Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 849 F.2d 1477 (9th Cir. 1986)

No. 86-1276.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges, and ROBERT J. KELLEHER,***  District Judge.

Defendant-appellant Lowell R. Leigh appeals the district court's revocation of his probation. In January 1984 Leigh pled guilty to charges of defrauding the government in violation of 18 U.S.C. §§ 2 & 287. The court suspended Leigh's sentence and placed Leigh on probation for a period of five years with the conditions that Leigh make restitution of $8,500, that "defendant violate no law of the United States or of any State, that defendant make the required reports and [that defendant] carry out all instructions of the probation officer tending toward defendant's rehabilitation."

Leigh's federal Probation Officer ("PO"), Richard D. Baillargeon, filed a petition for revocation of probation on May 22, 1986, alleging that Leigh violated the conditions and terms of his probation. The petition was based on Leigh's (1) association with non-law-abiding persons, (2) failure to report changes in his employment and address, (3) failure to support his legal dependents, and (4) failure to follow his PO's instructions.

The district court found "that the allegations set forth in the petition are true and that said defendant has violated the terms and conditions of his probation as alleged in said petition." The court revoked Leigh's probation, ordered that he be incarcerated for a maximum term of three years and make restitution in the amount of $5,900, and stated that Leigh would be eligible for parole after one year. Leigh raises numerous contentions on appeal. We affirm.

We review a district court's revocation of probation for an abuse of discretion. Burns v. United States, 287 U.S. 216, 222 (1932); United States v. Grant, 807 F.2d 837, 838 (9th Cir. 1987). Questions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

First, Leigh contends that he was denied due process by the failure of the district court to make a written statement as to the evidence and reasons for the revocation of his probation. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Leigh's contention lacks merit. In Black v. Romano, 471 U.S. 606, 616 (1984), the Supreme Court opined that a "memorandum prepared by the sentencing court and the transcript of the hearing provided the necessary written statement explaining the evidence relied upon and the reason for the decision to revoke probation." The district court found "that the allegations set forth in the petition are true," thereby incorporating the petition into the court's order. In addition, the transcript of the revocation hearing contains specific conclusions of the court. The petition and the court's order, coupled with the transcript of the revocation hearing, clearly provide the documentation necessary to meet the due process requirements.

Second, Leigh argues that the PO's instruction that Leigh obtain prior approval of legal contracts regarding finances was unrelated to the offense of submitting false claims to the government and was therefore an unreasonable invasion of privacy.1  Leigh was convicted of submitting false and fraudulent claims to the government, breaching his fiduciary duty as a Rural Housing Rehabilitation Coordinator. In United States v. Consuelo-Gonzales, 521 F.2d 259, 262 (9th Cir. 1975), we stated that conditions of probation need only be "reasonably related" to the dual purposes of probation, rehabilitation and the protection of society.

PO Baillargeon's instruction was the result of Leigh's prior conviction, and Leigh's numerous financial transactions with Carita Marketos, a.k.a. Carita Murphy, a federal fugitive. Leigh controlled all of Marketos's assets through his power of attorney and never candidly disclosed to his PO the substance of his questionable dealings. In fact, Leigh lied to his PO regarding the transactions. Leigh was informed of Marketos's status as a fugitive yet knowingly continued to engage in financial transactions concerning her funds. The PO's instruction was reasonably related to Leigh's rehabilitation and the protection of the public and was consistent with the PO's duties pursuant to 18 U.S.C. § 3655.2  See United States v. Duff, 831 F.2d 176, 178 (9th Cir. 1987); United States v. Pierce, 561 F.2d 735, 738-39 (9th Cir. 1977), cert. denied, 435 U.S. 923 (1978).

Third, Leigh asserts that the PO's instructions to him not to associate with non-law-abiding persons and to support his legal dependents were not proper conditions of probation. Leigh's continued association with Marketos and his undisclosed handling of her finances was a violation of the PO's instruction. Preventing Leigh from associating with non-law-abiding persons was reasonably related to Leigh's rehabilitation and the protection of the public and was consistent with the PO's duties pursuant to 18 U.S.C. § 3655. See Duff, 831 F.2d at 178; United States v. Furukawa, 596 F.2d 921, 923 (9th Cir. 1979).

When probation was granted, Leigh was married; therefore, the court at that time could not have imposed a condition to pay spousal support. The court, however, did impose a valid condition that Leigh comply with all laws and that he carry out the instructions of his PO. While on probation, a state court ordered Leigh to pay spousal maintenance and Leigh had not obeyed that order despite his financial ability to do so, a violation of state law.3  Therefore, Leigh violated a condition of his probation and his argument is without merit.

Fourth, Leigh contends that he did not receive "prior fair warning" that failure to follow the PO's instructions were conditions of probation which could lead to revocation of his probation. See United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987). Leigh's argument is meritless. The order of probation required Leigh to "violate no law of the United States or of any State, [and to] make the required reports and carry out all instructions of the probation officer tending toward defendant's rehabilitation." The order gave Leigh sufficient notice that failure to make the required reports,4  to support his legal dependents pursuant to a State court order, and to follow the instructions of his PO could lead to a revocation of his probation. Id. ("Generally, formal conditions of probation provide notice of proscribed activities.")

Fifth, Leigh argues that the revocation of his probation was in reality a deferred sentencing proceeding and the Government should have borne the burden of proof. This contention is without merit.

Finally, Leigh asserts that we should raise the requisite level of proof at a probation revocation hearing from "reasonably satisfied" to clear and convincing proof. This contention is also without merit. "A district court has broad discretion to revoke probation when its conditions are violated." Simmons, 812 F.2d at 565; see Burns, 281 U.S. at 221. We are unpersuaded that we should significantly restrict that discretion.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 ***

Honorable Robert J. Kelleher, Senior United States District Judge for the Central District of California, sitting by designation

 1

We do not consider whether Leigh's contention that the PO's instructions regarding his relationships with women is reasonably related to the purposes of probation. This instruction was not relevant to the district court's decision to revoke Leigh's probation

 2

18 U.S.C. § 3655 has since been repealed. Pub. L. No. 98-473, Sec. 212(a) (2), 98 Stat. 1987 (1984)

 3

Leigh also had a legal obligation pursuant to a state court order to pay $1,800 over and above the spousal support already due his ex-wife. The state court found that Leigh had swindled his ex-wife by switching the diamond in a ring he had purchased for her

 4

Leigh also failed accurately to disclose his employment status and income in the reports. As the district court correctly found, Leigh repeatedly lied to his PO. In fact, Leigh lied to others as well by, among other things, falsifying his resume

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