United States v. Gallo

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1628

UNITED STATES OF AMERICA,
Appellee,

v.

EDWARD L. GALLO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Miriam Conrad, Federal Defender Office, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with

whom A. John Pappalardo, United States Attorney, was on brief,

for appellee.

March 31, 1994

SELYA, Circuit Judge. This appeal tests the propriety
SELYA, Circuit Judge.

of an order revoking appellant's probation and sentencing him to

serve a portion of a previously suspended prison term. We

affirm.

I. BACKGROUND

We succinctly summarize the facts necessary to place

this appeal into proper perspective, recounting disputed facts in

a manner consistent with the district court's supportable

findings of fact.

On November 5, 1987, a federal grand jury in the

District of Columbia indicted defendant-appellant Edward L. Gallo

on a medley of firearms charges.1 Initially, the district court

found appellant incompetent to stand trial and ordered him

civilly committed. He was diagnosed as suffering from paranoid

schizophrenia, thought to be incurable but, hopefully,

controllable through medication. Thereafter, in July of 1989,

appellant pleaded guilty to a single count of possessing an

unregistered firearm in violation of 26 U.S.C. 5861(j). The

district court then dismissed the remaining five counts of the

indictment; sentenced appellant to three years of imprisonment,

suspended; placed him on probation for five years; and crafted a

special set of conditions ancillary to the probationary term.

1Police officers, who were investigating a threat to harm
former Secretary of State George Schultz, intercepted Gallo as he
emerged from a Washington motel on November 3, 1987. The
officers found a small arsenal in the trunk of Gallo's
automobile, including a rifle, a sawed-off shotgun, a semi-
automatic shotgun, and various types of ammunition.

2

The first and second conditions possess particular pertinence for

present purposes. They read in relevant part:

1. The defendant shall be confined to St.
Elizabeth's Hospital for a period of sixty
days.

2. Defendant shall continue to submit to
proper psychiatric treatment, inclusive of
medication, upon his release from impatient
[sic] hospitalization and shall consent to
the Probation Office having access to his
medical records. . . .

In fact, appellant stayed at St. Elizabeth's for much longer than

sixty days following the imposition of sentence. In the fall of

1990, the hospital discharged him. In the same time frame, three

other interrelated events occurred: appellant took up residence

at his mother's home in Massachusetts; the sentencing court

transferred jurisdiction over the matter to its sister court in

the District of Massachusetts; and probation supervision began in

that district.

While at St. Elizabeth's, appellant first met Dr.

Geller, a Massachusetts-based psychiatrist. After appellant

sojourned to Massachusetts, he consulted regularly with Dr.

Geller.2 His course of treatment centered around a monthly

injection of haloperidol decanoate (Haldol). The treatment

protocol featured gradual decreases in dosage, aimed at lessening

the patient's dependence upon the drug. Appellant, who

steadfastly maintained that he had no psychiatric disorder and

that he should not be on medication at all, favored the dosage-

2Throughout the course of treatment Dr. Geller submitted
periodic reports to the probation office.

3

reduction program.

Over a period of more than two years, Dr. Geller

decreased Gallo's dosage from 150 milligrams per month to 25

milligrams per month. In January of 1993, however, the doctor

noted ominous behavioral changes. For example, appellant began

writing of his belief that satellites and lasers were attacking

him and threatening national security; in addition, he began

acting in a manner reminiscent of how he had behaved immediately

prior to his arrest in 1987. When the dosage dropped to 20

milligrams per month, Dr. Geller became concerned that appellant

was no longer responding appropriately to the medication.

Nonetheless, appellant expressed staunch opposition to resuming

heavier doses of Haldol.

The dosage-reduction program continued until May 21,

1993, when Dr. Geller, due in part to Gallo's opposition to

increasing the dosage and in part to the reported recurrence of

hallucinogenic experiences, advised the probation office of his

opinion that "proper psychiatric treatment" demanded "an

inpatient psychiatric admission" because Gallo could not "be

effectively or safely managed on an outpatient basis."3 A

probation officer immediately visited appellant and informed him

of Dr. Geller's recommendation. Appellant debunked the need for

inpatient treatment and refused to cooperate. The probation

3The straw that broke the dromedary's back may have emerged
on May 20, when Gallo for the first time voiced an inability to
assure Dr. Geller that he would not do something he or others
would regret.

4

officer concluded that "given Mr. Gallo's current mental state, .

. . he presents a potential risk to himself and/or others." On

the following day, the officer requested that the district court

issue a warrant for violation of the conditions attendant to

probation.

