United States v. Flynn

• Court: Court of Appeals for the First Circuit
• Decided: March 1, 1995
• Docket: 94-1547
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 94-1547

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    JOHN P. FLYNN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, Senior U.S. District Judge]
                                       __________________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

____________________

            George F.  Gormley with  whom  John D.  Colucci was  on brief  for
            __________________             ________________
        appellant.
            Jean L. Ryan, Assistant United States  Attorney, with whom Paul M.
            ____________                                               _______
        Gagnon, United States Attorney, was on brief for appellee.
        ______
                                 ____________________

                                    March 1, 1995

                                 --------------------



STAHL,  Circuit Judge.  Defendant-appellant John P.
                      STAHL,  Circuit Judge.
                              _____________

            Flynn  challenges  the  district  court's  revocation of  his

            probation and  imposition of  a five-year prison  sentence on

            the grounds that  his probation had  already expired and  the

            district  court therefore  lacked jurisdiction.    Flynn also

            attacks on due process  grounds the district court's findings

            respecting two of his  alleged thirteen probation violations.

            We affirm.     

                                          I.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      Flynn  pled   guilty  in  1983  to   one  count  of

            conspiracy to commit mail fraud ("Count I") and two counts of

            mail  fraud  ("Counts  II/III").    On  August  8,  1983, the

            district court imposed a  five-year prison sentence for Count

            I and another  five years  for Counts II/III.   The  district

            court  suspended  the  prison  sentence  for  Counts  II/III,

            however,  and placed Flynn on  probation for five  years.  At

            the sentencing hearing, the district court stated that "[t]he

            sentences herewith imposed on  Counts II and III  are ordered

            to run  concurrently with  one another, but  consecutively to

            the sentence imposed  for Count I."   Similarly, the district

            court wrote in  its Judgment  and Probation/Commitment  Order

            ("Sentencing Judgment") filed on  August 8, 1983, that "[t]he

            sentences   for  Counts  II  and  III   are  ordered  to  run

            concurrently with one another but consecutively to Count I."

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                                          2



Flynn began serving  his five-year  Count I  prison

            term on August 29, 1983.   He was released on parole  on June

            27,  1986.  On August 16, 1993  -- just shy of ten years from

            the date Flynn began  serving his Count I sentence,  and more

            than six years  after he  was released on  parole --  Flynn's

            probation officer, Vincent Frost,  filed a petition to revoke

            Flynn's probation, alleging that Flynn had committed thirteen

            probation violations since his release in 1986.  The petition

            alleged in  detail that  Flynn had  committed  the crimes  of

            threats of violence, forgery, theft, theft by deception, wire

            fraud, insurance  fraud, bank fraud, and  false statements to

            the  Probation  Office.    It also  alleged  that  Flynn  had

            violated his  probation by  traveling  to Colorado  on a  ski

            vacation and associating  with a convicted felon,  one of his

            former co-conspirators.1

                      Flynn's  probation  revocation  hearing   began  on

            February 2, 1994, and lasted six days.  On February 24, 1994,

            the district  court issued  its  Memorandum Opinion,  finding

            that  the  government had  proved by  a preponderance  of the

            evidence  that   Flynn  had   committed  forgery,   theft  by

____________________

            1.  The details of Flynn's  violations are amply described in
            the district  court's Memorandum Opinion.   See United States
                                                        ___ _____________
            v.  Flynn, 844 F. Supp.  856, 860-75 (D.N.H.  1994).  Because
                _____
            our  decision is  limited  to a  jurisdictional issue  wholly
            separate from the probation  violations themselves, we do not
            describe them in any detail.

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                                          3



deception, credit  card fraud,2 bank fraud,  and making false

            statements, and  had also  violated probation by  leaving the

            judicial district without permission and by associating  with

            a  convicted felon.   On  April 6,  1994, the  district court

            imposed on  Flynn the full  five-year prison sentence  it had

            earlier suspended   -- the  maximum sentence the  court could

            impose  under  18  U.S.C.     3565(a)(2)  (limiting  term  of

            sentence upon revocation  of probation to sentence  available

            at time of initial sentencing).

                      On  appeal,  Flynn   asserts  that  his   five-year

            probation term began to  run upon his release from  prison on

            June  27, 1986  and  expired no  later  than June  27,  1991.

