2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-25-2004

USA v. Poellnitz

Precedential or Non-Precedential: Precedential

Docket No. 03-4044

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1

 PRECEDENTIAL 

 

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-4044

 

 UNITED STATES OF AMERICA

v.

SHAWN L. POELLNITZ,

 Appellant

 

On Appeal from the United States

District Court

for the Western District of Pennsylvania

(Dist. Ct. No. 95-cr-00158)

District Judge: Honorable William L.

Standish

 

Submitted Under Third Circuit LAR

34.1(a)

May 14, 2004

Before: NYGAARD, McKEE and

CHERTOFF, Circuit Judges.

(Filed: June 25, 2004)

MARY BETH BUCHANAN

United States Attorney

BONNIE R. SCHLUETER

Assistant U.S. Attorney, Chief of Appeals

Division

LAURA S. IRWIN

Assistant U.S. Attorney

Office of United States Attorney 

700 Grant Street, Suite 400 

Pittsburgh, PA 15219 

Counsel for Appellee 

LISA B. FREELAND

Acting Federal Public Defendner

KAREN S. GERLACH

Assistant Federal Public Defender 

Office of Federal Public Defender 

1001 Liberty Avenue 

1450 Liberty Center 

Pittsburgh, PA 15222 

Counsel for Appellant 

 

OPINION

 

CHERTOFF, Circuit Judge.

Shawn L. Poellnitz appeals from

the District Court’s order finding that he

violated a condition of his supervised

release by committing a state crime.

Poellnitz argues that (1) there was

insufficient evidence to prove that he

committed a state crime, namely because

he pled nolo contendere (instead of guilty)

to the crime in state court and passed a

polygraph test, and (2) the delay between
2

the filing of the supervised release petition

and the supervised release violation

hearingwas not “reasonably necessary,” as

required by 18 U.S.C. § 3583. The

District Court exercised jurisdiction

pursuant to 18 U.S.C. § 3231. This Court

has jurisdiction under 28 U.S.C. § 1291. 

For the reasons stated below, we will

reverse the District Court’s order and

remand for a determination of whether

there is sufficient evidence (under a

preponderance standard) that Poellnitz

committed a crime. 

I.

On November 16, 1995, Poellnitz

pled guilty to engaging in monetary

transactions in property derived from

specified unlawful activity, in violation of

18 U.S.C. § 1957(a), and making a false,

ficticious or fraudulent claim, in violation

of 18 U.S.C. § 287. The District Court

sentenced Poellnitz to 37 months in prison

followed by 3 years of supervised release.1

The terms of the sentence included a

provision that “[w]hile on supervised

release, the defendant shall not commit

any crimes, federal, state, or local and

shall abide by the standard conditions of

supervised release.” App. at 3 (emphasis

added).

Poellnitz was released fromcustody

and began to serve his term of supervised

release on November 19, 1998. The term

of supervised release was set to expire on

November 18, 2001. On November 9,

2001, the United States Probation Office

(USPO) issued a “Status Report/Request

for Warrant in Abeyance.” The letter

reported that Poellnitz was arrested on

June 7, 2001, and charged with indecent

assault, corruption of a minor, and

endangering the welfare of a child. On

November 13, 2001, the probation office

filed a Petition on Supervised Release

(“Petition”), alleging Poellnitz violated

conditions of supervised release and

requesting the court issue a bench warrant

to be held in abeyance until the pending

state charges were resolved. On

November 15, 2001, the District Court

granted the Petition, and on November 16,

2001, the District Court issued the arrest

warrant, to be held in abeyance.

On February 10, 2003, Poellnitz

entered a plea of nolo contendere in the

Court of Common Pleas of Allegheny

County, Pennsylvania, to the charge of

corruption of a minor.2 On February 20,

2003, the USPO filed a Supplemental

Petition on Supervised Release

(“Supplemental Petition”), alleging

violations of the supervised release and

requesting issuance of a summons for

Poellnitz to appear to show cause why the

District Court should not revoke his

supervised release. On February 25, 2003,

the District Court granted the

Supplemental Petition and scheduled the

revocation hearing for April 11, 2003. 

The District Court subsequently sua

1

 Poellnitz received this sentence

for each count, to be served concurrently.

