United States of America v. Shawn L. Poellnitz

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

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the filing of the supervised release petition
and the supervised release violation
hearing was 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 from custody
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.

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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

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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.

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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

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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, a nolo 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.

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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.

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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
c o n t e n d e r e p l e 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 th e
underlying facts. . . . The
Alf o r d 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.

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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

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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
whether there 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
period reasonably 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.

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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”).

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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
himself in 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 t h e s e offense s
occurred?
THE DEFENDANT: Yes.
T H E COURT : Y ou
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.

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