U.S. v. Wickham

• Decision Date: 18 December 1979
• Docket Number: No. 79-1101,79-1101
• Citation: 618 F.2d 1307
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee WICKHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1307

618 F.2d 1307

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee WICKHAM, Defendant-Appellant.

No. 79-1101.

United States Court of Appeals, Ninth Circuit.

Dec. 18, 1979.

Rehearing Denied March 19, 1980.

Terry Amdur, Pasadena, Cal., for defendant-appellant.

Anstruther Davidson, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before BROWNING and GOODWIN, Circuit Judges, and JAMESON, ^* District Judge.

GOODWIN, Circuit Judge:

Claiming that he was denied a speedy revocation hearing and sentence under 18 U.S.C. § 4208(a)(2), Wickham appeals a judgment remanding him to custody for the duration of his original sentence.

He presents two principal issues: (1) the correctness of his revocation proceedings; and (2) the legality of the sentence imposed upon the revocation of his probation. Neither point justifies reversal.

Following his conviction upon a guilty plea, Wickham had been sentenced on January 27, 1975, to a term of ten years with parole at the discretion of the parole commission pursuant to 18 U.S.C. § 4208(a)(2). ¹ This section of the code was then understood as making prisoners eligible for early parole. ²

On March 28, 1975, in response to a Rule 35 motion, the sentencing court suspended the balance of all but six months of the ten-year sentence and placed Wickham on probation for five years. Whether by design or oversight, the (a) (2) provision was omitted from the amended order. Because the order provided for virtually immediate probation, Wickham did not complain of the omission of the (a)(2) reference, and indeed it is difficult to see that it had any place in the order.

During the probation period, on December 8, 1976, the court issued a warrant for Wickham's arrest for absconding from supervision in California. The F.B.I. eventually arrested Wickham in Idaho. In January of 1978, when Wickham was arrested, there was also outstanding against him an Idaho state warrant for forgery. The arresting agents took Wickham to an Idaho county jail. State officers there told him of the forgery charge, and booked him for forgery. The federal warrant was lodged as a detainer. He remained in state custody for almost six months.

On June 8, 1978, Wickham pleaded guilty to the Idaho forgery charge. He was then released into federal custody. After an identity hearing on June 16, Wickham was returned to the central district of California where a probation revocation hearing was commenced on July 31, 1978. On August 1, 1978, the Idaho forgery conviction was added as another ground for revoking his probation. On August 14, 1978, Wickham moved to dismiss the revocation proceedings on the ground that his right to a speedy revocation hearing had been violated. The motion was denied, and on August 15, 1978, the sentencing court ordered revocation of probation and the execution of the prior suspended sentence. This order, again, carried no mention of the (a)(2) provision.

Wickham maintains that the federal warrant was executed in January 1978 when he was arrested by federal agents for violating probation, even though the federal warrant was subsequently lodged as a detainer. He then argues that a revocation hearing seven months after his arrest does not comport with due process under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), or with 18 U.S.C. § 3653, which requires that a probationer be taken before the court "(a)s speedily as possible after arrest * * *" for violating probation.

Both parties agree that execution of the federal warrant is the event from which time for a probation revocation hearing is calculated. They disagree about the effect of the events in this case. Wickham contends that because he was apprehended by federal agents acting pursuant to the federal warrant, he was effectively in federal custody from that time forward. He then argues that he was entitled to speedy processing of his probation revocation regardless of the legitimate demands of the state in which he faced charges for new crimes.

The government, on the other hand, ignores the effect of Wickham's January loss of liberty at the hands of federal agents acting on the federal warrant. Relying on Moody v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the government urges that, because Wickham's extended state custody in Idaho was caused solely by his new state charges, the Gagnon hearing requirements, predicated upon a probationer's loss of liberty due to a violation of a condition of supervised release, were not yet triggered. We agree, but not because the federal warrant was not "executed" when Wickham was arrested in Idaho. ³ It was executed. But Wickham's liability to answer state charges was of his own making, and the time he thus spent in Idaho is not properly chargeable to the federal government. Moreover, as we demonstrate below, Wickham suffered no prejudice from the delay in his revocation hearing while his Idaho problems were being resolved.

