Genet v. United States, 9030.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation375 F.2d 960
Docket NumberNo. 9030.,9030.
PartiesMax GENET, Jr., Appellant, v. UNITED STATES of America, Appellee.
Decision Date05 April 1967

375 F.2d 960 (1967)

Max GENET, Jr., Appellant,
UNITED STATES of America, Appellee.

No. 9030.

United States Court of Appeals Tenth Circuit.

April 5, 1967.

375 F.2d 961

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.

DAVID T. LEWIS, Circuit Judge.

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

375 F.2d 962
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...

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13 cases
  • United States v. Ochs, 77 Cr. 775 (IBC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 7, 1980
    ...den., 396 U.S. 841, 90 S.Ct. 105, 24 L.Ed.2d 92 (1970); Harris v. United States, 402 F.2d 464 (10th Cir. 1968); Genet v. United States, 375 F.2d 960 (10th Cir. 1967); Heidrich v. United States, 373 F.2d 540 (5th Cir.), cert. den., 387 U.S. 943, 87 S.Ct. 2076, 18 L.Ed.2d 1330 (1966); United ......
  • US v. Winkler, Crim. A. No. 87-20049-02-DES.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 2, 1993
    ...takes into consideration a number of factors other than the relative culpability of the defendant. See, e.g., Genet v. United States, 375 F.2d 960, 962 (10th Cir.1967) (sentencing judge has duty to consider both the crime and the person committing the crime). Furthermore, a defendant may no......
  • United States v. Rangel, Crim. No. SA 73 CR 164
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 12, 1973
    ...mentioned the exact amount of money offered Mandujano by the special agent when that agent attempted to buy from Mandujano. 3 375 F.2d at 960. 4 332 F.Supp. at 733 n. 3 (1971). See also United States v. Irwin, 354 F.2d 192, 199 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L......
  • In re Whitney, 7497.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 13, 1970
    ...United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Douglas v. Sigler, 386 F.2d 684, (8th Cir. 1967); Genet v. United States, 375 F.2d 960 (10th Cir. 1967). This, in our view, falls far short of a presumption of innocence in the conventional 4 See United States v. Motlow, supra,......
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