TORRUELLA, Circuit Judge.
Roger Morin appeals from two district court orders. The first revoked his probation and reinstated his original sentence of two years in prison. The second order denied, for lack of jurisdiction, his motion for reconsideration of the first order.
On April 30, 1985, an indictment was filed charging Morin with two counts of criminal conduct: unauthorized distribution of eight films and copyright violations with respect to 222 films. Morin entered into a plea agreement with the government on July 31, 1986. In exchange for dismissal of count one, Morin entered a plea of guilty to the second count. The plea was accepted, and the district court sentenced Morin to two years of imprisonment. In consideration of Morin’s health — among other things, he has severe kidney problems which require him to be on dialysis three times a week and has had two heart attacks — the district court suspended execution of his sentence and placed Morin on probation for two years.
Morin has an extensive record of criminal activity. Since 1955, when Morin was 21, twenty one different charges have been brought against him. 1987 Presentence Investigation Report at 3-4. One of his prior convictions, for illegally buying food stamps in 1984, was entered by the same district judge that presided over this case. In that case, Morin had also pled guilty, and been placed on probation. During the sentencing procedures, the district court found that Morin had deliberately lied to it regarding his prior convictions. Despite the fact that the court found that Morin was an “unremorseful, unrepentant and unreconstructed violator,” Appendix at 260 (hereinafter “App.”), and had shown a “consistent disregard and disrespect for the orderly processes of the law,” App. at 266, the district court suspended the execution of a one year prison term and placed Morin on probation for two years because of his poor medical condition.
The copyright offenses that are the subject of this case were committed while Mo[330]*330rin was still on probation for the earlier food stamps conviction.1 While sentencing Morin on the copyright offenses, the district court warned him that “this is the last time that your conditions of health are going to keep you out of federal prisons so far as this court is concerned. If you come back in here and are found in violation of this probation I will put you in jail.” App. at 93.
One of the conditions of probation was that Morin not leave the judicial district of Maine without the permission of the probation officer. Although Morin’s original probation officer was content if Morin obtained oral permission for this purpose, Morin’s new probation officer, Vincent Frost, had orally informed Morin that he had to obtain written permission before leaving the district. On March 9, 1988, Morin orally requested permission from Frost to visit his sister in Connecticut. Frost said he would approve the trip, but instructed Morin to submit a written request listing his travelling schedule and indicating where he would be staying. Morin does not deny that Frost said as much, but claims that he does not remember hearing it. Morin called the probation office before he left. He spoke to a secretary and told her that he was leaving for Connecticut and that he had discussed the trip with Frost. The secretary did not give him permission to take the trip, but promised to relay the message to Frost. Morin does not remember whether he mentioned to the secretary that he would also be going to New York during this trip. Morin left for Connecticut and New York on Saturday, March 19, and returned to Maine on the following Friday. He called Frost on Monday for some other purpose. During that conversation, Frost asked him where he had been. Morin explained that he had gone to Connecticut and New York. Frost told him that he should have obtained written permission before travelling, and that his failure to do so amounted to a violation of probation.
On April 13, 1988, Frost asked Morin more questions about his March trip to New York. Morin stated that he had stayed in New York City on Tuesday night and Thursday night, because he had been too tired to drive back to Connecticut after dialysis. On May 27, Frost asked Morin if he had only spent two nights in New York City. After much thought, Morin confessed that he had been in New York for four nights. Frost asked him if he was lying. Morin replied that he was not. When Frost confronted him with hotel records indicating that Morin had been in New York City for five nights, Morin conceded that it might have been five nights.
On June 15, 1988, Frost filed a petition for probation action, alleging that Morin had violated one of his probation conditions by travelling outside Maine from March 19-25 without advance written permission. A hearing on the probation petition was held before the district court on November 7, 1988. Morin pled guilty to having violated probation by travelling without permission. The court held that Morin knew that he had to obtain written permission before travelling outside Maine. Not only did he fail to do so, but he tried to prevent Frost, his probation officer, from discovering that the trip had included a stay in New York City. When confronted, Morin continued to lie about how long he had been in New York City. It was only when he was presented with evidence of the length of his stay that he admitted the truth. The court also questioned whether Morin’s reasons for visiting New York were legitimate. Concluding that “[tjhis is the kind of violation that strikes at the very heart of the probation system,” App. at 153, the court revoked Morin’s probation and reinstated the original two year sentence.
