United States v. Derewal ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
9-15-1995
United States v Derewal
Precedential or Non-Precedential:
Docket 95-1142
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Recommended Citation
"United States v Derewal" (1995). 1995 Decisions. Paper 257.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/257
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-1142
___________
UNITED STATES OF AMERICA
vs.
MANFRED DEREWAL,
Appellant
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 88-cr-00098)
___________
Argued
August 2, 1995
Before: MANSMANN, HUTCHINSON and ROTH, Circuit Judges.
(Filed September 15, 1995)
___________
Stephen Robert LaCheen, Esquire
George E. Goldstein, Esquire (Argued)
3100 Lewis Tower Building
15th and Locust Street
Philadelphia, PA 19102
Counsel for Appellant
Robert A. Kauffman, Esquire (Argued)
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
___________
OPINION OF THE COURT
__________
1
MANSMANN, Circuit Judge.
In this appeal from the district court's order revoking
Manfred DeRewal's probation, we address chiefly DeRewal's primary
contention regarding the tension between the power of the
judiciary to act on probation matters and the executive branch's
power governing parole since DeRewal was on parole when the
district court revoked DeRewal's probation that had not yet
begun. This is an issue we specifically reserved in United
States v. Camarata, 828 F.2d 974 (3d Cir. 1987), cert. denied,
484 U.S. 1069 (1988).
We hold that the district court properly exercised its
jurisdiction in revoking DeRewal's probation for pre-probation
conduct occurring during a period of parole. Such judicial
action regarding probation does not disturb the executive
branch's authority to control DeRewal's parole.
DeRewal also contends that the conditions of his
probation were modified without a hearing as required by Federal
Rule of Criminal Procedure 32.1(b), that the district court erred
in refusing to grant him access to the probation officer's entire
file, and that there was insufficient evidence for the district
court to find a violation of probation. We have considered each
of the allegations of error and, finding them to be without
substance, we will affirm the order of the district court.
2
I.
In March, 1988, Manfred DeRewal was charged with
conspiracy to import P2P, importation of P2P, and attempting to
import P2P into the United States from Costa Rica in violation of
21 U.S.C.A. §§ 952(a), 960(a)(1), 963 (West 1981) and 18
U.S.C.A. § 2 (West 1969). Following conviction, DeRewal was
sentenced to 10 years of imprisonment followed by a ten year term
of special parole. A five year probationary term was to run
consecutively to the term of special parole.1
On December 17, 1992, DeRewal was released from prison
on parole, parole to run until October 18, 1998. The term of
special parole would then run from 1998 until 2008, when the
probationary period would begin.
On September 7, 1994, the United States Probation
Department filed a Violation of Probation Petition against
DeRewal, alleging that he had violated those three conditions of
probation which required him (1) to answer truthfully inquiries
from and follow the instructions of his probation officer; (2) to
refrain from associating with those engaged in criminal activity
or convicted of a felony; and (3) to refrain from violating any
law.
1
DeRewal's direct appeal from the judgment of conviction
and sentence was affirmed on October 12, 1989. DeRewal then
filed a petition pursuant to 28 U.S.C. § 2255 raising ineffective
assistance of counsel and other claims. The district court
denied the petition. On appeal, we affirmed in part, reversed in
part, and remanded the matter to the district court. See United
States v. DeRewal, 10 F.3d 100 (3d Cir. 1993) (holding that a
defendant is not required to show "cause and prejudice" with
respect to his failure to raise ineffective assistance of counsel
on direct appeal).
3
DeRewal's motion to dismiss the petition for lack of
jurisdiction was dismissed and a hearing was held on the merits
of the Probation Department's Petition. DeRewal filed a motion
seeking to review his probation file in its entirety. Following
the district court's denial of this motion, the government
presented the testimony of DeRewal's neighbor who had overheard
telephone conversations as a result of an illegal splice into her
telephone line. Testimony was also given by telephone employees,
DeRewal's probation officer, and FBI agents.
At the conclusion of the testimony, the district court
found that DeRewal had violated the terms of his probation and
sentenced him to 36 months imprisonment. This timely appeal
followed in which we confront the issue of judicial power to
alter probation during a pre-probation period of parole which is
governed by the authority of the executive branch.
II.
In Affronti v. United States, 350 U.S. 79 (1955), the
Supreme Court confronted the question of whether a district court
has authority to place a defendant on probation once he has begun
to serve the first in a series of consecutive sentences. The
Court cautioned that statutory authority to grant probation
should not be "applied in such a way as to necessarily overlap
the parole and executive clemency provisions of the law" and
should be interpreted "to avoid interference with the parole and
clemency powers of the Executive Board." Affronti, 350 U.S. at
83. The Court then concluded, utilizing broad language, that
4
"the probationary power ceases with respect to all of the
sentences composing a single cumulative sentence immediately upon
imprisonment for any part of the cumulative sentence." Id.
In United States v. Williams, 15 F.3d 1356, 1357 (6th
Cir.), cert. denied, 115 S. Ct. 431 (1991), the Court of Appeals
for the Sixth Circuit concluded that "a district court does have
authority to revoke probation for pre-probation conduct,
including the pre-probation conduct of a paroled convict." On
facts substantially identical to those present_"
5