U.S. v. Foster, 73-3028

• Decision Date: 11 July 1974
• Docket Number: No. 73-3028,73-3028
• Parties: UNITED STATES of America, Appellee, v. David Charles FOSTER, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1241

500 F.2d 1241

UNITED STATES of America, Appellee, v. David Charles FOSTER, Appellant.

No. 73-3028.

United States Court of Appeals, Ninth Circuit.

July 11, 1974.

Barry J. Portman, Deputy Federal Public Defender (argued), Los Angeles, Cal., for appellant.

Mark O. Heaney, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before KOELSCH and HUFSTEDLER, Circuit Judges, and TURRENTINE, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Foster appeals from an order revoking his probation, contending that the evidence does not support a determination that he intentionally violated the terms of probation and that the district court's decision to revoke was an abuse of discretion. He also contends that the manner in which the district court conducted the probation revocation hearings denied him due process.

On January 12, 1973, Foster pleaded guilty to possessing an altered $20 Federal Reserve Note with intent to defraud in violation of 18 U.S.C. 472. The district court sentenced him to the custody of the Attorney General, providing that Foster 'shall be confined in a jail-type institution for the first 60 days, said days to be served on consecutive weekends from 8:00 A.M. Saturdays until 6:00 P.M. Sundays commencing January 20, 1973; the remainder of the term of imprisonment is suspended and the defendant is placed on probation for a period of three years on the conditions he obey all laws Federal State and local and comply with all rules and regulations of the Probation Officer.'

At the time of sentencing, Foster had been in continuous federal custody for 39 days: from December 5, 1972, the date of his arrest upon the charge to which he pleaded guilty, to January 12, 1973. In imposing sentence, the district court indicated its intention to credit the time Foster had already spent in custody to the 60-day-jail-term portion of the sentence. ¹

Foster was released into state custody on January 12, 1973, and removed to the Orange County jail pending sentencing on state charges. The state court imposed a 15-day sentence to run concurrently with Foster's 60-day federal term. He was released from the Orange County jail on February 6, 1973, after serving the 15-day state sentence.

When released from the Orange County jail, Foster had served 64 continuous days in custody since his arrest on December 5, 1972. Foster believed that his confinement for more than 60 days in the Los Angeles County and Orange County jails discharged his federal jail time requirement, an apprehension which was apparently shared by the state judge who sentenced him to jail in Orange County.

After his release from jail, Foster moved to Palm Springs, where he was employed until arrested on a bench warrant on August 8, 1973. Foster was charged with violating the terms of his probation by failing to report to the Los Angeles County jail to serve his federal jail time, failing to report to the probation department, and failing to report his change of address to his probation officer.

The conviction for possession of an altered Federal Reserve Note was Foster's first offense. Neither at the time of sentencing nor afterward was he informed by the district court, anyone from the Government, or his own attorney that he should report to the probation department for any purpose. No presentence report was prepared. He was not contacted by anyone from the probation department during his two months of confinement in Los Angeles and Orange County jails. He was not interviewed by a probation officer until his arrest on the bench warrant in August 1973.

On September 13 and October 1, 1973, the district court held hearings pursuant to its order to show cause why Foster's probation should not be revoked. At the conclusion of the second hearing the district court found that Foster had violated the conditions of probation, vacated the prior probation order, and suspended further execution of the prior sentence. The court then placed Foster of five years' probation, conditioned on his serving 180 days in the county jail on consecutive weekends. Foster appeals from this order.

Although Foster served no time in the Los Angeles County jail following imposition of sentence by the district court, this failure is not an adequate ground for revoking his probation. Confinement in the Los Angeles facility was not a condition of probation. The judgment specified only that the confinement be in a 'jail-type institution.' Foster was confined at such an institution, Orange County jail, after sentencing by the district court. Foster must receive credit for the time served at the Orange County facility if, during that confinement, he was 'in custody in connection with the offense or acts for which (the federal) sentence was imposed.' (18 U.S.C. 3568.) However, we are unable to determine from the record before us the exact basis of his confinement in the Orange County jail. If the state would not have incarcerated him pending the outcome of his state prosecution but for the federal conviction, the time he spent in the Orange County jail is to be deemed 'custody in connection with' the federal charge. (United States v. Eidum (9th Cir. 1973) 474 F.2d 579, 580-81; Davis v. Attorney General (5th Cir. 1970) 425 F.2d 238, 240.) On the other hand, if his custody in the Orange County jail was exclusively pursuant to the state offense and was not influenced by the federal conviction, no credit for time served is due. The record can be appropriately developed and the issue resolved on remand.

The record before us does establish that, because of the failure by the district court to specify Los Angeles County jail and uncertainty as to the effect of detention at Orange County jail, it was reasonable for Foster to believe that the 60-day-jail-term portion of his sentence had been satisfied by his confinement in both the Los Angeles and Orange County jails. Accordingly, even if he must still serve a portion of his original 60-day term, Foster's failure to report to the Los Angeles County jail was not a proper basis for revocation of probation. (United States v. Chapel (9th Cir. 1970) 428 F.2d 472, 474.)

Foster was not informed in any way that he had an obligation either to report to the probation department or to davise the probation office of his change of address. Foster's failure to maintain contact with the probation department, therefore, cannot be a predicate for revoking his probation. (See United States v. Chapel, supra; United States v. Taylor (4th Cir. 1963)321 F.2d 339, 341. See generally ABA Project on Standards for Criminal Justice, Probation 5.1 (approved draft 1970).) Although the district court was not required to believe Foster's testimony, disbelief is not a substitute for affirmative evidence that he was in any way informed that these duties were conditions of his probation. (Cf. Wessel v. Buhler (9th Cir. 1971) 437 F.2d 279, 282-283.) Nothing in the record supports a finding that Foster was informed of such conditions.

The record of the hearings pursuant to the order to show cause why probation should not be revoked reveals that the 'interchanges between court and counsel were marked by expressions and revealed an attitude which hardly reflected the restraints of conventional judicial demeanor.' (Offutt v. United States (1954) 348 U.S. 11, 12, 75 S.Ct. 11, 12, 99 L.Ed. 11.) The district court's frequent interruptions of Foster's counsel and its intemperate remarks deprived Foster of a fair hearing. ² (ABA Code of Judicial Conduct Canon 3; cf. United States v. Marshall (9th Cir. 1973) 488 F.2d 1169.)

The order revoking the original grant of probation and imposing the new terms of probation is vacated. The cause is remanded for the purpose of determining whether Foster is entitled to any credit on his original federal sentence for the time served in the Orange County jail.

* Southern District of California, sitting by designation.

1 The court said: 'Mr. Foster, you are going to do a little more time, whatever the remainder is of the 60 days from that which you have already done. You have seen what it is in terms of five weeks. You are intelligent enough to make up your own mind. If you like it or you think there is nothing to it, all you have to do is come back to this Court within three years and we'll make sure that that is increased about 20 times.'

2 The following excerpts from the record are illustrative:

During the hearing on September 13, 1973, Foster's counsel, Mr. Portman, attempted to explain to the court that his client had a good faith belief that he had fully served his federal jail sentence and to demonstrate that the record...