Petition — Tucker v. United States

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. €5-9494

WILLIAM PRENTIS TUCKER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OSCAR B. GOODMAN, ESQ.

HOWARD M. MILLER, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorneys for Petitioner

Washington, 0.C. e CLB PUBLISHERS « LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

i i ou Niveads ees 1

eis a digg au s 2

QUESTIONS PRESENTED FOR REVIEW ............. 2

STATUTORY PROVISIONS INVOLVED .............. 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 3

OI vig cc dnseceevescces 3

REASONS FOR GRANTING THE WRIT .............. 5

I. THE DECISION OF THE COURT OF

APPEALS UPHOLDING THE DENIAL OF

A PRELIMINARY PROBATION REVOCA-

TION HEARING IS IN DIRECT CONFLICT

WITH THE DUE PROCESS PRINCIPLES

ENUNCIATED BY THIS COURT IN

MORRISSEY V. BREWER AND GAGNON

WaT SSG et becssucteedeccecesde 5

Il. THE DECISION OF THE COURT OF

APPEALS UPHOLDING A REVOCATION

OF PROBATION BASED UPON CONDUCT

OCCURRING PRIOR TO THE COM.-

MENCEMENT OF THE TERM OF PRO-

BATION IS IN CONFLICT WITH THE

. STANDARDS OF DUE PROCESS ESTAB-

LISHED BY THIS COURT IN MORRISSEY

V. BREWER AND _ GAGNON _V.

EE Cupdedesnes 660+ eee 6o90 8 views 10

EET TT EVEL UCT R OCTET TET ETE 18

eos Gere ee ee eee 18

ss s<a<$<$a$ sO See ee eee eee Te EET la

CEE eee ee aS eS hee CeN eh eneeseecueesas's lb

EE SP ae ee ae ae ae Ic

ee rare Bg i es cei. Oe Pre Id

(ii)

Page

TABLE OF AUTHORITIES

Cases: a

Boykin v. Alabama, 395 U.S. 238 (1969) ............. 8

Brannum v. United States Board of Parole, 361

Pa, SPURNED 0.06650 bd von Sede rae bees e's 9

Cline v. United States, 116 F.2d 275 (Sth Cir.

Sn: oes od kb See ban bes Ch ewes eee arenes 13

Gagnon v. Scarpelli, 411 U.S. 778, 36 L.Ed.2d 656

Dn t00¢4¢e0 60a ts een cenlentens ees be passim

Longknife v. United States, 381 F.2d 17 (9th Cir.

Sn. uat-eeueanaws buna au ae eens se 14

Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484

SED 6 26 Ch 946 Uh OO are ei eelee be passim

United States ex rel Sole v. Rundle, 435 F.2d

we Ge, UNS na oda core a teh ns ce ae a 14

United States v. Ross, 503 F.2d 920 (Sth Cir. 1974) ... 13,

Constitution of the United States:

PE 6.5 c's pbx 04a baw ee sakes ee rneks 3

Miscellaneous:

ABA Standards Relating to Pleas of Guilty

§1.-8(aXi), Commentary p. 40 (Approved)

Se Se 6h snk ee bab aha bi hehe akan. 16

Advisory Committee on Rules ............000000ees 15

American Bar Association Project on Standards for

EE Soo caer eke eet ek betas Mew as 15-16

“Notes of the Advisory Committee on Rules, 18

U.S.C.A. Federal Rules of Criminal Procedure,

Rude 3B, 1975S Gupplomemt .. wc ccc ccc ccccces 16, 17

Sutherland and Cressey, Principles of Criminology

DD 6's ok se0 ee de ee eee eee wee sewn wes 16

(iii)

Page

Federal Rules:

Federal Probation Act:

i cies bo. \¢es 66 e630 066% en08 12, 15

ED nc ccccccccccccccs Op bay U0, 04, 16

Federal Rules of Criminal Procedure:

Be er a 12

ES Sl a res 12

7 eels ol 6b 6 a6 Udo eee 6 oO 00:8 11,15

EE Se ee 11, 15

Federal Rules of Appellate Procedure:

Rule 9(b) TEEEREREEREE EEE 11, 15

ee we ees eke a eK eee 64 15

Statutes:

SS ee eee 16

ee ee kee oe bees oe ee 15, 16, 17

OG TA. Rem BETSD nc ci vets cevecceces 3

RRS Sa ene ec ee 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

WILLIAM PRENTIS TUCKER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, WILLIAM PRENTIS TUCKER, prays

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit

entered in this matter on December 4, 1975.

