Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1990)

MEMORANDUM^** 

* Appellant Wende pled guilty to firearms violations on July 18, 1988, imposition of sentence was suspended and he was placed on probation for five years. On May 15, 1990, after a hearing, the court found Wende had violated the terms of his probation and sentenced him to imprisonment for a period of three years. The questions on appeal are: (1) whether the district court committed error in denying Wende's motion to vacate and continue the probation violation hearing to allow review of the preliminary hearing transcript; and (2) whether the court erred by failing to allow Wende additional time to prepare and present alternatives to probation. We affirm.

Notice of appeal was timely filed and jurisdiction on appeal is proper pursuant to 28 U.S.C. § 1291. We review a district court's decision to revoke probation for an abuse of discretion. U.S. v. Grant, 816 F.2d 440, 441 (9th Cir. 1987).

* Mr. Wende is indigent and was represented by court appointed counsel. On March 30, 1990, Wende filed an ex parte motion for a transcript of the preliminary hearing. The court ordered the preliminary transcript to be prepared for Wende's counsel on April 11, 1990. On May 10, 1990, Wende moved to vacate the May 15 probation revocation hearing because the transcript of the preliminary hearing would not be done until May 14, 1990, and counsel wanted to review the transcription of questions he asked Wende's probation officer. The court denied the motion. The transcript of the preliminary hearing was filed with the district court in Boise, Idaho, on May 14, but was not available to the court or the parties when the hearing convened in Moscow, Idaho, on May 15, 1990.

A review of the record on appeal demonstrates the minimum due process requirements for revocation of probation were met in this case. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). Wende had preliminary and final probation revocation hearings and was represented by counsel at both stages. Wende received prior notice of the probable cause hearing and revocation hearing and the alleged violations. At the probable cause hearing Wende was allowed to question witnesses and to present relevant information. The magistrate found probable cause for believing Wende violated the terms of his probation and reported this in his written order of April 5, 1990.

The evidence against Wende was disclosed before the revocation hearing. Wende testified at the hearing and was given every opportunity to present evidence. Wende cross-examined the two adverse witnesses. The transcript of the district court's remarks provides an adequate written statement as to the evidence relied upon and the reasons for revoking parole.

Despite these procedural safeguards, Wende argues a failure to provide a copy of the preliminary hearing transcript to his counsel prior to the revocation hearing mandates reversal. We disagree. Appellant does not claim he was denied any of the rights described in Gagnon v. Scarpelli. The court in that case did not refer to any additional rights to which Wende would be entitled in a revocation procedure.

The United States Supreme Court held in Britt v. North Carolina, 404 U.S. 226 (1971), that the state must provide an indigent defendant with a transcript of prior proceedings when the transcript is needed for an effective defense or appeal. See also Roberts v. LaVallee, 389 U.S. 40 (1967). However, Britt involved a request for a transcript of a mistrial for preparation for retrial and Roberts involved a request for minutes of the preliminary hearing prior to trial. This court noted in U.S. v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980), aff'd on other grounds, 451 U.S. 182 (1981), that the United States Supreme Court did not address in Roberts the limits of an indigent's right to a free transcript of preliminary proceedings and explained:

Circuit courts considering the issue have generally shown a greater inclination to examine the actual prejudice to the defendant resulting from the denial of a transcript of a preliminary hearing than has been shown in cases involving the denial of a trial transcript.

Id. at 1356.

Not only has Wende shown no prejudice by not having a copy of the preliminary hearing transcript prior to the revocation hearing, but revocation of probation is not part of a criminal prosecution and thus the full panoply of rights due to a defendant in such a proceeding does not apply to probation revocations. Gagnon v. Scarpelli, 411 U.S. at 782; Morrissey v. Brewer, 408 U.S. at 480. A review of the transcripts from the preliminary and revocation hearings reveals no meaningful discrepancies in the probation officer's testimony at the two hearings, or any prejudice to the ability of the defendant to cross-examine the probation officer. Britt and Roberts are further distinguishable from the present case because Wende was not denied a transcript based on his financial situation.

We have considered appellant's claims that 28 U.S.C. § 753(b) and Rules 16(a) (1) (A) and 32.1(a) (2) (B), Fed. R. Crim. P., were violated in this case, and find them unpersuasive.

The district court did not commit error in denying Wende's motion to vacate the revocation hearing to allow time to read the preliminary hearing transcript.

II

The district court was also well within its discretion in denying Wende's counsel's verbal request for additional time to prepare and present alternatives to incarceration. Where a court has discretion to continue probation, the probationer is entitled to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition. Black v. Romano, 471 U.S. 606, 612 (1985). Wende was given ample opportunity to present mitigating evidence and his counsel in fact argued an alcohol rehabilitation program, or incarceration with alcohol treatment would be appropriate. The fact that Wende was not granted additional time to prepare a written or more detailed alternative is not a ground for reversal. This case does not involve revocation due to inability, through no fault of the defendant, to pay a fine or restitution. Hence, Bearden v. Georgia, 461 U.S. 660 (1983), has no application to this case.

III

The procedures afforded in Gagnon, 411 U.S. 778, and Morrissey, 408 U.S. 471, protect the defendant against revocation in a constitutionally unfair manner. Wende was afforded these procedures, the district court acted well within its discretion, and the revocation of probation and sentence of three years are AFFIRMED.