2

 The other counts—indecent

assault and endangering the welfare of a

child—were withdrawn. 
3

sponte rescheduled the hearing on three

occasions: On February 27, 2003, the

hearing was rescheduled for May 2, 2003;

on April 8, 2003, the hearing was again

rescheduled for May 16, 2003; and, on

May 28, 2003, the hearing was again

rescheduled for June 20, 2003. 

Additionally, on July 10, 2003, the

District Court granted Poellnitz a

continuance due to Poellnitz’s health

problems, and the hearing was

rescheduled for July 21, 2003. Similarly,

on two occasions the District Court

granted Government motions to

reschedule because of the unavailability of

Probation Officer Verne Howard: On July

16, 2003, the District Court granted a

motion and reset the hearing for

September 12, 2003; and on July 24, 2003,

the District Court granted a motion

resetting the hearing for September 26,

2003. The hearing ultimately took place

on October 2, 2003. There is no

indication on the docket sheet as to why

the hearing was postponed between

September 26 and October 2.3

In an October 3, 2003 Order, the

District Court found that Poellnitz had

violated a state law while on supervised

release and failed to pay full restitution.

The District Court ordered that the term of

supervised release be reinstated to

commence October 2, 2003, and to run for

a term of five months. On October 9,

2003, the District Court issued an

Amended Order, pursuant to Federal Rule

of Criminal Procedure 35(a).4 In the

Amended Order, the District Court found

Poellnitz guilty of violating a state law

while on supervised release, but contrary

to the original Order did not find him

guilty of failing to pay full restitution.

The Court treated the state law violation as

a grade C violation and, pursuant to 18

U.S.C. § 3583(e)(3) and (h), revoked

Poellnitz’s supervised release and

sentenced him to a term of one month’s

imprisonment, to be served in home

confinement pursuant to 18 U.S.C. §

3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of

the United States Sentencing Guidelines.5

3

 All dates are derived from the

District Court docket entries. See App. at

27-34. 

4

 “(a) Within 7 days after

sentencing, the court may correct a

sentence that resulted from arithmetical,

technical, or other clear error.” Fed. R.

Crim. P. 35(a).

5

 The Notice of Appeal was filed on

October 3, 2003. Pursuant to Federal Rule

of Appellate Procedure 4(b)(5), “[t]he

filing of a notice of appeal under this Rule

4(b) does not divest a district court of

jurisdiction to correct a sentence under

Federal Rule of Criminal Procedure 35(a),

nor does the filing of a motion under 35(a)

affect the validity of a notice of appeal

filed before entry of the order disposing of

the motion.” Fed. R. App. P. 4(b)(5).

Thus, the District Court retained

jurisdiction to amend the judgment. The

Government argues that this appeal

properly flows from the October 9, 2003

Amended Order, and not the October 3

Order, as suggested by Poellnitz. Because
4

II.

Poellnitz argues there was

insufficient evidence to prove that he

violated a condition of his supervised

release by committing a crime because he

pled nolo contendere (rather than guilty)

to the crime charged and passed a

polygraph test. Poellnitz’s challenge to

the propriety of the District Court’s

consideration of a nolo contendere plea as

proper evidence that he committed a crime

in violation of his supervised release is a

question that is “essentially legal in

nature, [and] we will exercise de novo

review.” United States v. Blackston, 940

F.2d 877, 882 (3d Cir. 1991) (citing

United States v. Ortiz, 878 F.2d 125, 126-

27 (3d Cir. 1989)). We conclude that the

District Court erred as a legal matter in

relying on the nolo plea as evidence of

commission of a crime.6

The plain language of 18 U.S.C. §

3583(e)(3) requires a finding by “a

preponderance of the evidence that the

defendant violated a condition of

supervised release.” When the condition

is that the defendant not commit a crime,

there is no requirement of conviction or

even indictment. This Court has

emphasized “the broad discretion which is

traditionally given to district courts to

revoke probation when probation

conditions are violated.” United States v.

Gordon, 961 F.2d 426, 429 (3d Cir. 1992).

A “court can revoke probation when it is

reasonably satisfied that the probation

conditions have been violated, without the

government being required to present

proof beyond a reasonable doubt that the

defendant committed the alleged acts.” Id.

at 429; see also United States v.

Chambers, 429 F.2d 410, 411 (3d Cir.

