner completed the
punishment he received from his challenged parole
revocation and could not allege sufficient collateral
consequences, the Supreme Court held his challenge moot.
Id. at 18.

Kissinger seeks to distinguish Spencer on the ground that
Spencer involved a parole revocation proceeding, while the
present action involves a probation revocation proceeding.
Kissinger argues his probation revocation imposed a new
sentence because probation revocation proceedings are
heard by a judge, while parole revocation proceedings are
heard before a parole board. Even assuming (but not
deciding) that probation revocation proceedings impose a
new sentence, Kissinger’s attempted distinction would not
affect our mootness determination. Several courts have
applied Spencer to the revocation of supervised release.
United States v. Meyers, 200 F.3d 715, 721 n. 2 (10th Cir.
2000) ("This court can discern no relevant differences
between parole and supervised release which would militate
against the applicability of Spencer"); United States v. Clark,
193 F.3d 845, 847-48 (5th Cir. 1999) (per curiam) (applying
Spencer and dismissing as moot a challenge to the district
court’s extension of supervised release); United States v.
Probber, 170 F.3d 345, 348-49 (2d Cir. 1999) (applying

                                4


Spencer and dismissing as moot a challenge to the
revocation of supervised release). Like probation, supervised
release is also imposed by the judiciary, 18 U.S.C.S 3583(a)
(supervised release); 18 U.S.C. S 3562(a) (probation), and its
revocation is heard by the judiciary. 18 U.S.C.S 3583(e)(3)
(supervised release); 18 U.S.C. S 3565(a)(2) (probation).
Finally, the conditions the judiciary is permitted to impose
are identical for probation and supervised release. United
States v. Evans, 155 F.3d 245, 250-51 (3d Cir. 1998)
(comparing 18 U.S.C. S 3563(b) governing probation with 18
U.S.C. S 3583(d) governing supervised release).

Kissinger has simply not shown any distinction between
parole and probation that would justify distinguishing
Spencer. We hold that Spencer is not limited to the parole
context, but applies with equal force in the probation
context. See also United States v. Ofchinick, 937 F.2d 892,
897 (3d Cir. 1991) (holding that a probationer may appeal
a probation condition prior to its violation because, inter
alia, "any challenge to a condition of probation which must
await violation of the condition and probation revocation
may, by its very nature, become moot"); United States v.
Brandt, 113 F.3d 127, 128 (8th Cir. 1997) (challenge of
probation revocation mooted by challenger’s unconditional
release). Because Kissinger does not challenge his
underlying conviction, he must prove that collateral
consequences adequate to satisfy Article III attach to his
probation revocation.

B

In attempting to demonstrate sufficient collateral
consequences arising from his probation revocation,
Kissinger argues that his allegedly invalid record as a
probation violator may enhance his sentences in future
crimes. This collateral consequence is insufficient to
breathe life into the mooted controversy because the
possible effect of an increased sentence depends on
Kissinger’s subsequent commission and conviction of a
crime. Spencer, 523 U.S. at 15 (rejecting collateral
consequences that depend upon future convictions because
litigants are "able--and indeed required by law--to prevent
such a possibility from occurring"), quoting Lane v.

                                5


Williams, 455 U.S. 624, 632 n. 13 (1982). Spencer rejected
this collateral consequence in the context of parole
revocations. 523 U.S. at 15. See also Lane, 455 U.S. at 632
n. 13. Other circuits have rejected this collateral
consequence in the context of supervised release. United
States v. Meyers, 200 F.3d 715, 722 (10th Cir. 2000);
United States v. Probber, 170 F.3d 345, 348-49 (2d Cir.
1999). Any suggested difference between probation and
parole is in vain, for in computing the criminal history
category under the Federal Sentencing Guidelines,
revocation of probation is treated the same as revocation of
supervised release or parole. U.S. Sentencing Guidelines
Manual S 4A1.2(k) (2001).

Kissinger argues that his allegedly invalid record as a
probation violator may cost him a bail release. Yet a former
probation violation is one factor of many that would guide
a judge’s discretion on bail release, 18 U.S.C.S 3142(g);
Probber, 170 F.3d at 349, and the collateral consequence of
such discretionary decisions are incapable of rendering this
appeal live. Spencer, 523 U.S. at 16; Lane, 455 U.S. at 632-
33.

