dissenting:
Imposition of conditions of probation is a nondelegable duty of the sentencing judge. United States v. Crocker, 435 F.2d 601 (8th Cir. 1971); Whitehead v. United States, 155 F.2d 460 (6th Cir.), cert. denied, 329 U.S. 747, 67 S.Ct. 66, 91 L.Ed. 644 (1946). The conditions of probation determine the restrictiveness and severity of the punishment imposed. They are an integral part of the probationary sentence and must be imposed in the defendant’s presence under Fed.R. Crim.P. 43(a).1
Notwithstanding the foregoing principles which limit the imposition of conditions, the majority holds in effect that a sentencing judge has discretion to revoke a defendant’s probation even though the defendant has violated no condition and committed no illegal acts. This result seems to conflict with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
The “discretion” referred to in the majority opinion as being approved in Gagnon is the discretion of the probation officer to recommend revocation. For the trial judge, on the other hand,
“The first step in a revocation decision * * * involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?” Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), quoted in Gagnon v. Scarpelli, 411 U.S. at 784,2 93 S.Ct. at 1760.
Gagnon identified the liberty interest at stake in probation revocation proceedings, and it mandated the procedures necessary to protect that interest. Its decision is binding on this court. Nonetheless, the majority engages in its own analysis of the liberty interest involved and then decides that less procedural protection is necessary. After today, the sentencing judge need only find that the probationer has acted in violation of a “prior fair warning” and not of an imposed condition.
United States v. Ross, 503 F.2d 940 (5th Cir. 1974), and Tiitsman v. Black, 536 F.2d 678 (6th Cir. 1976), cited by the majority, create a limited exception to the Gagnon rule when the probationer has engaged in criminal activity (in violation of the conditions of probation) either before his probation has technically begun or before he had *847notice of the conditions. However, neither case condones the extension of this principle to acts which are not criminal and which do not violate conditions of probation. In fact, Tiitsman makes a constitutional distinction between criminal and noncriminal behavior, explicitly limiting its holding to the former. The majority has cited no authority for its expansion of this limited exception.
What constitutes “prior fair warning” for the majority is unclear. The opinion offers no guidelines, leaving the question to the discretion of the sentencing judge. However, the facts of this case well illustrate the dangers of this erosion of Gagnon. The majority finds that Dane had “prior fair warning.” Under any ordinary usage of the phrase, I cannot see how the record supports this finding. The subjectiveness of the standard as applied here effectively vitiates the procedural protections of Gag-non.
The acts which resulted in Dane’s revocation were (1) his use of a rifle under the supervision of Mexican police in connection with an American television program; (2) the arrangements he made to have some of his weapons shipped to him in Europe and his subsequent possession of those weapons; and (3) his use of weapons in connection with his employment by the Rhodesian government training Rhodesian farmers as militiamen.
The record shows that Dane had a conversation with his parole officer about weapons Dane had at his house and the federal law prohibiting him as a felon from possessing weapons in this country, until, after successful completion of probation, he petitioned the proper authorities. However, nothing at all was said about his being forbidden to possess weapons when he was granted permission to leave the country on unsupervised probation. Under these circumstances, it is hard to see how the discussion with the parole officer provided any warning that the acts enumerated above could lead to revocation.
The majority cites as “fair warning” the dialogue occurring in the sentencing proceeding, which is reproduced in footnote 6 of the majority opinion. As can be seen, the discussion concerned the selling of explosives to underground groups for eventual use by terrorists. The judge was specifically condemning Dane’s past illegal arms dealing. Nowhere did he even remotely imply that the legal handling of weapons might lead to revocation of probation.
Another “fair warning” found by the majority is a “clear understanding” that Dane was to give up his former profession as a mercenary soldier. The record betrays no such clarity. The most explicit discussion of Dane’s activities is the dialogue quoted and relied on by the majority. From this dialogue, perhaps, can be inferred the judge’s disapproval of international terrorist or insurgent military activities. The judge voiced no disapproval of Dane’s career with the United States Special Forces in Vietnam even though, as a British national, he was serving as a mercenary, or, as he would say, as a “professional soldier”. Dane’s role in Rhodesia was analogous to his role in Vietnam, and the record suggests that his duties were far less bloody.3 The “former profession” Dane was to give up was that of a dealer in illegal arms. Nothing in the record of the sentencing proceeding suggests anything else. Dane apparently gave up dealing in illegal arms and conformed his conduct to the requirement of the law. I find in the record no prior fair warning that more was required.
I would reverse.
. See Pollard v. United States, 352 U.S. 354, 356, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957).
. Although the quoted language uses the term “parolee” rather than “probationer”, the court was discussing the revocation process for probation and parole, and the passage is equally applicable to both. See Gagnon v, Scarpelli, 411 U.S. 778, 783-786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
. Assuming that Dane understood that he was not to be a mercenary, this understanding would proscribe at most only one of the acts on which his revocation was based. Obtaining possession of one’s personal weapons and using a rifle for a television program are not, of course, activities which could reasonably be considered forbidden the admonition not to continue being a “mercenary”.