no 18-10450 - william s. richardson school of law · 2019-10-23 · no. 18-10450 . in the united...

NO. 18-10450

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA Plaintiff-Appellee

v.

ROLAND EGUCHI, JR. Defendant-Appellant

Appeal from the United States District Court for the District of Hawaii The Honorable Susan Oki Mollway, Senior United States District Judge

District Court No. 1:08-cr-00714-SOM-1

DEFENDANT-APPELLANT’S OPENING BRIEF

Peter C. Wolff, Jr. Federal Public Defender, District of Hawaii Craig Jerome Assistant Federal Defender 300 Ala Moana Boulevard, Suite 7104 Honolulu, Hawaii 96850 Telephone (808) 541-2521 Facsimile (808) 541-3545 E-Mail [email protected] Counsel for Roland Eguchi, Jr.

Case: 18-10450, 02/15/2019, ID: 11197844, DktEntry: 4, of 31

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Contents Jurisdiction ........................................................................................................ 1 Bail Status ......................................................................................................... 1 Issue ................................................................................................................... 1 Pertinent Legal Provision .................................................................................. 2 Case Statement .................................................................................................. 2 Argument Summary ........................................................................................ 14 Argument ......................................................................................................... 17

1. Standards of review. ............................................................................... 17 2. Due process. ........................................................................................... 17 3. Law of the case. ..................................................................................... 22

Conclusion ....................................................................................................... 25 Statement of Related Cases Form 8 Certificate of Compliance


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Table of Authorities Cases Dent v. West Virginia, 129 U.S. 114 (1889) ................................................... 17 Goss v. Lopez, 419 U.S. 565 (1975) ................................................................ 19 In re Vaughan, 2016 WL 878308 (CA9 Feb. 29, 2016) (unpublished) .......... 17 Land v. Salazar, 911 F.3d 942 (CA9 2018) .................................................... 18 Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity Comm’n, 691 F.2d 438 (CA9 1982) ..................................................................... 17 Morrissey v. Brewer, 408 U.S. 471 (1973) ..................................................... 20 Saravia v. Sessions, 905 F.3d 1137 (CA9 2018) ............................................ 19 Swarthout v. Cooke, 562 U.S. 216 (2011) ...................................................... 18 Townsend v. Burke, 334 U.S. 736 (1948) ....................................................... 20 United States v. Alexander, 106 F.3d 874 (CA9 1997) ............................ 22‒23 United States v. Aquino, 794 F.3d 1033 (CA9 2015) ............................... 16, 21 United States v. Comito, 177 F.3d 1166 (CA9 1999) ..................................... 20 United States v. Cuddy, 147 F.3d 1111 (CA9 1998) ...................................... 17 United States v. Evans, 883 F.3d 1154 (CA9 2018) ....................................... 22 United States v. Hall, 912 F.3d 1224 (CA9 2019) .................................... 16, 22 United States v. Havier, 155 F.3d 1090 (CA9 1998) ...................................... 17 United States v. Hill, 2019 WL 471559 (CA9 2019) ...................................... 20 United States v. King, 608 F.3d 1122 (CA9 2010) ....................................... 6‒7


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Table of Authorities (Continued)

Cases United States v. Loy, 237 F.3d 251 (CA3 2001) ............................................. 22 United States v. Perez, 526 F.3d 543 (CA9 2008) .......................................... 20 United States v. Raya-Vaca, 771 F.3d 1195 (CA9 2014) ............................... 19 United States v. Siegel, 753 F.3d 705 (CA7 2014) ......................................... 21 United States v. Soltero, 510 F.3d 858 (CA9 2007) (per curiam) .................. 22 United States v. Vanderwerfhorst, 576 F.3d 929 (CA9 2009) ........................ 20 Wolff v. McDonnell, 418 U.S. 539 (1974) ................................................ 17‒18 Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................. 17 Statutes 18 U.S.C. §3231 ................................................................................................ 1 18 U.S.C. §3583 ................................................................................................ 1 18 U.S.C. §3742 ................................................................................................ 1 28 U.S.C. §1291 ................................................................................................ 1 Rule Fed. R. App. P. 4 ............................................................................................... 1 Constitutional Provision U.S. Const., amend. V ....................................................................................... 2


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Jurisdiction

This appeal arises from a supervised release revocation proceeding. The

district court had jurisdiction under 18 U.S.C. §3231 and §3583. The district

court filed the judgment of revocation—from which defendant-appellant

Roland Eguchi, Jr., takes this appeal—on November 16, 2018. Defendant-

Appellant’s Excerpts of Record (ER) 135. Eguchi filed his notice of appeal on

November 19, 2018. ER 140; Fed. R. App. P. 4(b). This Court has appellate

urisdiction pursuant to 18 U.S.C. §3742 and 28 U.S.C. §1291.

