# Opposition Brief — Burns v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1932
- **Citation:** 287 U.S. 216

## Text

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

“ones Batis

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)

POMERAT ESA SNLIT: SEI HE EIN UO Ml SCS A ath Ys Sr. tag 2» PAUSE REC aeaeesE
a og SiS RE chee ARIS rere nee

»
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

3

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

RAINS YS BO ERS TID

—

4

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-

SEER PERN MORES RB IS LIMIT OR LORAIN NAR RIE TRITON SIEBER ESTER Ht CHA RON RN aoa tan inc oR Ratton ty é

5

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-

°
Cea Oe Soe SMe RMN ia OI AEE SY ITE SERS RETR
eee FERRITE IOSD SE IEICE BIS SE ONE Se HEL = :

6
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

7

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

— SOP ENT LETS
—— EERE LILLIE YI RE, ENT PLL SOE

8

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’

—

9

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

i LADY FNS OST RPS

a

10

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

Sn ee B LESS ANON TD NERO TRIE PIG THD pA ARCOM NAR A PAHS EGET TRAPS AE A OR

11

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

oo . -_ —_ — A UE Se TSE I OEMS

a

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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.

ALTA LEI Li LOE LEE IEE OE SS IOS ET LAPIS ENE NILE EME NE LOIS ERLE ENT I AB ill

13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0236%3A3. Public record. Not legal advice.