After an evidentiary hearing, the district court,

citing, inter alia, the risk to public safety, found that

appellant needed inpatient care to determine the proper level of

medication and get his treatment program back on track. The

court then ruled that appellant had violated the outstanding

probation order by refusing to undergo hospitalization. On this

basis, the court revoked Gallo's probation, sentenced him to a

one-year term of immurement, see 18 U.S.C. 3565(a)(2) (1988)

(stipulating that, upon finding a probation violation, a court

may "revoke the sentence of probation and impose any other

sentence that was available . . . at the time of the initial

sentencing"), and recommended that appellant serve the sentence

in "a facility that can provide the appropriate psychiatric

treatment and . . . hospitalization." The court also imposed a

follow-on term of supervised release, attaching seven special

conditions to that term (including a condition requiring

continued psychiatric care).

Gallo appeals. Although he parades several assignments

of error before us, they march beneath two broad banners. First,

appellant challenges the probation order, asseverating that it

neither required involuntary hospitalization nor afforded him

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adequate notice that, by refusing such care, he would be risking

imprisonment. Second, he challenges the revocation decision

itself, including the finding that a violation occurred.4

II. THE PROBATION ORDER

The Due Process Clause extends to probation revocation

proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).

Fair warning of conduct that may result in revocation is an

integral part of due process in such situations. See United

States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987). Here,

appellant argues that the conditions of his probation did not

require him to acquiesce in hospitalization, or, alternatively,

did not provide fair warning that failure to do so might result

in revocation. We approach these arguments with full realization

that the interpretation of a probation condition and whether it

affords a probationer fair warning of the conduct proscribed

thereby are essentially matters of law and, therefore, give rise

to de novo review on appeal. See In re Howard, 996 F.2d 1320,

1327 (1st Cir. 1993) (explaining that "unadulterated questions of

law" customarily entail plenary review); cf. Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (establishing

4Initially, appellant also claimed that the district court,
in sentencing him to a period longer than that suggested in
U.S.S.G. 7B1.4, failed adequately to consider the Sentencing
Commission's policy statement. Since appellant has now served
the one-year sentence in full, he has withdrawn this claim. But
because he is still serving the supervised release term, the same
circumstance does not render the remainder of his appeal moot.
See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (holding

that, although a sentence has been served, the presence of
"collateral consequences" can save a case from mootness).

6

standard of de novo judicial review for construction of employee

benefit plans).

A. Scope of the Conditions.

The threshold question is whether inpatient treatment

falls within the scope of the probation order. We believe that

the conditions of probation definitely encompass such treatment.

The probation order states that appellant must

"continue to submit to proper psychiatric treatment, inclusive of

medication, . . . ." We are confident that this broadly phrased

directive, read naturally and with due regard for context, covers

inpatient care. After all, the sentencing judge attached no

qualifiers or words of limitation to the requirement of

treatment, other than that the treatment be "proper" and

"psychiatric." And in terms of language, we deem it significant

that the condition directs that appellant "continue to submit to

proper psychiatric treatment. . . ." (Emphasis supplied.) When

this verb usage is examined against the backdrop of the

immediately preceding condition, which memorializes that

appellant "shall be confined to St. Elizabeth's Hospital" for his

initial treatment,5 continuation of that treatment cannot fairly

be read to exclude further hospitalization. And, moreover, an

expansive reading is especially compelling in light of the

incurable nature of appellant's illness and his previous three-

year stay in a psychiatric hospital.

5By like token, Condition No. 2 itself states that it is to
take effect "upon [Gallo's] release from impatient [sic]
hospitalization. . . ."

7

We think, too, that the circumstances surrounding the

probation order necessitate such an interpretation. The plea

agreement commemorated appellant's understanding that he would

have to report on a regular basis to a "mental health physician

chosen by the government" and "follow the doctor's instructions

unless excused by an order of the Court." Thus, the plea

agreement made pellucid that appropriate medical care lay at the

heart of the agreed disposition of appellant's case and

hospitalization is a mainstay of appropriate medical care.

Moreover, the probationary period was to last for five years;

during so lengthy a span, it was certainly foreseeable that

appellant's medical needs might evolve in such a way as to

require rehospitalization. Put bluntly, inpatient care, having

proved necessary in the past, was well within the universe of

treatment modalities that might prove "proper" in the future.

Under the circumstances of this case, it is beyond

serious question that the words "proper psychiatric treatment"

were intended to include and did include the possibility of

hospitalization. Consequently, we reject appellant's complaint

that the conditions attached to his probation did not require

submission to inpatient medical care.

