Opposition Brief — Burns v. United States

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Los Angeles Review, Law Printers, 120 So. Spring St., Los Angeles. TU 1377

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ILE COPY

No. 378

Inthe Supreme Court of the Pnited States

OcroBER TERM, 1932

JIMMIE BURNS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

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Inthe Supreme Court of the Anited States

OcTOBER TERM, 1932

No. 378

JIMMIE BURNS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

No opinion was rendered by the District Court.

The opinion of the Circuit Court of Appeals (R.

73-90) is reported in 59 F. (2d) 721.

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered June 20, 1932. (R. 90-91.) The peti-

tion for certiorari was filed September 19, 1932.

The jurisdiction of this Court is invoked under Sec-

tion 240 (a) of the Judicial Code, as amended by

the Act of February 13, 1925.

(1)

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QUESTION PRESENTED

Whether the District Court erred in revoking

petitioner’s probation and remanding him to the

penitentiary to serve a suspended sentence.

STATUTE INVOLVED

The applicable provisions of the Probation Act

(Act of March 4, 1925, ¢. 521, 43 Stat. 1299; U.S.C,

Title 18, Secs. 724, 725, 727) are set forth in the

appendix to petitioner’s brief and are therefore not

repeated here.

STATEMENT

The petitioner pleaded guilty (R. 17) to all three

counts of a criminal indictment filed in the District

Court for the Southern District of California

(R. 3-8). He was sentenced on the first count to

imprisonment for one year in the Los Angeles

County jail, and on the second count to pay a fine

of $2,000. On the third count he was sentenced to

imprisonment for five years in the penitentiary, but

the judgment provided that (R. 9-10)—

execution of said sentence of imprisonment

on the third count is suspended during such

time as the defendant reports regularly every

three months in writing, beginning with this

date, to the Federal Probation Officer of this

court; during which time he entirely re-

frains from any violation of any law with

the possible exception of parking and traffic

ordinances, and in all respects conduct him-

self as a law-abiding citizen. In case of the

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violation of the terms of probation, the de-

fendant will be brought before the Court and

sentenced. Probation is granted for a

period of five years.

The judgment was entered May 4, 1931, and peti-

tioner was on that day committed to the Los An-

geles County jail to serve the one-year sentence,

(R. 8,12.) On January 21, 1932, he was brought

before the court for a hearing on the question

whether his probation on the third count should be

revoked. The court ordered an hour’s recess to

enable petitioner to procure the services of an at-

torney. The hearing being resumed, counsel for

petitioner stated that he did not know what the

issues involved were and requested a continuance

in order that he might have an opportunity to ‘‘in-

quire into the situation.” (R. 19-21.) The re-

quest was denied, the court saying (R. 21-22);

The newspapers for several days have been

full of accounts reflecting, in a most seri-

ous measure and degree, upon this defend-

ant who pleaded guilty to certain offenses,

was given a jail sentence and also sen-

tenced to a term in the Federal Peniten-

tiary, which was suspended during the pe-

riod of his good behavior, This is an ex-

tremely simple matter that the Court has be-

fore it. The question is whether he has vio-

lated the terms of his probation. The matter

was brought to the attention of the Court by

the United States attorney’s office, where-

upon the Court ordered that the defendant be

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brought before the court. We are here now

to investigate. I don’t feel that it is a matter

in the nature of a trial, and, inasmuch as the

matter has been brewing for several days,

and the defendant himself might have antici-

pated such a proceeding, I see no harm in

going ahead with the proceedings necessary

to determine the question before the Court.

No exception was taken to this ruling of the

court.

The Government called three witnesses. <A. P.

Rumburg, a special agent of the Bureau of Prohi-

bition, testified that, having received information

that petitioner was permitted to leave the county

jail for a full day at a time, he had caused an inves-

tigation to be made of the jail records to ascertain

the dates and length of petitioner’s absences from

the jail. A copy of the jail record thereupon pro-

duced by the witness was admitted in evidence as

an exhibit. (R. 22-23.) It showed that on fifteen

days between May 10 and August 18, inclusive, pe-

titioner was absent from the jail for periods rang-

ing from three hours and fifty-eight minutes to

twelve hours and thirty-six minutes; that during

these absences he was in the custody of one ‘‘ Less-

ner,’’ or one ‘‘Jones’’ (Deputy United States Mar-

shals), and that the absences were authorized by

Judge James, a United States District Judge. (R.

24.) The witness further testified on direct and

cross-examination that at his request one of the

agents had talked to Judge James and had ascer-

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tained that the latter had in May granted authority

for taking petitioner to the dentist ; that the witness

had interviewed Lessner, who exhibited to him an

order authorizing petitioner to be taken to the den-

tist; that the order was a general one, but the wit-

ness could not say whether it was limited to a single

visit or was for general treatment (R. 27-28) ; that

on August 18, 1931, at 5.45 o’clock p. m., the witness

telephoned petitioner’s home and asked for Less-

ner ; that petitioner answered the call and said that

Lessner was there but was in the bathroom and

could not come to the telephone; that the witness,

accompanied by another agent, thereupon pro-

ceeded to petitioner’s home, where they arrived at

6.00 o’clock p. m. and were admitted by petitioner,

who was ‘‘without a coat or hat and had on bedroom

slippers’’; that petitioner told the agents that Less-

ner was in the bathroom and would be out shortly ;

that in about ten minutes Lessner entered, ap-

parently through a back door, with his hat and coat

on, bringing ‘‘a couple of packages of cigarettes”’

(R. 25-26, 29-30) ; that the agents were there until

6.20 o’clock p. m. (R. 25) and left before petitioner

and Lessner (R. 28).

