NO. 18-10450
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA Plaintiff-Appellee
v.
ROLAND EGUCHI, JR. Defendant-Appellant
Appeal from the United States District Court for the District of Hawaii The Honorable Susan Oki Mollway, Senior United States District Judge
District Court No. 1:08-cr-00714-SOM-1
DEFENDANT-APPELLANT’S OPENING BRIEF
Peter C. Wolff, Jr. Federal Public Defender, District of Hawaii Craig Jerome Assistant Federal Defender 300 Ala Moana Boulevard, Suite 7104 Honolulu, Hawaii 96850 Telephone (808) 541-2521 Facsimile (808) 541-3545 E-Mail [email protected] Counsel for Roland Eguchi, Jr.
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Contents Jurisdiction ........................................................................................................ 1 Bail Status ......................................................................................................... 1 Issue ................................................................................................................... 1 Pertinent Legal Provision .................................................................................. 2 Case Statement .................................................................................................. 2 Argument Summary ........................................................................................ 14 Argument ......................................................................................................... 17
1. Standards of review. ............................................................................... 17 2. Due process. ........................................................................................... 17 3. Law of the case. ..................................................................................... 22
Conclusion ....................................................................................................... 25 Statement of Related Cases Form 8 Certificate of Compliance
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Table of Authorities Cases Dent v. West Virginia, 129 U.S. 114 (1889) ................................................... 17 Goss v. Lopez, 419 U.S. 565 (1975) ................................................................ 19 In re Vaughan, 2016 WL 878308 (CA9 Feb. 29, 2016) (unpublished) .......... 17 Land v. Salazar, 911 F.3d 942 (CA9 2018) .................................................... 18 Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity Comm’n, 691 F.2d 438 (CA9 1982) ..................................................................... 17 Morrissey v. Brewer, 408 U.S. 471 (1973) ..................................................... 20 Saravia v. Sessions, 905 F.3d 1137 (CA9 2018) ............................................ 19 Swarthout v. Cooke, 562 U.S. 216 (2011) ...................................................... 18 Townsend v. Burke, 334 U.S. 736 (1948) ....................................................... 20 United States v. Alexander, 106 F.3d 874 (CA9 1997) ............................ 22‒23 United States v. Aquino, 794 F.3d 1033 (CA9 2015) ............................... 16, 21 United States v. Comito, 177 F.3d 1166 (CA9 1999) ..................................... 20 United States v. Cuddy, 147 F.3d 1111 (CA9 1998) ...................................... 17 United States v. Evans, 883 F.3d 1154 (CA9 2018) ....................................... 22 United States v. Hall, 912 F.3d 1224 (CA9 2019) .................................... 16, 22 United States v. Havier, 155 F.3d 1090 (CA9 1998) ...................................... 17 United States v. Hill, 2019 WL 471559 (CA9 2019) ...................................... 20 United States v. King, 608 F.3d 1122 (CA9 2010) ....................................... 6‒7
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Table of Authorities (Continued)
Cases United States v. Loy, 237 F.3d 251 (CA3 2001) ............................................. 22 United States v. Perez, 526 F.3d 543 (CA9 2008) .......................................... 20 United States v. Raya-Vaca, 771 F.3d 1195 (CA9 2014) ............................... 19 United States v. Siegel, 753 F.3d 705 (CA7 2014) ......................................... 21 United States v. Soltero, 510 F.3d 858 (CA9 2007) (per curiam) .................. 22 United States v. Vanderwerfhorst, 576 F.3d 929 (CA9 2009) ........................ 20 Wolff v. McDonnell, 418 U.S. 539 (1974) ................................................ 17‒18 Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................. 17 Statutes 18 U.S.C. §3231 ................................................................................................ 1 18 U.S.C. §3583 ................................................................................................ 1 18 U.S.C. §3742 ................................................................................................ 1 28 U.S.C. §1291 ................................................................................................ 1 Rule Fed. R. App. P. 4 ............................................................................................... 1 Constitutional Provision U.S. Const., amend. V ....................................................................................... 2
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Jurisdiction
This appeal arises from a supervised release revocation proceeding. The
district court had jurisdiction under 18 U.S.C. §3231 and §3583. The district
court filed the judgment of revocation—from which defendant-appellant
Roland Eguchi, Jr., takes this appeal—on November 16, 2018. Defendant-
Appellant’s Excerpts of Record (ER) 135. Eguchi filed his notice of appeal on
November 19, 2018. ER 140; Fed. R. App. P. 4(b). This Court has appellate
urisdiction pursuant to 18 U.S.C. §3742 and 28 U.S.C. §1291.
