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UNITED STATES v. GLASGOW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


January 27, 1975

UNITED STATES OF AMERICA
v.
CHARLES W. GLASGOW, JR.

The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

 CHARLES R. RICHEY

 This case is before the Court on the Defendant's Motion for Reconsideration of Sentence. *fn1" On January 4, 1974, the Defendant pleaded guilty to having illegally used the mails for the importation of marijuana (hashish) in violation of 21 U.S.C. §§ 843(b) and 952(a). The offense in this case consisted of his having sent a quantity of hashish from India to a friend and former college classmate in the United States. The Defendant was twenty-five years old at the time his plea was accepted by the Court. He had no prior criminal record.

 On February 19, 1974, the Court, in its discretion, suspended the imposition of sentence, and placed the Defendant on probation for three years, pursuant to 18 U.S.C. § 3651. *fn2"

 By the Motion for Reconsideration of Sentence, the Defendant now seeks to be considered as a young adult offender under 18 U.S.C. § 4209 and, as such, placed on probation under 18 U.S.C. § 5010(a), *fn3" the applicable provision of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005 et seq. This modification and transfer of probation is sought by the Defendant so that he may later have the opportunity to have his conviction set aside under § 5021(b) of the Youth Corrections Act, and thus avoid the stigma of having a felony conviction on his record.

 I. IN ITS DISCRETION, THE COURT MAY MODIFY PROBATION ORDERED PURSUANT TO 18 U.S.C. § 3651.

 It is beyond dispute that the Court has the power to modify the conditions of the Defendant's probation. Section 3651 of Title 18, United States Code, provides, in pertinent part, that "the court may revoke or modify any condition of probation. " Such modification lies within the Court's discretion. Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 156, 77 L. Ed. 266, 269 (1932); United States ex rel. Grossberg v. Mulligan, 48 F.2d 93, 94 (2d Cir. 1931); Splawn v. Fitzharris, 297 F. Supp. 44, 45 (C.D. Cal. 1969). Furthermore, it has long been recognized that in the exercise of its discretion, the court should construe the statute liberally in light of the Probation Act's remedial nature and humanitarian purposes. Mann v. United States, 218 F.2d 936, 940 (4th Cir. 1955); Scalia v. United States, 62 F.2d 220, 223 (1st Cir. 1932); Rosenwinkel v. Hall, 61 F.2d 724, 726 (7th Cir. 1932); Reeves v. United States, 35 F.2d 323, 325 (8th Cir. 1929). The legislative history of the Probation Act, as discussed in United States v. Murray, 275 U.S. 347, 354-55, 48 S. Ct. 146, 148, 72 L. Ed. 309, 311-312 (1928), reveals that the statute is to be sympathetically interpreted to facilitate the reform of young and new offenders; the approach mandated by Congress is one of "intelligent compassion". United States v. Moore, 158 U.S. App. D.C. 375, 486 F.2d 1139, 1174 ( D.C. Cir. 1973) (Leventhal & McGowan, JJ., separate opinion).

 Therefore, the determination of whether the Defendant's request falls within the modification of conditions of probation as authorized by 18 U.S.C. § 3651 must be made in light of the rehabilitative purpose of the statute. *fn4" In Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266, the Court held that if that purpose is to be accomplished,

 

". . . an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion."

 287 U.S. at 220. The criteria to be used by the court are the interests of justice, the public and the defendant. Id. at 221.

 II. PROBATION UNDER 18 U.S.C. § 5010(a) CONSTITUTES "TREATMENT" FOR THE PURPOSES OF THE YOUTH CORRECTIONS ACT AND 18 U.S.C. § 4209.

 In the case now before the Court, the Defendant seeks to have his probation modified pursuant to 18 U.S.C. § 3651, and transferred to 18 U.S.C. § 5010(a), the probation provision of the Federal Youth Corrections Act. It is clear that he would be eligible as a young adult offender for consideration under the Act. A person between the ages of 22 and 26 at the time of conviction may be sentenced under the youth offender provisions if "the court finds there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act . " *fn5" 18 U.S.C. § 4209. *fn6"

 The threshold question, therefore, is whether probation is a form of "treatment" for the purposes of the Youth Corrections Act and 18 U.S.C. § 4209. This determination must be made in light of the fact that both of those statutes "were designed by the Congress for the rehabilitation of youthful offenders, and not solely for confinement upon conviction for criminal offenses . " Rawls v. United States, 331 F.2d 21, 27 (8th Cir. 1964). *fn7"

