              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                          ___________________

                              No. 95-50043
                          ___________________



UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,

     versus

DANNY LEON STANDEFER
                                           Defendant-Appellant.


        ________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
        ________________________________________________
                         January 15, 1996
Before WISDOM, GARWOOD and JONES, Circuit Judges.*

GARWOOD, Circuit Judge:

     Appellant-defendant Danny Leon Standefer (Standefer) appeals

the revocation of his supervised release. Because we find that the

evidence was insufficient to support revocation, we reverse.

                   Facts and Proceedings Below

     On July 14, 1989, Standefer pleaded guilty to drug and firearm

charges before the United States District Court for the Western

District of Texas pursuant to a plea agreement and was sentenced to

serve two concurrent twenty-one month sentences, three years of


*
  Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
supervised release and fines totaling $7,100.                     Following his

release in June 1990, after completing service of the confinement

portion of his sentence, Standefer began serving his supervised

release in the Eastern District of Oklahoma.

       On January 21, 1992, a Petition on Probation and Supervised

Release was filed in the district court by probation officer Jack

R.    Skaggs    (Skaggs)   requesting       that   a   warrant   be   issued   for

Standefer’s arrest for violating the conditions of his supervised

release.1      The filing of the petition caused the district court to

order that a warrant be issued for Standefer’s arrest.                 Standefer

was arrested by the United States Marshal’s Service in Vanderwagen,

New Mexico on May 3, 1994.          In November 1994, Standefer pleaded

guilty    to    one   count   of   controlled      substance     manufacture    in

violation of 21 U.S.C. § 846 before the United States District

Court for the Western District of Oklahoma.              Meanwhile, the United

States District Court for the Western District of Texas set a

revocation hearing for January 4, 1995.




1
     The petition alleged the following violations:

               “The defendant has been charged in Case No.
               CRF91-156, District Court for Pushmataha
               County,   Oklahoma,   with   (1)   Trafficking
               Drugs/Amphetamine; (2) Tax Stamp Violation
               (Amphetamine);   and,   (3)   Eluding   Police
               Officer; said offenses having occurred on or
               about 11-29-91. A warrant has been issued for
               his arrest in that case.    The defendant has
               not reported to his probation officer, Jack
               Skaggs, for the month of December, 1991, and
               his present whereabouts are unknown.”

                                        2
      At the revocation hearing, the government read the charges

alleged in the petition to which Standefer pleaded “not true.” The

government’s sole witness was Ken Beene (Beene), a supervisor in

the federal probation office in Austin, Texas.               Beene testified

that while he had not dealt personally with Standefer, he had been

informed of the charges contained in the petition by Skaggs, and

had subsequently been informed of Standefer’s conviction in the

Western District of Oklahoma by probation officer Marcie Gray

(Gray).      The government introduced a copy of the judgment obtained

in the Western District of Oklahoma, and Beene testified that he

believed that the offense contained in the judgment was based upon

the   same    conduct   as   the   offenses   alleged   in   the   revocation

petition.      Beene expressed the same belief on cross-examination

even when Standefer’s counsel noted that the conduct described in

the revocation petition was alleged to have occurred on or about

November 29, 1991 while the conduct which formed the basis of the

federal conviction in Oklahoma was alleged to have concluded

November 29, 1994.2

      At the close of the government’s case-in-chief, Standefer’s

attorney requested a brief recess in order to obtain a copy of the

superseding information on which the judgment in the Western

District of Oklahoma rested in order to demonstrate that the

underlying conduct was distinct from that alleged in the revocation


2
    Although the judgment reflected that the offense charged had
concluded on November 29, 1994, the superseding information
introduced in evidence by the defense alleges that the underlying
conduct occurred “on or about November 29, 1993.”

