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U.S. v. Carothers

United States Court of Appeals, Eighth Circuit
Jul 30, 2003
337 F.3d 1017 (8th Cir. 2003)

Summary

holding the government must prove by a preponderance of evidence that the defendant violated a supervised release condition; the district court's finding that a violation occurred is reviewed for clear error; the district court did not clearly err in concluding the defendant violated a condition of supervised release by committing an assault, where the court found the victim's testimony credible and the defendant's testimony not credible; and the district court's witness credibility determinations are virtually unreviewable on appeal

Summary of this case from U.S. v. Hansen

Opinion

No. 03-1303.

Submitted: June 11, 2003.

Filed: July 30, 2003. Rehearing and Rehearing En Banc Denied: September 13, 2003.

Appeal from the United States District Court for the Western District of Missouri, Scott O. Wright, J.

Cyril Mehrle Hendricks, argued, Jefferson City, MO, for appellant.

Anthony P. Gonzalez, argued, Asst. U.S. Atty., Jefferson City, MO, for appellee.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.


Linda Carothers was sentenced to time served and three years of supervised release after pleading guilty to use of interstate commerce facilities in the commission of murder for hire. One condition of her release was that she "not commit any other federal, state or local crime." After serving approximately 14 months of supervised release, Carothers was charged with second-degree assault, a Class C felony in Missouri. After a hearing, the district court revoked Carothers' supervised release and sentenced her to 24 months in prison. Carothers appeals, arguing that the district court abused its discretion in revoking her supervised release because the government failed to prove by a preponderance of the evidence that she violated a condition of her supervised release.

The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.

If the government proves by a preponderance of the evidence that a defendant violated a condition of supervised release, unrelated to firearms or controlled substances, the district court has discretion to revoke supervised release. See 18 U.S.C. § 3583(e)(3), (g) (2000) ("The [district] court may . . . revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release . . . if the court finds by a preponderance of the evidence that the defendant violated a condition of supervised release . . ."). "On appeal, the district court's decision to revoke supervised release based on its finding of a violation is reviewed only for abuse of discretion." United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996) (cited in United States v. Reeves, No. 96-2905, 1997 WL 215381, at *1 (8th Cir. May 1, 1997) (unpublished)). "And, as in other contexts where a district court has discretion to take certain action based on its findings of fact, the court's subsidiary factfinding as to whether or not a violation occurred is reviewed for clear error." Id.

After an alleged "road rage" incident on December 18, 2002, Carothers was arrested and charged in Callaway County, Missouri, with second-degree assault. Under Missouri law, "[a] person commits the crime of assault in the second degree if he . . . [a]ttempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument." Mo. Ann. Stat. § 565.060(2) (West 1999). A car can be a "dangerous instrument depending upon the circumstances under which it is used." State v. Dunn, 852 S.W.2d 157, 158 (Mo.Ct.App. 1993) (internal marks omitted). At Carothers' probation revocation hearing, the alleged victim testified that Carothers rammed into the rear of his vehicle three times at a speed of 55-70 miles per hour after he passed her on the highway during rush hour. Carothers admitted to being present during the incident, but testified that the alleged victim pulled in front of her and slammed on his brakes, causing her to hit him accidentally. No other witnesses to the incident testified at the revocation hearing. The district court found that Carothers had violated a condition of her supervised release — not to commit another federal, state, or local crime — and sentenced her to a term of 24 months in prison with directions to attend a Bureau of Prisons anger management course.

Carothers asserts that the district court abused its discretion in revoking her supervised release. Specifically, she argues that the only evidence presented — "he said, she said" testimony — was insufficient to prove that she attempted to injure the alleged victim with her vehicle. In revoking her supervised release, the district court implicitly found that the alleged victim's testimony was credible and that Carothers' was not credible. Because credibility determinations are "virtually unreviewable on appeal," United States v. Hernandez, 281 F.3d 746, 748 (8th Cir. 2002), the district court's conclusion that Carothers committed the assault was not clearly erroneous. Furthermore, upon finding that Carothers violated an express term of her supervised release, the district court did not abuse its discretion in ordering revocation. Accordingly, we affirm the judgment of the district court.


Summaries of

U.S. v. Carothers

United States Court of Appeals, Eighth Circuit
Jul 30, 2003
337 F.3d 1017 (8th Cir. 2003)

holding the government must prove by a preponderance of evidence that the defendant violated a supervised release condition; the district court's finding that a violation occurred is reviewed for clear error; the district court did not clearly err in concluding the defendant violated a condition of supervised release by committing an assault, where the court found the victim's testimony credible and the defendant's testimony not credible; and the district court's witness credibility determinations are virtually unreviewable on appeal

Summary of this case from U.S. v. Hansen

affirming the district court's revocation of supervised release when the court found the victim's testimony was credible, which is "virtually unreviewable on appeal"

Summary of this case from U.S. v. Lynch

noting that the government must prove that a defendant violated a condition of supervised release by a preponderance of the evidence; we review a district court's finding that a violation occurred for clear error; a district court's credibility determinations are virtually unreviewable on appeal

Summary of this case from United States v. Dudley

factfinding as to whether violation occurred is reviewed for clear error

Summary of this case from United States v. Horton

factfinding as to whether or not violation occurred is reviewed for clear error

Summary of this case from United States v. Pate

noting that a district court's “credibility determinations are ‘virtually unreviewable on appeal’ ”

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setting forth the standard of review

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stating review standard

Summary of this case from U.S. v. Jeffries

stating the government's burden of proof and the clear-error review standard

Summary of this case from United States v. Fry

stating the government's burden of proof, and the clear-error review standard, and finding the district court did not clearly err in concluding that defendant had violated a condition of supervised release by committing assault, where the court found the victim's testimony credible and defendant's testimony not credible

Summary of this case from U.S. v. Williams

In Carothers, the defendant argued that the district court abused its discretion in revoking her supervised release because "the only evidence presented — `he said, she said' testimony — was insufficient to prove that she attempted to injure the alleged victim...."

Summary of this case from U.S. v. Ralph
Case details for

U.S. v. Carothers

Case Details

Full title:UNITED STATES of America, Appellee, v. Linda D. CAROTHERS, Appellant

Court:United States Court of Appeals, Eighth Circuit

Date published: Jul 30, 2003

Citations

337 F.3d 1017 (8th Cir. 2003)

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