Appeal from orders of the United States District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, revoking appellant's probation on ground that he had violated condition restricting association to "lawabiding persons," and denying motion for vacation of sentence, Fed. R. Crim. P. 35, on ground that sentence imposed upon reconviction following appellate reversal of prior conviction was not more severe than prior sentence. Revocation order affirmed. Order denying Rule 35 motion modified and, as modified, affirmed.
Mulligan and Oakes, Circuit Judges, and Frederick van Pelt Bryan, District Judge.*fn*
This appeal raises three points, the first going to the constitutionality of a condition of probation requiring appellant to "associate only with law-abiding persons," the second to the legality of the sentence imposed on appellant, and the third to the constitutionality of sending appellant to prison almost 18 years after commission of the crime. Appeal is from two orders of the United States District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, the first revoking probation and directing appellant to complete a ten-year term of imprisonment suspended on June 6, 1969, and the second denying appellant's motion under Fed. R. Crim. P. 35 to vacate sentence. With one minor modification of the sentence, we affirm.
At first blush this case seems remarkable because the underlying crime for which appellant was ultimately sentenced in 1969 was committed in July of 1959. It appears much less so, however, when note is taken that appellant and three others were tried five times before final conviction for hijacking and conspiracy to hijack a truck in interstate commerce, in violation of 18 U.S.C. § 1951.*fn1 After conviction following the fourth trial, by which time appellant had spent a total of 1,168 days in custody for lack of bail pending trial and retrial, he was sentenced by the late Judge George Rosling on June 19, 1964, to concurrent terms of six years, with no credit for time served.*fn2 After this conviction was reversed on appeal, appellant was again convicted at his fifth trial. Judge Dooling's sentence following this final conviction was ten years, execution suspended, with probation for five years. Because of a stay during the appellate and collateral review process, appellant did not sign the probation conditions until May 10, 1972; they were to be in effect for five years from that date.
One of the conditions of appellant's probation was that he "associate only with law-abiding persons." On October 8, 1976, Judge Dooling held that appellant understood the condition and knowingly violated it. The judge thus ordered appellant to appear for sentencing and later directed him to complete a ten-year prison term.
In appealing this ruling and order, appellant does not dispute the sufficiency of the evidence that he associated with persons with criminal records. This evidence, primarily from appellant's probation officer and FBI agents who had appellant under surveillance, was to the effect that on some 40 occasions in the 1973 to 1976 period, he was seen with one or more individuals with criminal records, including two of his former codefendants.*fn3 Appellant seeks to have the lower court's ruling overturned on the grounds that the condition relating to "law-abiding persons" is unconstitutionally vague, in that nothing fairly indicates that it applies to persons who have been previously convicted of crimes, and defectively overbroad, in that it encroaches upon appellant's freedom of association to an extent not warranted by any of the purposes of probation.
From the beginning of the modern probation era, the statute under which the district court here imposed the condition, 18 U.S.C. § 3651,*fn4 has been construed in the light of what the Supreme Court once indicated is the underlying purpose of probation:
The great desideratum [is] the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment.
United States v. Murray, 275 U.S. 347, 357, 72 L. Ed. 309, 48 S. Ct. 146 (1928). Because permitting a probationer "association with hardened or veteran criminals" would defeat probation's underlying purpose, it has for many years been one of the standard conditions of probation that such association is prohibited. We have upheld against a claim of unconstitutional vagueness a condition forbidding association with persons having criminal records.*fn5 Birzon v. King, 469 F.2d 1241, 1242-43 (2d Cir. 1972).
The court below believed that such "criminal record" conditions were simply an "inverse form" of the "lawabiding" condition at issue here. The words on their face, however, appear to involve quite different, albeit frequently overlapping, categories of persons. A person disobeying the law today and hence not being law-abiding may as yet have no criminal record, and a person with a past record may be entirely law-abiding today. Thus it would be preferable if conditions phrased in terms of "law-abiding persons" were avoided when it is intended to proscribe association with persons having criminal records.
While the differences between the "criminal records" condition upheld in Birzon and that at issue here might make the latter more susceptible to attack in some other case, it does not affect the result in this one. Appellant continually and consistently, over a period of years, associated on a more than casual basis with a large number of convicted criminals, many of whom had been convicted of several crimes. The district court found that these associations represented a "calculated choice" on the part of appellant,*fn6 a man with ready access to counsel as well as to probation officials, from any of whom he could have sought clarification if he had had any doubt as to the meaning of the now-challenged condition. No person "of common intelligence" in appellant's position, if he gave the words of the condition the interpretation consistent with their "common usage and understanding," Birzon v. King, supra, 469 F.2d at 1243, quoting Sproles v. Binford, 286 U.S. 374, 393, 76 L. Ed. 1167, 52 S. Ct. 581 (1932), and Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926), could reasonably have believed that his pattern of association was allowed by the "law-abiding persons" condition. Thus appellant's vagueness argument must be rejected, for "one to whose conduct a statute [or probation condition] clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974). As the Supreme Court observed in Broadrick v. Oklahoma, 413 U.S. 601, 608, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973):
Even if the outermost boundaries of [the condition] may be imprecise, any such uncertainty has little relevance here, where appellant['s] conduct falls squarely within the "hard ...