OPINION BELOW

The judgment of the District Court was affirmed by

the Court of Appeals for the Fifth Circuit.in an opinion

|

-

rendered December 4, 1975. The judgment and opinion

of the Court of Appeals is attached hereto as Appendix

“A”: the judgment of the District is attached hereto as

Appendix “B”.

JURISDICTION

The judgment of the Court of Appeals was entered

on December 4, 1975. The jurisdiction of this Court is

invoked under Title 28, United States Code, Section

1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the minimum due process requirements

established in Morrissey v. Brewer and Gagnon vy.

Scarpelli mandate the conducting of a preliminary

probation revocation hearing prior to a final hearing to

revoke probation?

2. Whether the minimum due process requirements

established in Morrissey v. Brewer and Gagnon vy.

Scarpelli permit a revocation of probation to be based

on conduct which occurred prior to the commencement

of the term of probation?

STATUTORY PROVISIONS INVOLVED

18 U.S.C. §3653 of the Federal Probation Act

provides, in part:

At any time within the probation period, the

probation officer may for cause arrest the

3

probationer... At any time within the probation

period ... the court for the district in which the

probationer is being supervised ... may issue a

warrant for his arrest for violation of probation

occurring during the probation period... [T]he

probationer shall be taken before the court...

Thereupon the court may revoke the probation

and require him to serve the sentence imposed. . .

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V: No

person shall. ..be deprived of life, liberty, or property,

without due process of law...

STATEMENT OF THE CASE

The Petitioner, WILLIAM PRENTIS TUCKER, was

convicted in the United States District Court for the

Middle District of Georgia, at Macon, of violating 18

U.S.C. Appendix §1202(a). He was sentenced to serve

six months of a two year term of imprisonment, the

balance of which term was suspended and the

defendant was placed on probation for five years,

probation to commence on the defendant’s release from

the six month sentence. (Appendix “‘C’’).

The sentence was stayed, in its entirety, pending

appeal of the conviction and, on March 19, 1975, after

appellate review, the Petitioner surrendered himself to

begin service of the six month sentence previously

imposed. On the date he surrendered to begin the

sentence of imprisonment the Petitioner was apprised

by the court of a petition to revoke his probation

which had been filed in District Court the previous day.

Both the court and the Government anticipated

proceeding with a probation revocation hearing that

day; but, as Petitioner expressed a desire to be

represented by his attorney who was then out of state,

the court ordered the matter continued, first to the

following day, then, at the Government's request, two

days to March 21, 1975.

On March 21, 1975, the court intended to proceed

with a final revocation hearing but Petitioner demanded

a preliminary, as well as a final, revocation hearing on

the petition to revoke probation and requested a

continuance of both hearings in order to prepare to

meet the charges therein. The court, at the Govern-

ment’s suggestion, immediately commenced a prelimi-

nary revocation hearing, but discontinued the pro-

ceedings as Petitioner reiterated the objection that he

had had insufficient notice to prepare for even a

preliminary revocation hearing. The court indicated it

would conduct a preliminary hearing only if done

forthwith and would deem that hearing waived unless

proceeded to directly. Petitioner declined to waive

either his right to a preliminary revocation hearing or

his right to sufficient notice to prepare for the hearing;

and the court ordered the matter continued six days for

a final revocation hearing only.

The petition to revoke probation charged TUCKER

with having possessed and transported lottery tickets in

violation of unspecified Georgia State laws on two

occasions. The dates of occurrence of these incidents

were prior to the commencement of the term of

probation previously imposed. (Appendix “D”).

