                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-3-2008

USA v. Walls
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1554




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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     __________

              Nos. 07-1554 and 07-1726
                    __________


          UNITED STATES OF AMERICA

                          v.

                GEORGE D. WALLS,
                               Appellant
                   __________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
          (D.C. Criminal Nos. 04-cr-00001J
                           and 92-cr-00002J)
       District Judge: Honorable Kim R. Gibson
                     __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on July 3, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

              (Filed: September 3, 2008)


                     __________

             OPINION OF THE COURT
                   __________
RENDELL, Circuit Judge.

       Appellant George D. Walls (“Walls”) appeals the District Court’s order revoking

his terms of supervised release. After conducting a revocation hearing pursuant to

Federal Rule of Criminal Procedure 32.1(b)(2), the District Court found that Walls

violated a condition of his release by, inter alia, committing the crimes of sexual assault

and indecent assault in violation of Pennsylvania state law.1

       On appeal, Walls argues that the District Court erred in (1) conducting the

revocation hearing without giving him an opportunity to confront and/or cross examine

the individual whom he was convicted in state court of assaulting and (2) finding that

there was sufficient evidence to prove that he committed the crimes of assault for which

he was convicted.2 We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons

stated below, we will affirm.




  1
   Walls’ term of supervised release carried with it, as a mandatory condition, a
requirement that he “not commit another federal, state, or local crime” during the term of
supervision. (App. 23, 25.)
  2
   At the revocation hearing, Walls stipulated to committing the crime of theft by
deception/forgery in violation of Pennsylvania law and in violation of the terms of his
supervised release. Walls does not challenge that aspect of the District Court’s revocation
order.

                                              2
                                      DISCUSSION 3

                     I. Opportunity to Confront Adverse Witness

       Walls first argues that his revocation hearing was inherently flawed, as the District

Court did not require the individual whom he was convicted of assaulting to appear and

testify. Walls asks that we overturn the District Court’s revocation order and remand his

case for a new hearing.

       Pursuant to Rule 32.1(b)(2), a defendant is entitled to, inter alia, “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.” Fed. R. Crim. P.

32.1(b)(2)(C) (emphasis added). The Advisory Committee Notes to Rule 32.1 state that

subsection (b)(2)(C) “recognize[s] that the court should apply a balancing test at the

hearing itself when considering the releasee’s asserted right to cross-examine adverse

witnesses. The court is to balance the person’s interest in the constitutionally guaranteed

right to confrontation against the government’s good cause for denying it.” See also

United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); United States v. Rondeau, 430

F.3d 44, 48 (1st Cir. 2005); United States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004);

United States v. Martin, 382 F.3d 840, 844-845 (8th Cir. 2004). Though Walls himself

acknowledges this as the correct standard, he contends that neither the “interest of


  3
   As we write solely for the benefit of the parties, who are familiar with the facts and
procedural history of this case, we confine our discussion to the legal issues presented and
include only those facts necessary to our disposition.

                                              3
justice” nor “good cause” justified the Government’s failure to produce his victim 4 at the

revocation hearing.

       We review the District Court’s application of the Rule 32.1(b)(2)(C) balancing test

for an abuse of discretion. United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006).

“Abuse of discretion encompasses clearly erroneous findings of fact and misapplications

of law.” Id.

       In concluding that it was not necessary for the individual whom Walls was

convicted of assaulting to appear and testify at his revocation hearing, the District Court

relied heavily on the fact that the victim had already been “examined and cross-examined

during the state prosecution of the Defendant.” (App. 32.) Though the Court

acknowledged Walls’ many challenges to the victim’s credibility, it nonetheless “d[id] not

see the value of re-examining another witness from the state criminal trial, in addition to

the Defendant.” (App. 32-33.) The Court explained:

       [T]he Defendant uses as support for his [credibility] argument[s] portions of
       the state trial transcript from other duly sworn and competent witnesses who
       already testified, but would have the Court preside over a second
       examination, in a supervised release proceeding, of a complaining witness
       from the state criminal prosecution. To single out the Defendant and the
       complaining witness from the state criminal prosecution for purposes of
       having this Court engage in an exercise of judging the credibility of the two
       appears to be a selective recognition of the credibility of the trial witnesses.

