U.S. v. Carey

• Decision Date: 30 November 1977
• Docket Number: No. 77-1637,77-1637
• Citation: 565 F.2d 545
• Parties: UNITED STATES of America, Appellee, v. Lester Henry CAREY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 545

565 F.2d 545

UNITED STATES of America, Appellee, v. Lester Henry CAREY, Appellant.

No. 77-1637

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 14, 1977.

Decided Nov. 30, 1977.

Edward C. Vancil and Richard E. Coughlin, St. Louis, Mo., on brief, for appellant.

Barry A. Short (former U.S. Atty.), and Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., on brief, for appellee.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

PER CURIAM.

Appellant Lester Henry Carey appeals from an order revoking his probation, contending that an earlier ex parte extension of his probation term violated his due process right to prior notice and a hearing. We affirm the order.

In 1973, Carey was indicted and pleaded guilty to a charge of possessing stolen mail matter in violation of 18 U.S.C. Sec. 1708. On January 4, 1974, he was sentenced to a four-year term of imprisonment but the District Court ¹ suspended the sentence and placed appellant on probation for three years. As part of that procedure Carey signed a Conditions of Probation Form that stated, inter alia, "I understand that the Court may change the conditions of probation, [or] reduce or extend the period of probation...."

In November of 1976, two months prior to the expiration of his probation term, Carey was arrested on a burglary charge. On December 29, 1976, in an ex parte proceeding, the District Court issued an order extending the probation period for one year, or until January 3, 1978. ² Although Carey was not notified of the extension prior to the District Court's order, he was notified of the action by his probation officer prior to the state court proceedings. Carey entered a guilty plea to a charge of second degree burglary in state court on May 12, 1977. His conviction was a violation of his federal probation conditions,and a probation violator's warrant was subsequently issued. A probation revocation hearing was held in the District Court on August 12, 1977, and an order revoking Carey's probation was entered. Carey was sentenced to four years imprisonment, with a recommendation to the Attorney General that the federal sentence run concurrently with the sentence on the state charge.

In his appeal Carey contends that the ex parte extension deprived him of his liberty without due process of law, that the order extending the probation term was thus invalid, and that the conviction in state court proceedings could therefore not serve as the basis for a probation revocation because he had successfully completed his three-year probationary period.

The Supreme Court has held that probationers and parolees are entitled to due process protections in revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probationers); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parolees). In Morrissey, the Court held, "Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' " 408 U.S. at 481, 92 S.Ct. at 2600. The Supreme Court has not determined whether such protections should apply to proceedings extending the term of a validly imposed probation, but this precise issue was decided by the Third Circuit in Skipworth v. United States, 508 F.2d 598 (3d Cir.1973). On facts very similar to those in this case, it was held in Skipworth that Morrissey v. Brewer and Gagnon v. Scarpelli do not require prior notice and a hearing in proceedings to extend probationary periods.

[W]e do not believe that due process required notice and a hearing prior to the extension of the petitioner's probation. While we acknowledge that probation entails significant restrictions on an individual, an extension of probation is clearly not as "grievous" a "loss" as revocation, and here it entailed no greater restrictions than those which existed previously.

Id. at 601. The Court reasoned that (1) the loss of liberty in an extension proceeding is only a potential one; (2) the factual inquiry in an extension proceeding is different than in a revocation hearing because the probation period can be extended if the judge finds an extension to be in the "best interests of society," rather than requiring a finding that the conditions of probation have been violated; and (3) it is unlikely that a probationer will be able to present contrary arguments at a hearing. Id. at 601-02. In addition, the appellant in Skipworth had previously signed a probation...