After cross-examination of the witness had pro-

ceeded at some length it was interrupted by the

trial judge, who personally conducted an examina-

tion of the witness. At the conclusion thereof the

judge refused to permit further cross-exmination,

saying ‘‘We are not conducting a trial.”’ An ex-

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ception to this action of the court was noted.

(R. 30.)

R. 8S. Zimmerman, clerk of the court, testified

that in the usual course of procedure the granting

of authority for the release of a prisoner from the

county jail would be noted on his records, but that

his records failed to disclose that any such author-

ity had been granted as to petitioner. (R. 30-31.) ’

Taking the stand in his own behalf petitioner,

upon cross-examination, gave the following testi-

mony (R. 44-45):

Q. By Mr. Repwine. Now, the record

shows on May 30th, you left the jail on May

30th, at 10 o’clock A. M. and did not return

until 9.06 P. M. You were not in his office

all of that time?

A. No, sir; I don’t remember the incident,

but I don’t’suppose I was.

Q. What did you do?

A. Well, I might have had something to

eat.

Q. What else did you do?

A. That is all.

Q. Well, what were you doing until 9.06

P. M. in the evening?

1 Considerable testimony also appears in the record with

reference to the alleged obtaining by petitioner from a fel-

low prisoner of a false statement contradicting a prior

statement that the latter had given in connection with a

certain kidnapping case (R. 32-40), but as this testimony

was not made the basis for revoking probation it is not here

discussed (R. 49).

bea Ne ream, ae ae RE ORE AIRE A” 2s PE OLN LAER, Tat tay erm ier SP ERE RCA ELLY

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A. Well, listening to the radio; something

like that.

Q. Where were you listening to the radio?

A. At my home.

Q. How many times did you go to your

home when you were really supposed to be

going to the dentist ?

A. Well, I really couldn’t tell you; just

quite a few times.

Q. Most of the time?

A. Pretty near.

On redirect examination petitioner stated that

when he was out of the jail he asked to be taken

home to get a change ot clothes; that “‘usually each

time he went to the house he went for 2 change of

linen.’’ (R. 48.)

At the conclusion of petitioner’s testimony his

counsel requested an opportunity to present fur-

ther evidence. The request was denied, the court

saying: “‘I am not prepared to have a hearing of

this case that will run into the proportions of a

criminal trial.” (R. 48-49.) In rendering its

decision, to which an exception was taken, the court

stated, in part (R. 49-50) :

Now, gentlemen, there is enough obviously

before this court to show that the spirit of the

probation was not in any sense complied

with. The idea that one person sentenced to

the county jail should over a period of 3

mouths, a little bit more than 3 months, be

taken out for on 15 different occasions from

10 o’clock in the morning until 9 o’clock at

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night, oftentimes, that of itself is something

that should bring the blush of shame to any-

body entrusted with the execution of the law.

* * * * *

Upon appeal the order of the District Court was

affirmed. (R. 90-91.)

ARGUMENT

I

The petitioner contends that his probation was

revoked ‘‘summarily,’’ and without any showing

that he had violated the order of probation. We

submit that the contention is without merit.

On the first count of the indictment petitioner

was sentenced to imprisonment in the county jail

for one year. On the third count he was sentenced

to imprisonment in the penitentiary for five years,

but execution of the sentence on the latter count

was suspended and he was placed on probation for

five years. One of the conditions of the probation

was that petitioner should “in all respects conduct

himself as a law-abiding citizen.’”’ (R. 9-10.)

Bearing in mind the fact that the first year of the

probationary period was to be spent in jail, we sub-

mit that the petitioner did not conduct himself as

‘“‘a law-abiding citizen’? when the evidence shows

that in utter disregard of the purpose of his com-

mitment and in flagrant abuse of the obvious intent

of a general order permitting him to be taken to

the dentist for treatment, he remained away from

the jail on fifteen occasions during a three months’

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interval for periods ranging from four to twelve

and a half hours, most of which time was spent not

with the dentist but in enjoying the comforts of

his home.

Petitioner contends that the conditions of his pro-

bation were not breached because no law was vio-

lated. In other words, he asserts that the condi-

tion that he should conduct himself as a law-abid-

ing citizen has the same meaning as the preceding

condition in the probation order that the petitioner

should refrain ‘“‘from any violation of any law.”’

As applied to a man who was to spend the first year

of his probationary period in jail, we do not believe

that such a construction of the probationary order

is sound. The requirement that the petitioner

should ‘‘in all respects conduct himself as a law-

abiding citizen’? was essentially one of good con-

duct. Prisoners have little opportunity to violate

criminal laws, and in the light of this fact it seems

clear that the District Judge, as indicated at the

hearing on the revocation of probation (R. 49),

intended by the order of probation that sentence

should be suspended only so long as the petitioner’s

behavior wes good.

