United States Court of Appeals
For the First Circuit
No. 01-1172
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. CORREA-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Stephen J. Weymouth, by appointment of the court, for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney (Chief, Criminal Division), were
on brief, for appellee.
April 9, 2003
SELYA, Circuit Judge. This appeal requires us to decide,
for the first time, what requirements must be met when a
probationer, parolee, or person on supervised release purposes to
waive his right to a revocation hearing under Federal Rule of
Criminal Procedure 32.1.1 We conclude that the record must show,
affirmatively or by fair implication, that any such waiver was
knowingly and voluntarily made. Because the record in the instant
case reflects no such showing, we vacate the appellant's sentence
and remand for further proceedings consistent with this opinion
(including an opportunity for the appellant to withdraw his
attorney's concession that a sufficient factual basis existed to
justify the revocation of his term of supervised release).
I. BACKGROUND
On July 9, 1993, defendant-appellant Jorge L. Correa-
Torres pleaded guilty to one count of possessing more than five
kilograms of cocaine with intent to distribute and aiding and
abetting in the commission of that offense. See 21 U.S.C. §
841(a)(1); 18 U.S.C. § 2. The district court sentenced him to
eighty months in prison, to be followed by a five-year term of
supervised release. The appellant was discharged from the federal
1
While this appeal was pending, the Criminal Rules were
revised. The section at issue here, formerly Fed. R. Crim. P.
32.1(a)(2) (2000), now appears, without any relevant modification,
as Fed. R. Crim. P. 32.1(b)(2) (2003). For convenience, we refer
throughout to the earlier edition (which was in force at the time
of the appellant's revocation hearing).
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penitentiary in 1998, and his term of supervised release commenced
at that time.
Two years later — while the appellant was still under
supervision — the Commonwealth of Puerto Rico charged him with
beating and threatening his girlfriend and damaging her car. See
8 P.R. Laws Ann. §§ 632, 633. Although these charges were
eventually dropped because the girlfriend refused to cooperate with
the local authorities, the incident continued to dog the appellant:
the terms of his supervised release prohibited him from committing
any federal, state, or local crime, and the domestic abuse
allegations, if proven, constituted a clear violation. See 18
U.S.C. § 3583(d). So long as the government could prove that the
appellant committed the proscribed acts, the terms of his release
would be violated even in the absence of an actual conviction. See
United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002); see
also USSG §7B1.1, cmt. (n.1).
The appellant's probation officer brought the underlying
facts to the district court's attention and moved for an order
requiring the appellant to show cause why his term of supervised
release should not be revoked. The district court issued the show-
cause order. That order, along with a notification of the
appellant's procedural rights, was served upon the attorney who had
represented the appellant at the original trial. Both documents
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were written in English, and neither contained a Spanish
translation.
At the revocation hearing, the appellant's counsel — the
same lawyer upon whom the show-cause order had been served —
informed the court that, based on his (counsel's) conversations
with the appellant's girlfriend, the appellant would not contest
the charge. The lawyer then asked the court to be as lenient as
possible, emphasizing that the local court had dismissed the
domestic violence complaint and that the appellant had an otherwise
untarnished record during supervised release. The district court
did not inquire of the appellant either as to his understanding of
his rights or as to his guilt. In fact, the appellant did not
speak at all throughout most of the proceeding, but, instead,
relied upon a court-appointed interpreter to follow the ongoing
dialogue.
The district court correctly explained that the absence
of a conviction was beside the point; revocation of supervised
release could be ordered as long as the appellant had committed a
proscribed act. Relying upon the waiver — the fact that the
appellant, through counsel, had declined to contest the probation
officer's allegations — the court revoked the term of supervised
release.
The court then proceeded to the imposition of sentence.
Asked if he wished to say anything in mitigation of punishment, the
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appellant stated cryptically: "I think that it is unfair because
that was a problem with my former girlfriend." The court did not
ask him to elaborate. The prosecutor then suggested a sentence at
the nadir of the applicable guidelines range, see USSG §§4B1.2(a),
7B1.1(a), 7B1.4, surmising "that the defendant [apparently] has
accepted the fact that he abused his girlfriend and threatened her,
and also threatened to kill her, and damaged her vehicle." The
court imposed the recommended two-year sentence and added a new
three-year term of supervised release.
The appellant filed a pro se notice of appeal. We
appointed counsel for him. The attorney who represents the
appellant in this court is not the attorney who represented him
below.
