Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 97-00746-James G. Carr, District Judge.
Before: Merritt, Jones, and Siler, Circuit Judges.
The opinion of the court was delivered by: Merritt, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Submitted: September 22, 1998
MERRITT, J., delivered the opinion of the court, in which JONES, J., joined. SILER, J. (p. 7), delivered a separate Dissenting opinion.
The defendant appeals the revocation of his probation because of two recorded telephone calls to his probation officer and the imposition of a 24-month sentence at resentencing. The question is whether the two phone calls form a sufficient basis to revoke probation.
The facts are basically undisputed. After pleading guilty to bank fraud violations pursuant to 18 U.S.C. § 1028(a)(5) and (a)(6), defendant Jerome Strager was sentenced in Toledo in the Northern District of Ohio in August 1997 to one year probation with "special conditions." The special condition was 92 days of home confinement with electronic monitoring to be served at his mother's house in Detroit, which is in a different judicial district. Supervision of his case was transferred from the Toledo to the Detroit probation office.
Defendant's presentence investigation report states that defendant does not show signs of a major mental illness, but it does indicate what is described as a "personality disorder." Specifically, it was reported that defendant presented "prominent histrionic and paranoid features" and was a "good candidate" for continued mental health therapy.
In September 1997, Howard Jacobs, stationed in Detroit, was assigned as defendant's probation officer. Probation Officer Jacobs and defendant met briefly in late September 1997, but they had their first actual meeting on October 10, 1997 to go over the terms of defendant's probation. The probation officer explained the terms as he understood them to apply in the Eastern District of Michigan. At the October 10 meeting, the two men chose October 28, 1997, as the day to install the electronic monitoring equipment.
Probation Officer Jacobs was unable to install the equipment on the designated day and called defendant at the end of the day to tell him he would be by the next day, October 29, to install the equipment. When Jacobs arrived at his office on October 29, he found two messages from defendant from the previous day, as follows:
I got a cellular phone. When I go out for three, four, five hours day to take care of my sports business, you have my cellular number, and you can call me and know exactly where I am at.
Also, there is another little problem. I am filing motions to the court because I have no attorney any more. This attorney is gone, I don't know, and I am going ...