U.S. v. Yancey, 86-2509
| Decision Date | 27 November 1987 |
| Docket Number | No. 86-2509,86-2509 |
| Citation | 827 F.2d 83 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo YANCEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Sandra Zunker Brown, Jenner & Block, Chicago, Ill., for defendant-appellant.
Jeffrey E. Stone, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before BAUER, Chief Judge and CUDAHY and EASTERBROOK, Circuit Judges.
This is a case of last impression. The probation provisions of the Comprehensive Crime Control Act of 1984, 18 U.S.C. Sec. 3565, make clear that a court may revoke probation for a preprobation offense. The provisions are to become effective on November 1, 1987. In United States v. Dick, 773 F.2d 937 (7th Cir.1985), however, we interpreted the current Probation Act to prohibit a court from revoking probation for acts committed prior to the commencement of probation. Lorenzo Yancey contends that the district court improperly revoked his probation under the current law, see 18 U.S.C. Sec. 3653, for an offense which occurred prior to the term of probation. On reexamination, we conclude that Dick was wrongly decided. We now hold that the Probation Act does not so limit courts' authority, and overrule Dick. Thus, we find that the district court had the authority to revoke probation. The defendant also challenges the underlying finding of insurance fraud which justified revocation. We find that the revocation of Yancey's probation comported with due process of law and affirm.
Lorenzo Yancey pled guilty to two counts of mail fraud stemming from false insurance claims sent to State Farm Insurance Company. Yancey received a five-year sentence 1 in February, 1984, to be followed by five years of probation. In September, 1984, while Yancey was in prison, the government seized a letter which Yancey had written to a Janice Johnson, c/o Pierce. The letter contained the following passage:
I'm sending you a letter attached, for you to take to Mr. Blacks (sic) office when my case settles' (sic).
I also sent one to his office so they too will know what to do.... Your name is Janice Johnson, 7840 South Marshfield. My name is Raymond Thompson along with Mrs. Julie Patrick we all got hit by a car while riding the bus (C.T.A.) last year.
On the basis of the letter, the government petitioned the court to revoke Yancey's probation. At the revocation hearing, the government showed that a Janice Johnson and a Raymond Thompson had filed a claim for personal injuries sustained when a car struck a CTA bus on which they were riding. To show that the claim was false and attributable to Yancey, the government relied on the seized letter. On the basis of the evidence presented, the court concluded that Yancey had intended to deceive the CTA and revoked his probation. Yancey appealed.
While Yancey's appeal was pending, we decided United States v. Dick, 773 F.2d 937 (7th Cir.1985), which held that the district court could not revoke probation for an event that occurred before the beginning of the probationary term. Yancey's appeal was summarily remanded to the district court for reconsideration in light of our decision in Dick. On remand, the government argued that probation was properly revoked since Yancey's actions constituted fraud at sentencing--an exception to the rule stated in Dick. We noted in Dick that a court could resentence a defendant based on a preprobation offense, if the defendant had wrongfully and knowingly withheld important facts at sentencing. Dick, 773 F.2d at 942. At Yancey's sentencing hearing he stated: "As I have been getting older, I have been staying out of trouble." The judge did not hold a hearing on remand, but found that he had been misled by Yancey's statement at sentencing, and reimposed his order revoking probation based on the "fraud on the court" exception approved in Dick. Yancey now appeals from this order.
Yancey argues that the district court was required to hold a hearing on remand to determine whether he had committed fraud at sentencing sufficient to allow the court to revoke probation for a preprobation offense. The issue on remand was whether Yancey had committed "fraud at sentencing" to permit revocation even in light of Dick. While finding that revocation for a preprobation offense was generally impermissible, Dick characterized other cases allowing such revocation as creating an exception to the rule. Those cases established the limited exception that a court could revoke probation for a preprobation offense when the court had imposed sentence without full knowledge of the facts. Clearly, the district court here sentenced Yancey without the knowledge that he would continue to engage in illegal activities. However, the cases themselves suggest a narrower basis for finding "fraud on the court" than the wording in Dick would suggest. In United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980), the defendant had represented that he had no criminal record. The sentencing judge warned the defendant that if his representation was false, his probation would be revoked. In Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir.1967), cert. denied, sub nom. Longknife v. United States, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968) the court found that the defendant knowingly concealed a prior bankruptcy from his probation officer. Rather than lying about his past history, Yancey made a subjective representation about himself. To truly examine the verity of the statement we would need to know just how much trouble he used to get into--or whether he only defined trouble as getting into the hands of the police. 2 This is not to excuse such behavior. A sentencing judge is entitled to, and often must, rely on the statements of the defendant. We note only that it is difficult to characterize such statements as a "fraud on the court."
The government urges that we find that the second order was not required and that the district court properly revoked probation in its first order. Although Dick represented a valiant effort to divine congressional intent from the unclear and sometimes conflicting probation statutes, we are persuaded that a broader reading is necessary to give meaning to the policies behind the Act. In addition, we find that subsequent congressional action in revising the statutes, clarified existing law. We therefore conclude that the Probation Act did not limit judicial authority to revoke probation to acts committed within the probation period.
Federal judicial power to revoke probation derives solely from Congress. Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 173, 100 L.Ed. 62 (1955). Thus, to determine whether a court may revoke probation for an offense which occurred prior to the commencement of the period of probation, we must examine the relevant statutes. There are two statutes which arguably control the authority of the judiciary to revoke probation. Section 3651 of Title 18 provides:
Suspension of sentence and probation.
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest 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.
* * *
* * *
The court may revoke or modify any condition of probation, or may change the period of probation.
Read literally, the section authorizes a court to revoke only the conditions of probation. The other provision which arguably authorizes revocation of probation is section 3653 of Title 18, which provides as follows:
At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. * * *
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.
Any authority conferred by section 3653 is necessarily limited by the initial phrase, "At any time within the probation period" (emphasis added). However, section 3653 appears directed to the more specific power of the court to issue an arrest warrant and the procedures after arrest.
Although a literal reading of the two statutes would limit judicial power to revoke probation to the probation period, many courts have allowed revocation for acts occurring prior to the commencement of probation. See United States v. Dozier, 707 F.2d 862 (5th Cir.1983) (); United States v. Cartwright, 696 F.2d 344 (5th Cir.1983) (); United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980) (); United States v Tucker, 524 F.2d 77 (5th Cir.1975), cert denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976) (...
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