U.S. v. Freeman, 90-30141

• Decision Date: 04 January 1991
• Docket Number: No. 90-30141,90-30141
• Citation: 922 F.2d 1393
• Parties: -435, 91-1 USTC P 50,287 UNITED STATES of America, Plaintiff-Appellee, v. John Law FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1393

922 F.2d 1393

67 A.F.T.R.2d 91-435, 91-1 USTC P 50,287

UNITED STATES of America, Plaintiff-Appellee, v. John Law FREEMAN, Defendant-Appellant.

No. 90-30141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1990.

Decided Jan. 4, 1991.

Stephen R. Sady, Chief Deputy Public Defender, Portland, Or., for defendant-appellant.

Charles W. Stuckey, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, CHOY and THOMPSON, Circuit Judges.

CHOY, Circuit Judge:

John L. Freeman appeals from a court order revoking his probation and sentencing him to one year in prison. Freeman alleges (1) that the order was invalid under 18 U.S.C. Sec. 3651 ¹ because it was issued five years and seven months after the commencement of his probation. Freeman also claims (2) that, under 18 U.S.C. Sec. 3568, ² he is entitled to credit for "probation" served, pending trial and appeal, under the supervision of pretrial services. Because neither of Freeman's contentions has merit, we AFFIRM the lower court's order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 18, 1983, a jury unanimously convicted Freeman on 14 counts of aiding and abetting the filing of false federal income tax returns. It was Freeman's practice to travel throughout Oregon conducting tax seminars at which he would show the audience how to falsely declare their taxable wages as nontaxable receipts. In return for this service, he would charge each person $100.00. For an additional $200.00, he would promise to represent them if the Internal Revenue Service should challenge their returns.

On April 4, 1983, the district court sentenced Freeman to three years in prison on counts 1-7, sentences to run concurrently. On counts 8-14, the district court suspended sentence and ordered five years of probation, sentences to run concurrently. The court expressly stated that probation was to commence upon the completion of Freeman's prison term.

On appeal, May 22, 1985, this court reversed Freeman's convictions on counts 1-11 and 14, but affirmed his convictions on counts 12-13. United States v. Freeman, 761 F.2d 549, 552-53 (9th Cir.1985), cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986) (trial court erred when it instructed jury that no first amendment defense was available to Freeman). In so doing, this court invalidated the prison sentence to which the district court had anchored Freeman's five-year probation term. On February 27, 1986, the mandate of this court was filed with the district court.

Throughout the pretrial period and also during his trial and appeal, Freeman remained free on bail in the amount of $0.00. During this time he was subject to minimal supervision by the office of pretrial probation. After June 26, 1984, he was even permitted to travel in California and Hawaii for business and pleasure, provided he refrained from helping others to evade their tax liabilities.

On June 13, 1988, Freeman was convicted for mail fraud in the Eastern District of Wisconsin. A petition for warrant and order to show cause was submitted on November 15, 1988 and issued by the district court on November 21, 1988. On April 2, 1990, the district court revoked Freeman's probation and sentenced him to one year in prison.

STANDARD OF REVIEW

We review de novo, as a question of law, a district court's assumption of jurisdiction to revoke probation under 18 U.S.C. Sec. 3653 (repealed Nov. 1, 1987). United States v. Daly, 839 F.2d 598, 599-600 (9th Cir.1988).

ANALYSIS

I. COMMENCEMENT OF PROBATION

Under section 3653, Title 18, of the United States Code, a district court may Freeman argues that his term of probation began either on April 4, 1983, at the time of his sentencing, or on December 16, 1982, when he first reported to pretrial services. Freeman contends that because his prison sentence was invalidated on appeal, the consecutive term of probation anchored to it commenced retroactively, at the time of sentencing, as a matter of law. In the alternative, he maintains that he should be granted credit for time served under the supervision of pretrial services. If this court grants such credit, he reasons, it must also concede that his probation period actually began when he first reported to pretrial services on December 16, 1982.

                not revoke a probationary sentence once it has expired. 3   United States v. Adair, 681 F.2d 1150, 1151 (9th Cir.1982).  Thus, the key question before this court is:  When did Freeman's term of probation begin
                

The Government, on the other hand, argues that when a convict's anchor term is overturned on appeal, his consecutive probation term begins only at the conclusion of the appeal process. Under this theory, the district court properly fixed February 27, 1986, the filing date of this court's mandate, as the starting point of Freeman's probation.

