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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2004 Decided March 19, 2004
No. 03-3104
UNITED STATES OF AMERICA,
APPELLEE
v.
DAVID CHRISTIAN STANFIELD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00239–01)
Cheryl D. Stein, appointed by the court, argued the cause
and filed the briefs for appellant.
Arthur B. Spitzer was on the brief for amicus curiae
American Civil Liberties Union of the National Capital Area
in support of appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese III, and Jay I. Bratt, Assistant U.S. Attorneys.
Suzanne G. Curt, Assistant U.S. Attorney, entered an ap-
pearance.
Before: EDWARDS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: David Christian Stanfield appeals
from the district court’s revocation of his probation and
imposition of a special condition of supervised release limiting
his use of the internet. He argues that the probation revoca-
tion hearing was tainted by vindictiveness on the part of the
district court and by several procedural violations, including a
ruling that certain documents were not producible to the
defense under Federal Rule of Criminal Procedure 26.2, a
failure to provide adequate time for defense counsel to review
the documents that were produced at the hearing, and a time
limitation on the cross-examination of a government witness.
Stanfield further contends that the internet restriction is so
broad and vague that it contravenes both the First Amend-
ment and relevant statutory guidelines. We find that most of
these claims lack merit, but remand to the district court for
clarification of the internet restriction and a more considered
determination of whether the documents held not to be
producible should in fact have been produced.
I.
Stanfield was sentenced to five years probation in Decem-
ber 2002, following a plea of guilty to charges of identity
theft, conspiracy to distribute methamphetamine, and trans-
ferral of a false identification document in furtherance of a
drug trafficking crime. The district court imposed a set of
standard conditions of probation, including requirements that
Stanfield work regularly and notify his probation officer at
least ten days prior to any change in employment status. In
addition to the standard conditions, the court imposed a
3
number of special conditions: Stanfield was required to par-
ticipate in a mental health evaluation and obtain mental
health treatment, required to submit to periodic drug testing,
prohibited from working at a job affording access to customer
information such as social security numbers and birth dates,
and barred from using the internet ‘‘in any way, shape, or
form until further order of the Court.’’ The latter two
conditions were a response to Stanfield’s history of identity
theft, although it was conceded that he had not used the
internet in the commission of those crimes.
In imposing the five-year probation term, the district court
departed downward from the sentence that Stanfield faced
under the Sentencing Guidelines — a prison term of fifty-
seven to seventy-one months. The significant downward
departure was an acknowledgment of Stanfield’s substantial
assistance in the investigation of the drug conspiracy in which
he had been involved. At the sentencing hearing, however,
the court warned Stanfield that it would carefully monitor his
compliance with the terms of his probation: ‘‘[A]ny problems
at all and I will hold you accountable, and if I find that you
are at fault, I will revoke your probation and impose a period
of incarceration. You are so warned.’’ Sentencing Hr’g
(Dec. 17, 2002), quoted in Violation Sentencing Hr’g Tr. (Aug.
25, 2003), at 13 (Sentencing Tr.).
In April 2003, the district court became aware that Stan-
field had apparently been using the internet in violation of the
conditions of his probation — specifically by posting on a
website poetry and e-mail addresses through which he could
be reached. See Letter from Edward Shaw, U.S. Probation
Officer, to Stanfield (Apr. 14, 2003). The court alerted the
probation office, which wrote Stanfield that ‘‘the court directs
you to remove the website and to cancel the e-mail address-
es.’’ Id. On April 23, Stanfield filed a motion for clarification
of the internet restriction; two days later, the district court
ordered that a previously scheduled probation progress hear-
ing be converted to a hearing on violation and asked the
probation office to prepare a violation report.
4
In the probation office’s report and at the hearing, held on
May 15, 2003, evidence emerged that Stanfield’s compliance
with the terms of his probation had been mixed. With
respect to the employment condition, the record showed that
he had worked for only one full day since the December 2002
sentencing. Apparently chafing at the limited range of jobs
available to him under the terms of his probation, he had told
both his probation officer and a mental health counselor that
he refused to take a job ‘‘flipping burgers.’’ See Tr. of Hr’g
on Violation (May 15, 2003), at 25, 61 (HOV Tr.); Mem. from
Sharon Davis, Frayser Family Counseling Center, to Shaw
(Apr. 28, 2003), at 2 (Davis Memo).1 Probation Officer Ed-
ward Shaw later testified that Stanfield had applied to only a
few of the approximately twenty employment agencies in the
Memphis, Tennessee area where Stanfield had been permit-
ted to serve his probation. See HOV Tr. at 25, 61–62. Shaw
also testified that Stanfield had violated one of the conditions
of his probation by failing to tell Shaw in advance about a
one-day temporary job that he took in February 2003. Id. at
24. The evidence on Stanfield’s efforts to gain employment
was not entirely negative, however: a number of faxes and
logs showed that he had been searching for work, see id. at
63–65, and Shaw testified that on two occasions Stanfield
received offers for substitute teaching jobs that were later
revoked when the employers learned that Stanfield was on
probation, id. at 24.
Other evidence at the hearing related to Stanfield’s compli-
ance with his obligation to receive mental health counseling.
Under a treatment plan dated February 26, 2003, which
Stanfield had signed, he was obligated to attend weekly group
therapy sessions at the Frayser Family Counseling Center
and biweekly intensive therapy sessions one-on-one with
Sharon Davis, a counselor at the center. No staff members
1 Stanfield initially told his probation officer that his aversion to
the fast food industry was a result of his being a vegetarian, see
HOV Tr. at 61, but he later testified that he would take a job
‘‘putting pepperoni on a pizza’’ if the alternative was going to jail,
id. at 93.
