United States v. Conrado Sesma-Hernandez

219 F.3d 859, 2000 Cal. Daily Op. Serv. 6426, 2000 Daily Journal DAR 8513, 55 Fed. R. Serv. 255, 2000 U.S. App. LEXIS 18354, 2000 WL 1056085

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2000
• Docket: 99-10491
• Status: Published

Opinions

FERNANDEZ, Circuit Judge:

Conrado Sesma-Hernandez appeals the district court’s finding that he violated the conditions of his supervised release. We affirm.

After serving a term of imprisonment, Sesma was released and began serving a three-year term of supervised release on October 8, 1998. In July of 1999, a petition was filed asking that his supervised release be revoked due to a number of violations.

The petition asserted that Sesma had committed the state crime of Battery/Domestic Violence (Misdemeanor), and specifically referred to the criminal complaint filed against him in the Las Vegas Municipal Court. That complaint described the crime and identified the state statute that Sesma had violated. It and the petition described a violent attack by Sesma on his girlfriend, which left her bruised and bloody and with a chipped tooth. The petition (as later amended) also asserted that Sesma had violated his probation terms by failing to fulfill his reporting, drug testing and other obligations on specified dates.

After an evidentiary hearing, the district court declared that:

The Court finds that the government has established by a preponderance of the evidence that the violations that were set forth in the petition have occurred. Revocation is proper if the Court finds — the Court finds that violation of the conditions have been established by a preponderance of the evidence and that the violation warrants revocation.

Sesma then appealed.

Sesma’s first claim is that he was not given sufficient notice about the nature of the criminal violation because the specific statutory section was not cited in the petition to revoke. We disagree. He was not only told the title of the charge, but was specifically referred to the state court complaint, which clearly set forth the state code section and the particular part of it violated — battery. Lest there be any doubt, the petition went on to describe the facts which showed that he had, indeed, brutally beaten a woman. He could hardly have been puzzled about what he had to defend against. The notice was plainly sufficient. See Morrissey v. Brewer, 408 , 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972); United States v. Havier, 155 F.3d 1090, 1092 (9th Cir.1998).¹

Sesma next asserts that the district court erred when it refused to admit evidence that one of the witnesses, who testified that she saw him beating a woman, may not have been able to identify the victim. The district judge, who was the trier of fact, was unimpressed with that testimony. In fact, she found the testimony so asthenic that she struck it as irrelevant. She was of the opinion that an ability to identify the beaten victim was of no real import because of the clarity with which Sesma himself had been identified— the witnesses said that they had seen him beating the victim as they drove up. The ability to see and identify the perpetrator was only somewhat connected to the ability to later identify a victim, who at the scene had a greatly swollen lip, torn clothing, blood all over her face, and knocked out or broken teeth. However, the excluded evidence does seem to have some relevance. We need not decide whether excluding that evidence was an abuse of discretion. If there was error, given the clarity of the evidence against Sesma and the fact that the district judge, who was the trier of fact, found the excluded evidence exceedingly weak at best, we hold that any error was harmless. See Havier, 155 F.3d at 1092; cf. United States v. Lopez-Alvarez, 970 F.2d 583, 588-89 (9th Cir.1992) (harmless error regarding exclusion of evidence at a criminal trial).

Finally, Sesma asserts that he was denied due process because he was not afforded written findings. See Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604 (fact finders must make “a written statement ... as to the evidence relied on and the reasons for [revocation]”). It is true, as he says, that no separate set of written findings was prepared. But we have held that oral findings on the record will suffice. See United States v. Daniel, 209 F.3d 1091, 1093 (9th Cir.), amended by 216 F.3d 1201 (9th Cir.2000); United States v. Rilliet, 595 F.2d 1138, 1140 (9th Cir.1979). More than that, it is sufficient for the district court to state that there is “ ‘[n]o doubt in the Court’s mind that the government has sustained its burden,”’ if the record clearly “discloses sufficient evidence to establish a violation.” Daniel, 209 F.3d at 1094. The district court’s statement in this case met that standard. Moreover, the evidence in the record was clearly sufficient to establish the charged violations. We have already discussed the evidence of Sesma’s battering of a woman. The charges of failure to fulfill his other obligations were also supported by the evidence.² Thus, he was not denied due process.

AFFIRMED.

1 . Sesma's suggestion that he could not be found to have committed battery because he was charged with battery/domestic violence is otiose. Even in indictments, lesser included offenses need not be pled. See United States v. Gavin, 959 F.2d 788, 791 (9th Cir.1992).

2 . Sesma's assertion that he might have been in INS custody at the time does not help his position. He might have been a lot of places doing a lot of things. If he was in custody and, thus, unable to report, etc., he should have known that he was and should have come forward with some evidence to show that fact.