1970) (citations omitted). In other words,

“to revoke probation it is not necessary

the challenges mounted by Poellnitz are

equally applicable to both orders, the

technical question of which order is being

appealed is not dispositive. However, to

avoid duplicative and unnecessary

litigation, we treat this as an appeal from

the October 9 Amended Order.

6

 We do not address the factual

question of whether there is sufficient

evidence to establish a violation, a

determination that would be reviewed for

clear error. See Blackston, 940 F.2d at

879. Therefore, we need not address

Poellnitz’s argument that in light of the

polygraph examination results indicating

that Poellnitz was truthful in denying

certain alleged activities, the District Court

lacked sufficient evidence to support its

finding of commission of a crime. While

the District Court admitted the polygraph

examination, it concluded that the

examination was not “particularly relevant

. . . because . . . [it] relates to . . . conduct

different from the conduct . . . alleged to

have been the basis for the corruption

charge.” App. at 262. On remand, the

District Court should consider this

evidence, in conjunction with other

evidence in the record, to determine

whether a preponderance of the evidence

supports the conclusion that Poellnitz

committed a crime.
5

that the probationer be adjudged guilty of

a crime, but only that the court be

reasonably satisfied that he has violated

one of the conditions.” United States v.

Manuszak, 532 F.2d 311, 317 (3d Cir.

1976). 

The novel question presented here

is whether Poellnitz’s nolo contendere

plea, without more, is sufficient to

establish that he violated a condition of

supervised release even under the

relatively relaxed burden of proof that

applies. The answer depends upon (1)

what actually constitutes a violation of the

condition of release, and (2) what

significance we attribute to a nolo plea.

The condition of release specified

in the revocation proceeding was that the

“defendant shall not commit any crimes,

federal, state or local.” App. at 3. The

condition was not that defendant shall not

be convicted of another crime. What is

forbidden is illegal conduct, not another

judgment of conviction. In order to

establish that Poellnitz was guilty of a

violation of this condition of release,

therefore, the government did not have to

show that he was convicted of a new

crime, but did have to show that he

actually committed a new crime. In this

case, the District Court’s finding that

Poellnitz committed a new state crime was

not based exclusively or primarily on

evidence of the facts underlying the

alleged new state crime. Rather, the

District Judge treated the nolo plea as the

proof that Poellnitz committed the

underlying crime. See App. at 18. 

In the normal course, one might

expect that if the court finds defendant

was convicted of a crime, the court may

automatically revoke release based on the

defendant’s commission of the underlying

offense. That is not so when it comes to

the peculiar legal effect of the plea of nolo

contendere. While a nolo plea is

indisputably tantamount to a conviction, it

is not necessarily tantamount to an

admission of factual guilt. See United

States v. Adedoyin, No. 02-3042, slip op.

at 8-9 (3d Cir. May 28, 2004); see also

United States v. Wyatt, 762 F.2d 908, 911

(11th Cir. 1985) (holding nolo plea was

not admissible to prove defendant had

admitted his guilt, although the underlying

facts were admissible); United States v.

Graham, 325 F.2d 922, 928 (6th Cir.

1963) (internal citations omitted) (“It is

true that a nolo contendere plea permits a

judgment of conviction and the imposition

of punishment the same as if a plea of

guilty had been made. However, it has

been held that it is not admissible to aid

proof of guilt in another proceeding.”). 

And since the condition of release in this

case was to avoid the commission of a

crime—not to avoid a conviction for a

crime—establishing that Poellnitz was

convicted of a new crime through his plea

is not enough. What matters is whether he

committed that crime as a matter of fact.

Thus, we are obliged to ask whether the

plea that Poellnitz entered can be deemed

to establish underlying guilt, and not

merely the fact of a criminal conviction.

We observe at the outset that the

effect of the nolo plea in question here is

governed by state law. The Federal Rules

of Criminal Procedure and the Federal

Rules of Evidence establish certain
6

limitations on the effect of a nolo plea as

a matter of federal criminal law, or in the

context of federal trials. See Adedoyin,

No. 02-3042, slip op. at 7-8. Here,

however, the nolo plea in question is not a

federal plea, and the rules of evidence do

not apply in a supervised release

proceeding.7 See Fed. R. Ev. 1101(d)(3).