5
from the center testified at the hearing; although the court
had issued a subpoena (at Stanfield’s request) for the testimo-
ny of Seth McCaskill, a counselor who led the group therapy
sessions, McCaskill received the subpoena just one day before
the hearing and was unable to travel from Memphis on such
short notice. HOV Tr. at 2–3. The evidence on Stanfield’s
compliance with this condition thus came primarily from
Probation Officer Shaw, who testified about information he
received from Davis. Over the defense’s objection on double-
hearsay grounds, Shaw testified that Davis had told him what
McCaskill had told her about Stanfield’s allegedly disruptive
behavior at one of the group therapy sessions. Id. at 14–16.
Shaw then stated that Davis had notified him on April 21,
2003 that Stanfield ‘‘had not yet ever presented himself to
her’’ for the biweekly individual counseling sessions. Id. at
16. Later that day, Stanfield went to the center and met
with Davis. According to Davis’s account of the meeting,
Stanfield became ‘‘defensive’’ when reminded of his obligation
to meet with her for individual sessions, and ‘‘began escalat-
ing’’ to the point where she ended the discussion and asked
him to leave. Letter from Davis to Shaw (Apr. 22, 2003).
One week later, Davis sent a memorandum to Shaw with a
more detailed description of what had transpired during the
meeting, stating that ‘‘[t]he more I attempted to advise Mr.
Stanfield [about] his requirements of treatment, the more
verbally defiant he became.’’ Davis Memo at 2. The memo-
randum formally notified Shaw that Stanfield’s treatment at
the center had been terminated. Id. at 3.
The final subject of testimony at the hearing was Stan-
field’s obligation to submit to random drug testing. Shaw
testified that Stanfield failed to appear for a drug test on
March 13, 2003 — apparently because Stanfield did not call
the probation office as required each evening to hear a
recording with instructions on whether a drug test would be
held the next day. See HOV Tr. at 9–11, 41–42; Letter from
Shaw to Stanfield (Feb. 24, 2003) (instructions for drug
screening). On the morning of March 14, Shaw explained,
6
Stanfield called in dismay at having missed the drug screen
the previous day; he came in later on the 14th and tested
negative for illegal drugs. HOV Tr. at 11.
At the end of Shaw’s direct testimony, Stanfield’s counsel
moved for production of his statements pursuant to Federal
Rule of Criminal Procedure 26.2, which is analogous to the
Jencks Act, 18 U.S.C. § 3500, see FED. R. CRIM. P. 26.2
Advisory Committee note (1979) (Rule ‘‘place[s] in the crimi-
nal rules the substance of’’ the Jencks Act). Rule 26.2(a)
provides that after a witness has testified, the opposing party
may move the court to order the party who called the witness
to turn over ‘‘any statement of the witness that is in their
possession and that relates to the subject matter of the
witness’s testimony.’’ Shaw gave to Stanfield’s counsel what
she described at the time as ‘‘a very thick stack of papers,’’
HOV Tr. at 31, and later described as ‘‘a stack of paper
between one and two inches high,’’ Appellant Br. at 22.
Stanfield’s counsel (assisted by co-counsel) was then given a
total of nine minutes to review the papers. HOV Tr. at 31–
32. At the end of that time, counsel stated that she ‘‘ha[d]
not had sufficient time to review’’ the documents, which were
‘‘voluminous’’ and ‘‘essential to the issues before the court.’’
Id. at 32. The court nonetheless ordered counsel to begin the
cross-examination of Shaw, stating that because the direct
examination had taken twenty-two minutes, the cross-
examination would be limited to the same amount of time.
Id. at 32–33. The court eventually allowed the cross-
examination to run longer, see id. at 52, but admonished
counsel to ‘‘[f]inish up,’’ id. at 56, 63; see also id. at 58
(counsel apologizing for interrupting the witness, stating ‘‘I
am a little conscious of the time.’’). At the end of the cross-
examination, counsel stated, ‘‘I have nothing further, Your
Honor, although I would like briefly to restate for the record
that I feel that without having had sufficient time to review
all the papers that my cross-examination was not as effective
and [a]s wide-ranging as it should have been and could have
been.’’ Id. at 65.
7
Only three of the conditions of Stanfield’s probation — the
employment condition, the mental health treatment condition,
and the drug screening requirement — were addressed at the
May 15 hearing, despite the pendency of Stanfield’s motion to
clarify the internet condition. See id. at 2.2 The district
court concluded that the evidence of Stanfield’s non-
compliance with the employment condition was ‘‘more or less
in equipoise except with respect to this requirement that he
report in advance employment that he secures.’’ Id. at 123.
With respect to the mental health counseling, the court found
that Stanfield ‘‘most assuredly did not comply with this
condition and he is in violation of this and it is willful,’’ id. at
122; regarding the drug screening requirement, the court
concluded that Stanfield’s failure to comply with the March 13
drug screen was not willful, id. at 120. In a subsequent
hearing, the court revoked Stanfield’s probation based on the
violations of the employment and mental health counseling
conditions, emphasizing that this action was ‘‘not predicated
on any one violation’’ and that ‘‘the presence or the absence of
any one would not materially influence’’ the court’s decision.
Sentencing Tr. at 10. The court sentenced Stanfield to nine
months in prison, and specified a series of conditions that
would govern his subsequent release, including a revised
restriction on his use of the internet. The court imposed the
revised internet restriction without providing notice to or
hearing argument from the defendant. Id. at 2, 15–18.
II.
A. Internet Condition
We begin with Stanfield’s challenge to the internet condi-
tion that will apply during his supervised release. The
revised condition states:
The defendant’s use of the internet is limited as follows:
2The government had by then conceded that the internet ban
was ‘‘overly broad, given the circumstances of this case.’’ Gov’t
Response to Def. Mot. for Clarification at 2.