II. APPELLATE JURISDICTION
The government challenges our jurisdiction in this
matter. It points out that the district court's judgment was
entered on November 27, 2000, but that the notice of appeal was not
docketed until late December. On this basis, the government
insists that the appellant failed to comply with Fed. R. App. P.
4(b)(1)(A), which requires a defendant in a criminal case to file
a notice of appeal within ten days after the entry of judgment.
See United States v. Podolsky, 158 F.3d 12, 14-15 (1st Cir. 1998);
see also United States v. Morillo, 8 F.3d 864, 867 (1st Cir. 1993)
(explaining that the time limits for taking appeals in criminal
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cases are "mandatory and jurisdictional"). This argument lacks
force.
By the time that the district court judgment was entered
on the docket, the appellant was in custody. Under Fed. R. App. P.
4(c)(1), an inmate confined in a correctional institution may file
a notice of appeal in a criminal case by depositing it in the
institution's internal mail system on or before the last day for
filing. The record indicates that the appellant deposited his
notice of appeal in the prison's internal mail system on December
4, 2000.2 That was less than ten days after the hearing.
That ends this aspect of the matter. Applying the
"prison mailbox" rule, we hold that the appellant essayed a timely
appeal. Accordingly, this court has jurisdiction to hear and
determine it.
III. ANALYSIS
Before us, the appellant advances only a single claim:
that his waiver of rights was insufficiently informed (and, thus,
impuissant). To address this claim, we must consider three
discrete but related points. The first implicates the showing that
must attend a waiver of Rule 32.1 rights. The second involves the
validity of the waiver effected in this case. The third concerns
the remedy associated with an invalid waiver.
2
Although the proof on this point is circumstantial, the
government does not contest the date of deposit.
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A. Waivers of Rule 32.1 Rights.
Although revocations of probation, parole, or supervised
release are not considered part of a criminal prosecution, they
nevertheless entail a loss of freedom and a deprivation of liberty.
See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v.
Brewer, 408 U.S. 471, 484 n.12 (1972). Fundamental fairness
therefore requires that defendants facing such revocations should
be afforded notice of the charges against them, an opportunity to
confront their accusers, and a chance to present evidence to their
own behoof. See Bearden v. Georgia, 461 U.S. 660, 669 & n.10
(1983). Federal Rule of Criminal Procedure 32.1 addresses this
need.
When the revocation of a term of probation, parole, or
supervised release hangs in the balance, the target is entitled to
a panoply of procedural rights. These include:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the
person; (C) an opportunity to appear and to
present evidence in the person's own behalf;
(D) the opportunity to question adverse
witnesses; and (E) notice of the person's
right to be represented by counsel.
Fed. R. Crim. P. 32.1(a)(2) (2000). These protections serve a
variety of interests. Among other things, they safeguard the
defendant's obvious stake in preserving his liberty. See, e.g.,
United States v. Stocks, 104 F.3d 308, 312 (9th Cir. 1997). They
also serve the sovereign's more nuanced interest in ensuring that
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important legal determinations are informed by an accurate account
of verified facts. See, e.g., Black v. Romano, 471 U.S. 606, 612
(1985); Morrissey, 408 U.S. at 484.
In our system of criminal justice, most rights can be
waived. See United States v. Teeter, 257 F.3d 14, 21 (1st Cir.
2001) (cataloguing examples). The rights enumerated in Rule 32.1
are no exception. As a general proposition, however, the waiver of
virtually any right closely affecting individual liberty must be
knowingly and voluntarily made. See, e.g., Brady v. United States,
397 U.S. 742, 748 (1970) (discussing waiver of rights incident to
guilty plea); Adams v. United States, 317 U.S. 269, 275 (1942)
(discussing waiver of right to jury trial); Johnson v. Zerbst, 304
U.S. 458, 464 (1938) (discussing waiver of right to counsel);
Teeter, 257 F.3d at 24 (discussing waiver of right to appeal).
Because adherence to the processes prescribed by Rule 32.1 is
instrumental to the fair and efficient operation of revocation
proceedings, we hold that a waiver of the rights conferred
thereunder cannot be effective unless that waiver is made both
knowingly and voluntarily. Accord United States v. LeBlanc, 175
F.3d 511, 515 (7th Cir. 1999); United States v. Pelensky, 129 F.3d
63, 68 n.9 (2d Cir. 1997); Stocks, 104 F.3d at 312.
