United States v. Mohamed Mostafa Ataya , 145 F. App'x 331 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 17, 2005
No. 04-16671 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-60139-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOHAMED MOSTAFA ATAYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 17, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Mohamed Mostafa Ataya appeals the district court’s revocation of his
probation which took place pursuant to 18 U.S.C. § 3565. He makes two
arguments: (1) that he was denied due process because the government neglected
to provide him with exculpatory evidence; and (2) that he was denied due process
when the district court failed to adequately give sufficient reasons for revoking his
probation. Neither of these claims have merit.
We review a district court’s revocation of probation for an abuse of
discretion. See United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We
review issues that were not raised before the district court only for plain error.
United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993).
I.
Ataya was placed on probation after his conviction for dealing in counterfeit
money in violation of 18 U.S.C. § 491(b). The terms of his probation specifically
prohibited him from committing another federal, state or local crime or possessing
a controlled substance. Yet, while on probation, Ataya was arrested in Texas for
possession of marijuana and subsequently convicted. The Texas law enforcement
officer who arrested him, Rocky Barr, testified at his probation revocation hearing
that he not only found marijuana in Ataya’s car, but that he smelled it on Ataya’s
breath and clothing. Based on that evidence, Ataya’s probation was revoked.
2
Ataya now claims that he was denied the due process of law because the
government did not disclose all of the evidence against him. Specifically, he
complains that the government did not provide him with “the results, dates or
records concerning his urinalysis test for drugs”, which apparently were negative.
Had he been given those records in advance of the revocation hearing, Ataya
claims, he would have been better able to impeach Officer Barr and challenge his
allegations that Ataya’s clothing and breath smelled like marijuana.
Revocation hearings “must comport with principles of fundamental
fairness.” United States v. Tyler, 605 F.2d 851, 853 (5th Cir. 1979).1 Thus, a
defendant must be afforded “certain minimal due process requirements” during a
revocation hearing. Frazier, 26 F.3d at 114. Included among these requirements is
the disclosure of the evidence that will be used against him. Fed. R. Crim. P.
32.1(b) (codifying Morrissey v. Brewer, 408 U.S. 471, 489 (92 S. Ct. 2593, 2604
(1972) (parole revocation)).
Since Ataya failed to raise an objection before the district court, we can only
review his due process claim for plain error. Olano, 507 U.S. at 731, 113 S. Ct. at
1776; Fed. R. Crim. P. 52(b). To establish plain error, Ataya must prove: (1) error;
1
In Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
3
(2) that is plain; and (3) that affects substantial rights. Olano, 507 U.S. at 731, 113
S. Ct. at 1776. And we will correct the error only if it “seriously affects the
fairness, inegrity or public reputation of judicial proceedings.” Id. at 736, 113 S.
Ct. at 1779.
There is no plain error here. First, the government did not rely on the results
of drug testing in arguing for a revocation of Ataya’s probation. The basis for the
revocation was not his use of marijuana – rather, that he was charged with
violating a state law by having possessed marijuana. The judgment of conviction
upon which the parole revocation was based was provided and disclosed to him.
For the same reason, the government was under no obligation to provide the court
with the results of his monthly urinalysis testing. Moreover, Ataya does not
demonstrate how the negative drug test reports would have changed the outcome of
the revocation proceedings. Further, Ataya possessed the evidence of his negative
drug testing and could have, with due diligence, introduced this evidence himself.
Therefore, he has not shown plain error, or any error at all.2
II.
2
To the extent that Ataya raises a claim pursuant to Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194 (1963) [suppression by the prosecution of evidence favorable to an accused upon
request violates due process when the evidence is material either to guilt or to punishment],
Brady only applies to criminal prosecutions and not to probation revocation hearings. See
Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-60 (1973).
4
Secondly, Ataya argues that the district court did not give sufficient reasons
for its finding that he had possessed marijuana. He maintains that the district
court’s oral pronouncements violated his due process rights because the court’s
findings should have been written.
Due process requires that an individual facing revocation of probation or
supervised release be provided a written statement by the factfinders indicating the
evidence upon which they relied and their reasons for revoking supervision.
Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604 (parole revocation); see also Gagnon,
411 U.S. at 781-82, 93 S. Ct. at 1759 (applying Morrissey to probation revocation).
We have held, however, that “oral findings, if recorded or transcribed, can
satisfy the requirements of Morrissey when those findings create a record
sufficiently complete to advise the parties and the reviewing court of the reasons
for the revocation of supervised release and the evidence the decision maker relied
upon.” United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994). We
explained that “[w]hen a district court has stated in the record its reasons for
revoking the defendant’s supervised release, and those statements are recorded and
can be transcribed, [there is] no reason to demand that the district court turn its oral
findings into a written order.” Id. at 415.
The district court unambiguously stated its reasons for revoking Ataya’s
5
probation. The court first explained that it did not find Ataya’s testimony to be
credible. The court then concluded that Ataya had possessed marijuana in Houston
on May 14th, and accordingly revoked his probation. These oral findings, which
were stated at the revocation hearing and transcribed, created a record sufficient to
apprise the parties and this Court of its reasoning and the evidence upon which it
relied. See id. at 414. Therefore, the district court did not err, and Ataya cannot
make the showing necessary for plain error review.
For the foregoing reasons, we affirm the district court’s ruling.
AFFIRMED.
6