§570 Pre-Guidelines Probation Cases
Supreme Court holds that court may suspend sentence despite mandatory two year sentence for person who commits a felony while on bail. (570) 18 U.S.C. § 3147 provides that anyone who commits a felony while on release on bail must be sentenced to at least two years’ imprisonment in addition to the sentence imposed for the underlying felony. In a per curiam opinion, the Supreme Court held that neither the language nor the legislative history of § 3147 provides any basis for concluding that it was intended to affect the power of trial judges to suspend sentence under 18 U.S.C. § 3651 and impose probation instead. Rodriguez v. U.S., 480 U.S. 522, 107 S.Ct. 1391 (1987).
Supreme Court holds probation officer may search probationer’s home without a warrant. (570) Wisconsin law puts probationers in the custody of the Department of Health and Social Services and permits any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and there are “reasonable grounds” to believe contraband is present. Acting on information from the police that there were or might be guns in the probationer’s apartment, two probation officers conducted a warrantless search and found a handgun. In a 5-4 opinion written by Justice Scalia, the Supreme Court upheld the warrantless search, holding that it was “reasonable” under the Fourth Amendment because it was conducted pursuant to valid regulations concerning probationers. The majority found it unnecessary to decide whether any probation search on “reasonable grounds” would be lawful. Justices Blackmun, Marshall, Brennan and Stevens dissented. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164 (1987).
Supreme Court upholds confession to probation officer without Miranda warnings. (570) The defendant was sentenced to probation, one of the terms was that he be truthful to the probation officer in “all matters.” At one of his meetings with his probation officer, the officer asked him about a rape/murder unrelated to his conviction and probation. The defendant admitted his guilt. These admissions were without the benefit of Miranda warnings. They were later used against him at his trial for the rape/murder. The Supreme Court held that the interview was not “custodial.” Nor did the possibility of revocation of probation if he were not “truthful” with his probation officer make the statement coerced. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136 (1984).
Supreme Court holds that Youth Corrections Act sentence was not expunged. (570) A defendant receives expungement of his conviction pursuant to Youth Corrections Act only when a court has exercised its discretion to discharge the youth unconditionally prior to expiration of his probationary term and not merely upon his successful completion of probation. Since defendant was not discharged from probation early, his prior gun conviction was properly relied on as a prior conviction. Tuten v. U.S., 460 U.S. 660, 103 S.Ct. 1412 (1983).
Supreme Court rules that expungement of conviction did not permit felon to possess a firearm. (570) A defendant who was convicted of a state charge punishable by more than one year in prison is “convicted” within meaning of firearms disabilities (18 U.S.C. § 922(g) and (h)). This conviction stands even though he received probation, no formal judgment was entered, and his conviction was expunged following the completion of probation. Dickerson v. New Banner Institute, Inc., 459 U.S. 814, 103 S.Ct. 843 (1983).
1st Circuit says third judgment properly included probation. (570) In a pre-guidelines case, defendant was sentenced to prison and probation on some counts, and to a five-year suspended sentence on count 30. Two months later, the trial judge realized that a probation term was required by law on count 30. The judge issued a second judgment with a five-year term of probation on count 30. The appellate court then vacated all but two convictions on multiplicity grounds. Count 1 and count 30 remained. In a third judgment, the district judge imposed five years on count 1, and a five-year suspended sentence on count 30. The judgment referred to certain conditions of probation, but failed to specify a term of probation. In a Rule 35(a) motion, defendant argued that on remand, no term of probation could be imposed. The First Circuit held that probation was proper. The third judgment mirrored the second judgment except the judge failed to specifically refer to probation. However, the judge obviously intended count 30 to include a term of probation. U.S. v. Lilly, 80 F.3d 24 (1st Cir. 1996).
7th Circuit finds no impropriety in probation officer’s statements during sentencing hearing. (570) In a pre-guidelines probation revocation case, defendant argued that the district court improperly relied upon the testimony of the probation officer at the sentencing hearing. The probation officer had stated that defendant’s particular probation violations made the offenses more aggravated, and that he could not think of anything to say in mitigation. He recommended a substantial period of incarceration. Defendant contended that the probation officer was improperly arguing as if he were the prosecutor. The 7th Circuit rejected this argument. The probation officer merely gave his recommendation to the judge on the basis of the presentence report. U.S. v. Veteto, 945 F.2d 163 (7th Cir. 1991).