Ideally, the district court, when confronted with an
attempted waiver, will advise the probationer, parolee, or person
on supervised release of both the rights afforded him by Rule 32.1
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and the consequences of a relinquishment of those rights. Because
we are mindful that revocation proceedings are more informal than
criminal prosecutions, see Morrissey, 408 U.S. at 480; United
States v. Jones, 299 F.3d 103, 110 (2d Cir. 2002); United States v.
Miller, 797 F.2d 336, 340 (6th Cir. 1986), we do not prescribe any
particular mantra. Instead, we emulate several of our sister
circuits and hold that, notwithstanding the requirement that
waivers of procedural rights with respect to revocation hearings
must be knowing and voluntary, such waivers need not be accompanied
either by any magic words or by a formal colloquy of the depth and
intensity required under Federal Rule of Criminal Procedure 11
(governing guilty pleas in criminal cases). See LeBlanc, 175 F.3d
at 515-16; Pelensky, 129 F.3d at 67-68 (collecting cases); United
States v. Rapert, 813 F.2d 182, 184-85 (8th Cir. 1987); cf. United
States v. Proctor, 166 F.3d 396, 401 & n.5 (1st Cir. 1999) (noting
that waivers of some rights must be scrutinized more closely than
others).
This protocol has real significance for purposes of
appellate review. Where, as here, a probationer, parolee, or
person on supervised release mounts a retrospective challenge to
the validity of a waiver of Rule 32.1 rights, a reviewing court
should look not only to the punctilio of the sentencing court's
colloquy with the probationer, parolee, or person on supervised
release, but also to the totality of the attendant circumstances.
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See LeBlanc, 175 F.3d at 517; United States v. Green, 168 F. Supp.
2d 383, 385 (E.D. Pa. 2001); cf. United States v. Woodard, 291 F.3d
95, 109 (1st Cir. 2002) (applying this mode of examination to
waivers of the right to counsel); Smart v. Gillette Co. Long-Term
Disab. Plan, 70 F.3d 173, 181 (1st Cir. 1995) (applying this mode
of examination to waivers of employment rights).
The totality of the circumstances means exactly that —
all the circumstances should be considered. Still, some
circumstances are likely to have particular relevance in the
revocation hearing context. These include evidence that sheds
light upon the target's comprehension of the charges against him
and evidence as to his appreciation of the nature of the rights
afforded him by Rule 32.1. In the final analysis, however, courts
should beware of assigning talismanic significance to any single
fact or circumstance. The question of waiver entails endless
permutations, and each case is quite likely to be sui generis.
B. The Instant Waiver.
Against this backdrop, we turn to the proceedings in this
case. We find no evidentiary support for the government's ipse
dixit that the appellant understood either his rights or the
significance of his waiver.
We begin this phase of our discussion by observing that
the district court never made a specific finding that the
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appellant's waiver was knowing and voluntary.3 While such an
express finding is not ordinarily required in connection with a
waiver of rights, see United States v. Segal, 549 F.2d 1293, 1300-
01 (9th Cir. 1977), it is infinitely more difficult to find a valid
waiver based on a silent record. Cf. Boykin v. Alabama, 395 U.S.
238, 243 (1969) (refusing to draw such an inference in the guilty
plea context).
Apart from the absence of a specific finding, nothing in
the record adequately evinces that the appellant understood the
nature of the accusation that triggered the revocation proceeding.
The charges lodged against him in the Puerto Rico courts were
dismissed, and the facts underlying those charges were never
clearly set forth in the federal court proceedings. The exchanges
between the court and defense counsel at the revocation hearing
itself did little to clarify matters, nor did they establish with
any precision the appellant's version of the underlying events.
The appellant said very little over the course of the hearing, and
what little he did say, quoted supra, suggests a belief that he may
not have committed a crime at all. At the very least, his cryptic
comment may have indicated a failure to appreciate the nature of
the charges lodged against him. See, e.g., LeBlanc, 175 F.3d at
515-17 (finding that a "confused colloquy with the court" evidenced
3
Given the fact that we announce a new rule, we do not intend
any criticism of the able district judge.
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the defendant's failure to comprehend the charges). We do not know
because that comment was left unexplored.
By like token, there is no reason to believe that the
appellant knew his rights. After all, the record does not reflect
either that the court advised the appellant of his rights or that
counsel reviewed those rights with him.4 One cannot knowingly
waive rights if one does not realize that they exist. In the
circumstances of this case, an affirmative showing that someone had
advised the appellant of his Rule 32.1 rights and explained the
effect of a decision not to exercise those rights would seem to be
a necessary concomitant to finding a knowing waiver.