8
a) The defendant may use the internet as any employer
legally directs, so long as he has no access to personal
information including bank account numbers, credit
card numbers, social security numbers and birth
dates.
b) The defendant may not view and use internet sites
that provide personal information as described in
[section (a)].
c) Within these parameters, the probation office may
alter this limitation on internet use as needed to
ensure that it is clear and tailored to prevent further
identity thefts.
d) The defendant must permit the probation office to
search his e-mail accounts and his computer, including
the drives and storage devices, at any time. If the
defendant uses the computer or e-mail account of a
friend or employer, he must first obtain permission
from that person for a possible search of the comput-
er, including the drives and storage devices, or the e-
mail account.
The imposition of a term of supervised release after impris-
onment is authorized by 18 U.S.C. § 3583. Subsection (d) of
that provision specifies that the court may order any condi-
tion of supervised release ‘‘it considers to be appropriate,’’ to
the extent the condition is ‘‘reasonably related’’ to the nature
and circumstances of the offense and the history and charac-
teristics of the defendant, and to the need to deter crime, to
protect the public from further crimes of the defendant, and
to provide needed training, medical care, or other correctional
treatment to the defendant. 18 U.S.C. § 3583(d)(1). The
condition also must entail ‘‘no greater deprivation of liberty
than is reasonably necessary’’ to provide adequate deterrence,
to protect the public, and to meet the defendant’s vocational
and medical needs. Id. § 3583(d)(2).
The parties and amicus American Civil Liberties Union of
the National Capital Area dispute whether the internet re-
9
striction comports with the requirements of 18 U.S.C. § 3583
and the First Amendment. Amicus tells us that seven federal
appellate decisions have upheld internet restrictions, while six
have struck them down. See Amicus Br. at 14 & n.10. The
government argues that the cases on which defendant and
amicus rely are distinguishable because of the greater
breadth of the restrictions at issue in those cases. See
Appellee Br. at 56–57.
Before we can assess such arguments, we need to know the
reach of the restriction at issue. Stanfield and amicus con-
tend that the condition is vague in significant respects. It
does not state explicitly that Stanfield may use a computer
only as ‘‘any employer legally directs,’’ but at oral argument
Stanfield’s counsel — who was also his counsel at the hearing
when the condition was imposed — stated that she believed
the condition included that limitation. Oral Argument at
07:55; see also Reply Br. at 20 (construing section (a) of the
condition as allowing internet use only at work). Stanfield
also argues that the condition is overly expansive, and offers
the example of newspapers’ internet sites, which typically
include birth dates in obituaries or death notices. On its face,
with its ban on accessing any site that contains birth dates,
the restriction could bar Stanfield from reading an encyclope-
dia or a newspaper online (even though he could freely buy a
print edition of these materials and obtain the same informa-
tion).
The government offers a reading of the restriction that
does not suffer from the vagaries that Stanfield alleges. In
the government’s view, it is ‘‘obvious’’ that Stanfield is free to
have a personal computer and e-mail account, because section
(d) refers to ‘‘his e-mail accounts’’ and ‘‘his computer’’ in a
context distinct from the employment realm, immediately
providing for additional steps to be taken when the computer
belongs to an employer or friend. Appellee Br. at 55. At
oral argument, in response to questioning, government coun-
sel represented that the restriction would not preclude Stan-
field from accessing newspapers online, despite the fact that
such sites contain prohibited information such as birth dates.
Oral Argument at 35:49.
10
We are reluctant to address the validity of the internet
restriction in the absence of a clearer understanding of its
scope; we need more solid footing before deciding where we
stand. The evolutionary process the internet restriction has
undergone in this case — involving challenges by the defen-
dant, redefinition by the district court without providing
notice to or hearing argument from the defendant, and spo-
radic concessions by the government — has culminated in a
lack of clarity about what exactly is before us. That is
problematic enough as a general matter; neither the defen-
dant nor the probation office and district court should have to
consult the judgment, the briefs before this court, and the
transcript of oral argument to determine the scope of the
condition. Subsection (f) of 18 U.S.C. § 3583 specifies that:
The court shall direct that the probation officer provide
the defendant with a written statement that sets forth all
the conditions to which the term of supervised release is
subject, and that is sufficiently clear and specific to serve
as a guide for the defendant’s conduct and for such
supervision as is required.
See also United States v. Simmons, 343 F.3d 72, 81 (2d Cir.
2003) (‘‘Due process requires that the conditions of supervised
release be sufficiently clear to give the person of ordinary
intelligence a reasonable opportunity to know what is prohib-
ited, so that he may act accordingly’’) (internal quotation
marks and citations omitted).
But quite apart from these concerns, the confusion over the
scope of the internet restriction counsels restraint on our part
before attempting to consider the validity of the restriction
under 18 U.S.C. § 3583 and the First Amendment. See City
of Los Angeles v. Preferred Communications, Inc., 476 U.S.
488, 495 (1986) (‘‘We do not think TTT that it is desirable to
express any more detailed views on the proper resolution of
the First Amendment question TTT without a fuller develop-
ment of the disputed issues in the case.’’). Although section
(c) of the condition authorizes the probation office to clarify
and tailor the restriction, the extent of the confusion here,
and the First Amendment concerns that this case implicates,
11
render that option inadequate. See United States v. Scott,
316 F.3d 733, 736 (7th Cir. 2003) (Easterbrook, J.) (terms of
supervised release should be precise, because open-ended
delegations to probation officers ‘‘create opportunities for
arbitrary action — opportunities that are especially worri-
some when the subject concerns what people may read’’).
We accordingly remand to allow the district court to clarify
the scope of the restriction. See United States v. Smith, 332
F.3d 455, 462 (7th Cir. 2003) (remanding for clarification of
ambiguous condition of supervised release); see also Boyle v.
United Techs. Corp., 487 U.S. 500, 514 (1988) (remanding to
court of appeals for clarification of its findings); CSX
Transp., Inc. v. Commercial Union Ins. Co., 82 F.3d 478,
482–83 (D.C. Cir. 1996) (remanding for district court to clarify
the grounds for its ruling). We leave to the district court in
the first instance the appropriate means of addressing the
confusion that has arisen.
