JAMES CAMARATA, PETITIONER V. UNITED STATES OF AMERICA No. 87-5966 In the Supreme Court of the United States October Term, 1987 On petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the United States in Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A17) is reported at 828 F.2d 974. JURISDICTION The judgment of the court of appeals was entered on September 8, 1987. A petition for rehearing was denied on November 4, 1987. The petition for a writ of certiorari was filed on December 2, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, under the now-repealed Federal Probation Act, the district court had authority to revoke petitioner's probation for conduct occurring before his probation term began. STATEMENT 1. Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted of mail fraud, in violation of 18 U.S.C. 1341; foreign transportation of falsely made securities, in violation of 18 U.S.C. 2314; bank larceny, in violations of 18 U.S.C. 2113(b); and conspiracy, in violation of 18 U.S.C. 371. He was sentenced to 48 months' imprisonment on the bank larceny count, to be followed by a five-year term of probation on the conspiracy count. Sentence was suspended on the remaining counts. The district court granted bail to petitioner pending the appeal from his conviction. While he was on bail, petitioner began serving a state sentence in the New Jersy state penitentiary at Leesburg. Subsequently, the district court reduced petitioner's federal sentence to 45 months' imprisonment and recommended that the Attorney General designate Leesburg as the institution for service of his federal sentence, which would effectively make the federal sentence concurrent with the state sentence. After petitioner's federal conviction was affirmed, the Attorney General adopted the court's recommendation and designated Leesburg as the place for the service of petitioner's federal sentence. Pet. App. A2. Petitioner was scheduled to be paroled from his state sentence on October 30, 1984. Ordinarily, petitioner would have been transferred to federal custody to continue serving his federal sentence after his release from state confinement. At that time, however, the district court took the unusual step of ordering petitioner released from federal custody on bail until further order of the court. The court granted that temporary release to enable petitioner to be with his wife while she received chemotherapy treatment. On January 22, 1985, while petitioner was still free on bail, the district court further reduced petitioner's prison sentence to 24 months' imprisonment, to be followed by three years' probation. Petitioner was subsequently ordered to report to federal prison by June 1, 1985. He was credited with the time he had served on his New Jersey sentence and, as a result, he needed to serve only the remaining 14 months of his reduced federal sentence. Pet. App. A2-A3. In October 1985, while he was still in federal prison, petitioner was indicted by the State of New Jersey for conspiracy to engage in theft by deception and the issuance of bad checks. The state indictment alleged that the conspiracy covered the period from January to October 1985, including the time during which petitioner was free on bail from his federal sentence. In July 1986, petitioner pleaded guilty to the state charges and was sentenced to probation, community service, and a $1,000 fine. At the time he entered his guilty plea, petitioner expressly acknowledged that his state conviction "may result in a violation of (his federal probation) status." Pet. App. A3. Petitioner was released from federal custody and began to serve his probation term in the summer of 1986. In October, the United States Probation Office petitioned the district court to revoke petitioner's probation because of the New Jersey conviction. The district court agreed that revocation was appropriate, and the court resentenced petitioner to 21 months' imprisonment, to be followed by five years' probation. Pet. App. A3. 2. Petitioner appealed, challenging the district court's authority to revoke his federal probation. The court of appeals affirmed by a divided vote, with each member of the panel writing a separate opinion. In an opinion announcing the judgment of the court, Judge Sloviter concluded that the Federal Probation Act did not prohibit a district court from revoking a defendant's probation for conduct occurring before the term of probation began. Judge Sloviter noted that the Act did not limit the period in which a court could revoke probation, but provided generally that a court "may revoke or modify any condition of probation" (18 U.S.C. (1982 ed.) 3651). In light of prior circuit precedent holding that a court could revoke probation for misconduct occurring between the date of sentencing and the date of incarceration, Judge Sloviter concluded that the Probation Act did not confine the district court's power to revoke probation to acts committed during the probationary period (Pet. App. A4, citing United States v. Veatch, 792 F.2d 48, 52 (3rd Cir.), cert. denied, No. 86-5182 (Nov. 3, 1986)). The power to revoke probation, Judge Sloviter explained, permits the correction of a sentence that was based on the erroneous assumption that a defendant would be likely to benefit from leniency. If the sentencing court retains the authority to revoke probation for a display of recidivist tendencies occurring prior to the beginning of a custodial sentence, "there is no reason to deprive the court of the ability to revoke probation when the convicted defendant's display of