At the hearing evidence was adduced to show that

Petitioner, on several occasions, picked up materials

5

purported to be lottery paraphenalia at a rural trash

dump. No expert testimony was presented to establish

that the materials were in fact lottery tickets. Instead,

the court took judicial notice of the testimony of an

expert witness from an earlier and separate trial

proceeding that the materials were in fact lottery

paraphenalia.

The court found Petitioner to be in violation of

probation, revoked the probation previously granted,

and imposed a sentence of two years imprisonment.

(Appendix “‘B’’).

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE COU

APPEALS UPHOLDING THE DENIAL OF A

PRELIMINARY PROBATION REVOCATION

HEARING IS IN DIRECT CONFLICT WITH

THE DUE PROCESS PRINCIPLES ENUN-

CIATED BY THIS COURT IN MORRISSEY

V. BREWER AND GAGNON V. -

avelt . SCAR

This petitioner presents a significant question in-

volving clarification of the due process principles

enunciated by this court in Morrissey y. Brewer, 408

U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778

(1973) in federal probation revocation proceedings.

In Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed. 2d

484 (1972) this Court established clearly and unequiv-

Ocally that parolees are entitled to the benefit of

fundamental principles of justice and fairness embodied

6

in the due process guarantees of the Fifth and

Fourteenth Amendments to the United States Consti-

tution. The Court articulated the “process that is due”

parolees, as minimally including both ‘an inquiry ... in

the nature of a ‘preliminary hearing to determine

whether there is probable cause or reasonable ground to

believe that the arrested parolee ... committed acts

that would constitute a violation of parole conditions,”

Id., 408 U.S. at 485, and a “[r]evocation [h]earing ...

[which] must lead to a final evaluation of any

contested relevant facts ... warrant[ing] revocation”

Id.. 408 U.S. at 487-489. Further, “[f]lor each hearing

the parclee is entitled to notice of the violations alleged

and the evidence against him, opportunity to be heard

in person and to present witnesses and documentary

evidence, and the right to confront and cross-examine

adverse witnesses,” (emphasis added), Id., 408 U.S. at

491, Mr. Justice Brennan, concurring.

The following term, in Gagnon v. Scarpelli, 411 US.

778, 36 L.Ed. 2d 656 (1973) this Court held these

minimal due process requirements — of a preliminary

hearing and a comprehensive final revocation hearing —

equally applicable to probationers. Moreover, Mr.

Justice Powell, speaking for the Court, left no doubt

that a probationer is entitled to both hearings and

“fa]t the preliminary hearing, a probationer... is

entitled to notice of the alleged violations of

probation. .., an opportunity to appear and to present

evidence in his own behalf, a conditional right to

confront adverse witnesses, an independent decision-

maker, and a written report of the hearing.” Id., 411

U.S. at 786.

These constitutional requisites were not met in the

instant case. The due process requirement of a

ee

7

preliminary revocation hearing established in Morrissey v.

Brewer and Gagnon vy. Scarpelli, supra, does not hinge

on the custodial status of the probationer. Although a

preliminary revocation hearing serves to guard against

the unnecessary incarceration of those conditionally at

liberty, nowhere in the opinions is the right to such a

hearing made dependent on either the custodial status

of the parolee/probationer, or the existence or

non-existence of independent bases for incarcerating the

subject of the proceedings. Indeed, the petitioner in

Gagnon v. Scarpelli, supra, was apprehended with

another person in the course of committing a burglary

and admitted his participation to the arresting police

agency. Clearly, he could have been incarcerated on an

independent burglary charge as well as for violating his

probation; the Supreme Court nonetheless extended

him the right to a preliminary, as well as a final,

probation revocation hearing. Moreover, in speaking to

the second issue raised in that case, the necessity of

appointing counsel for indigents in revocation pro-

ceedings, the Court considered the situation where “the

violation is a matter of public record,” which would be

the case where a probationer is convicted of a new and

separate offense, without suggesting the deletion of the

preliminary revocation hearing, Gagnon vy. Scarpelli,

supra, 411 U.S. at 790. Thus, the fact that the

Petitioner surrendered to begin serving the six month

sentence previously imposed should not operate to

deprive him of the due process right to a preliminary

probation revocation hearing.

