                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2004

USA v. Poellnitz
Precedential or Non-Precedential: Precedential

Docket No. 03-4044




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                        PRECEDENTIAL           MARY BETH BUCHANAN
                                               United States Attorney
                                               BONNIE R. SCHLUETER
    UNITED STATES COURT OF                     Assistant U.S. Attorney, Chief of Appeals
           APPEALS                             Division
     FOR THE THIRD CIRCUIT                     LAURA S. IRWIN
                                               Assistant U.S. Attorney
                                               Office of United States Attorney
             No. 03-4044                       700 Grant Street, Suite 400
                                               Pittsburgh, PA 15219

  UNITED STATES OF AMERICA                                   Counsel for Appellee

                   v.                          LISA B. FREELAND
                                               Acting Federal Public Defendner
      SHAWN L. POELLNITZ,                      KAREN S. GERLACH
                                               Assistant Federal Public Defender
                          Appellant            Office of Federal Public Defender
                                               1001 Liberty Avenue
                                               1450 Liberty Center
                                               Pittsburgh, PA 15222
   On Appeal from the United States
              District Court                                 Counsel for Appellant
for the Western District of Pennsylvania
       (Dist. Ct. No. 95-cr-00158)
 District Judge: Honorable William L.
                 Standish                                      OPINION


                                               CHERTOFF, Circuit Judge.
 Submitted Under Third Circuit LAR                    Shawn L. Poellnitz appeals from
              34.1(a)                          the District Court’s order finding that he
           May 14, 2004                        violated a condition of his supervised
                                               release by committing a state crime.
  Before: NYGAARD, McKEE and                   Poellnitz argues that (1) there was
    CHERTOFF, Circuit Judges.                  insufficient evidence to prove that he
                                               committed a state crime, namely because
         (Filed: June 25, 2004)                he pled nolo contendere (instead of guilty)
                                               to the crime in state court and passed a
                                               polygraph test, and (2) the delay between

                                           1
the filing of the supervised release petition       2001, the United States Probation Office
and the supervised release violation                (USPO) issued a “Status Report/Request
hearing was not “reasonably necessary,” as          for Warrant in Abeyance.” The letter
required by 18 U.S.C. § 3583. The                   reported that Poellnitz was arrested on
District Court exercised jurisdiction               June 7, 2001, and charged with indecent
pursuant to 18 U.S.C. § 3231. This Court            assault, corruption of a minor, and
has jurisdiction under 28 U.S.C. § 1291.            endangering the welfare of a child. On
For the reasons stated below, we will               November 13, 2001, the probation office
reverse the District Court’s order and              filed a Petition on Supervised Release
remand for a determination of whether               (“Petition”), alleging Poellnitz violated
there is sufficient evidence (under a               conditions of supervised release and
preponderance standard) that Poellnitz              requesting the court issue a bench warrant
committed a crime.                                  to be held in abeyance until the pending
                                                    state charges were resolved.           On
                     I.                             November 15, 2001, the District Court
        On November 16, 1995, Poellnitz             granted the Petition, and on November 16,
pled guilty to engaging in monetary                 2001, the District Court issued the arrest
transactions in property derived from               warrant, to be held in abeyance.
specified unlawful activity, in violation of               On February 10, 2003, Poellnitz
18 U.S.C. § 1957(a), and making a false,            entered a plea of nolo contendere in the
ficticious or fraudulent claim, in violation        Court of Common Pleas of Allegheny
of 18 U.S.C. § 287. The District Court              County, Pennsylvania, to the charge of
sentenced Poellnitz to 37 months in prison          corruption of a minor.2 On February 20,
followed by 3 years of supervised release.1         2003, the USPO filed a Supplemental
The terms of the sentence included a                Petition on Supervised Release
provision that “[w]hile on supervised               (“Supplemental Petition”), alleging
release, the defendant shall not commit             violations of the supervised release and
any crimes, federal, state, or local and            requesting issuance of a summons for
shall abide by the standard conditions of           Poellnitz to appear to show cause why the
supervised release.” App. at 3 (emphasis            District Court should not revoke his
added).                                             supervised release. On February 25, 2003,
        Poellnitz was released from custody         the District Court granted the
and began to serve his term of supervised           Supplemental Petition and scheduled the
release on November 19, 1998. The term              revocation hearing for April 11, 2003.
of supervised release was set to expire on          The District Court subsequently sua
November 18, 2001. On November 9,