The critical question therefore is

how Pennsylvania law regards the legal

effect of the nolo plea that Poellnitz

entered in response to the state criminal

charge of corrupting a minor. If

Pennsylvania treats such a plea as a

judgment of conviction, but not an

admission of guilt, then that plea was

entitled to no evidentiary weight at the

revocation hearing. Cf. Olsen v. Correiro,

189 F.3d 52, 60 (1st Cir. 1999) (citations

omitted) (“[I]n most jurisdictions,

including Massachusetts, anolo plea is not

a factual admission that the pleader

committed a crime. Rather, it is a

statement of unwillingness to contest the

government’s charges and an acceptance

of the punishment that would be meted out

to a guilty person.”). 

On the other hand, if state law

regards a nolo plea as constituting an

admission or evidence of criminal

conduct, then it was entitled to whatever

weight the District Court chose to give it.

So, for example, in United States v.

Verduzco, 330 F.3d 1182, 1185 (9th Cir.

2003), the Ninth Circuit relied on

California Penal Code § 1016, which

provides that the “legal effect of [a nolo

contendere] plea, to a crime punishable as

a felony, shall be the same as that of a plea

of guilty for all purposes,” in holding that

the District Court properly relied on nolo

plea to find violation of supervised

release. See also United States v.

Guardarrama, 742 F.2d 487 (9th Cir.

1984) (per curiam) (same).8 

A review of the applicable statutes

and case law reveal that in Pennsylvania a

nolo plea does not constitute an admission

of factual guilt, and thus has no

7

 In Adedoyin, the defendant at trial

sought to exclude a California conviction.

We did not, however, examine the

meaning of a nolo plea under California

law. Rather, because federal evidentiary

rules applied, the case was analyzed

pursuant to Federal Rule of Evidence 410.

8

 Several circuit courts have noted

that “[a] certified copy of a conviction is

proper evidence that a defendant violated

a state or federal law and, thereby,

violated a condition of his supervised

release.” United States v. Hofierka, 83

F.3d 357, 363-64 (11th Cir. 1996) (per

curium) (citing cases); see also United

States v. Fleming, 9 F.3d 1253, 1254 (7th

Cir. 1993) (per curium). These cases,

however, deal with an entirely different

situation—instances where the defendant

entered a guilty plea. A nolo plea is an

entirely different species—“a nolo plea is

not a factual admission that the pleader

committed a crime.” Olsen, 189 F.3d at

59. 
7

evidentiary value in assessing whether the

defendant committed a crime. The

Pennsylvania Rules of Evidence

differentiate between the admissibility of

guilty pleas and nolo pleas in subsequent

proceedings:

Except as otherwise

provided in this rule,

evidence of the following is

not, in any civil or criminal

proceeding, admissible

against the defendant who

made the plea or was a

participant in the plea

discussions:

. . . . 

(2) a plea of nolo

contendere

. . . . 

Pa.R.E. 410. The Comment clarifies that

the Rule “does not prohibit the use of a

conviction that results from a plea of nolo

contendere, as distinct from the plea itself,

to impeach in a later proceeding (subject

to Pa.R.E. 609) or to establish an element

of a charge in a later administrative

proceeding.” Pa.R.E. 410 cmt. (citing

Commonwealth v. Snyder, 182 A.2d 495

(Pa. 1962); Eisenberg v. Commonwealth,

516 A.2d 333 (Pa. 1986)).9 Thus, the

Pennsylvania evidence code draws a

distinction between the permissible use of

a nolo plea to prove the fact of conviction

and the impermissible use of a nolo plea as

evidence of guilt in a subsequent

proceeding. 

Unlike its federal counterpart,

Federal Rule of Evidence 410, the

Pennsylvania Rules of Evidence appear to

be equally applicable to revocation

proceedings. See Pa.R.E. 101 (“These

rules of evidence shall govern proceedings

in all courts of the Commonwealth of

Pennsylvania’s unified judicial system,

except as otherwise provided by law.”).

