United States v. John Andrew Dane

Dane appeals the revocation of his probation. He argues that because he had no notice of the condition which he was alleged to have violated and because the acts leading to revocation were committed outside of the United States and violated no United States law, the district judge abused his discretion in revoking probation. We affirm.

*842 I

On June 30, 1975, Dane pleaded guilty to a charge of possessing Claymore mines in violation of 26 U.S.C. §§ 5861 (d), 5871. On August 25, 1975, Dane was sentenced to five years in prison, six months to be served in a jail-type institution with the remainder of the custodial sentence suspended and probation imposed. A few days after Dane was released from prison to begin his probation period, he petitioned the sentencing judge for permission to leave the country indefinitely on unsupervised probation. On October 16, 1975, permission was granted. Dane left the country for Great Britain in December 1975.

Dane was arrested on his return on May 6, 1976. He was charged with violating a special condition of his probation: that he “not trade, possess, or carry weapons, firearms, or explosives.” At his revocation hearing, the sentencing judge found…

dissenting:

Imposition of conditions of probation is a nondelegable duty of the sentencing judge. United States v. Crocker, 435 F.2d 601 (8th Cir. 1971); Whitehead v. United States, 155 F.2d 460 (6th Cir.), cert. denied, 329 U.S. 747 , 67 S.Ct. 66 , 91 L.Ed. 644 (1946). The conditions of probation determine the restrictiveness and severity of the punishment imposed. They are an integral part of the probationary sentence and must be imposed in the defendant’s presence under Fed.R. Crim.P. 43(a).

Notwithstanding the foregoing principles which limit the imposition of conditions, the majority holds in effect that a sentencing judge has discretion to revoke a defendant’s probation even though the defendant has violated no condition and committed no illegal acts. This result seems to conflict with Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973).

The “discretion” referred to in the majority opinion as being approved in Gagnon is the discretion of the probation officer to recommend revocation. For the trial judge, on the other hand,

Gagnon identified the liberty interest at stake in probation revocation proceedings, and it mandated the procedures necessary…

570 F.2d 840 UNITED STATES of America, Plaintiff-Appellee, v. John Andrew DANE, Defendant-Appellant. No. 76-2448. United States Court of Appeals, Ninth Circuit. Dec. 2, 1977. Rehearing and Rehearing En Banc Denied March 1, 1978. Tom O'Toole, Federal Public Defender (argued), Phoenix, Ariz., for appellant. Edmund G. Noyes, Jr., Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, * District Judge. WALLACE, Circuit Judge: 1 Dane appeals the revocation of his probation. He argues that because he had no notice of the condition which he was alleged to have violated and because the acts leading to revocation were committed outside of the United States and violated no United States law, the district judge abused his discretion in revoking probation. We affirm.I 2 On June 30, 1975, Dane pleaded guilty to a charge of possessing Claymore mines in violation of 26 U.S.C. §§ 5861 (d), 5871. On August 25, 1975, Dane was sentenced to five years in prison, six months to be served in a jail-type institution with the remainder of the custodial sentence…