U.S. v. Tonry

• Decision Date: 09 October 1979
• Docket Number: No. 79-1078,79-1078
• Citation: U.S. v. Tonry, 605 F.2d 144 (5th Cir. 1979)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard A. TONRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 144

605 F.2d 144

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. TONRY, Defendant-Appellant.

No. 79-1078.

United States Court of Appeals Fifth Circuit.

Oct. 9, 1979.

John R. Martzell, New Orleans, La., for defendant-appellant.

John Volz, U. S. Atty., Richard T. Simmons, Jr., Asst. U. S. Atty., New Orleans, La., for the U. S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

We here consider whether, when the sentence of a person who is convicted of a federal crime includes a probationary period, probation may be made subject to a condition that limits the right of the probationer to participate in political activity. Richard A. Tonry contests the constitutional and statutory legitimacy of such a condition of his probation, imposed after he pleaded guilty to four misdemeanor violations of the Federal Election Campaign Act. He contends that the district court abused the discretion allowed by the Federal Probation Act, ¹ and violated the first and tenth amendments to the Constitution by forbidding him from running for any state or local political office ² or engaging in political activity during the term of his probation. We find that the condition offends neither the statute nor the constitution.

I. Facts and Issues

Tonry was elected to the House of Representatives from the First Congressional District of the State of Louisiana in the November, 1976 general election. ³ Following the election, a grand jury investigating alleged violations of the new Federal Election Campaign Act returned an eleven count indictment against him. After plea bargaining, he entered a plea of guilty to each of the counts in a four-count bill of information superseding the grand jury indictment; these pleas resulted in his conviction of:

(1) Conspiracy to violate the Federal Election Campaign Act, a violation of 18 U.S.C. § 371;

(2) Accepting a political contribution in excess of $1000, a violation of the Federal Election Campaign Act, 2 U.S.C. §§ 431-441(j) (441j);

(3) and (4) Promising benefits for political contributions, a violation of 18 U.S.C. §§ 2, 600 (2 counts).

The district court imposed consecutive sentences of six months on two counts; and imposed sentences of six months on the other two counts, but suspended execution, placing Tonry on inactive probation for three years on each count, running concurrently, under the following conditions:

(a) "Defendant shall obey all local, state and federal laws."

(b) "Defendant is ordered to pay a fine of . . . $5,000 . . . ."

(c) "Defendant shall not run for political office nor engage in political activity during the period of probation."

Shortly before he was released from prison, ⁴ Tonry sought clarification of the terms of the probation from his probation officer, who, in response, advised him:

"During the period of your probation, you are not to run for political office, or engage in political activities on behalf of others, such as campaign meetings, campaign fund raising affairs, or any activities that are related to campaigning for political office."

Not satisfied with that reply, Tonry filed a motion with the district court seeking either clarification of the condition of probation, or in the alternative, correction of the sentence under Rule 35, Fed.R.Cr.P. ⁵ contending that it was illegal to condition probation on not seeking state or local office or not engaging in state or local political activity. The district court granted the motion for clarification, but did not alter the probation officer's interpretation of the sentence: "(I)t was intended that defendant not run for political office nor engage in any political activity, be it federal, state, local, municipal or parochial, during the period of probation." This appeal followed.

Tonry contends that the probation condition was an abuse of discretion under the act because it is not reasonably related to his rehabilitation and to protection of the public; that it violates the tenth amendment because the restriction on Tonry's political rights is an impermissible intrusion into the state's regulation of its own elections; and that it infringes his rights to run for political office and to engage in political activity, which are protected by the first amendment.

II. Federal Probation Act ⁶

The statutory basis for probation, 18 U.S.C. § 3651, lists some of the permissible conditions of probation, ⁷ but it does not purport to create an exclusive catalogue. See United States v. Bishop, 4 Cir. 1976, 537 F.2d 1184, 1186. Other conditions may be imposed if they are reasonably related to the rehabilitation of the probationer and protection of the public. See, e. g., United States v. Consuelo-Gonzalez, 9 Cir. 1975, 521 F.2d 259, 263; Porth v. Templar, 10 Cir. 1971, 453 F.2d 330, 333.

