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Chase Manhattan Bank, N.A. v. Fletcher Ave. Ltd. Partnership

argued: October 2, 1992.

UNITED STATES OF AMERICA, APPELLEE
v.
CHARLES BARNHART, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 85-00229-01)

Before: Sloviter, Chief Judge Greenberg and Garth, Circuit Judges

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

Charles Barnhart, the appellant, violated his probation by failing to report to his probation officer on three separate occasions. After Barnhart's probation was revoked by the district court, he was sentenced to five years imprisonment. On appeal, Barnhart claims he was denied due process at the time he was sentenced because the district court was influenced by three unrelated arrests made while Barnhart was on probation. Barnhart also claims that the district court wrongfully revoked his probation because of his status as an alcoholic. Finding no merit in Barnhart's "alcoholic" claim, we address only his due process claim. We will affirm.

I.

On December 2, 1985 Charles Barnhart pled guilty in the United States District Court for the Western District of Pennsylvania to the first and third counts of a three-count indictment. Barnhart was sentenced on January 10, 1986. On Count 3, "Escaping from an Institution and Facility in violation of 18 U.S.C. § 751(a)," the district court sentenced Barnhart to five years imprisonment. On Count 1, "Altering, Passing, Uttering, and Publishing Forged and Altered United States Postal Service Money Orders in violation of 18 U.S.C. § 500," Barnhart was placed on probation for a five year period to run consecutively to the sentence imposed on Count 3. Upon motion by the government, the district court dismissed Count 2.

Barnhart was paroled from federal custody on November 10, 1988, at which time he was imprisoned for two years by the Commonwealth of Pennsylvania pursuant to a state detainer. Upon expiration of his federal parole on January 9, 1991, Barnhart began to serve his five-year probation term. Among several express conditions of his probation, Barnhart was required to "report to the probation officer as directed."*fn1 Within nine months, Barnhart violated that condition on September 30, 1991 by failing to report to his probation officer. Barnhart was sent a notice on October 3, 1991, instructing him to report to the probation officer on November 4, 1991. Barnhart failed to report on that date. On November 15, 1991, Barnhart was directed to report on November 26, 1991 and, again, Barnhart failed to appear. On none of these occasions did Barnhart communicate with his probation officer to explain his absence. On December 10, 1991, the Probation Office filed a petition to revoke Barnhart's probation, charging that Barnhart had violated the express condition of his probation requiring him to report to the probation officer as directed.

At the probation revocation hearing on March 13, 1992, Barnhart admitted to the three missed meetings in violation of the terms of his probation, but he presented to the court what he believed to be mitigating circumstances. Barnhart testified that the stress of employment difficulties had aggravated his drinking problem and had driven him to depression. As his life went "down hill," he testified, he was afraid to meet with his probation officer.

After hearing this testimony, the district court ordered the revocation of Barnhart's probation, stating, "The Court finds, and it has been admitted by the defendant probationer, that he is in violation of the terms of his probation by not reporting on the dates that he was instructed to report." The court declined to sentence Barnhart to a long-term alcoholic treatment program, sentencing him instead to five years imprisonment with a recommendation that he receive treatment for alcohol and drug abuse during the course of his incarceration.

Prior to the revocation hearing, the probation officer had provided the district court with copies of police reports in connection with the criminal charges pending against Barnhart. On November 21, 1991 and again on December 8, 1991, Barnhart's grandmother and mother lodged criminal complaints against him for the alleged theft of their television set, purses, and cash. On February 24, 1992, Pittsburgh police arrested Barnhart for allegedly robbing an automobile salesman at knifepoint after taking a test drive.

Although Barnhart and his counsel apparently were not aware that the court had been provided with these specific documents, they were aware that the court had been apprised of the pending charges. At the revocation hearing, Barnhart's counsel addressed the court specifically on that issue, stating "I believe Your Honor's aware that Mr. Barnhart is facing state charges." The court responded, "Yes, he is." After thus confirming that the court was cognizant of the pending charges, defense counsel did not pursue the matter further. The district court entered its final order revoking probation and sentencing Barnhart to five years imprisonment on March 13, 1992. Barnhart timely appealed that order to this court.

We have appellate jurisdiction over the district court's final order pursuant to 28 U.S.C. § 1291. Our standard of review for Barnhart's due process claim is plenary.

II.

Barnhart claims that the district court denied him due process of law by revoking his probation and sentencing him based on the criminal charges pending against him. Although revocation of probation, like revocation of parole, is not a stage of a criminal prosecution, it "does result in a loss of liberty," Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), and is subject, therefore, to "minimum requirements of due process." Id.; see also ...


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