recidivous tendencies does not occur until the defendant is in custody" (Pet. App. A7). To accept petitioner's argument, Judge Sloviter concluded, "would provide incarcerated defendants with a grace period in which their activity, no matter how heinous, could not affect their probationary release into society" (ibid.). It is unlikely, she noted, that Congress intended to deprive the original sentencing court of its continuing authority over the probationary sentence (ibid.). In a concurring opinion, Judge Becker found that petitioner had participated personally in the New Jersey crimes only while he was on bond and before he was incarcerated. Accordingly, Judge Becker reasoned that petitioner was in the custody of the district court and not in the custody of the executive branch when he participated in the crimes that formed the basis for the revocation order. Because petitioner was in the custody of the district court, Judge Becker concluded that the district court was free to revoke petitioner's probation without interfering with Executive Branch authority in the form of prison discipline or the exercise of the parole power. Pet. App. A9-A11. For that reason, Judge Becker found it unnecessary to decide whether he would adopt Judge Sloviter's analysis in a case that presented a more direct potential conflict between the court's authority over a defendant through the vehicle of probation and the authority of the prison and parole officials over a defendant in custody. Judge Garth dissented. In his view, the Federal Probation Act prohibited revocation of probation for preprobation offenses because revocation of probation for offenses committed at that time conflicts with the parole and clemency powers of the executive. Consequently, Judge Garth concluded that the district court had no statutory authority to revoke petitioner's probation. Pet. App. A11-A17. ARGUMENT Petitioner contends that the district court lacked authority to revoke his federal probation because the acts underlying his New Jersey conviction occurred while he was in federal prison. He argues that the decision below conflicts with decisions of this Court and those of other courts of appeals. The issue in this case is similar to the issue presented in the petition in Davis v. United States, No. 87-5947, a companion case in the court of appeals. In both cases, the court of appeals upheld the district court's revocation of probation because of misconduct occurring at a time prior to the beginning of the defendant's release on probation. In the first place, the issue that petitioner raises is not of continuing importance. As petitioner points out, the decision in this case is governed by the Federal Probation Act, 18 U.S.C. (1982 ed.) 3651-3656. When it enacted the Comprehensive Crime Control Act of 1984, Congress repealed the Federal Probation Act and replaced it with a new probation statute that became effective on November 1, 1987. See Pub. L. No. 98-473, Sections 212, 235(a)(1), 98 Stat. 1976, 1992-1995, 2031, as amended by Pub. L. No. 99-217, Section 4, 99 Stat. 1728 (codified in 18 U.S.C. (Supp. IV) 3565(a)(2)). The new statute expressly addresses the problem presented by this case. It states that "(i)f the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may * * * revoke the sentence of probation * * * ." 18 U.S.C. (Supp. IV) 3565(a)(2). That provision clearly permits revocation of probation because of acts committed before the commencement of the probationary term. United States v. Yancey, 827 F.2d 83, 87-88 (7th Cir. 1987); United States v. Veatch, 792 F.2d at 51. Accordingly, the question whether a court may revoke probation for a preprobation offense will no longer arise except in the diminishing class of cases in which the probation revocation occurred prior to the effective date of the 1984 Act. In any event, the court of appeals correctly upheld the revocation of petitioner's probation. The Federal Probation Act "was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender * * * ." Burns v. United States, 287 U.S. 216, 220 (1932). The provisions of the Act are adapted to the end of "individualiz(ing) each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion." Ibid. This Court has recognized that, "(t)o accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential." Ibid. As Judge Sloviter observed, foreclosing the courts from revoking a defentant's probation for a preprobation offense would provide the defendant with a grace period in which his criminal activity could not affect his probationary release into society. That result would be at odds with the congressional goal of flexibility and the principle that probation is designed to give offenders an opportunity to demonstrate that they do not pose a risk of recidivism. /1/ Petitioner's reliance on the Court's decisions in United States v. Murray, 275 U.S. 347 (1928), and Affronti v. United States, 350 U.S. 79 (1955), is misplaced. In Murray, the Court held that district courts lacked authority to suspend a sentence and grant probation after service of the sentence had begun. 275 U.S. at 356-359. In Affronti, the Court extended Murray to hold that district courts had no power to suspend any of a series of consecutive sentences and grant probation after the defendant had begun to serve the first of the consecutive sentences. 350 U.S. at 83-84. In both cases, the Court stated that the Probation Act should be construed to "avoid interference with the parole and clemency powers vested in the Executive Branch." 