IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-50043 ___________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

DANNY LEON STANDEFER Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for the Western District of Texas ________________________________________________ January 15, 1996 Before WISDOM, GARWOOD and JONES, Circuit Judges.*

GARWOOD, Circuit Judge:

Appellant-defendant Danny Leon Standefer (Standefer) appeals

the revocation of his supervised release. Because we find that the

evidence was insufficient to support revocation, we reverse.

Facts and Proceedings Below

On July 14, 1989, Standefer pleaded guilty to drug and firearm

charges before the United States District Court for the Western

District of Texas pursuant to a plea agreement and was sentenced to

serve two concurrent twenty-one month sentences, three years of

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. supervised release and fines totaling $7,100. Following his

release in June 1990, after completing service of the confinement

portion of his sentence, Standefer began serving his supervised

release in the Eastern District of Oklahoma.

On January 21, 1992, a Petition on Probation and Supervised

Release was filed in the district court by probation officer Jack

R. Skaggs (Skaggs) requesting that a warrant be issued for

Standefer’s arrest for violating the conditions of his supervised

release.1 The filing of the petition caused the district court to

order that a warrant be issued for Standefer’s arrest. Standefer

was arrested by the United States Marshal’s Service in Vanderwagen,

New Mexico on May 3, 1994. In November 1994, Standefer pleaded

guilty to one count of controlled substance manufacture in

violation of

before the United States District

Court for the Western District of Oklahoma. Meanwhile, the United

States District Court for the Western District of Texas set a

revocation hearing for January 4, 1995.

1 The petition alleged the following violations:

“The defendant has been charged in Case No. CRF91-156, District Court for Pushmataha County, Oklahoma, with (1) Trafficking Drugs/Amphetamine; (2) Tax Stamp Violation (Amphetamine); and, (3) Eluding Police Officer; said offenses having occurred on or about 11-29-91. A warrant has been issued for his arrest in that case. The defendant has not reported to his probation officer, Jack Skaggs, for the month of December, 1991, and his present whereabouts are unknown.”

2 At the revocation hearing, the government read the charges

alleged in the petition to which Standefer pleaded “not true.” The

government’s sole witness was Ken Beene (Beene), a supervisor in

the federal probation office in Austin, Texas. Beene testified

that while he had not dealt personally with Standefer, he had been

informed of the charges contained in the petition by Skaggs, and

had subsequently been informed of Standefer’s conviction in the

Western District of Oklahoma by probation officer Marcie Gray

(Gray). The government introduced a copy of the judgment obtained

in the Western District of Oklahoma, and Beene testified that he

believed that the offense contained in the judgment was based upon

the same conduct as the offenses alleged in the revocation

petition. Beene expressed the same belief on cross-examination

even when Standefer’s counsel noted that the conduct described in

the revocation petition was alleged to have occurred on or about

November 29, 1991 while the conduct which formed the basis of the

federal conviction in Oklahoma was alleged to have concluded

November 29, 1994.2

At the close of the government’s case-in-chief, Standefer’s

attorney requested a brief recess in order to obtain a copy of the

superseding information on which the judgment in the Western

District of Oklahoma rested in order to demonstrate that the

underlying conduct was distinct from that alleged in the revocation

2 Although the judgment reflected that the offense charged had concluded on November 29, 1994, the superseding information introduced in evidence by the defense alleges that the underlying conduct occurred “on or about November 29, 1993.”

3 petition. Following the recess, the government conceded that this

was in fact the case. At that time, the government moved “to

orally amend and use the information before the court now as the

basis for revocation.” The district court granted the government’s

motion over the objections of Standefer’s counsel.3 Relying on

Standefer’s conviction in the Western District of Oklahoma and his

“fugitive status,” the district court ordered the revocation of

Standefer’s supervised release.4

3 The defense urged that the petition be dismissed, objecting on the grounds that the government could not amend the petition after the supervised release term had expired. The government suggested that the running of the supervised release period should be tolled for the period that Standefer was a fugitive, and introduced a copy of the Marshal’s Report of Standefer’s arrest as evidence that Standefer had been a fugitive from the time that the district court issued the arrest warrant until his arrest on May 3, 1994. Defense counsel also objected on the grounds that written notice of the alleged violation was required under Fed. R. Crim. P. 32.1 (a)(2)(A) and in order to comport with due process. Standefer’s counsel further argued that the only evidence presented in support of revocation had been hearsay which had been demonstrated to be unreliable. 4 The district court stated its findings in support of revocation as follows:

