US v. Myers

• Decision Date: 23 June 1992
• Docket Number: No. G86-92-01-CR.,G86-92-01-CR.
• Citation: 799 F. Supp. 790
• Parties: UNITED STATES of America, Plaintiff, v. Matthew J. MYERS, Defendant.
• Court: U.S. District Court — Western District of Michigan

799 F. Supp. 790

UNITED STATES of America, Plaintiff, v. Matthew J. MYERS, Defendant.

No. G86-92-01-CR.

United States District Court, W.D. Michigan, S.D.

June 23, 1992.

Julie Ann Woods, Asst. U.S. Atty., Grand Rapids, Mich., for U.S.

Daniel R. Gravelyn, Kevin G. Dougherty, Devin S. Schindler, Warner, Norcross & Judd, Grand Rapids, Mich., for Matthew J. Myers.

OPINION AND ORDER ON DEFENDANT'S MOTION TO VACATE SHOW CAUSE ORDER

MILES, Senior District Judge.

This matter is before the court on the defendant Matthew Myers' motion to vacate an order to show cause why his probation should not be revoked. The court held a hearing on the defendant's motion on May 8, 1992. For the reasons which follow, defendant's motion is DENIED.

BACKGROUND

On July 27, 1987, defendant Matthew Myers was sentenced after pleading guilty to a three-count superseding information. The superseding information contained the following charges: (1) Count One — violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c); (2) Count Two — Conspiracy to Defraud the United States, in violation of 18 U.S.C. § 371; and (3) Count Three — Income Tax Evasion, in violation of 26 U.S.C. § 7201. Myers was originally sentenced to ten years in prison on Count One, five years in prison on Count Two (to run concurrently with the sentence in Count One), and five years probation on Count Three. On August 24, 1988, Myers' ten-year sentence of imprisonment on Count One was reduced to five years (still to run concurrently with the sentence imposed in Count Two), upon motion by Myers under Fed.R.Crim.P. 35.

Myers was taken into custody to begin serving his sentence on October 12, 1987. After serving approximately two-thirds of his sentence, Myers was mandatorily released from prison on December 30, 1990. Upon his release, Myers was supervised by a United States Probation Officer.

On February 28, 1992, the court issued on order to show cause why Myers' probation should not be revoked, based upon an ex parte petition filed by his probation officer alleging that Myers had violated the general terms and conditions of his probation. More specifically, the petition alleged that on September 30, 1991, Myers provided a urine sample which tested positive for barbiturates, for which he had no medical prescription. The petition also alleged that during a visit to Myers' home on October 21, 1991, two probation officers confiscated 12 firearms which they found on the premises. Based upon these allegations, the court scheduled a show cause hearing for May 8, 1992. The show cause hearing was adjourned indefinitely by the court after Myers filed the present motion.¹

ANALYSIS

Myers argues that the court lacks the authority to revoke his probation for acts allegedly committed while he was on parole but before his probationary period had begun. Although other circuits have addressed this issue, the question appears to be one of first impression in the Sixth Circuit.

The first question which must be answered is — when did Myers' probationary period on Count Three begin? This question arises from a conflict between the written sentencing documents and the oral sentence imposed. If Myers was in fact on probation at the time of his alleged wrongful acts, it would be unnecessary to resolve the more difficult legal issue of whether the court may exercise its revocation authority.

The transcript of Myers' sentencing indicates that the court responded as follows to an inquiry by the United States Attorney:

MR. BRUHA: Thank you, your Honor. Two other small matters. There's also a question as to whether — as to when the period of probation ordered in Count 3 is to begin.

THE COURT: Begin upon the expiration of the sentences.

