Bennett v. United States

• Decision Date: 07 January 1947
• Docket Number: No. 13321.,13321.
• Citation: 158 F.2d 412
• Parties: BENNETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F.2d 412 (1946)

BENNETT v. UNITED STATES.

No. 13321.

Circuit Court of Appeals, Eighth Circuit.

December 16, 1946.

Rehearing Denied January 7, 1947.

Submitted on brief of appellant, pro se.

Sam. O. Hargus, Asst. U. S. Atty. of Kansas City, Mo. (Sam M. Wear, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

This is an appeal by Commodore E. Bennett, M.D., from an order denying a motion to set aside a judgment and sentence which revoked probation previously granted to appellant and imposed five years imprisonment in an institution of the special type to be designated by the Attorney General.

The appellant is a physician and surgeon and had for many years prior to 1942 been a drug addict. On May 19, 1942, he was arraigned under an indictment containing five counts, each charging him with obtaining morphine sulphate by improper use of an order form issued by the Secretary of the Treasury of the United States for purposes other than use, sale or distribution by appellant in the legitimate practice of his profession as a physician. See 26 U.S.C.A. Int. Rev. Code, § 2554(g). Appellant appeared in person and by counsel, entered a plea of nolo contendere and was found guilty and placed on probation for a period of five years under the usual probation conditions and the further condition that he voluntarily submit himself to the United States Public Health Service Hospital at Fort Worth, Texas, to be confined until pronounced cured of his addiction or otherwise discharged by law. He entered the institution and was discharged therefrom on October 8, 1942. Appellant then returned to Springfield, Missouri, and resumed the practice of medicine.

On December 5, 1942, appellant's wife instituted guardianship proceedings in the probate court of Greene County, Missouri. On December 12, 1942, the probate court entered an order reciting that appellant had on that day been adjudged incompetent by reason of being a drug addict, and appointing appellant's wife as guardian of his person and estate.

On January 25, 1944, the United States Probation Officer for the Western District of Missouri filed a motion for revocation of appellant's probation. The officer, accompanied by appellant, appeared in court and an informal hearing was had. The court found that appellant had violated the terms of probation and indicated that the order of probation should be revoked. Appellant was allowed several days to take care of his personal affairs, but on January 26, 1944, the court was informed that appellant had taken large doses of morphine and was causing disturbances, and thereupon ordered the marshal to take appellant into custody. It appears that appellant was immediately brought before the court and was sentenced on that date. Apparently there was no further hearing on January 26, but it is clear that the revocation of probation and the judgment of commitment were based on the hearing of January 25.

Appellant filed a motion to set aside the judgment and sentence, and on October 1, 1945, following a hearing participated in by appellant and his counsel, the court entered the order from which this appeal is taken.

The appellant contends that he was improperly denied counsel during the January 1944 proceedings. The orders revoking probation and sentencing appellant recite that he was represented by counsel but it is admitted by the government that the recitations are erroneous and that appellant presented his own case without assistance of counsel. The proceedings in January, 1944, were not reported and the facts must be gleaned as best they may from the testimony of witnesses at the hearing of October 1, 1945, and statements of the District Judge at that time, reflecting his recollection of the facts.

The Assistant United States Attorney who had charge of the case at the time probation was revoked testified that he informed the court on January 25, 1944, that appellant had been represented by a Mr. Brown at the original trial, that the court then inquired of appellant whether he desired an attorney to represent him and that appellant stated that he did not, and proceeded to review the facts himself. This witness further testified that appellant appeared to be normal and capable of making a clear presentation of the facts and of understanding what was going on.

The probation officer who had moved for revocation of probation in January, 1944, testified that appellant made no request for counsel, and that he appeared to be a man of normal mind and in possession of his faculties. This officer testified that, at the hearing, he informed the court that appellant had reverted to the use of morphine in violation of the terms of his probation and that appellant made a somewhat detailed statement in his own behalf, admitting the accusation and stating facts in attempted justification of his narcotic addiction.

The deputy United States Marshal who was present at the revocation proceeding testified that appellant appeared to be normal and presented his case in an intelligent manner.

The statute under which probation was revoked, 18 U.S.C.A. § 725, provides, in part: "At any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest, which warrant may be executed by either the probation officer or the United States marshal of either the district in which the probationer was put upon probation or of any district in which the probationer shall be found and, if the probationer shall be so arrested in a district other than that in which he has been put upon probation, any of said officers may return probationer to the district out of which such warrant shall have been issued. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."

Under the statute a probationer must be accorded a fair hearing before the court on the charge that he has violated the terms of his probation. Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; United States v. Van Riper, 2 Cir., 99 F.2d 816. At such a hearing the District court has a broad discretion both as to procedure and ultimate disposition of the case. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266. See also, United States v. Moore, 2 Cir., 101 F.2d 56; Moss v. United States, 4 Cir., 72 F.2d 30; Whitehead v. United States, 6 Cir., 155 F.2d 460. As stated in the Burns Case, supra, (287 U.S. loc. cit. 222, 223, 53 S.Ct. 156, 77 L.Ed. 266):

"The question, then, in the case of the revocation of probation, is not one of formal procedure either with respect to notice or specification of charges or a trial upon charges. The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. The Styria, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027. It takes account of the law and the particular circumstances of the case and is `directed by the reason and conscience of the judge to a just result.' Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520. While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.

* * * * * *

"There is, properly speaking, no question here of notice. Defendant was brought before the court and questioned. Defendant was not only heard but gave his testimony. The inquiry related to his own conduct in connection with his leaving the jail, and the court could properly restrict the examination to what was pertinent to that conduct and could refuse to extend the inquiry to embrace other matters. The hearing was summary, but it cannot be said that it was improper or inadequate, in view of the nature of the proceeding and of the particular point upon which the court rested its decision. The court revoked the probation upon defendant's admissions of his dereliction, and it does not appear that there was an abuse of discretion."

The right of a probationer to a hearing on a motion for revocation of probation stems not from the constitution but from the terms of the probation statute. Escoe v. Zerbst, supra. Congress having exercised its right to grant the privilege of probation and having established the probation system had the corresponding right and duty to prescribe the procedure to be followed in administering the system.

In the Escoe case it appeared that the District court had revoked suspension of sentence on conditions of probation and committed petitioner without according him a hearing of any kind. The Supreme Court, in holding the attempted revocation to be invalid for denial of the statutory right to...