United States v. Banks, 7446.

• Decision Date: 20 October 1952
• Docket Number: No. 7446.,7446.
• Citation: 108 F. Supp. 14
• Parties: UNITED STATES v. BANKS.
• Court: U.S. District Court — District of Minnesota

108 F. Supp. 14

UNITED STATES v. BANKS.

No. 7446.

United States District Court D. Minnesota, Third Division.

October 20, 1952.

C. U. Landrum, Sp. Asst. U. S. Atty., St. Paul, Minn., and Miles W. Lord, Asst. U. S. Atty. for Minnesota, Minneapolis, Minn., for United States.

John W. Graff, Jerome Hoffmann and Richard E. Kyle, St. Paul, Minn., for defendant.

BELL, District Judge.

Thomas W. Banks, the above named defendant, was indicted for income tax evasion for the years 1945, 1946, and 1947 in violation of 26 U.S.C. § 145(b). The total tax evasion was alleged to have amounted to more than $50,000. He was tried before a jury in May, 1952, and found guilty on all three counts. On June 23, 1952, a general sentence of three years in the penitentiary and a fine of $10,000 was imposed.

A motion for a new trial was presented and overruled. An appeal was taken to the United States Court of Appeals for the Eighth Circuit, which was filed on July 9, 1952 and which is still pending.

The case now is before the court on a motion for a modification of the sentence and for suspension of the sentence and the application of probation under the Federal Probation Act, 18 U.S.C. § 3651, which provides:

"Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States, except in the District of Columbia, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best."

The Probation Act conferred on District Courts of the United States the power, when satisfied that the ends of justice and the best interests of the public as well as of the defendant, would be subserved by suspending the imposition or execution of sentence. The chief objective of the act is to allow a period for supervision by an officer of the court to aid in the rehabilitation of a penitent offender and to offer an opportunity for reformation which actual service of the suspended sentence might make less probable. The provisions of the act generally are applied by the courts in dealing with first offenders, those who have made a mistake for the first time but whose character and background indicate a possibility of future good conduct. In dealing with hardened criminals, violators who have acquired a criminal record, persons who violate the law for profit, the smart offenders who are willing to risk detection, the courts usually have denied probation under the act. Obviously Congress did not intend for the Probation Act to be used by the courts to suspend the imposition or execution of sentence and eliminate punishment of persons deliberately engaged in violating the law. Especially is this true where persons repeatedly have been convicted of violations of the law and have shown by their attitude and conduct that the court cannot expect them to benefit by supervision under the act.

The application of probation in a deserving case is a humanitarian act of the court that invites the approbation of society, while its use in an unworthy case breeds contempt for the law. Justice properly may be tempered with leniency if sound judgment is used in selecting the subjects of the court's bounty, but the criminal class must understand that when laws are wilfully and intentionally violated punishment will be certain, fearless and adequate. Enforcement of the law is essential to good government and the most effective way to prevent crime is to punish criminals.

The law imposes no requirement on the court to extend probation. It is a favor bestowed by the court on persons deemed worthy of the court's supervision. Probation cannot be demanded as a right, rather it may be conferred only as a privilege. Flexibility in administration is essential to an extensive degree. Each case must be analyzed to give a careful, comprehensive consideration so as to evaluate the character, qualities and possibilities of each offender, and this requires an exercise of a broad discretion.

The foregoing principles have been sustained by the courts in many decisions showing a remarkable accord in the interpretation and the applicability of the act. United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309; Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; United States v. Johnson, D.C., 56 F.2d 658; United States v. Nix, D.C., 8 F.2d 759; United States v. Durkin, D.C., 63 F. Supp. 570.

Mr. Chief Justice Taft prescribed the scope of the Probation Act in United States v. Murray, supra 275 U.S. 347, 48 S.Ct. 149, as follows:

"The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. Experience had shown that there was a real locus poenitentiae between the conviction and certainty of punishment, on the one hand, and the actual imprisonment and public disgrace of incarceration and evil association, on the other. If the case was a proper one, great good could be done in stopping punishment by putting the new criminal on probation. The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence. * *"

Mr. Chief Justice Black in Roberts v. United States, supra 320 U.S. 264, 64 S.Ct. 117, said:

"In no way does it impair the Act's usefulness as an instrument to accomplish the basic purpose of probation, namely to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity. To accomplish this basic purpose Congress vested wide discretion in the courts. See Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266. Thus Congress conferred upon the courts the power to decide in each case whether to impose a definite term of imprisonment in advance of probation or to defer the imposition of sentence, the alternative to be adopted to depend upon the character and circumstances of the individual offender."

In United States v. Johnson, supra 56 F.2d 659, the court said:

"The probation law is founded upon humanitarian considerations, and is designed to prevent crime and restore to the ranks of upright citizens many, who through ignorance, youth, inexperience, or weakness of will, have been guilty of infractions of the law. From its very nature, however, this law can be easily abused if courts and officials concerned in its administration allow their sympathies alone to dictate their actions. Probation should not be so commonly granted that fear of punishment loses its preventive force. A tendency in this direction has already been observed, and has produced a natural reaction, so that we find that the repeal of this beneficent law is being advocated by students of criminology. If that result is to be averted, firmness and good judgment must not be subordinated to the quality of mercy in its administration. I think the true scope of the law is found in dealing with young and first offenders, where the possibility is plainly indicated that they may, in spite of a single departure from rectitude, be retained in the ranks of their law-abiding fellow citizens. As Judge Bourquin has so well pointed out in United States v. Meagher, D.C., 36 F.2d 824, 825, in behalf of these thoughtless young, probation may serve a useful purpose, but it should not be extended to the mature where the crime is premeditated and where committed for profit. In such cases defendants take the chances, and, when detected and convicted, they should take the consequences. First offender too often means first detected. `To convicts treatment appropriate to their offenses * * * will go far to solve the problem of crime, farther than ought else save inculcation of good morals from youth to age.'

"Probation is intended as a substitute for imprisonment in certain cases to effect a reform and avoid the contamination of time in prison, neither of which would be effective here. It is obvious that to grant probation in this case would be to depart from the purpose of the law generally and of the probation law in particular. * * *"

In United States v. Nix, supra 8 F.2d 760, the court, in commenting on the Probation Act, said:

"In extreme cases, and in cases of more or less minor offenses, probation is being granted under supervision of special volunteer probation officers, appointed for each particular case. However, the placing upon probation generally requires an extensive investigation to be made by competent officers of the government. The court should, through its own official channels, be able to secure detailed written data covering the circumstances of the offenses, the previous record, character, family history, home conditions, mental and physical conditions, habits, associations, and other important facts regarding the accused. In many cases medical certificates will be required. The law clearly contemplates, and the situation necessarily requires, that when probation is granted there must be close supervision of the probationer, and systematic reports submitted to the court.

"No hard and fast rule can be laid down as to the type of offenders who should be considered for probation. I have heretofore in several cases

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