            Therefore,   Flynn  argues,   the   district   court   lacked

            jurisdiction to revoke his probation in 1993.  The government

            contends that Flynn's probation did not commence until August

            28,  1988,  when Flynn  completed  his parole,  and  thus the

____________________

            2.  Although  the   crime  of  credit  card   fraud  was  not
            specifically  alleged in  the probation  revocation petition,
            the  government claimed in its hearing brief filed on the day
            the final revocation proceeding  began that the same behavior
            that  constituted wire  fraud  also constituted  credit  card
            fraud  and  theft by  deception.   The  court found  that the
            government had failed  to prove  an element of  the crime  of
            wire  fraud, but  that it  had proved  credit card  fraud and
            theft  by deception.   See  844 F.  Supp. at  865-68.   Flynn
                                   ___
            claims  that  because  the  government  amended  the  charges
            against  him  on the  day  of his  hearing,  he did  not have
            adequate notice  and was  therefore deprived of  due process.
            We discuss this claim infra at Part II.B. 
                                  _____

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                                          4



probation  revocation  proceedings   were  initiated   before

            Flynn's probation term expired.3     

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

            A.  The District Court's Jurisdiction
            _____________________________________

                      "The intent of the  sentencing court must guide any

            retrospective  inquiry   into  the  term  and   nature  of  a

            sentence."  United States v. Einspahr, 35 F.3d 505, 506 (10th
                        _____________    ________

            Cir.), cert. denied, 115 S. Ct. 531 (1994).   See also United
                   _____ ______                           ___ ____ ______

            States  v. King, 990 F.2d  190, 192 (5th  Cir.) (stating that
            ______     ____

            sentencing court's intention  is "controlling  consideration"

            in determining commencement date  of probation, as  expressed

____________________

            3.  At  oral argument,  counsel  for Flynn  raised the  novel
            argument that  even under the  government's interpretation of
            the consecutive  sentences, Flynn's parole could  have ended,
            and his  probation could have  commenced, no  later than  180
            days  prior to  August 28,  1988.   This, counsel  argued, is
                  _____
            because of 18 U.S.C.   4164, which states:

                           A prisoner having served his term or
                      terms  less  good-time deductions  shall,
                      upon release, be deemed as if released on
                      parole  until  the   expiration  of   the
                      maximum term or  terms for  which he  was
                      sentenced  less  one  hundred and  eighty
                      days.

            Unfortunately  for   Flynn,  the  section   only  applies  to
            "mandatory releasees,"  i.e., prisoners who must  be released
            because they have served their entire term less time  accrued
            for good conduct.   See,  e.g., Clay v.  Henderson, 524  F.2d
                                ___   ____  ____     _________
            921,  922-23 (5th  Cir.  1975), cert.  denied,  425 U.S.  995
                                            _____  ______
            (1976).    Flynn  was  not  a "mandatory  releasee";  he  was
            released on  parole well  before his mandatory  release date,
            and  thus he remained on parole for the full remainder of his
            entire five-year term.  Id.
                                    ___

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                                          5



in  "the  language   employed  to  create  the   probationary

            status")(quoting Sanford v. King, 136 F.2d 106, 108 (5th Cir.
                             _______    ____

            1943)), cert. denied, 114 S. Ct. 223 (1993).  At Flynn's 1983
                    _____ ______

            sentencing hearing, the district  court stated that the Count

            II/III  sentence  would  run "consecutively  to  the sentence

            imposed for Count I."  The Sentencing Judgment filed the same

            day ordered that the Count II/III sentence run "consecutively

            to Count I."   The  district court did  not explicitly  state
                                                        __________

            that  Flynn's probation  term must  run consecutively  to any

            parole granted to Flynn on Count I.  Flynn would have us hold

            that because of the district court's "silence" on this issue,

            the sentencing language is  ambiguous, and that the ambiguity

            must be resolved in Flynn's favor.  We are not persuaded.

                       It  is true  that  the district  court could  have

            employed sentencing language that would  have explicitly made

            Flynn's probation term consecutive to any parole served under

            Count I.  The Ninth Circuit has urged courts to

                      state   explicitly  and   precisely  when
                      probation is to commence.  For example, a
                      probationary sentence  could specify that
                      the   period   of   probation  shall   be
                      consecutive to the confinement portion of
                      the  sentence served on a remaining count
                      or counts or that the period of probation
                      shall  be  consecutive  to  the  sentence
                      imposed  on a  remaining count  or counts
                      including any parole or other supervision
                      _________________________________________
                      time.
                      ____

            United States v.  Adair, 681  F.2d 1150, 1151  n.3 (9th  Cir.
            _____________     _____

            1982)  (emphasis added).  While  the use of  such language by

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                                          6



the  district  court  probably  would have  obviated  Flynn's

            appeal on  this  issue,  we  decline  to  convert  the  Ninth

            Circuit's  suggested language  into  magic words  a  district

            court must utter to achieve its desired result.  The district

            court  "reveal[ed]   with  fair  certainty"  its  intent  and

            "exclude[d] any serious misapprehensions" about the nature of

            the  sentence.  United States v. Daugherty, 269 U.S. 360, 363
                            _____________    _________

            (1926).  Nothing in  the district court's sentencing language

            suggested that the "sentence imposed for Count I" -- to which

            the probation term was expressly made  consecutive -- did not

            include parole time.  As the Tenth Circuit stated:

                      The granting of parole to a prisoner does
                      not terminate  the  sentence that  he  is
                      serving.    Rather,  supervision  in  the
                      prison    setting   is    replaced   with
                      supervision  by   probation  authorities.
                      The confinement period and any subsequent
                      period  of  parole  supervision are  best
                      understood  as  two  parts  of  a  single
                      indivisible sentence.