                                                          2
                                                              The other counts—indecent
       1
         Poellnitz received this sentence           assault and endangering the welfare of a
for each count, to be served concurrently.          child—were withdrawn.

                                                2
sponte rescheduled the hearing on three           Amended Order, pursuant to Federal Rule
occasions: On February 27, 2003, the              of Criminal Procedure 35(a).4 In the
hearing was rescheduled for May 2, 2003;          Amended Order, the District Court found
on April 8, 2003, the hearing was again           Poellnitz guilty of violating a state law
rescheduled for May 16, 2003; and, on             while on supervised release, but contrary
May 28, 2003, the hearing was again               to the original Order did not find him
rescheduled for June 20, 2003.                    guilty of failing to pay full restitution.
        Additionally, on July 10, 2003, the       The Court treated the state law violation as
District Court granted Poellnitz a                a grade C violation and, pursuant to 18
continuance due to Poellnitz’s health             U.S.C. § 3583(e)(3) and (h), revoked
problems, and the hearing was                     Poellnitz’s supervised release and
rescheduled for July 21, 2003. Similarly,         sentenced him to a term of one month’s
on two occasions the District Court               imprisonment, to be served in home
granted Government motions to                     confinement pursuant to 18 U.S.C. §
reschedule because of the unavailability of       3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of
Probation Officer Verne Howard: On July           the United States Sentencing Guidelines. 5
16, 2003, the District Court granted a
motion and reset the hearing for                         4
September 12, 2003; and on July 24, 2003,                    “(a) Within 7 days after
the District Court granted a motion               sentencing, the court may correct a
resetting the hearing for September 26,           sentence that resulted from arithmetical,
2003. The hearing ultimately took place           technical, or other clear error.” Fed. R.
on October 2, 2003.          There is no          Crim. P. 35(a).
indication on the docket sheet as to why                 5
                                                           The Notice of Appeal was filed on
the hearing was postponed between                 October 3, 2003. Pursuant to Federal Rule
September 26 and October 2.3                      of Appellate Procedure 4(b)(5), “[t]he
        In an October 3, 2003 Order, the          filing of a notice of appeal under this Rule
District Court found that Poellnitz had           4(b) does not divest a district court of
violated a state law while on supervised          jurisdiction to correct a sentence under
release and failed to pay full restitution.       Federal Rule of Criminal Procedure 35(a),
The District Court ordered that the term of       nor does the filing of a motion under 35(a)
supervised release be reinstated to               affect the validity of a notice of appeal
commence October 2, 2003, and to run for          filed before entry of the order disposing of
a term of five months. On October 9,              the motion.” Fed. R. App. P. 4(b)(5).
2003, the District Court issued an                Thus, the District Court retained
                                                  jurisdiction to amend the judgment. The
                                                  Government argues that this appeal
       3
         All dates are derived from the           properly flows from the October 9, 2003
District Court docket entries. See App. at        Amended Order, and not the October 3
27-34.                                            Order, as suggested by Poellnitz. Because