“The court, having reviewed the evidence in this case, the court has reviewed the judgment out of Oklahoma . . . Has reviewed that, and based upon those considerations and information brought to the attention [sic] at this hearing this morning, it’s the judgment of this court and the court finds that pursuant to the Sentencing Reform Act of 1984, the defendant, Danny Leon Standefer, is ordered committed to the custody of the Bureau of Prisons to serve a term of imprisonment of eighteen months.

This sentence is ordered to run consecutive to the sentence ordered in CR 94101-C, which represented the violation behavior [the

4 Standefer now appeals the revocation of his supervised release

on the grounds that (1) the government failed to prove any of the

allegations contained in the original petition; and (2) the oral

amendment granted by the district court at the revocation hearing

deprived him of the notice to which he was entitled under Fed. R.

Crim. P. 32.1 (a)(1)(A) and by due process.

Discussion

We review the district court’s decision to revoke supervised

release for abuse of discretion. United States v. McCormick,

(5th Cir. 1995, cert. denied,

(1995).

In a revocation proceeding, the government has the burden to

prove that the releasee committed the alleged violation of the

conditions of release by a preponderance of the evidence.

(e)(3); United States v. Alaniz-Alaniz,

(5th Cir. 1994), cert. denied,

(1995). In

reviewing the sufficiency of the evidence, we “‘must view the

evidence and all reasonable inferences that may be drawn from the

evidence in a light most favorable to the government.’” Id.

(quoting United States v. Prieto-Tejas,

(5th

Cir. 1986)). “The evidence is sufficient if a reasonable trier of

fact could reach the conclusion being challenged.”

(footnote

omitted).

Western District of Oklahoma case], or at least the——part of the violation behavior. I think the fugitive status is what the court is basing its revocation upon.”

5 It is undisputed that the government failed to produce any

evidence of the criminal charges alleged in the revocation

petition. Nonetheless, the government contends that there is

sufficient evidence in the record to support revocation either on

the basis of Standefer’s fugitive status as alleged in the

petition, or on the basis of his guilty plea in the Western

District of Oklahoma pursuant to the oral amendment. We disagree.

A. Fugitive Status

The government asserts that the district court’s revocation of

Standefer’s supervised release based upon his fugitive status was

supported by the following: (1) the district court issued a warrant

in January 1992 in response to Skaggs’ allegations that Standefer

had failed to report for the month of December 1991 and his

whereabouts were unknown; and (2) this warrant remained unexecuted

until Standefer’s arrest in New Mexico in May 1994 as evidenced by

the Marshal’s Report entered in evidence by the government.

Therefore, the government contends that the district court could

reasonably infer that Standefer had been a fugitive from the date

that the warrant was issued until the date of his arrest in New

Mexico. The government concludes that these facts necessarily

establish that Standefer violated the conditions of his supervised

release that he not leave the judicial district without permission

(Condition Two), make a written report within the first five days

of each month (Condition Three), and notify the probation office

within seventy-two hours of changing his residence (Condition

Seven).

6 The district court possesses considerable latitude in the

types of evidence it may consider in a revocation hearing as

compared with a criminal prosecution. See Morrissey v. Brewer,

(1972) (parole revocation hearing “should be

flexible enough to consider evidence including letters, affidavits,

and other material that would not be admissible in an adversary

criminal trial”). However, the government failed to introduce

sufficient evidence of Standefer’s fugitive status even under this

relaxed standard of admissibility.