This is a critical point. It not only goes to whether
the appellant knew that he could put the government to its proof
(i.e., require meaningful disclosure of the evidence against him
and the opportunity to cross-examine the government's witnesses)
but also to whether he knew that he was entitled to offer evidence
in his own behalf (including evidence in mitigation). Presentation
of mitigation evidence is "[a] further and equally important step
[] necessary to determine whether such a violation warrants
revocation and, if so, what sentence shall be imposed." United
4
To be sure, the show-cause order was accompanied by a notice
of rights — but those papers were served not on the appellant but
on his counsel. The record is devoid of any evidence that the
lawyer reviewed the "notice of rights" document with the appellant.
Moreover, the document was in English — a language in which the
appellant is not conversant.
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States v. Diaz-Burgos, 601 F.2d 983, 985 (9th Cir. 1979) (per
curiam). Given the unsettled state of the predicate facts, a
simple allocution by an untutored defendant hardly seems an
adequate surrogate for this right. See United States v. Dodson, 25
F.3d 385, 388-90 (6th Cir. 1994) (observing that "the unskilled or
uneducated probationer or parolee may well have difficulty in
presenting his version of a disputed set of facts").
Last — but far from least — the stakes often reflect upon
whether a waiver can be deemed knowing and voluntary. See Town of
Newton v. Rumery, 480 U.S. 386, 394 (1987) (considering the gain
from a waiver in determining whether it was knowing and voluntary);
Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272, 278 (1st
Cir. 2002) (same). In this instance, the appellant had much to
gain and little to lose by reserving his Rule 32.1 rights instead
of waiving them. On the one hand, had he exercised his rights, the
appellant might have successfully refuted the allegations against
him, or, in the alternative, might have adduced evidence tending to
mitigate the severity of the asserted violation. See Gagnon, 411
U.S. at 786-87; Diaz-Burgos, 601 F.2d at 985-86. Either way, he
might have prevented (or, at least, minimized) the loss of his
liberty. Waiving his rights, on the other hand, yielded him no
discernible benefit.
To sum up, we recognize that courts generally give
defendants the opportunity to waive various of their rights in
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order to expedite criminal proceedings and bring finality to them.
Waivers are not, however, intended "to leave acquiescent defendants
totally exposed to future vagaries (however harsh, unfair, or
unforeseeable)." Teeter, 257 F.3d at 25. In this case, there is
simply no evidence to show that the appellant knowingly and
voluntarily placed himself at risk of such vagaries.5 His waiver
was, therefore, ineffectual.
C. Remedy.
We briefly discuss the question of remedy. When a term
of probation, parole, or supervised release is revoked following an
invalid waiver of Rule 32.1 rights, the preferred practice is to
vacate the ensuing sentence and start the proceeding afresh. See
LeBlanc, 175 F.3d at 518; see also Dodson, 25 F.3d at 390 (vacating
post-revocation sentence when probationer was prohibited from
testifying on his own behalf). This accords with the praxis
typically followed in the wake of a Rule 11 violation. See, e.g.,
United States v. Abbott, 241 F.3d 29, 37 (1st Cir. 2001); United
States v. Hernandez-Wilson, 186 F.3d 1, 6-7 (1st Cir. 1999); but
cf. United States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir. 2000)
5
Subsequent to oral argument in this case, we received an
informative motion from the government that transmitted a letter
over the signature of the appellant's trial counsel purporting to
recount his version of events leading up to the waiver. We deem
that submission improper and therefore disregard it. See United
States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983) ("We are an
appellate tribunal, not a nisi prius court; evidentiary matters not
first presented to the district court are, as the greenest of
counsel should know, not properly before us.").
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(vacating sentence but allowing lower court to reinstate it if a
"meaningful retrospective hearing" could determine that defendant's
guilty plea was competent).
In this case, we see no reason to deviate from the norm.
Thus, we direct the vacatur of the appellant's sentence. On
remand, the district court should allow the appellant, if he so
elects, to withdraw his prior stipulation and contest the stated
basis for revocation of supervised release. The court shall then
undertake further proceedings consistent with this opinion.
IV. CONCLUSION
We need go no further. We adopt today a rule to the
effect that, if a person facing a proceeding for revocation of
probation, parole, or supervised release purposes to waive his
rights under Federal Rule of Criminal Procedure 32.1, the district
court has an obligation to ensure that the waiver is made knowingly
and voluntarily. The waiver here fails to satisfy that criterion.
Consequently, we sustain the defendant's appeal, vacate his
sentence, and remand for further proceedings consistent with this
opinion.
Vacated and remanded.
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