Bail Status

Eguchi is imprisoned in Honolulu FDC. His projected release date is

June 16, 2019.

Issues

1. Due Process. When a district court holds admitted supervised

release violations in abeyance and continues the defendant on supervised

release, may the district court rescind abeyance and imprison the defendant for

the admitted violations whenever the probation officer loses “hope” in, and

ceases to be “optimistic” for, the defendant? Or is doing such a thing—

especially on a record that demonstrates the probation officer’s hope and

optimism evaporated due to “unsubstantiated” “rumors” about the defendant,

rumors the government declined to prove, rumors the district court refused to


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make any factual findings about, and rumors the district court disavowed

relying upon (but laundered through the probation officer’s newfound

pessimism nonetheless)—too arbitrary, unfair, or unreasonable to comport with

due process?

2. Law of the Case Doctrine. Due process aside, does the prudential

law of the case doctrine apply to a ruling holding admitted supervised release

violations in abeyance? And, if the doctrine applies, did the district court abuse

its discretion in rescinding abeyance on the basis of unsubstantiated rumors,

rather than clear error in the abeyance ruling, manifest injustice, or any

intervening change in law or circumstances?

Pertinent Legal Provision

“No person shall be … deprived of … liberty … without due process of

law[.]” U.S. Const., amend. V.

Case Statement

On November 5, 2009, the district court entered a judgment of conviction

against Eguchi on a single drug conspiracy count, for which the court

imprisoned him for ten years and ordered him to serve an eight-year term of

supervised release. ER 36–38. A year into his supervised release term, the

probation officer commenced a revocation proceeding based on five violations

of his conditions of supervised release. Dist. Ct. No. 1:08-cr-00714-SOM (DC),


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ECF 170. The probation officer alleged that Eguchi had used drugs, failed to

comply with drug testing, drove without a license, and lied to him. Id. at pp. 1–

2; see also ER 38, 40.

At the revocation hearing, Eguchi admitted the five violations, and the

district court accordingly found that he had committed them. ER 44–46. The

court noted that the applicable guideline range was 5–11 months. ER 46. The

court further noted, however, that the probation officer recommended holding

the violations in abeyance and maintaining Eguchi on his initial term of

supervised release. ER 46. The probation officer explained that his

recommendation rested on Eguchi’s family support and Eguchi’s “sincere”

motivation to successfully complete drug treatment and succeed on supervised

release. ER 55. The probation officer also emphasized that Eguchi understood

“that these conditions that Your Honor imposes is what he needs to abide by

and that’ll help him be successful[.]” ER 56. The government concurred in the

probation officer’s recommendation. ER 56.

The district court agreed to “try it,” but emphasized that the court

harbored “lots of concern because of the deception” to the probation officer. ER

57–58. Lying, the court explained, misled and stymied not just the probation

officer, but the court as well:


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When you lie about this—and I consider like trying to trick your probation officer on the drug test as a lie too—you make a mockery of any attempt by the probation officer to help you or to monitor your behavior, because if they don’t have a true picture of what your behavior is, then I don’t see how they can be doing anything at all that’s worthwhile. And the same with me. If I don’t have facts on which to base a decision, then I don’t see how my decision can make any sense at all. And so the court system cannot operate—we become useless in other words. You just totally undermine the reason to have a court making decisions, the reason to have a probation office working with you.

ER 58 (reporter’s typography silently emended). But, the court then relented,

I’ll take a chance here because [the probation officer’s] recommending it and he’s worked with you so much more than I have, but it’s not much rope that I’m giving you. The slightest report from him of a problem will mean you come back into court. …. It cannot happen that you lie to your probation officer again. You need to know this. That’s going to be not something that I will overlook again. …. If I see you sitting in that chair, you kind of know what to expect.

ER 59 (reporter’s typography silently omitted). At the conclusion of the

hearing, the court summarized: “Okay. Do everything your probation officer

tells you to do. Whatever you do—you know, you’ve heard me say this at least

five times in this hearing—don’t lie again to him. Don’t try to trick him again.