9th Circuit says that under old law, no hearing was required before extending probation. (570) Before 1984, no hearing was required before a district court could extend the probation. Effective October 12, 1987, 18 U.S.C. § 3564 now requires a hearing. However, in this case, defendant committed the underlying offenses in 1985, before the new law went into effect. Agreeing with four other circuits, the Ninth Circuit held that due process did not require the district court to hold a hearing before extending probation in this case because the underlying offense was committed before November 1, 1987. U.S. v. Silver, 83 F.3d 289 (9th Cir. 1996).
9th Circuit finds no double jeopardy in 20-year sentence after probation violation. (570) The Idaho state judge withheld imposing judgment, and placed defendant on probation for five years. Defendant was also ordered to spend 60 days in the county jail. Defendant later violated his probation and was sentenced to 20 years, with all but the first 11 months suspended, after which he was again placed on probation. When he violated probation a second time he was ordered to serve the remainder of the 20-year sentence. In this federal habeas corpus case, defendant argued that the double jeopardy clause prohibited him from being sentenced to 20 years after he had served 60 days in the county jail for the same offense. The 9th Circuit rejected the argument, relying on U.S. v. Clayton, 588 F.2d 1288 (9th Cir. 1979), and ruling that the imposition of a sentence after suspension of judgment is permissible, even if the defendant has served time as a condition of probation. Peltier v. Wright, 15 F.3d 860 (9th Cir. 1994).
9th Circuit upholds terms of probation requiring counseling and notice of conviction to employers. (570) As terms of probation, the district court required defendant to undergo psychiatric or psychological counseling, and required notice to his employers of his conviction of securities fraud. In this preguidelines case, the 9th Circuit found no abuse of discretion, noting that the terms of probation were permitted either under the Federal Probation Act or the Victim and Witness Protection Act. U.S. v. Parrott, 992 F.2d 914 (9th Cir. 1993).
9th Circuit says pre-Guidelines sentence of incarceration on one count followed by probation on a second count was not a “split sentence.” (570) Before the guidelines, if a defendant was convicted of only one count, the only way he could be both incarcerated and placed on probation was to impose a “split sentence” under 18 U.S.C. section 3651. Here, the defendant was convicted of two counts, and received four years in custody on the first count, followed by five years’ probation on the second count. The 9th Circuit held that this was not a “split sentence,” because there were two separate counts. The district court properly corrected the Judgment and Commitment order later expressly to state that the imposition of sentence was suspended on the probation count. Accordingly, defendant’s sentence was legal, and the district court had jurisdiction to revoke his probation. U.S. v. Stephens, 966 F.2d 511 (9th Cir. 1992).
9th Circuit reverses order for corporate defendants to make payments to drug clinics. (570) Four soft drink companies were convicted of price fixing. As a condition of probation they were ordered to pay $660,000 into a fund to be distributed to four substance-abuse organizations run by local governments with local, state and federal tax dollars. The district court justified the payments as “restitution to the community.” The government appealed, and the 9th Circuit reversed and remanded for resentencing. The court held that the Probation Act, 18 U.S.C. § 3651 (repealed in 1984), did not authorize a monetary payment to third parties. The payments could not be justified as restitution because the price fixing crime and the drug and substance abuse programs “are in no way related.” The court cautioned that “the judiciary should not take upon itself the role of selecting beneficiaries of defendants’ crimes.” U.S. v. Blue Mountain Bottling Company, 929 F.2d 526 (9th Cir. 1991).
9th Circuit holds that probationary term began when mandate was filed reversing custodial counts. (570) The 9th Circuit held that if a district court sentences a convicted criminal to consecutive terms of imprisonment and probation, and if the sentencing court expressly provides that probation is to commence upon the completion of the prison term, and if the anchor term of imprisonment is subsequently overturned on appeal, then probation commences, as a matter of law, when the appellate court’s mandate is filed with the district court. Thus the appellant’s term of probation began after his sentence was reversed on the imprisonment counts, not on the day of the original sentencing. Accordingly he was still on probation when his probation was revoked. U.S. v. Freeman, 922 F.2d 1393 (9th Cir. 1991).