B. Production of Jencks Material
Stanfield also argues that the district court erred in han-
dling his request for the production of certain documents
before the cross-examination of Probation Officer Shaw. Un-
der the procedural rule that governs Jencks material, the
prosecution was required to produce, on motion of the defen-
dant, ‘‘any statement of the witness’’ that was ‘‘in [its] posses-
sion and that relate[d] to the subject matter of the witness’s
testimony.’’ FED. R. CRIM. P. 26.2(a); see also FED. R. CRIM. P.
32.1(e) (making Rule 26.2(a)–(d), (f) applicable to probation
revocation hearings). The defense made a timely motion for
the production of the documents, HOV Tr. at 27, and Shaw
began to look through the documents he had brought to the
hearing. The district court ruled on two occasions that
certain documents were not producible. First, Shaw offered
to turn over certain unidentified documents, saying, ‘‘This is
stuff which is not part of this file but was brought with me.
You are welcomed to see it.’’ HOV Tr. at 29. The prosecu-
tion did not object to the production of the documents, but
the court immediately stated, ‘‘If it’s not part of your file she
is not welcome to see it. Now, let’s speed this up please.’’
Id. Shaw continued leafing through the materials, describing
12
each document; at one point he stated that some of the
documents were ‘‘confidential memorandums to the court.’’
Id. at 29–30. Again without waiting for any objection from
the prosecution, the court ruled that ‘‘[t]hese memorandums
to the court are not producible. Speed it up.’’ Id. at 30.
The district court had an ‘‘affirmative duty,’’ Saunders v.
United States, 316 F.2d 346, 349 (D.C. Cir. 1963), to ‘‘engage
in an adequate inquiry into the nature of the documents
before ruling against Jencks Act production,’’ United States v.
North Am. Reporting, Inc., 740 F.2d 50, 55 (D.C. Cir. 1984);
see United States v. Holton, 116 F.3d 1536, 1546 (D.C. Cir.
1997) (same). Neither the Jencks Act nor Rule 26.2 specifies
a particular procedure for determining whether documents
need to be produced, but the typical practice in the case of an
objection to production is for the district court to examine the
documents in camera or to question the witness about them.
See Goldberg v. United States, 425 U.S. 94, 108 (1976) (‘‘We
have recognized that a Government objection to production
may require that the trial court inspect documents or hold a
hearing to gather extrinsic evidence bearing on the extent to
which the documents are TTT producible’’); Palermo v. Unit-
ed States, 360 U.S. 343, 354 (1959) (‘‘we approve the practice
of having the Government submit the statement to the trial
judge for an in camera determination’’); North Am. Report-
ing, 740 F.2d at 55; see also FED. R. CRIM. P. 26.2(c) (‘‘If the
party who called the witness claims that the statement con-
tains information that is privileged or does not relate to the
subject matter of the witness’s testimony, the court must
inspect the statement in camera.’’). Here the government did
not object, because there was no occasion for it to do so —
the district court ruled against production of the ‘‘stuff which
is not part of this file’’ and the ‘‘confidential memorandums to
the court’’ without awaiting an objection, without inquiring
further into the nature of the material, and without examining
the documents themselves.
This course puts us in the position of having to review
whether it was proper to decline to order production of the
documents without knowing very much about them. We do
not know, for example, what the ‘‘stuff which is not part of
13
this file’’ is, or why Shaw had it with him on the stand if it
was indeed ‘‘not part of this file.’’ Nor is the nature of the
memoranda to the court clear. With respect to both catego-
ries of material, there is a dispute over the pertinent question
of whether the documents satisfy the criterion of Rule 26.2
that they be in the possession of the attorney for the govern-
ment at the time of the hearing, see FED. R. CRIM. P. 26.2(a).
The government argues that there is ‘‘absolutely no indica-
tion’’ that the confidential memoranda from Shaw to the court
were ever in its possession, Appellee Br. at 24, but Stanfield
contends that there is ‘‘clear evidence that at least some part
of the probation officer’s file was in the possession of the
prosecutor at some point before the hearing,’’ Reply Br. at 6.
Stanfield argues that several of the government’s exhibits at
the hearing — letters from Shaw to Stanfield and letters
from the Frayser counselors to Shaw — must have been
drawn from Shaw’s files, see HOV Tr. at 6–7, 8, 11, 14, 19–20,
suggesting that government counsel had access to that file.
If the documents were in the record on appeal, we would
have to decide whether to examine them ourselves to deter-
mine whether they should have been produced. Compare,
e.g., United States v. Chitwood, 457 F.2d 676, 678 (6th Cir.
1972) (district court ‘‘wisely ordered the reports to be made
part of the record, sealed for appellate reviewTTTT We have
examined [them] carefully’’), with United States v. Truong
Dinh Hung, 629 F.2d 908, 920 (4th Cir. 1980) (‘‘we decline the
district judge’s invitation to inspect the documents ourselves,
and, instead, remand the case’’), and United States v.
O’Brien, 444 F.2d 1082, 1087 (7th Cir. 1971) (remanding for
district court to examine sealed documents). Given that the
documents are not available to us, we have no occasion to
depart from the ‘‘general rule’’ that ‘‘the initial determination
of whether TTT documents constitute producible statements
under the [Jencks Act] should be made in the district court.’’
North Am. Reporting, 740 F.2d at 56; see also Goldberg, 425
U.S. at 109 n.15 (examination of documents to determine
whether they are producible is ‘‘initially a task for the District
Judge’’); Truong Dinh Hung, 629 F.2d at 920 (district court’s
‘‘familiar[ity] with the other Jencks Act material’’ makes it
14
‘‘better equipped than we to decide whether any Jencks Act
statements included within the documents are merely cumula-
tive’’).