B. Sufficiency of the Warning.

Appellant has a fallback position. He strives to

persuade us that, even if the written conditions extended to

enforced hospitalization, they did not afford him adequate notice

that refusal to accept such treatment would constitute a

8

violation of his probation. In studying this proposition, we

must ask whether appellant was chargeable with knowledge of the

probation order's inclusive requirements (and the penalties that

might be imposed for disregarding those requirements) when he

spurned the request to admit himself to the hospital.

When, as now, a court order is read to proscribe

conduct that is not in itself unlawful, the dictates of due

process forbid the forfeiture of an actor's liberty by reason of

such conduct unless he is given fair warning. See United States

v. Grant, 816 F.2d 440, 442 (9th Cir. 1987); United States v.

Dane, 570 F.2d 840, 843 (9th Cir. 1977), cert. denied, 436 U.S.

959 (1978); see also Marks v. United States, 430 U.S. 188, 191

(1977) (discussing fair warning in respect to conduct that is

deemed criminal); Bouie v. City of Columbia, 378 U.S. 347, 351

(1964) (similar). Nevertheless, the fair warning doctrine does

not provide a safe harbor for probationers who choose to ignore

the obvious.

Furthermore, though a probationer is entitled to notice

of what behavior will result in a violation, so that he may guide

his actions accordingly, fair warning is not to be confused with

the fullest, or most pertinacious, warning imaginable.

Conditions of probation do not have to be cast in letters six

feet high, or to describe every possible permutation, or to spell

out every last, self-evident detail. See Green v. Abrams, 984

F.2d 41, 46-47 (2d Cir. 1993) (holding that, though a probation

order did not specify the time for payment of a fine, it gave

9

sufficient notice that failure to pay the fine would work a

violation); see also United States v. Ferryman, 897 F.2d 584, 590

(1st Cir.) (noting in an analogous context that defendants are

entitled only to "fair notice," not "letter perfect notice"),

cert. denied, 498 U.S. 830 (1990). Conditions of probation may

afford fair warning even if they are not precise to the point of

pedantry. In short, conditions of probation can be written and

must be read in a commonsense way.

Adherence to these principles demands that we uphold

the adequacy of the warning furnished here. We have three main

reasons for reaching this conclusion. First, we cannot fault the

district court's finding that the phrase "proper psychiatric

treatment, inclusive of medication," on the basis of its plain

meaning, see supra Part II(A), put appellant on notice that a

refusal to follow doctor's instructions and submit to

hospitalization would constitute a violation of the probation

order.6 Cf., e.g., Mace v. Amestoy, 765 F. Supp. 847, 849-50

(D. Vt. 1991) (ruling that a condition of probation requiring

participation in and completion of a "sexual therapy program" put

defendant on notice that therapy might necessitate admitting his

sexual misconduct). The challenged condition, read in context,

6Appellant contends that, under Simmons, 812 F.2d 561, a

probationer is routinely entitled to receive more specific notice
of proscribed behavior than that delivered by means of formal
conditions of probation. We disagree. A careful reading of the
passage cited by appellant indicates that our view coincides with
that of the Simmons court. When the proscribed behavior is not

itself criminal in nature, formal conditions of probation,
plainly written, are generally thought to supply sufficient
actual notice of proscribed activities. See id. at 565.

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itself provided fair warning.

Second, there is nothing in the record to suggest

either that appellant acted under a misapprehension or that he

believed a refusal to accept inpatient admission would comport

with the conditions of his probation. A probationer who does not

advance a credible claim that he was unaware, or misunderstood

the scope, of the conditions of his probation is hard pressed to

claim that he lacked fair warning. See, e.g., United States v.

Laughlin, 933 F.2d 786, 790 (9th Cir. 1991). So it is here.

Finally, the inquiry into fair warning is not

necessarily confined to the four corners of the probation order.

See Grant, 816 F.2d at 442; United States v. Romero, 676 F.2d

406, 407 (9th Cir. 1982). The meaning of a probation order may

be illuminated by the judge's statements, the probation officer's

instructions, or other events, any or all of which may assist in

completing the notification process and in aiding the court to

determine whether a probationer has been forewarned about what

conduct could be deemed to transgress the probation order.

Here, several pieces of data buttress the district

court's finding that appellant received fair warning. In the

first place, the plea agreement provided a prism through which

the conditions of probation could be read and that agreement

made the scope of the conditions very clear. See supra pp. 7-8.