  The government urges that "treatment" is available under the Youth Corrections Act only where the youth has been committed pursuant to 18 U.S.C. § 5010(b) or § 5010(c). The government reasons that since § 5011 of the Act, which describes various treatment alternatives, speaks in terms of "committed youth offenders", and since one who is on probation is not, technically speaking, "committed", therefore, probation does not constitute "treatment" under the Act. Based upon this conclusion, the government contests the placing of the Defendant on probation under § 4209, which requires this Court to find that the Defendant is a suitable subject for "treatment". The government's reasoning, and, therefore, its conclusion, is fundamentally flawed because, and this Court holds, probation is a form of "treatment" for the purposes of the Youth Corrections Act and 18 U.S.C. § 4209. *fn8"

 The flaw in the government's reasoning is that the use of the word "committed" in 18 U.S.C. § 5011 does not make treatment dependent upon the youth offender's being sentenced to the custody of the Attorney General pursuant to 18 U.S.C. § 5010(b) or § 5010(c). In the first place, § 5011 is not the definitional section of the statute. Rather, 18 U.S.C. § 5006, entitled "Definitions", states that "'Treatment' means corrective and preventive guidance designed to protect the public by correcting the antisocial tendencies of youth offenders." 18 U.S.C. § 5006(g). This definition is broad enough to include both probation and commitment, as well as other methods of treatment. Section 5011 must be read as merely setting out some of the treatment options available to the sentencing judge; it does not preclude other alternatives for effectively treating the youth offender. *fn9"

 A less technical but more fundamental reason for rejecting the government's argument, however, is the fact that to accept the strained construction of the statute urged by the government would frustrate the purposes of the Youth Corrections Act, and would harshly deny the defendant the benefit of 18 U.S.C. § 4209. The Youth Corrections Act "looks primarily to the objective idea of rehabilitation" and is based on the theory that the interests of society and of individual defendants will best be served by substituting for retributive punishment "methods of training and treatment designed to correct and prevent antisocial tendencies." H.R. Rep. No. 2979, 81st Cong., 2d Sess. (1950), 1950 U.S. Code Cong. Serv. p. 3985. It was "designed to provide a better method for treating young offenders convicted in federal courts . . . to rehabilitate them and restore normal behavior patterns." Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 3048, 41 L. Ed. 2d 855, 863 ( 1974).

 It is against this legislative background that the term "treatment" must be viewed. As Justice Cardozo asserted, "the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view." *fn10" Therefore, the broad definition of "treatment", 18 U.S.C. § 5006(g), must be liberally construed in order to effectuate the purposes of the Act.

  Logic and sound judicial construction dictate that young offenders who are not committed may receive and benefit from probation and other non-institutional forms of treatment. *fn11" A contrary reading would mean that a youth offender, not in need of commitment, but likely to benefit from being placed on probation, would not receive treatment under the Act. Such is clearly not the case. There can be little doubt that probation constitutes a form of "corrective and preventive guidance designed to protect the public by correcting the antisocial tendencies" of offenders, and thus is treatment as defined in 18 U.S.C. § 5006(g). The basic purpose of probation is "to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity." Roberts v. United States, 320 U.S. 264, 272, 64 S. Ct. 113, 117, 88 L. Ed. 41, 46 (1943). *fn12" Under this "system of tutelage", Frad v. Kelly, 302 U.S. 312, 318, 58 S. Ct. 188, 192, 82 L. Ed. 282, 287 (1937), it is the duty of the probation officer "to aid the persons on probation and to bring about improvements in their conduct and condition." United States v. Murray, 275 U.S. 347, 354, 48 S. Ct. 146, 148, 72 L. Ed. 309 (1928). Therefore, probation is clearly a form of treatment which is designed to assist in the rehabilitation of the youth offender.

 This conclusion is supported by the American Bar Association in its recently adopted standards on probation. *fn13" The standards are based on the belief that:

 

"Probation is an affirmative correctional tool, a tool which is used not because it is of maximum benefit to the defendant (though of course, this is an important side product), but because it is of maximum benefit to the society which is sought to be served by the sentencing of criminals." *fn14"

 Probation is an effective and desirable disposition because "it maximizes the liberty of the individual while at the same time vindicating the authority of the law and effectively protecting the public from further violations of law . . . [and] it affirmatively promotes the rehabilitation of the offender by continuing normal community contacts. . . . " *fn15"

  III. IN LIGHT OF THE DEFENDANT'S BACKGROUND AND THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENSE, THE COURT FINDS THAT THE DEFENDANT WILL BENEFIT FROM TREATMENT PROVIDED UNDER THE YOUTH CORRECTIONS ACT.

