Nacchio: A Must-Read Case Concerning Expert Testimony

US v. Nacchio, 2009 WL 455666 (10th Cir. Feb. 25, 2009) (en banc) (on rehearing 535 F.3d 1165 (10th Cir. 2008):
Holmes, Tacha, Briscoe, Lucero and Hartz in the majority:

If you are seeking to have expert testimony admitted or excluded, this is a must-read decision. And if you think this summary is long, check out the full decision!

http://ca10.washburnlaw.edu/cases/2009/02/07-1311.pdf

The former CEO of Qwest was convicted of multiple counts of insider trading. He appealed his conviction, his sentence, and the forfeiture of his assets. A divided panel held the evidence was sufficient to support the conviction, but that expert testimony had been improperly excluded. It did not reach the sentencing or forfeiture issues. The case was remanded for a new trial. The Tenth granted rehearing on the expert testimony issue, and held the expert testimony was properly excluded.

Jury trial commenced after more than a year of motions and discovery, during which Mr. Nacchio did not disclose any experts. Three days before trial, on March 16, he disclosed he intended to call Prof. Fischel as an expert, pursuant to Fed.R.Crim.P. 16. Mr. Nacchio also provided the government with a short summary of the professor's testimony and his C.V. The government objected that the disclosure was not complete and did not comply with Rule 16 nor with Fed.R.Evid. 401, 403, 602, 702 and 704. The district court agreed and ordered the defendant to produce an expert disclosure that complied with the Federal Rules "described herein" by March 26. There were lengthy motions, a hearing, and argument. The defendant received permission to put the professor on the stand as a nonexpert, but the district court excluded his testimony as an expert.

1. The majority rejects the defendant's argument that the district court erroneously relied on Rule 16. Instead, the court says, it is clear that the final basis for exclusion was the district court's determination that the professor's testimony lacked reliability under FRE 702 and Daubert.

2. Defendant contended that he had a right to expect to be able to establish the reliability of the expert's testimony on the witness stand and that the court would allow voir dire or questioning of the witness before ruling on admissibility. No, no, says the Court. That expectation may have been reasonable in light of case law, but the district court was not required to follow that procedure and its failure to do so did not, by itself, constitute an abuse of discretion. Furthermore, Mr. Nacchio was on notice of the need to establish reliability because the government had mentioned FRE 702 in its first objection to the Rule 16 disclosure, and the subsequent briefing demonstrated that the parties knew Daubert was at issue. In Footnote 13, the majority observes that, after Mr. Nacchio had actually responded to the Daubert issue, "at this point Mr. Nacchio's decision to steadfastly continue to view the government's attack on Professor Fischel's expert testimony solely as it was initially framed-that is, only through the lens of Rule 16-became both unwise and perilous." He also had the opportunity to present evidence in support of the professor's methodology or to request a hearing or continuance, both continually and on several different occasions. As the party proffering the expert testimony, the burden was squarely on Mr. Nacchio to request a hearing on the subject.

3. The ultimate issue is whether the district court abused its discretion, and the majority holds it did not.

This case could provide ammunition for seeking to exclude law enforcement officers' "expert" testimony. The Court says:
"An expert witness's testimony can rely solely on experience. When that is the case, however, 'the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.' Fed.R.Evid. 702 advisory committee's note (2000). Mr. Nacchio did not offer any of this additional information. 'The trial court's gatekeeping function requires more than simply ‘taking the expert's word for it.' ' Id. '[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.' Joiner, 522 U.S. at 146."

The case was remanded to the original panel to consider the sentencing and forfeiture issues.

Judges McConnell, Henry, Kelly and Murphy dissented. Notably, they would have found that the defendant did have the right to establish the reliability of his expert through testimony and, if the trial court intended a different procedure, it had to inform the parties. Furthermore, even if counsel had made a mistake, the trial court abused its discretion by refusing to allow the primary line of defense.

How Many Ways to Vary from the Guidelines? At Least 171!

Periodically, I like to include a reminder of a wonderful sentencing resource that I keep on my desk for sentencing memos: Michael Levine's "171 Easy Mitigating Factors". It brings together numerous cases to provide bases for mitigation arguments. The resource (now more than 140 pages long) is updated regularly during the year.