Bail Status
Eguchi is imprisoned in Honolulu FDC. His projected release date is
June 16, 2019.
Issues
1. Due Process. When a district court holds admitted supervised
release violations in abeyance and continues the defendant on supervised
release, may the district court rescind abeyance and imprison the defendant for
the admitted violations whenever the probation officer loses “hope” in, and
ceases to be “optimistic” for, the defendant? Or is doing such a thing—
especially on a record that demonstrates the probation officer’s hope and
optimism evaporated due to “unsubstantiated” “rumors” about the defendant,
rumors the government declined to prove, rumors the district court refused to
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make any factual findings about, and rumors the district court disavowed
relying upon (but laundered through the probation officer’s newfound
pessimism nonetheless)—too arbitrary, unfair, or unreasonable to comport with
due process?
2. Law of the Case Doctrine. Due process aside, does the prudential
law of the case doctrine apply to a ruling holding admitted supervised release
violations in abeyance? And, if the doctrine applies, did the district court abuse
its discretion in rescinding abeyance on the basis of unsubstantiated rumors,
rather than clear error in the abeyance ruling, manifest injustice, or any
intervening change in law or circumstances?
Pertinent Legal Provision
“No person shall be … deprived of … liberty … without due process of
law[.]” U.S. Const., amend. V.
Case Statement
On November 5, 2009, the district court entered a judgment of conviction
against Eguchi on a single drug conspiracy count, for which the court
imprisoned him for ten years and ordered him to serve an eight-year term of
supervised release. ER 36–38. A year into his supervised release term, the
probation officer commenced a revocation proceeding based on five violations
of his conditions of supervised release. Dist. Ct. No. 1:08-cr-00714-SOM (DC),
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ECF 170. The probation officer alleged that Eguchi had used drugs, failed to
comply with drug testing, drove without a license, and lied to him. Id. at pp. 1–
2; see also ER 38, 40.
At the revocation hearing, Eguchi admitted the five violations, and the
district court accordingly found that he had committed them. ER 44–46. The
court noted that the applicable guideline range was 5–11 months. ER 46. The
court further noted, however, that the probation officer recommended holding
the violations in abeyance and maintaining Eguchi on his initial term of
supervised release. ER 46. The probation officer explained that his
recommendation rested on Eguchi’s family support and Eguchi’s “sincere”
motivation to successfully complete drug treatment and succeed on supervised
release. ER 55. The probation officer also emphasized that Eguchi understood
“that these conditions that Your Honor imposes is what he needs to abide by
and that’ll help him be successful[.]” ER 56. The government concurred in the
probation officer’s recommendation. ER 56.
The district court agreed to “try it,” but emphasized that the court
harbored “lots of concern because of the deception” to the probation officer. ER
57–58. Lying, the court explained, misled and stymied not just the probation
officer, but the court as well:
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When you lie about this—and I consider like trying to trick your probation officer on the drug test as a lie too—you make a mockery of any attempt by the probation officer to help you or to monitor your behavior, because if they don’t have a true picture of what your behavior is, then I don’t see how they can be doing anything at all that’s worthwhile. And the same with me. If I don’t have facts on which to base a decision, then I don’t see how my decision can make any sense at all. And so the court system cannot operate—we become useless in other words. You just totally undermine the reason to have a court making decisions, the reason to have a probation office working with you.
ER 58 (reporter’s typography silently emended). But, the court then relented,
I’ll take a chance here because [the probation officer’s] recommending it and he’s worked with you so much more than I have, but it’s not much rope that I’m giving you. The slightest report from him of a problem will mean you come back into court. …. It cannot happen that you lie to your probation officer again. You need to know this. That’s going to be not something that I will overlook again. …. If I see you sitting in that chair, you kind of know what to expect.
ER 59 (reporter’s typography silently omitted). At the conclusion of the
hearing, the court summarized: “Okay. Do everything your probation officer
tells you to do. Whatever you do—you know, you’ve heard me say this at least
five times in this hearing—don’t lie again to him. Don’t try to trick him again.
Okay? Because I don’t know how to express this strongly enough: I’ll come
down like a ton of bricks on you. Okay?” ER 64.