                                              3
                     II.                                     The plain language of 18 U.S.C. §
       Poellnitz argues there was                    3583(e)(3) requires a finding by “a
insufficient evidence to prove that he               preponderance of the evidence that the
violated a condition of his supervised               defendant violated a condition of
release by committing a crime because he             supervised release.” When the condition
pled nolo contendere (rather than guilty)            is that the defendant not commit a crime,
to the crime charged and passed a                    there is no requirement of conviction or
polygraph test. Poellnitz’s challenge to             even indictment.        This Court has
the propriety of the District Court’s                emphasized “the broad discretion which is
consideration of a nolo contendere plea as           traditionally given to district courts to
proper evidence that he committed a crime            revoke probation when probation
in violation of his supervised release is a          conditions are violated.” United States v.
question that is “essentially legal in               Gordon, 961 F.2d 426, 429 (3d Cir. 1992).
nature, [and] we will exercise de novo               A “court can revoke probation when it is
review.” United States v. Blackston, 940             reasonably satisfied that the probation
F.2d 877, 882 (3d Cir. 1991) (citing                 conditions have been violated, without the
United States v. Ortiz, 878 F.2d 125, 126-           government being required to present
27 (3d Cir. 1989)). We conclude that the             proof beyond a reasonable doubt that the
District Court erred as a legal matter in            defendant committed the alleged acts.” Id.
relying on the nolo plea as evidence of              at 429; see also United States v.
commission of a crime.6                              Chambers, 429 F.2d 410, 411 (3d Cir.
                                                     1970) (citations omitted). In other words,
                                                     “to revoke probation it is not necessary
the challenges mounted by Poellnitz are
equally applicable to both orders, the
technical question of which order is being
appealed is not dispositive. However, to             lacked sufficient evidence to support its
avoid duplicative and unnecessary                    finding of commission of a crime. While
litigation, we treat this as an appeal from          the District Court admitted the polygraph
the October 9 Amended Order.                         examination, it concluded that the
                                                     examination was not “particularly relevant
       6
           We do not address the factual             . . . because . . . [it] relates to . . . conduct
question of whether there is sufficient              different from the conduct . . . alleged to
evidence to establish a violation, a                 have been the basis for the corruption
determination that would be reviewed for             charge.” App. at 262. On remand, the
clear error. See Blackston, 940 F.2d at              District Court should consider this
879. Therefore, we need not address                  evidence, in conjunction with other
Poellnitz’s argument that in light of the            evidence in the record, to determine
polygraph examination results indicating             whether a preponderance of the evidence
that Poellnitz was truthful in denying               supports the conclusion that Poellnitz
certain alleged activities, the District Court       committed a crime.

                                                 4
that the probationer be adjudged guilty of         was convicted of a crime, the court may
a crime, but only that the court be                automatically revoke release based on the
reasonably satisfied that he has violated          defendant’s commission of the underlying
one of the conditions.” United States v.           offense. That is not so when it comes to
Manuszak, 532 F.2d 311, 317 (3d Cir.               the peculiar legal effect of the plea of nolo
1976).                                             contendere.      While a nolo plea is
        The novel question presented here          indisputably tantamount to a conviction, it
is whether Poellnitz’s nolo contendere             is not necessarily tantamount to an
plea, without more, is sufficient to               admission of factual guilt. See United
establish that he violated a condition of          States v. Adedoyin, No. 02-3042, slip op.
supervised release even under the                  at 8-9 (3d Cir. May 28, 2004); see also
relatively relaxed burden of proof that            United States v. Wyatt, 762 F.2d 908, 911
applies. The answer depends upon (1)               (11th Cir. 1985) (holding nolo plea was
what actually constitutes a violation of the       not admissible to prove defendant had
condition of release, and (2) what                 admitted his guilt, although the underlying
significance we attribute to a nolo plea.          facts were admissible); United States v.
        The condition of release specified         Graham, 325 F.2d 922, 928 (6th Cir.
in the revocation proceeding was that the          1963) (internal citations omitted) (“It is
“defendant shall not commit any crimes,            true that a nolo contendere plea permits a
federal, state or local.” App. at 3. The           judgment of conviction and the imposition
condition was not that defendant shall not         of punishment the same as if a plea of
be convicted of another crime. What is             guilty had been made. However, it has
forbidden is illegal conduct, not another          been held that it is not admissible to aid
judgment of conviction. In order to                proof of guilt in another proceeding.”).
establish that Poellnitz was guilty of a           And since the condition of release in this
violation of this condition of release,            case was to avoid the commission of a
therefore, the government did not have to          crime—not to avoid a conviction for a
show that he was convicted of a new                crime—establishing that Poellnitz was
crime, but did have to show that he                convicted of a new crime through his plea
actually committed a new crime. In this            is not enough. What matters is whether he
case, the District Court’s finding that            committed that crime as a matter of fact.
Poellnitz committed a new state crime was          Thus, we are obliged to ask whether the
not based exclusively or primarily on              plea that Poellnitz entered can be deemed
evidence of the facts underlying the               to establish underlying guilt, and not
alleged new state crime. Rather, the               merely the fact of a criminal conviction.
District Judge treated the nolo plea as the                 We observe at the outset that the
proof that Poellnitz committed the                 effect of the nolo plea in question here is
underlying crime. See App. at 18.                  governed by state law. The Federal Rules
        In the normal course, one might            of Criminal Procedure and the Federal
expect that if the court finds defendant           Rules of Evidence establish certain