                                       3
petition.   Following the recess, the government conceded that this

was in fact the case.      At that time, the government moved “to

orally amend and use the information before the court now as the

basis for revocation.” The district court granted the government’s

motion over the objections of Standefer’s counsel.3      Relying on

Standefer’s conviction in the Western District of Oklahoma and his

“fugitive status,” the district court ordered the revocation of

Standefer’s supervised release.4


3
   The defense urged that the petition be dismissed, objecting on
the grounds that the government could not amend the petition after
the supervised release term had expired. The government suggested
that the running of the supervised release period should be tolled
for the period that Standefer was a fugitive, and introduced a copy
of the Marshal’s Report of Standefer’s arrest as evidence that
Standefer had been a fugitive from the time that the district court
issued the arrest warrant until his arrest on May 3, 1994. Defense
counsel also objected on the grounds that written notice of the
alleged violation was required under Fed. R. Crim. P. 32.1
(a)(2)(A) and in order to comport with due process. Standefer’s
counsel further argued that the only evidence presented in support
of revocation had been hearsay which had been demonstrated to be
unreliable.
4
  The district court stated its findings in support of revocation
as follows:

            “The court, having reviewed the evidence in
            this case, the court has reviewed the judgment
            out of Oklahoma . . . Has reviewed that, and
            based    upon    those   considerations    and
            information brought to the attention [sic] at
            this hearing this morning, it’s the judgment
            of this court and the court finds that
            pursuant to the Sentencing Reform Act of 1984,
            the defendant, Danny Leon Standefer, is
            ordered    committed to the custody of the
            Bureau of Prisons to serve a term of
            imprisonment of eighteen months.

            This sentence is ordered to run consecutive to
            the sentence ordered in CR 94101-C, which
            represented   the  violation   behavior   [the

                                   4
     Standefer now appeals the revocation of his supervised release

on the grounds that (1) the government failed to prove any of the

allegations contained in the original petition; and (2) the oral

amendment granted by the district court at the revocation hearing

deprived him of the notice to which he was entitled under Fed. R.

Crim. P. 32.1 (a)(1)(A) and by due process.

                                  Discussion

     We review the district court’s decision to revoke supervised

release for abuse of discretion.          United States v. McCormick, 54

F.3d 214, 219 (5th Cir. 1995, cert. denied, 116 S.Ct. 264 (1995).

     In a revocation proceeding, the government has the burden to

prove that the releasee committed the alleged violation of the

conditions of release by a preponderance of the evidence.                  18

U.S.C. § 3583 (e)(3); United States v. Alaniz-Alaniz, 38 F.3d 788,

792 (5th Cir. 1994), cert. denied, 115 S.Ct. 1412 (1995). In

reviewing the sufficiency of the evidence, we “‘must view the

evidence and all reasonable inferences that may be drawn from the

evidence in    a   light   most   favorable    to   the   government.’”   Id.

(quoting United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th

Cir. 1986)).   “The evidence is sufficient if a reasonable trier of

fact could reach the conclusion being challenged.”            Id. (footnote

omitted).




            Western District of Oklahoma case], or at
            least the——part of the violation behavior. I
            think the fugitive status is what the court is
            basing its revocation upon.”

                                      5
      It is undisputed that the government failed to produce any

evidence      of    the   criminal   charges    alleged   in   the    revocation

petition.          Nonetheless, the government contends that there is

sufficient evidence in the record to support revocation either on

the   basis    of     Standefer’s    fugitive    status   as   alleged    in   the

petition, or on the basis of his guilty plea in the Western

District of Oklahoma pursuant to the oral amendment.                 We disagree.

      A.   Fugitive Status

      The government asserts that the district court’s revocation of

Standefer’s supervised release based upon his fugitive status was

supported by the following: (1) the district court issued a warrant

in January 1992 in response to Skaggs’ allegations that Standefer

had failed to report for the month of December 1991 and his

whereabouts were unknown; and (2) this warrant remained unexecuted

until Standefer’s arrest in New Mexico in May 1994 as evidenced by

the   Marshal’s       Report   entered   in    evidence   by   the   government.

Therefore, the government contends that the district court could

reasonably infer that Standefer had been a fugitive from the date

that the warrant was issued until the date of his arrest in New

Mexico.     The government concludes that these facts necessarily

establish that Standefer violated the conditions of his supervised

release that he not leave the judicial district without permission

(Condition Two), make a written report within the first five days

of each month (Condition Three), and notify the probation office

within seventy-two hours of changing his residence (Condition

Seven).


                                         6
     The district court possesses considerable latitude in the

types of evidence it may consider in a revocation hearing as

compared with a criminal prosecution.   See Morrissey v. Brewer, 92

S.Ct. 2593, 2604 (1972) (parole revocation hearing “should be

flexible enough to consider evidence including letters, affidavits,

and other material that would not be admissible in an adversary

criminal trial”).   However, the government failed to introduce

sufficient evidence of Standefer’s fugitive status even under this

relaxed standard of admissibility.