(App. 33).


  4
    We do not modify “victim” with the term “alleged,” as the Walls’ state criminal jury
trial resulted in a conviction.

                                              4
         In light of the District Court’s stated reasoning, we cannot say that it abused its

discretion in failing to require Walls’ victim to appear and testify at his revocation

hearing. Further, as the District Court explicitly stated in its Memorandum Opinion, its

decision to revoke Walls’ supervised release was “based upon the evidence of the [state

court] convictions” 5 (App. 30), and the Court addressed the state criminal trial testimony

of Walls’ victim only “for the sake of completeness” (id.).6 Thus, even were we to

determine that the District Court abused its discretion in permitting Walls’ revocation

hearing to proceed without the testimony of his victim—which we do not—the error

would only be reversible if the alternate basis for the District Court’s holding (i.e., the

evidence of the state court convictions) could not sustain the revocation of Walls’

supervised release. We turn next to that precise question.

                               II. Sufficiency of the Evidence

         As his second issue on appeal, Walls challenges the sufficiency of the evidence

underlying the District Court’s decision to revoke his supervised release. The District

Court found that the certified copy of Walls’ state court convictions for sexual assault and

indecent assault was sufficient evidence to demonstrate, by a preponderance of the




  5
   Walls himself acknowledges this fact in his brief. (See Appellant’s Br. 38 (“The
district court based its revocation of Mr. Walls’ supervised release upon his state court
convictions for indecent assault and sexual assault.”).)
  6
      The Government introduced a transcript of the victim’s sworn state court testimony.

                                                5
evidence,7 that Walls violated a term of his release by committing two state crimes. (App.

25-30.) Walls contends that the District Court should not have considered his state court

convictions as evidence that he violated his release conditions. Specifically, Walls argues

that, because his convictions were the result of a jury verdict, and not an admission of

guilt, they “do[] not prove that a crime was actually committed.” (Appellant’s Br. 39

(emphasis in original).) According to Walls, the “continual maintenance of his innocence

alone make [sic] the convictions an inadequate basis upon which to revoke his supervised

release.” (Appellant’s Br. 40.) In support of this contention, Walls cites only one case:

United States v. Poellnitz, 372 F.3d 562 (3d Cir. 2004).8

       In Poellnitz, the defendant was subject to the same supervised release condition as

Walls, prohibiting him from committing any crimes “federal, state, or local” during the



  7
   A supervised release violation must be proven by a preponderance of the evidence, not
beyond a reasonable doubt. 18 U.S.C. § 3583(e)(3); United States v. Dees, 467 F.3d 847,
854-55 (3d Cir. 2006). As we explained in United States v. Poellnitz, 372 F.3d 562, 566
(3d Cir. 2004):

       A court can revoke probation when it is reasonably satisfied that the
       probation conditions have been violated, without the government being
       required to present proof beyond a reasonable doubt that the defendant
       committed the alleged acts. In other words, to revoke probation it is not
       necessary that the probationer be adjudged guilty of a crime, but only that
       the court be reasonably satisfied that he has violated one of the conditions.

(internal quotation marks and citations omitted).
  8
  Because Walls’ challenge is “essentially legal in nature,” our review is de novo.
Poellnitz, 372 F.3d at 565 (internal quotation marks omitted).


                                             6
term of his release. Id. at 564. Prior to the expiration of his term, Poellnitz was arrested

and charged with a number of state crimes to which he eventually pleaded nolo

contendere. Id. Relying on his state court convictions, the District Court revoked

Poellnitz’s supervised release, and Poellnitz appealed. Upon review, we held that

Poellnitz’s nolo contendere plea, without more, was insufficient to establish that he

violated a condition of his supervised release. We explained that, under Pennsylvania

law, “[i]n pleading nolo contendere; the defendant does not admit his guilt, but merely

consents to being punished as if he were guilty,” id. at 568 (internal quotation marks

omitted); accordingly, we concluded, “a nolo plea . . . has no evidentiary value in

assessing whether the defendant committed a crime” id. at 567.

