United States v. Fred Anthony Hamilton

708 F.2d 1412, 1983 U.S. App. LEXIS 26558
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 21, 1983
Docket81-1430X
StatusPublished
Cited by44 cases

This text of 708 F.2d 1412 (United States v. Fred Anthony Hamilton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fred Anthony Hamilton, 708 F.2d 1412, 1983 U.S. App. LEXIS 26558 (9th Cir. 1983).

Opinions

KENNEDY, Circuit Judge:

Appellant, Fred Anthony Hamilton, appeals from an order of the district court revoking his probation and reinstating his suspended five year sentence. We vacate the order and instruct the district court to reimpose the unfinished portion of Hamilton’s probation including the twenty-two days of confinement he has yet to serve.

On September 21,1976, Hamilton pleaded guilty to a charge of conspiracy to possess and sell checks stolen from a bank. On October 18,1976, he was sentenced to a five year term, with the sentence suspended on the condition he complete five years probation and spend 120 days in a jail-type setting. The court ruled that the 120 days could be served on consecutive weekends beginning October 23, 1976.

Hamilton completed forty-nine of the sixty weekends. Thereafter he did not report to jail. There is no evidence in the record that he was ever admonished for not com[1414]*1414pleting his jail term. Indeed, the record below suggests that Hamilton’s probation officer did not consider his default to be a notable or serious breach of his probation conditions.

Despite his probation officer’s laxity, Hamilton on his own initiative informed the court of his default on June 22, 1978, and petitioned to reschedule the remaining eleven weekends of his sentence. The district court was again apprised of defendant’s failure to finish his jail term on August 23, 1978, when Hamilton petitioned the court for partial exoneration of his bond. Despite being twice informed of Hamilton’s breach, however, the district court took no action to reschedule the remaining weekends or to revoke Hamilton’s probation. The probation officer likewise took no action.

Apart from his failure to spend sixty consecutive weekends in jail, Hamilton successfully completed over four years of his five year probation. During that period, Hamilton was apparently accorded substantial leeway by his probation officer. The record below indicates that the two men did not meet regularly, although the probation officer had contact with Hamilton whenever he wished. The record also suggests that Hamilton reported his whereabouts and activities on an informal basis, and that such a course of affairs was acceptable to the probation officer.

In the fifth year of probation, on May 1, 1981, Hamilton was assigned a new probation officer, Makagon. On May 7, 1981, Makagon mailed Hamilton instructions to meet with him on May 14, 1981, and to appear before the district court on May 18, 1981. Hamilton did not appear on either date, and on May 20,1981, the district court issued a bench warrant for his arrest. On July 13, 1981, a probation revocation hearing was held, at which Hamilton was charged with the following probation violations: (1) failure to complete 120 days in a jail-type institution; (2) failure to report to his probation officer on May 14, 1981; (3) failure to appear before the court on January 14 and May 18, 1981; and (4) failure to work at a lawful occupation.

Hamilton conceded his failure to complete the jail term. As to his failures to appear on May 14 and May 18, 1981, he claimed he did not receive notice until after those dates had passed. He testified that he had received the instructions late because he was living at a different address, that he had advised his former probation officer of the move, and that the officer was satisfied with the report and did not request a specific address. The government did not rebut this testimony. Hamilton further asserted that he did come to court on January 14,1981, but that the courtroom was closed. His probation officer allegedly told him the judge was in Arizona. Finally, as to his employment status, Hamilton introduced substantial, corroborated, and un-contradicted testimony that he was gainfully involved in personal business affairs during the time the Government asserts he was unemployed.

Appellant contends the district court abused its discretion by revoking his probation on the four grounds listed above. We agree.

The district court has broad discretion to revoke probation if its conditions are violated. Higdon v. United States, 627 F.2d 893, 900 (9th Cir.1980). Indeed, reporting violations alone may justify revocation. Id.; United States v. Lara, 472 F.2d 128, 129 (9th Cir.1972). The district court’s discretion does, however, have limitations, and we have authority to review revocation decisions for fundamental unfairness or for an abuse of discretion. United States v. Dane, 570 F.2d 840, 843 & n. 4 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978).

The district court had notice at least three years prior to the revocation hearing that Hamilton had not completed twenty-two days of his scheduled 120 day jail term. Yet despite Hamilton’s petition to reschedule the remaining portion of the sentence, the district court took no action, either to rebuke the petitioner or to reschedule his term. The probation officer [1415]*1415likewise took no action. In light of appellant’s efforts to bring the matter to the court’s attention, the petitioner’s default with respect to the jail sentence can no longer be considered a valid basis for revoking his probation. Revocation of probation after unreasonable delay or under circumstances inherently misleading to the probationer is an abuse of discretion. See United States v. Tyler, 605 F.2d 851, 853 (5th Cir. 1979); Greene v. Michigan Department of Corrections, 315 F.2d 546, 547 (6th Cir.1963).

We do not hold that under appropriate circumstances a probation officer or district court may not wait to assess the cumulative effect of several violations before initiating a revocation proceeding. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484; United States v. Johnson, 415 F.2d 1130 (9th Cir.1969). We also do not suggest that revocation proceedings should be an automatic reaction to technical or minor violations simply to preserve the government’s position. See United States v. Tyler, 605 F.2d at 853; United States v. Reed, 573 F.2d 1020, 1024 (8th Cir.1978). At some point, however, violations of which the district court has been apprised and upon which the probationer has sought corrective action become stale or are waived as a basis for revoking probation. See United States v. Tyler, 605 F.2d at 853; Greene v. Michigan Department of Corrections, 315 F.2d at 547. Three years is beyond that point under the circumstances of this case.

The district court also found that Hamilton violated his probation by failing to keep scheduled appointments and to make timely written reports of his whereabouts and employment. Revocation was based in part on those grounds.

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Bluebook (online)
708 F.2d 1412, 1983 U.S. App. LEXIS 26558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fred-anthony-hamilton-ca9-1983.