                                               5
limitations on the effect of a nolo plea as        regards a nolo plea as constituting an
a matter of federal criminal law, or in the        admission or evidence of criminal
context of federal trials. See Adedoyin,           conduct, then it was entitled to whatever
No. 02-3042, slip op. at 7-8. Here,                weight the District Court chose to give it.
however, the nolo plea in question is not a        So, for example, in United States v.
federal plea, and the rules of evidence do         Verduzco, 330 F.3d 1182, 1185 (9th Cir.
not apply in a supervised release                  2003), the Ninth Circuit relied on
proceeding.7 See Fed. R. Ev. 1101(d)(3).           California Penal Code § 1016, which
        The critical question therefore is         provides that the “legal effect of [a nolo
how Pennsylvania law regards the legal             contendere] plea, to a crime punishable as
effect of the nolo plea that Poellnitz             a felony, shall be the same as that of a plea
entered in response to the state criminal          of guilty for all purposes,” in holding that
charge of corrupting a minor.             If       the District Court properly relied on nolo
Pennsylvania treats such a plea as a               plea to find violation of supervised
judgment of conviction, but not an                 release.    See also United States v.
admission of guilt, then that plea was             Guardarrama, 742 F.2d 487 (9th Cir.
entitled to no evidentiary weight at the           1984) (per curiam) (same).8
revocation hearing. Cf. Olsen v. Correiro,                A review of the applicable statutes
189 F.3d 52, 60 (1st Cir. 1999) (citations         and case law reveal that in Pennsylvania a
omitted) (“[I]n most jurisdictions,                nolo plea does not constitute an admission
including Massachusetts, a nolo plea is not        of factual guilt, and thus has no
a factual admission that the pleader
committed a crime. Rather, it is a
statement of unwillingness to contest the                 8
                                                            Several circuit courts have noted
government’s charges and an acceptance             that “[a] certified copy of a conviction is
of the punishment that would be meted out          proper evidence that a defendant violated
to a guilty person.”).                             a state or federal law and, thereby,
        On the other hand, if state law            violated a condition of his supervised
                                                   release.” United States v. Hofierka, 83
                                                   F.3d 357, 363-64 (11th Cir. 1996) (per
       7
        In Adedoyin, the defendant at trial        curium) (citing cases); see also United
sought to exclude a California conviction.         States v. Fleming, 9 F.3d 1253, 1254 (7th
We did not, however, examine the                   Cir. 1993) (per curium). These cases,
meaning of a nolo plea under California            however, deal with an entirely different
law. Rather, because federal evidentiary           situation—instances where the defendant
rules applied, the case was analyzed               entered a guilty plea. A nolo plea is an
pursuant to Federal Rule of Evidence 410.          entirely different species—“a nolo plea is
                                                   not a factual admission that the pleader
                                                   committed a crime.” Olsen, 189 F.3d at
                                                   59.