9th Circuit finds no basis for granting credit for pretrial “probation.” (570) Defendant argued that he should be given credit for “probation” served during pretrial release and during release pending appeal. The 9th Circuit found “no basis in law or in fact” for this argument. 18 U.S.C. § 3568 grants credit for time served in pretrial custody, but there is no authority for granting credit for time served on pretrial probation. Moreover federal case law “overwhelmingly rejects the notion of credit for release on bond pending trial or appeal.” A defendant released on bond pending appeal is not entitled to credit for time served in “custody” within the meaning of 18 U.S.C. § 3568. Finally, defendant failed to present any evidence that he was in fact “on probation” during this period. U.S. v. Freeman, 922 F.2d 1393 (9th Cir. 1991).
9th Circuit holds general information in Petition for Probation Action gave sufficient notice to parolee. (570) Rule 32.1(a)(2)(A) of the Fed. R. Crim. P. provides that a probationer must receive “written notice of the alleged violation of probation.” The court upheld as sufficient a notice informing appellant that he had violated “Condition No. 2” of his probation by associating with a convicted felon, and listing general dates, events, locations etc. U.S. v. Tham, 884 F.2d 1262 (9th Cir. 1989).
9th Circuit holds failure to disclose probation file to probationer prior to hearing was not error. (570) Petitioner claimed that Fed. R. Crim. P. 32.1(a)(2)(b) was violated when he was not allowed to see his probation file prior to a probation revocation hearing. The rule requires “disclosure of the evidence against the probationer.” No violation of the Rule or due process was found since the file was not used as evidence and petitioner was provided the opportunity to cross-examine all of the witnesses. U.S. v. Tham, 884 F.2d 1262 (9th Cir. 1989).
9th Circuit holds that defendant convicted of importing cocaine cannot be given probation or suspended sentence. (570) Defendant was convicted of importing almost two kilograms of cocaine, in violation of 21 U.S.C. Section 960(b)(2). That section provides that “the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph.” The 9th Circuit held that this language was sufficiently explicit to control over 18 U.S.C. Section 3651 which permits a court to suspend sentence or place on probation “unless [it is] explicitly made inapplicable.” U.S. v. Cook, 859 F.2d 777 (9th Cir. 1988).
9th Circuit holds that defendant is entitled to Brady material in government witnesses probation file. (570) The 9th Circuit held that a defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case. Upon request of the defendant, the trial court must review the file in camera and release any innormation which would provide a basis for impeaching the credibility of the witness. In this case, the trial judge followed this procedure. The appellate court reviewed the file and held that the trial court clearly erred in failing to provide the witness’s entire criminal record to the defense. “The criminal record cannot be made unavailable by being made part of the probation file.” A defendant’s conviction on the count relating to the witness was reversed. U.S. v. Strifler, 851 F.2d 1197 (9th Cir. 1988).
9th Circuit holds that probation search by police was valid even though probation officer was absent. (570) Suspecting defendant of burglary, the police contacted his probation officers in two different counties and obtained permission to conduct a probation search. Both probation officers stated that defendant was in violation of his probation and both sought warrants for those probation violations. The police independently obtained an arrest warrant, and upon defendant’s arrest, searched his car and house, finding evidence which led defendant to confess to approximately 20 thefts from post office vending machines. The 9th Circuit upheld the searches even though no probation officer was present. They found that the recent Supreme Court decision in Griffin v. Wisconsin, 107 S.Ct. 3164 (1987) was “inconclusive” on this issue, and that on the facts of this case, the probation search was not a subterfuge for a criminal investigation, but was authorized by the probation officers for legitimate probation purposes. U.S. v. Richardson, 849 F.2d 439 (9th Cir. 1988), overruled on other grounds by U.S. v. Knights, 534 U.S. 112 (2001).
9th Circuit holds that courts have equitable power to order expungement of records. (570) Petitioner argued that inaccurate information in the presentence report relied on by the Parole Commission should be expunged. Federal courts have the equitable power “to order the expungement of government records where necessary to vindicate rights secured by the constitution or by statute.” However, the 9th Circuit held that petitioner failed to show that expungement was necessary. Because he had been released on parole, the allegedly inaccurate information posed no threat to him. In addition, he would have an opportunity to challenge the presentence report in any future parole proceeding. Fendler v. U.S. Bureau of Prisons, 846 F.2d 550 (9th Cir. 1988).
