From Casetext: Smarter Legal Research

United States v. Tribbey

United States District Court, Eastern District of California
Oct 28, 2022
2:12-cr-00445-KJM (E.D. Cal. Oct. 28, 2022)

Opinion

2:12-cr-00445-KJM

10-28-2022

United States of America, Plaintiff, v. Alfred Bryant Tribbey, Defendant.


ORDER

The government alleges defendant Alfred Tribbey did not comply with the conditions of his supervised release because he violated a domestic violence protective order, did not report contacts with law enforcement and an arrest, and did not report that he was ordered to move from where he lived. As explained in this order, the government has proven three of the four alleged violations.

I. EVIDENCE

In 2018, Tribbey pleaded guilty to participating in a drug conspiracy. See Plea Agreement, ECF No. 135. He was sentenced to 77 months' imprisonment and 60 months' supervised release. Judgment & Commitment, ECF No. 143. The court imposed several conditions on his supervised release, including the following:

You must not commit another federal, state or local crime.

...
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change. ...
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
Id. at 3-4.

After Tribbey completed his prison sentence, a Probation Officer visited him where he was living with his then-fiancee. Evid. Hr'g Tr. at 18, ECF No. 165. The officer did not see any problems. See id. But less than a month later, late on a Friday night, a judge of the California Superior Court issued a one-week emergency protective order against Tribbey to prevent domestic violence. See Gov't Ex. 4; Evid. Hr'g Tr. at 45-47. The order directed Tribbey to immediately move out of the house where he had been living with his former fiancee, to stay at least 100 yards away from her and her house, and not to contact her “by any means,” including by phone and electronically, among several other restrictions. See Gov't Ex. 4; Evid. Hr'g Tr. at 4547.

The day after the protective order was issued, Tribbey's former fiancee called his Probation Officer several times. Evid. Hr'g Tr. at 20, 22. These calls led the officer to suspect Tribbey had committed a crime. Id. at 22. She began investigating. A detective at a local law enforcement agency later told her he had been in “contact” with Tribbey on the day the state court issued the protective order. Id. at 24. No details of this “contact,” however, are in the record.

On the Monday after the emergency restraining order was issued, Tribbey's former fiancee contacted the Sheriff's Department. See id. at 41. When a deputy responded, she told her that Tribbey had attempted to call and message her many times over the weekend, that he had followed her out of a mobile phone store to her car, and that he had been near her home. See id. at 42. She showed the deputy records of Tribbey's calls and a message she had received from him on Facebook Messenger. Id. at 51-52. Based on this report, the deputy concluded that Tribbey had violated the protective order. Id. at 48.

Later the same day, Tribbey called the Sheriff's Department and asked for help retrieving his belongings from his former fiancee's house. Id. at 55. The deputy who had spoken to his former fiancee earlier that day persuaded Tribbey to meet in a nearby parking lot. Id. at 56. When they met, Tribbey admitted he had contacted his former fiancee and had also attempted to speak to her in person at the mobile phone store. See id. at 57. He also admitted he had retrieved his car from where it had been parked near his former fiancee's house, and he admitted he had known about the protective order at the time. See id. In the deputy's assessment, Tribbey had violated the protective order fourteen times. Id. at 59. She and her partner arrested him. Id. The parties agree he was released again the same day and was not detained during the next 72 hours. See Gov't Br. at 11, ECF No. 166; Def.'s Br. at 6, ECF No. 167.

The Probation Officer assigned to Tribbey's case found a report using Sacramento County's inmate locater, which confirmed to her satisfaction that Tribbey had been arrested and released. See id.; Gov't Ex. 3. She also reviewed a report of his arrest for violating the restraining order. Evid. Hr'g Tr. at 25. Tribbey did not attempt to report his arrest or his removal from his former fiancee's home until after the protective order expired. See id. at 30.

