United States v. Ecton

• Decision Date: 17 January 1972
• Docket Number: No. 71-2107.,71-2107.
• Citation: 454 F.2d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian Garr ECTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.2d 464 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Adrian Garr ECTON, Defendant-Appellant.

No. 71-2107.

United States Court of Appeals, Ninth Circuit.

January 17, 1972.

David Bettencourt (argued), Deputy Public Defender, Brook Hart, Public Defender, Honolulu, Hawaii, for defendant-appellant.

Michael R. Sherwood, Asst. U. S. Atty. (argued), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Before HUFSTEDLER and KILKENNY, Circuit Judges, and SMITH,^* District Judge.

RUSSELL E. SMITH, District Judge.

This is an appeal from an order revoking probation.

Appellant was charged in a two-count indictment with conspiracy to rob and robbing a federally insured bank. Both counts related to the Security American Bank, Waikiki Branch, and the date October 19, 1970. Appellant pleaded guilty to count one, and count two was dismissed pursuant to an agreement which had been reached by counsel. Appellant was fined $500.00, sentenced to two years' imprisonment, and placed on probation for five years on the condition that he serve five months in a jail-type institution.

Prior to sentence, appellant was asked by a probation officer whether he had been involved in a robbery of another bank at another time, i. e., the Hawaii National Bank, Waikiki Branch, on September 25, 1970. Appellant, knowing that the interview was for the purpose of a presentence investigation report the contents of which would be given to the judge, denied any connection with the prior robbery.

The presentence investigation report advised the court that the United States attorney had information from two individuals (unnamed in the report) that appellant had participated in the September 25th robbery. The presentence report further advised the court that defendant, after being confronted with the United States attorney's allegations of his participation in the other robbery, denied such participation.

At the time of the sentencing hearing appellant's attorney commented on the presentence investigation report as follows:

. . . it refers to a separate crime that the defendant has not been charged with—the bank robbery that occurred on the 25th of September, and I would like to state for the record that Mr. Sherwood was also present at the time—that when we had this line-up involved in this case we also had the witnesses from the other bank robbery, and I think it should be added to this record that one of them stated positively that the defendant was not the man involved in the other bank robbery.

The court was not advised that two participants in the other robbery had implicated the appellant.

At hearing on the petition to revoke probation McCormack, one of the participants in the September 25th robbery, testified that appellant had in fact been one of the robbers.

Appellant now contends that since the court had the same information at the time of sentencing as it did at the time of revocation it was an abuse of discretion to revoke probation. There is no doubt but that the United States attorney's office and the probation department knew at the time of sentencing everything they knew at the time of revocation. The evidence did not, however, appear in the same light to the court as it did to the United States attorney or the probation officer. We think, in view of the statements made by appellant's attorney during the sentencing hearing, which seemed to indicate that the other crime reference in the presentence report was based on inconclusive...