GEORGE A. POLCHLOPEK, PETITIONER V. UNITED STATES OF AMERICA No. 89-7436 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2245-2250) is reported at 897 F.2d 997. JURISDICTION The judgment of the court of appeals was entered on March 1, 1990, and the petition for a writ of certiorari was filed on May 8, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court had authority to order, as a condition of petitioner's probation, that he surrender to Canadian authorities in a timely manner for trial on closely related charges. STATEMENT On October 21, 1988, pursuant to a plea agreement, petitioner pleaded guilty in the United States District Court for the Western District of Washington to one count of making a false statement, in violation of 18 U.S.C. 1001 and 2. He was sentenced to three years' imprisonment, all but 90 days of which were suspended in favor of probation. One condition of petitioner's probation is that he must timely appear in Canada to face charges related to those brought in the instant case. The court of appeals sustained that condition. Pet. App. 2245-2250. 1. In 1986, petitioner, an American citizen who is a permanent resident of Canada, became the subject of a joint United States-Canadian investigation into the unlicensed export of parrots from the United States to Canada. The investigation resulted in the filing of charges against petitioner in both countries. In the United States, petitioner was charged with three counts of exporting or attempting to export parrots without first obtaining a permit, in violation of 16 U.S.C. 1538(a)(1)(A) and 1540(b)(1); conspiring to avoid the permit requirement, in violation of 18 U.S.C. 371; and making a false statement to the Department of the Interior, in violation of 18 U.S.C. 1001 and 2. Pet. App. 2247; E.R. 1-4. /1/ Petitioner entered into a plea agreement providing for him to plead guilty to Count V, which charged the making of a false statement, in return for dismissal of Counts I-IV, which concerned the exportation of parrots. E.R. 5-7. The plea agreement stated in part (Pet. App. 2248): The parties acknowledge that defendant GEORGE ADAM POLCHLOPEK is currently under criminal charges in Canada which are of a similar nature to Counts I through IV herein. In order to protect the defendant's right to trial in Canada, the parties agree not to litigate the facts underlying Counts I through IV in a hearing pertaining to sentencing or otherwise. Consistent with this paragraph of the plea agreement, and at petitioner's insistence (E.R. 8-12, 14, 41-46, 50), the district court, at sentencing, explicitly declined to consider the conduct underlying the dismissed counts, in order to protect petitioner's rights in his trial for the same conduct in Canada. E.R. 22, 45-46, 55, 56, 70. The court sentenced petitioner to a term of three years' imprisonment on Count V, with all but three months of that time suspended, to be followed by three years' probation. It also fined him $1000. Pet. App. 2247-2248. After petitioner completed his three-month period of confinement, questions arose as to whether he intended to stand trial in Canada on the related charges. On February 9, 1989, the Probation Office instructed him to surrender to Canadian authorities for trial. Petitioner thereupon filed a motion to clarify the conditions of his probation, arguing that the Probation Office was not authorized to issue such an order. Pet. App. 2248; E.R. 21-25. At the hearing on petitioner's motion, the Assistant United States Attorney informed the court that the Canadian records showed that petitioner had made an appearance in the Canadian prosecution and signed an appearance bond there, and that a warrant was subsequently issued when he failed to appear. E.R. 73. Petitioner represented in his motion and at the hearing that he intended to return to Canada for the trial, /2/ although he objected, at least as an initial matter, to imposition of such a requirement as a condition of his probation. E.R. 28-29, 65-69, 71; but see E.R. 72 (subsequently agreeing to such a condition), quoted at page 9, infra. Following the hearing, the district court concluded that the Probation Office was not authorized by the original terms of petitioner's probation to order him to surrender to Canadian authorities. E.R. 79. The court therefore modified the terms of petitioner's probation, pursuant to Fed. R. Crim. P. 32.1(b) and 18 U.S.C. 3651 (1982) (repealed), to require petitioner to "timely appear in Canada for the purpose of trial on the charges which he there faces, at such time as the Canadian courts direct." Pet. App. 2248; E.R. 38. /3/ The court's order explained (E.R. 37-38): (Petitioner's) representations at the times of plea and sentence that he intended to surrender himself to the Canadian authorities and face trial on the endangered species smuggling charges which underlay the offense for which he was convicted in this Court, were material to the Court's determination of an appropriate sentence, and * * * the effect of the Plea Agreement and (petitioner's) representations was to deprive this Court of information which was relevant to the sentencing question. Indeed, it is apparent from the record of this case that the Court and the Government acquiesced in (petitioner's) desire not to litigate the endangered species offenses solely because they expected him to stand trial on the facts underlying those charges, in Canada. It is further the finding of the court that (petitioner's) decision of whether or not to resolve the parrot smuggling charges which lie behind the instant offense, would be a highly relevant indication of his rehabilitation as a productive and law abiding citizen. /4/ 2. The court of appeals affirmed the