Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

We must determine when a defendant's probationary period begins where a stay pending appeal is granted on the custodial portion of a sentence.

* Following trial by jury, the appellant, Mae Anderson, a former mail carrier, was convicted of delaying and embezzling mail, violations of 18 U.S.C. §§ 1703(a) and 1709. On July 25, 1986, the district court, Judge Jack E. Tanner, sentenced Anderson to one year's imprisonment, suspended on the condition that she serve sixty days in jail. She was also given three years' probation and fined $50 on each count.

The custodial portion of Anderson's sentence was stayed pending appeal. However, upon granting the stay, the district court directed Anderson to report to her probation office no later than noon on August 1, 1986 to receive instructions concerning her supervision. The record is silent as to whether Anderson in fact reported to the probation office on the prescribed date.¹  Anderson concedes that she made no subsequent reports, claiming that she was not so directed by anyone at the probation office.

Following this court's affirmance of Anderson's appeal, see United States v. Anderson, 850 F.2d 563 (9th Cir. 1988), the stay was lifted and Anderson fulfilled the custodial condition of her probation. Thereafter, on August 1, 1990, just over three years after the date of imposition of sentence, Anderson filed with the district court a motion for clarification of conditions of probation. Specifically, Anderson alleged that the three-year period of probation had expired, and sought an order declaring an end to probation.

Three and one-half months later, the government filed a two-page response to Anderson's motion, essentially agreeing with Anderson that, under Kennick v. Superior Court, 736 F.2d 1277 (9th Cir. 1984), Anderson could not be required to serve more than three years on probation. Nonetheless, on December 29, 1989, the district court denied Anderson's motion. This appeal followed.

II

Anderson contends that her probationary period commenced when the district court imposed sentence, and accordingly, her probation necessarily terminated three years following that date. Conversely, the government argues that where service of the custodial portion of the sentence is delayed at the defendant's request, the probationary term does not begin until the defendant actually begins service of the custodial portion. Alternatively, the government contends that because Anderson did not make periodic reports to her probation officer during the pendency of her appeal, she did not begin serving probation prior to her incarceration.

As a general rule, a probationary period begins when the trial court imposes sentence. United States v. Rosenstreich, 204 F.2d 321, 322 (2d Cir. 1953); cf. Shabazz v. Carroll, 814 F.2d 1321, 1323 ("when there is no indication whether probation follows incarceration or incarceration is a condition of probation, we assume the latter"), modified on other grounds, 833 F.2d 149 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988). There are, of course, numerous exceptions. Most notably, the trial judge may extend the commencement of probation in the pronouncement of sentence. Judge Tanner did not so provide here. Accordingly, we must determine if Anderson comes within another of the exceptions to the general rule.

The government claims that, under United States v. Espindola, 650 F.2d 1064 (9th Cir. 1981), because Anderson requested a stay of her sentence pending appeal, her period of probation is deemed to commence at the time she entered confinement. In Espindola, we held that a defendant "should not be able to commence the running of the period of probation at the date of sentencing when confinement at his request is delayed until a later date." Id. at 1065. The government's reliance on Espindola is, however, misplaced. In Espindola, the district court expressly ordered that probation commence "upon release from confinement," a fact of significance to the Espindola court. See id. (" [u]nder these circumstances and for the purposes of this case, probation should be deemed to commence at the earliest no sooner than August 18, 1975") (emphasis added). Here, the district court granted Anderson release on "personal recognizance"²  pending appeal. However, the district court contemporaneously ordered Anderson "to report 8/1 before noon either by phone or in person" to the probation office. Thus, Espindola does not control.

Rather, we agree with the government's initial reaction that this case is controlled by Kennick. In Kennick, we considered the case of a state-court defendant (Kennick) whose probationary sentence was stayed pending appeal. However, Kennick apparently believed that only the custodial portion of his sentence had been stayed, and faithfully reported to the appropriate probation office during the pendency of his appeal. Accordingly, we held that requiring Kennick to serve the full term of his probation following the affirmance of Kennick's conviction on appeal violated the double jeopardy clause of the Constitution. Id. at 1283. Likewise, in the case at hand, the district court ordered Anderson's probation to begin on August 1, 1986. To require Anderson to "re-serve" this time would also violate the double jeopardy clause.

The government now argues that Kennick is inapplicable to this case, contending that Anderson did not have any contact with the probation office during the pendency of her appeal, and that she has only begun to comply with the requirements of probation since her release from incarceration. However, the government has presented this contention for the first time on appeal. We need not address issues not raised in the district court, see Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1264 (9th Cir. 1990), particularly where, as here, to do so would unfairly prejudice the defendant. Cf. United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir. 1983) (Kennedy, J.) ("Revocation of probation after unreasonable delay or under circumstances inherently misleading to the probationer is an abuse of discretion."). Moreover, probation is intended to be a rehabilitative measure, see Kennick, 736 F.2d at 1282, an objective that, given the limited record, appears satisfied here. Accordingly, we conclude that Anderson completed her probationary period on July 31, 1989, three years from the date upon which the district court ordered her probation to begin.

ORDER DENYING MOTION FOR CLARIFICATION REVERSED.