                                               6
evidentiary value in assessing whether the          evidence of guilt in a subsequent
defendant committed a crime.          The           proceeding.
Pennsylvania Rules of Evidence                              Unlike its federal counterpart,
differentiate between the admissibility of          Federal Rule of Evidence 410, the
guilty pleas and nolo pleas in subsequent           Pennsylvania Rules of Evidence appear to
proceedings:                                        be equally applicable to revocation
                                                    proceedings. See Pa.R.E. 101 (“These
       Except as otherwise                          rules of evidence shall govern proceedings
       provided in this rule,                       in all courts of the Commonwealth of
       evidence of the following is                 Pennsylvania’s unified judicial system,
       not, in any civil or criminal                except as otherwise provided by law.”).
       proceeding, admissible                       While the revocation proceeding at issue
       against the defendant who                    is a federal proceeding, and thus not
       made the plea or was a                       governed by the Pennsylvania Rules of
       participant in the plea                      Evidence, the Pennsylvania Rules provide
       discussions:                                 substantial support for the conclusion that,
       ....                                         under Pennsylvania law, nolo pleas do not
       (2) a plea of nolo                           have any evidentiary value as an
       contendere                                   admission of guilt.10
       ....                                                 Pennsylvania case law further
                                                    supports this conclusion.             Under
Pa.R.E. 410. The Comment clarifies that             Pennsylvania law, “[a]lthough the effect
the Rule “does not prohibit the use of a            of a plea of nolo contendere is equivalent
conviction that results from a plea of nolo         to a plea of guilty, the import of the pleas
contendere, as distinct from the plea itself,
to impeach in a later proceeding (subject
to Pa.R.E. 609) or to establish an element                 10
                                                              As the District Court noted, §
of a charge in a later administrative               71.4 of the Pennsylvania Administrative
proceeding.” Pa.R.E. 410 cmt. (citing               Code provides, in pertinent part, that “[a]
Commonwealth v. Snyder, 182 A.2d 495                revocation hearing shall be held within
(Pa. 1962); Eisenberg v. Commonwealth,              120 days from the date the Board received
516 A.2d 333 (Pa. 1986)).9 Thus, the                official verification of the plea of guilty or
Pennsylvania evidence code draws a                  nolo contendere or of the guilty verdict at
distinction between the permissible use of          the highest trial court level.” 37 Pa. Code
a nolo plea to prove the fact of conviction         § 71.4. While this provision may support
and the impermissible use of a nolo plea as         the conclusion that a guilty plea and a nolo
                                                    plea have the same effect in terms of
                                                    triggering a revocation hearing, the
       9
         Rule 609’s limitations are not             section in no way suggests that both types
applicable to this case.                            of pleas have the same evidentiary value.