It's not free, but it is invaluable. It groups cases by potential argument: youthful offender, good employment history, "super" acceptance of responsibility, rehabilitation. In fact, you can find helpful cases discussing just about any factor that might be a basis for a variance or departure argument.

The cost for the most recent edition is $125.00 for an electronic copy, $175.00 for a bound copy, and $400.00 for an annual subscription (six to twelve issues depending on developments in the law).

To order, send a check or money order in the appropriate amount to Michael R. Levine, 1001 SW 5th Avenue, Suite 1414, Portland, Oregon 97204 or email michael@levinedefenders.com. Please include your email address.

OSHA Does Not Preempt OK Law Allowing Employees to Keep Guns in Cars at Work

Ramsey Winch, Inc. v. Henry, 2009 WL 388050 (2/18/09) (Published) - The 10th holds the federal Occupational Health and Safety Act, which imposes a general duty to maintain a workplace free of recognized hazards, did not preempt Oklahoma's law that makes it a criminal offense to prohibit employees from keeping firearms in their locked vehicles on company property. The state's right to exercise its police powers prevails.

Circuit Snippets

These are interesting (to me, anyway) cases from around the country:

The Eleventh Circuit added to the circuit split over suppression of identity evidence that is obtained as the result of an illegal search, coming down on the side of the 9th Circuit, which had held such evidence is never suppressible, US v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005), and disagreeing with the Tenth, which had held in US v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), that the Supreme Court's decision in Lopez-Mendoza applied only to civil deportation proceedings and thus illegally obtained identity evidence could be suppressed. In this case, the facts are so outrageous I'll spend a little time on them. The story was that two special ICE agents were patrolling Atlanta apartment complexes for possible gang activity. They saw a man working on his car, and thought his haircut and tattoos were similar to those of "Hispanic gang members" (you can draw your own conclusions as to what was really going on). The agents, visibly armed, accosted him and demanded identification, which he (accompanied by the agents) got from his apartment. The ID identified him as someone else, so they questioned him some more, asked him to take off his shirt so they could photograph his tattoos, etc. Ultimately, the agents got out the handy-dandy portable fingerprint machine, took the man's prints, discovered who he was and that he was illegal.

In holding that this evidence was not suppressible, the 11th Circuit emphasized the high social costs of suppression, observing that the defendant's very presence in the US was a crime (apparently, the fact that the defendant will be deported regardless and thus no longer be polluting the US with his illegal presence was of little weight). On the other side, the Court thought there would be little deterrence effect in suppressing the evidence because law enforcement officers could obtain the evidence by other, Constitutional means -- It reasoned that the Supreme Court's decision in Hiibel had established that officers could constitutionally require persons to identify themselves (I thought Hiibel was more limited than that, holding only that officers who otherwise had reasonable suspicion to investigate someone could require that person to identify themselves, rather than the broad rule applied here). Besides, the government could always just obtain the identity evidence by other means and the criminal prosecution would merely be postponed. Scarily, the magistrate judge originally advised holding that, because the defendant had visible tattoos, he had no right to privacy to the tattoos under his shirt and therefore the ICE agents did not violate the Fourth Amendment by pushing his sleeve up to look for other tattoos. At least the district court rejected that reasoning. US v. Farias-Gonzalez, No. 08-10508, 2009 WL 232328 (11th Cir. 2/3/09)

Overruling a prior holding, the Eleventh Circuit agreed with other circuits that the federal mail fraud statute applies to fraudsters who target the foolish and naive. Earlier, it had held that 18 USC 1341 applied only to fraud schemes that would deceive someone of ordinary intelligence and prudence. The defendants in this case were selling interests in "viatical settlements," which are financial products based on agreements with "viators," who are persons suffering from terminal illnesses who sell their life insurance policies to third parties for less than their mature value so as to get some benefit from them while alive. The defendants sold these interests to investors, many of which were elderly, and made oral false statements (the viators were on the edge of death, etc., when many weren't). The contracts, of course, contained language saying the investors had relied only on the contracts. The defense was that ordinary prudent investors would have read the contracts and not been duped, but the trial court and the 11th rejected the argument, reasoning that the focus of the statute was on the violator and whether the violator intended to deceive. US v. Svete, 2009 WL 225254, NO. 05-13809 (11th Cir. 2/2/09)

