13‐3590
United States v. Pauline Wiltshire
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2014
(Argued: October 16, 2014 Decided: December 1, 2014)
Docket No. 13‐3590
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UNITED STATES OF AMERICA,
Appellee.
–v.–
PAULINE WILTSHIRE,
Defendant‐Appellant,
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Before:
KEARSE, STRAUB, and WESLEY, Circuit Judges.
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Appeal from the United States District Court for the Eastern District of
New York (Dora L. Irizarry, J.). On September 20, 2013, the district court
convicted Pauline Wiltshire of violating her supervised release by 1) making
false statements to a probation officer; and 2) leaving the district of her
supervision without permission. Wiltshire was sentenced to ninety days in
custody, to be served on weekends, to be followed by five years of supervised
release. On May 25, 2014, during the pendency of her appeal, Wiltshire
completed her time in custody on the contested adjudication, although her term
of supervision had not yet run. For the reasons stated below, we find that
Wiltshire’s appeal was not mooted by the expiration of her custodial sentence
and that the possibility of a reduced term of supervised release can satisfy Article
III’s case‐or‐controversy requirement. We therefore proceed to the merits and
AFFIRM the district court’s judgment.
MARK K. McCULLOCH (PATRICK MICHAEL
MEGARO, on the brief), Brownstone, P.A., Winter Park,
FL, for Defendant‐Appellant.
JUSTIN D. LERER, Assistant United States Attorney
(Susan Corkery, on the brief), for Loretta E. Lynch,
United States Attorney for the Eastern District of New
York, Brooklyn, NY, for Appellee.
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PER CURIAM:
Appeal from the United States District Court for the Eastern District of
New York (Dora L. Irizarry, J.). On September 20, 2013, the district court
convicted Pauline Wiltshire of violating her supervised release by 1) making
false statements to a probation officer; and 2) leaving the district of her
supervision without permission. Wiltshire was sentenced to ninety days in
custody, to be served on weekends, to be followed by five years of supervised
release. On May 25, 2014, during the pendency of her appeal, Wiltshire
completed her time in custody on the contested adjudication, although her term
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of supervision had not yet run. For the reasons stated below, we find that
Wiltshire’s appeal was not mooted by the expiration of her custodial sentence
and that the possibility of a reduced term of supervised release can satisfy Article
III’s case‐or‐controversy requirement. We therefore proceed to the merits and
AFFIRM the district court’s judgment.
BACKGROUND
Pauline Wiltshire pleaded guilty to a one‐count indictment charging
conspiracy to distribute Adderall in violation of 21 U.S.C. § 841(a)(1) and was
sentenced on April 16, 2012 to time served to be followed by five years of
supervised release—to end in April 2017. Among the conditions of her
supervised release were the following: “The defendant shall not leave the
judicial district without permission of the Court or probation officer,” and “[t]he
defendant shall answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer.” Wiltshire was permitted to
serve her supervised release term in Ohio. Wiltshire did not inform either the
district court, during her sentencing, or probation, on a standard questionnaire,
that she worked occasionally as an exotic dancer at Platinum Plus in Lexington,
Kentucky. She claimed that she was concerned that such revelations would
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reflect poorly on her character. On April 18, 2012, Wiltshire traveled from Ohio
to Lexington without the required permission from her probation officer.
On November 5, 2012, Magistrate Judge Pohorelsky issued a Report and
Recommendation finding that Wiltshire had violated the conditions of her
supervision both by falsely stating her employment and by traveling to Kentucky
without permission on April 18, 2012. Judge Irizarry adopted the R&R in its
entirety. On September 20, 2013, Judge Irizarry sentenced Wiltshire to ninety
days in custody to be served on weekends beginning October 18, 2013, followed
by five years of supervised release. Wiltshire appealed. On May 25, 2014, during
the pendency of her appeal, Wiltshire completed her time in custody and began
to serve her term of supervised release.
DISCUSSION
A. Mootness
The Case or Controversy Clause of Article III, Section 2 of the United
States Constitution limits the subject matter jurisdiction of the federal courts such
that the “parties must continue to have a personal stake in the outcome of the
lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990) (internal
quotation marks omitted). To maintain a live case or controversy, “an individual
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challenging the revocation of his parole—and whose term of re‐incarceration has
expired—bears the burden of demonstrating that some concrete and continuing
injury continues to flow from the fact of the revocation.” United States v. Probber,
170 F.3d 345, 348 (2d Cir. 1999). Jurisdiction will not lie where the alleged injury
is “too speculative to satisfy the case‐or‐controversy requirement of Article III.”
Id. at 349.
In Probber, the district court imposed a term of imprisonment for the
defendant’s violation of supervised release. Id. at 347. The court did not impose
a new period of supervision. Id. We held that Probber’s appeal was moot
because the full term of imprisonment—the sole penalty imposed—had been
served before his appeal was heard. Id.
Here, Wiltshire was originally sentenced to five years of supervised release
on April 16, 2012. Absent a violation, the supervised release period would have
run until April 2017. After her violation, Wiltshire was sentenced to ninety days
in custody to be served on weekends beginning October 18, 2013, to be followed
by five years of supervised release. She was released from custody on May 25,
2014, and will be on supervision through May 2019. Accordingly, as a direct
consequence of the district court’s adjudication, Wiltshire will be subject to
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approximately two more years of supervised release—the time from April 2017
to May 2019. Unlike the penalty in Probber, the time added to Wiltshire’s
supervised release term limits her freedom in a way that is a direct adverse legal
consequence and is sufficient to maintain a live case.1 Wiltshire’s “appeal is not
moot because a favorable appellate decision might prompt the district court to
reduce [her] . . . term of supervised release.” United States v. Kleiner, 765 F.3d 155,
157 n.1 (2d Cir. 2014).
B. Merits
Having found that we have jurisdiction to review Wiltshire’s appeal, we
proceed to the merits. We review the district court’s finding that Wiltshire
violated the conditions of her supervised release for abuse of discretion and its
factual findings for clear error. United States v. Glenn, 744 F.3d 845, 847 (2d Cir.
2014) (per curiam). A district court may revoke a term of supervised release if it
“finds by a preponderance of the evidence that the defendant violated a
condition of supervised release.” 18 U.S.C. § 3583(e)(3).
1 For example, the terms of Wiltshire’s supervised release require her to, among other
things, “not leave the judicial district without the permission of the court or probation
officer”, “report to the probation officer”, and “permit a probation officer to visit . . . her
at any time at home or elsewhere.”
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Here, Wiltshire admits the offending conduct: omitting her employment as
an exotic dancer from the probation questionaire and leaving the judicial district
without permission from the district court or probation. However, Wiltshire
argues that the government did not prove that she “willfully violated” the
“ambiguous conditions” of supervision. The district court reviewed the evidence
and disagreed, and its conclusion that Wiltshire’s violation was willful was not
an abuse of discretion.
CONCLUSION
We have considered Wiltshire’s remaining arguments and find them to be
without merit. For the reasons stated above, the judgment of the district court is
AFFIRMED.
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