United States v. Dennis

26 F.4th 922

UNITED STATES of America, Plaintiff-Appellee,

v.Sandra DENNIS, Defendant-Appellant.

No. 21-10316

United States Court of Appeals, Eleventh Circuit.

Filed: February 16, 2022

Natasha S. Cooper, Assistant U.S. Attorney, Office of the U.S. Trustee, Richard Russell Federal Bldg., Diane Claire Schulman, William Gavin Traynor, U.S. Attorney Service-Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee.

Kimberly Sharkey, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Before William Pryor, Chief Judge, Jordan, and Anderson, Circuit Judges.

William Pryor, Chief Judge:

This appeal concerns the notice that a probationer must receive before her probation can be revoked. One of the mandatory conditions of Sandra Dennis's probation for stealing social security funds was that she not commit any new state crimes. A police officer later investigated Dennis for theft of services after he suspected that she took food from a restaurant without paying. During a heated exchange with the officer, Dennis repeatedly disobeyed his commands. Based on this encounter, a probation officer provided written notice that Dennis had committed theft, battery, and felony obstruction. After a hearing, the district court found that Dennis committed misdemeanor obstruction and sentenced her to a term of supervised release. Dennis objected to that sentence on the ground that she had not been given written notice that her probation could be revoked for committing misdemeanor obstruction. Because misdemeanor obstruction is a lesser included offense of felony obstruction, the notice given to Dennis satisfied the requirements of "due process of law." See U.S. CONST. amend. V. We affirm.

I. BACKGROUND

After the United States filed an information against Sandra Dennis alleging one count of theft of government property for knowingly converting to her use $21,433 of social security payments, see 18 U.S.C. § 641, she pleaded guilty. The district court sentenced her to 24 months of probation. The district court also required, as a condition of her probation, that Dennis not commit any state crime.

Shortly before Dennis completed her sentence, her probation officer filed a petition to revoke her probation for violating her "conditions of supervision." The petition alleged that Dennis violated the condition that she not commit any state crime based on an interaction she had with a police officer. It "alleged[ ] [that Dennis] committed the new crimes of Willful Obstruction of Law Enforcement by Threats or Violence (felony), Simple Battery on a Police Officer (misdemeanor), and Theft of Services (misdemeanor) in Henry County, Georgia." The petition described Dennis's obstructive conduct as follows:

According to Henry County, Georgia, Police Officer Worrell, officers were called to the Silver Bay Seafood restaurant located in Stockbridge, Georgia, in reference to a theft of services. Officer Worrell determined that Dennis had obtained food from the restaurant without paying for it, and he provided Dennis with multiple opportunities to pay for the food or otherwise make amends with the business. Dennis refused to cooperate and would not follow any of the officer's instructions. Officer Worrell attempted to place Dennis in handcuffs, at which time she attempted to strike Officer Worrell and a physical confrontation ensued. Dennis was eventually subdued and arrested. According to Henry County Sheriff's Office, Dennis posted a $5,000.00 property bond and was being released from jail as of December 2, 2020.

Based on the petition, the district court ordered the issuance of a warrant to arrest Dennis and ordered Dennis to "show cause why Probation ... should not be revoked."

The district court later convened a revocation hearing at which the parties gave evidence on the allegations. The government reiterated its allegation that Dennis committed three state crimes: "willful obstruction of law enforcement by threats or violence, felony; simple battery on a police officer, that's a misdemeanor; and theft of services, misdemeanor." The district court asked Dennis if she "ha[d] ... received a written copy of these alleged violations" and Dennis responded that she had. Dennis also responded that she would be denying the allegations that formed the basis for the alleged violation.

The government called Officer Worrell to testify about the encounter and to explain the video from the body camera he was wearing at the time. Officer Worrell testified that the cashier at the restaurant informed him that, after an order was placed over the phone, a young woman and an older man walked into the restaurant, checked the food, and took the food without paying. Officer Worrell then called the cellphone number used to place the order and spoke with Dennis's husband, who said that he thought his wife had paid for the food. After Officer Worrell spoke with her husband, Dennis told Officer Worrell that they were not going to pay for the food, but that they would return the food instead.