condition of probation. Pet. App. 2245-2250. It explained that "(c)ourts have broad discretion in setting conditions of probation," and that "(t)o be valid, a condition of probation must be 'reasonably related to the purposes of the Probation Act.'" Id. at 2249 (citation omitted). Petitioner conceded that a condition that he "not remain as a fugitive from charges would clearly serve the probationary ends of promoting rehabilitation and protecting the public," and therefore would be valid. In the court of appeals' view, "(t)his is, in effect, what was actually done." Pet. App. 2249. The court further reasoned that the district court had the power to condition probation on compliance with domestic or foreign law. Here, "(g)iven that (petitioner's) sentence was determined with the expectation that he would stand trial in Canada," the court could not say that the condition of probation at issue here was unreasonable. Id. at 2249-2250. /5/ ARGUMENT The court of appeals correctly held that the district court had the authority to condition petitioner's probation on his surrender to Canadian authorities to stand trial on the related criminal charges pending against him in Canada. That decision does not conflict with any decision of this Court or of another court of appeals, and it involves a sentencing system that is no longer in effect. Further review therefore is not warranted. 1. Under 18 U.S.C. 3651 (1982) (repealed), a district court has broad authority to place a defendant on probation "under such terms and conditions as the court deems best." It is well settled that a district court has an "exceptional degree of flexibility" under this statutory language to impose or modify terms and conditions of probation to further the defendant's rehabilitation and to serve the ends of justice and the public interest. Burns v. United States, 287 U.S. 216, 220-221 (1932); see United States v. Johnson, 892 F.2d 369, 371 (4th Cir. 1989); United States v. Schoenrock, 868 F.2d 289, 291 (8th Cir. 1988); United States v. James, 848 F.2d 160, 163 (11th Cir. 1988); United States v. Gallup, 812 F.2d 1271, 1282 (10th Cir. 1987); United States v. Alexander, 743 F.2d 472, 480-481 (7th Cir. 1984); United States v. Lemire, 720 F.2d 1327, 1352-1353 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984); United States v. Mitsubishi Int'l Corp., 677 F.2d 785, 787-788 (9th Cir. 1982); United States v. Tonry, 605 F.2d 144, 147-148 (5th Cir. 1979). The condition of probation at issue in this case was well within the district court's broad discretion under these standards. The plea bargain calling for dismissal of four counts of the indictment and precluding consideration of those counts in imposing sentence, as well as the probationary provisions of the sentence itself, were premised on the expectation that petitioner would stand trial on the criminal charges in Canada for the conduct underlying the dismissed counts. The condition of probation that petitioner surrender to stand trial in Canada therefore serves the ends of justice and the public interest by encouraging a prompt resolution of all charges based on that conduct. The condition also furthers petitioner's rehabilitation by assuring that he will put all matters arising out of the same course of conduct behind him and, if he is found guilty by a Canadian court, will accept the consequences of his conduct. As the district court explained, this case does not involve "an abstract generalized request or requirement to comply with the law of another country" as a condition of probation; it involves "a specific prosecution in Canada which was referred to in the plea agreement that was entered and accepted by the Court in this case." E.R. 69. 2. Petitioner challenges (Pet. 17) the finding by both courts below that the plea agreement and sentence were premised on the fact that he would stand trial in Canada. That fact-bound issue does not warrant resolution by this Court. In any event, this challenge conflicts with petitioner's position in the district court. There, at the hearing concerning the condition of probation, petitioner's counsel conceded that the pending charges in Canada "had a lot to do with the way this case proceeded here, both in terms of what charges there was a plea to and how the sentencing was going to go * * * ." E.R. 71. The district court then inquired: "Wasn't probation granted in part on the understanding that (petitioner) would be tried in Canada on the substance of Counts I through IV?" E.R. 71-72. Counsel responded (E.R. 72 (emphasis added)): I suppose that's a fair comment, Your Honor. My client informs me that he does intend to appear for trial there. * * * His desire is to finish his business dealings that he has, earn some money so he can hire a lawyer instead of a public defender in Canada, and he's concerned that if he goes there now, he may not be granted bail. There is a trial date set for the co-defendant. It's our assumption that (petitioner will) arrive there in advance of that trial and that he will proceed to trial along with that co-defendant, and he doesn't have any objection to a modification of the conditions of probation that would require him to go to Canada by the trial date. See also E.R. 77-78 (reiterating that if the court was concerned about whether petitioner would stand trial in Canada, it could impose a condition that he appear there for trial itself). In light of the latter representations, the district court observed that petitioner "seems to agree that such a condition could be imposed if it requires him only to appear for the start of the trial in Canada." E.R. 81. As the district court explained, "(i)f the Court can make it a condition that (petitioner) appear at the time