In the second place, appellant signed his name below the list of

conditions contemporaneous with the imposition of the original

sentence. In this fashion, he signified his understanding that,

11

upon a finding of a violation, probation might be revoked. Such

a manifestation of acceptance of the terms, though rebuttable, is

prima facie evidence of a probationer's knowing acceptance of the

conditions in place at the time probation commenced. See, e.g.,

Green, 984 F.2d at 47; United States v. Barth, 899 F.2d 199, 203

(2d Cir. 1990), cert. denied, 498 U.S. 1083 (1991).

It is also significant that both the probation officer

and the court repeatedly explained to appellant the risk he was

running. The record reflects that the probation officer told

appellant on May 21 that Dr. Geller believed inpatient treatment

was essential to meet the goal of "proper psychiatric treatment"

and exhorted appellant to comply. Such a conversation may be

considered as a component of the notification process. See,

e.g., Green, 984 F.2d at 47; Romero, 676 F.2d at 407; Mace, 765

F. Supp. at 849-50. Furthermore, the district judge, who

exhibited great sensitivity in his thoughtful handling of a

difficult case, urged appellant on more than one occasion to

relent and told him in no uncertain terms that, if his

intransigence did not abate, he would be found in violation of

the probation order.

To sum up, appellant timely received the probation

order; the conditions of probation contained therein clearly

contemplated inpatient care if medically indicated; and the

penalties that might flow from violating those conditions were

apparent. Given the unvarnished terms of the special condition,

appellant's previous three-year hospital stay, the tenor of the

12

plea agreement, the probation officer's guidance, and the

district judge's entreaties, appellant received ample notice of

both the proscription against refusing inpatient treatment and

the possible, if not certain, consequence of persisting in his

chosen course of conduct.

III. THE REVOCATION DECISION

The standard of appellate review pertaining to

revocation decisions is not in doubt. When a district court,

after holding an evidentiary hearing, finds a probation violation

and determines that revocation is a condign response, we will not

prepare a palimpsest, but will scrutinize the district court's

decision only for abuse of discretion. See Burns v. United

States, 287 U.S. 216, 222 (1932); United States v. Nolan, 932

F.2d 1005, 1006 (1st Cir. 1991); United States v. Morin, 889 F.2d

328, 331 (1st Cir. 1989).

To reach the point at which revocation of probation is

appropriate, a district court must complete a two-step pavane.

The first component is historical; it involves the "retrospective

factual question whether the probationer has violated a condition

of probation." Black v. Romano, 471 U.S. 606, 611 (1985). The

second component is judgmental; it involves "a discretionary

determination by the sentencing authority whether violation of a

condition warrants revocation of probation." Id. We proceed to

review the district court's determinations as to each component,

mindful, withal, that "[t]he Due Process Clause . . . imposes

procedural and substantive limits on the revocation of the

13

conditional liberty created by probation." Id. at 610.

A. The Violation.

At a revocation proceeding, the prosecution need not

prove the conduct charged beyond a reasonable doubt; it is enough

if the proof, reasonably viewed, satisfies the court that a

violation occurred. See United States v. Gordon, 961 F.2d 426,

429 (3d Cir. 1992); United States v. Czajak, 909 F.2d 20, 22 (1st

Cir. 1990); United States v. Lacey, 661 F.2d 1021, 1022 (5th Cir.

1981), cert. denied, 456 U.S. 961 (1982).

The government met this burden in the instant case.

Despite being fully apprised of Dr. Geller's views and receiving

an urgent request from the probation officer, appellant did not

agree to institutionalize himself. Even after the judge drew a

line in the sand, appellant remained adamant in his insistence

that he would not submit to inpatient care. On this stark

record, the district court's explicit finding that appellant

knowingly and wilfully elected to ignore a condition of his

probation is entirely supportable. It follows that the first

step in the two-step pavane is easily ventured.7

B. The Disposition.

When revocation of probation is committed to judicial

7Appellant argues that there was no medical need for

hospitalization, but merely an administrative need, i.e., a

desire to husband the costs of supervision. Assuming, without
deciding, that this is a meaningful distinction, we nonetheless
reject the argument. Dr. Geller's testimony at the revocation
hearing, fully credited by the district court, made it clear that
he treated appellant as he would have treated any other similarly
afflicted patient, and that hospitalization was needed as an
integral part of "proper psychiatric treatment."