This court issued a warrant for Tribbey's arrest based on charges he violated the conditions of his supervised release, ECF No. 147, superseded by ECF No. 158. The petition includes four charges:

(1) A violation of California law based on a violation of the protective order. See Pet. at 2, ECF No. 158.
(2) Failure to notify the Probation Officer within 72 hours after contact with law enforcement officers. See id.
(3) Failure to notify the Probation Officer within 72 hours of an arrest. See id.
(4) Failure to notify the Probation Officer within 72 hours of his removal from his former fiancee's home, i.e., a change of address. See id. at 3.
Tribbey was detained after a hearing before the Magistrate Judge. ECF No. 150. After the petition was filed, but before his first appearance before the Magistrate Judge, he attempted to contact the Probation Officer from the jail where he was detained. Evid. Hr'g Tr. at 30. He also requested a hearing to contest the evidence of the four charged violations, and the court conducted a hearing on June 6, 2022. Mins., ECF No. 160. Two witnesses testified: the Probation Officer assigned to Tribbey's case, and the Sacramento County Sheriff's Deputy who arrested him on suspicion of violating the protective order. See id. The parties then filed written closing arguments. See generally Gov't Br., ECF No. 166; Def.'s Br., ECF No. 167.

In its post-hearing brief, the government informed the court for the first time that Tribbey had pleaded nolo contendere to violating the state court's protective order. Gov't Br. at 4, 10-11; Gov't Ex. 5, ECF No. 166. Although Tribbey had entered his plea before the evidentiary hearing, the government claims it did not learn about his plea until after the hearing ended. Gov't Br. at 4. Tribbey objects to the introduction of his plea and moves to “strike it from the record of this case” because its late submission precludes him “from presenting evidence to counter it.” Def.'s Br. at 5. He does not explain, however, what evidence he would offer now. The court may also take judicial notice of the state court records. See United States v. Tanco-Pizarro, 892 F.3d 472, 478 n.2 (1st Cir. 2018) (taking judicial notice of defendant's guilty plea during revocation proceedings); United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (taking judicial notice of state court criminal conviction as undisputed matter of public record). The court overrules Tribbey's objection and considers the state court's records of his plea and conviction.

Tribbey also objects to some testimony the government offered as hearsay. See Def.'s Br. at 2-3, 4. He objected to the same testimony at hearing as well. See Evid. Hr'g Tr. at 20-23, 5152, 72. Although defendants are indeed ordinarily “guaranteed the right to confront and crossexamine adverse witnesses at a revocation hearing,” United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999), it is not necessary to reach this issue. Tribbey's own statements are not hearsay. See Fed.R.Evid. 801(d). And aside from those statements, the court has relied on no out-of-court statements as proof of the matter the declarant asserted. The hearsay objections are thus moot.

II. DISCUSSION

A district court may revoke a term of supervised release if it “finds by a preponderance of the evidence that the defendant violated a condition of his supervised release.” 18 U.S.C. § 3583(e)(3). The court considers each of the government's four charges measured against this standard.

A. New Violation of California Criminal Law (Charge One)

In the first charge, the government alleges Tribbey violated the terms of his supervised release because he was “arrested and charged” for violating the restraining order. Pet. at 2. The condition in question, however, does not prohibit arrests and charges. Under this condition, he “may not commit another federal, state, or local crime.” Judgment & Commitment at 3 (emphasis added). So to prove Tribbey violated this condition, the government must show by a preponderance of the evidence both that he violated the restraining order and that doing so was a crime.

The government has shown by a preponderance of evidence that Tribbey violated the restraining order. The order barred him from contacting his former fiancee by phone or electronic means and from coming within 100 yards of her or her home. See Gov't Ex. 4; Evid. Hr'g Tr. at 45-47. Tribbey admitted to a Sheriff's Deputy that he had called and messaged his former fiancee, retrieved his car from where it was parked within 100 yards of her home, and followed her to her car from a mobile phone store, all while the restraining order was in place. See Evid. Hr'g Tr. at 57. The same deputy also testified that she saw records of Tribbey's calls and messages on his former fiancee's phone. Id. at 51-52.

The government has also shown by a preponderance of evidence that this violation was a crime under California law. In California, “[a]ny intentional and knowing violation of a protective order . . . is a misdemeanor.” Cal. Penal Code § 273.6(a). The government must therefore prove Tribbey's violation was at least “knowing.” It has done so. Tribbey admitted he was aware of the restraining order. Evid. Hr'g Tr. at 57. He received a copy the night it was issued. See Gov't Ex. 4; Evid. Hr'g Tr. at 50. And he later pleaded nolo contendere to violating section 273.6(a), which the state court noted was the same as a guilty plea, Gov't Ex. 5 at 2.