                                                7
is not the same. In pleading nolo                        act.     The judgment of
contendere; the defendant does not admit                 conviction follows upon
his guilt, but merely consents to being                  such plea as well as upon a
punished as if he were guilty.”                          plea of guilty.
Commonwealth v. Gunter, 771 A.2d 767,                    In 1970, the United States
773 (Pa. 2001) (Cappy, J., concurring)                   Supreme Court, in North
(citing Commonwealth v. Boyd, 292 A.2d                   Carolina v. Alford, [400
434, 435 (Pa. Super. 1972); North                        U.S. 25 (1970)] held that
Carolina v. Alford, 400 U.S. 25, 35 n.8                  the courts could impose
(1970); Eisenberg, 516 A.2d at 335).11                   criminal penalties where a
        In Eisenberg, the Pennsylvania                   defendant pleading nolo
Supreme Court explicitly addressed the                   contendere specifically
question of the effect of a nolo contendere              denied guil t of th e
plea under Pennsylvania law:                             underlying facts. . . . The
                                                         Alf o r d procedure is
       The effect of a nolo                              substantially similar to the
       contendere plea in                                practice in Pennsylvania on
       Pennsylvania is concisely                         nolo contendere pleas.
       discussed in the leading
       case of Commonwealth v.                    Eisenberg, 516 A.2d at 335 (internal
       Ferguson, 44 Pa. Superior                  citations omitted).
       Ct. 626 (1910):                                    The Eisenberg court held that an
       A plea of nolo contendere,                 Alford plea, which is “substantially
       when accepted by the court,                similar” to a Pennsylvania nolo plea, was
       is, in its effect upon the                 sufficient to constitute a “conviction”
       case, equivalent to a plea of              pursuant to the state statute under which
       guilty. It is an implied                   Eisenberg was charged. 516 A.2d at 336.
       confession of guilt only, and              In so holding, the court explained that “the
       cannot be used against the                 Department here does not attempt to use
       defendant as an admission                  the plea as judicial admission of the fact of
       in any civil suit for the same             fraud. Rather, the conviction entered
                                                  upon the plea itself is the operative fact
                                                  which authorizes suspension.            This
       11
           In Gunter, the Pennsylvania            evidence of the conviction itself is not
Supreme Court held that a nolo plea was           affected by the procedure leading up to the
involuntary, in part because of the failure       plea . . . . ” Id. The Eisenberg court,
of the colloquy to mention that the               however, specifically noted that a nolo
defendant was entering a nolo plea, as            plea is not proper evidence of the
distinct from a guilty plea. 771 A.2d at          underlying facts of the conviction:
771.

                                              8
       A nolo plea to a criminal                    not the province of the court to occupy
       charge is not evidence of                    itself with the question of guilt or
       either its underlying or                     innocence.”); Ferrelli v. Commonwealth,
       ultimate facts in a later civil              783 A.2d 891, 893 (Pa. Cmwlth. Ct.
       action. It follows as a                      2001).12
       corollary that in a civil
       action based on the same act
       or transaction, the pleader is                      12
                                                               It is certainly true that in some
       not precluded from denying                   contexts a nolo plea has the same legal
       or contesting the facts of the               effect as a guilty plea under Pennsylvania
       transaction by his nolo plea.                law. These situations, however, are
                                                    distinguishable and entirely consistent
Id. at 336 n.6 (internal citations omitted).        with the Pennsylvania rule that a nolo plea
                                                    is not an admission of guilt. See, e.g.,
        The decisions of Pennsylvania’s             Sontag v. Ward, 789 A.2d 778, 780 (Pa.
lower courts similarly reflect this                 Cmwlth. Ct. 2001) (explaining in the
distinction between the use of a nolo plea          context of holding that requiring
as evidence of the fact of conviction as            defendant to admit guilt to attend sex
opposed to evidence of the commission of            offender program did not violate right
the underlying crime. For example, in               against self-incrimination that “a plea of
Strain v. Commonwealth, the court                   nolo contendere is to be treated the same
explained that “our Supreme Court has               as a guilty plea”); Commonwealth v.
upheld the use of a conviction entered on           Lewis, 791 A.2d 1227 (Pa. Super. Ct.
a plea of nolo contendere as evidence in a          2002) (holding in context of post-sentence
subsequent civil matter where it was the            motion to withdraw a plea that a “‘plea of
fact of conviction, not the plea, that was          nolo contendere is treated the same as a
the operative fact relied upon.” 784 A.2d           guilty plea’”) (quoting Commonwealth v.
845, 848 (Pa. Cmwlth. Ct. 2001) (citing             Miller, 748 A.2d 733, 735 (Pa. Super. Ct.
Eisenberg). The Strain court went on to             2000)).
explain that in that case “[s]uspension of a                In addition, the instructions given
licensee’s operating privilege under the            at Poellnitz’s sentencing hearing do not
Compact . . . does not turn on whether the          affect the legal consequences of the nolo
licensee has admitted or denied guilty; it is       plea. At the sentencing hearing on the
the conviction that triggers the provision.”        charge of corruption of a minor, Poellnitz
Id.; see also Bourdeev v. Commonwealth,             was specifically instructed and
755 A.2d 59, 61-62 (Pa. Cmwlth. Ct.                 acknowledged that “there is no difference
2000); Commonwealth v. Boyd, 292 A.2d               between a plea of guilty and a plea of nolo
434, 435 (Pa. Super. Ct. 1972) (“Where a            contendere,” App. at 133, and that “by
plea of nolo contendere is tendered by the          pleading guilty to these charges, you’ll be
defendant and accepted by the court, it is          in violation of that period of parole or

