United States v. Antonio D. Stephens

*885CLIFTON, Circuit Judge,

concurring in part and dissenting in part:

The majority has concluded that a convicted defendant may be required to submit to drug testing within a drug treatment program imposed by the court as a condition of supervised release, in which case the number of drug tests need not be set by the court itself. I agree with that holding and concur with that part of the decision.

The majority has also concluded, however, that a probation officer is not permitted to determine the maximum number of drug tests that may be required of the convicted defendant if the testing is conducted outside of a specified treatment program, even where the sentencing court has explicitly ordered testing and specified a minimum number of tests. The majority holds that the maximum number of non-treatment drug tests must be specified by the court itself. I disagree, for reasons of precedent and policy.

First, that holding is inconsistent with binding precedent, in the form of our decision in United States v. Duff, 831 F.2d 176 (9th Cir.1987). We held there that a probation officer had the authority to require a convicted defendant to submit to drug testing even when the district court had not ordered drug tests as a condition of supervised release. We observed that the district court had ordered the defendant to obey all laws and that probation officers were required by statute to “use all suitable methods, not inconsistent with the conditions imposed by the court, ... to bring about improvements in [a probationer’s] conduct and condition” and to “keep informed concerning the conduct and condition of each probationer under [their] supervision.” Id. at 178 (quoting 18 U.S.C. § 3655, part of the Federal Probation Act, 18 U.S.C. §§ 3651-56, then in effect but repealed effective November 1, 1987) (quotation marks omitted and alteration in original). We reasoned that the probation officer’s use of urinalysis to determine whether the defendant was using illegal drugs was consistent with the condition that the defendant obey the law, made it more probable that the defendant would successfully complete the probationary period, and allowed the probation officer to stay informed as to the defendant’s conduct. Accordingly, we held that the probation statute and the general order regarding compliance with the law gave the probation officer the authority to require drug testing without further direction from the court. Id. at 178-79.

The same considerations that supported the holding in Diiff are present in this case. Here, the district court ordered, as conditions of supervised release, that the convicted defendant “not commit another federal, state or local crime,” “refrain from any unlawful use of a controlled substance,” “submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter,” and “participate in a program of drug or alcohol abuse treatment including urinalysis testing and counseling as directed by the probation officer.” To enforce compliance with those conditions, his probation officer was empowered by statute to

(3) use all suitable methods, not inconsistent with the conditions specified by the court, to aid a probationer or a person on supervised release who is under his supervision, and to bring about improvements in his conduct and condition;
(4) be responsible for the supervision of any probationer or a person on supervised release who is known to be within the judicial district;
*886(7) keep informed concerning the conduct, condition, and compliance with any condition of probation ...;
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(10) perform any other duty that the court may designate.

18 U.S.C. § 3603 (emphasis added).

Although the structure of the supervised release statute has changed since Duff, the broad language of the current statute outlining the duties of probation officers conveys the same substantive authority that existed under the predecessor statute. Compare 18 U.S.C. § 3603 with the previous version, 18 U.S.C. § 3655, as discussed in Duff, 831 F.2d at 178; see also United States v. Smith, 45 F.Supp.2d 914, 919 (D.Ala.1999) (relying on 18 U.S.C. § 3603 to hold that probation officers have the power to determine the number and frequency of drug tests). If a probation officer can require drug tests when the sentencing court did not impose testing as a condition of supervised release, as we held in Duff, then surely the probation officer can require additional tests after the court has explicitly imposed submission to drug testing as a requirement of supervised release. Thus, when Stephens was ordered as a condition of probation to refrain from all unlawful use of a controlled substance and to submit to two or more drug tests (in addition to the one test ordered within the first 15 days after release from imprisonment), the probation officer was authorized by statute, as we held in Duff, to use any suitable means to ensure that the defendant complied with that condition. Requiring additional drug tests and determining how many more tests, beyond the minimum, was properly within the power of the probation officer.

The majority opinion cites Duff with approval, ante at --■, and then dismisses Duff, ante at-n. 4, with the observation that “[h]ere, we construe an entirely different statute, [18 U.S.C.] § 3583(d), which specifically sets forth the obligation of the district judge to determine the number of drug tests.” The fact of a different statute is relevant, however, only if Duff has been overruled by § 3583. In other words, Duff is controlling unless the authority that we held probation officers possess under § 3655 — authority that is preserved under § 3603 — was stripped from probation officers by the enactment of § 3583. The majority does not even attempt to make such an argument. Nor could it do so easily, as Duff was cited with approval just two years ago in United States v. Rearden, 349 F.3d 608, 619 (9th Cir.2003).

Nevertheless, I infer that the majority has concluded that Duff was effectively overruled by Congress when it enacted the current version of § 3583(d). That statute requires the district court to order as an explicit condition of supervised release, among other things, that a defendant submit to a drug test within 15 days of release “and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance,” a condition which “may be ameliorated or suspended by the court.” That language was added to the statute in 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 20414(c), to strengthen the effort to combat drug use by persons on supervised release. The majority opinion refers to our duty to give effect to the legislative will. Ante at 882. If that is the majority’s goal, it is highly improbable, to say the least, that Congress intended that statute to curtail the authority of a probation officer to require appropriate drug testing based on the circumstances of the individual defendant on supervised release, which is the authority we identified in Duff. The parenthetical “(as determined *887by the court)” simply required the court to establish a minimum number of drug tests. It did not intend to take authority away from a probation officer or restrict the ability of the court to delegate supervisory authority to the probation officer, who is an employee of the judicial branch and is appointed by the court, see 18 U.S.C. § 3602(a). Duff has not been superseded, and it should control our decision here.

Second, the rule that emerges from the decision in this case makes little sense. At the time of sentencing, the district court is not in a position to determine how many tests may be required for proper supervision of an individual defendant. Nor should the district court be expected to monitor each defendant’s situation and determine the supervision needs during the period of the convicted defendant’s supervised release. That is why the court employs probation officers. Today’s decision simply invites sentencing courts to set a high maximum number of tests — the largest number of tests that might be required or sought by a probation officer — thus effectively delegating to the probation officer exactly the same authority. The majority opinion suggests that this would be “unprincipled,” ante at 884 n. 5, but I think a more apt description would be “prudent.” Why should the district judge expect to know more about the defendant’s needs at the time of sentencing than the probation office will during the course of supervised release, which could begin many years later? In the comparably rare situation that a district court determines a defendant poses no danger of future drug use, the court is expressly authorized to “ameliorate[ ] or suspend[ ]” the drug testing provision “as provided in ... [18 U.S.C. § 3563(a)(4) ].” That has nothing to do with the propriety or probability that district courts will generally order a high maximum number of nontreatment drug tests to satisfy the unnecessary requirement imposed by the majority opinion.

Moreover, this decision creates a false dichotomy between drug testing done while the convicted defendant on supervised release is within a treatment program and drug testing done outside or after the completion of such a program. The testing is exactly the same. The purpose of the testing is exactly the same, and one is no more penological than the other. Simply because a defendant has completed a treatment program does not mean that there is no longer reason to be concerned about drug use. Most controlled substances are addictive, and fighting addiction is a long-term, often life-time, battle. If the risk of being caught by a drug test helps keep a person on supervised release off drugs, we do an enormous disservice by restricting the ability of a probation officer to order such a test. We do an even greater disservice when we limit the probation officer’s ability to order drug testing when the officer has actual reason to suspect that a given defendant has lapsed back into drug use. This new limitation on a probation officer’s ability to require drug testing is surely not what Congress intended when it required courts to include drug testing as an explicit condition of supervised release.

I respectfully dissent.