United States v. David Irvin , 431 F. App'x 142 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4232
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UNITED STATES OF AMERICA
v.
DAVID IRVIN,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-03-cr-00207-001)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit LAR 34.1(a)
May 27, 2011
Before: McKEE, Chief Judge, SCIRICA and RENDELL, Circuit Judges
(Opinion Filed June 14, 2011)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant David Irvin appeals an order of the District Court revoking his
supervised release. Irvin‟s counsel filed a brief arguing that all of the potential issues for
appeal are frivolous and requesting permission to withdraw under Anders v. California,
386 U.S. 738 (1967). We disagree with counsel‟s assessment of Irvin‟s appeal and,
following the procedure outlined in United States v. Youla, 241 F.3d 296, 302 (3d Cir.
2001), will discharge current counsel, appoint substitute counsel, restore the case to the
calendar, and order supplemental briefing in accordance with this opinion.
I.
After entering a guilty plea on a charge of possession of a stolen firearm in
violation of 18 U.S.C. § 922(j), Irvin was sentenced to 57 months in prison, to be
followed by three-year term of supervised release. He was released from prison, and
entered supervised release, on November 1, 2007. A general condition of Irvin‟s release
was that he not commit another federal, state, or local crime. On June 8, 2010, the United
States Probation Office petitioned for revocation of Irvin‟s release for violating that
condition based on Irvin‟s May 27, 2010 arrest and subsequent state-law charge with
delivery of a controlled substance and criminal use of a communication facility.
The District Court held a revocation hearing on October 13, 2010. The
government presented criminal complaints and dockets from the Dauphin County Court
of Common Pleas documenting charges arising out of the May 27 arrest and another,
earlier arrest, also involving drugs. One of the complaints includes a probable-cause
affidavit from a narcotics agent. The government did not present testimony from the
probation officer, the narcotics agent, or from any officer who was involved in the
underlying arrests. Irvin testified at the hearing that he did not commit the crimes, and
defense counsel argued that the documents presented by the government were insufficient
to meet the government‟s burden of proof because, among other things, Irvin had no
opportunity to cross-examine the arresting officers. The District Court disagreed and
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issued an order revoking Irvin‟s supervised release and sentencing him to another 24
months in prison.
Irvin appealed the revocation order to our Court. His attorney filed an Anders
brief identifying only one issue for appeal: whether the government presented sufficient
evidence at the hearing to support the District Court‟s revocation order. In two-and-a-
half pages of argument, the attorney concluded that the issue was frivolous because “the
real issue is that the evidence must be reliable,” Appellant‟s Br. 10 (citing United States
v. Stephenson, 928 F.2d 728, 733 (6th Cir. 1991)), and, in this case, “[t]here is no
question that” the criminal complaints and docket information the government presented
“is reliable,” id. at 11. The attorney noted, further, that he “could have attempted to call
the police officers and any informants involved” in the May 27 and April 9 arrests, id.,
but that the officers‟ testimony “would have undoubtedly been consistent with the
information that was provided in the Affidavits of Probable Cause and Criminal
Complaint” and the informants “would probably not have been required to testify by the
Lower Court,” id. at 12. Irvin‟s counsel subsequently moved to withdraw from his
representation. Irvin has not filed a pro se brief in support of his appeal.
II.
When counsel submits an Anders brief, our inquiry is “twofold: (1) whether
counsel adequately fulfilled the rule‟s requirements; and (2) whether an independent
review of the record presents any nonfrivolous issues.” Youla, 241 F.3d at 300. The
Anders brief in this case founders on both prongs.
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First, counsel‟s brief is woefully inadequate. For one thing, it is difficult to tell
from this record (which, unlike in Youla, does not contain a helpful pro se brief) whether
counsel has identified all of the possible issues for appeal. And, more importantly, it is
clear that he did not urge what appears to us to be the best argument on appeal, namely
the lack of reliable evidence to support the conclusion that Irvin had committed another
crime. Counsel‟s unsupported speculation about what may or may not have happened if
he had “attempted to call the police officers and any informants involved” in the incidents
that the District Court ultimately found justified the revocation of Irvin‟s supervised
release is clearly insufficient. Furthermore, the two-and-a-half page argument section
does not cite any cases from this Court or even mention Irvin‟s right to cross-examine
those officers, even though counsel presumably was aware of that right, since he alluded
to it during the revocation hearing. In short, here, as in Youla and in United States v.
Marvin, 211 F.3d 778, 781 (3d Cir. 2000), “[c]ounsel simply has not provided sufficient
indicia that he thoroughly searched the record and the law in service of his client.”
Second, we are unwilling to conclude that Irvin‟s appeal is frivolous in light of the
Federal Rules of Criminal Procedure that govern revocation hearings and our decision in
United States v. Lloyd, 566 F.3d 341 (3d Cir. 2009). In Lloyd, we explained that
defendants in revocation procedures enjoy limited due-process rights to confront and
cross-examine adverse witnesses. Id. at 343 (citing and quoting Morrissey v. Brewer,
408 U.S. 471, 488-89 (1972)). We observed that the Federal Rules of Criminal
Procedure specifically guarantee such defendants “„an opportunity to appear, present
evidence, and question any adverse witness unless the court determines that the interest
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of justice does not require the witness to appear.‟” Id. (quoting Fed. R. Crim. P.
32.1(b)(2)(c) (emphasis added)). And we held a district court must weigh “[t]he
reliability of proffered hearsay” against “the releasee‟s interest in confrontation” when
considering whether a particular defendant has a right to cross-examine adverse witnesses
in a particular case. Id. at 344-45. In this case, as in Lloyd, the District Court revoked
Irvin‟s supervised release based on documents proffered by the government, without any
live testimony and without considering Irvin‟s interest in confronting the officers or
informants who were involved in his arrests. At a minimum, Lloyd‟s application to this
case raises a colorable issue for appeal, which any attorney representing Irvin must
address.
III.
For the foregoing reasons, we will reject Irvin‟s current counsel‟s Anders brief.
We will grant current counsel‟s motion to withdraw, order the Clerk to discharge him,
appoint substitute counsel, restore the case to the calendar, and set a new briefing
schedule. See Youla, 241 F.3d at 302.
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