We hold that if a district court sentences a convicted criminal to consecutive terms of imprisonment and probation, and if the sentencing court expressly provides that probation is to commence upon the completion of the prison term, and if the anchor term of imprisonment is subsequently overturned on appeal, then probation commences, as a matter of law, when the appellate court's mandate is filed with the district court.

A. Express intent of sentencing court determines commencement of probation.

As 18 U.S.C. Sec. 3564(a) (1988) provides: "[a] term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court." (emphasis added). Since taking effect on November 1, 1987, this statute has permitted each trial court, at its discretion, to determine when a sentence begins to run.

Although section 3564(a) appears to apply only in cases where the underlying offense was committed after November 1, 1987, ⁴ it nevertheless codifies longstanding federal case law. The rule codified in section 3564(a) has been applied to offenses committed prior to 1987. For example, in United States v. Levitt, 799 F.2d 505, 507 (9th Cir.1986), this court reviewed a 1977 criminal sentencing order and held that the intent of the court imposing the sentence determined when that sentence was to commence. Similarly, in Sanford v. King, 136 F.2d 106, 108 (5th Cir.1943), cited as persuasive authority by the Levitt court, the Fifth Circuit held that the commencement of probation was determined by the intent of the sentencing court.

In the case at bar, the district court clearly and unambiguously expressed its intent that probation was to begin not at sentencing, but rather, upon the completion of Freeman's prison term. The district court explicitly stated in its sentencing order of April 4, 1983 that: "The probation ordered in counts 8 through 14 shall commence

                upon the completion of the sentences imposed in counts 1 through 7."    We hold that until the anchor prison term was invalidated on appeal, it remained in effect
                

B. Probation begins at sentencing only if district court fails to specify another time.

Freeman implies that under Adair, 681 F.2d at 1151 & n. 3, and Gaddis v. United States, 280 F.2d 334, 336 (6th Cir.1960) (per curiam), he is entitled to a strong legal presumption that his sentence commenced when issued. However, this presumption arises only if a court fails to specify a commencement time for probation. Adair, 681 F.2d at 1151 & n. 3; Gaddis, 280 F.2d at 336 ("In the absence of express language in the pronouncement of sentence fixing the date of commencement of probation, it is deemed to commence when the Judge imposes the sentence." (emphasis added)).

In Adair, this court held that probation began at sentencing and ran concurrently with incarceration, but only because the sentencing order was silent as to the start of probation. Adair, 681 F.2d at 1151. Thus, the trial court in Adair failed to express its intent in the explicit and precise terms demanded by the Ninth Circuit. Id. at 1151 n. 3 ("If a sentencing court does not intend [for probation to commence at sentencing], then the probationary sentence should state explicitly and precisely when probation is to commence."). Where, as here, the trial court unequivocally ordered incarceration, followed consecutively by probation, Freeman is entitled to no presumption under Adair or Gaddis.

Freeman cites Poland v. Arizona, 476 U.S. 147, 152, 106 S.Ct. 1749, 1753, 90 L.Ed.2d 123 (1986) and North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969) for the proposition that his original conviction has been nullified and "the slate wiped clean." This is true, but irrelevant to the issue before this court. Freeman applies the "clean slate" metaphor out of context. The Supreme Court merely used this metaphor for a limited purpose--to emphasize that when a criminal conviction is overturned on appeal, any remaining sentence is summarily erased and need not be served. The Court did not mention how, if at all, reversal of one count might affect sentencing on another count.

C. Probation began on Feb. 27, 1986, in accordance with intent of sentencing court.

In United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972), the Seventh Circuit faced a fact situation similar to the one at bar. In Tanner, two defendants' prison sentences were overturned on appeal. This presented a problem because the starting date of their probation depended upon completion of their prison terms. The court ordered the district court to resentence the two defendants for the purpose of clarification. Id. at 143 & n. 22. Thus, the court of appeals chose to permit the trial court to clarify its intent in light of developments on appeal.

In the case at bar, the sentencing court has already made its intent clear. At Freeman's probation revocation hearing on April 2, 1990, the district court found that probation had commenced on ...