Higdon v. U.S.

• Decision Date: 22 May 1980
• Docket Number: No. 79-2533,79-2533
• Citation: 627 F.2d 893
• Parties: William HIGDON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 893

627 F.2d 893

William HIGDON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 79-2533.

United States Court of Appeals Ninth Circuit.

May 22, 1980.

David P. Curnow, McWilliams, Amos & Curnow, San Diego, Cal., for petitioner-appellant.

Andria Sheridan Ordin, U.S. Atty., Los Angeles, Cal., for respondent-appellee.

Appeal from United States District Court For Central District of California.

Before GOODWIN, HUG and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

This is an appeal from the denial of a motion brought under 28 U.S.C. § 2255 (1976). ¹ In his motion appellant Higdon attacked an order entered by the district court revoking his probation for violation of conditions of probation. Because the basis for his challenge is the contention that the imposition of certain of the conditions violated the eighth amendment to the United States Constitution and the Federal Probation Act, 18 U.S.C. § 3651 et seq. (1976), ² and that a revocation based on their violation was therefore void, we treat the motion as an attack on the sentence. We find that the conditions imposed violated the Federal Probation Act, ³ and reverse and remand for further proceedings.

I. FACTS

Former U.S. Army Master Sergeant William Higdon operated several large servicemen's clubs in Vietnam. He and his cohorts devised an elaborate overpayment and kickback scheme that defrauded the government of several hundred thousand dollars. Higdon was also the "money man" for the operation, depositing over $300,000 into a Swiss bank account over a fourteen month period.

In 1971, the scheme was uncovered and Higdon was courtmartialed, found guilty, and sentenced to dishonorable discharge and forfeiture of all benefits. ⁴ He was placed on "excess leave" without pay pending the outcome of his military appeal, and was finally dishonorably discharged, with loss of benefits confirmed, in 1976. A grand jury returned criminal indictments against Higdon in 1971. In 1973, he pleaded guilty to a single charge and received a five-year prison term suspended upon acceptance of a series of probation conditions, including the following two "special conditions":

(1) forfeiture of all assets (including his home) to the government; and

(2) agreement to work for charity full-time for three years (6200 hours) without pay. ⁵

Higdon returned to Georgia, and his case was assigned to the federal probation office there. Between 1973 and 1976 Higdon served as a volunteer for the Georgia Department of Recreation in order to fulfill his charitable work requirement. He performed satisfactorily and reported regularly to his probation officer. To support himself and his wife and two young children, he operated a tavern which had been set up with the help of friends. In 1976, his wife left him, and he was required to make support payments of $500 per month. Eventually, the pressure of working two full-time jobs and the travails of a deteriorating family life led to poor health and a drinking problem.

In 1977, the probation office became suspicious when Higdon fell behind on his monthly time reports and could not be found at the gymnasium or ballfield to which he had been assigned by the Recreation Department. His probation officer ordered that recent monthly time sheets showing hours worked per week be broken down day-by-day. He discovered that Higdon was claiming time for many days when the gym and ballfield had actually been closed and that Higdon had lately been working only a few of his reported thirty hours per week. Higdon had also transgressed by lying about his whereabouts on a particular morning and persuading the state senator in charge of the committee with oversight of the Recreation Department to write a letter verifying his fraudulent time sheets.

Because of these violations of his probation conditions, the probation officer petitioned the judge to revoke Higdon's probation. At the revocation hearing Higdon admitted the violations, probation was revoked, and Higdon was committed to Maxwell Field to serve his full five-year prison sentence with no credit for the four years and four months he had spent on probation. Higdon requested modification of the prison sentence under rule 35 of the Federal Rules of Criminal Procedure. When this was denied, he collaterally attacked his sentence under 28 U.S.C. § 2255 (1976), alleging that the probation conditions were unlawful and amounted to cruel and unusual punishment and that revocation based upon violation of them was therefore void. The district judge took jurisdiction but denied the motion. Higdon here appeals the denial.