Okay? Because I don’t know how to express this strongly enough: I’ll come

down like a ton of bricks on you. Okay?” ER 64.

The court’s remarks clearly signaled that abeyance would continue as

long as Eguchi remained compliant with the conditions of his supervised


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release, especially those requiring him to obey and be truthful with the

probation officer. Nothing in the court’s remarks suggested that abeyance could

be rescinded whenever the probation officer lost hope or ceased to be optimistic

about Eguchi’s successful completion of his supervised release term.

Three months later, the probation officer commenced a new revocation

proceeding, adding a new allegation of a sixth violation and urging the court to

rescind abeyance on the five admitted violations. DC ECF 174. The new

allegation asserted that Eguchi had violated the condition of his supervision that

prohibited him from associating with a felon. DC ECF 174 at pp. 2, 5–6.

Repeating the content of a local police report, the probation officer related that

Eguchi had been arrested with James Lee on allegations of kidnapping and

threatening and that Lee was a felon. Id.

The probation officer also related the account “the victim” had given to

police. DC ECF 174 at p. 6. She claimed that Eguchi fronted her drugs and

loaned her money and, with Lee’s help a month later, demanded to be paid,

kidnapped her (beating her and taking her, at gun point, from a gas station to

Eguchi’s father’s residence), but then, with a singular want of prescience,

allowed her to leave. Id. When she, leading police, returned to the residence, the

police arrested Eguchi and Lee even though they found no firearm. Id. at 6. No

prosecution arose from these allegations and, as noted, the probation officer did


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not assert that Eguchi had violated his conditions of supervision by engaging in

conduct that constituted kidnapping, threatening, assault, or drug dealing; the

probation officer merely asserted that he had violated the felon association

condition by having been arrested with Lee. ER 69; see also DC ECF 175 2, 5–

6; ER 38 (supervised release condition prohibiting commission of any crime).

The initial hearing on the new violation allegation occurred before a

different district court judge (Senior District Court Judge Kay) than the judge

who had held the other five violations in abeyance (Senior District Court Judge

Mollway). Eguchi denied the new violation allegation. ER 68. And the

government submitted its case on the association violation on the basis of the

probation officer’s recitation of the police report’s contents:

[T]he government would proffer the statement of facts that’s contained in the amended request for course of action. There’s, as Your Honor had noted, a Honolulu police report dated October 18th, 2018, that puts the defendant, Mr. Eguchi, and Mr. Lee at the same place at the time of the arrest. And so the government submits that there is evidence that would support Mr. Eguchi affiliated himself with a convicted felon, Mr. Lee, in violation of the terms and conditions of his supervised release.

ER 69–70. Defense counsel accepted “that stipulation,” but noted it failed to

prove a violation of the association condition because there was no evidence

Eguchi knew Lee was a felon, pointing the court to United States v. King, 608

F.3d 1122 (CA9 2010), for the proposition that “‘non-association conditions


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prohibit only knowing contact with persons that the supervisee knows to be

felons.’” ER 70–71 (counsel quoting King, 608 F.3d at 1128 (reporter’s

transcription emended with the King Court’s original emphases)).

After conferring with the probation officer, the government suggested

that, “instead of having an evidentiary hearing to prove up violation number

six,” it was “prepared to go forward on the first five, just the first five violations

and recommend revocation and imposing a sentence today.” ER 71–72. Senior

District Court Judge Kay reminded the government that dropping the new

violation would result in maintaining abeyance, not imprisonment:

According to the write-up here, at the time of his—that he admitted the five violations … on August 20th of this year [before Judge Mollway], and at that time the probation officer recommended that his violations be held in abeyance. The Court was hesitant to follow this recommendation given the egregious nature of Mr. Eguchi’s violations, including that he attempted to use a device to subvert his drug test and twice lied about his drug use. In holding the violations in abeyance, the Court sternly admonished Mr. Eguchi regarding his violations and warned him against engaging in further noncompliant behavior. Problem we’re faced with now is that if we’re not going to consider this additional alleged violation, then it would seem that we would still hold them in abeyance. So I think we have to go ahead with an evidentiary hearing.

ER 72 (reporter’s typography silently emended). The government then asked

for a continuance “to call the appropriate witnesses necessary to prove the

[association] violation.” ER 72. The court granted the motion for a continuance,



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noting, “I think we’re going through an unnecessary exercise [defense counsel],

but you have a right to compel that, that’s your right.” ER 72–73.

