U.S. v. Reed, 77-1928

• Decision Date: 07 April 1978
• Docket Number: No. 77-1928,77-1928
• Citation: 573 F.2d 1020
• Parties: UNITED STATES of America, Appellee, v. Mario S. REED, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1020

573 F.2d 1020

UNITED STATES of America, Appellee, v. Mario S. REED, Appellant.

No. 77-1928.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1978.

Decided April 7, 1978.

Richard H. Ulrich, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, Mo., for appellant; David L. Baylard, St. Louis, Mo., on the brief.

Frederick Buckles, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on the brief.

Before LAY and BRIGHT, Circuit Judges, and VAN SICKLE, District Judge. ^*

BRIGHT, Circuit Judge.

Mario S. Reed appeals from an order revoking his probation and sentencing him to three years' imprisonment. For reasons stated below, we vacate the order and remand this case to the district court for further proceedings.

I.

In 1974, Reed, then age twenty-two, pleaded guilty to a charge of forging an endorsement on a United States Treasury check in violation of 18 U.S.C. § 495 (1976). The district court suspended imposition of sentence and placed Reed on probation for five years. In addition to the usual conditions of probation, ¹ the court required that "(r)estitution be made during the period of probation," that Reed "shall be regularly and gainfully employed and failure to be gainfully employed shall be a basis for revocation of probation," and that Reed report "(e)ach month as directed by Probation Officer."

Reed apparently satisfied the conditions of his probation until early 1977 when he failed to report to his probation officer on several occasions as directed and to satisfy the employment requirement. On November 14, 1977, his probation officer sought a probation violator's warrant on the following grounds:

Failure to maintain employment.

Failure to notify of address change.

Failure to report as directed.

The court ordered Reed arrested and conducted an evidentiary hearing. The probation officer's testimony at the hearing indicated that Reed had failed to report precisely as directed during 1977. On June 16, 1977, the probation officer had mailed the following letter:

Dear Mr. Reed:

A review of your file shows that you have missed the last four scheduled office visits on April 18, 1977; May 16, 1977; May 26, 1977 and June 1st, 1977. You last reported to this office on April 27, 1977, and as it was not scheduled I was out of the office. You subsequently failed to call as instructed. Repeated home visits have largely been unsuccessful in contacting you and during a home visit on May 23, 1977, I advised you that several employment leads were available but you failed to contact me for specific details. As you have been unemployed for some time this indicates you are not interested in working. It is, however, noted on your May report you claim to be employed now. You are instructed to report to the probation office on Monday, June 20, 1977, between the hours of 10:00 o'clock A.M. and 12:00 noon or 2:30 P.M. to 6:30 P.M. Bring your check stubs, if any, and confirmation of starting date. Continuation of missed appointments is not acceptable.

Reed appeared as directed on June 20 and claimed he had obtained employment with the St. Louis Housing Authority. He could not, however, verify his employment, and the probation officer did not call the employer to verify Reed's claim for fear of jeopardizing the job opportunity. Reed promised to bring in check stubs as verification of employment but failed to do so.

The next visit between Reed and the probation officer occurred on August 29, 1977, again at the probation office. The probation officer advised Reed that he was not meeting the conditions of his probation because he was unemployed and had repeatedly missed office visits. At that time the officer directed Reed to report to the probation office at least every other week until further notice and also referred Reed to the Ex-Offenders Clearing House for employment possibilities, leads, or job training. Reed did not report again to the probation office. On September 27, after several attempts to visit Reed at his apartment, the probation officer learned from the apartment manager that Reed had been evicted a week earlier and had left no forwarding address. Shortly thereafter, the probation officer petitioned the district court for the probation violator's warrant.

At the close of the probation officer's direct testimony, the district judge asked whether Reed had made any restitution. The probation officer testified as follows:

The initial amount of the restitution was $561.92. The remaining balance is $462.92 with the last payment being made September 18, 1976.

Reed's testimony offered explanations for each of the apparent deficiencies in meeting the conditions of his probation. He testified that he had attempted to obtain employment and, indeed, had obtained a job as a salesman, but he had failed to earn any money on a commission basis. He admitted that he had not reported to the Ex-Offenders Clearing House, but the referral was not, as he understood it, mandatory. Some of his failures to report to the probation officer were due to illness and transportation problems. He denied receiving the June 16th letter, possibly because a recent change of address by his wife may have affected his own mail. He further testified that the apartment manager had attempted to evict him because of his activities in organizing a tenants' group, but he nevertheless still received mail and slept at his apartment. He called a witness who testified that he saw Reed at the apartment after the probation officer had attempted to locate him there.

At the close of the hearing, the court made the following statement:

THE COURT: All right. The probation will be revoked for the reason that the defendant has not made restitution that he should have made during the period of probation; his failure to report; his failure to advise the office and respond to their requests for his appointment to be made.

The court then entered an order revoking probation and sentencing Reed to three years' imprisonment.

II.

On this appeal, Reed first argues that the district court erred in basing the revocation on a reason not charged against him by his probation officer, i. e., failure to make restitution.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that parole revocation is subject to due process protections, including a hearing and notice of the charges against the parolee. The Court later incorporated these same procedural protections into state probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Rule 32(f) of the Federal Rules of Criminal Procedure incorporates due process requirements into federal probation revocation proceedings:

The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. (Fed.R.Crim.P. 32(f).)

In addition to notice and a hearing, due process requires adequate proof of the alleged violations of the conditions of probation. United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974); United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973).

Reed did not receive prior notice that he was charged with failure to make restitution. The probation officer did not list failure to make restitution as a violation of the conditions of Reed's probation. Not until the district court raised the question of restitution during the hearing did Reed have notice that his failure to have made full restitution could result in loss of his liberty.

In addition, and even more importantly, the record shows no substantive violation of the restitution condition. The sentence entered on December 20, 1974, required restitution "during the period of probation," which was to last five years. Because the probation period has not yet ended, Reed's failure to make full restitution does not constitute a violation of the conditions of his probation.

For these reasons, the trial court erred in revoking probation on grounds of Reed's failure to make restitution.

III.

Reed also contends that he had attempted in good faith to comply with the reporting requirements of his probation and that his failure to report, therefore, did not constitute adequate independent grounds for revocation.

The decision to place an offender on probation or parole represents a conclusion by the sentencing judge that the offender will benefit from a program of supervision and treatment designed to aid that individual in becoming a constructive member of society. These programs, if successful, benefit not only the individual offenders but also society as a whole, for the cost of maintaining a prisoner in a federal prison has been calculated at ten times that of supervising an offender in a community-based program. ² The Supreme Court's comments on the nature of parole and the parole officer's duties apply to probation as well:

(P)arole is an established variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. * * *

The parole officers are part of the administrative system designed to assist parolees and to offer them guidance. The conditions of parole serve a dual purpose; they prohibit, either absolutely or conditionally, behavior that is deemed dangerous to the restoration of the individual into normal society. And through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the...