While the revocation proceeding at issue

is a federal proceeding, and thus not

governed by the Pennsylvania Rules of

Evidence, the Pennsylvania Rules provide

substantial support for the conclusion that,

under Pennsylvania law, nolo pleas do not

have any evidentiary value as an

admission of guilt.10 

Pennsylvania case law further

supports this conclusion. Under

Pennsylvania law, “[a]lthough the effect

of a plea of nolo contendere is equivalent

to a plea of guilty, the import of the pleas

9

 Rule 609’s limitations are not

applicable to this case. 

10 As the District Court noted, §

71.4 of the Pennsylvania Administrative

Code provides, in pertinent part, that “[a]

revocation hearing shall be held within

120 days from the date the Board received

official verification of the plea of guilty or

nolo contendere or of the guilty verdict at

the highest trial court level.” 37 Pa. Code

§ 71.4. While this provision may support

the conclusion that a guilty plea and a nolo

plea have the same effect in terms of

triggering a revocation hearing, the

section in no way suggests that both types

of pleas have the same evidentiary value.
8

is not the same. In pleading nolo

contendere; the defendant does not admit

his guilt, but merely consents to being

punished as if he were guilty.”

Commonwealth v. Gunter, 771 A.2d 767,

773 (Pa. 2001) (Cappy, J., concurring)

(citing Commonwealth v. Boyd, 292 A.2d

434, 435 (Pa. Super. 1972); North

Carolina v. Alford, 400 U.S. 25, 35 n.8

(1970); Eisenberg, 516 A.2d at 335).11 

In Eisenberg, the Pennsylvania

Supreme Court explicitly addressed the

question of the effect of a nolo contendere

plea under Pennsylvania law: 

The effect of a nolo

contendere ple a i n

Pennsylvania is concisely

discussed in the leading

case of Commonwealth v.

Ferguson, 44 Pa. Superior

Ct. 626 (1910): 

A plea of nolo contendere,

when accepted by the court,

is, in its effect upon the

case, equivalent to a plea of

guilty. It is an implied

confession of guilt only, and

cannot be used against the

defendant as an admission

in any civil suit for the same

act. The judgment of

conviction follows upon

such plea as well as upon a

plea of guilty.

In 1970, the United States

Supreme Court, in North

Carolina v. Alford, [400

U.S. 25 (1970)] held that

the courts could impose

criminal penalties where a

defendant pleading nolo

contendere specifically

denied guilt of the

underlying facts. . . . The

Alford procedure is

substantially similar to the

practice in Pennsylvania on

nolo contendere pleas.

Eisenberg, 516 A.2d at 335 (internal

citations omitted). 

The Eisenberg court held that an

Alford plea, which is “substantially

similar” to a Pennsylvania nolo plea, was

sufficient to constitute a “conviction”

pursuant to the state statute under which

Eisenberg was charged. 516 A.2d at 336.

In so holding, the court explained that “the

Department here does not attempt to use

the plea as judicial admission of the fact of

fraud. Rather, the conviction entered

upon the plea itself is the operative fact

which authorizes suspension. This

evidence of the conviction itself is not

affected by the procedure leading up to the

plea . . . . ” Id. The Eisenberg court,

however, specifically noted that a nolo

plea is not proper evidence of the

underlying facts of the conviction: 

11

 In Gunter, the Pennsylvania

Supreme Court held that a nolo plea was

involuntary, in part because of the failure

of the colloquy to mention that the

defendant was entering a nolo plea, as

distinct from a guilty plea. 771 A.2d at

771. 
9

A nolo plea to a criminal

charge is not evidence of

either its underlying or

ultimate facts in a later civil

action. It follows as a

corollary that in a civil

action based on the same act

or transaction, the pleader is

not precluded from denying

or contesting the facts of the

transaction by his nolo plea.

Id. at 336 n.6 (internal citations omitted).

The decisions of Pennsylvania’s

lower courts similarly reflect this

distinction between the use of a nolo plea

as evidence of the fact of conviction as

opposed to evidence of the commission of

the underlying crime. For example, in

Strain v. Commonwealth, the court

explained that “our Supreme Court has

upheld the use of a conviction entered on

a plea of nolo contendere as evidence in a

subsequent civil matter where it was the

fact of conviction, not the plea, that was

the operative fact relied upon.” 784 A.2d

845, 848 (Pa. Cmwlth. Ct. 2001) (citing

Eisenberg). The Strain court went on to

explain that in that case “[s]uspension of a

licensee’s operating privilege under the

Compact . . . does not turn on whether the

licensee has admitted or denied guilty; it is

the conviction that triggers the provision.”

