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July 15, 1992


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



 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.


 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 Additionally, 18 U.S.C. ยง 3561 (now repealed), which applied to Mr.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 simply found that the conditions in question did not excessively infringe upon the probationer's rights. *fn3"

 In Smith, the defendant challenged on appeal conditions of probation that intruded upon his first amendment rights. *fn4" In rejecting that argument, the Fifth Circuit reasoned that defendant "chose to enjoy the benefits of probation; he must also endure its restrictions." Id. at 636. Thus, the Smith court essentially held that the defendant was barred from challenging the constitutionality of his terms of probation after accepting them below, again on what is essentially an estoppel theory.

 It should be noted that prior to Smith, the Fifth Circuit had previously spoken to this issue in a posture more similar to the present case. Cooper v. United States, 91 F.2d 195 (5th Cir. 1937). In Cooper, the Fifth Circuit rejected a defendant's demand at sentencing that he not receive probation and instead be immediately sentenced. Rather, the Fifth Circuit concluded that: "We do not agree with appellants' contention that probation, like pardon, may be refused by the convicted person. The [probation] act vests a discretion in the Court, not a choice in the convict." *fn5"

 Notably, the Smith court neither overruled, nor even mentioned Cooper. As a result of the continuing vitality of these two apparently contradictory cases, it may be possible to infer that the cases address substantially different issues. In other words, Smith appears to stand for the proposition that a probationer is estopped from challenging on appeal conditions of probation that impact upon the probationer's constitutional rights. Cooper, on the other hand, stands for the proposition that decisions at sentencing regarding the sentence to be imposed are the exclusive province of the court, and not the defendant.

 In fact, the Fifth Circuit has revisited this issue after Smith in United States v. Howard, 577 F.2d 269 (5th Cir. 1978). In Howard, the court held that suspending a sentence for the purpose of imposing probation does not violate a defendant's sixth amendment rights to a speedy trial. In doing so, the court stated that "the defendant has no right to refuse probation and demand an immediate sentence." Howard, 577 F.2d at 271 (quoting Cooper, 91 F.2d 195 (5th Cir. 1937)). As a result, the persuasiveness of Smith for the present case is limited by Cooper and Howard, which not only continue in vitality, but more directly address the issue in question.

 Finally, the Mitsubishi court relied upon Schwab v. Coleman, 145 F.2d 672 (4th Cir. 1944). Schwab concerned an application for a writ of mandamus that certain aliens sought to compel a district court to pass upon their petitions for naturalization. The Fourth Circuit noted that mandamus served in part to protect litigants from having their right to appeal defeated. As such, the court noted by analogy that if a criminal defendant "objects to probation and desires a sentence from which he can appeal for the purpose of reviewing the trial, all that he need do is ask that sentence be imposed." Schwab, 145 F.2d at 678.

 As a result, the Schwab court held that it is discretionary with the trial court as to whether or not the sentence itself should be suspended, or whether its execution should be suspended. In either case, however, "it would unquestionably amount to an abuse of . . . discretion . . . for the judge to refuse to impose sentence when requested by one who desired a final judgment from which he might prosecute an appeal." Id. As nothing prevents Mr. Vroman from appealing matters relating to his trial or his sentence, Schwab offers no support for his arguments.

 The Court also notes that the Seventh Circuit has recently addressed these issues. More specifically, both United States v. Alexander, 743 F.2d 472 (7th Cir. 1984) and United States v. Warner, 830 F.2d 651, 657 (7th Cir. 1987) repeated the broad language in Mitsubishi while rejecting challenges to certain conditions of probation on appeal. Neither case, however, addressed the precise issue raised by Mr. Vroman.

 Both cases have, however, been repudiated in their circuit of origin by United States v. Thomas, 934 F.2d 840 (7th Cir. 1991), a case not only strikingly similar to the present case on its facts, but one that does speak to the precise issue raised in the present motion for reconsideration. In Thomas, the Seventh Circuit acknowledged that the language in Mitsubishi, although quoted in Alexander and Warner, did not address the specific question of a defendant's absolute right to reject probation at sentencing.

 The Thomas case asserted that "Mitsubishi itself offers no real reasoning" and that the cases cited in Mitsubishi were not helpful. Thomas, 934 F.2d at 844.

 Rather, Thomas saw Cooper and Howard as the preferable view when the issue was who decides what sentence must be imposed. The court noted that "a defendant is normally quite biased regarding the manner in which he or she should be sentenced." Id.

  In Thomas, the district court required the defendant to comply with the general conditions of probation, including the requirement that he file income tax returns. Defendant Thomas, like Mr. Vroman, was a tax protester. However, the Thomas court held that even if the defendant found the conditions objectionable, "he would have an obligation to obey [tax laws] regardless of whether he was on probation." Id. at 845. In other words, the court held that "obligations that fall on an average citizen cannot provide a basis for a defendant's right to reject probation." Id.

 Thus, the Seventh Circuit has determined, and this Court agrees, that the key question is how onerous the conditions of probation actually are. Where they may intrude upon a probationer's constitutional rights or are otherwise burdensome, a defendant's argument that one should have the option to reject them is more compelling. Where the conditions simply require the defendant to obey neutral laws and regulations that he or she would be required to obey in any event, defendant's argument fails.

 This interpretation of the case law is consistent with the notes following Federal Rule of Criminal Procedure 32.1(b), upon which Mr. Vroman relies. The notes to Rule 32.1(b) state that

 The probationer should have the right to apply to the sentencing court for a clarification or change of conditions . . . This avenue is important for two reasons: (1) the probationer should be able to obtain resolution of a dispute over an ambiguous term or the meaning of a condition without first having to violate it; and (2) in cases of neglect, overwork, or simply unreasonableness on the part of the probation officer, the probationer should have recourse to the sentencing court when a condition needs clarification or modification. *fn6"

 Thus, the notes to Rule 32.1(b) make clear that modifications of probation are principally used to clarify ambiguous terms so that the probationer may avoid violating those terms. As previously stated, there is nothing ambiguous about the terms of Mr. Vroman's probation -- they are the same obligations that befall all citizens, like it or not, every April. *fn7"

 Additionally, there is nothing onerous about these terms. Finally, these terms do not ask Mr. Vroman to surrender any civil rights or liberties in exchange for probation. Thus, Rule 32.1(b), consistent with the case law, provides him with no support.

 Finally, as the Thomas court noted, "it is beyond cavil that society's interest in seeing [defendant] comply with the income tax laws would suffer if he were allowed to reject probation." Thomas, 934 F.2d at 845. In short, under the circumstances presently before the Court, Mr. Vroman cannot claim an absolute right to reject probation. *fn8"


 Accordingly, the Court has determined that Mr. Vroman does not have the absolute right to reject probation and demand that he be sentenced in some other manner. Where the terms of probation are neither onerous nor ambiguous and do not ask the defendant to surrender any constitutionally protected rights or liberties, the defendant possesses no right to reject the court's sentence. As a result, the defendant's motion for reconsideration must be DENIED.


 DATED: July 15, 1992.


 United States District Judge

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