     Neither the bare allegations contained in the petition nor the

warrant itself constitute evidence in any sense.      Even assuming

that they could properly be considered, they were never offered in

evidence.   Furthermore, despite the allegations in the petition

that Standefer’s “whereabouts [were] unknown,” we find no evidence

of this fact in the revocation hearing record.

     The only piece of evidence introduced by the government in

this regard was a copy of the Marshal’s Report of Standefer’s

arrest in New Mexico in May 1994.5    This report alone establishes

no violation of the conditions of Standefer’s supervised release

because there is no evidence of when Standefer left the judicial

district to go to New Mexico.   The report makes no reference to any

warrant (or to the revocation petition); nor does it otherwise give

any indication whatever of how long (prior to May 1994) Standefer


5
   Although the government argued at the revocation hearing that
Beene’s testimony was evidence that Standefer had been a fugitive,
it concedes in its brief that Beene’s testimony provides no
evidence on this point.

                                  7
had been a fugitive.     It is entirely plausible that Standefer left

the judicial district after the expiration of the supervised

release period in June 1993.         The fact that he pleaded guilty to

charges based upon conduct alleged to have occurred in Oklahoma in

November 1993 tends to support this conclusion.                Nothing suggests

the contrary.

     The dearth of evidence in the record on this point leads us to

reject the district court’s finding that Standefer’s supervised

release should be revoked based upon his fugitive status.

     B.    1994 Conviction

     The   government    contends    that    even   if   the     evidence   were

insufficient    to   support    revocation     of   Standefer’s      supervised

release on one of the bases alleged in the original petition,

Standefer’s guilty plea before the Western District of Oklahoma

constituted adequate grounds for the district court’s decision.

We reject this contention.

     The oral amendment allowed by the district court so that the

guilty plea might be considered as a basis for revoking Standefer’s

supervised   release    fails   to   comport    with     the    requirement   of

“written notice of the alleged violation” mandated by Fed. R. Crim.

P. 32.1 (a)(1)(A).      Indeed, it is questionable whether Standefer

was afforded any notice at all as the government did not specify

the basis of the oral amendment, but simply stated that it wished

to “use the information before the court now as a basis for

revocation.”     The government suggests that allowing the oral

amendment was harmless error because: (1) Standefer knew that he


                                      8
pleaded guilty to the controlled substance manufacture charge; and

(2) his counsel raised the defense that the guilty plea fell

outside of the supervised release period at the revocation hearing.

     The government’s first harmless error argument falls wide of

the mark because the issue is not whether Standefer knew that he

pleaded guilty to the controlled substance manufacture charge, but

rather whether he knew that that guilty plea or that offense was to

be the basis for revocation of his supervised release.   Therefore,

even if we could excuse the lack of written notice, Standefer was

not afforded meaningful notice of any sort as to the violations

against which he was required to defend.   Nor does the fact that

Standefer’s counsel was able to articulate some defense to the

amendment necessarily lead to the conclusion that the error was

harmless.

     However, we need not rest our decision on this ground alone.

It is undisputed that the conduct for which Standefer pleaded

guilty in the Western District of Oklahoma occurred in November

1993 while his original supervised release term was to have ended

in June 1993.   The government, relying on United States v. Crane,

979 F.2d 687, 691 (9th Cir. 1992), argues that the district court

could properly consider Standefer’s guilty plea in revoking his

supervised release because the running of the supervised release

period was tolled for the period that Standefer was a fugitive. We,

too, have previously recognized that the running of a probationary

term may be tolled by the flight of a probationer.       See United

States v. Fisher, 895 F.2d 208, 212 (5th Cir. 1990), cert. denied,


                                 9
110 S.Ct. 2192 (1990) (probationary term tolled for period during

which probationer not under supervision due to own misconduct).

Yet it necessarily follows from our conclusion that the government

failed to establish Standefer’s fugitive status for purposes of

revocation that the government cannot receive the benefit of this

rule. There is no evidence that Standefer became a fugitive before

July 1993.    Therefore, the district court could not properly

consider   Standefer’s   guilty   plea   in   revoking   his   supervised

release.

     Because we find that the government failed to introduce

sufficient evidence of the alleged violations, we are forced to

conclude that the district court abused its discretion in revoking

Standefer’s supervised release.

     The judgment of revocation is REVERSED.




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