To protect the public as well as the convict, much

latitude must necessarily be allowed a District

Judge in administering the Probation Act. We

know of no reported ease in which an order revok-

ing probation has been reversed. If the condition

of probation in question has the broader meaning

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which the District Judge evidently intended it to

have, there was clearly a breach of such condition,

for, as was said by the court below (R. 84), the peti-

tioner ‘‘had taken advantage of a general permit to

carry out his own purposes quite independently of

the basis and theory upon which the order was

given.”’ His conduct was clearly not consistent

with any reasonable conception ot the idea of good

behavior, even for one in jail.

But even if the condition in question be given the

stricter interpretation asserted by petitioner, we

submit that there was a breach of the condition.

Petitioner’s abuse of the limited privilege con-

ferred upon him of going to the dentist for treat-

ment could not have occurred without the con-

nivance of those who were charged with his custody.

These officers could have been punished for con-

tempt of court in disregarding the manifest intent

of the order of commitment. If the petitioner was

not equally guilty of contempt he was clearly a

party to the flouting of the mandate of the commit-

ment by the officers. In United States v. Hoffman,

13 F. (2d) 269, 272, affirmed, 13 F. (2d) 278, 280

(C. C. A. 7th), the court held under similar cir-

cumstances that the prisoner could be charged with

conspiring with his custodians to commit a viola-

tion of Section 268 of the Judicial Code (U.S. C.,

Title 28, Sec. 385), which provides for the punish-

ment of contempts of court. The proof in the in-

stant case shows active cooperation by at least one

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of the petitioner’s custodians in the abuse by peti-

tioner of the limited privilege accorded him to visit

the dentist. (R. 25-26.)

It would thus seem that petitioner was guilty of

a violation of law which constituted a clear breach

either of the condition that he should refrain

‘‘from any violation of any law”’ or of the condition

that he should ‘‘in all respects conduct himself as

a law-abiding citizen.’’ It is not necessary as a

prerequisite to the revocation of probation that the

probationer be convicted of an offense, but only

that the proof shall be such as to satisfy the District

Judge that an offense has been committed. See

Campbell v. Aderhold, 36 F. (2d) 366 (N. D. Ga.).

While the courts below evidently based their de-

cision on the ground that probation may be revoked,

in the exercise of a sound judicial discretion, when-

ever a showing is made that the granting of proba-

tion has failed to accomplish its purpose, a doctrine

which appears not only sound but which is sup-

ported by the decided weight of authority (see R.

86-89), the judgment of the court velow may, we

submit, be supported upon the ground that there

was in the instant case a breach of the conditions

upon which probation was grante*. If this be true,

there is obviously no conflict between the instant

case and that of Hollandsworth v. United States,

34 F. (2d) 423 (C. C. A. 4th), upon which peti-

tioner relies. While in that case the court expressed

the view that probation may be revoked only where

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one of the conditions specified in the order granting

probation has been infringed, it sustained an order

revoking probation on the ground that the condi-

tions of probation had not been met. Although the

opinions in the instant case and in the case cited

seem to contain conflicting views as to the meaning

of the probation laws, there is plainly no conflict

of decisions, since revocation of probation was af-

firmed in both cases.

II

Petitioner also contends that it is essential to a

lawful revocation of probation that the probationer

be given notice in advance of hearing of the specific

charges against him. While this argument finds

support in a statement appearing in the opinion

in the Hollandsworth case, supra, such statement

was obviously dicta, as there was no question of

notice involved in that case. Not only is there

nothing in the Probation Act requiring such notice

but there are provisions in the Act which indicate

that notice is unnecessary. For example, in Sec-

tion 2 of the Act it is provided (Appendix to

Petitioner’s Brief, p. 2) that—

At any time within the probation period

the probation officer may arrest the proba-

tioner without a warrant, or the court may

issue a warrant for his arrest. Thereupon

such probationer shall forthwith be taken

before the court. (Italics ours.)

But in any event we do not believe that the ques-

tion is one which this Court is required to decide.

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The question was originally raised by a motion for

continuance. (R. 20-21.) This motion was denied

(R. 22) but no exception was taken. While this

Court undoubtedly has the power in a criminal

case to disregard the lack of an exception where

manifest injustice would result, this is not such a

case. Petitioner pleaded guilty to the offense as

to which execution of sentence was suspended, and

the criminal trial is over. He is admittedly guilty

of a flagrant abuse of the limited privilege extended

him as a prisoner and deserves no special con-

sideration.

CONCLUSION

The probation was lawfully revoked after a fair

hearing. There is, we submit, no conflict of deci-

sions. The petition should be denied.

Respectfully submitted.

THomas D, THACHER,

Solicitor General.

| G. A. Younaguist,

| Assistant Attorney General.

, | Pav D. Minter,

_ Joun J. Byrne,

W. Marvin Smiru,

Attorneys.

OcroBEr, 1932.

\. S$ GOVERNMENT PRINTING OFFICE: 1932