            Einspahr, 35 F.3d at 507  (internal quotation omitted).   Cf.
            ________                                                  ___

            Jones v. Cunningham, 371  U.S. 236, 243 (1963) (holding  that
            _____    __________

            parole    "significantly    confine[d]   and    restrain[ed]"

            petitioner's  freedom  and  therefore  constituted  "custody"

            amenable to  habeas corpus  relief); Anderson v.  Corall, 263
                                                 ________     ______

            U.S.  193, 196  (1923) (stating that  release on  parole with

            restrictions  on freedom is  "in legal effect imprisonment");

            United  States v. Williams, 15 F.3d 1356, 1359 n.3 (6th Cir.)
            ______________    ________

            ("A  paroled  convict  is still,  as  a  matter  of law,  `in

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                                          7



custody,' and continues to serve the  `custodial term' of his

            or her sentence."), cert. denied, 115 S. Ct. 431 (1994).
                                _____ ______

                      In Einspahr,  the Tenth Circuit  was presented with
                         ________

            facts  almost  identical  to  those  presented  here.4    The

            defendant  in  Einspahr  received a  forty-five  month prison
                           ________

            sentence on  one count and  four years  probation on  another

            count,  which   the  district  court  stated   was  "`to  run

            consecutive to Count I.'"   35 F.3d at 505-06.  The defendant

            was released after serving  fifteen months in prison, leaving

            thirty months to serve  on parole.  At the  conclusion of his

            parole,  the  Probation  Department  activated  his four-year

            probation term on  the second  count.  Two  weeks before  the

            defendant's probation term would have expired, the government

            initiated probation  revocation proceedings.   Just  as Flynn

            argues  now,  the  defendant  in Einspahr  claimed  that  his
                                             ________

            probation term  commenced when  he was released  from prison,

            ran concurrently with his parole, and had long since expired.

            The  court,  however, found  "no  ambiguity  in the  district

            court's  sentence," stating  that it  "clearly  indicated the

            court's intent  that the probation term  not run concurrently

            with any  period of parole  supervision."  Id.  at 506.   The
                                                       ___

            court went on to state:

____________________

            4.  Indeed,   we  are  surprised   that  neither  party,  and
            particularly  the government,  cited  this case  to us  while
            directing   our  attention   to  a   number  of   cases  only
            tangentially relevant to the central issue.

                                         -8-
                                          8



Unless the  sentencing court specifically
                      indicates that a consecutive  sentence of
                      probation begins at a  prisoner's release
                      from custody or confinement,  the default
                      assumption is  that the full  term of the
                      earlier sentence must be completed before
                      the probation period commences.

            Id.  at 507.   See also Williams,  15 F.3d at  1358, 1359 n.3
            ___            ___ ____ ________

            (stating in  dictum that  "a convict's  probationary sentence

            begins not with parole" but only after completion of parole);

            United States v. Chancey, 695  F.2d 1275, 1276-77 (11th  Cir.
            _____________    _______

            1982)  ("This  consecutive  sentencing  evinces  the  court's

            intent . . . that there be no overlap  between the end of the

            first sentence and the beginning of probation.").

                      We  find the  Tenth Circuit's  reasoning persuasive

            and  directly applicable  to the  facts of  this case.5   The

                                
            ____________________

            5.  The   Tenth   Circuit's  interpretation   of  consecutive
            sentencing is supported by  two other Circuit Court decisions
            that    employ,    without    discussion,    the    identical
            interpretation.   See  Williams, 15  F.3d at  1358 (probation
                              ___  ________
            term ordered to  run consecutive to  prison sentence did  not
            commence  until parole completed);  United States  v. Wright,
                                                _____________     ______
            744 F.2d 1127,  1128 (5th  Cir. 1984) (same).   Other  courts
            have  held  that  probation  terms  imposed  consecutively to
            another  sentence  begin  upon  release from  prison  if  the
            sentencing  courts clearly  indicate  such an  intent.   See,
                                                                     ___
            e.g.,  United States v. Laughlin, 933 F.2d 786, 788 (9th Cir.
            ____   _____________    ________
            1991) (rejecting defendant's argument that probation term did
            not  begin  until  parole  had  terminated; sentencing  court
            ordered  probation   "to  commence  upon  his   release  from
            prison"); King,  990 F.2d 190,  191 (5th Cir.  1993) (holding
                      ____
            that  probation   term  ran  concurrent  with   parole  where
            sentencing order stated  that probation term  would "commence
            upon defendant's  release from  custody").  The  King holding
                                                             ____
            appears to be inconsistent with authority cited above holding
            that  parole is  in fact  custody.   Both King  and Laughlin,
                                                      ____      ________
            however, complement  Williams and Wright in  underscoring the
                                 ________     ______
            central principle of Einspahr:  that the most natural reading
                                 ________
            of unadorned  language imposing a probation  term consecutive

