U.S. v. Jurgens, 79-1400

• Decision Date: 25 August 1980
• Docket Number: No. 79-1400,79-1400
• Citation: 626 F.2d 142
• Parties: UNITED STATES of America, Appellee, v. Dwight Conrad JURGENS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 142

626 F.2d 142

UNITED STATES of America, Appellee, v. Dwight Conrad JURGENS, Appellant.

No. 79-1400.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1980.

Decided Aug. 25, 1980.

William L. Osterhoudt, San Francisco, Cal., for appellant.

Jo-Lynne Q. Lee, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Appeal from the United States District Court for the Northern District of California.

Before TANG, FLETCHER and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

This is an appeal from a judgment revoking appellant's probation.

On February 8, 1979, appellant entered a plea of guilty to Count IV of an indictment charging him with possession of a United States Treasury check taken from mail delivered to the residence club where he was employed. He was ordered to return to court for sentencing on March 8, 1979. On that date, appellant's counsel advised the court that appellant was well regarded at the residence club where the check was stolen and that his present employer, Mr. James Bartsch, with full knowledge of his criminal conduct, wished to retain him as a valued employee and hoped he would be granted probation.

Appellant told the court that he was at a loss to know why, on this occasion as in the past, he violated the trust of friends who had confidence in him.

The court then committed appellant to the custody of the Attorney General for imprisonment for a period of five years. Pursuant to 18 U.S.C. Section 3651, the court ordered that appellant be confined for six months, and suspended the remainder of the sentence on condition that he serve a period of four years, ". . . probation to commence upon completion of his term of confinement . . ." The court then granted appellant a further stay of the execution of the sentence until March 22, 1979. At the conclusion of these proceedings the court advised appellant that ". . . after you come out of prison, if you're returned here on any other offense, or for violation of any term of parole (sic) you will go directly to jail for the full five year period."

On April 30, 1979 the probation officer filed a report with the trial court which recited that "During the course of the presentence investigation, which was ordered on February 8, 1979, and subsequent to the imposition of sentence on March 8, 1979, Mr. Dwight Conrad Jurgens allegedly embezzled approximately $5,000 from his employer, Mr. James Bartsch, in Berkeley, California. This information was not known to the court at the time of sentencing."

On April 30, 1979 the trial court notified appellant's counsel that a hearing would be held on May 24, 1979 to determine why probation should not be revoked. Prior to the hearing date appellant's counsel filed a Memorandum with the trial court in opposition to revocation of probation on the ground that appellant was not yet on probation when the acts of embezzlement occurred.

At the hearing appellant's trial counsel advised the court that the prosecution's witness to the acts set out in the probation report need not be called because "the underlying facts will not be contested." The trial court ordered probation revoked. Appellant was committed for the remainder of the suspended five-year sentence.

The sole issue raised on this appeal is whether the trial court had the jurisdiction to revoke probation and to order appellant committed for the remainder of the suspended five-year sentence.

Appellant contends that the trial court's power to revoke probation is limited to conduct which occurs during the period of probation.

We disagree. A trial court may revoke its order granting probation whenever facts are discovered, which were unknown to the court at the time probation was granted, which affect the defendant's suitability for community supervision rather than imprisonment. ¹ In Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968), the same issue was presented to this court. We held that a trial court has the discretion to revoke probation where facts are later discovered which, if known by the trial judge, would have led him to deny probation in the first instance. To hold otherwise would lead to an absurd result. ". . . (T)he judge would be forced into the position of saying that while he is quite convinced that the best interests of both the public and the defendant would be served were the defendant not on probation, he is irrevocably bound by his initial, albeit erroneous, grant of probation" (Trueblood Longknife v. United States, 381 F.2d at 17 at pg. 20).

Appellant has argued that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) have "thoroughly undermined" the holding in Trueblood Longknife. These cases stand for the principle that a defendant is entitled to procedural due process of law in probation or parole revocation proceedings. No question has been raised in the matter before us that the defendant was denied due process in the...