2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-18-2013

USA v. John Stroud

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3207

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Recommended Citation

"USA v. John Stroud" (2013). 2013 Decisions. Paper 1505.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3207

____________

UNITED STATES OF AMERICA

v.

JOHN STROUD, a/k/a Johnnie Stroud

John Stroud,

 Appellant

____________

On Appeal from United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-07-cr-00392-001) 

District Judge: Honorable Juan R. Sanchez

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 29, 2013

Before: FISHER, JORDAN and SLOVITER, Circuit Judges.

(Filed: November 18, 2013)

____________

OPINION

____________

FISHER, Circuit Judge.
2

Defendant John Stroud appeals the judgment of the United States District Court 

for the Eastern District of Pennsylvania imposing a 24-month sentence for violation of 

the terms of his supervised release. For the reasons that follow, we will affirm.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On July 12, 2007, a grand jury in the Eastern District of Pennsylvania returned an 

indictment charging Stroud with: dealing in counterfeit currency, in violation of 18 

U.S.C. § 473; possession of counterfeit currency, in violation of 18 U.S.C. § 472; and 

manufacturing counterfeit currency, in violation of 18 U.S.C. § 471 (collectively, the 

“2007 charges”). On September 7, 2007, Stroud pled guilty to all counts. On January 30, 

2008, the District Court sentenced Stroud to 37 months’ imprisonment to be followed by 

three years of supervised release. 

On May 6, 2011, Stroud began serving the three-year period of supervised release 

on the 2007 charges. On February 9, 2012, while still on supervised release, Stroud was 

indicted in the Eastern District of Pennsylvania on new charges of manufacturing 

counterfeit currency, possession of counterfeit currency, and dealing in counterfeit 

currency (collectively, the “2012 charges”). On February 9, 2012, an arrest warrant was 

issued based upon the 2012 charges and Stroud was arrested. On February 10, 2012, 
3

Stroud was detained pending a detention hearing. On February 13, 2012, the Probation 

Office filed a petition for revocation of Stroud’s supervised release on the 2007 charges 

based upon the 2012 charges and his subsequent arrest. 

On March 8, 2012, Stroud pled guilty to all of the 2012 charges. During the plea 

hearing, Stroud told the court that he understood that the guilty plea could result in a 

violation of his supervised release stemming from the 2007 charges. Stroud also 

acknowledged that due to his violation of supervised release he would be required to 

appear at a revocation hearing. On July 10, 2012, Stroud was sentenced to 41 months’ 

imprisonment and three years of supervised release for the 2012 charges.

The record indicates that Stroud and his counsel were provided written notice of 

the alleged violation of supervised release on two separate occasions. The first notice 

was dated June 18, 2012, and the second notice, informing Stroud that the hearing had 

been rescheduled for July 12, 2012, was dated July 2, 2012. The record further shows 

that both notices indicated that the petition of the probation officer charging Stroud with 

violating his supervised release was attached to the delivered notices. Both notices were 

mailed to Stroud at his place of detention, the Federal Detention Center of Philadelphia.

On July 12, 2012 Stroud appeared before the District Court at a revocation hearing 

for the violation of his supervised release on the 2007 charges. At the hearing, Stroud’s 

July 10, 2012 judgment was presented to the Court to prove his violation of supervised 

release. Stroud did not contest the alleged violation, and he made no claim at the hearing 
4

that he had not received written notice of the violation of his supervised release or the 

Probation Officer’s petition. At the hearing, Stroud availed himself of his right of 

allocution. The District Court revoked Stroud’s supervised release from the 2007 charges 

and sentenced him to 24 months’ imprisonment to run consecutive to his 41-month 

sentence from the 2012 charges.

By letter dated July 23, 2012 and received by the District Court on July 25, 2012, 

Stroud alleged for the first time that he had not received written notice of the alleged 

violation of his supervised release and requested that an appeal be filed from the order 

revoking his supervised release. On August 3, 2012, a timely notice of appeal was filed.1

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 

jurisdiction under 28 U.S.C. § 1291. We review objections not preserved before the 

District Court for plain error. United States v. Boone, 279, F.3d 163, 174 n.6 (3d Cir. 

2002) (citing United States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000)); see also Puckett 

v. United States, 556 U.S. 129, 135 (2009) (unpreserved errors are reviewable for plain 

error, pursuant to Fed. R. Crim. P. 52); United States v. Adams, 252 F.3d 276, 284 (3d

 

1 We note that, because the order being appealed was entered on July 23, 2012, 

Stroud’s appeal was timely despite the fifteen-day gap between the date the order was 

signed, July 19, 2012, and the date the notice of appeal was filed, August 3, 2012. See

United States v. Fiorelli, 337 F.3d 282, 287 (3d Cir. 2003) (acknowledging that “although 

an order may be signed by the district court, received by the clerk, and entered in the 

docket on different days, the entry date controls”). 
5

Cir. 2001) (acknowledging the “applicability of Rule 52(b) on direct appeal of a criminal 

conviction when no objection was raised in the district court”).

