United States v. Dominic Bernardine

237 F.3d 1279

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 8, 2001
• Docket: 99-15326
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 08 2001 ________________________ THOMAS K. KAHN CLERK No. 99-15326 ________________________

D. C. Docket No. 99-08151-CR-KLR

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

DOMINIC BERNARDINE, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (January 8, 2001)

Before COX, WILSON and KRAVITCH, Circuit Judges.

WILSON, Circuit Judge:

Dominic Bernardine appeals his conviction for criminal contempt in

violation of 18 U.S.C. § 401(3). We affirm for the reasons below. I. BACKGROUND

Bernardine was convicted of conspiring to deal in firearms without a licence

and making false statements to a federally-licensed firearms dealer. He was

sentenced to 46 months of imprisonment to be followed by three years of

supervised release. Bernardine served his incarcerative sentence and was released

from prison. He began serving his term of supervised release.

During the pendency of his supervised release, Bernardine allegedly violated

the conditions of his release by failing to submit to scheduled drug tests, failing to

report weekly to his probation officer, failing to maintain regular employment, and

remaining unemployed for a period of more than thirty days. Outlining the alleged

violations, his probation officer petitioned the district court for a summons for an

offender under supervision requiring Bernardine to appear before the court for a

supervised release violation hearing so that the court could determine whether he

had committed the alleged violations. The probation officer recommended

revocation of Bernardine’s supervised release.

The district judge signed the bottom of the petition which contained the

following section:

THE COURT ORDERS:

[ ] No Action [ ] The Issuance of a Warrant

2 [ ] The Issuance of a Summons [ ] Submit a Request for Modifying the Conditions or Term of Supervision

The judge placed an “X” in the space next to “The Issuance of a Summons.”

In response to this order, the probation officer scheduled an initial hearing

for Bernardine before a magistrate judge on February 11, 1998. He telephoned

Bernardine and directed him to appear at the probation office on February 3, 1998.

When Bernardine went to the probation office, the probation officer presented and

read to him a copy of the petition for offender under supervision and a written

“Summons to Appear” before a specified magistrate judge at a specified place on

February 11, 1998 at 9:30 for the violation of supervised release hearing.

Bernardine acknowledged receipt of the notice by signing and dating the bottom.

The probation officer also orally advised Bernardine to appear before the

magistrate judge and at a later date, reminded him to appear. Bernardine said that

he would appear.

Bernardine failed to appear at his scheduled hearing before the magistrate

judge on February 11, 1998. The magistrate judge issued a bench warrant for his

arrest. Almost a year later, on February 10, 1999, Bernardine appeared before a

magistrate judge and acknowledged that he violated his supervised release

conditions. On March 1, 1999, the district court found that Bernardine had

committed the violations, and thus revoked his supervised release.

3 The government later indicted Bernardine for contempt in violation of 18

U.S.C. § 401(3), alleging that “[o]n or about February 11, 1998 . . . the defendant .

. . knowingly and willfully, and in disobedience to and resistance to lawful orders,

and commands of the United States District Court . . . did fail to appear for an

initial appearance on a violation of supervised release as ordered by the Court . . .

.” On December 9, 1999, Bernardine was tried on this charge in a non-jury trial

before a district judge.

Bernardine moved for a judgment of acquittal on the ground that the

government failed to prove that a reasonably specific, valid order or summons had

been issued by a judge. The court determined that the probation officer was acting

under the authority of the district judge when he issued the summons. The court

denied the motion, found Bernardine guilty as charged, and sentenced him to serve

five years of probation.

On appeal, Bernardine contends that the government failed to prove an

essential element of the contempt charge–that the court entered a lawful order of

reasonable specificity. According to Bernardine, the order entered by the court

could not support a contempt prosecution because it did not specify a date, time

and place of appearance. Moreover, Bernardine contends that the “summons to

appear” was issued by the probation officer rather than the district court; it did not

4 comply with the Federal Rules of Criminal Procedure 4 and 91; and it was not

signed by a judicial officer. Therefore, it was not a lawful court order, the

disobedience of which can support a prosecution under 18 U.S.C. § 401(3).

II. DISCUSSION

In reviewing the sufficiency of the evidence in support of a 18 U.S.C. §

401(3) violation, we determine whether the evidence, when construed in the light

most favorable to the government, would permit a jury to find the defendant guilty

beyond a reasonable doubt. See United States v. Maynard, 933 F.2d 918, 920

(11th Cir. 1991).

18 U.S.C. § 401 provides in pertinent part:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-- ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

1 Bernardine’s contention that the summons did not comply with Rules 4 and 9 is without merit and necessitates only brief discussion. Rule 4 pertains to summons upon complaint and Rule 9 pertains to summons upon indictment or information. See Fed. R. Crim. P. 4; Fed. R. Crim. P. 9. No other rule of criminal procedure, relevant statute or case law supports the application of Rules 4 or 9 in the context of a supervised release violation hearing where the court already has supervisory jurisdiction and authority over the defendant. A sentencing court “has supervisory power over the defendant’s term of supervised release.” United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998); see also United States v. Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir. 1999) (“A district court has supervisory authority over and maintains a relationship of trust with a defendant on supervised release.”), cert. denied, 528 U.S. 982 (1999).

5 18 U.S.C. § 401(3).