On November 11, 1988, Morin filed a motion to extend the time for filing a notice of appeal from the revocation order. He argued that he needed the extension to file a motion for reconsideration while preserving his right to appeal. The district court denied the motion. On November 16, 1988, Morin filed a motion for reconsideration of [331]*331the order revoking probation, a motion to reduce sentence, and a third motion not relevant here. On November 18, 1988, Morin filed a notice of appeal from the revocation order. The government claimed that the taking of an appeal divested the district court of jurisdiction to hear the motion for reconsideration, relying on United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987). The district court was persuaded by this argument, and on December 2, 1988, entered an order dismissing the three motions because it no longer had jurisdiction over the case. Morin appeals this order, arguing that the notice of appeal should not deprive the district court of jurisdiction. He says judicial efficiency would be promoted if the notice of appeal were treated as being nullified by the motion for reconsideration. Morin points out that this approach has been adopted by the Seventh Circuit in United States v. Gargano, 826 F.2d 610 (7th Cir.1987) (Posner, J.).
A subsequent development has reduced the importance of this issue. In a memorandum issued on December 15, the district court amplified its December 2 order. According to Morin, this memorandum indicates the district court’s unwillingness to reconsider its decision. Consequently, he concedes that the relief he requests — a remand for reconsideration on the merits — is moot.
Free access — add to your briefcase to read the full text and ask questions with AI
TORRUELLA, Circuit Judge.
Roger Morin appeals from two district court orders. The first revoked his probation and reinstated his original sentence of two years in prison. The second order denied, for lack of jurisdiction, his motion for reconsideration of the first order.
On April 30, 1985, an indictment was filed charging Morin with two counts of criminal conduct: unauthorized distribution of eight films and copyright violations with respect to 222 films. Morin entered into a plea agreement with the government on July 31, 1986. In exchange for dismissal of count one, Morin entered a plea of guilty to the second count. The plea was accepted, and the district court sentenced Morin to two years of imprisonment. In consideration of Morin’s health — among other things, he has severe kidney problems which require him to be on dialysis three times a week and has had two heart attacks — the district court suspended execution of his sentence and placed Morin on probation for two years.
Morin has an extensive record of criminal activity. Since 1955, when Morin was 21, twenty one different charges have been brought against him. 1987 Presentence Investigation Report at 3-4. One of his prior convictions, for illegally buying food stamps in 1984, was entered by the same district judge that presided over this case. In that case, Morin had also pled guilty, and been placed on probation. During the sentencing procedures, the district court found that Morin had deliberately lied to it regarding his prior convictions. Despite the fact that the court found that Morin was an “unremorseful, unrepentant and unreconstructed violator,” Appendix at 260 (hereinafter “App.”), and had shown a “consistent disregard and disrespect for the orderly processes of the law,” App. at 266, the district court suspended the execution of a one year prison term and placed Morin on probation for two years because of his poor medical condition.
The copyright offenses that are the subject of this case were committed while Mo[330]*330rin was still on probation for the earlier food stamps conviction.1 While sentencing Morin on the copyright offenses, the district court warned him that “this is the last time that your conditions of health are going to keep you out of federal prisons so far as this court is concerned. If you come back in here and are found in violation of this probation I will put you in jail.” App. at 93.
One of the conditions of probation was that Morin not leave the judicial district of Maine without the permission of the probation officer. Although Morin’s original probation officer was content if Morin obtained oral permission for this purpose, Morin’s new probation officer, Vincent Frost, had orally informed Morin that he had to obtain written permission before leaving the district. On March 9, 1988, Morin orally requested permission from Frost to visit his sister in Connecticut. Frost said he would approve the trip, but instructed Morin to submit a written request listing his travelling schedule and indicating where he would be staying. Morin does not deny that Frost said as much, but claims that he does not remember hearing it. Morin called the probation office before he left. He spoke to a secretary and told her that he was leaving for Connecticut and that he had discussed the trip with Frost. The secretary did not give him permission to take the trip, but promised to relay the message to Frost. Morin does not remember whether he mentioned to the secretary that he would also be going to New York during this trip. Morin left for Connecticut and New York on Saturday, March 19, and returned to Maine on the following Friday. He called Frost on Monday for some other purpose. During that conversation, Frost asked him where he had been. Morin explained that he had gone to Connecticut and New York. Frost told him that he should have obtained written permission before travelling, and that his failure to do so amounted to a violation of probation.
On April 13, 1988, Frost asked Morin more questions about his March trip to New York. Morin stated that he had stayed in New York City on Tuesday night and Thursday night, because he had been too tired to drive back to Connecticut after dialysis. On May 27, Frost asked Morin if he had only spent two nights in New York City. After much thought, Morin confessed that he had been in New York for four nights. Frost asked him if he was lying. Morin replied that he was not. When Frost confronted him with hotel records indicating that Morin had been in New York City for five nights, Morin conceded that it might have been five nights.