9th Circuit holds that restricting defendant from receiving money for speaking or writing about her crime was a proper probation condition. (570) Defendant, a “prominen[t] lesbian and the first mayor of West Hollywood,” was convicted of embezzling federal funds from a community counseling organization. As a condition of probation, the court ordered her not to “receive any financial remuneration or any other thing of value from any speaking engagements, written publications, movies, or any other media coverage dealing with her involvement in this offense.” The 9th Circuit rejected her argument that this restricted her First Amendment rights, holding that the condition was a proper reminder to the defendant that “crime does not pay.” U.S. v. Terrigno, 838 F.2d 371 (9th Cir. 1988).
9th Circuit holds that requiring probationer to submit to urine test for drugs was proper even without court order. (570) The probation officer ordered the probationer to submit to a urine test because of various factors indicating that he was using drugs. When confronted with the results, he admitted drug use and his probation was revoked. The 9th Circuit found no due process violation even though he was not given notice that he would be subject to such testing. The court assumed without deciding that urine testing “constitutes a search under the Fourth Amendment,” but noted that probationers are subject to reasonable searches upon the probation officer’s reasonable belief that it is necessary. Here the officer had reasonable suspicion to believe the probationer was using drugs in violation of the conditions of probation. U.S. v. Duff, 831 F.2d 176 (9th Cir. 1987).
9th Circuit holds that defendant was on probation and parole at the same time, following consecutive periods of incarceration. (570) Defendant was serving time at Lompoc. He escaped and was sentenced to 20 days in custody and 5 years probation, consecutive to the sentence he was already serving. He completed his sentence and was released on parole which was to expire in September, 1985. In February, 1986, his probation was revoked for an arrest that occurred in August, 1985. The defendant claimed his probation could not be revoked because he was still on parole in August, 1985. The 9th Circuit rejected the argument, holding that although the record was not clear, it is presumed that defendant served the 20-day custodial portion of his escape sentence before being released on parole. Moreover, it is also presumed in the Ninth Circuit that probation runs concurrently with a sentence of incarceration and therefore defendant’s probation began when he began serving the 20 days and ran concurrently with his parole term. U.S. v. Carter, 827 F.2d 546 (9th Cir. 1987).
9th Circuit upholds sentence to serve 165 days on consecutive weekends and five years probation. (570) The 9th Circuit held that although a sentence of incarceration followed by probation would be improper, defendant’s sentence was proper because it imposed probation. Moreover, it did not violate the six-month limitation in 18 U.S.C. § 3651. Although defendant would not have completed the 165-day incarceration requirement for about 20 months, he would have been confined for less than the 180-day maximum allowed by law. Shabazz v. Carroll, 814 F.2d 1321 (9th Cir. 1987), as amended, 833 F.2d 149 (9th Cir. 1987).
9th Circuit holds that seven-month delay between arrest and final revocation did not violate due process. (570) The 9th Circuit hold that each of the various delays that resulted in final revocation more than seven months after the arrest on the probation violation was reasonable, and therefore no due process violation occurred. U.S. v. Berry, 814 F.2d 1406 (9th Cir. 1987).
9th Circuit holds that upon revocation of probation, it is the Attorney General, not the court, which gives credit for time served. (570) Defendant was originally sentenced to five years, with execution suspended for all but six months. When his probation was later revoked, he argued that the judge could only sentence him to 4-1/2 years, since he had already served six months. The 9th Circuit rejected the argument, noting that it is the responsibility of the Attorney General, the Department of Justice and the Bureau of Prisons, not the courts, to compute sentences and give credit for time served. U.S. v. Berry, 814 F.2d 1406 (9th Cir. 1987).
9th Circuit rules that under local rule, probationary term is presumed to run concurrent with incarceration. (570) Defendant was sentenced to four months in custody with the balance of the sentence suspended, placed on probation for a period of five years. Five years and one month after he began serving his sentence, the defendant violated his probation, and probation was revoked. On appeal, the 9th Circuit, Tang, J., held that ordinarily the interpretation of a sentencing order is governed by the court’s intent. But a local rule for the Central District of California expressly provides that probation begins upon pronouncement of sentence unless otherwise provided. That rule mandates reversal here. Defendant had completed his probation before he committed the act for which it was “revoked”. U.S. v. Levitt, 799 F.2d 505 (9th Cir. 1986).