       Walls takes our discussion of nolo contendere pleas in Poellnitz and seeks to

extend it to the facts of his case. Walls argues that, because his convictions were the

result of a jury verdict “to which [he] did not acquiesce” (Appellant’s Br. 38), there exists

no factual admission of guilt, and thus, “Poellnitz . . . dictates that the jury’s verdict . . .

cannot be considered evidence of [his] guilt of the underlying conduct” (Appellant’s Br.

39). Unfortunately for Walls, Poellnitz dictates no such conclusion and, in fact, supports

the opposite.

       To be clear, at the outset of our opinion in Poellnitz, we recognized that “[i]n the

normal course, one might expect that if the court finds [that the] defendant was convicted

of a crime, the court may automatically revoke release based on the defendant’s



                                                7
commission of the underlying offense[, but t]hat is not so when it comes to the peculiar

legal effect of the plea of nolo contendere.” Thus, our holding in Poellnitz was based on

the “peculiar” nature of a nolo contendere plea, which is fundamentally different than a

guilty verdict rendered upon the conclusion of a trial by jury.

       Ultimately, “[w]hat matters is whether [the defendant] committed [a] crime as a

matter of fact.” Id. at 567. And while a plea of nolo contendere is not evidence of the

fact that the pleader actually committed a crime, a jury verdict of guilty is itself a finding

of fact. As stated by the District Court, “[n]o attorney or court can dispute that it is the

function of the jury to resolve factual issues at trial and the jury in state court found

[Walls] guilty of sexual assault and indecent assault using the standard of proof beyond a

reasonable doubt. . . . The jury finding [that Walls was] guilty of both crimes establishes

that [Walls] committed the offenses of sexual assault and indecent assault.” (App. 27.)

We agree. The standard of proof employed by the jury in convicting Walls of sexual and

indecent assault is significantly higher than the standard of proof necessary to sustain the

revocation of his release. Accordingly, evidence of Walls’ convictions is more than

sufficient to sustain the District Court’s order in this case.

       The fact that Walls is pursuing a collateral appeal of his convictions does not

change our conclusion.9 The case of Roberson v. Connecticut, 501 F.2d 305 (2d Cir.


  9
    On June 18, 2004, Walls was granted a new trial by order of the Court of Common
Pleas of Allegheny County based on his claim that he had not been given a fair trial due
to a hearing impairment that had not adequately been accommodated by the trial court.

                                               8
1974), is instructive. In that case, the Second Circuit Court of Appeals held that evidence

of a criminal conviction is sufficient to establish, by a preponderance of the evidence, that

the defendant violated the terms of his probation even in light of a pending direct appeal.

In doing so, the Court reasoned:

       [a] criminal conviction after a trial at which the probationer was entitled to
       all the protections afforded a criminal defendant including formal rules of
       evidence, the right to assigned counsel if indigent, and the requirement that
       the state establish guilty beyond a reasonable doubt certainly affords a more
       than sufficient basis for revocation of probation, even if that conviction is
       still awaiting appellate review.

Id. at 308; see also United States v. Spraglin, 418 F.3d 479 (5th Cir. 2005) (involving

revocation of supervised release); United States v. Fleming, 9 F.3d 1253 (7th Cir. 1993)

(same). We find the Second Circuit’s reasoning to be persuasive and thus apply it here.

       As did the District Court, we “see[] no reason to treat convictions that are subject

to a pending direct appeal differently than convictions that are subject to a collateral

attack when determining if a conviction can be a basis to revoke a term of supervised

release.” (App. 30.) Thus, even in light of his collateral attack, we conclude that Walls’

state court convictions were sufficient to justify the District Court’s revocation of his

supervised release. Accordingly, we will affirm.




The ruling was appealed, and on November 3, 2005, the Pennsylvania Superior Court
reversed the decision and the order for a new trial was vacated. Walls now pursues a
collateral attack upon his state convictions based on ineffective assistance of counsel.

                                              9
                                      III. Conclusion

         For the reasons set forth above, we will AFFIRM the judgment of the District

Court.




                                             10