Nor can the Petitioner be said to have waived the

hearing because of his insistence on adequate notice to

meet the charges. He was apprised of the petition to

8

revoke his probation barely two days before such time

as the Court was willing to conduct a preliminary

hearing. The petition to revoke probation charged

“_ violation{s] of the laws of the State of Georgia”

but failed to indicate what particular laws, or what

particular conditions of probation, he was alleged to

have violated. If the Petitioner is entitled to “notice of

the violations alleged and the evidence against him.

..for each hearing” (emphasis added), Morrissey v.

Brewer, supra, 408 U.S. at 491, the hearing itself

cannot reasonably be said to fulfill the notice

requirement. If this Petitioner is entitled to “... be

heard..., present witnesses and documentary evidence,

and... confront and cross-examine adverse witnesses,”

Id., he must be given sufficient notice to effectuate

these rights in order for them to be meaningful. The

lack of sufficient notice of the charges and evidence

against him prior to the conducting of preliminary

probation revocation hearing would have effectively

precluded the Petitioner from presenting evidence in his

own behalf. Similarly, the lack of sufficient notice

would have precluded the Petitioner from effectively

confronting and cross-examining adverse witnesses by

denying him the opportunity to adequately prepare to

do so. Thus, the Court’s offer to conduct a hearing

without sufficient notice presented a Hobson’s choice

between two equally undesirable evils—lack of a hearing

or lack of notice, without which the hearing would be

meaningless. As such, the Petitioner cannot be said to

have “‘waived” the hearing as that term is traditionally

applied to the giving up of constitutional rights, e.g.,

Boykin v. Alabama, 395 U.S. 238 (1969).

Further, the United States District Court for the

Northern District of Georgia addressed itself to the

ee a ee ee ae

9

precise problem of sufficient notice in the sense of

adequate time to prepare in Brannum v. United States

Board of Parole , 361 F.Supp. 394 (1973). Therein the

Court stated “[w]hether the failure...to give the

petitioner more than one day’s notice prior to his

hearing is inconsistent with the due process standard

recognized in Morrissey must depend, of course, upon

the prejudice, if any, to the parolee’s defense. Where a

parolee is surprised by a notice of his preliminary or

final revocation hearing and is unprepared to defend

against the charges...contained in such notice, it

would be clear that the due process standard of

Morrissey had not been observed” (emphasis added),

Id., 361 F. Supp. at 397.

In the instant case the Petitioner was offered a

preliminary hearing only under circumstances which

precluded the effective assertion of the due process

rights mandated by Morrissey and its progeny. The

Petitioner was both surprised by the charges and, at the

time the Court was willing to conduct a preliminary

revocation hearing, unprepared to defend against them.

A preliminary hearing as was offered—without prior

notice of the adverse witnesses or other evidence to be

presented, without prior notice of the particular

Georgia state laws or probationary conditions alleged to

have been violated and without sufficient notice to

enable one to prepare both to meet the charges and to

derive all the benefits of the hearing—cannot be said to

comport with the standards enunciated by this Court in

Morrissey. Thus, the failure to conduct a preliminary

revocation hearing in this case worked a denial of

fundamental principles of justice and fairness guaran-

teéd under the due process clause of the Fifth

Amendment to the United States Constitution.

10

For these reasons, the order and judgment of the

Court of Appeals for the Fifth Circuit was in error and

should be reversed.

THE DECISION OF THE COURT OF

APPEALS UPHOLDING A REVOCATION

OF PROBATION BASED UPON CONDUCT

OCCURRING PRIOR TO THE COM-

MENCEMENT OF THE TERM OF PRO-

BATION IS INCONSISTENT WITH THE

STANDARDS OF DUE PROCESS ESTAB-

LISHED BY THIS COURT IN MORRISSEY

V. BREWER AND GAGNON V. SCAR-

PELLI.

This Petition presents a significant question con-

cerning the application of the due process principles

established in Morrissey v. Brewer, 408 U.S. 471 (1972)

and Gagnon v. Scarpelli, 411 U.S. 778 (1973) as regards

revocation of probation for conduct occurring prior to

the commencement of the probationary period.