of trial, the authority must also exist to make it a condition to appear timely before trial, and what constitutes timeliness would be a matter for decision by the Canadian courts." E.R. 81. Despite his willingness in the district court to accept a condition of probation that he appear in Canada by the time of his trial, petitioner now argues (Pet. 15-17) that the similar condition actually imposed by the district court -- which requires that he "timely appear in Canada for the purpose of trial on the charges which he there faces, at such time as the Canadian courts direct" (Pet. App. 2248) -- was not designed to further legitimate purposes. Instead, he insists, it served only to force him to surrender his right to contest extradition. But petitioner fails to note that he conceded in the court of appeals (C.A. Br. 12), as he did in the district court (E.R. 27), that it would have been proper for the district court to have ordered him not to remain a fugitive on the Canadian charges, because such a condition would both have furthered his rehabilitation and protected the interests of the public. As the court below observed, the district court in essence imposed just such a condition when it ordered, as a condition of probation, that petitioner report for trial in Canada. Pet. App. 2249. Petitioner's objection therefore rests on a mere semantical dispute with the district court. 3. Petitioner is on no firmer ground in arguing (Pet. 12-13) that the condition of probation violates the Treaty Clause of the Constitution, Art. II, Section 2, Cl. 2, because it effectively "extradites" petitioner for an offense for which extradition would not lie under the Treaty on Extradition Between the United States of America and Canada, 27 U.S.T. 983, TIAS 8237. The district court did not "extradite" petitioner or otherwise turn him over to Canadian authorities. It imposed a condition on his release from confinement in the United States. Moreover, petitioner's argument ignores the significance of the district court's finding that both the plea bargain and the probationary provisions of the sentence were premised on petitioner's appearance in Canada to face trial on related charges. A defendant waives many constitutional rights by pleading guilty, and probation is frequently conditioned upon substantial restrictions on a defendant's liberties. See Griffin v. Wisconsin, 483 U.S. 868 (1987). Petitioner has not explained why the right to seek "asylum" in this country, as he puts it, should be accorded more importance than other rights that may be affected by a guilty plea or conditions of probation, particularly since petitioner knew that the prosecutor and the trial court expected petitioner to surrender to stand trial on the Canadian charges. In this respect, petitioner's claim amounts to an indirect attack on his guilty plea and plea bargain. But petitioner may not challenge his guilty plea in this way, because it was voluntary, knowing, and intelligent. See Mabry v. Johnson, 467 U.S. 504, 508 (1984). 4. Finally, petitioner errs in contending (Pet. 13-15) that the probation condition impermissibly serves to enforce Canadian law in this country. The only requirement imposed on petitioner by the condition is that he report for his trial in Canada. No aspect of that prosecution, or any ensuing sentence, will take place in the United States. And if petitioner chooses not to comply with the condition of probation, the sanction likewise will not involve Canadian law. All that will happen is that the district court may then choose to revoke petitioner's probation and impose a nonprobationary sentence under the laws of the United States. /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General LOUIS M. FISCHER Attorney JULY 1990 /1/ "E.R." refers to the Excerpts of Record filed in the court of appeals. /2/ Petitioner stated in his motion that he previously had informed the Probation Officer that he wished to engage in interstate and international travel for business purposes and wanted to reside in Canada during his probationary period. E.R. 23. He also informed the Probation Officer that "he planned to return to Canada not immediately, but shortly before his scheduled trial date." Ibid. At the hearing, defense counsel stated that petitioner's trial on the Canadian charges was then scheduled for June 26, 1989, and that it was petitioner's intent to appear for that trial." E.R. 68; see also E.R. 72. /3/ Petitioner conceded that the court was authorized by Section 3651 and Fed. R. Crim. P. 32.1(b) to modify the terms of probation to add a condition that is otherwise lawful. E.R. 25; see Burns v. United States, 287 U.S. 216, 220-221 (1932). /4/ At the hearing, the district court similarly stated (E.R. 79-80): The basis of the original sentencing order, particularly those parts of it that granted (petitioner) probation, was that the same subject matter involved in Counts I through IV in this case * * * would go to trial in the Canadian court in which (petitioner) at that time was already a named defendant. * * * * * It seems clear to me that under the circumstances, the Court does have the authority to order that (petitioner) report for trial in Canada at the time requested by the Canadian authorities as a condition of probation in this case. To do anything else in my judgment would undercut one of the important bases on which the original sentence in this case was entered. /5/ On March 14, 1989, the district court stayed the modification order pending appeal. /6/ The Ninth Circuit has previously held that probation may be revoked based on conduct occurring in a foreign country. United States v. Dane, 570 F.2d 840, 844 n.5 (9th Cir. 1977), cert. denied, 436 U.S. 959 (1978).