 The Defendant may be considered as a young adult offender and placed on probation pursuant to 18 U.S.C. § 5010(a) only if this Court finds that "there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act." 18 U.S.C. § 4209. In reaching its decision, this Court must take into consideration "the previous record of the defendant as to delinquency or criminal experience, his social background, capabilities, mental and physical health, and such other factors as may be considered pertinent." Id. The final determination lies within the discretion of this Court. United States v. Waters, 141 U.S. App. D.C. 289, 437 F.2d 722, 723 ( D.C. Cir. 1970); United States v. Wilson, 450 F.2d 495, 497 (4th Cir. 1971). In its discretion, using the criteria set forth in the young adult offender statute, this Court finds that the Defendant will benefit from treatment available under the Youth Corrections Act.

 A. The Defendant's Background

 The Defendant, 25 years old at the time of his conviction, has always resided with his family in the Washington, D.C. area. In 1967, he graduated from high school, where he was active in school athletics, was president of the Hi 4 Club, and received a D.A.R. Citizenship Award for Outstanding Leadership. Upon completing high school, the Defendant entered Washington and Lee University, where he majored in art and history. He graduated in June 1971, with a Bachelor of Arts degree. While at Washington and Lee, he participated in intramural sports and dramatics. Prior to the offense involved here, the Defendant had no criminal record.

 The Presentence Report described the Defendant's family as reputable and stable. The Defendant is presently living with his parents and three of his four siblings. His father owns and operates a seafood business in which the Defendant worked during his summer vacations while in high school and college. Since May 1973, the Defendant has been working fulltime in the business, acting as Secretary of the company and taking charge when his father is absent. His father indicated to the probation officer that the Defendant has actively participated in the operation of the business, and has contributed toward its improvement. The Defendant's father hopes that his son will become president of the company in the near future. The Defendant plans to continue working in his father's business, and is also seriously considering marine biology and agriculture.

 Therefore, the Defendant's background reveals that, with the exception of the offense in this case, he has been a hard-working and upstanding member of the community. He appears to have a close and healthy relationship with his family, and has the potential of enjoying a productive and satisfying future.

 B. The Nature of the Offense

 Approximately six months after he graduated from college, the Defendant was afforded the opportunity of traveling extensively abroad. While in Nepal, he bought a quantity of hashish, in Nepalese currency equivalent to $25. The sale of hashish was legal in Nepal at the time of the purchase. The Defendant mailed the hashish, as a gift, to a former traveling companion and college classmate in Virginia. The package was addressed to a fictitious name in care of his friend. The Defendant admits that he has smoked marijuana, as have many young people today. He stated to the probation officer that the fact that purchasing hashish in Nepal was legal, and its inexpensive cost lured him to the admittedly immature act of mailing a small quantity to a friend in the United States.

 The Defendant was 25 years old at the time the Court accepted his plea of guilty to a charge of using a communications facility, the mails, in the commission of a felony involving a controlled substance in violation of 21 U.S.C. §§ 843(b), 952(a). He admits that his sending the hashish to a friend in the United States was a thoughtless and fool-hardy action. It was the kind of "lark" which is not uncommon among young people, and reflects the current attitude of many thousands of our youth toward marijuana and similar drugs. In admitting he used poor judgment, the Defendant expresses remorse at having sent the hashish into this country. In fact, the Defendant has voluntarily offered to cooperate with representatives of the Drug Enforcement Administration by providing any information which might be of value to them. The Court is sensitive to the fact that this was a singular act of immaturity by an otherwise increasingly responsible and mature young man.

 C. Setting Aside the Defendant's Conviction

 The Defendant seeks to be placed on probation under 18 U.S.C. § 5010(a) so that he may later have his conviction set aside under 18 U.S.C. § 5021(b), the applicable provision of the Youth Corrections Act. *fn16" The purpose of § 5021 "is to relieve [a youthful offender] not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction." Mestre Morera v. United States Immigration and Naturalization Serv., 462 F.2d 1030, 1032 , (1st Cir. 1972).

 The Court holds that the setting aside of a conviction pursuant to 18 U.S.C. § 5021(b) is a form of treatment under the Youth Corrections Act, and finds that the Defendant will benefit from being placed on probation and having the resultant opportunity to have his conviction set aside under that section.

 As discussed above, it is essential that all of the sections of the Youth Corrections Act be read in light of the purposes of the Act and within the definitional framework established in 18 U.S.C. § 5006. The provision for setting aside an offender's conviction, when interpreted in that context, has a curative effect which facilitates the accomplishment of the correction of the antisocial tendencies of young offenders, and thus furthers the central goal of rehabilitation. *fn17" If a young offender starts his adult life with a criminal record, it is likely that he will consider his chances for a respectable and rewarding future to be minimal. *fn18" The stigma of a felony conviction is permanent *fn19" and pervasive. *fn20" Such a burden might lead a young person to reason that he is already a "marked man", and thus making it more likely that he will be a recidivist. The setting aside of his conviction, on the other hand, enables the young offender to begin anew, and serves as an inducement to become a law-abiding citizen. Section 5021, therefore, is itself a form of rehabilitative treatment.

