Metropolitan News-Enterprise


Monday, December 17, 2007


Page 1


Ninth Circuit Tosses Blanket Ban on Alcohol Use by Probationers


By STEVEN M. ELLIS, Staff Writer


A court cannot require a federal criminal defendant to abstain from consuming alcohol as a condition of supervised release where nothing in the record suggests a relationship between the crime and alcohol consumption, or that the defendant abused alcohol in the past, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Vacating Marcus Brandon Betts’ sentence and remanding for resentencing, a unanimous panel held that U.S. District Judge David O. Carter of the Central District of California abused his discretion when he imposed the condition because Carter made no individualized determination that the condition bore a reasonable relationship to rehabilitating Betts, protecting the public, or providing adequate deterrence.

Writing for the panel, Judge Andrew J. Kleinfeld said:

“Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech,” he wrote, “but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.”

Betts, a former employee of TransUnion LLC—one of the three major credit reporting agencies—was the leader of a unit that decided disputes over allegedly inaccurate credit scores when he became involved in a scheme to accept bribes to falsely improve credit scores.

Under the scheme, Betts’ coconspirators took money from people who wanted to improve their scores, and sent letters to Betts to put in TransUnion’s database to delete negative entries.  Although Betts did not create or direct the conspiracy, he was the essential inside man at Trans-Union and helped to falsify 654 credit histories, generating around $1 million in losses to lenders who were stuck with the bad risks.

Betts pled guilty to conspiracy, and was sentenced to three years of supervised release.

Policy Disagreement

Kleinfeld said that Betts’ situation was the apparent result of a policy disagreement between the Office of the Federal Public Defender and the district court, whereby the public defender’s office advised clients not to answer probation officers’ questions about alcohol or substance abuse.  In an attempt to change the policy, the court required all such defendants to undergo drug testing and abstain from alcohol consumption as a condition of release.

Imposing the condition on Betts after he declined to discuss his past or current use of illicit substances or alcohol upon the advice of counsel, Carter told Betts that, “there has to be an affirmative duty on the defendant… to be completely candid and truthful with the court through the probation office.”

However, Kleinfeld said that a condition of supervised release was only permissible if it was reasonably related to deterrence, public protection, or rehabilitation, and did not involve a deprivation of liberty greater than that reasonably necessary for the purposes of the release.  He also said that such a condition must be “individualized” based on “the nature and circumstances of the offense, and the history and characteristics of the defendant.”

 Pointing out that Carter expressly noted that he did not think Betts had a problem with drugs or alcohol, or consider Betts to be at risk of future substance abuse, Kleinfeld said that nothing in the record suggested that the condition was related to these concerns.

Position Criticized

Kleinfeld also criticized the public defender’s position, saying that the court did not understand how the office could adopt a policy sacrificing a particular client’s interest to the interests of criminal defendants as a class consistent with its ethical duties.  He said that the court saw nothing wrong with supervised release conditions requiring abstention from alcohol in general, but reiterated that the decision could not be a matter of policy applicable without regard to the individual defendant.

In a separate portion of the opinion, Kleinfeld upheld Carter’s imposition of conditions restricting Betts employment during the supervised release to keep him away from his former employer’s money because Betts had violated his fiduciary duty of loyalty to his employer and the restriction was connected to the crime. 

He also upheld a condition that Betts submit to warrantless searches because the public was entitled to protection against the possibility that Betts’ conduct was not an aberration, noting that the U.S. Supreme Court had previously upheld the blanket imposition of similar requirement on state parolees.

However, Kleinfeld struck down a condition that Betts apply any monies received from future windfalls such as lottery winnings or inheritances to satisfy a restitution order “as directed by” his probation officer because the condition allowed the officer to determine how much Betts was required to pay – a determination only the court had authority to make.

Kleinfeld was joined in his opinion by Judges Ronald M. Gould and Milan D. Smith Jr.

Both Betts’ attorney, James H. Locklin, and Assistant U.S. Attorney Douglas F. McCormick declined comment on the panel’s decision.

The case is United States v. Betts, No. 06-50205.


Copyright 2007, Metropolitan News Company