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UNITED STATES v. VROMAN

July 15, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN LEON VROMAN, Defendant.



The opinion of the court was delivered by: EUGENE F. LYNCH

 BACKGROUND

 Defendant Norman Vroman was convicted in this Court by a jury on five counts of tax related charges. On November 22, 1991, the Court sentenced Mr. Vroman to a five year term of probation for count one. Mr. Vroman was sentenced to a seventeen month term of imprisonment for counts two through five. The Court ordered the term of probation to run consecutively to the term of imprisonment. *fn1"

 As one of the terms of probation, the Court ordered Mr. Vroman to file income tax returns and comply with federal tax laws in general. However, by declaration dated January 8, 1992, Mr. Vroman stated that "I do not wish to accept this probationary sentence, and it is my request that the court resentence me in another manner provided by law." Mr. Vroman's Motion to Modify and Terminate Probation was denied by this Court on January 17, 1992.

 Defendant has filed a motion for reconsideration, reiterating that he cannot abide by the conditions of probation. The precise issue presented in Mr. Vroman's motion for reconsideration is whether or not a convicted criminal defendant has an absolute right to reject the imposition of probation and demand sentencing in some other manner. The Court notes that this question has never been squarely addressed in this particular posture in the Ninth Circuit.

 DISCUSSION

 Mr. Vroman's request for reconsideration requires consideration of two separate issues: (1) may the Court modify his sentence; and (2) is the Court required to modify it because of Mr. Vroman's stated preference to avoid probation.

 1. Does the Court Have the Authority to Modify Defendant's Sentence.

 Rule 32.1(b) of the Federal Rules of Criminal Procedure permits the Court to entertain requests for the modification of conditions of probation. Additionally, 18 U.S.C. ┬ž 3561 (now repealed), which applied to Mr. Vroman's offenses, specified that "the court may revoke or modify any condition of probation, or may change the period of probation." *fn2" Thus, it is clear that this Court has the authority to modify Mr. Vroman's probation.

 2. Is the Court Required To Modify Defendant's Sentence.

 In arguing that the Court is required to forego probation at a defendant's request, Mr. Vroman principally relies on two cases: United States v. Mitsubishi Int'l Corp., 677 F.2d 785 (9th Cir. 1982); and United States v. Smith, 414 F.2d 630, 24 A.F.T.R.2d (P-H) 5599 (5th Cir. 1969), rev'd on other grounds sub nom. Schacht v. United States, 398 U.S. 58, 26 L. Ed. 2d 44 , 90 S. Ct. 1555 (1970).

 In Mitsubishi, a defendant corporation challenged its sentence on appeal, contending that the conditions of probation imposed were more punitive than the maximum penalty permitted by law. The Ninth Circuit rejected that argument as factually incorrect. Additionally, the Ninth Circuit relied upon what is essentially an estoppel argument, and noted that the defendant could have rejected probation at the time of imposition. In doing so, the Ninth Circuit stated that "[a] defendant generally may reject probation and elect to have sentence imposed." Mitsubishi, 677 F.2d at 788.

 Mitsubishi cited three cases for this proposition: United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 55 L. Ed. 2d 516 , 98 S. Ct. 1486 (1978); United States v. Smith, 414 F.2d 630, 636, 24 A.F.T.R.2d (P-H) 5599 (5th Cir. 1969), rev'd on other grounds sub nom. Schacht v. United States, 398 U.S. 58, 26 L. Ed. 2d 44 , 90 S. Ct. 1555 (1970); and Schwab v. Coleman, 145 F.2d 672, 678 (4th Cir. 1944).

 Pierce, the first case relied upon in Mitsubishi, does not directly address the issue of whether or not a defendant may reject probation at sentencing and demand some other sentence. The Pierce case again concerned a challenge on appeal to the validity of a condition of probation. Also, that condition, that the probationer testify under oath before a United States Attorney, required the probationer to waive some of his fifth amendment rights. Finally, it should be noted that the probationer's challenge in Pierce was made upon the revocation of probation for violation of the condition in question. In the final analysis, however, the Pierce court ...


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