The Petitioner was originally sentenced in District

Court, on April 22, 1974, to “*... imprisonment for a

period of TWO (2) YEARS... defendant shall serve

SIX (6) MONTHS of said sentence, .. . execution of the

balance of the...sentence is...suspended and the

defendant is placed on probation for a period of FIVE

(5) YEARS,... service of... probation... is to begin

when defendant is released from the service of the SIX

(6) MONTH sentence” (Appendix “C”). By the

language of the judgment, Petitioner’s probation was

not to begin until completion of the six month prison

ee a ae

term. This language clearly and unambiguously sets the

duration and time of commencement of the pro-

bationary period. Further, by allowing the Petitioner to

remain at liberty on bail pending review of the

conviction, and by operation of Rule 38(a)(2) and (4),

Federal Rules of Criminal Procedure’ in conjunction

with Rule 9(b), Federal Rules of Appellate Procedure,”

both the term of imprisonment and the period of

probation were stayed until final resolution of the

appeals. Since the acts alleged to have constituted the

violation of probation occurred prior to the service of

the prison sentence, they necessarily occurred prior to

the term of probation as imposed by the sentencing

court. Assuming, arguendo, the acts alleged in the

petition sufficiently evidenced a violation of pro-

‘Rule 38 provides in part:

Stay of Execution, and Relief Pending Review

(a) Stay of execution

* * *

(2) Imprisonment. A sentence of imprisonment shall be

stayed if an appeal is taken and the defendant is released

pending disposition of appeal pursuant to Rule 9(b) of the

Federal Rules of Appellate Procedure. (emphasis added)

* * *

(4) Probation. An order placing the defendant on pro-

bation may be stayed if an appeal is taken. If not stayed,

the court shall specify when the term of probation shall

commence, If the order is stayed, the court shall fix the

terms of the stay. (emphasis added)

Rule 9 provides in part:

(b) Release Pending Appeal from a Judgment of Con

viction. Application for release after a judgment of

conviction shall be made in the first instance in the district

court. If the district court... imposes conditions of

release, the court shall state in writing the reasons for the

action taken...

12

bationary terms and conditions, such acts, on the face

of the petition, did not occur within the probationary

period.

The general statutory authority for granting proba-

tion to persons convicted of federal offenses, as well as

revoking such probation, is contained in Rule 32(e) and

(f), Federal Rules of Criminal Procedure*® and that

portions of the Federal Probation Act reflected in 18

U.S.C. § 3651.4 However, 18 U.S.C. § 3653, also a part

> Rule 32 provides in part:

o * *

(e) Probation. After conviction of an offense not punish-

able by death or by life imprisonment, the defendant may

be placed on probation as provided by law.

(f) Revocation of Probation. The court shall not revoke

probation except after a hearing at which the defendant

shall be present and apprised of the grounds on which such

action is proposed. The defendant may be admitted to bail

pending such hearing.

“Section 3651 provides in part:

§ 3651. Suspension of sentence and probation. Upon

entering a judgment of conviction..., any court having

jurisdiction ...when satisfied that the ends of justice and

the best interests of the public as well as the defendant will

be served thereby, may suspend the imposition or

execution of sentence and place the defendant on

probation for such period and upon such terms and

conditions as the court deems best ... [I]f the maximum

punishment provided ...is more than six months, [the

court] may impose a sentence in excess of six months and

provide that the defendant be confined in a jail-type

institution ... for a period not exceeding six months and

that the execution of the remainder of the sentence be

suspended and the defendant placed on probation for such

period and upon such terms as the court deems best.

* * *

The court may revoke or modify any condition of

probation, or may change the period of probation.

—

gers

—_—-

13

of the Federal Probation Act, expressly and specifically

limits the court’s power in such proceedings, permitting

revocation only “for violation[s] of probation occurring

during the probationary period.’* (emphasis added).