Tonry was convicted not only of accepting an illegal campaign contribution but also of promising benefits in return for contributions. He does not challenge the validity of the restriction against his participation in the federal electoral process during probation. This tacit concession that a limited political quarantine is valid, even though not expressly sanctioned by the probation act, puts the issue in proper focus as merely one of degree; there are then only two major considerations, whether there is a sufficient nexus between state and federal political activity to warrant extending the interdiction to the state electoral process, and whether the compulsory abstention is reasonably related to protecting the people who were harmed by Tonry's offenses.

The ban was evidently intended to prevent Tonry from impairing the integrity of the electoral and political process as a whole during the period of time that the district court felt was appropriate, either for the purpose of rehabilitation, so far as that might be possible, or for the purposes of public protection and punishment. The condition was thus not unlike such frequently imposed requirements as obedience to local and state (as well as federal) laws, ⁸ association only with law-abiding persons, ⁹ maintaining gainful employment, ¹⁰ and refraining from particular types of employment. ¹¹

We need not subscribe to the notions that probation is an "act-of-grace" on the part of a trial judge, or a contract between the state and the defendant, to recognize that the sentencing judge's discretion is broad. See Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181 (1967). See also J. Best & P. Birzon, Conditions of Probation: An Analysis, 51 Geo.L.J. 809 (1963). Although probation is not a favor of the court bestowed upon defendant as a relief from imprisonment that may be conditioned in any manner the trial judge sees fit, neither does a probationer have a right to be free from conditions that severely restrain his freedom of action. The judge may, in fact is obliged to, view probation as a substitute for imprisonment and formulate conditions calculated to ensure that the probation furthers the purposes of the criminal law. To serve those objectives, probation conditions must be "tailored to meet the special problems of particular offenders." Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 187 (1967).

A condition of probation satisfies the statute so long as it is reasonably related to rehabilitation of the probationer, protection of the public against other offenses during its term, deterrence of future misconduct by the probationer or general deterrence of others, condign punishment, or some combination of these objectives. Probation is a part of the composite sanction imposed for law violation, and the validity of probation conditions is to be viewed in that light, not weighed in isolation. In determining to impose some imprisonment or none, some fine or none, some probation or none, and some conditions the violation of which will warrant termination of probation, the sentencing judge is given wide discretion to compound a prescription for the individual case before him.

We cannot say that the formula reached by the district judge here was inappropriate, hence that it was beyond the statutory warrant. The conditions imposed on Tonry reflect a careful consideration by the trial judge of appropriate alternative sanctions to imprisonment. Tonry's actions in violating the federal election laws evinced a disregard for society's chosen methods of securing fair and democratic elections. The propriety of the retributive response of barring Tonry, for a limited period of time, from participation in activities relating to the electoral process is manifest. The probation condition likewise serves a deterrent purpose: Tonry is removed from situations that might appeal to his demonstrated propensity to overstep the bounds of legality to obtain political advantage. Both Tonry and the public are given the security of knowing that such temptations will not result in further illegal activities until a reasonable period of responsible citizenship has provided an opportunity for his rehabilitation. A condition that promises to provide such benefits falls squarely within the discretion granted the trial judge by the Federal Probation Act.

The sentence imposed on Tonry for his four convictions reflects a careful compound by the district judge: a moderate period of confinement, followed by a reasonable period of probation. It is impossible to say that, were the condition here under attack deleted, the remainder of the sentence would still reflect the judge's design. In view of the decision we have reached, we need not consider whether, were we to hold the condition invalid, it would be necessary for us to remand so that the trial judge could reconsider the entire sentence and whether he could then impose a different one with perhaps a longer term of confinement in order to approximate the original purpose.

III. Tenth Amendment ¹²

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