Jeffrey H. Hunt v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CM-123

JEFFREY H. HUNT, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CMD-20889-12)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued April 22, 2014 Decided December 31, 2014)

Farin Mirvahabi for appellant.

Lauren R. Bates, Assistant United States Attorney, with whom Ronald C.

Machen Jr., United States Attorney, and Elizabeth Trosman and John P.

Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

Before BECKWITH and EASTERLY, Associate Judges, and STEADMAN, Senior

Judge.

BECKWITH, Associate Judge: On December 2, 2012, Appellant Jeffrey Hunt

cut off a global positioning system (GPS) monitoring device that he was required

to wear by his Community Supervision Officer (CSO) of the Court Services and

Offender Supervision Agency. He was convicted after a bench trial of violating

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D.C. Code § 22-1211 (a)(1)(A) (2012 Repl.),1 which makes it a misdemeanor for a

person to “intentionally remove” a GPS device that he or she is “required to wear .

. . as a condition of . . . parole.” On appeal, Mr. Hunt challenges the sufficiency of

the government‟s evidence, contending that the government failed to show that he

was required to wear the GPS device as a “condition” of his parole. We agree, and

we reverse.

I. Legal Framework

In 1997, as part of legislation transferring the District of Columbia prison

system to federal control, Congress transferred the “jurisdiction and authority” of

the Board of Parole of the District of Columbia to the United States Parole

Commission (USPC) and authorized USPC to “impose conditions upon an order of

parole.” D.C. Code § 24-131 (a)(1). USPC has “sole authority . . . to establish the

conditions of release, for all District of Columbia Code prisoners who are serving

sentences for felony offenses, and who are eligible for parole by statute.” 28

C.F.R. § 2.70 (b) (2014). For misdemeanor offenses, conditions of release are

imposed by the Superior Court. D.C. Code § 24-131 (a)(3).

Congress also created the Court Services and Offender Supervision Agency

1

All subsequent statutory references are also to D.C. Code (2012 Repl.).

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(CSOSA) to “carry out the conditions of release imposed by the United States

Parole Commission or, with respect to a misdemeanant, by the Superior Court of

the District of Columbia.” D.C. Code § 24-133 (c)(4). More specifically, CSOSA

“provide[s] supervision, through qualified supervision officers, for offenders on

probation, parole, and supervised release pursuant to the District of Columbia

Official Code.” D.C. Code § 24-133 (c)(1). No statute or regulation provides

CSOSA with the authority to impose conditions of release.

One way in which CSOSA supervises releasees is by issuing “intermediate

sanctions” to encourage compliance with release conditions. D.C. Code § 24-133

(b)(2)(F). CSOSA‟s regulations explain to supervisees how the sanctions operate:

If your CSO has reason to believe that you are failing to

abide by the general or specific conditions of release or

you are engaging in criminal activity, you will be in

violation of the conditions of your supervision. Your

CSO may then impose administrative sanctions (see

paragraph (b) of this section) and/or request a hearing by

the releasing authority. This hearing may result in the

revocation of your release or changes to the conditions of

your release.

28 C.F.R. § 810.3 (a) (2014). “Administrative sanctions available to the CSO”

include daily check-ins, community service, increased group activities, increased

drug testing, drug abuse assessments, residential treatment placement, travel

restrictions, and “[e]lectronic monitoring for a specified period of time.” 28 C.F.R.

4

§ 810.3 (b) (2014). Sanctions “can be applied short of court or USPC approval”

and enable CSOSA to “provide swift, certain, and consistent responses to non-

compliant behavior.” Community Supervision: Administrative Sanctions, 68 Fed.

Reg. 19738-01 (April 22, 2003). “Imposing the sanctions quickly and consistently

may prevent escalation of the offender‟s non-compliant behavior.” Id. In other

words, by issuing sanctions, CSOSA “introduce[s] an accountability structure into

the supervision process” without commencing revocation proceedings or seeking a

hearing for a change in release conditions. Id.

II. Application to Mr. Hunt’s Case

At the time the events took place in 2012, Mr. Hunt was under CSOSA

supervision as a parolee from a 1982 criminal charge. Mili Patel, the CSO in

charge of supervising Mr. Hunt, testified that she “referred” Mr. Hunt for GPS

supervision on August 15 and November 14, 2012. According to Ms. Patel, Mr.

Hunt “was not actually on GPS based on a—on his release conditions” but was

instead required to wear the device as “a graduated sanction.”2

2

When Ms. Patel testified that “we placed him on [GPS monitoring] after

he did something,” the court asked whether “that would make it a condition of his

probation [sic],” to which Ms. Patel responded, “It doesn‟t make it a condition.”

At trial, the government presented no evidence explaining what Mr. Hunt had done

to prompt the CSO to require him to wear the device. At sentencing, the

prosecutor stated that Mr. Hunt had been placed on GPS monitoring because he

(continued…)

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There are two elements to the crime charged under D.C. Code § 22-1211

(a)(1)(A). First, the defendant must be “required to wear a device as a condition of

a protection order, pretrial, presentence, or predisposition release, probation,

supervised release, parole, or commitment, or . . . while incarcerated.” Second, the

defendant must “[i]ntentionally remove or alter the device, or . . . intentionally

interfere with or mask or attempt to interfere with or mask the operation of the

device.”

