Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1986)

MEMORANDUM^** 

Appellant James Fernhoff appeals from the district court's order revoking his probation and requiring him to serve his one year sentence in prison. We affirm.

FACTS

On November 4, 1983, James Fernhoff was convicted of two counts of willful failure to file federal income tax returns, a misdemeanor in violation of 26 U.S.C. § 7203. He received a suspended sentence and was placed on three years probation. As conditions of probation, the magistrate ordered that Fernhoff (1) pay a $2000 fine for each count; (2) pay the $1242.33 cost of prosecuting him; (3) file all past due tax returns, pay all back taxes and file copies of future returns with the probation department; (4) not violate any laws; and (5) file annual financial statements with the probation department. Fernhoff signed a statement acknowledging that he understood the conditions of his probation and would abide by them.

On August 27, 1986, probation officer Wayne Momerak filed a petition for probation action requesting that Fernhoff's probation be revoked for failure to pay the fines and costs imposed on him. On September 8, 1986, the magistrate set a probation revocation hearing for October 24, 1986. It sent the order to Fernhoff's last known address.

Fernhoff did not appear at the October 24 hearing, and a bench warrant was issued for his arrest. Four days later, on October 28, he appeared before the court and was informed of the charges made against him in the probation revocation petition. A public defender was appointed to represent Fernhoff, and the continuance of the revocation hearing was scheduled for November 25, 1986. The magistrate instructed Momerak to file a second petition setting forth all possible probation violation allegations. Fernhoff was advised in open court of what the additional charges would be--principally, failure to file past tax returns. The probation officer filed the second petition on October 29, alleging that Fernhoff had failed to pay back taxes, file past due tax returns with the IRS, and file financial statements with the probation department. Fernhoff received a copy of the revised petition on November 14, 1986.

At the November 25 hearing, the magistrate heard testimony from Momerak and arguments by counsel for both sides. Fernhoff did not deny that he had not filed his back tax returns. The magistrate reminded Fernhoff that one of the reasons he was not sent to jail in 1983 was that he had claimed his past returns would be filed within a month. She then revoked Fernhoff's probation and ordered him to serve one year for each of the two counts of tax evasion, to run concurrently. Fernhoff timely appealed.

DISCUSSION

The revocation of probation is a final order over which we have jurisdiction pursuant to 28 U.S.C. § 1291.

Fernhoff claims that several of his due process rights were violated in the course of his probation revocation. We review the magistrate's constitutional rulings de novo. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir. 1984) (en banc).

Before probation may be revoked, a probationer has a due process right to: (1) written notice of the claimed violations; (2) disclosure to the probationer of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine witnesses; (5) a neutral and detached hearing body; and (6) a written statement as to the evidence relied upon and reasons for revoking parole. Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973).

Fernhoff first claims that he did not receive timely written notice of the proceedings because he never received notice of the first hearing and did not receive the second revocation petition until November 14, after his probation had expired.

Under 18 U.S.C. § 3565(b), the district court's power to revoke probation "extends beyond the expiration of the term of probation for any period reasonably necessary ... if, prior to its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation." The bench warrant was issued on October 24, 1986, six days before Fernhoff's probation was to expire. At the latest, Fernhoff had notice on October 28 when he was advised of his rights and the charges pending against him. The second petition was timely filed on October 29, and Fernhoff received a copy of it ten days before his continued hearing. He therefore had timely notice, and the magistrate, having timely issued a warrant, acted within her authority in holding a hearing after the expiration of Fernhoff's probation.

Appellant next argues that the Government failed to disclose the evidence against him. The only evidence the Government produced was officer Momerak's testimony that Fernhoff had failed to pay the taxes, costs and fines imposed as a condition of his probation. Since Momerak made these same statements in his two petitions for probation revocation, Fernhoff was aware of the evidence. There is nothing more the Government could have disclosed.

Fernhoff maintains that he was denied the right to confront and cross-examine adverse witnesses. Because his counsel cross-examined the Government's only witness at the hearing, this claim is meritless.

