United States v. Robert Evans

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 31, 2018
• Docket: 17-4054
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0382n.06

No. 17-4054

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 31, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE ROBERT LEE EVANS, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. )

Before: BATCHELDER, KETHLEDGE, and WHITE, Circuit Judges.

KETHLEDGE, Circuit Judge. Robert Lee Evans argues that the district court denied him

due process and violated Criminal Rule 32.1 when it sentenced him to prison for violating the

terms of his supervised release. We reject his argument and affirm.

In 2015, Evans pled guilty to wire fraud and to making false statements to a federal agent.

See 18 U.S.C. §§ 1343, 1001(a)(2). The district court thereafter sentenced him to 24 months’

imprisonment followed by three years’ supervised release. Among other terms of his release, the

court ordered Evans to make monthly restitution payments and to stay within the Northern District

of Ohio.

In April 2017—about four months into his release—Evans wrote two checks for his first

restitution payment, but the checks bounced. Four months later, Evans posted to his social-media

account a photograph of a New York State toll receipt, and a video of Evans saying that he had No. 17-4054 United States v. Evans

“just left New York to go to Ohio.” Based in part on these incidents, Evans’s probation officer

filed two reports in the district court alleging that Evans had violated the terms of his release.

The district court appointed an attorney to represent Evans and—at Evans’s request—held

a hearing. The probation officer testified that Evans had not made any restitution payments. In

addition, the officer described the photograph and video that Evans had posted online and noted

that, on Evans’s social-media account, they bore location tags from “Albany, New York.” Evans’s

attorney then cross-examined the officer.

Evans testified next. He admitted that he had not paid restitution and that he had lost his

money gambling at a casino, he said, trying to double his money so he could pay restitution. In

the middle of Evans’s testimony, his cell phone rang. At the court’s direction, per the court’s no-

cellphone policy, the marshal then took the phone from Evans.

Evans continued his testimony, claiming that he had stayed in Ohio while his friend drove

to New York in Evans’s vehicle. According to Evans, he found his friend’s toll receipt and posted

the photograph and video to his social-media account—using a New York location tag—“for fun.”

Evans then said “I can show you. I have a few pictures that’s tagged.” His attorney interrupted

him, saying “Well, I don’t think we’re at that point in this hearing right now.” On cross-

examination, the prosecutor played the video of Evans saying he had just left New York. Evans

responded: “This is done all the time on [social media]. People post things saying they’re places

that they’re not.”

The court then stated that Evans had violated the terms of his supervised release by (among

other things) failing to pay restitution and by travelling to New York. A few moments later, the

court invited Evans to allocute. Evans told the court that he had been unable to pay restitution

because he had been on medical leave from his job. Evans then asked for his phone back so he

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could show the court what he said were two receipts for restitution payments. In response to

questions from the court, however, Evans admitted that those alleged payments occurred after the

officer had filed the violation report.

The court observed that “overwhelming” evidence showed that Evans had travelled to New

York, and that Evans had possibly perjured himself by testifying otherwise. Evans then asked if

he could use his phone to demonstrate how to fake a location tag on social media. The court

refused, and sentenced Evans to 24 months’ imprisonment followed by one year of supervised

release. This appeal followed.

Evans argues that the district court denied him the process he was due under Criminal Rule

32.1. Since Evans did not raise this objection in the district court, we review the court’s judgment

for plain error. See United States v. Brinley, 684 F.3d 629, 635 (6th Cir. 2012).

Before a district court may revoke a defendant’s supervised release, Criminal Rule 32.1

requires (in relevant part) that the court give the defendant “an opportunity to appear, present

evidence, and question any adverse witness[.]” Fed. R. Crim. P. 32.1(b)(2)(C). In addition, that

rule requires the court to give the defendant “an opportunity to make a statement and present any

information in mitigation.” Fed. R. Crim. P. 32.1(b)(2)(E).

Here, Evans appeared in a formal hearing to contest the government’s allegations that he

had violated the terms of his release. He presented evidence, and himself testified. His attorney

also questioned the government’s witness, namely the probation officer. During allocution, Evans

made a statement presenting information that he had paid some restitution and that he had not left

Ohio. Thus Evans received all the process he was due under Criminal Rule 32.1.

Yet Evans argues that the court plainly erred under Rule 32.1 by refusing to let him use his

phone to present evidence (i.e., that he had made two post-violation restitution payments and that

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he had the ability to fake location tags on social media). To establish plain error, Evans must

show—among other things—an error “that is clear or obvious under current law.” See United

States v. Coleman, 627 F.3d 205, 211 (6th Cir. 2010).

Evans had an adequate opportunity to present evidence at the hearing. And he could have

used that opportunity to present evidence from his phone in a variety of ways. For instance, before

the hearing began, Evans could have printed out any receipts he had on his phone and introduced

them into evidence as documents. Or he could have asked for a continuance to print them out. He

also could have filed a motion seeking permission to use his phone as a demonstrative aid during

the hearing. Or he could have called an expert to testify about editing a location tag on social

media.

Evans did none of those things. Instead, he ignored the court’s rule prohibiting cell phones

in the courtroom—a rule common to many federal courts nationwide. See, e.g., General Order

No. 2009-21a ¶ 6 (N.D. Ohio, Mar. 9, 2010). The court also made clear through questioning that

the alleged receipts on Evans’s phone were irrelevant because they came after the violations at

issue here. And the court otherwise acted within its power to control the courtroom when it seized

the phone and later declined to allow Evans to use it as a demonstration during allocution. See In

re Smothers, 322 F.3d 438, 442 (6th Cir. 2003). Thus the district court made no plain error when

it refused to return Evans’s phone during the hearing.

The district court’s judgment is affirmed.

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