Statutory rape without use of force is not a violent felony for purposes of ACCA, the Fourth said, relying on Begay. US v. Thornton, 2009 WL 242382, NO. 08-4251 (4th Cir. 2/3/09)

The en banc 8th Circuit reversed an earlier holding that approved thermal scans based only on reasonable suspicion. This wasn't a win for the defendant; the en banc court concluded that the search warrant authorizing the thermal scan was supported by "traditional probable cause" and, anyway, good old Leon good faith would rescue the situation if probable cause wasn't there. US v. Kattaria, 553 F.3d 1171, C.A.8 (Minn.), January 30, 2009 (NO. 06-3903)

A state case and junk science alert: a trial court did not abuse its discretion by allowing testimony from a "palm crease expert" that the palm creases in a hand seen assaulting a child sex abuse victim in a photograph matched the pattern on the defendant's hand (I see new career paths for Mme. Psychic -- palm reader and fortune teller). State v. Bickart, No. 2009 ME 7, Maine Supreme Judicial Court 1/20/09

A prior conviction from a Puerto Rican court is a "domestic" conviction for purposes of the federal felon in possession statute, 18 USC 922(g)(1), the Third Circuit held. US v. Laboy-Torres, 553 F.3d 715 (3d Cir. 1/29/09)

A local government employee who reviewed grant invoices and used her authority to approve unauthorized payments to grantees (who then used the payments for personal gain) was properly given a USSG 3B1.3 enhancement for abusing a position of trust, the 8th Circuit held. US v. Moten, No. 07-3760 (8th Cir. 12/24/08)

Detention Order Affirmed in Child Abuse Case

US v. Begay, No. 09-211 (Feb. 18, 2009) (unpublished): The Tenth Circuit affirms the district court's decision to detain the defendant pending trial. Defendant was charged with assault with intent to do bodily harm to his nine-month-old daughter (the indictment alleges fracturing her skull, injuring her eye, and breaking her arm, legs and ribs). The magistrate judge concluded at the detention hearing that Mr. Begay was a danger to the community but conditions could be placed to ensure safety. Accordingly, the magistrate ordered Mr. Begay be placed in supervised release at La Posada Halfway House. The government appealed to the district court, which ordered detention. Defendant appealed to the Court of Appeals, which concluded that the district court's decision was supported by the evidence. The first factor of 18 USC 3142(g)(1), the nature of the offense charged, involved both a crime of violence and a minor victim. The weight of the evidence favored detention, as Mr. Begay had made various statements about causing the abuse and the medical evidence was that the injuries were consistent with child abuse. The third factor, history of defendant, supported detention because by age 21, Mr. Begay had one prior juvie conviction and two adult convictions, and was on probation. As for the danger to the community and other persons factor, there was evidence that Mr. Begay also physically abused his girlfriend.

Defendant Sentenced Pursuant to FRCrP 11(e)(1)(C) Agreement Not Entitled to Resentencing

US v. Gage, No. 08-7075 (Feb. 18, 2009) (unpublished): A defendant who was sentenced pursuant to an 11(e)(1)(C) plea agreement to an agreed-upon sentence was not sentenced "based on a sentencing range that has been subsequently lowered by the Sentencing Commission," 18 USC 3582(c)(2), and therefore the district court should have dismissed the defendant's motion without considering it on the merits.

70-month Sentence for PWID of 2 Tons of Marijuana Reasonable

US v. Bugarin, No. 07-2272 (2/18/09) (unpublished): Defendant was convicted of PWID more than two tons of marijuana, which was found in the trailer of a truck he was apparently co-driving. He pled guilty. He was eligible for safety-valve and therefore did not face the mandatory 10-year minimum sentence. However, his guidelines were 70-87 months and he faced removal. At sentencing, he argued for a variance on various grounds, including good character, collateral consequences of the conviction, and lack of other criminal history. Judge Johnson considered and rejected all the bases and imposed a 70-month sentence. On appeal, defendant challenged only the substantive reasonableness of his sentence. The Court of Appeals found that the sentence was substantively reasonable.

