Genet v. United States, 9030.
| Decision Date | 05 April 1967 |
| Docket Number | No. 9030.,9030. |
| Citation | 375 F.2d 960 |
| Parties | Max GENET, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joe Cannon, Oklahoma City, Okl., for appellant.
John W. Raley, Jr., Asst. U. S. Atty., (B. Andrew Potter, U. S. Atty., was with him on the brief), for appellee.
Before PICKETT, LEWIS and HICKEY, Circuit Judges.
After entry of plea of guilty to each of four counts charging failure to file income tax returns for the years 1958, 1959, 1960 and 1961, violative of 26 U.S.C. § 7203, the District Court for the Western District of Oklahoma placed appellant upon probation for a period of five years and reserved imposition of sentence pursuant to the authority under 18 U.S.C. § 3651. Such order was entered on December 1, 1965, and was conditioned "that defendant continue to support his children in compliance with divorce court order in Tulsa, Oklahoma; * * *" On January 27, 1966, after a full evidentiary hearing, the trial court revoked probation and imposed a sentence of imprisonment. This appeal followed, appellant asserting that the trial court abused its discretion in ordering revocation of probation and imposing sentence.
The trial court made two specific findings of fact: that appellant had made no payments for the support of his children since December 1, 1965 and that appellant had been financially unable on his own to make the child support payments since December 1, 1965.
The power to revoke probation upon a finding of failure to comply with a condition of probation lies within the judicial discretion of the sentencing judge, but of course cannot be arbitrarily invoked nor clearly abused. Hamilton v. United States, 10 Cir., 219 F.2d 364. The power "implies conscientious judgment, not arbitrary action. * * *" Burns v. United States, 287 U.S. 216, 222-223, 53 S.Ct. 154, 156, 77 L.Ed. 266. Exercise of the power to revoke requires a consideration of both the reasons underlying the original imposition of conditions and the reasons leading to a failure to comply with such conditions by the probationer.
In the case at bar, appellant did not comply with the conditional requirement to support his children because of his financial inability to do so. Under many circumstances, the good faith, or its lack, of the probationer's attempt to comply with the compulsion of the court's order will test the justness of an order of revocation. See United States v. Taylor, 4 Cir., 321 F.2d 339. But under some circumstances the good faith of the probationer need not be controlling and the factual failure of non-compliance may be the prime consideration in...
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