Hence, the language of the judgment here imposed,

when considered in light of the limits on revocation

powers expressed in 18 U.S.C. §3653, precludes

consideration of the conduct charged as a basis for

revoking Petitioner’s probation as the acts occurred

outside the scope of the probationary period. Absent

this conduct, the record is devoid of a factual basis

supportive of a finding of violation and, therefore, the

order of the Court below revoking probation was

necessarily an abuse of discretion.

Moreover, decisions of the Court of Appeals in

United States v. Ross (Sth Cir. 1974), 503 F.2d 920,

and Cline v. United States (Sth Cir. 1940) 116 F.2d

275 do not require a contrary result. Both Ross and

Cline involved factual situations wherein probation had

been granted as a result of a misrepresentation by the

defendant to the sentencing court. In Cline the

defendant was discovered to be in possession of

narcotics while awaiting transportation to prison on the

*Section 3653 provides in part:

At any time within the probation period, the probation

officer may for cause arrest the probationer...At any

time within the probation period ...the court for the

district in which the probationer is being super-

vised ... may issue a warrant for his arrest for violation of

probation occurring during the probation period .. .

... [T]he probationer shall be taken before the court...

Thereupon the Court may revoke the probation and require

him to serve the sentence imposed . . . (emphasis added)

14

same day probation had been granted. In Ross the

defendant was arrested for narcotic charges, and

subsequently pleaded guilty, the very day he had been

granted probation on a conviction for federal narcotic

violations. Unquestionably, both defendants were

granted probation as a result of misrepresentation to

the Court at the time of sentencing. Other cases

upholding revocation of probation prior to commence-

ment of the probationary period, e.g., United States ex

rel Sole v. Rundle (3rd Cir. 1971) 435 F.2d 721, and

Longknife v. United States (9th Cir. 1967) 381 F.2d

17, involved similar misrepresentations io the sentencing

court.

Here, the Court by its own statement was aware of

Petitioner’s involvement in lottery activities at the time

probation was originally granted. Thus, probation was

granted under no misrepresentation to the sentencing

court and the rule in Ross would appear inapplicable.

Moreover, as indicated by Judge Lynne in_ his

concurring opinion in Ross, supra, 503 F.2d at 930,

this Court has eliminated the “act of grace” classifica-

tion of probationers, Gagnon v. Scarpelli, supra, 411

U.S. at 782, n.4. Thus, the conditional liberty afforded

probationers must now be viewed as a right which

cannot be withdrawn without due process of law, Id.

These principles would appear to discredit pre-Morrissey

decisions upholding revocations on virtually any factual

basis which incurs the court’s disfavor.

To accord probationers the benefit of the language of

18 U.S.C. § 3653, requiring violations to be based on

conduct occurring “within the probation period,” does

not leave sentencing courts without supervisory powers

in situations such as obtain here. A sentencing -court

may impose a term of probation to begin on

15

completion of a prison sentence under 18 U.S.C.

§ 3651. Where the defendant appeals the conviction, the

court, in its discretion, may stay either or both the

imptisonment and probation aspects of the sentence

pending review under Rule 38(a)(2) and (4), Federal

Rules of Criminal Procedure, see n.1, supra. Moreover,

if the term of probation is stayed pending review, the

court may, under Rule 9(b) and (c), Federal Rules of

Appellate Procedure, and by reference therein, under 18

U.S.C. §3148, impose specific conditions on the

Defendant’s release pending review. These alternatives

reflect a drastic departure from Rule 38 prior to its

amendment in 1972, which made the stay of both

imprisonment and probation aspects of sentences

mandatory pending review. The Rule was amended to

make such stays discretionary for the precise reasons of

maintaining supervisory powers over individuals granted

probation who seek review of their convictions, as well

as to enable defendants to benefit from the rehabilita-

tive qualities of probation during the often lengthy

appellate process.°

®Thus, the Advisory Committee on Rules states:

“Having the defendant on probation during the period of

appeal may serve the objectives of both community

protection and defendant rehabi!itation. In current practice,

the order of probation is sometimes stayed for an appeal

period as long as two years. In a situation where the appeal

is unsuccessful, the defendant must start under probation

supervision after so long a time that the conditions of .