350 U.S. at 83; see also 275 U.S. at 357. Both Murray and Affronti limited the court's ability to mitigate sentences once the defendant became subject to the executive's parole and clemency powers. The rationale underlying Murray and Affronti does not apply to this case. Affronti and Murray addressed only the policy concerns underlying a grant of probation -- and thus the release of an incarcerated prisoner already in the custody and under the supervision of the Bureau of Prisons. They did not address the very different concerns presented by the revocation of probation, which results in the incarceration of a person previously not in custody. The Affronti Court stressed that it was "concerned with the power to grant suspension of sentences" (350 U.S. at 81), not the power to revoke probation. Ant the Murray Court examined only "whether there (was) any power in the federal courts * * * to grant probation under the Probation Act, after the defendant (had) served any part of his sentence" (275 U.S. at 352). For purposes of Affronti and Murray, grants of probation differ significantly from revocations of probation. As Judge Sloviter noted (Pet. App. A6-A8), the revocation of probation does not result in any conflict with the executive's parole and clemency authority. Unlike a grant of probation, a revocation of probation does not free the defendant at a time that the parole and prison officials may consider inappropriate, but results in a term of incarceration, which the parole authorities can then adjust as they wish. Moreover, any conflict with the principles underlying Murray and Affronti is particularly illusory on the unusual facts of this case. As Judge Becker concluded in his concurring opinion (Pet. App. A9), the record shows that petitioner's personal involvement in the New Jersey crime began and ended before he returned to federal prison. From the time that petitioner was released on bond until he returned to federal prison, he was under the custody of the district court and not the Bureau of Prisons. Since petitioner was exclusively in the custody of the judiciary when he personally participated in the New Jersey crimes, no conflict arose between the parole and clemency powers of the executive and the probation powers of the court. /2/ The decision below does not conflict with the positions taken by the Fifth and Seventh Circuits, as petitioner contends (Pet. 6-7). Although the Seventh Circuit's decision in United States v. Dick, 773 F.2d 937 (7th Cir. 1985), supported petitioner's position, the Seventh Circuit expressly overruled Dick in United States v. Yancey, 827 F.2d 83 (7th Cir. 1987), where the court held that the Probation Act does not preclude a court from revoking probation for a preprobation offense. In United States v. Wright, 744 F.2d 1127 (5th Cir. 1984), the Fifth Circuit held that the district court could not revoke a parolee's probation before the beginning of the probationary term. The Fifth Circuit read Affronti as prohibiting "application of the probation provisions 'in such a way as to unnecessarily overlap the parole and executive clemency provisions of the law.'" 744 F.2d at 1130 (quoting Affronti, 350 U.S. at 83). Noting that such "overlap certainly occurs if the probation statute is interpreted so as to permit the same preprobation violation to serve as cause both to revoke the parole on a prior sentence and also to revoke the uncommenced probation on a consecutive sentence," the court held that "the district court was without power, once the defendant commenced service of the first of cumulative sentences, to grant or to revoke probation as to a consecutive sentence." Id. at 1130-1131. Unlike the defendant in Wright, however, petitioner was not on parole and therefore was not subject to revocation of both parole and probation for the same offense. As a result, the tension in Wright between the parole powers of the executive and the probation powers of the judiciary is not presented in the very different factual setting of this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General GEOFFREY R. BRIGHAM Attorney JANUARY 1988 /1/ The Federal Probation Act stated that "(t)he period of probation, together with any extension thereof, shall not exceed five years." 18 U.S.C. (1982 ed.) 3651. Petitioner suggests that if a court could revoke probation for conduct occurring prior to the five-year period, a probationary period longer than five years would be created. Pet. 9. That is incorrect. The five-year statutory limit on a consecutive probationary term restricted only the period in which the court could exercise supervision after the defendant's release from custody. That limit did not affect the court's ability to determine that the defendant's conduct prior to the probationary term demonstrates the inappropriateness of probation. See United States v. Yancey, 827 F.2d at 88 (holding that five-year probation restriction is not violated by revocation before probation starts). /2/ In his dissent, Judge Garth rejected Judge Becker's view that petitioner did not participate in any crime while in federal prison. Pet. App. A11 n.1. Judge Garth pointed out that New Jersey indicted petitioner for events occurring between January 1985 and October 1985 and that petitioner resumed his incarceration in federal prison effective June 1985. Ibid. However, Judge Garth did not address Judge Becker's conclusion that, though the formal charge against petitioner mentions misconduct after June 1, 1985, only petitioner's co-conspirators actually continued the conspiracy after petitioner reported to federal prison. See Pet. App. A9.