APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 77-00314)
Before Adams and Sloviter, Circuit Judges, and Knox, District Judge.*fn*
This is an appeal from an order of the district court which revoked appellant's probation for violation of one of the probation conditions. Appellant was sentenced to imprisonment for a term of one year. Appellant claims that the special probation condition requiring that he participate in a program of psychological counseling was unconstitutional.
Appellant, Timothy Walter Stine, was charged with the illegal receipt of a firearm in violation of 18 U.S.C. § 922(h)(1) (1976) (unlawful for convicted felon to receive firearm transported in interstate commerce). During the course of the jury trial on the federal firearm charge, Stine dismissed his retained attorney and elected to proceed pro se. He was found guilty on April 17, 1979 and his pro se motions for judgment of acquittal or new trial were denied by the court. On June 25, 1979 Stine was sentenced to three years' imprisonment; execution of the sentence was suspended and he was placed on probation for five years. Following filing of a timely notice of appeal, the appeal was withdrawn on Stine's motion.
Stine commenced his period of probation on June 25. One of the conditions of his probation stated that:
Defendant shall be required to 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.
The court also directed the Probation Office to submit written reports every 90 days concerning Stine's progress in participating in the counseling program.
On October 16, 1979 the Probation Office filed a petition for revocation of probation, alleging that Stine had not complied with the psychological counseling condition. At a hearing on this petition on October 30, 1979, Probation Officer Richard Gochnaur testified without contradiction that Stine had attended a counseling session on July 23, 1979, but had failed to attend subsequently scheduled sessions on July 30 and August 6. On August 9, Stine advised Gochnaur that he would not comply with the counseling requirement, and throughout September he refused to attend psychiatric evaluation sessions which he had previously agreed to attend. Stine stated that he would attend a final session at the Mental Health Treatment Center of the Reading Hospital. Gochnaur testified that Stine had not violated any other condition of his probation and had never been committed to a mental hospital.
At the conclusion of the October 30, 1979 hearing, the court continued the matter of probation violation and gave Stine six weeks to comply fully with the original requirement of counseling. On November 1, 1979, Stine met again with his probation officer and told him he would not cooperate in any testing or evaluation but agreed to one meeting with a doctor at the Mental Health Treatment Center. In response to Stine's suggestion that the counseling condition might be unconstitutional, the officer advised Stine to comply until the condition was adjudicated unconstitutional. On seven subsequent meetings with Gochnaur in November and December, Stine persisted in his position that he needed no psychological counseling, but refused to undergo preliminary testing. He acknowledged that he was in violation of the condition and was informed that this might result in an order of incarceration. Stine also refused to cooperate with Gochnaur's suggestion that Stine arrange for an evaluation by a doctor of his own choice. Thereafter, the Probation Office petitioned for a further hearing on violation of probation.
At a hearing on February 8, 1980, Gochnaur testified that Stine was married, had a child, was employed and had never been evaluated by a physician as being a danger to himself or the community. Stine admitted that he was in violation of the condition. On February 8, 1980 the district court revoked Stine's probation and ordered him incarcerated for a period of one year. In Findings of Fact and Conclusions of Law entered February 13, 1980, the district court held that Stine violated the conditions of his probation. The court did not address Stine's constitutional challenge to the original imposition of a counseling requirement. Instead the court stated that its imposition of the counseling requirement was founded on, inter alia, reports from the Probation Office and the court's own observation of Stine's behavior during his two trials*fn1 and in the course of in chambers conferences. The court later amended its Findings of Fact and Conclusions of Law to include the following specific indications of Stine's "aberrant behavior":
A. Stine appeared for his second trial wearing a T-shirt upon which was inscribed in large letters "My case is a cover up."
B. Stine adamantly refused to remove the T-shirt, and finally agreed only to wear it inside out so ...