If Wickham's arrest had initially been made on the state forgery charge, with the federal warrant lodged as a detainer, the federal warrant would not then have been executed. Focusing upon substance rather than form, the real issue is not which warrant was "executed" first, but whether the federal government did anything to deny Wickham the due process requirements of Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. 1756, as drawn from the parole revocation rules in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The Supreme Court in Morrissey has required that the revocation hearing "be tendered within a reasonable time after the parolee is taken into custody." ⁴ 408 U.S. at 488, 92 S.Ct. at 2604. However, only sterile formality would require that Wickham be taken to California for a speedy hearing in this case. While his probationary liberty was curtailed because of his arrest for violating probation, before another day had passed it was also curtailed because of state charges filed against him. Wickham's loss of liberty would have been the same whether his probation revocation hearing was held the day he was arrested or after the Idaho charges had been processed. ⁵ The mere fact that Wickham was caught first by federal rather than by state officers should have no functional effect in fixing the priority in which the state and federal matters ought to have been resolved. Because Wickham was arrested in Idaho, it made sense to resolve the Idaho charges before bringing him back to California for a revocation hearing. There was no denial of due process. The avoidance of unnecessary travel is the preferred practice whether a revocation warrant is based on noncriminal delinquency or on intervening criminal conduct. See United States v. Bartholdi, 453 F.2d 1225 (9th Cir. 1972).

In his claim of unreasonable delay, Wickham emphasizes the fact that the alleged probation violation underlying the warrant was not his criminal conduct while on release, but violation of a noncriminal condition of probation. However, in Johnson v. Chappell, 117 U.S.App.D.C. 190, 327 F.2d 888 (D.C.Cir.1964), the court held that the parole board may use an intervening conviction as a basis for revoking parole despite the fact that neither the indictment nor conviction had formed the basis for the parole violator's warrant. Although the same circuit later held that it was also "not per se reasonable to defer determination of whether there has been a violation of parole pending the completion of the unrelated criminal proceedings," Boswell v. United States Board of Parole, 128 U.S.App.D.C. 311, 317, 388 F.2d 567, 573 (D.C.Cir.1967) ⁶, nothing in the cases requires a federal court to delay a pending state prosecution in order to hold an early hearing on a federal probation violation.

Wickham's primary claim of prejudice ⁷ is this: Between the time of his arrest in Idaho and his revocation hearing in California, Wickham was convicted of a state felony. This conviction, he says, greatly increased the likelihood that a revocation would result in a substantial prison sentence. No doubt this is true, but we have found no case which recognizes this to be the type of prejudice on which to attack revocation proceedings. Ordinarily, to challenge a revocation proceeding, the delay must have been caused by government action that was not the result of the probationer's own criminal conduct. In addition, the delay must have prejudicially affected the probationer's ability to contest revocation. Prejudice might result from delays causing probationers difficulty in contesting the alleged facts constituting a violation of their release conditions; hardship in finding and presenting favorable witnesses; or inability to produce evidence of mitigating circumstances which might result in continued probation despite the violation. See, e. g. United States v. Companion, 545 F.2d 308, 312 (2d Cir. 1976); Boswell v. United States, 128 U.S.App.D.C. at 388 F.2d at 574; Gaddy v. Michael, 519 F.2d 669, 673 (4th Cir. 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976). In Wickham's case the delay caused none of these things.

Wickham had every opportunity to challenge the charged forgery violation in the Idaho proceedings and to present mitigating evidence, if any existed, in the probation hearing on the issue of revocation. His argument of prejudice ultimately rests on his misconception that his noncriminal conduct in absconding fixed the limits of charges that could be considered as violations of probation. In fact, federal probation officers could have used his Idaho forgery conduct as a probation violation, and could have undertaken to prove that violation by substantial evidence without waiting for his actual state-court conviction for forgery. United States v. Rilliet, 595 F.2d 1138 (9th Cir. 1979). Such a procedure would have...