On June 15, 1988, Frost filed a petition for probation action, alleging that Morin had violated one of his probation conditions by travelling outside Maine from March 19-25 without advance written permission. A hearing on the probation petition was held before the district court on November 7, 1988. Morin pled guilty to having violated probation by travelling without permission. The court held that Morin knew that he had to obtain written permission before travelling outside Maine. Not only did he fail to do so, but he tried to prevent Frost, his probation officer, from discovering that the trip had included a stay in New York City. When confronted, Morin continued to lie about how long he had been in New York City. It was only when he was presented with evidence of the length of his stay that he admitted the truth. The court also questioned whether Morin’s reasons for visiting New York were legitimate. Concluding that “[tjhis is the kind of violation that strikes at the very heart of the probation system,” App. at 153, the court revoked Morin’s probation and reinstated the original two year sentence.
On November 11, 1988, Morin filed a motion to extend the time for filing a notice of appeal from the revocation order. He argued that he needed the extension to file a motion for reconsideration while preserving his right to appeal. The district court denied the motion. On November 16, 1988, Morin filed a motion for reconsideration of [331]*331the order revoking probation, a motion to reduce sentence, and a third motion not relevant here. On November 18, 1988, Morin filed a notice of appeal from the revocation order. The government claimed that the taking of an appeal divested the district court of jurisdiction to hear the motion for reconsideration, relying on United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987). The district court was persuaded by this argument, and on December 2, 1988, entered an order dismissing the three motions because it no longer had jurisdiction over the case. Morin appeals this order, arguing that the notice of appeal should not deprive the district court of jurisdiction. He says judicial efficiency would be promoted if the notice of appeal were treated as being nullified by the motion for reconsideration. Morin points out that this approach has been adopted by the Seventh Circuit in United States v. Gargano, 826 F.2d 610 (7th Cir.1987) (Posner, J.).
A subsequent development has reduced the importance of this issue. In a memorandum issued on December 15, the district court amplified its December 2 order. According to Morin, this memorandum indicates the district court’s unwillingness to reconsider its decision. Consequently, he concedes that the relief he requests — a remand for reconsideration on the merits — is moot. The government agrees that remanding this case to the district court is more likely to waste rather than conserve judicial resources. Under these circumstances, we will treat the combination of the December 2 and 15 pronouncements as a denial on the merits of the motion for reconsideration. The jurisdictional issue is therefore moot, and the appeals from both the November 7 and December 2 orders present the same substantive issues— whether the district court was justified in revoking Morin’s probation and in reinstating his sentence.
We begin our analysis of the substantive issues by describing Morin’s three contentions on appeal. He concedes that he violated one of his probation conditions — that he not leave the judicial district without the written permission of his probation officer. Morin first argues that this was an understandable, excusable and relatively technical violation, and that it did not justify the revocation of probation. Second, he claims that the court revoked his probation not because of his failure to comply with the reporting requirement, but because (a) he committed the copyright violations while he was on probation for the food stamps convictions; (b) the district court incorrectly believed that Morin had lied to him during the sentencing hearing for the food stamps conviction; and (c) the district court incorrectly believed that he had lied to his probation officer in an effort to conceal the details of his trip to New York City. Morin argues that because he was not given formal notice that these were the actual grounds for revocation of probation, and not allowed to present evidence rebutting these charges, due process requires that he be granted a new revocation hearing. Third, even if revocation were justified, Morin claims that the court abused its discretion in reinstating his full sentence of two years imprisonment. We address each of these arguments in turn.
District courts enjoy broad discretion when deciding whether to revoke probation. See In re Whitney, 421 F.2d 337, 338 n. 2 (1st Cir.1970). Their decisions will not be reversed absent a clear showing of an abuse of discretion. See United States v. Babich, 785 F.2d 415, 418 (3d Cir.), cert. denied, 479 U.S. 833, 107 S.Ct. 123, 93 L.Ed.2d 69 (1986); United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir.1983) (Kennedy, J.); United States v. Rice, 671 F.2d 455, 458-59 (11th Cir.1982); United States v. McLeod, 608 F.2d 1076, 1078 (5th Cir.1979) (per curiam); United States v. Rodgers, 588 F.2d 651, 653-54 (8th Cir.1978) (per curiam). In this ease, the district court observed that Morin’s violation “strikes at the very heart of the probationary system.” App. at 153. Furthermore, instead of honestly cooperating with his probation officer, Morin did not admit the extent of his stay in New York until confronted with uncontrovertible evidence. The court noted that Morin behaved in a similar manner during the sentencing hearing for his food stamps conviction. The [332]*332court also pointed out that this was the second time that Morin had disregarded probation instructions (the first time being when he was convicted of copyright violations while on probation for the food stamps conviction). To vindicate its own authority and to maintain the credibility of the probationary system, see App. at 145, 153, the district court concluded that it had to revoke Morin’s probation.