Mr. Hunt does not dispute that the GPS he was wearing falls within the

statutory definition of “device.” See D.C. Code § 22-1211 (a)(2). Nor does he

dispute that he intentionally removed the device from his body. Mr. Hunt argued

at trial that the government failed to present evidence that GPS monitoring was

authorized as a condition of his parole, as the statute requires. The trial court

found that the GPS was required as part of “a sanction-based agreement that the

person entered into. . . . It was not an original condition of probation.” The trial

court nevertheless concluded that the condition “doesn‟t have to be court ordered”

to fall within the statute; “it can be probation ordered to be required.”

Accordingly, after finding that CSO Patel “required [Mr. Hunt], based on the

(…continued)

“had been in the hospital the day before. He had been found with, I believe, a .25

blood alcohol level in his car.”

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sanctioned-based treatment she entered into with him, to participate in the GPS,”

the court convicted Mr. Hunt of violating D.C. Code § 22-1211 (a)(1)(A).

On appeal, Mr. Hunt reiterates his argument that the government failed to

present sufficient evidence that he was required to wear the GPS device as a

“condition” of his parole. The meaning of the term “condition” is a question of

statutory interpretation that we review de novo. See Tippett v. Daly, 10 A.3d 1123,

1126 (D.C. 2010) (en banc).

In our view, the trial court erred in interpreting D.C. Code § 22-1211 to

include monitoring requirements imposed by CSOSA as sanctions and not just

those imposed by USPC or the Superior Court as release conditions.3 The court

focused solely on whether Mr. Hunt was legally required to wear the GPS, not on

whether it was required as a condition of his parole. We interpret the statute to

comport with the distinction—well established by statute and regulation—between

conditions and sanctions. See Dobyns v. United States, 30 A.3d 155, 159-60 (D.C.

2011) (“Where a legislature „borrows terms of art in which are accumulated the

legal tradition and meanings of centuries of practice, it presumably knows and

adopts the cluster of ideas that were attached to each borrowed word in the body of

3

USPC may impose conditions involving “electronic signaling devices” as

“special conditions” of release pursuant to 28 C.F.R. § 2.204 (b)(2)(iii) (2014).

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learning from which it was taken.‟” (quoting, among other cases, Morissette v.

United States, 342 U.S. 246, 263 (1952))).

As discussed above, the statutory framework here is clear: USPC or the

Superior Court imposes conditions on release and CSOSA monitors compliance

with those conditions. D.C. Code §§ 24-131 (a); -133 (c)(4). CSOSA imposes

administrative sanctions if releasees “are failing to abide by the general or specific

conditions of release,” and sanctions are an alternative to requesting a hearing that

“may result in . . . changes to the conditions of your release.” 28 C.F.R. § 810.3

(a) (2014). Sanctions and conditions are thus distinct concepts, and the criminal

statute here only reaches electronic monitoring “required . . . as a condition.” D.C.

Code § 22-1211 (a)(1). Because the evidence at trial showed that GPS monitoring

was a sanction imposed by CSO Patel, the record contains no evidence that Mr.

Hunt was “required to wear a device as a condition of . . . parole.” Id.

Our interpretation of D.C. Code § 22-1211 does not change when a

releasee‟s conditions of release include a general requirement to comply with a

supervision officer‟s sanctions.4 By its plain language, D.C. Code § 22-1211

4

See, e.g., 28 C.F.R. § 2.204 (a)(6)(vi) (2014), which directs certain

releasees to “submit to the sanctions imposed by the supervision officer” as a

“condition” of release. This regulation applies to District of Columbia parolees

like Mr. Hunt. See 28 C.F.R. 2.85 (a)(1) (2014).

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applies to persons “required to wear a device as a condition . . . of parole,” not to

persons required to wear a device as a sanction who, in removing the device,

violate a different condition requiring compliance with CSO-imposed sanctions.5

Viewing the evidence in the light most favorable to the government, as we

must in a sufficiency challenge, Joiner-Die v. United States, 899 A.2d 762, 764

(D.C. 2006), we cannot conclude that any evidence established that Mr. Hunt was

required to wear the GPS device as a “condition” of his parole. In fact, CSO

Patel‟s testimony indicated the very opposite: his monitoring requirement was not

a condition of release.6

5

Even if the statute might reasonably be given a broader reading than set

forth in this opinion, the rule of lenity would preclude its application here. See

Ruffin v. United States, 76 A.3d 845, 852 (D.C. 2013) (“[C]riminal statutes are to

be strictly construed and should not be interpreted to extend criminal liability

beyond that which [the legislature] has plainly and unmistakenly proscribed.”)

(quoting United States v. Hilton, 701 F.3d 959, 966 (4th Cir. 2012)). Our

interpretation of this criminal statute does not affect USPC‟s ability to initiate

revocation proceedings against individuals who violate sanctions. See 28 C.F.R.

810.3 (c) (2014) (allowing USPC to issue a warrant or summons for parolees in

violation of sanctions); 28 C.F.R. 2.204 (a)(6)(vi) (2014) (allowing USPC to

revoke release based “on the alleged violation(s) [of release conditions] upon

which the graduated sanction was based” when an individual violates sanctions).

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CSO Patel‟s testimony that Mr. Hunt “was in front of the parole

commission a few years back and there was a case plan which did allow us to put

him on GPS if we wanted” does not support a contrary view, as no evidence

suggested that Mr. Hunt‟s case plan included GPS monitoring as a condition or

even that USPC had authorized the case plan.

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III. Conclusion

We reverse the judgment of the trial court and remand with instructions to

enter a judgment of acquittal. See Burks v. United States, 437 U.S. 1, 18 (1978).

So ordered.