Unpublished Decisions

US v. Flanders, No. 08-6056, 2/19/09 - 10th affirms as substantively reasonable, with no discussion, an upward variance for a defendant convicted of bank fraud and related charges. Here is the whole "analysis" - "Mr. Flanders’ sole issue on appeal is that his sentence was substantively unreasonable. We have reviewed his arguments and disagree." This prompted the following concurrence from Judge O'Brien: "In a series of ceremonial rites the leveling forces of the guidelines, their hearthstone, were sacrificed on the altar of sentencing discretion and appellate courts rendered impotent. See Spears v. United States, 129 S. Ct. 840 (2009); Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v. United States, 128 S.Ct. 558 (2007); United States v. Booker, 543 U.S. 220 (2005)."

US v. Capadona, No. 08-1156, 2/19/09 - Defendant walked away from the minimum security camp at Florence CC and was arrested over six years later in California. He wanted to present a justification (duress) defense at trial, and the government moved in limine to exclude it. In response, defendant urged the court not to prejudge his defense and assured the court that he could present evidence on each element of the defense. The district court denied the motion and defendant got to tell his story, which centered around an alleged assault against him by a prison guard, to the jury. At the close of the evidence, the court ruled that defendant's story, even if believed, did not support the defense and it was not submitted to the jury. The jury of course found defendant guilty, and the court slapped him with the two-level perjury enhancement. On appeal, defendant claimed that the court erred in not ruling before trial that he could not present his defense, which prevented him from making a reasoned choice about whether or not to testify. The 10th agreed with the government that any error was invited by defendant, thus requiring no further review on appeal. As for the perjury enhancement, the 10th held that it was proper because the district court believed the prison guard's story that he never assaulted defendant, which was not clearly erroneous. Exactly how a story to support a defense about which the jury is not instructed, and therefore does not even consider, is "material" in the perjury context is not explained.

US v. Stevahn, No. 08-8036, 2/19/09 - 10th affirms denial of suppression motion where warrant authorizing seizure and search of computer for child porn was not supported by probable cause, but cops nevertheless acted in good faith in relying on it. Although Leon saves the day once again for the government, the 10th takes the opportunity to trumpet the Supreme Court's recent decision in Herring and its emphasis on exclusion of evidence that allows the guilty go free always being the last resort.

US v. Morris, No. 08-5016, 2/19/09 - It takes the court 26 pages to explain why an appeal from a prison term imposed for admittedly violating supervised release terms was frivolous, leading to dismissal of the appeal and granting of counsel's motion to withdraw. Go read it if you have nothing else to do.

US v. Coleman, No. 08-5113, 2/19/09 - Another crack sentence reduction appeal bites the dust. The district court reduced defendant's sentence to the midpoint of the lowered guideline range, and refused to vary downward from there on Booker/Kimbrough grounds. The sentence itself was not an abuse of discretion, and the variance argument has already been squarely rejected by the 10th.

US v. LeBeau, No. 08-5078, 2/19/09 - Same. This defendant got bottom end of the lowered sentencing range. No further variance allowed, rejecting the same Booker/Kimbrough argument.

No Clear S.Ct. Precedent Requires States to Prove Every Element in Jury Instructions

Bates v. Workman, 2009 WL 294367 (2/9/09) (unpub'd) - No federal habeas relief under AEDPA was available for the state's failure to present sufficient evidence to prove an element that was in the jury instructions, but was not an element under state law. Under federal law, under the law-of-the-case doctrine, the government must prove every element in the jury instructions, even if the element is not really an element under federal law. But there is no clearly established Supreme Court law that the states must apply that law-of-the-case doctrine. Therefore no relief under AEDPA.

No Factual Basis Required for Nolo Contendre Plea Where Innocence Not Asserted; IAC Claims Rejected

Green v. Koerner, 2009 WL 347457 (2/12/09) (unpub'd) - The state courts were not required to establish a factual basis for the petitioner's nolo contendere plea because she did not assert her innocence. The petitioner's assertion that she had evidence to challenge her guilt did not constitute an assertion of innocence. In any event, new evidence---in this case new developments in fire investigation science---cannot undermine the factual basis at the time of the plea. And, in any event, there was substantial evidence against the petitioner aside from the allegedly faulty fire investigation evidence. There was no ineffective assistance of counsel in failing to anticipate new developments in fire investigation science.

