U.S. v. Williams

• Decision Date: 04 April 1994
• Docket Number: No. 92-2473,92-2473
• Citation: 15 F.3d 1356
• Parties: P UNITED STATES of America, Plaintiff-Appellee, v. Gregory WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1356

15 F.3d 1356

1994 Fed.App. 37P

UNITED STATES of America, Plaintiff-Appellee, v. Gregory WILLIAMS, Defendant-Appellant.

No. 92-2473.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 13, 1993.

Decided Feb. 4, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied April 4, 1994.

Lynn A. Helland (argued and briefed), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Margaret Raben (argued and briefed), Dise & Gurewitz, Detroit, MI, for defendant-appellant.

Before: NORRIS and SILER, Circuit Judges; and OAKES, Senior Circuit Judge. ^*

OAKES, Senior Circuit Judge.

This appeal presents a question of statutory interpretation: does a district court have authority to revoke probation for pre-probation conduct? We conclude that a district court does have authority to revoke probation for pre-probation conduct, including the pre-probation conduct of a paroled convict. We therefore affirm the decision of the District Court.

I. BACKGROUND

On April 4, 1985, Gregory Williams pleaded guilty in the United States District Court for the Eastern District of Michigan to mail fraud, credit card fraud, forgery, and possession of stolen mail (the "1985 convictions"). He was sentenced by Judge Horace Gilmore on August 7, 1985 to two concurrent four-year terms of imprisonment on the mail fraud and credit card fraud counts. On the forgery and possession of stolen mail counts, Judge Gilmore sentenced Williams to two concurrent five-year periods of probation, to run consecutive to the four-year terms of imprisonment. Judge Gilmore also ordered Williams to pay over $400,000 in restitution to the primary victims of his mail fraud, Gloria McKay and her family.

On September 24, 1987, Williams was paroled. Williams' custodial sentence expired on March 24, 1989. At that time, Williams began to serve his probation.

On October 19, 1989, Williams was indicted on new charges of fraud for conduct occurring during his parole and before his probation. On September 5, 1990, Williams pleaded guilty to charges including mail fraud, credit card fraud, making a false statement to his probation officer, and money laundering (the "1990 convictions"). ¹

The probation revocation proceedings that ultimately produced this appeal began on December 14, 1989. On November 20, 1992, Judge Gilmore found that Williams had violated the conditions of his probation by virtue of his pre-probation offenses. Judge Gilmore revoked Williams' probation and sentenced him to ten years imprisonment on the forgery count of the 1985 convictions. Judge Gilmore suspended Williams' sentence for the possession of stolen mail count. Williams filed a timely notice of appeal on November 30, 1992.

II. DISCUSSION

This appeal presents the question whether 18 U.S.C. Sec. 3651 authorizes district courts to revoke probation for pre-probation conduct.

A. 18 U.S.C. Sec. 3651

A district court's authority to revoke probation is now governed by 18 U.S.C. Sec. 3565 (1988). ² The offenses for which Williams was sentenced to probation, however, were committed before November 1, 1986, the effective date of Section 3565. Accordingly, the District Court's authority to revoke Williams' probation is governed by 18 U.S.C. Sec. 3651 (1988) (repealed by Pub.L. 98-473, Sec. 212, 98 Stat. 1987 (1984)). See United States v. James, 848 F.2d 160, 162 n. 2 (11th Cir.1988). Section 3651 provides that:

[t]he court may revoke or modify any condition of probation, or may change the period of probation. The period of probation, together with any extension thereof, shall not exceed five years.

18 U.S.C. Sec. 3651. This provision appears to give courts broad discretion to revoke, modify any condition of, or change the period of, probation so long as the period of probation is not changed to exceed five years. Nothing in the language of this statute limits the authority of a court to revoke probation to conduct occurring within the period of probation.

Williams argues that 18 U.S.C. Sec. 3653 (1988) (repealed by Pub.L. 98-473, Sec. 212, 98 Stat.1987 (1984)) limits a court's authority to revoke probation under Section 3651. Section 3653 provides:

[a]t any time within the probation period or within the maximum probation period permitted by section 3651 ... the court ... may issue a warrant for [the probationer's] arrest for violation of probation occurring during the probation period.