Senior District Court Judge Mollway resumed presiding over the case at

the continued hearing. The hearing opened with the government opting “not to

pursue [the association] violation.” ER 76. Instead, the government again urged

“that the violations that were previously found and held in abeyance should

now serve as the basis for revocation.” ER 76–77. The government candidly

explained that, even after further investigation, it could not prove the

association violation (nor had it spotted any other violation it could prove):

[O]ver the past two weeks, the Government has been working with Probation, and Probation had reached out to HPD and the detective assigned to the case. And so I want to just be clear that we haven’t been—we’ve been doing our due diligence and follow up in order to see whether or not the violation could be proved or any additional violations, Your Honor. And … [we] determined that we wouldn’t be proceeding.

ER 77; see also ER 78–79 (defense counsel’s recap of prior proceedings on the

new violation). The remainder of the hearing consisted of the court and the

parties (mainly defense counsel) sparring over whether the court could rescind

abeyance absent proving up the additional violation or some similar factual

change of circumstances. ER 79–95.

Defense counsel took the position that, absent some proven change of

circumstances (such as a new instance of proven noncompliance), due process


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precluded the court from rescinding abeyance and, ultimately, requested that the

court maintain abeyance and continue Eguchi on his initial term of supervised

release. ER 95; see also ER 79–95. The government and the court took the

position that abeyance could be rescinded at any time, without any need to

prove a new instance of noncompliance. ER 79–95; see, particularly, ER 80–81

(court muses “what more do I need to revisit the issue” of abeyance “and say,

‘Now I will revoke’,” when abeyance was a “benefit” to Eguchi and there is “no

prejudice” to him when abeyance is rescinded); ER 83 (court queries, “[a]nd

even if he doesn’t violate, if he doesn’t seem to me to be making good use of

that opportunity, why isn’t it enough for me to say, ‘I held these things in

abeyance; now I’m going to revoke’?”). The court continued the hearing for the

parties to further brief the issue. ER 94.

Notably, though, when probed by the court during the hearing on what

change of circumstances justified rescinding abeyance and imprisoning Eguchi

for the initial set of violations, the probation officer relied solely upon the

allegations of criminal conduct and associating with a felon that the government

admitted it could not prove:

[The] Probation Office is deeply concerned with the allegations, especially, you know, following the new arrest. It goes along—as indicated in our recommendation, Your Honor, there’s a pattern of arrest and concern, you know, dating back to May. And following the last revocation hearing, it was our hope that the subject was


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going to demonstrate conduct that reflects a sober and law-abiding lifestyle. However, the subsequent arrest and the allegations of kidnapping, terroristic threatening, was deeply concerning, Your Honor, and so we filed our petition. Subsequent to that revocation hearing, you know, we learned of that new information and that subsequent information—or we learned the new information that suggested there was a different violation—or a new violation that existed that warranted further investigation, Your Honor. And that the subsequent, complaint, the arrest was withdrawn. And that’s where we lie, Your Honor.

ER 90 (reporter’s typography amended). The court clarified that the probation

officer was talking about the association allegation arising out of the arrest for

kidnapping and threatening. ER 91. When similarly asked what new

circumstances existed to justify rescinding abeyance, the government also relied

on the new allegations of criminal conduct, albeit acknowledging that “they are

just allegations, they’re not charges, they’re not convictions, but” they were

“deeply concerning,” nonetheless. ER 91.

In their written briefs, the parties maintained their positions. Defense

counsel’s brief elaborated that disturbing the status quo required some proven

change in circumstances, and also argued that, in Eguchi’s case, rescission for

any reason shy of noncompliance would violate due process for lack of notice.

DC ECF 186. In its brief, the government merely asserted that the initial

revocation hearing on the five admitted violations sufficed to comport with due

process, such that subsequently rescinding abeyance raised no independent due


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process concern. DC ECF 187. The government further noted that Eguchi’s

arrest on the unsubstantiated kidnapping and threatening allegations constituted

“contact with law enforcement [and was] sufficient to warrant the Court taking

immediate action and imposing a sentence of incarceration” on him. Id. at p. 3.

The only condition of his release that pertained to law enforcement contact,

however, merely required him to report such contact within 72 hours (ER 38);

and neither the government nor the probation officer ever claimed that Eguchi

had violated that condition.