The court’s remarks clearly signaled that abeyance would continue as
long as Eguchi remained compliant with the conditions of his supervised
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release, especially those requiring him to obey and be truthful with the
probation officer. Nothing in the court’s remarks suggested that abeyance could
be rescinded whenever the probation officer lost hope or ceased to be optimistic
about Eguchi’s successful completion of his supervised release term.
Three months later, the probation officer commenced a new revocation
proceeding, adding a new allegation of a sixth violation and urging the court to
rescind abeyance on the five admitted violations. DC ECF 174. The new
allegation asserted that Eguchi had violated the condition of his supervision that
prohibited him from associating with a felon. DC ECF 174 at pp. 2, 5–6.
Repeating the content of a local police report, the probation officer related that
Eguchi had been arrested with James Lee on allegations of kidnapping and
threatening and that Lee was a felon. Id.
The probation officer also related the account “the victim” had given to
police. DC ECF 174 at p. 6. She claimed that Eguchi fronted her drugs and
loaned her money and, with Lee’s help a month later, demanded to be paid,
kidnapped her (beating her and taking her, at gun point, from a gas station to
Eguchi’s father’s residence), but then, with a singular want of prescience,
allowed her to leave. Id. When she, leading police, returned to the residence, the
police arrested Eguchi and Lee even though they found no firearm. Id. at 6. No
prosecution arose from these allegations and, as noted, the probation officer did
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not assert that Eguchi had violated his conditions of supervision by engaging in
conduct that constituted kidnapping, threatening, assault, or drug dealing; the
probation officer merely asserted that he had violated the felon association
condition by having been arrested with Lee. ER 69; see also DC ECF 175 2, 5–
6; ER 38 (supervised release condition prohibiting commission of any crime).
The initial hearing on the new violation allegation occurred before a
different district court judge (Senior District Court Judge Kay) than the judge
who had held the other five violations in abeyance (Senior District Court Judge
Mollway). Eguchi denied the new violation allegation. ER 68. And the
government submitted its case on the association violation on the basis of the
probation officer’s recitation of the police report’s contents:
[T]he government would proffer the statement of facts that’s contained in the amended request for course of action. There’s, as Your Honor had noted, a Honolulu police report dated October 18th, 2018, that puts the defendant, Mr. Eguchi, and Mr. Lee at the same place at the time of the arrest. And so the government submits that there is evidence that would support Mr. Eguchi affiliated himself with a convicted felon, Mr. Lee, in violation of the terms and conditions of his supervised release.
ER 69–70. Defense counsel accepted “that stipulation,” but noted it failed to
prove a violation of the association condition because there was no evidence
Eguchi knew Lee was a felon, pointing the court to United States v. King, 608
F.3d 1122 (CA9 2010), for the proposition that “‘non-association conditions
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prohibit only knowing contact with persons that the supervisee knows to be
felons.’” ER 70–71 (counsel quoting King, 608 F.3d at 1128 (reporter’s
transcription emended with the King Court’s original emphases)).
After conferring with the probation officer, the government suggested
that, “instead of having an evidentiary hearing to prove up violation number
six,” it was “prepared to go forward on the first five, just the first five violations
and recommend revocation and imposing a sentence today.” ER 71–72. Senior
District Court Judge Kay reminded the government that dropping the new
violation would result in maintaining abeyance, not imprisonment:
According to the write-up here, at the time of his—that he admitted the five violations … on August 20th of this year [before Judge Mollway], and at that time the probation officer recommended that his violations be held in abeyance. The Court was hesitant to follow this recommendation given the egregious nature of Mr. Eguchi’s violations, including that he attempted to use a device to subvert his drug test and twice lied about his drug use. In holding the violations in abeyance, the Court sternly admonished Mr. Eguchi regarding his violations and warned him against engaging in further noncompliant behavior. Problem we’re faced with now is that if we’re not going to consider this additional alleged violation, then it would seem that we would still hold them in abeyance. So I think we have to go ahead with an evidentiary hearing.
ER 72 (reporter’s typography silently emended). The government then asked
for a continuance “to call the appropriate witnesses necessary to prove the
[association] violation.” ER 72. The court granted the motion for a continuance,
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noting, “I think we’re going through an unnecessary exercise [defense counsel],
but you have a right to compel that, that’s your right.” ER 72–73.