9th Circuit holds that judgment was clear despite lack of specificity on when probation would commence. (570) Where, as here, the judge says probation will commence on release from confinement, the normal and probable meaning is that probation begins when the defendant is no longer incarcerated by either state or federal authorities. But, even assuming the judgment was ambiguous, the subsequent denial of the motion for release by the sentencing judge was persuasive evidence that he intended the probation to commence upon defendant’s subsequent release from state confinement. U.S. v. O’Brien, 789 F.2d 1344 (9th Cir. 1986).
9th Circuit rules that despite 120-day limit for motions to modify, a court may grant probation at any time before sentence begins. (570) Although a court may not modify a sentence after the 120-day period in Rule 35 passes, the court may nevertheless grant probation at any time before the defendant begins serving a particular sentence. Thus, in the present case, where defendant never surrendered to serve his sentence and this went unnoticed for ten years, the trial court did have power to change its original three-year sentence and grant probation. U.S. v. Karp, 764 F.2d 613 (9th Cir. 1985).
9th Circuit reverses on ground that search was not a valid probation search. (570) The validity of a state probation search is measured by application of state law. Here, the defendant was not on probation because the judge had originally stayed his sentence and defendant was not given notice that the stay had been lifted. Therefore, the search was illegal. The “good faith” exception did not apply because the search was strictly a law enforcement tool, without real probationary purpose. The case suggests that Leon will not apply to warrantless searches. U.S. v. Merchant, 760 F.2d 963 (9th Cir. 1985), overruled on other grounds by U.S. v. Knight, 534 U.S. 112 (2001).
9th Circuit holds that privilege against self-incrimination does not apply to inquiries relating to probation status. (570) In general, a probationer is not entitled to invoke the privilege against self-incrimination in response to questions about his probation status. See Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984). U.S. v. Gonzalez-Mares, 752 F.2d 1485 (9th Cir. 1985).
9th Circuit holds that certified copy of conviction was sufficient basis for probation revocation. (570) A certified copy of the defendant’s subsequent local convictions constituted sufficient proof of a probation violation. The fact that the convictions were based on guilty pleas that may have been taken in violation of Boykin v. Alabama did not prevent the court from relying on them when revoking probation, since the defendant made no claim that he did not commit the offenses. U.S. v. Garcia, 771 F.2d 1369 (9th Cir. 1984).
9th Circuit upholds probation violation warrant despite delay in executing it. (570) The court found no violation of due process despite a four-year delay in executing the probation violation warrant. Even though the defendant continued to reside at the place shown on his probation records, and filed a change of address notice with the post office, he showed no prejudice from the delay. U.S. v. Riggans, 746 F.2d 1379 (9th Cir. 1984).
9th Circuit rules that probation is punishment for double jeopardy purposes. (570) Probation is punishment within the double jeopardy clause, so it was error to require defendant to re-serve the two-year probationary period that he had already successfully completed while his appeal was pending. However, he could be ordered to serve the one-year jail term that he had not yet served. Kennick v. Superior Court of State of California, 736 F.2d 1277 (9th Cir. 1984).
9th Circuit affirms conditioning probation on payment of back taxes. (570) It was proper for the court to condition probation on the payment of back taxes for the years for which defendant pleaded guilty, but not for a year which was not part of the plea agreement. It is okay to leave the actual amount to be determined later, where the amount is unknown at the time of sentencing. It was proper here to revoke probation when defendant failed to make any effort to pay. U.S. v. Green, 735 F.2d 1203 (9th Cir. 1984).
9th Circuit upholds costs of prosecution as condition of probation. (570) The trial court correctly imposed the costs of prosecution as a condition of probation in this IRS tax case. U.S. v. Snowadzki, 723 F.2d 1427 (9th Cir. 1984).
9th Circuit upholds extension of probation upon revocation of earlier probation. (570) Originally sentenced to three years probation, defendant’s probation was revoked a year later and the probation term was extended by one year. The court held that this was proper, as long as the total length of the probation period did not exceed five years. U.S. v. McCrae, 714 F.2d 83 (9th Cir. 1983