At the continued, and final hearing, the district court summarized that the

probation officer’s recommendation to rescind abeyance and imprison Eguchi

was based on unproven and unsubstantiated (as the judge would later

characterize them) “rumors” (see ER 120) that he engaged in kidnapping,

threatening, and drug dealing. ER 101–102. Those allegations came from the

police report about the arrest (as discussed above), as well as from an

“anonymous telephone report” and a “third-hand report” that the probation

officer had told the court about. ER 102–103. During yet more sparring with

defense counsel, the court insisted that the court retained discretion to rescind

abeyance and imprison the defendant at any time, even absent anything new

occurring to justify doing so. ER 104–126.


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The court’s reasoning mirrored a god-giveth-god-taketh-away syllogism:

because Eguchi had no due process right to abeyance based on the probation

officer’s hopefulness, and abeyance was thus wholly a matter of the district

court’s grace, he had no due process right that could be violated by rescission,

no matter when or why it occurred:

But I’m looking at it as the probation officer was hopeful in August. He’s now reconsidering that, granted, on the ground of unsubstantiated allegations, but Mr. Eguchi did not have any constitutional right to have his probation officer be hopeful in the face of five violations that he admittedly committed. So he had no right to have [the probation officer] say, “You know what? I’m hoping you’re going to be okay and you had some setback, but I’m with you, Mr. Eguchi.” He had no right to that, uhm, subjective view by the probation officer. That is not something he was entitled to have. That he got it is not something he should be allowed to count on having forever. …. I could have rejected in August the probation officer’s hopefulness and sentenced him in August. If the probation officer has removed that hopeful attitude, why can I no longer do what I could have done in August even ignoring these unsubstantiated allegations which are the basis for the present absence of hopefulness because Mr. Eguchi never had an entitlement to hopefulness from his probation officer or to my acceptance of that hopefulness?

ER 112–113 (reporter’s typography silently emended).

In accord with that sentiment, the district court purported to not rely on

the new allegations, declined to find any facts regarding them, and ruled that the

probation officer’s hopelessness and pessimism sufficed to justify rescinding

abeyance and imprisoning Eguchi:


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I’m having a real problem with accepting the premise that once I hold something in abeyance, the discretion I have at the time I hold something in abeyance becomes more circumscribed because I held something in abeyance. If that’s a standard, as I say, we will really hesitate to hold anything in abeyance.

So I am revoking Mr. Eguchi’s supervised release status. In doing so, I am not finding that he committed any new supervised release violation. I am not finding that he has done what an anonymous caller and a third party report to the probation officer assert. I am, instead, relying on five violations that he committed, he admitted having committed, in August but that I held in abeyance even while expressing concern about the seriousness of those violations.

In no longer holding those in abeyance, I am relying on the probations officer’s changed recommendation and the—at the August hearing I expressed concern about relying on the probation officer’s optimism and recommendation that I hold the violations in abeyance. The probation officer is no longer expressing that same attitude and is instead very worried about Mr. Eguchi. But I am not making new factual findings that he—Mr. Eguchi did or did not commit new violations. I am resurrecting concerns that I did express in August about the seriousness of the violations that I found in August[.]

ER 126–127. The court thus laundered the unproven allegations through the

probation officer’s lost hope and newfound pessimism. Accord ER 126–127

with ER 101–102 (court acknowledges that the probation officer was no longer

optimistic due to the unproven allegations); ER 110 (court again acknowledges

that the probation officer lost hope because of the “unsubstantiated arguments

and claims”); ER 112–113. The court sentenced Eguchi to eight months’


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imprisonment, followed by a second (88-month) term of supervised release. ER

132. This appeal followed.

Argument Summary

1. Three points in the record suffice to demonstrate the district court’s

reversible error as a matter of due process notice.

One, when holding five admitted violations in abeyance, the district court

told Eguchi that rescission of abeyance would occur if Eguchi did not “[d]o

everything your probation officer tells you to do” or “lie[d] to him.” ER 64.

Two, a different district court judge—presiding in the initial judge’s

stead some three months later and referring to a “write-up,” presumably

generated by either the original judge or the probation officer—characterized

the abeyance ruling to have given Eguchi notice that rescission would occur if

he “engag[ed] in further noncompliant behavior.” ER 72.