Neither the bare allegations contained in the petition nor the

warrant itself constitute evidence in any sense. Even assuming

that they could properly be considered, they were never offered in

evidence. Furthermore, despite the allegations in the petition

that Standefer’s “whereabouts [were] unknown,” we find no evidence

of this fact in the revocation hearing record.

The only piece of evidence introduced by the government in

this regard was a copy of the Marshal’s Report of Standefer’s

arrest in New Mexico in May 1994.5 This report alone establishes

no violation of the conditions of Standefer’s supervised release

because there is no evidence of when Standefer left the judicial

district to go to New Mexico. The report makes no reference to any

warrant (or to the revocation petition); nor does it otherwise give

any indication whatever of how long (prior to May 1994) Standefer

5 Although the government argued at the revocation hearing that Beene’s testimony was evidence that Standefer had been a fugitive, it concedes in its brief that Beene’s testimony provides no evidence on this point.

7 had been a fugitive. It is entirely plausible that Standefer left

the judicial district after the expiration of the supervised

release period in June 1993. The fact that he pleaded guilty to

charges based upon conduct alleged to have occurred in Oklahoma in

November 1993 tends to support this conclusion. Nothing suggests

the contrary.

The dearth of evidence in the record on this point leads us to

reject the district court’s finding that Standefer’s supervised

release should be revoked based upon his fugitive status.

B. 1994 Conviction

The government contends that even if the evidence were

insufficient to support revocation of Standefer’s supervised

release on one of the bases alleged in the original petition,

Standefer’s guilty plea before the Western District of Oklahoma

constituted adequate grounds for the district court’s decision.

We reject this contention.

The oral amendment allowed by the district court so that the

guilty plea might be considered as a basis for revoking Standefer’s

supervised release fails to comport with the requirement of

“written notice of the alleged violation” mandated by Fed. R. Crim.

P. 32.1 (a)(1)(A). Indeed, it is questionable whether Standefer

was afforded any notice at all as the government did not specify

the basis of the oral amendment, but simply stated that it wished

to “use the information before the court now as a basis for

revocation.” The government suggests that allowing the oral

amendment was harmless error because: (1) Standefer knew that he

8 pleaded guilty to the controlled substance manufacture charge; and

(2) his counsel raised the defense that the guilty plea fell

outside of the supervised release period at the revocation hearing.

The government’s first harmless error argument falls wide of

the mark because the issue is not whether Standefer knew that he

pleaded guilty to the controlled substance manufacture charge, but

rather whether he knew that that guilty plea or that offense was to

be the basis for revocation of his supervised release. Therefore,

even if we could excuse the lack of written notice, Standefer was

not afforded meaningful notice of any sort as to the violations

against which he was required to defend. Nor does the fact that

Standefer’s counsel was able to articulate some defense to the

amendment necessarily lead to the conclusion that the error was

harmless.

However, we need not rest our decision on this ground alone.

It is undisputed that the conduct for which Standefer pleaded

guilty in the Western District of Oklahoma occurred in November

1993 while his original supervised release term was to have ended

in June 1993. The government, relying on United States v. Crane,

(9th Cir. 1992), argues that the district court

could properly consider Standefer’s guilty plea in revoking his

supervised release because the running of the supervised release

period was tolled for the period that Standefer was a fugitive. We,

too, have previously recognized that the running of a probationary

term may be tolled by the flight of a probationer. See United

States v. Fisher,

(5th Cir. 1990), cert. denied,

9

(1990) (probationary term tolled for period during

which probationer not under supervision due to own misconduct).

Yet it necessarily follows from our conclusion that the government

failed to establish Standefer’s fugitive status for purposes of

revocation that the government cannot receive the benefit of this

rule. There is no evidence that Standefer became a fugitive before

July 1993. Therefore, the district court could not properly

consider Standefer’s guilty plea in revoking his supervised

release.

Because we find that the government failed to introduce

sufficient evidence of the alleged violations, we are forced to

conclude that the district court abused its discretion in revoking

Standefer’s supervised release.

The judgment of revocation is REVERSED.

10