14

discretion, judges should not regard it as a routine response to

every probation violation. Rather, revocation should be reserved

for those instances in which the case history, coupled with the

probationer's behavior, indicates that it is a fair, just, and

sensible outcome. See, e.g., Nolan, 932 F.2d at 1006; United

States v. Fryar, 920 F.2d 252, 257 (5th Cir. 1990), cert. denied,

499 U.S. 981 (1991); see also Steven A. Childress & Martha S.

Davis, Federal Standards of Review, 11.39 at 11-161 (2d ed.

1986). This second step of the revocation analysis necessitates

individualized attention to the particular probationer and to the

idiosyncratic circumstances of his situation. And, it requires a

predictive decision, based in part on the court's assessment of

the probationer's propensity toward antisocial conduct. See

Lacey, 661 F.2d at 1022; United States v. Reed, 573 F.2d 1020,

1024 (8th Cir. 1978).

Although the trial court possesses wide latitude in

making such determinations, that latitude is not unbounded. The

test for abuse of discretion is well settled in this circuit:

In making discretionary judgments, a district
court abuses its discretion when a relevant
factor deserving of significant weight is
overlooked, or when an improper factor is
accorded significant weight, or when the
court considers the appropriate mix of
factors, but commits a palpable error of
judgment in calibrating the decisional
scales.

United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992);

accord, e.g., Independent Oil & Chem. Workers of Quincy, Inc. v.

Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988);

15

United States v. Hastings, 847 F.2d 920, 924 (1st Cir.), cert.

denied, 488 U.S. 925 (1988). Applying this test, we are unable

to discern any smidgen of abuse in the district court's decision

to revoke probation in order to ensure that appellant receive

necessary medical treatment. Based on a careful combing of the

record we conclude that the court considered all the appropriate

factors and made no detectable mistake in weighing them.

Nor is this conclusion undercut by appellant's lament

that the district court, in revoking probation, impermissibly

punished him for faultless conduct. This thesis finds its

genesis in appellant's view that because his mental health status

is involuntary (most recently induced, he claims, by the

government, which placed him on, then tried to wean him away

from, Haldol), revocation of probation is an improper punishment

for it. This argument is lame. See Bearden v. Georgia, 461 U.S.

660, 668 n.9 (1983) (explaining that "the probationer's lack of

fault in violating a term of probation [does not] necessarily

prevent a court from revoking probation"). In this vein, United

States v. Brown, 899 F.2d 189, 193 (2d Cir. 1990), appropriately

reminds us that "though a probation violation may result in

incarceration . . ., this punishment is imposed not for the

violation itself but for the prior criminal offense for which the

probationer was convicted."

We will not belabor the obvious, for it is difficult to

imagine a much clearer case than the case at bar. As appellant's

outpatient treatment program progressed, his mental and social

16

state deteriorated; he began hallucinating about messages from

inanimate objects and felt threatened by satellites. Moreover,

he made it plain that he did not consider himself mentally ill;

that, left to his own devices, he would not take medication to

alleviate the manifestations of his disorder; and that he would

not submit voluntarily to inpatient care. Especially in light of

appellant's defiance of the doctor's instructions and his

previous involvement in threats of grievous bodily harm against a

public official, his situation called out for remediation. The

district court, after finding that appellant had violated the

terms of probation, simply answered the call, effecting a

disposition that ensured appropriate treatment for appellant's

affliction and, at the same time, alleviated a cognizable risk to

public safety.

IV. CONCLUSION

We need go no further.8 In the original case,

appellant gained his liberty subject to a condition of probation

that required him to submit to inpatient psychiatric treatment

when medically indicated. Having been fairly warned of the

prospective consequences of intransigence, he nonetheless chose

8The question of appellant's competency at the time of
revocation is not before us. Appellant did not make a claim of
incompetency; no party sought a competency hearing, see 18 U.S.C.

4241(a) (1988); and the record contains no evidence of cause
sufficient to impel a court, sua sponte, to launch an inquiry

into competency. A history of psychiatric treatment, in and of
itself, does not require a court to convene a competency hearing
on its own initiative. See Hernandez-Hernandez v. United States,

904 F.2d 758, 760-61 (1st Cir. 1990); see also United States v.

Teague, 956 F.2d 1427, 1431-32 (7th Cir. 1992); Hernandez v.

Ylst, 930 F.2d 714, 717-18 (9th Cir. 1991).

17

to flout the condition. Thereafter, he turned his back on

numerous opportunities to deliver himself from the revocation

proceeding by agreeing to enter the hospital. In the

circumstances of this case, the lower court did not err in

finding a violation of the probation order, revoking appellant's

probationary status, and imposing a one-year incarcerative

sentence, followed by a term of supervised release.

Affirmed.

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