Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Michael B. MARKS, Defendant-Appellant.

No. 88-5453.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1989.Decided Nov. 29, 1989.

Before GOODWIN, SCHROEDER and BEEZER, Circuit Judges.


Michael Marks appeals an order of the district court revoking his probation. He challenges the sufficiency of the evidence to support revocation. He also contends that the district court was biased and utilized procedures during the course of the hearing which denied him due process.

The evidence was more than sufficient to establish that the appellant violated provisions of California law by pursuing a fraudulent scheme, thereby violating the terms of his probation. The standard of proof required for probation revocation is that "evidence and facts be such as reasonably to satisfy the judge that the probationer's conduct has not been as required by his conditions of probation. The judge may revoke probation when reasonably satisfied that a local, state or federal law has been violated, and conviction is not essential." United States v. Garcia, 771 F.2d 1369, 1371 (9th Cir. 1985), quoting, United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir. 1984).

Marks listed bogus jobs in a computer, defrauding job seekers who paid for Marks' computerized matching service. There was evidence that Marks obtained a mailbox drop utilized in the scheme. While he provided a handwriting expert who testified that the writing on the application was not Marks' own, the government produced an expert who testified that the handwriting was indeed Marks'. Additionally, the driver's license number on the application matched Marks' own driver's license number.

In challenging the procedures used by the district court, Marks refers to evidentiary rulings. However, the identification testimony Marks challenges was properly admissible pursuant to Fed.R.Evid. 801(d) (1) (C). Even if the evidence had not been admissible pursuant to the Federal Rules of Evidence, the Federal Rules do not apply in probation revocation proceedings. Fed.R.Evid. 1101(d) (3). Marks also maintains that the district court, by not issuing an additional subpoena for one of Marks' witnesses who appeared but did not testify on the first day of the hearing, was responsible for the failure of this witness to reappear on the second day. This allegation lacks merit as the court clearly instructed the witnesses that they were compelled to return on the second day of the hearing.

Finally, Marks claims that the district judge was so biased as to violate Marks' due process rights. Marks bases this allegation in part on a colloquy between the court and Marks' counsel where the court stated that it believed that Marks had signed the postal form and written his driver's license number on it.

However, Marks does not argue that this bias arose from extrajudicial sources, and bias arising from the basis of information and beliefs acquired while a judge acts in his or her judicial capacity is beyond attack. U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966); United States v. Frias-Ramirez, 670 F.2d 849, 853 n. 6 (9th Cir.), cert. denied, 459 U.S. 842 (1982). Moreover, while the court's judgment seems to have been based in part on the belief that it would have been extremely difficult for a stranger to have obtained Marks' driver's license number, this is not an unreasonable belief, nor is there evidence that the trial court regarded it as conclusive. Thus, the decision of the district court finding a violation of the terms of probation was supported by the evidence and was not an abuse of discretion.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3