Dennis later arrived at the restaurant. Officer Worrell testified that, after Dennis stated again that she would not pay for the food, he asked Dennis for her driver's license so that he could positively identify her. Despite asking her multiple times, Dennis refused to give Officer Worrell her license. And after Officer Worrell asked Dennis several times to get off her phone, Dennis failed to comply. After Officer Worrell grabbed the phone out of her hand, Dennis "started swinging." The government rested its evidence on Officer Worrell's testimony.

Dennis testified in her own behalf. Dennis admitted that she had in her right hand a cellphone that Officer Worrell "snatched." But she maintained that she did not swing at him. Dennis testified that she raised her hand to put on her glasses, after which Officer Worrell "thr[ew] [her] against the wall." She also testified that she neither hit nor attempted to hit Officer Worrell "at any point." And she asserted that her hand appeared "balled up" to Officer Worrell because she had attempted to put her mask over her face.

Dennis admitted that Officer Worrell "ask[ed] for [her] driver's license" twice. She admitted that she told him "no" because she "need[ed] [her] license to drive home." She acknowledged that Officer Worrell "explain[ed] to [her] that if [she] didn't give him [her] license, ... [h]e would have to arrest [her]." But Dennis refused to comply. Dennis also admitted that Officer Worrell asked her "repeatedly" to get off the phone when he was attempting to speak with her and she again refused to comply.

During closing arguments, defense counsel argued that Dennis "never did anything that equates to felony obstruction." She maintained that felony obstruction was the charge at issue. And she argued that felony obstruction "requires something more than a misdemeanor obstruction. She is alleged to have committed felony obstruction, and she did not do that."

In response to that argument, the district court asked defense counsel if it was her "position that [Dennis] could not be found to have committed misdemeanor obstruction based on the way that the alleged violation is pled." Defense counsel responded in the affirmative and argued that Dennis was "entitled to written notice of what the allegations are against her." And she argued that there was "no allegation of misdemeanor obstruction," so Dennis could not "be found to have committed that [offense]."

When the government presented its argument, the district court asked two questions related to the obstruction allegation. First, the district court stated that the petition "specifically says felony obstruction," and asked the government whether its "position [was] that the evidence supports felony obstruction." Second, the district court asked the government if the district court could find that Dennis committed misdemeanor obstruction "for not providing the phone and the driver's license," "[e]specially considering that the pleading only says felony obstruction."

The government responded that the evidence supported both felony and misdemeanor obstruction. And the government argued that "the violation is that she committed a new crime," and "misdemeanor obstruction is a new crime." "So," the government reasoned, if the district court were to find that Dennis committed misdemeanor obstruction, it "c[ould] still revoke her" probation.

On the specific allegations, the district court could not "find that [Dennis] committed theft." And the district court found that there was not enough evidence that Dennis committed battery or felony obstruction. The district court reasoned that, although it found that Officer Worrell's testimony was highly credible and believed Officer Worrell's testimony that Dennis had raised her hand, it could not find from the video whether Dennis's purpose was to pull up her mask or to do violence.

The district court found that Dennis "definitely ... committed the act of misdemeanor obstruction in not providing [her] license and in refusing to get off the phone." The district court found that Dennis's attitude—that she "d[id] not have to listen to or respect" Officer Worrell—"c[ame] across on th[e] video." The district court rejected defense counsel's argument that Dennis lacked "proper notice just because the petition says felony obstruction." The district court reasoned that "[t]he petition clearly sets forth that the prohibited conduct is committing a new offense," and "the description of felony obstruction is just additional information." The district court concluded that there was no problem with "find[ing] a reduced charge of the felony obstruction in the form of misdemeanor obstruction."

The district court found that Dennis violated her probation, revoked it on the ground that she committed a new offense, and sentenced her to two years of supervised release. Defense counsel again objected to the...