Senior District Court Judge Mollway resumed presiding over the case at
the continued hearing. The hearing opened with the government opting “not to
pursue [the association] violation.” ER 76. Instead, the government again urged
“that the violations that were previously found and held in abeyance should
now serve as the basis for revocation.” ER 76–77. The government candidly
explained that, even after further investigation, it could not prove the
association violation (nor had it spotted any other violation it could prove):
[O]ver the past two weeks, the Government has been working with Probation, and Probation had reached out to HPD and the detective assigned to the case. And so I want to just be clear that we haven’t been—we’ve been doing our due diligence and follow up in order to see whether or not the violation could be proved or any additional violations, Your Honor. And … [we] determined that we wouldn’t be proceeding.
ER 77; see also ER 78–79 (defense counsel’s recap of prior proceedings on the
new violation). The remainder of the hearing consisted of the court and the
parties (mainly defense counsel) sparring over whether the court could rescind
abeyance absent proving up the additional violation or some similar factual
change of circumstances. ER 79–95.
Defense counsel took the position that, absent some proven change of
circumstances (such as a new instance of proven noncompliance), due process
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precluded the court from rescinding abeyance and, ultimately, requested that the
court maintain abeyance and continue Eguchi on his initial term of supervised
release. ER 95; see also ER 79–95. The government and the court took the
position that abeyance could be rescinded at any time, without any need to
prove a new instance of noncompliance. ER 79–95; see, particularly, ER 80–81
(court muses “what more do I need to revisit the issue” of abeyance “and say,
‘Now I will revoke’,” when abeyance was a “benefit” to Eguchi and there is “no
prejudice” to him when abeyance is rescinded); ER 83 (court queries, “[a]nd
even if he doesn’t violate, if he doesn’t seem to me to be making good use of
that opportunity, why isn’t it enough for me to say, ‘I held these things in
abeyance; now I’m going to revoke’?”). The court continued the hearing for the
parties to further brief the issue. ER 94.
Notably, though, when probed by the court during the hearing on what
change of circumstances justified rescinding abeyance and imprisoning Eguchi
for the initial set of violations, the probation officer relied solely upon the
allegations of criminal conduct and associating with a felon that the government
admitted it could not prove:
[The] Probation Office is deeply concerned with the allegations, especially, you know, following the new arrest. It goes along—as indicated in our recommendation, Your Honor, there’s a pattern of arrest and concern, you know, dating back to May. And following the last revocation hearing, it was our hope that the subject was
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going to demonstrate conduct that reflects a sober and law-abiding lifestyle. However, the subsequent arrest and the allegations of kidnapping, terroristic threatening, was deeply concerning, Your Honor, and so we filed our petition. Subsequent to that revocation hearing, you know, we learned of that new information and that subsequent information—or we learned the new information that suggested there was a different violation—or a new violation that existed that warranted further investigation, Your Honor. And that the subsequent, complaint, the arrest was withdrawn. And that’s where we lie, Your Honor.
ER 90 (reporter’s typography amended). The court clarified that the probation
officer was talking about the association allegation arising out of the arrest for
kidnapping and threatening. ER 91. When similarly asked what new
circumstances existed to justify rescinding abeyance, the government also relied
on the new allegations of criminal conduct, albeit acknowledging that “they are
just allegations, they’re not charges, they’re not convictions, but” they were
“deeply concerning,” nonetheless. ER 91.
In their written briefs, the parties maintained their positions. Defense
counsel’s brief elaborated that disturbing the status quo required some proven
change in circumstances, and also argued that, in Eguchi’s case, rescission for
any reason shy of noncompliance would violate due process for lack of notice.
DC ECF 186. In its brief, the government merely asserted that the initial
revocation hearing on the five admitted violations sufficed to comport with due
process, such that subsequently rescinding abeyance raised no independent due
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process concern. DC ECF 187. The government further noted that Eguchi’s
arrest on the unsubstantiated kidnapping and threatening allegations constituted
“contact with law enforcement [and was] sufficient to warrant the Court taking
immediate action and imposing a sentence of incarceration” on him. Id. at p. 3.
The only condition of his release that pertained to law enforcement contact,
however, merely required him to report such contact within 72 hours (ER 38);
and neither the government nor the probation officer ever claimed that Eguchi
had violated that condition.