On remand, the district court should take such steps as are
necessary to fill in these record deficiencies to allow adequate
review of Stanfield’s claims under Rule 26.2(a). Whether
through examination of the documents at issue or through
other means, the court should develop a record concerning
whether the documents were producible under the Rule. See
United States v. Cole, 617 F.2d 151, 153 (5th Cir. 1980);
Saunders, 316 F.2d at 349. If the court concludes that any of
the withheld documents should have been produced, it must
then determine whether the error was harmless. See
Goldberg, 425 U.S. at 111; North Am. Reporting, 740 F.2d at
56; see also Holton, 116 F.3d at 1547; United States v. Lam
Kwong-Wah, 924 F.2d 298, 310 (D.C. Cir. 1991). As we have
noted, the harmless-error doctrine must be ‘‘strictly applied’’
in Jencks cases, North Am. Reporting, 740 F.2d at 56 n.8
(citing Goldberg, 425 U.S. at 111 n.21), and the court ‘‘cannot
‘speculate whether [the material] could have been utilized
effectively’ ’’ at the revocation hearing. Id. (quoting Clancy
v. United States, 365 U.S. 312, 316 (1961)). In accordance
with this court’s approach in North American Reporting, 740
F.2d at 56, we do not vacate the district court’s findings of
probation violations; rather, if the court finds error that was
not harmless, it should vacate its judgment and conduct a new
hearing. See Goldberg, 425 U.S. at 111–12; Saunders, 316
F.2d at 350.
C. Time Allotted to Review Jencks Material
With respect to the Jencks material that was provided at
the hearing, Stanfield argues that the court abused its discre-
tion in granting his counsel only nine minutes to review what
counsel described as ‘‘a very thick stack of papers.’’ HOV Tr.
at 31. The applicable rule provides that ‘‘[t]he court may
recess the proceedings to allow time for a party to examine
the statement and prepare for its use.’’ FED. R. CRIM. P.
26.2(d). Stanfield relies primarily on United States v. Hin-
ton, 631 F.2d 769, 782 (D.C. Cir. 1980), in which this court
15
held that trial counsel’s failure to request the recess to which
she was entitled under Rule 26.2(d) deprived the defendant of
his right to effective assistance of counsel. Of greater impor-
tance to this case — because Stanfield’s counsel did request
and receive a recess (albeit a short one) — is the Hinton
court’s statement that if the defense counsel had requested a
recess, ‘‘a refusal by the court to allow sufficient time for
review would have been appealable as an abuse of discretion.’’
Id. at 781 (emphasis added).
Hinton thus establishes (unremarkably) Stanfield’s right to
an appeal on this issue, but provides no guidance on how
much time would be sufficient to satisfy the abuse-of-
discretion standard. For that, Stanfield points to United
States v. Holmes, 722 F.2d 37 (4th Cir. 1983), in which the
Fourth Circuit held that the trial court abused its discretion
in allowing the defendant only sixteen minutes to review
Jencks material that had been provided to counsel on a
Sunday morning one day before the trial began. See id. at
40, 41. ‘‘[T]he material was a stack of paper at least eight
inches thick, including a thousand pages of testimony ob-
tained from ten witnesses, a forty-five minute tape recording
and other documents;’’ the court noted that a single reading
of the material by an experienced attorney took twenty-four
hours. Id. at 40. In holding that the recess was inadequate,
the court emphasized that the defendants ‘‘had only the
minimum notice that due process requires of the charges
against them,’’ and that their need for time to examine the
material was thus ‘‘greater than in the usual case.’’ Id. at 41.
This case is manifestly distinguishable from Holmes. Quite
apart from the fact that the volume of material here is
smaller — the stack of papers is at most one-quarter the size,
and there is no evidence that the material included a lengthy
audiotape — this case does not include a notice problem
analogous to the one that the Fourth Circuit confronted: the
Violation Report provided a detailed explanation of the al-
leged violations and the facts underlying each of them. Viola-
tion Report (Apr. 28, 2003), at 2–4.
Rule 26.2(d) compels the district courts to exercise discre-
tion in balancing the need for adequate time to examine
16
Jencks material against the need to avoid undue delay in the
midst of a proceeding while a witness is on the stand. The
permissive language of the Rule — ‘‘[t]he court may recess
the proceedings’’ (emphasis added) — indicates that district
judges have ample latitude in striking that balance. See
Sendejas v. United States, 428 F.2d 1040, 1046 (9th Cir. 1970)
(given that the Jencks Act ‘‘does not state how much time
should be allowed,’’ ‘‘the trial judge in his discretion has the
right to determine how much time is reasonably needed’’).
The district court cannot be required to wait until defense
counsel is satisfied that review of the Jencks material is
complete; such a procedure would transfer control over the
timing of proceedings from the district judge to the defense.
The district court must unavoidably draw the line somewhere,
and is well equipped to do so. See Palermo, 360 U.S. at 353
(decisions on ‘‘procedural and evidentiary matters’’ should
rest ‘‘within the good sense and experience of the district
judge TTT, and subject to the appropriately limited review of
appellate courts’’).
Commentators and practitioners have long been aware that
the time allotted for review of Jencks material is often
relatively brief. See American Bar Ass’n, Standards for
Criminal Justice: Discovery and Trial by Jury, Standard
11.2–1(a) cmt., at 20–21 (3d ed. 1996) (‘‘Some federal courts
have criticized [the timing of Jencks disclosure] as contrary to
the interest of justice and the orderly administration of the
judicial system’’). Indeed, complaints about inadequate time
for examining Jencks material are nearly as old as the Jencks
Act itself. See Junior Bar Section of Bar Ass’n of District of
Columbia, Conference Papers on Discovery in Federal Crimi-
nal Cases (1963), reprinted in 33 F.R.D. 47 app. at 122 (1963)
(noting ‘‘widespread dissatisfaction with the amount of time
afforded to defense counsel to inspect and reflect on the
contents of Jencks statements in the midst of a trial’’). But
we note that Stanfield’s counsel relied on Shaw’s notes of his
meetings with Stanfield — which were disclosed after Shaw’s
direct testimony — on two occasions during cross-
examination, see HOV Tr. at 34–35, 39–40, indicating that she
was able to use the opportunity to review the material to
17
some advantage. See United States v. Mitchell, 777 F.2d 248,
255 (5th Cir. 1985).