                                                9
       Thus, as a legal matter                      in pertinent part:
consideration of a nolo contendere plea as
evidence of Poellnitz’s commission of the                  The power of the court to
underlying crime was improper. On                          revoke a term of supervised
remand, the District Court should consider                 release for violation of a
whether there is sufficient evidence (under                condition of supervised
the preponderance of evidence standard)                    release, and to order the
that Poellnitz violated a condition of                     defendant to serve a term of
supervised release. In conducting this                     imprisonment and . . . a
inquiry, the District Court should take into               further term of supervised
account all evidence in the record,                        release, extends beyond the
including, but not limited to, evidence                    expiration of the term of
presented at Poellnitz’s plea hearing.                     supervised release for any
What the District Court may not do,                        period reasonably necessary
however, is treat the nolo plea as an                      for the adjudication of
admission by Poellnitz that he committed                   matters arising before its
the crime.                                                 expiration if, before its
                                                           expiration, a warrant or
                   III.                                    summons has been issued
       Poellnitz contends that the delay of                on the basis of an allegation
nearly two years between the filing of the                 of such a violation.
supervised release violation petition and
the occurrence of the supervised release            18 U.S.C. § 3583(i) (emphasis added).
violation hearing was not “reasonably               We exercise plenary review over questions
necessary.”13 18 U.S.C. § 3583 provides,            of statutory interpretation. See United
                                                    States v. Thayer, 201 F.3d 214, 219 (3d
                                                    Cir. 1999).
probation,” id. at 132. These instructions,                 In analyzing this question, the
perhaps given erroneously, do not alter the         District Court found instructive the
legal status of the nolo plea—such a plea           Seventh Circuit’s decision in United
is not an admission of guilt under                  States v. Rasmussen, 881 F.2d 395 (7th
Pennsylvania law.                                   Cir. 1989). In Rasmussen, the court
                                                    utilized the following factors in assessing
       13
          We address this issue, despite our        whether the delay between the notice of
conclusion above that remand is                     probation action and hearing on the
warranted, because if Poellnitz is correct          petition to revoke probation was a denial
we must reverse and the District Court              of due process: length of delay, reason for
cannot reconsider on remand whether                 the delay, the probationer’s assertion of
there is sufficient evidence of commission          his right, prejudice to the probationer, and
of a crime.                                         the reason why the probationer was in