Three, when later rescinding abeyance, the original district court judge

expressly (and repeatedly) declined to find any new noncompliant behavior

(and, thus, did not find Eguchi disobeyed, or lied to, his probation officer), but

rescinded abeyance anyway, solely on the basis of the probation officer’s

newfound pessimism (which was entirely the product of the probation officer’s

beliefs that the very things the district court refused to making findings about

actually occurred). ER 126–127.


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Due process does not allow a judge to condition abeyance on one thing,

but then rescind abeyance for something else.

2. A second due process problem that requires reversal arises from

the district court’s reliance on unprovable allegations of misconduct by viewing

them through the lens of probation officer’s hopelessness and pessimism. At

one and the same time, the district court purported to disavow relying on the

unprovable allegations, acknowledged that those allegations are what induced

the probation officer’s hopelessness and pessimism, and then relied on the

probation officer’s hopelessness and pessimism to rescind abeyance, revoke his

supervision, and imprison Eguchi. Due process does not allow a district court to

accept unsubstantiated allegations by viewing them through the lens of a

probation officer’s pessimism, while purporting to make no factual findings that

those allegations are true.

The district court, albeit unwittingly, pegged the problem when initially

scolding Eguchi about the evil wrought from lies told to a probation officer: “If

I don’t have facts on which to base a decision, then I don’t see how my

decisions can make any sense at all.” ER 58. When a district court holds

admitted violations in abeyance and maintains the defendant on supervised

release in lieu of revocation and resentencing, the defendant has a right not to

be deprived of his renewed liberty without some minimal process, without at


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least some new aggravating fact altering the status quo. Here, the district court

did not find and expressly refused to rely upon any new fact. ER126–127.

Instead, the court relied on a change in the probation officer’s subjective state of

mind. ER 126–127. Due process does not permit depriving a defendant of his

liberty based on a probation officer’s subjective state of mind; a point this

Court’s cases holding various release conditions unconstitutionally vague

consistently reaffirm. Cf, e.g., United States v. Hall, 912 F.3d 1224, 1226–1227

(CA9 2019); United States v. Aquino, 794 F.3d 1033, 1037 (CA9 2015).

3. Setting due process aside, the district court abused its discretion

under the law of the case doctrine. Nothing counsels holding that a district

court’s abeyance ruling is immune from the law of the case doctrine. The

district court, accordingly, should not have revisited its abeyance ruling unless:

(1) the ruling was clearly erroneous; (2) applicable law changed; (3) underlying

factual circumstances changed; or (4) manifest injustice would result from not

revisiting the issue. None of those things occurred here. Instead, a probation

officer heard unsubstantiated rumors—that neither he, nor two governments

(state and federal) could verify, be it even by a preponderance of the

evidence—and, on the basis of those unsubstantiated rumors, adopted a

pessimistic mindset. In relying on the probation officer’s subjective change of




17

heart, rather than clear error, manifest injustice, or a change in law or fact, the

district court abused its discretion in revisiting and rescinding abeyance.

Argument

1. Mixed questions of law and fact, such as due process claims

involving notice, are reviewed de novo. United States v. Havier, 155 F.3d 1090,

1092 (CA9 1998). What constitutes law of the case is a question of law

reviewed de novo. In re Vaughan, 2016 WL 878308 at *5 (CA9 Feb. 29, 2016)

(unpublished) (citing Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity

Comm’n, 691 F.2d 438 (CA9 1982)). Application of the law of the case

doctrine is reviewed for an abuse of discretion. United States v. Cuddy, 147

F.3d 1111, 1114 (CA9 1998).

2. Due process protects against arbitrary deprivations of liberty.

Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Wolff v. McDonnell, 418 U.S.

539, 558 (1974); Dent v. West Virginia, 129 U.S. 114, 123 (1889). The district

court may be quite right that a defendant has no right to abeyance of admitted

supervised release violations. But once abeyance is ordered, and the defendant

is maintained on supervised release and at liberty from imprisonment, due

process guards against the government, his probation officer, or the court

arbitrarily depriving him of that liberty.








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Consider the way due process treats parole. A prisoner has no

constitutional right to parole, so the lack of parole entirely does not implicate

due process; but when a State allows for parole, due process guards against

arbitrary denial or revocation of parole. Swarthout v. Cooke, 562 U.S. 216, 220

(2011) (“[w]hen … a State creates a liberty interest, the Due Process Clause

requires fair procedures for its vindication”). Another analogue: good time

credit. As with parole, a prisoner has no right to good time credit, but once

offered and earned, such credit cannot be arbitrarily denied or taken away.