A district court must avoid undue delay in proceedings, but
must also ensure that the right provided by Rule 26.2 is not
rendered meaningless by expedition; a prompt proceeding is
good but a fair one is necessary, and excessive zeal to
minimize delay can be short-sighted, precipitating an appel-
late challenge that could have been avoided. No one would
accuse the district court here of being overly generous in
affording counsel time to review the documents produced
after Shaw’s testimony; indeed, the court flirted with the
outer limits of its discretion, but we cannot conclude that it
abused that discretion.3 Given that we are remanding the
case for the district court to determine whether defense
counsel received all the Jencks material to which she was
entitled, however, the district court may want to take the
opportunity to review the Jencks material that was produced
and reassess whether nine minutes was a sufficient amount of
time for Stanfield’s counsel to review it. Of course, if the
court finds that additional documents should have been pro-
duced, and that such error was not harmless, it will have to
reassess the amount of time counsel reasonably needs to
review all the material she is entitled to see.
D. Time Limitation on Cross–Examination
Stanfield’s next attack on the procedure used at the hear-
ing focuses on the district court’s limitation of the time
allowed for the cross-examination of Shaw. The record does
3 This conclusion should not be read to endorse the government’s
argument, Appellee Br. at 26–27, that the opportunity that Stanfield
was apparently given to request documents from the probation
officer’s file prior to the hearing, see HOV Tr. at 27–28, affects the
determination of how much time (if any) should be allotted for
review of documents produced at the hearing. Such opportunities
are frequently afforded to mitigate the difficulties associated with
the timing of production under the Rule. See 2A CHARLES ALAN
WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 438, at 223 (3d ed.
2000). Here, however, the opportunity was conveyed not to Stan-
field’s counsel, but only to the represented Stanfield himself.
18
not indicate precisely how long the cross-examination contin-
ued beyond the initial twenty-two-minute limitation; it shows
only that the limit was reached after twenty transcript pages
of testimony and that testimony continued for thirteen more
pages. See HOV Tr. at 32, 52, 65. Stanfield argues that even
though the announced limit was ultimately exceeded, the
court’s exhortations to defense counsel to ‘‘finish up,’’ id. at
56, 63, caused counsel to be ‘‘pressured and distracted,’’
Appellant Br. at 17, and amounted to a denial of Stanfield’s
right to confront the witness against him.
A probationer facing revocation is entitled to ‘‘an opportuni-
ty to TTT question any adverse witness.’’ FED. R. CRIM. P.
32.1(b)(2)(C); see also Morrissey v. Brewer, 408 U.S. 471,
488–89 (1972) (holding that a right to confrontation exists in
parole revocation proceedings); Gagnon v. Scarpelli, 411 U.S.
778, 782 (1973) (extending Morrissey to probation revoca-
tions). Although Morrissey states explicitly that a revocation
hearing should not be ‘‘equate[d] TTT to a criminal prosecu-
tion in any sense,’’ 408 U.S. at 489, we need not address the
precise extent of the confrontation to which a probationer is
entitled post-Morrissey because the cross-examination here
was adequate. Cf. United States v. Green, 670 F.2d 1148,
1154 (D.C. Cir. 1981) (right of cross-examination applies at a
suppression hearing irrespective of whether it ‘‘deriv[es] from
the fundamental concepts embedded in the Due Process
Clause or [is] implicit in the rules governing federal criminal
proceedings’’).
In United States v. Slade, 627 F.2d 293 (D.C. Cir. 1980),
which arose from an adversary trial, the district court limited
the defendant’s cross-examination of a government witness to
roughly forty-five minutes. Id. at 309. The court concluded:
[T]he time limitation may have placed a degree of pres-
sure on [defendant]’s counsel, who then indicated that
the schedule interfered with his preparation and concen-
tration, [but] under the circumstances of these cases and
the matters explored, the restriction of cross-examination
was not an abuse of discretion TTTT
19
Id. In this case, defense counsel likewise indicated that she
felt pressured by the time limitation. See, e.g., HOV Tr. at 58
(‘‘I’m sorry to be interrupting you, I am a little conscious of
the time.’’). At the end of the cross-examination, however,
counsel’s objection was focused on the time allotted to review
the Jencks material, not on the overall duration of the cross-
examination. Id. at 65 (‘‘I have nothing further, Your Honor,
although I would like briefly to restate for the record that I
feel that without having had sufficient time to review all the
papers TTT my cross-examination was not as effective and [a]s
wide-ranging as it should have been’’) (emphases added).
Moreover, the transcript reflects a reasonably detailed discus-
sion of the evidence relating to the alleged violations. See
United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir.
1989) (court ‘‘may limit cross-examination only after there has
been permitted TTT a certain threshold level of cross-
examination which satisfies the constitutional requirement’’)
(quoting United States v. Christian, 786 F.2d 203, 213 (6th
Cir. 1986)) (internal quotation marks omitted). Again, al-
though we do not endorse excessive zeal in minimizing delay,
we cannot conclude that the district court violated Stanfield’s
rights in limiting the cross-examination.
E. Admission of Hearsay Testimony
Stanfield also argues that the district court erred in receiv-
ing Shaw’s testimony to the extent that it included hearsay
statements of Sharon Davis. In several instances, Shaw
testified about what Davis had said during telephone conver-
sations with him. See HOV Tr. at 15–16, 18–19. The court
also accepted into evidence several letters that Davis wrote to
Shaw. See id. at 19–20. At one point the court even
permitted Shaw to testify, over an objection from Stanfield,
about Davis’s ‘‘appreciation’’ of what had happened when
Stanfield attended a group therapy session led not by Davis
but by Seth McCaskill. Id. at 16. Stanfield urges that
before receiving such hearsay evidence, the court was obliged
to conduct a balancing test, weighing Stanfield’s right to
confront the declarant against the government’s asserted
grounds for foregoing confrontation. See United States v.
