                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-10052

              Plaintiff - Appellee,              D.C. No. 4:04-cr-02195-JMR-BPV

  v.
                                                 MEMORANDUM*
MARY ELIZABETH SCHIPKE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                     John M. Roll, District Judge, Presiding

                        Argued and Submitted July 14, 2011
                            San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and LYNN, District Judge.**


       Mary Schipke appeals the district court’s revocation of supervised release

and denial of a motion to modify conditions of release regarding DNA collection.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Barbara M. G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

      Schipke’s claim under the Religious Freedom Restoration Act of 1993

(RFRA) to remove the condition of release requiring her to submit a DNA sample

is barred by collateral estoppel because it was previously decided by the United

States District Court for the Northern District of Texas. Schipke v. Chapman, 4:08-

cv-228-A, 2008 WL 2123749 (N.D. Tex. May 19, 2008) (unpublished decision).

The RFRA issue raised in the Texas district court is sufficiently similar to that

raised here, and was fully litigated and necessarily decided in the Texas case.

Contra United States v. Edwards, 595 F.3d 1004, 1012 (9th Cir. 2010).

      Further, the magistrate judge in Tucson did not abuse his discretion in

allowing the probation officer in Dallas to testify by telephone to uncontested facts

in this supervised release proceeding. But even assuming error, it was harmless

because Schipke does not dispute the material portions of the officer’s testimony.

See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (“A due process

violation at a revocation proceeding is subject to harmless error analysis.” (internal

quotation marks omitted)).

      Finally, the Petition to Revoke Supervised Release provided sufficient notice

of Schipke’s alleged violation of her conditions of release, such that her due


                                          2
process rights were not violated when the court took the action it took against her

on that Petition. Contra United States v. Havier, 155 F.3d 1090, 1094 (9th Cir.

1998).

      AFFIRMED.




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