At the continued, and final hearing, the district court summarized that the
probation officer’s recommendation to rescind abeyance and imprison Eguchi
was based on unproven and unsubstantiated (as the judge would later
characterize them) “rumors” (see ER 120) that he engaged in kidnapping,
threatening, and drug dealing. ER 101–102. Those allegations came from the
police report about the arrest (as discussed above), as well as from an
“anonymous telephone report” and a “third-hand report” that the probation
officer had told the court about. ER 102–103. During yet more sparring with
defense counsel, the court insisted that the court retained discretion to rescind
abeyance and imprison the defendant at any time, even absent anything new
occurring to justify doing so. ER 104–126.
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The court’s reasoning mirrored a god-giveth-god-taketh-away syllogism:
because Eguchi had no due process right to abeyance based on the probation
officer’s hopefulness, and abeyance was thus wholly a matter of the district
court’s grace, he had no due process right that could be violated by rescission,
no matter when or why it occurred:
But I’m looking at it as the probation officer was hopeful in August. He’s now reconsidering that, granted, on the ground of unsubstantiated allegations, but Mr. Eguchi did not have any constitutional right to have his probation officer be hopeful in the face of five violations that he admittedly committed. So he had no right to have [the probation officer] say, “You know what? I’m hoping you’re going to be okay and you had some setback, but I’m with you, Mr. Eguchi.” He had no right to that, uhm, subjective view by the probation officer. That is not something he was entitled to have. That he got it is not something he should be allowed to count on having forever. …. I could have rejected in August the probation officer’s hopefulness and sentenced him in August. If the probation officer has removed that hopeful attitude, why can I no longer do what I could have done in August even ignoring these unsubstantiated allegations which are the basis for the present absence of hopefulness because Mr. Eguchi never had an entitlement to hopefulness from his probation officer or to my acceptance of that hopefulness?
ER 112–113 (reporter’s typography silently emended).
In accord with that sentiment, the district court purported to not rely on
the new allegations, declined to find any facts regarding them, and ruled that the
probation officer’s hopelessness and pessimism sufficed to justify rescinding
abeyance and imprisoning Eguchi:
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I’m having a real problem with accepting the premise that once I hold something in abeyance, the discretion I have at the time I hold something in abeyance becomes more circumscribed because I held something in abeyance. If that’s a standard, as I say, we will really hesitate to hold anything in abeyance.
So I am revoking Mr. Eguchi’s supervised release status. In doing so, I am not finding that he committed any new supervised release violation. I am not finding that he has done what an anonymous caller and a third party report to the probation officer assert. I am, instead, relying on five violations that he committed, he admitted having committed, in August but that I held in abeyance even while expressing concern about the seriousness of those violations.
In no longer holding those in abeyance, I am relying on the probations officer’s changed recommendation and the—at the August hearing I expressed concern about relying on the probation officer’s optimism and recommendation that I hold the violations in abeyance. The probation officer is no longer expressing that same attitude and is instead very worried about Mr. Eguchi. But I am not making new factual findings that he—Mr. Eguchi did or did not commit new violations. I am resurrecting concerns that I did express in August about the seriousness of the violations that I found in August[.]
ER 126–127. The court thus laundered the unproven allegations through the
probation officer’s lost hope and newfound pessimism. Accord ER 126–127
with ER 101–102 (court acknowledges that the probation officer was no longer
optimistic due to the unproven allegations); ER 110 (court again acknowledges
that the probation officer lost hope because of the “unsubstantiated arguments
and claims”); ER 112–113. The court sentenced Eguchi to eight months’
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imprisonment, followed by a second (88-month) term of supervised release. ER
132. This appeal followed.
Argument Summary
1. Three points in the record suffice to demonstrate the district court’s
reversible error as a matter of due process notice.
One, when holding five admitted violations in abeyance, the district court
told Eguchi that rescission of abeyance would occur if Eguchi did not “[d]o
everything your probation officer tells you to do” or “lie[d] to him.” ER 64.
Two, a different district court judge—presiding in the initial judge’s
stead some three months later and referring to a “write-up,” presumably
generated by either the original judge or the probation officer—characterized
the abeyance ruling to have given Eguchi notice that rescission would occur if
he “engag[ed] in further noncompliant behavior.” ER 72.