III.

Stroud argues that because he did not receive written notice of his violation of 

supervised release and the record provides no proof of notice, the judgment and sentence 

for the violation should be vacated and a new hearing granted.2 Stroud contends that the 

alleged failure to provide written notice of the violation of supervised release is a 

violation of both due process and the requirements of Fed. R. Crim. P. 32.1. Stroud’s 

argument is without merit.

When a defendant fails to properly raise an objection and preserve the issue for 

appeal, it becomes the defendant’s burden to establish that plain error occurred. United 

States v. Olano, 507 U.S. 725, 734-35 (1993). The plain error standard requires that:

[B]efore an appellate court can correct an error not raised at trial, there 

must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. 

If all three conditions are met, an appellate court may then exercise its 

discretion to notice a forfeited error, but only if (4) the error seriously 

affect[s] the fairness, integrity, or public reputation of judicial proceedings.

United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (quoting Johnson v. United 

States, 520 U.S. 461, 466-67 (1997)). For this Court to find plain error, Stroud must 

 

2

Stroud also mentions in his brief that he did not receive a preliminary hearing on 

the violation of supervised release. Fed. R. Crim. P. 32.1(b)(1)(A) provides that such a 

hearing may be waived. The record shows that Stroud did not request a preliminary 

hearing. Further, on appeal Stroud does not claim the absence of such a hearing as the 

basis for reversal. Accordingly, the claim is waived. See Mitchell v. Cellone, 389 F.3d 86, 

92 (3d Cir. 2004) (noting that issues not addressed in brief are waived on appeal).
6

establish that the alleged failure to provide written notice of his violation of supervised 

release constitutes plain error and that the error affected a substantial right. Stroud fails 

to meet this burden.3

Federal Rule of Criminal Procedure 32.1(b)(2)(A) provides that a person is 

entitled to written notice of the alleged violation of supervised release. Stroud contends 

that because the record provides no actual proof that he received written notice this court 

must presume that no notice was given. The record clearly indicates, however, that on 

February 13, 2012, the Probation Office filed on the court docket a petition for revocation 

of Stroud’s supervised release based upon the 2012 charges and his arrest for those 

charges. The record further shows that on two separate occasions—June 18, 2012 and 

July 2, 2012—Stroud and his counsel were provided notice of the revocation hearing. 

Both notices indicated that a copy of the Probation Office’s petition was attached. We 

apply a presumption of regularity to court proceedings. See United States v. Jones, 332 

F.3d 688, 698 (3d Cir. 2003) (holding that, absent evidence to the contrary, court 

proceedings are presumed to be procedurally proper). In order to establish that plain 

error has occurred, Stroud must prove that he never received the notices reflected in the 

 

3

Even if the Court assumed that plain error occurred, Stroud’s appeal would still 

fail. Stroud fails to satisfy the fourth prong requiring that the alleged plain error seriously 

affected the fairness and integrity of the judicial proceedings. Vazquez, 271 F.3d at 99. 

The Supreme Court has made clear that “the plain-error exception . . . is to be ‘used 

sparingly, solely in those circumstances in which a miscarriage of justice would 

otherwise result.’” United States v. Young, 470 U.S. 1, 15 (1985) (citation omitted). 

Stroud has failed to show that such injustice occurred in this case.
7

record, and he has offered no such proof. Accordingly, Stroud’s contention that the 

record fails to show that he was provided notice and thus that plain error occurred is 

without merit. 

Although we are satisfied that notice was provided, even if we were to presume it 

was not, Stroud fails to show that the alleged plain error affected a substantial right. The 

notices sent to Stroud, which he claims he did not receive, did not provide any 

information of which Stroud was not already aware. The record shows that during his 

guilty plea hearing on the 2012 charges Stroud was told that his plea could result in the 

violation of his previously imposed supervised release. Stroud was also notified that such 

a violation would require him to appear at a revocation hearing. Further, during the 

revocation hearing Stroud was afforded, and availed himself of, the right of allocution. 

At that time, Stroud asked the District Court for leniency, and also made an effort to 

explain why he committed the crimes underlying the 2012 charges. Therefore, even if we 

were to accept that notice was not given, which we do not, Stroud fails to show that a 

substantial right was affected by the lack of notice. 

Stroud fails to establish the existence of plain error and that the alleged error 

affected a substantial right. Accordingly his request that the judgment and sentence be 

set aside is without merit. 
8

IV.

For the reasons set forth above, we will affirm the order of the District Court.