II. JURISDICTION

The issues raised by Higdon are properly cognizable in a section 2255 motion. The challenge is to the sentence of a prisoner in custody under sentence for a federal crime, and he presently has no other remedy available to him. ⁶ He contends that he has been jailed for violation of probation conditions that constitute cruel and unusual punishment under the eighth amendment and that violate the Federal Probation Act. The constitutional challenge is, of course, a basis for a section 2255 collateral attack. However, if the constitutional challenge is not sustained, to prevail Higdon must establish that nonetheless there is "a fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). See also United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

III. THE FEDERAL PROBATION ACT

A. Introduction

The core issue is whether the forfeiture and charitable work conditions were within the range of discretion accorded a trial judge by the Federal Probation Act, 18 U.S.C. § 3651 et seq. (1976). Our guide is the test set forth in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc), in which the court held that probation conditions must be reasonably related to rehabilitation of the offender and protection of the public. 521 F.2d at 263-64. See also United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978) (explaining and applying Consuelo-Gonzalez ). This test is applied by a two-step process. First, we consider the purposes for which the judge imposed the conditions. If the purposes are permissible, the second step is to determine whether the conditions are reasonably related to the purposes. In conducting the latter inquiry the court examines the impact which the conditions have on the probationer's rights. If the impact is substantially greater than is necessary to carry out the purposes, the conditions are impermissible. ⁷

B. Impermissible Purposes

The primary purpose of probation is to rehabilitate the offender. Therefore, the only factors which the trial judge should consider when deciding whether to grant probation are the appropriateness and attainability of rehabilitation and the need to protect the public by imposing conditions which control the probationer's activities.

Punishment of an offender may not be the primary purpose of the judge's imposition of probation. ⁸ Nor may probation conditions be the vehicle for circumvention of statutory sentencing limits.

The transcript of Higdon's sentencing hearing ⁹ reveals that the judge was understandably outraged by Higdon's abuse of a position of high public trust during wartime. In fact, he expressed dissatisfaction with the maximum five-year statutory sentence ¹⁰ as too lenient for Higdon. ¹¹ Nonetheless, because Higdon, along with the other defendants, had cooperated with the ongoing congressional investigation of corruption in the armed services, and because the judge had in mind rigorous probation terms, probation was granted. The probation conditions were indeed very severe in their impact, possibly implicating an impermissible purpose under the first part of the Consuelo-Gonzalez test. However, we need not and do not decide that question.

C. Reasonable Relationship

We are compelled to find that the special conditions were impermissible under the second part of the Consuelo-Gonzalez test because they were not reasonably related to rehabilitation of the offender or protection of the public.

The fact that the conditions restrict Higdon's freedom is not dispositive virtually all probation conditions are restrictive, and this circuit has often upheld as reasonable conditions which require the abandonment or limitation of otherwise lawful activities. United States v. Furukawa, 596 F.2d 921 (9th Cir. 1979) (prohibiting association with reputed criminals); United States v. Pierce, 561 F.2d 735 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978) (requiring disclosure of financial assets); United States v. Consuelo-Gonzales, 521 F.2d 259 (9th Cir. 1975) (en banc) (requiring consent to searches without probable cause by probation officers); Malone v. United States, 502 F.2d 554 (9th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) (prohibiting membership in lawful social and political organizations); United States v. Nu-Triumph, Inc., 500 F.2d 594 (9th Cir. 1974) (prohibiting operation of a lawful business). However, although the judge has substantial discretion when assembling a set of probation conditions, they must be narrowly drawn to achieve rehabilitation and protection of the public without unnecessarily restricting the probationer's otherwise lawful activities. If the impact of the conditions is needlessly harsh, the conditions are impermissible.

The reason for requiring the judge to draw the probation conditions narrowly is the same as for the rule requiring the judge to evaluate an offender's capacity to pay a fine or meet a restitution payment schedule and to set the terms accordingly. United States v. Boswell, 605 F.2d 171 (5th Cir. 1979); United States v. Wilson, 469 F.2d 368 (2d Cir. 1972); United States v....