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


2-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4956




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 06-4956


                          UNITED STATES OF AMERICA,

                                          v.

                             GREG ALAN EBERSOLE,
                                            Appellant.
                                 ____________

                   On Appeal From The United States District Court
                        For The Middle District Of Pennsylvania
                                (D.C. No. Crim. 03-373)
                  District Judge: The Honorable William W. Caldwell
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 14, 2008

                   Before: FUENTES and JORDAN, Circuit Judges,
                             and RUFE*, District Judge.

                              (Filed : February 6, 2008)




__________________
    * Honorable Cynthia M. Rufe, Judge of the United States District Court for the
      Eastern District of Pennsylvania, sitting by designation.
                                 OPINION OF THE COURT


RUFE, District Judge.

                Greg Alan Ebersole (“Ebersole”) appeals from an Order of the Honorable

William W. Caldwell, United States District Judge for the Middle District of Pennsylvania,

revoking his supervised release after the Court found Defendant had violated its terms.

Ebersole contends that the District Court abused its discretion because his conduct did not

constitute a violation.

                                                 I.

                Ebersole was indicted in December 2003, for interstate stalking 1 and

possession of a firearm with an altered serial number.2 On July 1, 2004, Ebersole pleaded

guilty to the firearm charge, and was sentenced to serve 15 months in prison followed by

three years of supervised release, subject to special conditions. One of the conditions

prohibited Ebersole from having any contact with Valerie Beaston, directly or through

others.3


       1
           In violation of 18 U.S.C. § 2261A.
       2
           In violation of 18 U.S.C. § 922(k).
       3
         Ebersole violated this special condition two times before the violation at issue on
appeal: first, by writing a letter to Beaston, ostensibly about a civil suit between them,
resulting in the modified condition that, “except for legal proceedings, the defendant
shall have no written or personal contact with Valerie Beaston, directly or through
others”; and second, by purposefully coming into contact with Beaston in a convenience

                                                  2
              In late 2006, Ebersole’s Probation Officer, Stephen Leahey, filed a petition

for revocation of supervised release, alleging that Ebersole sent an e-mail to Valerie

Beaston’s sister, Wendy Baker, which she forwarded to Beaston. Ebersole’s

communication was sent from the e-mail address “VLBRNKiller@aol.com,” which

includes Beaston’s initials “VLB” and her profession as a Registered Nurse, or “RN.”

(App. 17.) The District Court found the content of the message implied a threat to

Beaston’s life, reading:

       The skank has just struck again to escalate the conflict with me. At first, there
       was plenty of time for justice to which I had given my most solemn vow. But
       her continued efforts to keep this war going have sabotaged any opportunities
       that she might have been awarded to settle this. It is clear that she will never
       decide to do the right thing, even given a hundred years to do consider it. Her
       actions have drastically shortened the timeline. Therefore, there is—if there
       is anything you would ever wish to say to either of us, I suggest you do it soon.

(App. 18.)
              The District Court found that Ebersole’s e-mail violated the conditions of

his supervised release because it was reasonable to assume that the message would reach

Beaston and any reasonable person would interpret it as a threat.4 The District Court


store, resulting in a reprimand by the District Court. (App. 8.)
       4
         Ebersole’s Myspace page was admitted at the November 22, 2006 revocation
hearing to put his e-mail in context. Ebersole’s Myspace page, entitled “Skanka8er-
Justice is Coming” (App. 20), played a theme song containing the lyrics: “I used to love
her, but I had to kill her/I had to put her/Six feet under/And I can still hear her complain.”
(Appellee’s Br. 9.) Ebersole’s Myspace page also included commentary stating, “I vowed
justice against my false accuser and I have never broken my word of honor . . . I honestly
don’t know how much time is left before she forces my hand.” (App. 20.) At the
revocation hearing, Ebersole testified that he used his Myspace webpage as a “vehicle to
voice [his] frustration.” (App. 29.)

