U.S. v. Furukawa
| Decision Date | 14 May 1979 |
| Docket Number | No. 78-3315,78-3315 |
| Citation | 596 F.2d 921 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wallace S. FURUKAWA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Erick T. S. Moon, Honolulu, Hawaii, for defendant-appellant.
Michael L. Sterrett, Sp. Atty. U.S. Department of Justice, Honolulu, Hawaii, for plaintiff-appellee.
On Appeal from the United States District Court for the District of Hawaii.
Before BROWNING, CHOY and HUG, Circuit Judges.
On September 27, 1976, appellant Furukawa pleaded guilty to charges of illegal gambling. He was sentenced to a three-year prison term of which he was to serve six months. He was thereafter placed on probation for five years. Three of the conditions of his probation were as follows: (1) "You shall associate only with law-abiding persons and maintain reasonable hours" (condition 2), (2) "You shall follow the probation officer's instructions" (condition 6), and (3) "You (shall) not associate with any known gamblers including but not limited to any person found guilty or pleading guilty in (the case in which Furukawa pleaded guilty and a related case)" (the special condition).
On May 12, 1978, Furukawa's probation officer petitioned for revocation of probation on the ground that Furukawa had violated one or more of the above mentioned conditions on seven different occasions. The district court held a revocation hearing and determined that the evidence established five of the seven charged violations beyond a reasonable doubt. Noting its particular concern with Furukawa's violation of the instructions of his probation officer, the court revoked probation and ordered that Furukawa serve the balance of his three-year prison term. Furukawa appeals from the revocation order.
The five violations found by the district court involve Furukawa's contact with three individuals: Takagi, Handa and Okubo. Furukawa contends that revocation of his probation should not have been premised upon his contacts with Takagi, Handa and Okubo.
Furukawa's probation officer instructed him not to associate with Takagi because it appeared that Takagi was involved in "law-violating behavior." Furukawa first contends that this order was beyond the scope of the officer's authority. He argues that a probation officer may only instruct a probationer "within the limits of the conditions of probation set forth by the court."
Assuming Arguendo that a probation officer's authority is limited to giving instructions and orders consistent with the conditions of probation, we conclude that the officer here did not exceed his authority in ordering Furukawa to refrain from associating with Takagi.
One of the conditions of Furukawa's probation was that he associate only with "law-abiding" individuals. Furukawa argues that "law-abiding" means "without conviction." However, the case he cites as supporting his definition disproves his argument: In United States v. Albanese, 554 F.2d 543, 546 (2d Cir. 1977), the court expressly held that "criminal record" conditions were Not Id.
Here, the probation officer determined that Takagi appeared to be involved in "law-violating" activities after learning that Takagi was reputedly involved with organized crime in Japan, was involved in the operation of a dealing in pornographic materials, and had been arrested for illegally possessing weapons in an automobile. That determination was entirely reasonable. His instruction that Furukawa not associate with Takagi was therefore consistent with the condition that Furukawa associate only with law-abiding individuals.
Furukawa next contends that violation of this instruction cannot lead to revocation of probation because the instruction was not reasonably related to his rehabilitation or to the protection of the public. Furukawa's argument is premised on his contention that Takagi is a "law-abiding" individual. However, as we have previously indicated, the probation officer was justified in concluding that Takagi was not "law-abiding." Therefore, we reject this argument, for it is beyond question that preventing a probationer from associating...
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Jones v. State
...jurisdictions have upheld the constitutionality of similar conditions on their grants of probation or parole. United States v. Furukawa, 596 F.2d 921, 922-23 (9th Cir. 1979); Birzon v. King, 469 F.2d 1241, 1242-43 (2nd Cir.1972). Therefore, "freedom of association may be restricted if reaso......
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...or harmful character" where evidence revealed probationer was aware of the condition and potential violation); U.S. v. Furukawa, 596 F.2d 921, 922-23 (9th Cir.1979) (upholding probation condition which allowed probationer to associate only with law-abiding persons); Birzon v. King, 469 F.2d......
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