Id.; see also Bourdeev v. Commonwealth,

755 A.2d 59, 61-62 (Pa. Cmwlth. Ct.

2000); Commonwealth v. Boyd, 292 A.2d

434, 435 (Pa. Super. Ct. 1972) (“Where a

plea of nolo contendere is tendered by the

defendant and accepted by the court, it is

not the province of the court to occupy

itself with the question of guilt or

innocence.”); Ferrelli v. Commonwealth,

783 A.2d 891, 893 (Pa. Cmwlth. Ct.

2001).12

12 It is certainly true that in some

contexts a nolo plea has the same legal

effect as a guilty plea under Pennsylvania

law. These situations, however, are

distinguishable and entirely consistent

with the Pennsylvania rule that a nolo plea

is not an admission of guilt. See, e.g.,

Sontag v. Ward, 789 A.2d 778, 780 (Pa.

Cmwlth. Ct. 2001) (explaining in the

context of holding that requiring

defendant to admit guilt to attend sex

offender program did not violate right

against self-incrimination that “a plea of

nolo contendere is to be treated the same

as a guilty plea”); Commonwealth v.

Lewis, 791 A.2d 1227 (Pa. Super. Ct.

2002) (holding in context of post-sentence

motion to withdraw a plea that a “‘plea of

nolo contendere is treated the same as a

guilty plea’”) (quoting Commonwealth v.

Miller, 748 A.2d 733, 735 (Pa. Super. Ct.

2000)). 

In addition, the instructions given

at Poellnitz’s sentencing hearing do not

affect the legal consequences of the nolo

plea. At the sentencing hearing on the

charge of corruption of a minor, Poellnitz

was specifically instructed and

acknowledged that “there is no difference

between a plea of guilty and a plea of nolo

contendere,” App. at 133, and that “by

pleading guilty to these charges, you’ll be

in violation of that period of parole or
10

Thus, as a legal matter

consideration of a nolo contendere plea as

evidence of Poellnitz’s commission of the

underlying crime was improper. On

remand, the District Court should consider

whetherthere is sufficient evidence (under

the preponderance of evidence standard)

that Poellnitz violated a condition of

supervised release. In conducting this

inquiry, the District Court should take into

account all evidence in the record,

including, but not limited to, evidence

presented at Poellnitz’s plea hearing.

What the District Court may not do,

however, is treat the nolo plea as an

admission by Poellnitz that he committed

the crime. 

III.

Poellnitz contends that the delay of

nearly two years between the filing of the

supervised release violation petition and

the occurrence of the supervised release

violation hearing was not “reasonably

necessary.”13 18 U.S.C. § 3583 provides,

in pertinent part: 

The power of the court to

revoke a term of supervised

release for violation of a

condition of supervised

release, and to order the

defendant to serve a term of

imprisonment and . . . a

further term of supervised

release, extends beyond the

expiration of the term of

supervised release for any

periodreasonably necessary

for the adjudication of

matters arising before its

expiration if, before its

expiration, a warrant or

summons has been issued

on the basis of an allegation

of such a violation.

18 U.S.C. § 3583(i) (emphasis added).

We exercise plenary review over questions

of statutory interpretation. See United

States v. Thayer, 201 F.3d 214, 219 (3d

Cir. 1999).

In analyzing this question, the

District Court found instructive the

Seventh Circuit’s decision in United

States v. Rasmussen, 881 F.2d 395 (7th

Cir. 1989). In Rasmussen, the court

utilized the following factors in assessing

whether the delay between the notice of

probation action and hearing on the

petition to revoke probation was a denial

of due process: length of delay, reason for

the delay, the probationer’s assertion of

his right, prejudice to the probationer, and

the reason why the probationer was in

probation,” id. at 132. These instructions,

perhaps given erroneously, do not alter the

legal status of the nolo plea—such a plea

is not an admission of guilt under

Pennsylvania law. 

13 We address this issue, despite our

conclusion above that remand is

warranted, because if Poellnitz is correct

we must reverse and the District Court

cannot reconsider on remand whether

there is sufficient evidence of commission

of a crime. 
11

custody. Id. at 398 (citing Barker v.