                                               10
custody. Id. at 398 (citing Barker v.                 did not violate § 3583(i).” Id. at 450.
Wingo, 407 U.S. 514 (1972); United                            In addition, we conclude that the
States v. Scott, 850 F.2d 316, 320 (7th Cir.          delay in this case was not unreasonable.
1988)). Unlike the present case in which              To begin, it was reasonable for the District
Poellnitz alleges the delay violated the              Court to wait for the adjudication of the
terms of § 3583(i), Rasmussen claimed the             state court charges before proceeding with
delay was a denial of due process. While              the revocation hearing. Although it is not
Rasmussen may be distinguishable on                   necessary that the probationer be adjudged
these grounds and certainly does not                  guilty of a crime to revoke release, see
provide a rigid and exclusive set of factors          Manuszak, 532 F.2d at 317, it is certainly
that a court may consider, the decision               understandable that the District Court
provides a useful framework for                       waited for adjudication of these state
considering whether the delay was                     charges because it might be relevant in the
unreasonable. We conclude that it was                 revocation proceeding.
not.                                                          Furthermore, the subsequent
        To begin, we reject Poellnitz’s               decisions to reschedule the hearing were
argument that the delay was not connected             not unreasonable. The record does not
to the federal adjudication of the violation,         reflect that Poellnitz objected to the
but was solely related to the adjudication            District Court’s sua sponte decisions to
of state charges. Poellnitz’s reliance on             reschedule, and the docket reflects
the Ninth Circuit’s decision in United                considerable activity during this time,
States v. Garrett, 253 F.3d 443 (9th Cir.             including Poellnitz’s motion for
2001) is misplaced. In Garrett, the court             appointment of counsel and motion to
held that § 3583(i) “refers to the federal            dismiss the petition. Moreover, granting
adjudication of the defendant’s supervised            the Government’s motions requesting
release violations [and] [t]hus . . . extends         rescheduling, which also appear to have
the jurisdiction of the federal court only to         been unopposed, was reasonable in light
the period of time reasonably necessary to            of the importance of Probation Officer
adjudicate pending supervised release                 Howard’s testimony. Cf. Rasmussen, 881
revocation issues.” Id. at 459 (emphasis              F.2d 395 (7th Cir. 1989) (holding 13-
added in Garrett). In other words, the                month delay between notice of probation
jurisdiction of the federal court is                  action and hearing on petition to revoke
extended to permit adjudication of the                probation was not a denial of due
federal supervised release revocation                 process); Bennett v. Bogan, 66 F.3d 812,
issue. But such adjudication can include              818 (6th Cir. 1995) (noting that “although
consideration of whether there was, as in             the lengthy delay [of five and one-half
this case, the commission of a state law              years] between the issuance and execution
violation. In fact, Garrett held that                 of the second warrant for Petitioner’s
“postponement of . . . [the] revocation               arrest is lamentable, it does not rise to the
hearing until . . . release from state custody        level of intolerable”).

                                                 11
       The delay did not prejudice
Poellnitz’s ability to contest the validity of                         ****
his revocation. Poellnitz makes general                      For the foregoing reasons, the
assertions about how having to defend                 judgment of the District Court entered on
himself in 2003 against incidents allegedly           October 3, 2003, as amended on October
occurring in late 1999 and early 2000                 9, 2003, will be reversed and remanded
“caused the prospect of dimmed                        for further proceedings consistent with
memories, and the resulting possibility of            this opinion.
inadequate cross examination.” Appellant
Br. at 29. Not only does Poellnitz not
identify any specific “dimmed memories,”
but his argument fails to recognize that he
was required to defend himself against
these charges in 2003 in the state court
proceedings, irrespective of the federal
supervised release hearing. In addition,
we are unpersuaded by Poellnitz’s
argument that he was prejudiced because
he was unaware of the pending charges
when he pled.         At the plea hearing,
Poellnitz was instructed on and
acknowledged the potential impact of the
plea on his supervised release status.14


       14
           The testimony provides, in
pertinent part:

       THE COURT: Were you on
       parole or probation at the
       t i me t h e s e o f f e n s e s
       occurred?
       THE DEFENDANT: Yes.
                                                            any sentence I might impose
       T H E C OURT : Y ou                                  upon you, that you would be
       understand that by pleading                          subjecting yourself to an
       guilty to these charges,                             additional penalty?
       you’ll be in violation of that
                                                            THE DEFENDANT: Yes.
       period of parole or
       probation and in addition to                   App. at 132.

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