Procedural Reasonableness Claim Preserved; Judge's Sparse Explanation Sufficient

U.S. v. Hernandez-Valois, 2009 WL 301829 (2/9/09) (unpub'd) - A trial attorney shows how one can preserve a procedural reasonableness claim. Hurray. The trial attorney asked the district court for the court's findings with respect to the downward variance request. The judge responded: "Well, my findings are obvious. . . . I think he's already got enough. And with his criminal history category, I think he's getting exactly what he deserves." Because of the successful preservation of the issue, the defendant got de novo review. But the 10th felt the judge gave a sufficient explanation. The 10th also held the presumption of substantive reasonableness applies to a within-Guidelines sentence, even though the government offers Fast-Track pleas to some and not others.

State Revocation Counts for CH Points in Fed. Case that Led to Revocation

U.S. v. Dozier, 2009 WL 323269 (2/11/09) (Published) - A state sentence imposed upon revocation of probation counts in calculating criminal history points, even if the revocation was the result of the federal crime the federal court is punishing. The revocation sentence is imposed for the original offense, not the new federal offense.

Defendant's Plea Was Knowing, Voluntary

U.S. v. Vidal, 2009 WL 350653 (2/13/09) (Published) - The 10th holds the defendant's plea was knowing and voluntary. Even though no one thought it was an Alford plea at the time, the 10th characterizes the plea as such because a number of times the defendant insisted she didn't know the drugs were in the car but on occasion expressed a willingness to plead guilty to possessing the drugs with the intent to distribute them. The 10th found there was enough evidence to support the defendant's actual guilt to support an Alford plea, [nervousness, air fresheners, inconsistent stories, the co-defendant's self-serving accusations], and it seemed as though the defendant understood one of the elements was an intent to distribute, suggesting a "knowing and strategic" plea. While, in hindsight, the plea may not have been wise, because the defendant got the mandatory minimum ten years after failing to debrief to qualify for safety valve, at the time of the plea she intended to enter the plea agreement. The district court also did not err when it failed to hold a competency hearing after counsel expressed doubts about the defendant's competence, given her decision to plead guilty but not debrief. As grounds for this conclusion, the 10th relies on the defendant's assurances at the plea hearing that she reviewed the charges and penalties, discussed her rights with counsel and signed a plea agreement saying she understood everything. In other words, she must be competent because she says she is.

Capital Habeas Petitioner Gets Remand Based on Incorrect Instruction on Second-Degree Murder

Taylor v. Workman, 2009 WL 213112 (1/30/09) (Published) - A habeas reversal of an Oklahoma death penalty conviction (!!!!) due to a failure to give a correct lesser-included offense instruction for second degree murder. First, the state court applied law that was contrary to S. Ct. case law when it upheld the conviction because evidence supported the first degree murder conviction. The lesser-included-offense instruction ("LIOI") must be given if there is sufficient evidence to support it, even if there is sufficient evidence to support the greater charge. Second, there was sufficient evidence to support the LIOI where the defendant did not know the victim and testified he got scared by an encounter with someone else and, as he was leaving, saw the deceased out of the corner of his eye and fired shots in his direction, hitting the deceased in the back, without thinking. From that testimony the jury could reasonably find the defendant did not have a premeditated design to kill the deceased, even though he may have intended to harm him. The 10th relied on the fact that the trial court did give an LIOI [it just wasn't the correct one] and the prosecution did not object. Third, the instructional error was not harmless. The instruction told the jury it could not find the defendant guilty of second degree murder unless it found the defendant did not intend to kill or harm the deceased. The law actually only required a lack of intent to kill. This went to the heart of the defense.

Newly Discovered Evidence Results in Remand

U.S. v. Jones, 2009 WL 166489 (1/26/09) (unpub'd) - A very interesting case in which the 10th reverses and remands for the district court to consider newly discovered evidence. The district court elected to believe the officer's version of his interrogation of the defendant that the defendant admitted previously purchasing 63 grams of crack, resulting in an increase in the base offense level based on relevant conduct. The defendant testified he only told the officer how much crack he thought he could get from a dealer, not how much he actually bought. The officer did not remember taping the interview and no interview tape was found by the time of the sentencing hearing. But 3 weeks later the government discovered a transcript of the interview. Lo and behold the transcript tends to support the defendant's version of the interview. Appellate counsel filed an Anders brief, without mentioning the newly found transcript! The defendant brought the matter up on his own. The 10th decided it was best that the trial court decide the factual question of the drug amount first in light of the new evidence. It reversed the sentence and remanded for further proceedings.