20
Bell, 785 F.2d 640, 642 (8th Cir. 1986); see also United States
v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994); FED. R. CRIM. P.
32.1 Advisory Committee note (2002) (court should ‘‘balance
the person’s interest in the TTT right to confrontation against
the government’s good cause for denying it’’).
Notably, however, in each of the cases on which Stanfield
relies, the party challenging the hearsay evidence raised a
timely objection to its introduction. See, e.g., United States v.
Comito, 177 F.3d 1166, 1168 (9th Cir. 1999); United States v.
O’Meara, 33 F.3d 20, 20 (8th Cir. 1994); Frazier, 26 F.3d at
112; United States v. Zentgraf, 20 F.3d 906, 908 (8th Cir.
1994); Bell, 785 F.2d at 643 n.3; see also United States v.
Pratt, 52 F.3d 671, 677 n.4 (7th Cir. 1995) (‘‘The requirement
of balancing TTT generally involves an initial request by the
defendant to cross-examine adverse witnesses’’). Here, Stan-
field did not object to any of the hearsay attributable to Davis
except the single double-hearsay statement (Shaw’s testimony
about what McCaskill said to Davis). Stanfield urges that
counsel’s statement during an ex parte bench conference at
the beginning of the hearing — ‘‘I’m entitled to subpoena
witnesses. I want Ms. Davis,’’ HOV Tr. at 4 — should be
read as an ‘‘assert[ion]’’ of his ‘‘right to test her statements
through cross-examination.’’ Reply Br. at 11. But such a
general statement made at a different point in time from the
production of hearsay evidence — indeed, before counsel
could even have known that the testimony would include
hearsay — cannot be construed as a pertinent objection.
We therefore review the admission of the bulk of the
hearsay evidence — all except the double hearsay — for plain
error. See FED. R. CRIM. P. 52(b). Our plain-error review is
informed by the holdings of a number of circuits that, under
Morrissey’s relaxed standard for confrontation, hearsay evi-
dence may be admitted in probation revocation hearings if it
bears sufficient indicia of reliability. See, e.g., United States
v. Redd, 318 F.3d 778, 783–84 (8th Cir. 2003); United States
v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987); Egerstaffer v.
Israel, 726 F.2d 1231, 1234 (7th Cir. 1984); United States v.
Penn, 721 F.2d 762, 765 (11th Cir. 1983); see generally FED.
R. EVID. 1101(d)(3) (Rules of Evidence do not apply in proba-
21
tion revocation proceedings). The district court could have
concluded that Davis’s statements introduced via Shaw were
fairly reliable, insofar as they were corroborated by the
undisputed fact that Stanfield had been expelled from the
counseling program. The court thus did not commit plain
error.
With respect to the double hearsay, to which Stanfield did
object, we find that the district court erred in failing to
conduct the balancing described in the note to Rule 32.1.
The error was, however, harmless: the double hearsay con-
sisted of Shaw testifying as to Davis’s ‘‘appreciation’’ of
information from McCaskill, and written notes taken by
McCaskill had already been entered into evidence (without
objection) and discussed in detail. HOV Tr. at 14–16. Shaw
characterized Davis’s statements as ‘‘elaborat[ing] a little
further’’ on the information in McCaskill’s notes, id. at 16, so
the double hearsay was largely repetitive of the notes that
had already been admitted. See United States v. Smith, 964
F.2d 1221, 1224 (D.C. Cir. 1992); United States v. DeLoach,
654 F.2d 763, 771 (D.C. Cir. 1980).
F. Absence of McCaskill from the Hearing
The last of Stanfield’s procedural arguments is that the
court violated his right to present evidence on his behalf, see
FED. R. CRIM. P. 32.1(b)(2)(C), by ‘‘refusing to compel’’ the
presence of Seth McCaskill as a witness for the defense.
Appellant Br. at 32. We reject the government’s rejoinder
that the subpoena for McCaskill was itself an abuse of
process insofar as it was requested on April 9, only six days
before the hearing. See Appellee Br. at 34 n.17. The timing
of Stanfield’s request is easily explained: his counsel received
the Violation Report from the probation office only nine days
before the hearing, see HOV Tr. at 101, and the order
converting the status hearing to a revocation hearing was
issued only three weeks before the hearing date. Nonethe-
less, we conclude that Stanfield’s argument must fail.
When the court gave Stanfield the opportunity to elicit
testimony from McCaskill by telephone, his counsel replied,
‘‘That’s not acceptable to me.’’ Id. at 4; see also id. at 69
22
(court to counsel: ‘‘The record will reflect that you’re waiving
your opportunity to examine this witness.’’). Counsel did not,
however, request a continuance to allow McCaskill to appear.
Cf. United States v. Barker, 553 F.2d 1013, 1023 (6th Cir.
1977) (trial court erred in denying request for a continuance
when witnesses subpoenaed by defense did not appear). By
summarily rejecting the option of taking McCaskill’s testimo-
ny by telephone, counsel foreclosed the development of a
record from which we could have evaluated the extent, if any,
to which Stanfield’s due process rights might have been
infringed by the substitution of the telephone examination for
live testimony, and whether any infringement would have
been harmless in the overall context of the hearing. Cf.
United States v. Jacobs, 97 F.3d 275, 280–84 (8th Cir. 1996)
(court erred in allowing cross-examination of hospitalized
witness by telephone at trial, but error was harmless). We
decline to engage in an abstract and hypothetical examination
of whether telephone testimony would be adequate under
Morrissey and Rule 32.1(b)(2)(C).
