UNITED STATES оf America, Plaintiff-Appellee, v. Gilbert L. DOZIER, Defendant-Appellant.
No. 82-3419.
United States Court of Appeals, Fifth Circuit.
June 23, 1983.
Rehearing and Rehearing En Banc Denied Aug. 11, 1983.
707 F.2d 862
Stanford O. Bardwell, Jr., U.S. Atty., Stan Lemelle, Asst. U.S. Atty., O.E. Jack Roberts, Baton Rouge, La., for plaintiff-appellee.
GARZA, Circuit Judge:
On January 30, 1980, Gilbert Dozier was charged, in a five count indictment, with violations of the Hobbs Act and the Racketeer Influenced and Corruрt Organizations Act. On September 23, 1980, a guilty verdict was returned on counts one, two, three and five of the indictment. On count one Dozier was sentenced to five years imprisonment and fined $25,000. On count two he wаs given five years imprisonment to be served consecutively to the sentence imposed on count one. On count three the court suspended imposition of a sentence of imprisonment and placed Dozier on five years probation “to commence upon his re
On April 8, 1982, an opinion was rendered by this court affirming Dozier‘s conviction. On May 27, 1982, the government filed a motion to revoke the appeal bond and to revoke the probation of the defendant, an arrest warrant was issued and executed, and Dozier was held without bond. On June 4, 1982, the mandate was issued by this court; and on June 5, 1982, a stay order was issued by the United States Supreme Court. On June 8, a supplemental and amended motion to revoke probation was filed. On June 9, 1982, the Supreme Court enterеd an order vacating the June 5 stay. A probation revocation hearing was conducted from June 21 through June 24, 1982, and on June 24, 1982, the district court revoked Dozier‘s probation. The court imposed a рrison term of eight years under count three of the original indictment to be served consecutively to the two other prison terms and specified that the defendant was to serve a minimum of eighteеn months on count three before parole eligibility. On count five a suspended ten year term of imprisonment was imposed, and the defendant was placed on probation for a periоd of five years to commence upon the defendant‘s release from prison.
The motion to revoke probation charged Dozier with violations of
Dozier argues that the district court erred in revoking the sentencе of probation given for his conviction on count three of the indictment.2 He argues that the trial court does not have the power to revoke a defendant‘s probation before the defendant has commenced service of the term of probation. We disagree. This court has held on several occasions that a trial court may revoke a term of probatiоn before the defendant begins service of the term of probation. United States v. Cartwright, 696 F.2d 344, 347-349 (5th Cir. 1983); United States v. Tucker, 524 F.2d 77, 78 (5th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976); United States v. Ross, 503 F.2d 940, 941 (5th Cir. 1974).
Dozier also contends the trial judge abused his discretion by denying the defendant‘s request for recusation. The defendant points to four separate incidents which he claims require recusal. First, Agent Phipps told the trial judge that Dozier had solicited the assistance of Martin to get jurors to write letters stating that therе had been jury misconduct. According to
The statutory provisions impose a reasonable man standard for determining whether a judge should recuse himself. Parliament Insurance Compаny v. Hanson, 676 F.2d 1069, 1075 (5th Cir. 1982). Applying this standard, we see no impropriety in the trial judge‘s failure to recuse himself. Dozier was free on bond when the information complained of was related to the judge, and the informаtion, at least to some extent, was relevant to the district court‘s supervision of that bond. Furthermore, and most importantly, we can see no prejudice or bias which the trial judge developеd as a result of this information.
Next, Dozier contends that the government engaged in such outrageous conduct that the lower court erred in finding a violation of probation and in revoking probation. After thoroughly reviewing the record and the applicable law, we find this contention to be totally without merit.
Finally, Dozier contends that the district court erred in finding he had committed the crimes of conspiracy and attempted burglary. All that is required for the revocation of probation is enough evidence to satisfy the district judge that the conduct of probationer has not met the conditions of probation. United States v. MacKenzie, 601 F.2d 221, 222 (5th Cir. 1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). Since Dozier‘s solicitation of Martin to contact jurors serves as an adequate basis for the discretionary action of the district court, it is unneсessary for us to decide this claim of error advanced by the defendant. United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. 1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982).
Finding no reversible error, the revocation of probation is affirmed.
AFFIRMED.
GARWOOD, Circuit Judge, concurring:
I join in all of Judge Garza‘s excellent opinion fоr the Court, and append these remarks only to express my concern over the implications of the revocation of probation for conduct occurring before the event frоm which the commencement of the specified five-year duration of the probation is measured, where the conduct takes place after the sentencing at which the probation is imposed and the “fraud at sentencing” concept is not involved. My concern is grounded on the provision of