FLETCHER, Circuit Judge:
This is an appeal from the denial of a motion brought under 28 U.S.C. § 2255 (1976).
Former U.S. Army Master Sergeant William Higdon operated several large servicemen's clubs in Vietnam. He and his cohorts devised an elaborate overpayment and kick-back scheme that defrauded the government of several hundred thousand dollars. Higdon was also the "money man" for the operation, depositing over $300,000 into a Swiss bank account over a fourteen month period.
In 1971, the scheme was uncovered and Higdon was courtmartialed, found guilty, and sentenced to dishonorable discharge and forfeiture of all benefits.
Higdon returned to Georgia, and his case was assigned to the federal probation office there. Between 1973 and 1976 Higdon served as a volunteer for the Georgia Department of Recreation in order to fulfill his charitable work requirement. He performed satisfactorily and reported regularly to his probation officer. To support himself and his wife and two young children, he operated a tavern which had been set up with the help of friends. In 1976, his wife left him, and he was required to make support payments of $500 per month. Eventually, the pressure of working two full-time jobs and the travails of a deteriorating family life led to poor health and a drinking problem.
In 1977, the probation office became suspicious when Higdon fell behind on his monthly time reports and could not be found at the gymnasium or ballfield to which he had been assigned by the Recreation Department. His probation officer ordered that recent monthly time sheets showing hours worked per week be broken down day-by-day. He discovered that Higdon was claiming time for many days when the gym and ballfield had actually been closed and that Higdon had lately been working only a few of his reported thirty hours per week. Higdon had also transgressed
Because of these violations of his probation conditions, the probation officer petitioned the judge to revoke Higdon's probation. At the revocation hearing Higdon admitted the violations, probation was revoked, and Higdon was committed to Maxwell Field to serve his full five-year prison sentence with no credit for the four years and four months he had spent on probation. Higdon requested modification of the prison sentence under rule 35 of the Federal Rules of Criminal Procedure. When this was denied, he collaterally attacked his sentence under 28 U.S.C. § 2255 (1976), alleging that the probation conditions were unlawful and amounted to cruel and unusual punishment and that revocation based upon violation of them was therefore void. The district judge took jurisdiction but denied the motion. Higdon here appeals the denial.
The issues raised by Higdon are properly cognizable in a section 2255 motion. The challenge is to the sentence of a prisoner in custody under sentence for a federal crime, and he presently has no other remedy available to him.
III. THE FEDERAL PROBATION ACT
The core issue is whether the forfeiture and charitable work conditions were within the range of discretion accorded a trial judge by the Federal Probation Act, 18 U.S.C. § 3651 et seq. (1976). Our guide is the test set forth in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975) (en banc), in which the court held that probation conditions must be reasonably related to rehabilitation of the offender and protection of the public. 521 F.2d at 263-64. See also United States v. Pierce, 561 F.2d 735, 739 (9th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978) (explaining and applying Consuelo-Gonzalez). This test is applied by a two-step process. First, we consider the purposes for which the judge imposed the conditions. If the purposes are permissible, the second step is to determine whether the conditions are reasonably related to the purposes. In conducting the latter inquiry the court examines the impact which the conditions have on the probationer's rights. If the impact is substantially greater than is necessary to carry out the purposes, the conditions are impermissible.
B. Impermissible Purposes
The primary purpose of probation is to rehabilitate the offender. Therefore, the only factors which the trial judge should consider when deciding whether to grant probation are the appropriateness and attainability of rehabilitation and the need to protect the public by imposing conditions which control the probationer's activities.
The transcript of Higdon's sentencing hearing
C. Reasonable Relationship
We are compelled to find that the special conditions were impermissible under the second part of the Consuelo-Gonzalez test because they were not reasonably related to rehabilitation of the offender or protection of the public.
The fact that the conditions restrict Higdon's freedom is not dispositive—virtually all probation conditions are restrictive, and this circuit has often upheld as reasonable conditions which require the abandonment or limitation of otherwise lawful activities. United States v. Furukawa, 596 F.2d 921 (9th Cir.1979) (prohibiting association with reputed criminals); United States v. Pierce, 561 F.2d 735 (9th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978) (requiring disclosure of financial assets); United States v. Consuelo-Gonzales, 521 F.2d 259 (9th Cir.1975) (en banc) (requiring consent to searches without probable cause by probation officers); Malone v. United States, 502 F.2d 554 (9th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) (prohibiting membership in lawful social and political organizations); United States v. Nu-Triumph, Inc., 500 F.2d 594 (9th Cir.1974) (prohibiting operation of a lawful business). However, although the judge has substantial discretion when assembling a set of probation conditions, they must be narrowly drawn to achieve rehabilitation and protection of the public without unnecessarily restricting the probationer's otherwise lawful activities. If the impact of the conditions is needlessly harsh, the conditions are impermissible.