(Transcript of Sentence at 30). However, the Judgment and Probation/Commitment Order issued by the court two days later states that "the defendant is placed on probation for FIVE YEARS to commence upon release from confinement imposed in Counts 1 and 2." (emphasis supplied). Finally, the written Conditions of Probation and Supervised Release provided to Myers after his release from confinement — which he is charged with violating — state that his "term of supervision is for a period of 5 Years commencing April 13, 1992."²

Myers takes the position that his probation had not yet begun at the time of the alleged violations, arguing that the oral sentence imposed provided for its commencement "upon the expiration of the sentence" imposed on Counts One and Two. Because he was still on parole at the time of the alleged violations, he claims that his sentences on these two counts had not yet "expired."³

When did the court intend for probation to commence? The court can categorically say that it intended for probation to commence upon release from confinement, as its written sentence explicitly states. Generally, however, an orally pronounced sentence controls over a judgment and commitment order when the two conflict. United State v. Villano, 816 F.2d 1448, 1450 (10th Cir.1987). The sentence orally pronounced from the bench is the sentence, and Myers' legal right to be present at his own sentencing would be abrogated were the court to merely assert its original intent at this juncture by ruling that the judgment and commitment order controls over the oral sentence. Id. at 1451-1452.

Where, however, the oral sentence is ambiguous, the judgment and commitment order is evidence which may be used to clarify the sentence. Id. at 1451; see Sasser v. United States, 352 F.2d 796, 797 (6th Cir.1965) ("the pronouncement of sentence represents the judgment of the court and ... the order of judgment is merely evidence of the sentence"). Was the court's oral sentence ambiguous? "Expiration" denotes a termination, or closure. As Myers has pointed out, the fact that he is currently incarcerated on the sentences imposed in Counts One and Two unequivocally demonstrates that these sentences have not yet terminated or "expired." The court must therefore conclude that despite its original intent, it conveyed the unambiguous impression that Myers' probation would not commence until the entire sentence imposed in Counts One and Two — including both incarceration and any parole period — had run its course.

Is Myers' probation subject to revocation even though it has not yet begun? The court's authority for the imposition and revocation of probation is governed by the probation statutes which preceded the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 235(a)(1), 98 Stat. 1976, 2031 (October 12, 1984), amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (codified at 18 U.S.C. § 3565(a), effective November 1, 1987). The relevant statutory provisions were 18 U.S.C. § 3651 and 3653 (1982), which read in pertinent part as follows:

§ 3651 Suspension of sentence and probation

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best....

The 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....

§ 3653 Report of probation officer and arrest of probationer

... At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period ... the court for the district in which the probationer is being supervised or if he is not longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period.

. . . . .

As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

(emphasis supplied).

Despite the language contained in § 3653, "courts have often sustained the revocation of probation for criminal activity committed prior to defendants going on probation even though the defendant, not yet being on probation, could not technically violate a condition of probation." Tiitsman v. Black, 536 F.2d 678, 682 (6th Cir. 1976). In recent years, a number of the circuits have adopted this broad construction of the probationary power, holding that probation may be revoked for acts performed before the beginning of the probationary term. E.g., United States v. Taylor, 931 F.2d 842 (11th Cir.1991); United States v. Fryar, 920 F.2d 252 (5th Cir. 1990); United States v. Johnson, 892 F.2d 369 (4th Cir.1989); United States v. James, 848 F.2d 160 (11th Cir.1988); United States v. Daly, 839 F.2d 598 (9th Cir.1988); United States v. Camarata, 828 F.2d 974 (3d Cir.1987); United States v. Davis, 828 F.2d 968 (3d Cir.1987); United States v. Yancey, 827 F.2d 83 (7th Cir.1987); United States v. Veatch, 792 F.2d 48 (3d Cir.1986); United States v. Ross, 503 F.2d 940 (5th Cir.1974); United States v. Durchslag, 735 F.Supp. 298 (N.D.Ill.1990).

Although recognizing that the probation authority has been so broadly construed, Myers nonetheless contends that the court's authority to revoke probation does not extend so far as to allow revocation for acts committed prior to the commencement of the probationary term where those same acts have served as the basis for a parole revocation.⁴ There is some authority for this position. In United States v. Wright, 744 F.2d 1127 (5th Cir.1984), the...