13‐3590 United States v. Pauline Wiltshire

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________

August Term, 2014

(Argued: October 16, 2014 Decided: December 1, 2014)

Docket No. 13‐3590 ____________

UNITED STATES OF AMERICA,

Appellee.

–v.–

PAULINE WILTSHIRE,

Defendant‐Appellant,

______________

Before: KEARSE, STRAUB, and WESLEY, Circuit Judges.

______________

Appeal from the United States District Court for the Eastern District of New York (Dora L. Irizarry, J.). On September 20, 2013, the district court convicted Pauline Wiltshire of violating her supervised release by 1) making false statements to a probation officer; and 2) leaving the district of her supervision without permission. Wiltshire was sentenced to ninety days in custody, to be served on weekends, to be followed by five years of supervised release. On May 25, 2014, during the pendency of her appeal, Wiltshire completed her time in custody on the contested adjudication, although her term of supervision had not yet run. For the reasons stated below, we find that Wiltshire’s appeal was not mooted by the expiration of her custodial sentence and that the possibility of a reduced term of supervised release can satisfy Article III’s case‐or‐controversy requirement. We therefore proceed to the merits and AFFIRM the district court’s judgment.

MARK K. McCULLOCH (PATRICK MICHAEL MEGARO, on the brief), Brownstone, P.A., Winter Park, FL, for Defendant‐Appellant.

JUSTIN D. LERER, Assistant United States Attorney (Susan Corkery, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. ______________

PER CURIAM:

Appeal from the United States District Court for the Eastern District of

New York (Dora L. Irizarry, J.). On September 20, 2013, the district court

convicted Pauline Wiltshire of violating her supervised release by 1) making

false statements to a probation officer; and 2) leaving the district of her

supervision without permission. Wiltshire was sentenced to ninety days in

custody, to be served on weekends, to be followed by five years of supervised

release. On May 25, 2014, during the pendency of her appeal, Wiltshire

completed her time in custody on the contested adjudication, although her term

2 of supervision had not yet run. For the reasons stated below, we find that

Wiltshire’s appeal was not mooted by the expiration of her custodial sentence

and that the possibility of a reduced term of supervised release can satisfy Article

III’s case‐or‐controversy requirement. We therefore proceed to the merits and

AFFIRM the district court’s judgment.

BACKGROUND

Pauline Wiltshire pleaded guilty to a one‐count indictment charging

conspiracy to distribute Adderall in violation of

(a)(1) and was

sentenced on April 16, 2012 to time served to be followed by five years of

supervised release—to end in April 2017. Among the conditions of her

supervised release were the following: “The defendant shall not leave the

judicial district without permission of the Court or probation officer,” and “[t]he

defendant shall answer truthfully all inquiries by the probation officer and

follow the instructions of the probation officer.” Wiltshire was permitted to

serve her supervised release term in Ohio. Wiltshire did not inform either the

district court, during her sentencing, or probation, on a standard questionnaire,

that she worked occasionally as an exotic dancer at Platinum Plus in Lexington,

Kentucky. She claimed that she was concerned that such revelations would

3 reflect poorly on her character. On April 18, 2012, Wiltshire traveled from Ohio

to Lexington without the required permission from her probation officer.

On November 5, 2012, Magistrate Judge Pohorelsky issued a Report and

Recommendation finding that Wiltshire had violated the conditions of her

supervision both by falsely stating her employment and by traveling to Kentucky

without permission on April 18, 2012. Judge Irizarry adopted the R&R in its

entirety. On September 20, 2013, Judge Irizarry sentenced Wiltshire to ninety

days in custody to be served on weekends beginning October 18, 2013, followed

by five years of supervised release. Wiltshire appealed. On May 25, 2014, during

the pendency of her appeal, Wiltshire completed her time in custody and began

to serve her term of supervised release.

DISCUSSION

A. Mootness

The Case or Controversy Clause of Article III, Section 2 of the United

States Constitution limits the subject matter jurisdiction of the federal courts such

that the “parties must continue to have a personal stake in the outcome of the

lawsuit.” Lewis v. Cont’l Bank Corp.,

, 477–78 (1990) (internal

quotation marks omitted). To maintain a live case or controversy, “an individual

4 challenging the revocation of his parole—and whose term of re‐incarceration has

expired—bears the burden of demonstrating that some concrete and continuing

injury continues to flow from the fact of the revocation.” United States v. Probber,

(2d Cir. 1999). Jurisdiction will not lie where the alleged injury

is “too speculative to satisfy the case‐or‐controversy requirement of Article III.”

.

In Probber, the district court imposed a term of imprisonment for the

defendant’s violation of supervised release.

. The court did not impose

a new period of supervision.

We held that Probber’s appeal was moot

because the full term of imprisonment—the sole penalty imposed—had been

served before his appeal was heard.

Here, Wiltshire was originally sentenced to five years of supervised release

on April 16, 2012. Absent a violation, the supervised release period would have

run until April 2017. After her violation, Wiltshire was sentenced to ninety days

in custody to be served on weekends beginning October 18, 2013, to be followed

by five years of supervised release. She was released from custody on May 25,

2014, and will be on supervision through May 2019. Accordingly, as a direct

consequence of the district court’s adjudication, Wiltshire will be subject to

5 approximately two more years of supervised release—the time from April 2017

to May 2019. Unlike the penalty in Probber, the time added to Wiltshire’s

supervised release term limits her freedom in a way that is a direct adverse legal

consequence and is sufficient to maintain a live case.1 Wiltshire’s “appeal is not

moot because a favorable appellate decision might prompt the district court to

reduce [her] . . . term of supervised release.” United States v. Kleiner,

,

157 n.1 (2d Cir. 2014).

B. Merits

Having found that we have jurisdiction to review Wiltshire’s appeal, we

proceed to the merits. We review the district court’s finding that Wiltshire

violated the conditions of her supervised release for abuse of discretion and its

factual findings for clear error. United States v. Glenn,

(2d Cir.

2014) (per curiam). A district court may revoke a term of supervised release if it

“finds by a preponderance of the evidence that the defendant violated a

condition of supervised release.”

(e)(3).

1 For example, the terms of Wiltshire’s supervised release require her to, among other things, “not leave the judicial district without the permission of the court or probation officer”, “report to the probation officer”, and “permit a probation officer to visit . . . her at any time at home or elsewhere.” 6 Here, Wiltshire admits the offending conduct: omitting her employment as

an exotic dancer from the probation questionaire and leaving the judicial district

without permission from the district court or probation. However, Wiltshire

argues that the government did not prove that she “willfully violated” the

“ambiguous conditions” of supervision. The district court reviewed the evidence

and disagreed, and its conclusion that Wiltshire’s violation was willful was not

an abuse of discretion.

CONCLUSION

We have considered Wiltshire’s remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is

AFFIRMED.

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