Possible Jury Confusion over Meaning of "Actual" Meth Unlikely, Court Says

US v. Villegas, -- F.3d --, 2009 WL 225840 (10th Cir. 2/2/09) - affirmance of defendant's convictions for possession with intent to distribute narcotics Suppression motion was properly denied. Mr. Villegas maintained that after traffic stop and return of his driver's license, he did not voluntarily consent to further questioning because a hand gesture made by the officer indicated he was not free to leave. COA defers to district court fact finding because its ruling was based on demonstration of the actual gesture.

Mr. Villegas was charged with possessing just under 500 grams of a mixture of meth, but the government offered lab reports that there was more than 50 grams of "pure" or "actual" meth. Accordingly, Mr. Villegas faced a mandatory minimum sentence of 10 years. Mr. Villegas argued that the jury was wrongly instructed that it could convict of PWID 50 grams or more of "actual or pure" meth even if it found he possessed impure meth. The Court concluded that, while it might be clearer to just refer to "meth," rather than "pure" or "actual" meth, it is unlikely the jury in this case was confused as an expert chemist explained his computation of the weight of the meth molecules in the substance or mixture--by multiplying the total weight of the mixture by the % that was composed of meth molecules.

Some Unpublished Decisions

U.S. v. Frierson, 2009 WL 190082 (1/28/09) (unpub'd) - An unsuccessful, but clever, attempt to get around an appeal waiver. The defendant asserts the miscarriage of justice exception to an appeal waiver applied because the sentence was based on the impermissible factor of race. The 100-1 crack-to-powder ratio created racial disparities in sentencing, the defendant pointed out. The 10th acknowledged the racial disparities but concluded that did not mean the sentence was based on race. The 100-1 ratio was imposed for a number of reasons, none of them race, the 10th says.

U.S. v. Gregory, 2009 WL 213119 (1/30/09) (unpub'd) - The defendant's defense to his assault on a prison guard [microwaved floor wax to the face, ouch] that the assault was an act of war to destabilize the government in order to create an all-white nation in 5 western states was not a valid defense. It did not satisfy the requirements for a justification defense.

US v. Hopkins, No. 06-3067 (10th Cir. 2/4/09) (unpublished): Up and down and up and down again. The 10th remands this meth case for resentencing a second time. The first time the Tenth had reversed and remanded for resentencing because the district court applied an erroneous "proportional estimate" methodology to determine the amount of drugs attributable to the defendant, who was convicted of participating in a large, multi-state, multi-defendant conspiracy. US v. Hopkins, 128 Fed.Appx. 51 (10th Cir. 2005). On remand, the district court held a two-day hearing and allowed the government to present evidence concerning the defendant's involvement in the conspiracy and then decided it would not consider the new evidence because the government should have presented the evidence at the first sentencing. The court then sentenced Mr. Hopkins to 108 months, which was 13 months less than his original sentence. The government appealed and the Tenth concludes that the district court abused its discretion by allowing the government to present the evidence and then refusing to consider it where there was no evidence the government engaged in inappropriate conduct and remanded for the district court to consider all relevant evidence. Judge Holloway dissenting, stating he was not convinced the district judge had abused his discretion.

US v. Rosas-Caraveo, 2009 WL 141896, 1/22/09 - Bottom range sentence in this reentry case affirmed. Of note is the panel's refusal to adopt in this circuit a requirement to assess requests for downward variances based on cultural assimilation in light of various factors culled from cases from other circuits, including "the length of time the defendant has lived in the United States, whether he came to the United States as an adult or as a child, whether he was educated in the United States, any steps he has taken to establish residency or become a citizen, his familiarity with his country of origin and whether he has any children who reside in the United States." Instead, cultural assimilation is just one more ingredient in the 3553(a) stew.

US v. Waldon, 2009 WL 142041, 1/22/09 - Revocation of convicted bank robber's supervised release for committing misdemeanor offense of disorderly conduct by propositioning 12 year old girl in the public library affirmed. Defendant was cited for the offense and his PO filed a revocation petition. The district court essentially conducted its own trial and found the defendant guilty. There is no mention of what happened, if anything, on the citation itself.