United States v. Lowe, 186

• Decision Date: 07 March 1949
• Docket Number: No. 186,Docket 21245.,186
• Citation: 173 F.2d 346
• Parties: UNITED STATES v. LOWE.
• Court: U.S. Court of Appeals — Second Circuit

173 F.2d 346 (1949)

UNITED STATES v. LOWE.

No. 186, Docket 21245.

United States Court of Appeals Second Circuit.

March 7, 1949.

Richard Anderson Lowe, pro se.

John F. X. McGohey, U. S. Atty., of New York City (Roy M. Cohn, Clarke S. Ryan and Bruno Schachner, Asst. U. S. Attys., all of New York City, of counsel), for United States.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The appellant Lowe was placed on probation for a period of five years by Judge Ben Moore on December 14, 1945, after a verdict of guilty returned by a jury on October 10, 1945 on a four count indictment charging him with impersonating an officer of the United States and thereby obtaining money. On March 6, 1947 he pleaded guilty to a charge specifying nine violations of the probation order before Judge Clancy, who sentenced him to a term of two years on count one, two years on count two, to run consecutively with the sentence on count one, and two years on counts three and four, with the sentence on these counts to run concurrently with the sentence on count two. An appeal from Judge Clancy's judgment was dismissed by this court as frivolous. 2 Cir., 162 F.2d 709. Certiorari was denied by the Supreme Court, 332 U.S. 777, 68 S.Ct. 41, as was a petition for rehearing, 332 U.S. 812, 68 S.Ct. 103. Thereafter, the defendant moved under 28 U.S.C. A. § 2255 to vacate the judgment and obtain a release from further confinement. This motion was denied by Judge Medina on December 3, 1948, and from his order of denial the present appeal was taken. The petition before Judge Medina, which was unverified, attacked the judgment of sentence by Judge Clancy following a plea of guilty to the charges of violation of probation. The appellant made various charges of improprieties on the part of government officials prior to Judge Clancy's sentence for probation violation, to the general effect that he was illegally detained and was sentenced without a proper hearing. None of the improprieties charged would affect the validity of the sentence for violation of probation. A proceeding to revoke probation need not conform to all the rules of a criminal trial so long as the accused is afforded a fair hearing. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266. At the hearing before Judge Clancy the defendant was represented by counsel and, as we said on dismissal of his former appeal, has showed 162 F.2d 710 "nothing which throws the least question upon the regularity of the proceedings in the district court."

In his motion papers before Judge Medina, the defendant made what was apparently a new charge, as follows:

"The defendant now submits, specifically, that the Plea of Guilty, entered before the Court, March 6, 1947, was changed from `Not Guilty' upon advice of counsel, premised entirely upon Counsel's allegation,

"`That he had consulted with the United States Attorney, and that the Court had been advised of the serious illness of the Defendant's Wife, together with the exact precarious family situation of the defendant, that agreements consistent therewith had been concluded, which would assure to the defendant, retention upon probation, by the Court, and the opportunity to go at...