Three, when later rescinding abeyance, the original district court judge
expressly (and repeatedly) declined to find any new noncompliant behavior
(and, thus, did not find Eguchi disobeyed, or lied to, his probation officer), but
rescinded abeyance anyway, solely on the basis of the probation officer’s
newfound pessimism (which was entirely the product of the probation officer’s
beliefs that the very things the district court refused to making findings about
actually occurred). ER 126–127.
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Due process does not allow a judge to condition abeyance on one thing,
but then rescind abeyance for something else.
2. A second due process problem that requires reversal arises from
the district court’s reliance on unprovable allegations of misconduct by viewing
them through the lens of probation officer’s hopelessness and pessimism. At
one and the same time, the district court purported to disavow relying on the
unprovable allegations, acknowledged that those allegations are what induced
the probation officer’s hopelessness and pessimism, and then relied on the
probation officer’s hopelessness and pessimism to rescind abeyance, revoke his
supervision, and imprison Eguchi. Due process does not allow a district court to
accept unsubstantiated allegations by viewing them through the lens of a
probation officer’s pessimism, while purporting to make no factual findings that
those allegations are true.
The district court, albeit unwittingly, pegged the problem when initially
scolding Eguchi about the evil wrought from lies told to a probation officer: “If
I don’t have facts on which to base a decision, then I don’t see how my
decisions can make any sense at all.” ER 58. When a district court holds
admitted violations in abeyance and maintains the defendant on supervised
release in lieu of revocation and resentencing, the defendant has a right not to
be deprived of his renewed liberty without some minimal process, without at
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least some new aggravating fact altering the status quo. Here, the district court
did not find and expressly refused to rely upon any new fact. ER126–127.
Instead, the court relied on a change in the probation officer’s subjective state of
mind. ER 126–127. Due process does not permit depriving a defendant of his
liberty based on a probation officer’s subjective state of mind; a point this
Court’s cases holding various release conditions unconstitutionally vague
consistently reaffirm. Cf, e.g., United States v. Hall, 912 F.3d 1224, 1226–1227
(CA9 2019); United States v. Aquino, 794 F.3d 1033, 1037 (CA9 2015).
3. Setting due process aside, the district court abused its discretion
under the law of the case doctrine. Nothing counsels holding that a district
court’s abeyance ruling is immune from the law of the case doctrine. The
district court, accordingly, should not have revisited its abeyance ruling unless:
(1) the ruling was clearly erroneous; (2) applicable law changed; (3) underlying
factual circumstances changed; or (4) manifest injustice would result from not
revisiting the issue. None of those things occurred here. Instead, a probation
officer heard unsubstantiated rumors—that neither he, nor two governments
(state and federal) could verify, be it even by a preponderance of the
evidence—and, on the basis of those unsubstantiated rumors, adopted a
pessimistic mindset. In relying on the probation officer’s subjective change of
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heart, rather than clear error, manifest injustice, or a change in law or fact, the
district court abused its discretion in revisiting and rescinding abeyance.
Argument
1. Mixed questions of law and fact, such as due process claims
involving notice, are reviewed de novo. United States v. Havier, 155 F.3d 1090,
1092 (CA9 1998). What constitutes law of the case is a question of law
reviewed de novo. In re Vaughan, 2016 WL 878308 at *5 (CA9 Feb. 29, 2016)
(unpublished) (citing Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity
Comm’n, 691 F.2d 438 (CA9 1982)). Application of the law of the case
doctrine is reviewed for an abuse of discretion. United States v. Cuddy, 147
F.3d 1111, 1114 (CA9 1998).
2. Due process protects against arbitrary deprivations of liberty.
Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Wolff v. McDonnell, 418 U.S.
539, 558 (1974); Dent v. West Virginia, 129 U.S. 114, 123 (1889). The district
court may be quite right that a defendant has no right to abeyance of admitted
supervised release violations. But once abeyance is ordered, and the defendant
is maintained on supervised release and at liberty from imprisonment, due
process guards against the government, his probation officer, or the court
arbitrarily depriving him of that liberty.
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Consider the way due process treats parole. A prisoner has no
constitutional right to parole, so the lack of parole entirely does not implicate
due process; but when a State allows for parole, due process guards against
arbitrary denial or revocation of parole. Swarthout v. Cooke, 562 U.S. 216, 220
(2011) (“[w]hen … a State creates a liberty interest, the Due Process Clause
requires fair procedures for its vindication”). Another analogue: good time
credit. As with parole, a prisoner has no right to good time credit, but once
offered and earned, such credit cannot be arbitrarily denied or taken away.