To support a § 401(3) conviction, “‘the government must prove: (1) that the

court entered a lawful order of reasonable specificity; (2) the order was violated;

and (3) the violation was willful.’” Maynard, 933 F.2d at 920 (citation omitted);

See also United States v. KS & W Offshore Eng’g, Inc., 932 F.2d 906, 909 (11th

Cir. 1991) (“The essential elements of criminal contempt are a lawful and

reasonably specific order of the court and the willful violation of that order.”).2

The reasonable specificity element involves a factual inquiry that “‘must be

evaluated in the context in which it is entered and the audience to which it is

addressed.’” In re McDonald, 819 F.2d 1020, 1024 (11th Cir. 1987) (citation

omitted). An order, command or decree under § 401(3) “meets the ‘reasonable

specificity’ requirement only if it is ‘clear, definite and unambiguous’ [in]

requiring the action in question.” Bush Ranch Inc. v. E.I. Dupont De Nemours &

Co., 99 F.3d 363, 370 (11th Cir. 1996).

The “order” issued by the court was not reasonably specific. It was part of

the probation officer’s petition and contained the phrase: “The court orders;”

followed by a list of four choices from which the court could select. The district

2 “Willfullness” is a “deliberate or intended violation” rather than one that is “accidental, inadvertent or negligent. . . .” United States v. Baldwin, 770 F.2d 1550, 1558 (11th Cir. 1985) (citation omitted). Berndardine does not dispute the intent element of the contempt conviction.

6 court placed an “X” next to the choice designated “Issuance of a Summons.” This

order does not contain the time or place of appearance or any other details related

to the appearance. However, the notice issued by the probation officer does

contain such details. It clearly, definitely, and unambiguously notes the date, time

and place of appearance as well as the name of the magistrate judge before whom

Bernardine was required to appear. Thus, it meets the reasonable specificity

requirement.

The issue before us, then, is whether the probation officer’s reasonably

specific notice, regardless of its appellation as a “summons to appear,” can be

construed as a “lawful writ, process, order, rule, decree or command” of the

court–a necessary element for a contempt prosecution under § 401(3). See 18

U.S.C. § 401(3).

As utilized in § 401(3), we construe the terms “lawful writ, process, order,

rule, decree, or command” to be instruments entered by a court or pursuant to its

authorization. In the instant case, the court clearly ordered the issuance of a

summons. It did not itself issue the summons or direct the clerk of court to do so.

Instead, it authorized the probation officer to issue a summons requiring

Bernardine to appear at a supervised release violation hearing. The court did not

expressly direct the probation office to issue the summons. However, it did so

7 implicitly by responding to the probation officer’s petition, ordering the issuance

of the summons, and signing the order. The probation officer testified that by

issuing the summons, he was acting at the direction of the district court.

Our inquiry is one of first impression–whether a court can lawfully delegate

to a probation officer the task of issuing a summons. We determine that a court

can delegate this duty to a probation officer. A probation officer is appointed by

the district court and acts “within the jurisdiction and under the direction of” the

appointing court. 18 U.S.C. § 3602 (a). The court may remove an appointed

probation officer. See id. A probation officer is an “arm of the court.” United

States v. Ruiz, 580 F.2d 177, 178 (5th Cir. 1978);3 United States v. Davis, 151 F.3d

1304, 1306 (10th Cir. 1998). He is “a liaison between the sentencing court, which

has supervisory power over the defendant’s term of supervised release, and the

defendant, who must comply with the conditions of his supervised release or run

the risk of revocation.” Id. at 1306-07.

In addition to other enumerated duties, a probation officer is statutorily

mandated to “perform any other duty that the court may designate.” 18 U.S.C. §

3603(10). We construe this catch-all provision broadly and hold that it

3 We have adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

8 encompasses the express or implied authorization by a district court to a probation

officer to issue a defendant a summons to appear at a supervised release violation

hearing. However, “the catch-all provision” is not all encompassing. A court may

not delegate a judicial function to a probation officer. Such a delegation would

violate Article III of the United States Constitution. See Davis, 151 F.3d at 1307;

United States v. Kent, 209 F.3d 1073, 1078 (8th Cir. 2000) (Section 3603(10) is

broad, but “it is limited by the probation officer’s status as a nonjudicial officer.”).

We find no improper delegation of judicial authority in this case because by

ordering the issuance of a summons, the court directed the probation officer to

perform a ministerial act or support service.

While the statute does authorize the district court to order the probation officer to perform such duties as the court directs, . . . the type of duty that the court may so delegate is limited by Art. III. Cases or controversies committed to Art. III courts cannot be delegated to nonjudicial officers for resolution. That general principle does not, however, prohibit courts from using nonjudicial officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility. . . . But in every delegation, the court must retain the right to review findings and to exercise ultimate authority for resolving the case or controversy.

United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995) (internal citations

omitted), declined to follow on other grounds, United States v. Fuentes, 107 F.3d

1515, 1529 (11th Cir. 1997) (“our precedent clearly authorizes delegation of

payment schedules to the probation office”). For purposes of efficiency, district

9 courts “must be able to rely as extensively as possible on the support services of

probation officers.” Johnson, 48 F.3d at 809.

In the instant case, the court retained and exercised the ultimate

responsibility regarding whether a summons to appear would be issued. The

probation officer petitioned the court for a summons to be issued. Based on the

facts and circumstances before it, the court, “not the probation officer, ultimately

determine[d] whether revocation proceedings [would] be initiated,” Davis, 151

F.3d at 1307, and whether a summons would be issued. The probation officer

merely acted as an extension of the court for purposes of Bernardine’s supervision.

See United States v. Johnson, 935 F.2d 47, 49 (4th Cir. 1991).

III. CONCLUSION

For the foregoing reasons, we conclude that although the district court’s

order directing the issuance of a summons was not itself reasonably specific, the

summons to appear, which was issued by the probation officer pursuant to the

court’s authorization, constituted a lawful order or command by the court to

Bernardine. As such, Bernardine was obligated to comply with it. His failure to

appear at the duly noticed supervised release violation hearing properly predicated

his criminal contempt charge. The government proved the elements required for a

conviction under § 401(3) beyond a reasonable doubt.

10 AFFIRMED.