The district court did not abuse its discretion. Despite Morin’s claim that his violation was merely technical, there is no question that failure to comply with reporting requirements is a serious violation of probationary conditions, and that such failure alone can justify the revocation of probation. See Babich, 785 F.2d at 418; Higdon v. United States, 627 F.2d 893, 900 (9th Cir.1980); United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.1978) (per curiam); United States v. Lara, 472 F.2d 128, 129 (9th Cir.1972). Of course, the fact that a serious violation has occurred does not imply that probation should automatically be revoked. See United States v. Diaz-Burgos, 601 F.2d 983, 985 (9th Cir.1979) (per curiam); United States v. Reed, 573 F.2d 1020, 1024 (8th Cir.1978). Deciding what to do with a probationer who has violated the conditions of his probation necessarily involves a prediction about the probationer’s future acts. See Reed, 573 F.2d at 1024. Based on Morin’s previous violation of probation and his demonstrated evasiveness, the district court was fully justified in concluding that probation was not a suitable remedy for Morin. We hold that the district court did not abuse its discretion in revoking Morin’s probation.
Our analysis of Morin’s first claim foreshadows our disposition of his second claim. Revocation hearings involve two analytically distinct stages. See Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). The first stage is wholly retrospective, and focuses on the factual question of whether the probationer has violated one of the conditions of his probation. See Romano, 471 U.S. at 611, 105 S.Ct. at 2257. If there has been a violation, the inquiry proceeds to the second stage, which is predictive and discretionary. See id. It determines whether the violation warrants revocation, considering the nature of the violation and the history of the probationer. The probationer is entitled to notice, an opportunity to present favorable witnesses, and an opportunity to confront and cross-examine adverse witnesses with respect to the condition that he allegedly violated for purposes of the first stage of the hearing. See id.; United States v. Reed, 573 F.2d 1020, 1023 (8th Cir.1978). But he is not entitled to the same protections with respect to every factor that the court will take into consideration during the second stage of the hearing. A contrary rule would “endlessly delay criminal administration in retrial of collateral issues.” Williams v. New York, 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 (1949) (holding that trial court could consider extra-record material when sentencing defendant). Although the probationer may not call witnesses with respect to the second stage of the hearing, he has the right to address the court and present it with mitigating circumstances. See Romano, 471 U.S. at 614, 105 S.Ct. at 2259; Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972); United States v. Turner, 741 F.2d 696, 698-99 (5th Cir.1984).
In this case, the record is clear that the first stage of the revocation hearing dealt solely with Morin’s violation of the reporting requirement. He was given adequate pre-hearing notice that the government would seek to prove that he had violated this condition, and was allowed to testify and also to cross-examine the government’s witness. Once it was determined that the reporting condition had been violated, the district court took other incidents into consideration while deciding whether the violation warranted revocation. Both Morin and his attorney had a more than adequate opportunity to address the court in an effort to put these prior incidents in the best possible light. See [333]*333App. at 140-48. The fact that they failed to convince the district court does not implicate due process.
Morin’s third argument has two components. The first component questions the appropriateness of imprisonment as a punishment following revocation of probation. Morin relies on the American Bar Association Standards for Criminal Justice2 and the Model Penal Code.3 Both compilations essentially recommend that even if revocation is proper, the probationer should not be sentenced to imprisonment unless (a) he has been convicted of another crime, (b) his continued liberty creates undue risk that he will commit another crime, or (c) if such disposition is essential to vindicate the authority of the court. Conditions (a) and (b) are clearly not relevant here, Morin argues, and imprisonment is not essential to vindicate the authority of the court. We disagree. The district court had warned Morin in no uncertain terms that this was the last time that his medical condition would keep him out of jail. If he violated the terms of his probation, he would be imprisoned. We are not generally in favor of inflexible warnings of this type. The special circumstances of this case, however, required the court to notify Morin of the narrow leeway that he had. Despite this stern warning, Morin played fast and loose with his reporting requirements, an especially important probationary condition. Under these circumstances, we think imprisonment is necessary to vindicate the authority of the court and the credibility of its orders.
The second component of this argument questions the appropriateness of reinstating the full sentence of two years. The district court has broad latitude in deciding whether to reinstate the original sentence in whole or in part. See United States v. Colvin, 644 F.2d 703, 706 (8th Cir.1981); Higdon, 627 F.2d at 900. Morin’s argument essentially boils down to a plea for leniency; the district court abused its discretion by not giving sufficient weight to Morin’s deteriorating medical condition.4 Over the past five years, the district court has been more than sympathetic to Morin’s physical problems. Morin, however, has responded by treating the court’s conditions with disdain. He will not now be heard to complain that the cupboard is bare.
The district court’s orders are affirmed.