McDonnell, 418 U.S. at 557; Land v. Salazar, 911 F.3d 942, 950–951 (CA9
2018). As in these other contexts, so here: Eguchi may not have had any sort of
right to abeyance, but once abeyed and left on supervised release, due process
precludes the district court from arbitrarily rescinding abeyance and depriving
his liberty by imprisoning him.
The district court’s analysis, insisting that Eguchi has no due process
claim because he had no right to the probation officer’s optimism in the first
place, does not withstand the foregoing comparisons. If that line of reasoning
was the rule for when a defendant could raise a due process claim, denial of
parole or the erasure of good time credit would be immune from due process.
The district court’s analysis focuses on the wrong thing. The probation officer’s
optimism is not what triggered due process. What triggered due process was the
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district court’s ruling holding the violations in abeyance and allowing Eguchi to
remain at liberty on his initial supervised release term. It was that ruling—akin
to a State’s adoption of a parole scheme, or the BOP’s grant of good time
credit—that then necessitated compliance with basic due process norms before
abeyance could be rescinded.
The question thus becomes what process is due?
One minimal due process protection is adequate notice of what would
trigger rescission. Goss v. Lopez, 419 U.S. 565, 579 (1975); Saravia v. Sessions,
905 F.3d 1137, 1144 (CA9 2018) (“[d]ue process always requires, at a
minimum, notice” (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1204
(CA9 2014)). The only notice given Eguchi was that “further noncompliant
behavior” (ER 72)—or, more casually put, not “do[ing] everything [his]
probation officer [told] him to do” (ER 64)—was what would trigger the
rescission of abeyance. He was never told that a mere change in the subjective
views of his probation officer would suffice. But it is the latter, not the former,
that the district court made the professed basis of rescission, revocation, and
imprisonment. ER 126–127. Because he was not given notice that a mere
change in his probation officer’s subjective hope and optimism would result in
rescission, revocation, and imprisonment, the district court violated due process
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by relying on the probation officer’s pessimism to rescind abeyance, revoke
supervision, and imprison him.
Another minimal due process protection guards against decisions based
on unreliable and incorrect information. This concern typically arises in the
context of sentencing: while a statute allows the court to rely on any and all
information at sentencing, due process precludes relying on unreliable or
incorrect information. United States v. Hill, ___ F.3d ___, 2019 WL 471559
(CA9 2019) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948), and United
States v. Vanderwerfhorst, 576 F.3d 929, 935–936 (CA9 2009)). It also arises in
the supervised release context, in which due process precludes relying on
unreliable hearsay evidence to revoke supervised release and necessitates
predicating revocation on “verified facts.” United States v. Comito, 177 F.3d
1166, 1170 (CA9 1999); see also, e.g., Morrissey v. Brewer, 408 U.S. 471, 482
(1973); United States v. Perez, 526 F.3d 543, 548 (CA9 2008).
Sifted, post-abeyance revocation in this case ostensibly turned on the
probation officer’s lost hope, which the district court recognized rested on
“unsubstantiated” (ER 110, 112) “rumors” (ER 120) that had “affected” (ER
110) the probation officer’s mindset. ER 101–103, 110–113, 126–127. The
government admitted it could not, even after further investigation and
exercising all due diligence, substantiate any of those rumors. ER 77. And the
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district court expressly made no factual findings about those rumors. ER 126–
127. Relying on those rumors by way of the probation officer’s lost hope and
optimism did nothing to verify them. Relying on the probation officer’s
hopelessness and pessimism to rescind abeyance, revoke the defendant’s
supervised release, and imprison him did not, accordingly, comport with due
process’s reliability component.
Another minimal protection due process affords a supervised releasee is
that revocation will not turn on a probation officer’s subjectivity. Granted, there
is no case directly on point with the odd and unique set of facts this case brings
to this Court. But this Court’s cases invalidating vague supervised release
conditions establish the principle Eguchi invokes well enough.
