                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-15-1995

United States v Derewal
Precedential or Non-Precedential:

Docket 95-1142




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Recommended Citation
"United States v Derewal" (1995). 1995 Decisions. Paper 257.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/257


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                             No. 95-1142
                             ___________

          UNITED STATES OF AMERICA

                           vs.

          MANFRED DEREWAL,

                                  Appellant
                             ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Crim. No. 88-cr-00098)
                          ___________

                              Argued
                          August 2, 1995
    Before:   MANSMANN, HUTCHINSON and ROTH, Circuit Judges.

                  (Filed     September 15,    1995)
                             ___________

Stephen Robert LaCheen, Esquire
George E. Goldstein, Esquire (Argued)
3100 Lewis Tower Building
15th and Locust Street
Philadelphia, PA 19102

          Counsel for Appellant

Robert A. Kauffman, Esquire (Argued)
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

          Counsel for Appellee
                           ___________

                      OPINION OF THE COURT
                           __________



                                  1
MANSMANN,   Circuit Judge.

            In this appeal from the district court's order revoking

Manfred DeRewal's probation, we address chiefly DeRewal's primary

contention regarding the tension between the power of the

judiciary to act on probation matters and the executive branch's

power governing parole since DeRewal was on parole when the

district court revoked DeRewal's probation that had not yet

begun.   This is an issue we specifically reserved in United

States v. Camarata, 828 F.2d 974 (3d Cir. 1987), cert. denied,

484 U.S. 1069 (1988).

            We hold that the district court properly exercised its

jurisdiction in revoking DeRewal's probation for pre-probation

conduct occurring during a period of parole.    Such judicial

action regarding probation does not disturb the executive

branch's authority to control DeRewal's parole.

            DeRewal also contends that the conditions of his

probation were modified without a hearing as required by Federal

Rule of Criminal Procedure 32.1(b), that the district court erred

in refusing to grant him access to the probation officer's entire

file, and that there was insufficient evidence for the district

court to find a violation of probation.    We have considered each

of the allegations of error and, finding them to be without

substance, we will affirm the order of the district court.




                                 2
                                I.

          In March, 1988, Manfred DeRewal was charged with

conspiracy to import P2P, importation of P2P, and attempting to

import P2P into the United States from Costa Rica in violation of

21 U.S.C.A. §§   952(a), 960(a)(1), 963 (West 1981) and 18

U.S.C.A. § 2 (West 1969).   Following conviction, DeRewal was

sentenced to 10 years of imprisonment followed by a ten year term

of special parole.   A five year probationary term was to run

consecutively to the term of special parole.1

          On December 17, 1992, DeRewal was released from prison

on parole, parole to run until October 18, 1998.   The term of

special parole would then run from 1998 until 2008, when the

probationary period would begin.

          On September 7, 1994, the United States Probation

Department filed a Violation of Probation Petition against

DeRewal, alleging that he had violated those three conditions of

probation which required him (1) to answer truthfully inquiries

from and follow the instructions of his probation officer; (2) to
refrain from associating with those engaged in criminal activity

or convicted of a felony; and (3) to refrain from violating any

law.

1
          DeRewal's direct appeal from the judgment of conviction
and sentence was affirmed on October 12, 1989. DeRewal then
filed a petition pursuant to 28 U.S.C. § 2255 raising ineffective
assistance of counsel and other claims. The district court
denied the petition. On appeal, we affirmed in part, reversed in
part, and remanded the matter to the district court. See United
States v. DeRewal, 10 F.3d 100 (3d Cir. 1993) (holding that a
defendant is not required to show "cause and prejudice" with
respect to his failure to raise ineffective assistance of counsel
on direct appeal).


                                3
          DeRewal's motion to dismiss the petition for lack of

jurisdiction was dismissed and a hearing was held on the merits

of the Probation Department's Petition.    DeRewal filed a motion

seeking to review his probation file in its entirety.   Following

the district court's denial of this motion, the government

presented the testimony of DeRewal's neighbor who had overheard

telephone conversations as a result of an illegal splice into her

telephone line.   Testimony was also given by telephone employees,

DeRewal's probation officer, and FBI agents.

          At the conclusion of the testimony, the district court

found that DeRewal had violated the terms of his probation and

sentenced him to 36 months imprisonment.   This timely appeal

followed in which we confront the issue of judicial power to

alter probation during a pre-probation period of parole which is

governed by the authority of the executive branch.



                               II.

           In Affronti v. United States, 350 U.S. 79 (1955), the

Supreme Court confronted the question of whether a district court

has authority to place a defendant on probation once he has begun

to serve the first in a series of consecutive sentences.     The

Court cautioned that statutory authority to grant probation
should not be "applied in such a way as to necessarily overlap

the parole and executive clemency provisions of the law" and

should be interpreted "to avoid interference with the parole and

clemency powers of the Executive Board."   Affronti, 350 U.S. at
83.   The Court then concluded, utilizing broad language, that


                                4
"the probationary power ceases with respect to all of the

sentences composing a single cumulative sentence immediately upon

imprisonment for any part of the cumulative sentence."   Id.

          In United States v. Williams, 15 F.3d 1356, 1357 (6th

Cir.), cert. denied, 115 S. Ct. 431 (1991), the Court of Appeals

for the Sixth Circuit concluded that "a district court does have

authority to revoke probation for pre-probation conduct,

including the pre-probation conduct of a paroled convict."     On

facts substantially identical to those present_"




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