UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH PATRICK ROBINSON, DEFENDANT-APPELLANT
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A probationer's refusal to answer questions about income, even if invoking the Fifth Amendment, can lead to probation revocation if it violates an explicit condition of probation requiring truthful reporting.
A convicted currency smuggler on probation reported $25,000 income on his tax return. When his probation officer questioned the source of this income,…
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PER CURIAM.
A convicted currency smuggler is serving a term of' probation. His probation officer asks him a question about the source of $25,000 income reported on probationer’s tax return1; the felon responds by pleading the fifth amendment. This appeal presents the question whether the United States may revoke probation where the probation agreement explicitly requires a probationer to report and to “give an account of [himself] and to respond completely and truthfully to questions asked by the probation officer”. The answer is “yes”.
While a probationer has a fifth amendment right to avoid self-incrimination, this does not mean that the “Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer’s silence as ‘one of a number of factors to be considered by the finder of fact’ in deciding whether other conditions of probation have been violated.” Minnesota v. Murphy, 465 U.S. 420, 435 n. 7, 104 S.Ct. 1136, 1146 n. 7, 79 L.Ed.2d 409 (1984).
The probation officer has an obligation to inquire into possible violations of the probation agreement. If the probation officer suspects possible violations, he can petition the court for revocation of probation. Robinson’s tax return raised the probation officer’s suspicion that Robinson was continuing to engage in unlawful money smuggling activities — -a clear violation of his probation. When Robinson failed to report these activities completely and truthfully as per the terms of his probation, he committed a probation violation. The issue is not invocation of the privilege, but the failure to report. “[T]here is no question that failure to comply with reporting requirements is a serious violation of probationary conditions, and that such failure alone can justify revocation of probation.” United States v. Morin (Roger), a/k/a Video (Paris), 889 F. 2d 328, 332 (1st Cir.1989).
Probation revocation is entrusted to the sound discretion of the district court. Only upon a clear showing of abuse of that discretion will the district court’s decision be disturbed. See United States v. Holland, 874 F. 2d 1470, 1473 (11th Cir.1989); United States v. Rice, 671 F. 2d 455, 458 (11th Cir.1982); United States v. Garza, 484 F. 2d 88, 89 (5th Cir.1973). “In a probation revocation proceeding, all that is required is that the evidence reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation; evidence that would establish guilt beyond a reasonable doubt is not required.” Rice, 671 F. 2d at 458.
Upon review of the record, we cannot say the district court abused its discretion when it revoked defendants probation and reinstated the original sentence of one year in prison.2
AFFIRMED.
. On his tax return, the probationer validly asserted the fifth amendment as to the source of the income. See Garner v. United States, 424 U.S. 648, 650, 96 S.Ct. 1178, 1180, 47 L.Ed.2d 370 (1976).
. The other claims raised by the defendants have been considered and rejected as without merit.
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United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003)…require a probationer to appear and discuss matters that affect his probationary status without violating the Fifth Amendment. Minnesota v. Murphy, 465 U.S. 420, 485, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984); see also United States v. Robinson, 893 F. 2d 1244, 1245 (11th Cir.1990) (affirming revocation of convicted currency smuggler’s probation where probationer violated condition of release by refusing to answer questions regarding sources of income). The Court in Murphy admitted some exceptions to the…
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Denzil Earl McKathan v. United States, 969 F.3d 1213 (11th Cir. 2020)…in the Eleventh Circuit, the government has successfully attempted to revoke supervised release in any case, merely because the supervised releasee invoked his Fifth Amendment privilege. See id. at 439. McKathan points to United States v. Robinson, 893 F.2d 1244 (11th Cir. 1990) (per curiam), as an example of such a case. Robinson was serving a term of probation following his conviction for currency smuggling. Id. at 1244. Under his probation agreement, Robinson was required to report to his probation offic…1 / 2
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United States v. Ucciferri, 133 F. Supp. 2d 1330 (M.D. Fla. 2001)…der to revoke supervision, the evidence must “reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.” See Holland, 874 F.2d at 1472-73; United States v. Robinson, 893 F.2d 1244, 1245 (11th Cir.1990). Where the Court finds, by a preponderance of the evidence, that the defendant committed the violations alleged, the Court may revoke supervised , release. See 18 U.S.C. *1334 § 3583(e)(3). The quantum of proof is not…
Authorities Cited
- Minnesota v. Murphy, 465 U.S. 420 (U.S. 1984)
- Garner v. United States, 424 U.S. 648 (U.S. 1976)
- United States v. Rice, 671 F.2d 455 (11th Cir. 1982)
- United States v. Garza, 484 F.2d 88 (5th Cir. 1973)
- United States v. Morin, 889 F.2d 328 (1st Cir. 1989)
- United States v. Holland, 874 F.2d 1470 (11th Cir. 1989)