In Aquino, for example, this Court struck down a condition prohibiting
the defendant from using any substance that mimicked the effects of any
controlled substance, which this Court recognized reached such things as
chocolate, coffee, and tea. Aquino, 794 F.3d at 1037. Noting a condition is not
saved by the government’s promise to enforce it narrowly, this Court
invalidated the condition because the defendant “should not be forced to guess
whether an overzealous probation officer will attempt to revoke her supervised
release for drinking a grande iced nonfat chai with a shot of expresso.” Id. at
1037–1038 (citing United States v. Siegel, 753 F.3d 705, 713 (CA7 2014)). And
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in Hall, this Court invalidated a condition that limited the defendant’s contact
with a family member to “normal familial relations,” because the quoted phrase
was “susceptible to many different interpretations” and left the defendant at the
whim of a probation officer giving it an unlikely meaning. Hall, 912 F.3d at
1227. As this Court put it in United States v. Soltero, 510 F.3d 858 (CA9 2007)
(per curiam), “[a] vague supervised release condition ‘cannot be cured by
allowing the probation officer an unfettered power of interpretation, as this
would create one of the very problems against which the vagueness doctrine is
meant to protect.” Id. at 867 n. 10 (glossing United States v. Loy, 237 F.3d 251,
266 (CA3 2001)); see also, e.g., United States v. Evans, 883 F.3d 1154, 1164
(CA9 2018) (quoting Soltero).
To rescind abeyance, revoke Eguchi’s supervised release, and imprison
him, the district court expressly and exclusively relied, at least ostensibly, on a
probation officer’s subjective state of mind—his newly lost hope for, and
newfound pessimism regarding, the defendant’s continued success on
supervised release. ER 126–127. Due process does not permit a deprivation of
liberty to turn on a probation officer’s (or a court’s) change of mood.
3. The law of the case doctrine provides that “a court is generally
precluded from reconsidering an issue that has already been decided by the
same court[.]” United States v. Alexander, 106 F.3d 874 (CA9 1997). Having
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decided that the appropriate thing to do with the five admitted violations was to
hold them in abeyance and continue Eguchi on his initial supervised release
term, the law of the case doctrine generally precluded the district court from
revisiting the issue. Counsel discerns no reason why the district court’s
abeyance ruling would stand uniquely immune from the law of the case
doctrine. The court’s abeyance ruling was a ruling, like any other.
This Court holds that a district court abuses its discretion under the law
of the case doctrine unless:
1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence [before the court] is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.
Alexander, 106 F.3d at 876. The only one of these even potentially applicable in
Eguchi’s case would be the changed circumstances trigger. The only
circumstance that had changed, however, was that the probation office had
ceased to be hopeful. No new violations of Eguchi’s supervised release were
proven. No additional aggravating facts about the original violations had come
to light. No material change in his sincerity or familial support had occurred.
And no transgressions of the implied or express terms under which the court
had granted abeyance (failing to obey, or lying to, the probation officer) were
even alleged, much less proven. The district court, moreover, recognized that
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the probation officer’s newfound pessimism was entirely the product of
unsubstantiated rumors, which the government declined to prove, and which the
court refused to find true.
A probation officer’s entirely subjective altered mindset—especially
when the record demonstrates the probation officer’s changed view is
predicated on unverified (and, the government conceded, unverifiable)
information—is not sufficient to justify revisiting the district court’s abeyance
ruling under the law of the case doctrine. This is a point Senior District Court
Judge Kay recognized. ER 72. But because Senior District Court Judge
Mollway did not, this Court should side with Judge Kay, vacate Judge
Mollway’s judgment of revocation, and remand this matter for reinstatement of
Eguchi’s initial term of supervised release. Unverified information and
subjective mood changes are not the type of changed circumstances the law of
the case doctrine has in mind. There must be a change in the evidence or other
facts before the court. The government’s refusal to prove and the district court’s
failure to find true any of the allegations on which the probation officer relied
was thus fatal to revisiting the court’s abeyance ruling under the law of the case
doctrine.
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Conclusion
This Court should vacate the district court’s revocation judgment and
remand this matter for reinstatement of Eguchi’s initial term of supervised
release and any other further proceedings that may be appropriate.
DATED: Honolulu, Hawaii, February 15, 2019.
/s/ Craig Jerome CRAIG JEROME Assistant Federal Defender Counsel for Roland Eguchi, Jr.
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Statement of Related Cases
Counsel is not aware of any cases pending before this Court that are
related to the present matter.
DATED: Honolulu, Hawaii, February 15, 2019.
/s/ Craig Jerome CRAIG JEROME Assistant Federal Defender Counsel for Roland Eguchi, Jr.
Case: 18-10450, 02/15/2019, ID: 11197844, DktEntry: 4, Page 30 of 31
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