Tribbey argues the restraining order was “vague, ambiguous, and impossible to comply with” because it demanded both that he stay away from his former fiancee's home and immediately move out, which required that he remove things from the home. See Def.'s Br. at 4. This argument is unavailing on its face. But it begs the question, does Tribbey mean to argue, for example, that the order deprived him of due process? Cf. Johnson v. United States, 576 U.S. 591, 595-96 (2015) (discussing Fifth Amendment protections against vague criminal laws). If so, what would that deprivation mean for the terms of his supervised release? Tribbey does not say. Nor is his argument persuasive on its own terms. It does not refute the government's evidence that Tribbey violated the order by contacting his former fiancee and following her out of the mobile phone store. He does not claim the order was vague in prohibiting these contacts. Nor did the restraining order prohibit him from retrieving his belongings after it expired a week later. The government has proven its first charge.

B. Notice of Law Enforcement “Contact” (Charge Two)

The government alleges in its second charge that Tribbey violated the conditions of his supervised release because he did not report that “he had contact with Sacramento County Sheriff's Deputies after they responded to his home.” Pet. at 2. The conditions of Tribbey's supervised release did not require him to report every “contact” with law enforcement officers. He was required to notify the Probation Officer if he was “arrested or questioned by a law enforcement officer.” Judgment & Commitment at 4. The government has not offered evidence that Tribbey was questioned or arrested when officers came to his home. Cf. Evid. Hr'g Tr. at 24 (testifying second-hand about reports of “contact” with officers). Nor is it clear from the arresting deputy's testimony that officers questioned Tribbey before arresting him. Tribbey contacted the Sheriff's Department and asked them to meet him, and the arresting deputy agreed with the government's suggestion that the encounter was an “interaction” or “back and forth,” which is not necessarily “questioning.” See Evid. Hr'g Tr. at 55-59. The government has not proven its second charge by a preponderance of the evidence.

C. Notice of Arrest and Relocation (Charges Three and Four)

In charges three and four, the government alleges Tribbey violated the terms of his supervised release because he did not report his arrest or his expulsion from his home within 72 hours. Pet. at 2-3. As noted above, Tribbey was required to report any arrest to the Probation Officer within 72 hours. Judgment & Commitment at 4. He also was required to report any change of address “at least 10 days before the change” unless it was “not possible due to unanticipated circumstances,” in which case he was required to “notify the probation officer within 72 hours of becoming aware of a change or expected change.” Id.

The government has proven by a preponderance of evidence that Tribbey was arrested. See Evid. Hr'g Tr. at 59. He did not tell his Probation Officer about this arrest, Id. at 30, which he concedes, see Def.'s Br. at 6. Tribbey asks the court to excuse the failure because he was arrested again a few days after the unreported arrest. See id. It is undisputed, however, that Tribbey was not detained during the 72 hours starting immediately after his first arrest, which gave him time to fulfill his obligations under the terms of his supervised release. See id.

The government has also proven by a preponderance of evidence that Tribbey did not report he would no longer be living with his former fiancee. He was ordered out of his former fiancee's home and did not notify his Probation Officer. See Gov't Ex. 4; Evid. Hr'g Tr. at 30, 45-47. The government has proven charges three and four.

III. CONCLUSION

The government has proven charges one, three, and four. This matter is set for a dispositional hearing on November 28, 2022 at 9 a.m.

IT IS SO ORDERED.


Summaries of

United States v. Tribbey

United States District Court, Eastern District of California
Oct 28, 2022
2:12-cr-00445-KJM (E.D. Cal. Oct. 28, 2022)
Case details for

United States v. Tribbey

Case Details

Full title:United States of America, Plaintiff, v. Alfred Bryant Tribbey, Defendant.

Court:United States District Court, Eastern District of California

Date published: Oct 28, 2022

Citations

2:12-cr-00445-KJM (E.D. Cal. Oct. 28, 2022)