Analyzed separately, the forfeiture and charitable work conditions imposed on Higdon may each have been within the established boundaries of judicial discretion and hence permissible.
IV. THE EFFECT OF VIOLATIONS OF IMPERMISSIBLE CONDITIONS
The district court judge has broad discretion to revoke probation for violation of its conditions. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Dane, 570 F.2d 840 (9th Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978). Our inquiry, then, is limited to whether there was an abuse of discretion in Higdon's case amounting to a fundamental defect remediable by a section 2255 motion.
The government argues that Higdon's probation may be revoked for failure to meet his full charitable work requirement even if that requirement was part of an impermissible set of conditions. The contention is that Higdon's proper response to impermissible probation conditions was to seek modification of them under rule 35 of the Federal Rules of Criminal Procedure (the judge may correct an illegal sentence at any time) or the fourth paragraph of 18 U.S.C. § 3651 (1976) (the judge may modify any condition of probation). Until Higdon sought to modify the conditions, the government contends, he was bound by them.
The government's argument proves too much. It is true that self-help, and particularly deceitful self-help, is not the proper response to unreasonable probation terms. But the reasonableness of revocation on the unusual facts of this case is related to the reasonableness of the probation terms. On these facts,
The government next argues that Higdon's probation was revoked not only for failing to work the requisite number of hours, but also for filing late monthly time sheets and falsifying probation records. It contends that these reporting violations were adequate independent grounds for revocation.
We agree that a judge may revoke probation for noncompliance with reporting requirements. United States v. Lara, 472 F.2d 128 (9th Cir.1972). However, the trial judge's decision to revoke probation is discretionary, not mandatory, as is the decision as to the length of the jail sentence to be served in the event of revocation. We are unwilling to speculate how the judge would have exercised his discretion in the light of our holding that the probation conditions were impermissible. The sentencing judge should be given the opportunity to consider whether Higdon's probation should be revoked solely on the basis of his noncompliance with reporting requirements which related to the performance of the impermissible conditions and, if so, whether the full five year prison term is the appropriate sentence.
REVERSED AND REMANDED.
Reporters' Transcript of Proceedings, May 29, 1973, at 55-64.
Charitable work conditions are used to instill in a probationer a sense of social responsibility and to integrate him into a productive social role. See, Bergman, Community Service in England: An Alternative to Custodial Sentence, Fed. Probation, March, 1975, at 43; Brown, Community Service as a Condition of Probation, Fed. Probation, December, 1977, at 7. They have often been employed by federal judges, see Id.; Jaffee, Probation with a Flair: A Look at some Out-of-the-Ordinary Conditions, Fed. Probation, March, 1979, at 25, and until recently had not been challenged. The first case in any jurisdiction to consider their permissibility is United States v. Arthur, 602 F.2d 660 (4th Cir.1979), in which a defendant convicted of misapplication of bank funds was required as a condition of probation to accept two years of unpaid full-time employment at an approved charitable organization. The court recognized that charitable service may not always be appropriate, but upheld the condition on the ground that it was more rehabilitative than prison and functioned as a deterrent and as symbolic restitution. Because the Arthur court did not fully reveal its reasons for arriving at this conclusion, and because the instant case involves conditions of probation the cumulative impact of which goes far beyond that of the charitable work condition in Arthur, we here neither endorse nor reject the reasoning or result in Arthur. We note, however, that the requirement of reasonableness applied here to the cumulative impact of forfeiture and charitable work conditions should be similarly applied to a charitable work condition standing alone.
1. Probationer was delinquent in submitting his monthly supervision reports for the months of April, May, June and July, 1977, in violation of Condition No. 7 of his Probation Conditions.
2. Probationer is not in compliance with the Special Condition of his probation in that on May 4, 1977, he submitted fraudulent time sheets claiming credit for hours worked at a charitable organization that he did not work.
The first charge is clearly for noncompliance with reporting requirements. The second charge, however, is for violation of the "Special Condition ... [by submitting] fraudulent time sheets claiming credit for hours ... that he did not work" (emphasis added). The special condition referred to required Higdon to work for charity, and did not mention that he must submit timely or accurate time sheets. Therefore, it appears that Higdon's failure to work the requisite hours, not his false reporting, was the gravamen of the second charge.