APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00314)
Before Aldisert, Van Dusen and Garth, Circuit Judges.
This case, now before us for the second time, requires us to decide whether the requirement of psychological counseling as a condition of probation is an unconstitutional infringement on the appellant's rights of privacy and mentation, and if not, whether it represents an abuse of the district court's discretion. We did not reach these questions in the previous appeal because they were raised only in defense to appellant's failure to comply with the condition, not in direct challenge to its imposition. Appellant subsequently presented his argument to the district court in a motion for correction of illegal sentence or in the alternative for reduction of sentence. The district court denied the motion, and we affirm.
We will briefly outline and update the facts, which are more fully described in our prior opinion. United States v. Stine, 646 F.2d 839 (3d Cir. 1981), and in the district court opinion accompanying the judgment now on appeal, 521 F. Supp. 808 (E.D.Pa.1981). On April 17, 1979, appellant Timothy Walter Stine was found guilty of illegally receiving a firearm, in violation of 18 U.S.C. § 922(h)(1).*fn1 The district court sentenced Stine to three years of imprisonment but suspended the sentence and placed him on five years of probation. A condition of probation was that Stine
participate on a satisfactory basis within the sole discretion of the U.S. Probation Office in a program of psychological counselling, the nature and length of such program to be determined within the sole discretion of the U.S. Probation Office and for a minimum period of ONE (1) YEAR; any lack of cooperation or inability to participate successfully in such program as determined within the sole discretion of the U.S. Probation Office shall be deemed a violation of probation.
Although Stine complied with other conditions of his probation, he cooperated only briefly with the counseling program and then refused to participate further. After the probation office petitioned for revocation of probation, the district court allowed Stine an additional six weeks in which to comply with the condition. Stine steadfastly refused to cooperate, however, and on February 8, 1980, the district court, relying on probation office reports, Stine's criminal record, and its own observations of Stine's "aberrant behavior," revoked his probation and ordered him incarcerated for one year. Stine appealed, complaining that the mandatory psychological counseling interfered with his constitutional right of mentation and privacy. We affirmed the district court's order without determining the merits of Stine's objections because he had chosen to disobey the district court's order rather than to challenge its constitutionality in the course of proceedings in which he was already involved. 646 F.2d at 844-47.
Stine then filed a motion in the district court under Fed.R.Crim.P. 35(a) to correct an illegal sentence or in the alternative under Rule 35(b) to reduce the sentence. The district court examined Stine's contentions that the counseling violated his rights of mentation and privacy, but adhered to its earlier conclusion that the condition was constitutionally valid and reasonably related to the purposes of probation:
What is required here is not solely consideration of the privacy right of an incarcerated individual to refuse treatment, but rather a balancing of defendant's constitutional rights with society's right to be protected from further criminal acts by a convicted felon who remains free.... In light of defendant's repeated firearms violations and other criminal acts, it is clear that society requires protection from him. This could be accomplished by either incarcerating defendant or rehabilitating him. As discussed above, I concluded that psychological counseling could achieve rehabilitation, by far the less restrictive alternative. I thus struck the proper balance between defendant's right to privacy and society's right to be safe from a convicted felon. Thus it is clear that the counseling requirement of defendant's probation is reasonably based upon numerous findings in the record and bears a reasonable relationship to the purposes of the Probation Act. Consequently it is not unconstitutional, and is not an illegal sentence.
521 F. Supp. at 811 (citations omitted). The district court also held that reduction of sentence would be inappropriate in view of Stine's "arbitrary, stubborn defiance of the orders of this court and the efforts of the Probation Department, which represented every possible accommodation to defendant's rights and needs." Id. at 812.
On appeal, Stine renews his argument that imposition of involuntary psychological counseling violates his constitutional right to privacy. He further contends that there was no factual basis for imposing or maintaining the counseling condition, that the district court failed to consider alternatives to the sentence of incarceration imposed for Stine's violation of his probation, and that the district court's refusal to reduce that sentence rested on a clearly erroneous factual basis. The first contention is a matter of choice and application of legal precepts; this court's review of the district court's judgment is plenary. The remaining contentions go to the discretion of the trial court; our review is limited to determining whether the lower court abused its discretion.
Stine's primary argument is that the district court's imposition of mandatory psychological counseling is constitutionally invalid. We discussed many of the legal and social implications of this argument in our previous opinion, see 646 ...