Kissinger also argues that an allegedly invalid probation
violation would have the effect of chilling his
constitutionally protected speech. While expressing no
opinion as to whether this injury is sufficient to meet
Article III’s injury-in-fact requirement, we conclude that
this injury does not present a sufficient collateral
consequence. First, the alleged chilling effect is too
speculative to afford this court jurisdiction. It is precisely
this sort of speculation that Spencer deems insufficient to
bypass the Article III constraints. Spencer, 523 U.S. at 15-
16. Second, Kissinger would be chilled from exercising his
free speech rights only while committing an offense. If he is
not committing an offense, then his record as a probation
violator will not disadvantage him. Because any possible
chill is contingent upon Kissinger’s prediction of his future
criminal activity, it fails to serve as an adequate collateral
consequence. See Spencer, 523 U.S. at 15; Lane, 455 U.S.
at 632 n. 13.

                                6


III

Lastly, Kissinger argues that this case presents a
situation that is capable of repetition yet evading review, a
narrow exception to the mootness doctrine. County of
Morris v. Nationalist Movement, 273 F.3d 527, 534 (3d Cir.
2001). See also City of Los Angeles v. Lyons, 461 U.S. 95,
109 (1983) ("[T]he capable-of-repetition doctrine applies
only in exceptional situations"). This exception will rescue
a moot controversy only if "(1) the challenged action [is] in
its duration too short to be fully litigated prior to cessation
or expiration, and (2) there [is] a reasonable expectation
that the same complaining party [will] be subject to the
same action again." Spencer, 523 U.S. at 17, quoting Lewis
v. Continental Bank Corp., 494 U.S. 472, 481 (1990). See
also Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001).

Kissinger has not established that the challenged
probation condition is in its duration too short to be fully
litigated prior to its expiration. Other challenges to
probation conditions have been decided by this court.
United States v. Loy, 237 F.3d 251, 267-70 (3d Cir. 2001)
(condition of supervised release); United States v. Crandon,
173 F.3d 122, 127-28 (3d Cir. 1999) (condition of
supervised release); United States v. Warren, 186 F.3d 358,
366-67 (3d Cir. 1999) (condition of probation). It thus
cannot be said that challenges to probation conditions are
in their nature too short to be fully litigated. See, e.g., Dilley
v. Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995) ("The scores of
cases in which we have reviewed [similar] claims . . .
demonstrate that these cases do not generally evade
review").

Kissinger has also failed to establish a reasonable
probability that he will again be arrested, convicted, and
placed on probation with the challenged condition. Instead,
Kissinger contends only that his political activities increase
his chances of arrest, whether or not he has actually
committed any offense, "simply because he does not avoid
the company of those engaged in rowdy and sometimes
unrestrained actions [when] expressing unpopular political
views." Insofar as Kissinger argues that he is of the type
who is more likely that the general citizen to commit a
crime, this sort of speculation cannot resurrect his moot

                                7


claim. "Such conjecture as to the likelihood of repetition
has no place in the application of this exceptional and
narrow grant of judicial power." Abdul-Akbar v. Watson, 4
F.3d 195, 207 (3d Cir. 1993). Insofar as he argues that he
will be wrongfully arrested, he faces the additional hurdle of
establishing a reasonable expectation that he will be
wrongfully convicted, which he has not done.

Even if Kissinger is later arrested, there is no reasonable
expectation that he will again be put on probation with the
challenged condition and again be denied permission to
travel to political demonstrations. See, e.g. , Abdul-Abkar, 4
F.3d at 206-207 (refusing to invoke the exception absent a
demonstrated probability that the former inmate will be
incarcerated again and be among the inmate population of
the specific prison challenged); Doe, 257 F.3d at 314
(refusing to invoke the exception absent reasonable
likelihood that the former prisoner will be subjected to the
same challenged prison practices in the same prison
facility); Schepp v. Fremont Cty., 900 F.2d 1448, 1453 (10th
Cir. 1990) (refusing to invoke the exception in a challenge
to a probation revocation because plaintiff failed to show a
reasonable expectation that he would again be tried and
convicted in Wyoming and then released on probation).

Because there is no live case or controversy before us,
Kissinger’s appeal must be dismissed.

APPEAL DISMISSED

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
8
