# Petition — Tucker v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1526%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 966 ## Text 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 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. 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O'S 'N WD " yooeW uotstAlg AaHIN, SLQUGIg WEEL LEM ‘ga SALVLS GHULINA AHL APPENDIX D Ob 5 of: = Pifuosy JORG = ILPPIW 3Hi NOs LINDG [ISIE HIPS’ YsPUGE (eee 8 ponent’ tl OM meg HoHOe J (6) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1526%3A1. Public record. Not legal advice.