Kaplan v. United States

• Decision Date: 16 July 1956
• Docket Number: No. 15430.,15430.
• Parties: Marc Sol KAPLAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

234 F.2d 345 (1956)

Marc Sol KAPLAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15430.

United States Court of Appeals Eighth Circuit.

June 18, 1956.

Rehearing Denied July 16, 1956.

Herbert M. Rope, Kansas City, Mo. (Melvin Friedman, St. Louis, Mo., was with him on the brief), for appellant.

Murry L. Randall, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with him on the brief), for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

On April 8, 1954, Marc Sol Kaplan, appellant, entered a plea of guilty to each of five counts of an information wherein it was charged that he had sold heroin totaling in amount 703 grains, in violation of 26 U.S.C.A. § 2554(a) (now 26 U.S.C.A. § 4705). Each count of the information carried a penalty of imprisonment of from two to five years, but the district court, because of the circumstances of the case, suspended imposition of sentence and placed appellant on probation for a period of five years.

Approximately seven weeks later appellant was called before a federal grand jury and asked to disclose the source from which he had purchased the heroin. He refused to answer the questions, stating that he feared reprisals against himself and his family from the person from whom he had made the purchases.

Later, on June 3, 1954, appellant, accompanied by counsel, was called before the United States District Court and ordered to appear before the grand jury and answer as directed. Upon returning to the grand jury, appellant again refused to answer, giving the same reason for his refusal.

On the same day appellant, with counsel, was again brought before the court, where permission was obtained to read the transcript of the pertinent portions of grand jury testimony. Appellant was told that fear of reprisal was not a valid reason for refusal to testify and then, after some colloquy, agreed that he would "speak". Later, when the salient questions were asked during the grand jury proceedings, appellant stated he purchased the narcotics from one "Frank", but insisted he did not know the person's last name.

On the day following, the same parties were again before the court, appellant appearing with counsel, and the transcript of the prior day's grand jury interrogation read in open court. It was not claimed at this appearance that the surname of "Frank" was unknown, but appellant merely repeated his prior motive for keeping silent. The court thereupon adjudged him guilty of civil contempt and ordered him confined in jail until the desired information was given.

On June 21, 1954, counsel for the government filed a petition to revoke appellant's probation on the ground that his conduct was inconsistent with the good conduct required by the terms of probation. After hearing and arguments on the matter, appellant's probation was revoked and a sentence of three years on each count of the information given. The sentences were to run consecutively.

Subsequently, on July 15, 1954, the court modified the sentence so that the sentence of imprisonment on Count 5 would run concurrently with the sentence on Count 4, thus reducing the total sentence from 15 to 12 years.

On January 24, 1955, appellant filed a motion in the district court to set aside the order revoking probation and to set aside the sentence, such motion being brought under the provisions of 28 U.S. C.A. § 2255. Appellant's motion was overruled. On April 19, 1955, appellant filed another motion under 28 U.S.C.A. § 2255 to set aside the order denying his former motion on the grounds that the court failed to set forth findings of fact and conclusions of law, that the order was contrary to law and that it constituted an abuse of discretion. On June 27, 1955, the court vacated its prior order and filed findings of fact and conclusions of law and overruled the motion to set aside the order revoking probation and to set aside the sentence. It is from the order of June 27, 1955, that appellant now appeals to this court.

Appellant raises three points, the first two of which are concerned with alleged errors on the part of the trial court in finding him guilty of contempt. Insofar as such two points are concerned, we direct attention to the fact that this is not an appeal from the contempt conviction. Had defendant desired to appeal from that conviction, he could have done so. 28 U.S.C.A. § 2255 may not be used as a substitute for appeal. We said in Shobe v. United States, 8 Cir., 1955, 220 F.2d 928, 929:

"It is only where a sentence is void or otherwise subject to collateral attack that Section 2255 affords a remedy, and a motion under that Section cannot function as an appeal. Taylor v. United States, 4 Cir., 177 F.2d 194; Dennis v. United States, 4 Cir., 177 F.2d 195; United States v. Jonikas, 7 Cir., 197 F.2d 675, 676; United States v. Rutkin, 3 Cir., 212 F.2d 641, 643; Pelley v. United States, 7 Cir., 214 F.2d 597, 598. The questions raised by Shobe\'s motions were questions reviewable only on appeal."

See also Taylor v. United States, 8 Cir., 1956, 229 F.2d 826, 833, and note in 20 A.L.R.2d pages 987-988.

Appellant's third point is:

"The Court erred in revoking probation for the reason that applicant violated no condition of probation imposed upon him when probation was granted, and the conditions thereof were never modified."

This presents the only real issue which can be considered upon this appeal. In placing the appellant on probation in the first instance, the court fixed the usual conditions of probation as follows:

"(a) Refrain from the violation of any state and federal penal laws. (b) Live a clean, honest and temperate life. (c) Keep good company and good hours. (d) Keep away from all undesirable places. (e) Work regularly. When out of work, notify your probation officer at once. (f) Do not leave or remain away from the city or town where you reside without permission of the probation officer. Notify your probation officer at once if you intend to change your address. (g) Contribute regularly to the support of those for whose support you are legally responsible. (h) Follow the probation officer\'s instructions and advice. The Probation Law gives him authority to instruct and advise you regarding your recreational and social activities. (i) Report promptly on the dates set forth. If for any unavoidable reason you are unable to do so, communicate with your probation officer without delay."

The court, in its findings of fact and conclusions of law, stated that its grounds for revocation of probation were "solely on the adjudication of contempt", and then specifically found that the probationer had violated conditions (b), (c) and (d).

We have here, then, the situation of a defendant who, while on probation, was specifically ordered by the court to appear before the grand jury and disclose the source of his heroin purchases and who refused in the presence of the court to follow such orders. Completely regardless of the subsequent contempt proceedings, this was of itself sufficient justification for revoking probation. Here was a specific order of the court to do a certain thing — disclose information needed in a grand jury's investigation of illegal traffic in narcotics. In effect, it could be considered as an additional condition of probation, even though it was not included in the original written conditions. 18 U.S.C.A. § 3651, among other things, provides: "The court may revoke or modify any condition of probation, or may change the period of probation." No claim of constitutional privilege was or could have been maintained. To hold that such a specific refusal to follow the court's order was not a violation of probation could lead to rather bizarre results in that every contingency would need be anticipated and might have the effect of limiting the use of probation. Campbell v. Aderhold, D.C.N.D.Ga., 1929, 36 F.2d 366, 367.

In dealing with the question of the right of a trial court to revoke probation, this court, in Kirsch v....