Wingo, 407 U.S. 514 (1972); United

States v. Scott, 850 F.2d 316, 320 (7th Cir.

1988)). Unlike the present case in which

Poellnitz alleges the delay violated the

terms of § 3583(i), Rasmussen claimed the

delay was a denial of due process. While

Rasmussen may be distinguishable on

these grounds and certainly does not

provide a rigid and exclusive set of factors

that a court may consider, the decision

provides a useful framework for

considering whether the delay was

unreasonable. We conclude that it was

not.

To begin, we reject Poellnitz’s

argument that the delay was not connected

to the federal adjudication of the violation,

but was solely related to the adjudication

of state charges. Poellnitz’s reliance on

the Ninth Circuit’s decision in United

States v. Garrett, 253 F.3d 443 (9th Cir.

2001) is misplaced. In Garrett, the court

held that § 3583(i) “refers to the federal

adjudication of the defendant’s supervised

release violations [and] [t]hus . . . extends

the jurisdiction of the federal court only to

the period of time reasonably necessary to

adjudicate pending supervised release

revocation issues.” Id. at 459 (emphasis

added in Garrett). In other words, the

jurisdiction of the federal court is

extended to permit adjudication of the

federal supervised release revocation

issue. But such adjudication can include

consideration of whether there was, as in

this case, the commission of a state law

violation. In fact, Garrett held that

“postponement of . . . [the] revocation

hearing until . . . release from state custody

did not violate § 3583(i).” Id. at 450.

In addition, we conclude that the

delay in this case was not unreasonable.

To begin, it was reasonable for the District

Court to wait for the adjudication of the

state court charges before proceeding with

the revocation hearing. Although it is not

necessary that the probationer be adjudged

guilty of a crime to revoke release, see

Manuszak, 532 F.2d at 317, it is certainly

understandable that the District Court

waited for adjudication of these state

charges because it might be relevant in the

revocation proceeding. 

Furthermore, the subsequent

decisions to reschedule the hearing were

not unreasonable. The record does not

reflect that Poellnitz objected to the

District Court’s sua sponte decisions to

reschedule, and the docket reflects

considerable activity during this time,

including Poellnitz’s motion for

appointment of counsel and motion to

dismiss the petition. Moreover, granting

the Government’s motions requesting

rescheduling, which also appear to have

been unopposed, was reasonable in light

of the importance of Probation Officer

Howard’s testimony. Cf. Rasmussen, 881

F.2d 395 (7th Cir. 1989) (holding 13-

month delay between notice of probation

action and hearing on petition to revoke

probation was not a denial of due

process); Bennett v. Bogan, 66 F.3d 812,

818 (6th Cir. 1995) (noting that “although

the lengthy delay [of five and one-half

years] between the issuance and execution

of the second warrant for Petitioner’s

arrest is lamentable, it does not rise to the

level of intolerable”). 
12

The delay did not prejudice

Poellnitz’s ability to contest the validity of

his revocation. Poellnitz makes general

assertions about how having to defend

himselfin 2003 against incidents allegedly

occurring in late 1999 and early 2000

“caused the prospect of dimmed

memories, and the resulting possibility of

inadequate cross examination.” Appellant

Br. at 29. Not only does Poellnitz not

identify any specific “dimmed memories,”

but his argument fails to recognize that he

was required to defend himself against

these charges in 2003 in the state court

proceedings, irrespective of the federal

supervised release hearing. In addition,

we are unpersuaded by Poellnitz’s

argument that he was prejudiced because

he was unaware of the pending charges

when he pled. At the plea hearing,

Poellnitz was instructed on and

acknowledged the potential impact of the

plea on his supervised release status.14 

****

For the foregoing reasons, the

judgment of the District Court entered on

October 3, 2003, as amended on October

9, 2003, will be reversed and remanded

for further proceedings consistent with

this opinion. 

14 The testimony provides, in

pertinent part:

THE COURT: Were you on

parole or probation at the

time these offense s

occurred?

THE DEFENDANT: Yes.

THE COURT: You

understand that by pleading

guilty to these charges,

you’ll be in violation of that

period of parole or

probation and in addition to

any sentence I might impose

upon you, that you would be

subjecting yourself to an

additional penalty?

THE DEFENDANT: Yes.

App. at 132.