 Moreover, the provision for the setting aside of the offender's conviction reflects the compassionate and sensitive orientation of the Youth Corrections Act. All of the Act's provisions are geared not to punish the youth offender, but rather to assist him to fulfill his promise of becoming a useful citizen and to "avoid the degenerative and needless transformation" of the offender into a habitual criminal. H.R. Rep. No. 2979, 81st Cong., 2d Sess. p. 1 (1950), 1950 U.S. Code Cong. Serv., p. 3983.

 In the case now before the Court, the Defendant deserves a second chance. His background is solid, and he shows no indication of hardened criminal behavior. He has had time to consider the seriousness of the offense he committed, and the Court believes he is unlikely to commit another foolish mistake in the future. There is no reason for this Court or the Assistant United States Attorney to darken this Defendant's otherwise bright future by denying him the opportunity to begin his mature adult life with a record clean of his felony conviction. *fn21" Therefore, the Court finds that the Defendant will benefit from the treatment provided under the Youth Corrections Act. He will benefit from being placed on probation pursuant to § 5010(a), and from all the treatment incident thereto, most critically, the provisions of § 5021, regarding the setting aside of an offender's conviction. By being placed on probation under the Youth Corrections Act, the Defendant can, "by virtue of his own good conduct, be spared the lifelong burden of a criminal record." Tatum v. United States, 114 U.S. App. D.C. 49, 310 F.2d 854, 856 ( D.C. Cir. 1962).

 IV. CONCLUSION

 It is within the Court's discretion, pursuant to 18 U.S.C. § 3651, to modify the Defendant's probation, and to place him, as a young adult offender, on probation under the Youth Corrections Act. 18 U.S.C. §§ 4209, 5010(a); United States v. Bailey, 343 F. Supp. 76, 78 (W.D. Mo. 1971).

 The facts of this case, when examined in light of the rehabilitative purposes of the three statutes here involved, compel the Court to conclude that such a modification of probation would be in the best interest of justice, the public, and the Defendant. The Court's power to grant this relief is conferred not only by the statutory provisions, but derives also from the Court's inherent powers as an Article III court having equitable jurisdiction over the due administration of justice. Equity demands that the Court utilize the provisions of 18 U.S.C. § 5010(a) to carry out the Congressional mandate of the Youth Corrections Act. Thus, in granting the modification of probation, the Court is fulfilling its duty, as a court of equity, to serve the public interest and to see that justice is done.

 Lastly, the Court could, in its discretion, terminate the Defendant's probation and set him free under no supervision or guidance. However, placing him on probation under the Youth Corrections Act will better serve the Defendant and society. Under the continued tutelage of the probation officer, the Defendant will receive assistance in laying the foundations for a productive future; and, without the burden of a criminal record, he will later be able to realize his potential as a valuable citizen in his community. A report to the Court from the Defendant's probation officer on January 21, 1975, fully corroborates this conclusion and supports the Court's action herein.

 The Court shall enter this day an Order in accordance with this Opinion.

 Charles R. Richey United States District Judge

 Dated January 27, 1975

 ORDER

 Upon consideration of the Motion by the Defendant for Reconsideration of Sentence, filed herein on June 17, 1974; together with the government's opposition thereto of August 27, 1974, and after oral argument on October 24, 1974, by counsel for the parties, and upon consideration thereof, and for the reasons set forth in the Court's Memorandum Opinion filed herein on this date, it is, by the Court, this 27th day of January, 1975,

 ORDERED, that this Court's Order of February 19, 1974, placing the Defendant on probation under 18 U.S.C. § 3651, be and the same is hereby vacated, set aside and held for naught; and it is

 FURTHER ORDERED, that, in accordance with the Court's Opinion filed herein on this date, the execution or imposition of sentence in the above-entitled cause be and the same is hereby suspended and the Defendant be and the same hereby is placed on probation for eighteen months, nunc pro tunc, from February 19, 1974, pursuant to the provisions of 18 U.S.C. § 5010(a) as authorized by the provisions of 18 U.S.C. § 4209; and it is

 FURTHER ORDERED, by virtue of the foregoing, including but not limited to, the findings in the Court's Opinion and the Defendant's progress on probation thus far, as per a report to the Court from the United States Probation Office dated January 21, 1975, that the Court specially finds that the Defendant will benefit from being placed on probation pursuant to 18 U.S.C. § 5010(a).

 Charles R. Richey United States District Judge

 Dated January 27, 1975


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