                                         -9-
                                          9



district court's sentencing language  unambiguously expressed

            the court's intent to impose consecutive sentences.  That all
                                                     _________

            parties, including  Flynn, understood that  Flynn's probation

            would not commence until he had served his entire sentence on
                                                       ______

            Count I is borne out by the fact that Flynn submitted without

            argument to  supervision by  the Probation  Department during

            the  years 1991-93, when he claims that  he was by law a free

            man.  Indeed, the lack-of-jurisdiction argument that Flynn --

            a  disbarred and, judging from  some of his  pro se petitions

            contained in the record, not unskilled lawyer -- now advances

            apparently  did  not  even  occur  to  him  until  after  his

            probation  was revoked  by the  district court.   Of  course,

            Flynn  did  not  waive  his jurisdictional  argument  by  not

            raising  it below,  but his  failure to  do so  undercuts his

            argument that there was any serious ambiguity in the district

            court's original sentence.6

                                
            ____________________

            to  a sentence on  another count  delays the  commencement of
            probation until  the entire previous  sentence, including any
                                 ______
            parole, has been completed.

            6.  In support  of his argument, Flynn  directs our attention
            to the Ninth Circuit's rulings in United States v. Adair, 681
                                              _____________    _____
            F.2d 1150 (9th Cir.  1982), and United States v.  Carter, 827
                                            _____________     ______
            F.2d 546 (9th Cir. 1987).  Both  cases are unavailing.  Adair
                                                                    _____
            held that a defendant's  probation term ran concurrently with
            his prison term on other counts because  the sentencing court
            was  utterly  silent as  to  when the  probation  term should
                          ______
            commence.  Adair, 681 F.2d at 1151.  In such cases, the court
                       _____
            held,  "there is a strong presumption that the term starts on
            the date sentence is  imposed and runs concurrently  with any
            period  of imprisonment  imposed  on any  remaining count  or
            counts."    Id.    The  Carter  court  then  relied  on  this
                        ___         ______
            presumption  in   holding  that  probation  began   with  the

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B.  Due Process Challenges
            __________________________

                      Flynn also challenges on due process grounds two of

            the court's findings of probation violations.  Flynn does not

            argue that  the district  court  would not  have revoked  his

            probation or  resentenced him  to five years  imprisonment in

            the  absence  of  the   challenged  violations;  indeed,  the

            district  court   expressly  stated  that  each   of  Flynn's
                                                       ____

            violations warranted the revocation of his probation.  Flynn,
                                                                   _____

            844  F.  Supp.  at 875.    Nevertheless,  Flynn  urges us  to

            consider  his due  process argument  because, he  claims, the

            challenged violations could affect his eligibility for parole

            under the Parole Commission guidelines  found at 28 C.F.R.   

            2.20-21.  This, however, is sheer speculation; it is far from

            clear exactly what information the Parole Commission will use

            in  determining  Flynn's parole  eligibility date,  much less

            that  the  district court's  findings  as  to the  challenged

            violations  will have  a determinative  impact on  that date.

            Furthermore, we are not  persuaded that the Parole Commission

            may not legitimately use  this information, and, since  we do

            not know if  it will  even enter the  calculation of  Flynn's

____________________

            commencement of the defendant's twenty-day prison sentence on
                                                                       __
            the same count and thereafter ran concurrently with a  parole
            ______________
            term on other convictions.   Carter, 827 F.2d 546, 548.  Even
                                         ______
            if we  were to adopt  the Ninth Circuit's  presumption, Flynn
            could not reap its  benefit, because the district  court, far
            from being  silent as to  when Flynn's probation  term should
            commence, expressly  made the probation  term consecutive  to
            his Count I sentence.

                                         -11-
                                          11



parole date, this issue is not before us.  See  Dye v. United
                                                       ___  ___    ______

            States  Parole Comm'n, 558  F.2d 1376, 1379  (10th Cir. 1977)
            _____________________

            ("the  Commission is  entitled to  take into  account factors

            which could not, for constitutional reasons, be considered by

            a court of law").   Thus, we need not decide the  due process

            issues Flynn raises.

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For the  foregoing  reasons, the  decision  of  the

            district court is

                      Affirmed.
                      Affirmed
                      ________

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