United States v. Whiteside

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MALCOLM WHITESIDE, Defendant-Appellant.

No. 22-2482

United States Court of Appeals, Seventh Circuit

July 21, 2023

NONPRECEDENTIAL DISPOSITION

Argued April 25, 2023

Appeal from the United States District Court for the Western District of Wisconsin. No. 19-cr-99-jdp-1 James D. Peterson Chief Judge.

Before KENNETH F. RIPPLE, Circuit Judge, AMY J. ST. EVE, Circuit Judge, DORIS L. PRYOR, Circuit Judge

ORDER

Malcolm Whiteside was sentenced to prison after the district court revoked his supervised release for violating a condition that barred him from possessing a gun. The court based its sentence in part on evidence described in the petition for revocation (including a video recording and identification of Whiteside in it) showing that he used a weapon in violation of state law. On appeal, Whiteside argues that, because the government said that it did not intend to prove with live testimony that Whiteside violated state law, the court violated his due process rights by considering this evidence. This argument, which Whiteside waived on appeal, fails: The court could consider reliable evidence in the petition showing that Whiteside committed a state crime and possessed a gun in violation of a condition of release, and the petition provided Whiteside with sufficient notice that the government was asking the court to consider this state crime. We therefore affirm the judgment.

Whiteside pleaded guilty in 2019 to unlawful possession of a firearm. 18 U.S.C. § 922(g)(1). The district court sentenced him to 21 months in prison, followed by three years of supervised release. Whiteside began serving his term of supervision in 2021. Under the conditions of his supervised release, he was prohibited from committing another federal, state, or local crime; possessing a controlled substance; and possessing a firearm. The conditions also required him to maintain lawful employment, notify his probation officer of any change in job, and participate in substance-abuse treatment.

Over the term of Whiteside's supervised release, his probation officer reported him three times to the court for various violations. First, in late 2021, the officer petitioned the court to require Whiteside to enter a residential reentry program because he had admitted to unlawful drug use and failed to appear for drug testing. The court granted the petition. Second, a few months later, the probation officer reported new violations. This petition explained that the residential reentry center had discharged Whiteside for violating its rules, Whiteside failed to submit monthly reports to the probation officer, he quit his job without permission, and he tested positive for illegal drug use. At the revocation hearing, the court said that Whiteside deserved revocation and a 12-to-18-month prison sentence. But it offered a "bit of lenience to see if [Whiteside could] correct himself." It continued the review of his supervised release for 90 days, warning that he would receive a sentence of "at least a year" if he committed any more violations and explaining that it was "looking to see .. zero violations" in that period.

Two months later, the probation officer filed the third petition the subject of this appeal, reporting that Whiteside had again violated his supervision terms. The petition, which the officer signed under penalty of perjury, stated that Whiteside had been charged in a Wisconsin state criminal complaint with two felony charges. These were recklessly endangering safety through use of a dangerous weapon and illegal possession of a firearm as a convicted felon. To support the petition's allegations about the state charges, the officer described a surveillance video that captured two people firing gunshots into the air, and the officer identified Whiteside in at least one of the still images from the video. The petition also asserted that, after arresting Whiteside, local police searched his home and found "a firearm, along with suspected marijuana and ecstasy and some cash." Finally, the petition reported other violations of Whiteside's conditions of release: He had been fired from his job and had lied about his employment status on his monthly report to the probation officer.

The district court held a combined revocation and sentencing hearing. Near the start of the hearing, the government explained that it would not use live witnesses to support the pending state charges but was instead resting on the evidence "noted" in the petition for that charge:

GOVERNMENT: Your Honor, there's also an allegation noted in [the petition] that the defendant committed a new crime. He's been charged in Dane County Circuit Case No. 22-CF-1151 with second-degree reckless endangering safety-use of a dangerous weapon and possession of a firearm as a convicted felon. The government is not going to be putting on any witnesses regarding that case or that allegation, but it is noted in the [petition]. ..

COURT: .[S]o if I understand correctly, you're really not pressing the violation based on the new criminal conduct.

GOVERNMENT: No, Your Honor. It's a continued pattern of refusal to comply with the conditions.

COURT: All right.

The court then asked Whiteside's counsel if Whiteside stipulated to the violations of the supervision conditions, and counsel replied that Whiteside did, except for the alleged state charges. Counsel acknowledged that, although the court's consideration of those charges could yield a higher sentence upon revocation, Whiteside would save his "powder" for the state trial:

I guess there are two tracks you could take here. I think if you were including the new criminal conduct, I could see 18 months making sense. Although Mr. Whiteside doesn't have a lot to say about that, and we're saving our powder, I guess, for the actual state case, I guess I could understand the 18 months.

At the hearing's end, the court revoked Whiteside's supervision. It explained that Whiteside's conduct "warrant[ed] revocation" because the petition included "very disturbing allegations about the new criminal activity[,]" alongside "the history of additional violations that continued[.]" The court reasoned that it could and would consider the petition's evidence supporting the state's firearm charges:

[A]lthough the government isn't pressing it, I think it would really be dishonest for me to say that I'm not going to consider the new criminal conduct. Now, I'm always cautious about this, and I completely understand the defense perspective that you don't want to concede those charges, you don't want to say anything that would jeopardize another criminal prosecution. All very understandable. But, of course, I don't have to decide anything beyond a reasonable doubt that would establish a criminal conviction, and I can rely on hearsay. So I don't really need the government's witnesses on the point, and I have the probation ... report. You know, Docket No. 34 has [the probation officer's] representation that he looked at the video and that he saw Mr. Whiteside there, and so I can find to a preponderance of the evidence that there was new criminal conduct committed by Mr. Whiteside.

The court concluded that the evidence in the petition showed "not only to a preponderance but really quite compelling[ly]" that Whiteside had possessed a firearm and discharged it, which violated his supervision conditions. In revoking Whiteside's supervised release, it sentenced him under the Sentencing Guidelines to 18 months in prison, as his counsel had anticipated, followed by an additional 18 months of supervised release. Before the court finished, it asked the parties if they had anything further they wanted the court to address, and Whiteside's counsel only requested prerelease placement in a residential reentry center and clarified his custody credits. He raised no further issues. Whiteside now appeals.

On appeal, Whiteside contends that the court's reliance on the evidence about state charges violated his right to due process in the Fifth Amendment. First, Whiteside argues, he lacked notice because the government's decision not to use live witnesses suggested that the court would not consider the state charges at all. Next, Whiteside adds, he did not receive a meaningful opportunity to be heard because he opted against contesting the state charges based on the government's statements. Finally, Whiteside asserts, the court denied him the chance to confront adverse witnesses when it relied on the petition, which he considers unpersuasive hearsay evidence that he had committed a new crime.

The government responds that Whiteside waived his right to contest the court's consideration of the petition's evidence of the state charges when he decided as a matter of strategy to reserve his opposition to the charges for state trial. In the alternative, the government continues, the court did not err by considering the evidence supporting those allegations. In the government's view, Whiteside was on notice of the allegations and the supporting evidence because they were in the revocation petition, and the court could rely upon the probation officer's statements in the petition because they were sufficiently reliable.

We begin our analysis with waiver, which we conclude applies here. Waiver precludes appellate review, and it applies when a criminal defendant intentionally decides not to present an argument as a matter of strategy. United States v Falls, 960 F.3d 442, 447 (7th Cir. 2020). We construe waiver principles liberally in favor of criminal defendants, United States v. Canfield, 2 F.4th 622, 626-27 (7th Cir. 2021), but even so, the record shows that Whiteside knowingly and intelligently decided not to contest in the district court the...