G. Alleged Vindictiveness of the Court
Stanfield’s final argument is that the revocation of his
probation was a vindictive response to his challenge to the
special condition that (prior to revision) barred him from all
use of the internet. North Carolina v. Pearce, 395 U.S. 711,
726 (1969), permits a ‘‘presumption of vindictiveness’’ when
longer sentences are imposed on retrial, but only when ‘‘there
is a reasonable likelihood that the increase in sentence is the
product of actual vindictiveness on the part of the sentencing
authority.’’ Alabama v. Smith, 490 U.S. 794, 799 (1989)
(internal quotation marks and citation omitted). In the ab-
sence of such a reasonable likelihood, ‘‘the burden remains
upon the defendant to prove actual vindictiveness.’’ Id. at
799–800 (citing Wasman v. United States, 408 U.S. 559, 569
(1984)).
Aside from Pearce itself, in which a longer sentence was
imposed after a defendant successfully appealed his convic-
tion, the Supreme Court has found a reasonable likelihood of
vindictiveness — and thus has applied a presumption of
23
vindictiveness — in only one other circumstance: when a
prosecutor added a new felony charge against a defendant
seeking de novo review of a misdemeanor conviction. Black-
ledge v. Perry, 417 U.S. 21, 27 (1974). Stanfield urges us to
extend the presumption of vindictiveness to situations in
which a court revokes probation after a defendant brings a
constitutional challenge — in the form of a motion to clari-
fy — against a condition of the probation. Even if the
Supreme Court had not indicated that it is ‘‘chary about
extending the Pearce presumption of vindictiveness when the
likelihood of vindictiveness is not as pronounced as in Pearce
and Blackledge,’’ Wasman, 468 U.S. at 566, we would be
disinclined to extend the presumption to a case like the one
before us. A motion to clarify is categorically different from
a retrial or resentencing that occurs after a defendant has
‘‘successfully pursued a statutory right of appeal or collateral
remedy,’’ Pearce, 395 U.S. at 724. As the Court noted in
Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973), ‘‘the judge
who has been reversed’’ may have a ‘‘personal stake in the
prior conviction and [a] motivation to engage in self-
vindication;’’ any such concerns are certainly attenuated, and
perhaps even absent, when a judge is himself merely asked to
clarify an earlier ruling.
Even if a presumption of vindictiveness did apply in this
case, it would be more than adequately rebutted.4 See Texas
v. McCullough, 475 U.S. 134, 141 (1986) (‘‘Nothing in Pearce
is to be read as precluding a rebuttal of intimations of
vindictiveness.’’). The trial court articulated the reasons for
its decision to revoke Stanfield’s probation, including two
violations that the court found to be willful and the severity of
4 For similar reasons, we do not decide whether to review the
vindictiveness claim for plain error, as the government urges, or
under a stricter standard of review, as Stanfield suggests. No
allegation of vindictiveness was raised below, suggesting that plain-
error review is appropriate, see FED. R. CRIM. P. 52(b), but Stanfield
argues that it would be impractical to require defendants to raise
claims of vindictiveness before the very court alleged to be acting
vindictively. Our holding would be the same under either standard
of review.
24
the underlying offense, as reflected in the initial prison term
to which Stanfield could have been sentenced, HOV Tr. at
122–24; see Wasman, 468 U.S. at 572 (court ‘‘may justify an
increased sentence by affirmatively identifying relevant con-
duct or events that occurred subsequent to the original
sentencing proceedings’’). Moreover, the court’s statement at
the initial sentencing — putting Stanfield on notice that ‘‘any
problems at all and I will hold you accountable TTTT I will
revoke your probation and impose a period of incarcera-
tion’’ — roundly defeats any suggestion that it was a vindic-
tive response to the motion to clarify that led to the revoca-
tion.
A showing of actual vindictiveness is ‘‘exceedingly difficult
to make,’’ Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001)
(internal quotation marks and citation omitted), and Stanfield
has not presented the required ‘‘objective evidence’’ that the
court’s action was ‘‘motivated by a desire to punish him for
doing something that the law plainly allowed him to do,’’
United States v. Goodwin, 457 U.S. 368, 380 n.12, 384 (1982).
The fact that the court converted the scheduled status hear-
ing to a hearing on violation on April 25 (after Stanfield filed
the motion to clarify the internet ban) does not show vindic-
tiveness, since the court had already noted Stanfield’s viola-
tion and informed the probation office before Stanfield filed
the motion to clarify.
The court’s knowledge of Stanfield’s internet use during his
probation also helps explain why the court stated the follow-
ing at the hearing on violation:
All of this business, Mr. Stanfield, is not a game. It is
not a game. When I told you not to use the Internet,
you went through this whole group of machinations. Do
not use the Internet. [Do] not have anybody else use the
Internet for you in any way, shape or form. All of this is
done in lieu of putting you in prison. You should wel-
come that kind of condition, given what it is a substitute
for.
HOV Tr. at 126. Stanfield argues that the only ‘‘machina-
tion’’ the court could have had in mind was Stanfield’s motion
25
to clarify. Appellant Br. at 39. Not at all. In context, it is
clear that the court was referring to the continued posting of
Stanfield’s poetry and e-mail addresses on the internet.5 As
explained in Stanfield’s brief, his counsel had advised him that
he could give copies of his writing to a friend for eventual
posting on the internet; the district court contacted counsel
on April 10, 2003 and stated that it considered such action to
be an end-run around the internet ban. See id. at 4. In sum,
Stanfield has fallen far short of the requirements for showing
actual vindictiveness.
* * *
For the reasons stated, we remand to the district court for
clarification of the condition of supervised release concerning
internet use, and for a more considered determination of
whether material requested by the defendant pursuant to
Federal Rule of Criminal Procedure 26.2 but not produced
should have been produced.
5 Moreover, as discussed above, the district court based its deci-
sion to revoke Stanfield’s probation not on any violation of the
internet restriction, but rather on its findings that he had violated
the employment and mental health counseling conditions.