18 U.S.C. Sec. 3653. Read literally, this section appears to limit the authority of a court to issue a warrant for a probationer's arrest to probation violations occurring during the probation period. Thus, while Section 3651 appears to authorize a court to revoke probation for pre-probation conduct, a literal interpretation of Section 3653 suggests that a court may not issue a warrant for arrest for pre-probation conduct. Williams argues that if Congress intended to authorize courts to revoke probation for pre-probation conduct, Congress would have authorized courts to issue warrants for arrest for pre-probation conduct. Williams further argues that because Congress did not authorize district courts to issue arrest warrants for conduct not occurring within the period of probation, Congress did not intend district courts to have authority to revoke probation for pre-probation conduct. See Williams' Brief at 4-10.

Arguably, the fact that 18 U.S.C. Sec. 3653 limits the authority of district courts to issue warrants for violation of probation to violations of probation occurring during the probation period introduces a certain ambiguity into the meaning of 18 U.S.C. Sec. 3651. See United States v. Ross, 503 F.2d 940, 943 (5th Cir.1974) (recognizing a "certain superficial, if semantic, appeal" of, but rejecting, the argument that the language of 18 U.S.C. Sec. 3653 limits judicial authority under 18 U.S.C. Sec. 3651 to revoke probation for pre-probation conduct). It should be stressed, however, just how limited this arguable ambiguity is. For example, where an incarcerated defendant commits a violation of the terms of his or her probation there is no need for a court to issue a warrant for the convict's arrest--the convict is already in custody. The fact that Congress has not authorized a court to issue a warrant for an incarcerated convict, therefore, should not be taken to imply that a court has no authority to revoke probation for the pre-probation conduct of an incarcerated convict. Similarly, a paroled convict is still, in a legal, if not physical, sense, "in custody." See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole is a form of custody for purposes of a habeas corpus petition); DePompei v. Ohio Adult Parole Authority, 999 F.2d 138, 140 (6th Cir.1993). Warrants for the retaking of a parolee are to be issued by the Parole Commission, not the district courts. See 18 U.S.C. Sec. 4213 (1988). The fact that Congress has given the Parole Commission, rather than the district courts, power to issue warrants to retake parolees seems to follow more from the fact that a parolee remains in custody of the executive than from the supposition that Congress did not intend district courts to have authority to revoke probation for pre-probation conduct. ³

The only remaining ambiguity arguably introduced by Section 3653, therefore, is the case of a convict, whether incarcerated or paroled, who violates the terms of probation before the probation period begins but whose violation does not come to the attention of the court until after the convict has begun probation. This arguable ambiguity suggests at most that Congress intended courts to have authority to revoke probation for the pre-probation conduct of incarcerated or paroled convicts whose probation violations are discovered before the probation period began but not where the conduct is discovered after the probation period began. We find it extremely unlikely that Congress intended such a limitation on the authority of a court to revoke probation to be inferred from this arguable limitation on the power of the court to issue warrants for the arrest of a probation violator. ⁴ Rather than identifying an ambiguity, Williams' argument seems to us to constitute an application of " 'ingenuity to create ambiguity' that simply does not exist in this statute." United States v. Thompson/Center Arms Co., --- U.S. ----, ----, 112 S.Ct. 2102, 2113, 119 L.Ed.2d 308 (1992) (White, J., dissenting) (quoting United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116 3121, 92 L.Ed.2d 483 (1986) (quoting Rothschild & Brother v. United States, 179 U.S. 463, 465, 21 S.Ct. 197, 198, 45 L.Ed. 277 (1900))).

Because we find that the statute is not ambiguous, the rule of lenity does not apply. Even if we were to find that Williams' argument did reveal a genuine ambiguity in the statute, however, we would not be required to apply the rule of lenity in this case. "Ambiguity in a criminal statute is resolved in favor of the defendant because 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed' and because 'of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, [and therefore] legislatures and not courts should define criminal activity.' " Thompson/Center Arms Co., --- U.S. at ---- n. 2, 112 S.Ct. at 2114 n. 2 (Stevens, J., dissenting) (quoting United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)). In this case, Williams had fair notice that a violation of the terms of his probation would result in revocation of his probation. See Id., --- U.S. at ----, 112 S.Ct. at 2114 (Stevens, J., dissenting) ("The main function of the rule of lenity is to protect citizens from the unfair application of ambiguous punitive statutes. Obviously, citizens should not be subject to punishment without fair notice that their conduct is prohibited")....