                                              3
revoked Ebersole’s term of supervised release and imposed a sentence of ten months’

imprisonment. He then filed this timely appeal. Ebersole was released from prison on

August 6, 2007, after serving his ten-month sentence.

               We review the District Court’s findings of fact at the revocation hearing for

clear error.

                                              II.

               A threshold question is whether this appeal is now moot. It is well

established that federal courts do not have jurisdiction to decide an issue unless it presents

a live case or controversy. E.g., Defunis v. Odegaard, 416 U.S. 312, 316 (1974). We

must determine whether Ebersole’s claim has become moot even if the parties did not

raise the issue in their original briefs. See Chong v. INS, 264 F.3d 378, 383 (3d Cir.

2001). The “‘case or controversy requirement subsists through all stages of federal

judicial proceedings, trial and appellate . . . . The parties must continue to have a personal

stake in the outcome of the suit.’” Williams v. Sherman, 214 Fed. App’x. 264, 265 (3d

Cir. 2007) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990)). A live

case or controversy may become moot if (1) the alleged violation has ceased and there is

no reasonable expectation that it will recur, and (2) “interim relief or events have

completely and irrevocably eradicated the effects of the alleged violation.” County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979).




                                              4
                                            III.

              Ebersole completed his ten-month sentence while his appeal was pending

before this Court. As the issue of mootness was not addressed in the original briefs to

this Court, we requested supplemental briefing from the parties to address the jurisdiction

issue. In his supplemental brief, submitted by letter to the Court, Ebersole does not assert

that he suffers any concrete “injury-in-fact.” He simply argues that his reputation and

good name were injured as a result of the revocation. The Government asks this Court to

dismiss the appeal as moot, arguing that Ebersole lacks a concrete injury-in-fact. We

agree with the Government and conclude that this appeal is moot as it fails to present a

live case or controversy.

              While an incarcerated inmate’s challenge to the validity of his incarceration

satisfies the “case-or-controversy” requirement, the suit becomes moot upon the inmate’s

release from prison, unless he or she can demonstrate some “collateral consequence” that

persists beyond the expiration of the sentence and is “likely to be redressed by a favorable

judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). In Spencer, the petitioner

appealed the district court’s revocation of his parole for violating its terms. 523 U.S. at 8.

The Supreme Court required the petitioner to demonstrate collateral consequences

adequate to meet Article III’s injury-in-fact requirement, finding that 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



                                              5
Sibron v. New York, 392 U.S. 40, 55 (1968)). The Spencer Court explained, “[o]nce the

convict’s sentence has expired . . . some concrete and continuing injury other than the

now-ended incarceration or parole – some ‘collateral consequence’ of the conviction –

must exist if the suit is to be maintained.” Id. at 7 (citing Carafas v. LaVallee, 391 U.S.

234, 237-38 (1968)). The Court found that Spencer’s purported injuries in fact – that

parole revocation could be used against him in future parole proceedings, to increase his

sentence in future sentencing proceedings, to impeach him should he appear as a witness

or litigant in a future judicial proceeding, or as a defendant in a future criminal

proceeding – were insufficient to establish a collateral consequence, and therefore

dismissed his appeal as moot. Id. at 14-18.

              Although Spencer addressed collateral consequence in the realm of parole

revocations, this Court has held that the same rule applies to a wide range of similar

circumstances, including the revocation of supervised release. See United States v.

Kissinger, 309 F.3d 179 (3d Cir. 2002) (holding that the petitioner’s attempted distinction

between parole and probation hearings does not affect this Court’s mootness

determination because Spencer applies to the revocation of supervised release).5 The



       5
         Similarly, other Courts have applied Spencer to the revocation of supervised
release. See 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 Spencer to dismiss as moot a challenge to the

                                               6
potentially adverse treatment asserted by Ebersole fails to satisfy the collateral

consequence standard established by Spencer. Therefore, we find that Ebersole’s appeal

is moot because he has completed the sentence of imprisonment imposed, and no

collateral consequence is present under these circumstances.




revocation of supervised release).

                                              7