McDonnell, 418 U.S. at 557; Land v. Salazar, 911 F.3d 942, 950–951 (CA9

2018). As in these other contexts, so here: Eguchi may not have had any sort of

right to abeyance, but once abeyed and left on supervised release, due process

precludes the district court from arbitrarily rescinding abeyance and depriving

his liberty by imprisoning him.

The district court’s analysis, insisting that Eguchi has no due process

claim because he had no right to the probation officer’s optimism in the first

place, does not withstand the foregoing comparisons. If that line of reasoning

was the rule for when a defendant could raise a due process claim, denial of

parole or the erasure of good time credit would be immune from due process.

The district court’s analysis focuses on the wrong thing. The probation officer’s

optimism is not what triggered due process. What triggered due process was the





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district court’s ruling holding the violations in abeyance and allowing Eguchi to

remain at liberty on his initial supervised release term. It was that ruling—akin

to a State’s adoption of a parole scheme, or the BOP’s grant of good time

credit—that then necessitated compliance with basic due process norms before

abeyance could be rescinded.

The question thus becomes what process is due?

One minimal due process protection is adequate notice of what would

trigger rescission. Goss v. Lopez, 419 U.S. 565, 579 (1975); Saravia v. Sessions,

905 F.3d 1137, 1144 (CA9 2018) (“[d]ue process always requires, at a

minimum, notice” (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1204

(CA9 2014)). The only notice given Eguchi was that “further noncompliant

behavior” (ER 72)—or, more casually put, not “do[ing] everything [his]

probation officer [told] him to do” (ER 64)—was what would trigger the

rescission of abeyance. He was never told that a mere change in the subjective

views of his probation officer would suffice. But it is the latter, not the former,

that the district court made the professed basis of rescission, revocation, and

imprisonment. ER 126–127. Because he was not given notice that a mere

change in his probation officer’s subjective hope and optimism would result in

rescission, revocation, and imprisonment, the district court violated due process





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by relying on the probation officer’s pessimism to rescind abeyance, revoke

supervision, and imprison him.

Another minimal due process protection guards against decisions based

on unreliable and incorrect information. This concern typically arises in the

context of sentencing: while a statute allows the court to rely on any and all

information at sentencing, due process precludes relying on unreliable or

incorrect information. United States v. Hill, ___ F.3d ___, 2019 WL 471559

(CA9 2019) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948), and United

States v. Vanderwerfhorst, 576 F.3d 929, 935–936 (CA9 2009)). It also arises in

the supervised release context, in which due process precludes relying on

unreliable hearsay evidence to revoke supervised release and necessitates

predicating revocation on “verified facts.” United States v. Comito, 177 F.3d

1166, 1170 (CA9 1999); see also, e.g., Morrissey v. Brewer, 408 U.S. 471, 482

(1973); United States v. Perez, 526 F.3d 543, 548 (CA9 2008).

Sifted, post-abeyance revocation in this case ostensibly turned on the

probation officer’s lost hope, which the district court recognized rested on

“unsubstantiated” (ER 110, 112) “rumors” (ER 120) that had “affected” (ER

110) the probation officer’s mindset. ER 101–103, 110–113, 126–127. The

government admitted it could not, even after further investigation and

exercising all due diligence, substantiate any of those rumors. ER 77. And the



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district court expressly made no factual findings about those rumors. ER 126–

127. Relying on those rumors by way of the probation officer’s lost hope and

optimism did nothing to verify them. Relying on the probation officer’s

hopelessness and pessimism to rescind abeyance, revoke the defendant’s

supervised release, and imprison him did not, accordingly, comport with due

process’s reliability component.

Another minimal protection due process affords a supervised releasee is

that revocation will not turn on a probation officer’s subjectivity. Granted, there

is no case directly on point with the odd and unique set of facts this case brings

to this Court. But this Court’s cases invalidating vague supervised release

conditions establish the principle Eguchi invokes well enough.

