United States v. John Andrew Dane

570 F.2d 840
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 1, 1978
Docket76-2448
StatusPublished
Cited by83 cases

This text of 570 F.2d 840 (United States v. John Andrew Dane) 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. John Andrew Dane, 570 F.2d 840 (9th Cir. 1978).

Opinions

WALLACE, Circuit Judge:

Dane appeals the revocation of his probation. He argues that because he had no notice of the condition which he was alleged to have violated and because the acts leading to revocation were committed outside of the United States and violated no United States law, the district judge abused his discretion in revoking probation. We affirm.

[842]*842I

On June 30, 1975, Dane pleaded guilty to a charge of possessing Claymore mines in violation of 26 U.S.C. §§ 5861(d), 5871. On August 25, 1975, Dane was sentenced to five years in prison, six months to be served in a jail-type institution with the remainder of the custodial sentence suspended and probation imposed. A few days after Dane was released from prison to begin his probation period, he petitioned the sentencing judge for permission to leave the country indefinitely on unsupervised probation. On October 16, 1975, permission was granted. Dane left the country for Great Britain in December 1975.

Dane was arrested on his return on May 6, 1976. He was charged with violating a special condition of his probation: that he “not trade, possess, or carry weapons, firearms, or explosives.” At his revocation hearing, the sentencing judge found that Dane had violated this condition by handling weapons in Mexico, by having his personal weapons shipped to him from the United States, and by engaging in armed instruction in Rhodesia and handling arms there. There was no allegation that any of these activities were illegal under the laws of the United States or of any other country.

In pronouncing the split sentence in open court, the district judge did not verbally specify any conditions for the noncustodial period of probation. The signed judgment order provided for no special conditions of probation. The judgment imposed only standard conditions, printed on the back of the form.1 Later, however, Dane’s probation officer, Yaeger, showed Dane a copy of probation form number 7, the purpose of which is to provide notice to probationers of the conditions of their probation. This form included two special conditions of probation, including the no-weapons condition, as well as the standard conditions. Dane signed the form but, according to his testimony, he did not have time to read it because at that time he was being returned to custody. Yaeger’s testimony could be considered conflicting as he did not believe that Dane had an opportunity to read the conditions “in depth.” Yaeger could not remember whether Dane received a copy of the probation form.

However, Yaeger did explain the conditions to Dane on September 18, when Dane reported to the probation office after being released from prison. At that meeting, according to Yaeger, Yaeger expressed his concern about the firearms that Dane had kept (legally) at his house, explained that keeping them was a violation of his probation, and directed him to give them away. He also told Dane about a provision of the law which would allow him, after successfully completing probation, to petition a governmental agency for permission once again to own firearms.2

Dane’s recollection of the meeting was substantially similar to Yaeger’s. Dane testified, however, that he thought the discus[843]*843sion pertained to the federal law which prohibits possession of firearms by a convicted felon.3 He testified that he thought that the probation condition which would be violated by firearms possession was condition (1): “You shall . . . refrain from the violation of any law (federal, state, and local) . . ..” Dane also'testified that he did not believe that the possession of weapons would be in violation of United States law once he was outside of the United States.

The district judge, who was in the best position to assess the testimony, did not accept Dane's rendition. He stated that Dane’s “recollection of the events is certainly colored in his favor, to be charitable about it.” At the same time, he accepted the testimony of Yaeger.

II

Before we consider Dane’s contentions, it will be helpful to analyze the applicable legal standard of review. In Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932), the Supreme Court held that the critical issue in probation revocation is “whether the court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant.” Id. at 221, 53 S.Ct. at 156. Within these limitations, the sentencing court has broad discretion in determining whether or not to revoke probation; its decision will be overturned only for an abuse of discretion. Id. at 221-23, 53 S.Ct. 154.4

Subsequent to Burns, the Court decided Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). There the Court held, by implication, that the probationer has a constitutionally protected liberty interest. Id. at 781-82, 93 S.Ct. 1756. Thus the probationer cannot be denied due process — despite certain statements in Burns v. United States, supra, 287 U.S. at 220, 223, 53 S.Ct. 154, and cases following Burns, e. g., Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), that probation is an “act of grace.” Gagnon v. Scarpelli, supra, 411 U.S. at 782 n. 4, 93 S.Ct. 1756.

In Gagnon, the Court approved the use of discretion in probation revocation. Id. at 784, 785, 93 S.Ct. 1756. To this extent, Burns remains good law. Nevertheless, the revoking court’s exercise of discretion must now be tempered with a proper regard for the due process rights of the probationer. This, of course, must be taken into account in reviewing the revocation decision.

A.

Dane’s assertion that he received no notice of the special condition which he was found to have violated raises the issue whether his probation was revoked without due process of law. It is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). This is no less true whether the loss of liberty arises from a criminal conviction or the revocation of probation. Cf. Gagnon v. Scarpelli, supra, 411 U.S. 778, 93 S.Ct. 1756.

As a general matter, formal conditions of probation serve the purpose of giving notice of proscribed activities. But a formal condition is not essential for purposes of notice. Courts have sustained the [844]*844revocation of probation for criminal activity committed prior to the effective date of the conditions, United States v. Ross, 503 F.2d 940, 943 (5th Cir.

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Bluebook (online)
570 F.2d 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-andrew-dane-ca9-1978.