U.S. v. Francischine

• Decision Date: 09 May 1975
• Docket Number: No. 74-3495,74-3495
• Citation: 512 F.2d 827
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank David FRANCISCHINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 827

512 F.2d 827

UNITED STATES of America, Plaintiff-Appellee, v. Frank David FRANCISCHINE, Defendant-Appellant.

No. 74-3495.

United States Court of Appeals Fifth Circuit.

May 9, 1975.

Rehearing and Rehearing En Banc Denied June 30, 1975.

J. V. Eskenazi, Federal Public Defender (Court appointed not under Act), Charlene H. Sorrentino, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., J. B. Ullman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.

RONEY, Circuit Judge:

As a defense to the threatened revocation of his probation, federal prisoner Francischine asserts that his underlying conviction is invalid and therefore the district court does not have jurisdiction to revoke the probation, terms of which he admittedly violated. In affirming the district court's revocation of probation, we hold that the underlying validity of a conviction cannot be asserted as a defense in a probation revocation proceeding, that the conviction's validity may be collaterally attacked only in a separate proceeding under 28 U.S.C.A. § 2255, and the a district court has jurisdiction to consider a petition for revocation of probation as if the underlying conviction were unquestioned, until such time as the conviction has been judicially set aside.

Francischine pled guilty to mail fraud under 18 U.S.C.A. § 1341 in 1972. He was sentenced to two years probation, conditioned upon his participation in a drug rehabilitation program. Failure to participate in the drug program brought a split sentence of five months confinement and the remainder of the two year sentence subject to usual conditions of probation. A state marijuana conviction during the probated term brought this petition for revocation before the district court.

In the meantime, the United States Supreme Court held that the type of activity that triggered the mail fraud charge against Francischine did not constitute an offense under the statute to which he had pled guilty. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Francischine had obtained merchandise from merchants with credit cards not his own. The theory of the fraud charge involving use of the mails was based on the mailing by the merchants of invoices to the credit card companies or their own company headquarters. Maze held such activity not to be encompassed within the proscription of 18 U.S.C.A. § 1341.

Faced with Maze at the probation revocation proceeding, the district court held that decision to have prospective effect only, and not effective to invalidate Francischine's conviction. There being no despite that the terms of probation had been violated by the marijuana conviction, the court revoked the probation and ordered Francischine returned to prison to serve out the remainder of his term.

Contending that the district court was wrong in failing to give retroactive effect to Maze, the defendant on appeal asserts that the validity of the underlying conviction is jurisdictional and may be raised at any time at any proceeding in connection with the conviction, including a probation revocation proceeding. He suggests that in the interest of judicial economy the defense should be recognized in such proceeding, rather than requiring a separate action collaterally attacking the conviction.

We do not reach the basic question that is necessary to the defendant's ultimate success, i. e., whether the conviction can be set aside in a § 2255 collateral attack based on Maze. Until the conviction is judicially nullified, its underlying validity plays no necessary part in the consideration of whether a probated prison term should be continued in view of the alleged violation of the terms of probation.

No cases have been cited to support the defendant's contention that a Maze -type invalidity may be asserted against the underlying conviction in a probation revocation proceeding. We find no authority that the conviction can be so questioned in any other proceeding involving the carrying out of a sentence. The decision may be as much one of policy as it is one of applying fixed legal procedures or analogous precedents. On the whole, however, we think it unwise to mix the two entirely different proceedings.

A probation revocation hearing is not a formal trial. United States v. Bryant, 431 F.2d 425 (5th Cir. 1970). The new Federal Rules of Evidence, specifically Rule 1101(d)(3), provide that the rules, other than with respect to privileges, will not apply in proceedings for revoking probation. The matter at issue in such a hearing is the subsequent act of the probationer which may constitute a violation of the terms of his probation, not the original crime for which he received the probated sentence. See generally Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). As the Seventh Circuit stated in Brown v. Warden, 351 F.2d 564 (7th Cir. 1965).

The inquiry of the court at such a hearing is not directed to the probationer's guilt or innocence in the underlying criminal prosecution, but to the truth of the accusation of a violation of probation. Has the probationer...