In Aquino, for example, this Court struck down a condition prohibiting

the defendant from using any substance that mimicked the effects of any

controlled substance, which this Court recognized reached such things as

chocolate, coffee, and tea. Aquino, 794 F.3d at 1037. Noting a condition is not

saved by the government’s promise to enforce it narrowly, this Court

invalidated the condition because the defendant “should not be forced to guess

whether an overzealous probation officer will attempt to revoke her supervised

release for drinking a grande iced nonfat chai with a shot of expresso.” Id. at

1037–1038 (citing United States v. Siegel, 753 F.3d 705, 713 (CA7 2014)). And




22

in Hall, this Court invalidated a condition that limited the defendant’s contact

with a family member to “normal familial relations,” because the quoted phrase

was “susceptible to many different interpretations” and left the defendant at the

whim of a probation officer giving it an unlikely meaning. Hall, 912 F.3d at

1227. As this Court put it in United States v. Soltero, 510 F.3d 858 (CA9 2007)

(per curiam), “[a] vague supervised release condition ‘cannot be cured by

allowing the probation officer an unfettered power of interpretation, as this

would create one of the very problems against which the vagueness doctrine is

meant to protect.” Id. at 867 n. 10 (glossing United States v. Loy, 237 F.3d 251,

266 (CA3 2001)); see also, e.g., United States v. Evans, 883 F.3d 1154, 1164

(CA9 2018) (quoting Soltero).

To rescind abeyance, revoke Eguchi’s supervised release, and imprison

him, the district court expressly and exclusively relied, at least ostensibly, on a

probation officer’s subjective state of mind—his newly lost hope for, and

newfound pessimism regarding, the defendant’s continued success on

supervised release. ER 126–127. Due process does not permit a deprivation of

liberty to turn on a probation officer’s (or a court’s) change of mood.

3. The law of the case doctrine provides that “a court is generally

precluded from reconsidering an issue that has already been decided by the

same court[.]” United States v. Alexander, 106 F.3d 874 (CA9 1997). Having









23

decided that the appropriate thing to do with the five admitted violations was to

hold them in abeyance and continue Eguchi on his initial supervised release

term, the law of the case doctrine generally precluded the district court from

revisiting the issue. Counsel discerns no reason why the district court’s

abeyance ruling would stand uniquely immune from the law of the case

doctrine. The court’s abeyance ruling was a ruling, like any other.

This Court holds that a district court abuses its discretion under the law

of the case doctrine unless:

1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence [before the court] is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.

Alexander, 106 F.3d at 876. The only one of these even potentially applicable in

Eguchi’s case would be the changed circumstances trigger. The only

circumstance that had changed, however, was that the probation office had

ceased to be hopeful. No new violations of Eguchi’s supervised release were

proven. No additional aggravating facts about the original violations had come

to light. No material change in his sincerity or familial support had occurred.

And no transgressions of the implied or express terms under which the court

had granted abeyance (failing to obey, or lying to, the probation officer) were

even alleged, much less proven. The district court, moreover, recognized that



24

the probation officer’s newfound pessimism was entirely the product of

unsubstantiated rumors, which the government declined to prove, and which the

court refused to find true.

A probation officer’s entirely subjective altered mindset—especially

when the record demonstrates the probation officer’s changed view is

predicated on unverified (and, the government conceded, unverifiable)

information—is not sufficient to justify revisiting the district court’s abeyance

ruling under the law of the case doctrine. This is a point Senior District Court

Judge Kay recognized. ER 72. But because Senior District Court Judge

Mollway did not, this Court should side with Judge Kay, vacate Judge

Mollway’s judgment of revocation, and remand this matter for reinstatement of

Eguchi’s initial term of supervised release. Unverified information and

subjective mood changes are not the type of changed circumstances the law of

the case doctrine has in mind. There must be a change in the evidence or other

facts before the court. The government’s refusal to prove and the district court’s

failure to find true any of the allegations on which the probation officer relied

was thus fatal to revisiting the court’s abeyance ruling under the law of the case

doctrine.


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Conclusion

This Court should vacate the district court’s revocation judgment and

remand this matter for reinstatement of Eguchi’s initial term of supervised

release and any other further proceedings that may be appropriate.

DATED: Honolulu, Hawaii, February 15, 2019.

/s/ Craig Jerome CRAIG JEROME Assistant Federal Defender Counsel for Roland Eguchi, Jr.


Statement of Related Cases

Counsel is not aware of any cases pending before this Court that are

related to the present matter.

DATED: Honolulu, Hawaii, February 15, 2019.

/s/ Craig Jerome CRAIG JEROME Assistant Federal Defender Counsel for Roland Eguchi, Jr.


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