probation imposed at the time of initial sentencing may no

longer appropriately relate either to the defendant’s need

for rehabilitation or to the community’s need for

protection. The purposes of probation are more likely to

be served if the judge can exercise discretion, in

appropriate cases, to require the defendant to be under

probation during the period of appeal. The American Bar

16

If the defendant violates conditions of probation,

where probation is not stayed pending review, his

probation may properly be revoked since the conduct

constituting the violation would have occurred “within

the probation period” as per the requirements of 18

U.S.C. $3653. If the defendant engages in unseemly

conduct where probation is stayed and conditions of

release are imposed in lieu thereof, the defendant’s bail

may be revoked and he may be incarcerated pending

resolution of the appeal; if unsuccessful in that

endeavor, he would then be released on probation

pursuant to the original judgment in the case. Indeed,

these alternatives would seem to reflect the very

outcome contemplated by the 1972 Amendment to

Rule 38, making the stay of probation discretionary.’

Association Project on Standards for Criminal Justice takes

the position that prompt imposition of sentence aids in the

rehabilitation of defendants, ABA Standards Relating to

Pleas of Guilty §1.-8(a)(i), Commentary p.40 (Approved

Draft 1968). See also Sutherland and Cressey, Principles of

Criminology 336 (1966), “Notes of the Advisory Com-

mittee on Rules, 18 U.S.C.A. Federal Rules of Criminal

Procedure, Rule 38, 1975 Supplement.

’Thus, the Advisory Committee on Rules comments:

“Under 18 U.S.C. §3148 the court now has discretion to

impose conditions of release which are necessary to protect

the community against danger from the defendant. This is

in contrast to release prior to conviction, where the only

appropriate criterion is insuring the appearance of the

defendant. 18 U.S.C. §3146. Because the court may

impose conditions of release to insure community pro-

tection, it seems appropriate to enable the court to do so

by ordering the defendant to submit to probation

supervision during the period of appeal, thus giving the

probation service responsibility for supervision.

A major difference between probation and release under 18

U.S.C. $3148 exists if the defendant violates the

-

17

Thus, the court having exercised its discretion, in the

instant case, to stay probation pending appellate review,

the appropriate remedy, on proof that Petitioner

engaged in conduct prohibited by conditions of his

release, would have been to revoke bail and incarcerate

him pending the final resolution of his appeal. Had the

court wished to maintain supervisory control over

Petitioner through the probation department, it could

have done so by declining to stay probation pending

review of the conviction. Having made the choice as to

means of supervision, the court, thereby, limited its

remedy.

For the above stated reasons, it is respectfully

submitted that the Court of Appeals, in upholding the

revocation of probation based upon conduct occurring

prior to the commencement of the probationary period,

and absent a showing of misrepresentation to the court

at the time probation was granted, worked a denial of

due process of law in derogation of this Petitioner’s

constitutional rights.

conditions imposed upon his release. In the event that

release is under 18 U.S.C. §3148, the violation of the

condition may result in his being placed in custody pending

the decision on appeal. If the appeal were unsuccessful, the

order placing him on probation presumably would become

effective at that time, and he would then be released under

probation supervision. If the defendant were placed on

probation, his violation of a condition could result in the

imposition of a jail or prison sentence. If the appeal were

unsuccessful, the jail or prison sentence would continue to

be served,” Notes of Advisory Committee on Rules, n.6,

supra.

18

CONCLUSION

For the above reasons a Writ of Certiorari should

issue to review the judgment of the United States Court

of Appeals for the Fifth Circuit.

Respectfully submitted,

OSCAR B. GOODMAN, ESQ.

HOWARD M. MILLER, ESQ.

Goodman and Snyder

230 Las Vegas Boulevard South

Las Vegas, Nevada 89101

Counsel for Petitioner

CERTIFICATE OF SERVICE

It is hereby certified that true and correct copies of

the above and foregoing Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth

Circuit was mailed this day of January, 1976,

postage prepaid, to the Honorable Robert Bork,

Solicitor General, United States Department of Justice,

Washington, D.C. 20530.