Fernhoff next contends that he was denied a neutral and detached hearing body, because the magistrate who conducted the probation revocation hearing was the same magistrate who sentenced him. A judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test for disqualification is an objective one; we ask "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). The Supreme Court has ruled that having the same judge retry a case after reversal does not violate due process. Withrow v. Larkin, 421 U.S. 35, 57 (1975). We have held that, absent proof of bias, the original sentencing judge may properly hear charges that allegedly inaccurate information in the presentence report had a prejudicial effect on his choice of sentence. United States v. Fernandez, 589 F.2d 977, 979 (9th Cir. 1978). We found many reasons supporting reconsideration by the same judge, including "that judge's familiarity with the facts and circumstances surrounding the original sentencing ... and a desire to avoid the wasteful delay and duplicated effort inherent in reassignment to a new judge." Id.

Fernhoff has made no specific allegations of bias against the magistrate in this case; he bases his claim solely on the fact that she is the same magistrate who originally sentenced him. Such an allegation is not a sufficient basis for disqualification.

Fernhoff further claims that he received no written statement of the evidence that the court relied on and the reasons for revoking probation. The purpose of such statements is to provide an adequate record for review on appeal. We have held that where the district court has made an oral statement on the record of its reasons, and the grounds for revocation are clear, due process is satisfied. United States v. Rilliet, 595 F.2d 1138, 1140 (9th Cir. 1979) (per curiam).

Finally, Fernhoff argues he was denied due process because he was never specifically warned that failure to comply with probation conditions could result in a prison sentence. Although due process requires that a probationer receive "fair warning of acts which may lead to revocation," United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987), we have found a formal condition of probation to constitute adequate notice. United States v. Grant, 816 F.2d 440, 442 (9th Cir. 1987). Since each of Fernhoff's alleged violations was of a formal condition of his probation, he was on notice. The magistrate did not deny him due process by revoking his probation.

Fernhoff attacks as ineffective the assistance his counsel rendered at the probation revocation hearing. Claims of ineffective assistance raise mixed questions of law and fact which we review de novo. United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir. 1985).

A defendant alleging ineffective assistance must prove that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defendant. He must point to errors or omissions in the record on appeal that establish that his representation was inadequate. Id.

We do not ordinarily review claims of ineffective assistance on direct appeal. United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988). Challenge by way of habeas corpus is preferable as it permits the defendant to develop a record as to what counsel failed to do and what, if any, prejudice resulted. Id.

This case illustrates the shortcomings of contesting counsel's performance on direct appeal. Fernhoff maintains his counsel was ineffective because he was "totally unprepared" for the hearing. But there is no showing in the record before us as to what evidence could have been adduced to demonstrate that Fernhoff had complied--or was unable to comply--with the conditions of his probation. Absent such a showing, Fernhoff cannot show the prejudice necessary for a successful ineffective assistance claim.

Fernhoff argues that the magistrate abused her discretion by revoking his probation. A magistrate has broad discretion to revoke probation when its conditions are violated. Simmons, 812 F.2d at 565. Nonetheless, the court must base its decision on a finding that the probationer has in fact violated his probation and that incarceration would protect society and advance the ends of rehabilitation. Grant, 816 F.2d at 441.

The magistrate found that Fernhoff had failed to meet several of the conditions of his probation: he had made no payment on his fine; he had not paid the costs of prosecution; he had not filed past due tax returns. She found that he had some ability to pay.

A prisoner who has sufficient resources but has refused to pay a fine or restitution may be imprisoned to enforce collection. Bearden v. Georgia, 461 U.S. 660, 668 (1983); United States v. Green, 735 F.2d 1203, 1207 (9th Cir. 1984). The filing of past due returns did not require the payment of money. The evidence at the revocation hearing demonstrated that Fernhoff had not complied with his probation conditions, and the magistrate rejected his claimed defense of inability to pay.¹  On this record, the magistrate did not abuse her discretion by revoking Fernhoff's probation.

The order of the district court is AFFIRMED.