~ es eee eee

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

William Prentis TUCKER,

Defendant-Appellant.

No. 75-1997

Summary Calendar*.

United States Court of Appeals,

Fifth Circuit.

Dec. 4, 1975.

Defendant appealed from an order of the United

States District Court for the Middle District of Georgia,

Wilbur D. Owens, Jr., J., which revoked his probation.

The Court of Appeals held that where the probationer

was incarcerated pursuant to a final conviction at the

time of attempted probation revocation, there was no

requirement that there be a preliminary as well as a

final probation revocation hearing.

Affirmed.

Appeal from the United States District Court for the

Middle District of Georgia.

Before THORNBERRY, MORGAN and RONEY,

Circuit Judges.

PER CURIAM:

Affirmed.

Appellant Tucker was convicted of knowingly

receiving a firearm in interstate commerce after having

suffered previous felony convictions, in violation of 18

U.S.C. App. § 1202(a). He was sentenced-to two years

2a

imprisonment and ordered to serve six months, the

balance of the sentence to be suspended. Tucker was

also placed on probation for a period of five years. The

judgment was affirmed on direct appeal by this court.

United States v. Tucker, 502 F.2d 944 (Sth Cir. 1974).

The sentence was stayed pending appeal, and on

March 19, 1975, appellant surrendered himself to begin

serving the six month term of imprisonment. At that

time, he was apprised of a petition by the Government

to revoke his not-yet-commenced probation because of

alleged lottery activities during the pendency of his

appeal. On March 21, the district court intended to

hold a final revocation hearing on the petition; counsel

for Tucker, however, demanded both a preliminary and

a final hearing on the basis of the Supreme Court

decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972), and Gagnon vy. Scarpelli,

411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The district court rejected this contention and only a

final revocation hearing was held on March 27, 1975.

[1] We uphold the district court’s ruling. The

Supreme Court in Morrissey and Gagnon relied on the

fact that revocation of parole or probation in the

normal case operates to deprive the person affected of

“many of the core values of unqualified liberty” and

“inflicts a ‘grievous loss’ on the parolee [or pro-

bationer] and often on others.”’ 408 U.S. at 482, 92

S.Ct. at 2601. That is, in the typical case of revocation

of probation or parole, the probationer or parolee has

been released from incarceration and is at liberty when

the revocation proceeding begins. Accordingly, revoca-

tion of his probation or parole does deprive him

immediately of his liberty. It was this deprivation which

prompted the Court to determine that a preliminary as

.

ET Sens en a

a eee ee ee ee - 2

3a

well as a final revocation hearing vas required to afford

the petitioner due process of law.

[2] Where the probationer or parolee is incarcerated

pursuant to a final conviction at the time of attempted

revocation, as was Tucker, this rationale does not apply.

In such a case, there is no immediate loss of freedom

which would require the immediate probable cause

hearing which the Morrissey and Gagnon Courts deemed

necessary. The fact that this type of situation was not

mentioned in either case does not compel a contrary

conclusion; in neither case was the petitioner incar-

cerated subject to a final conviction at the time of

attempted revocation.

([3] Appellant’s contention that his probation could

not be revoked before it had commenced is foreclosed

by our decision in United States v. Ross, 503 F.2d 940

(Sth Cir. 1974),

[4] After review of the record, we have determined

that the evidence was sufficient to support a finding of

violation of the terms and conditions of probation on

Tucker’s part.

Accordingly, the judgment is

Affirmed.

lb

[11] APPENDIX B

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

UNITED STATES OF AMERICA 3 'CT of ote

VS : CRIMINAL NO. 74-34-MAC

WILLIAM PRENTIS TUCKER

ORDER REVOKING PROBATION

The within petition for revocation of probation

coming on for a hearing, and the Court having heard the

testimony of witnesses and argument of counsel,

ORDERED that the probation sentence heretofore imposed

by the Court upon defendant on April 22, 1974, be and the same

hereby is REVOKED AND VACATED.

This March 27, 1975.

Pa ae 1 A

Wilbur D. Owens, Jr. > 7

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