The opinion of the court was delivered by: KAUFMAN
The defendant pleaded guilty to two separate informations charging him with wilful failure to make income tax returns. The imposition of sentence was suspended on February 3, 1953, the defendant was placed on probation for three years subject to the standing order of this Court and to the condition that he pay a fine of $ 1,000 on each information and make honest efforts to pay in full the amounts to be assessed against him by the Bureau of Internal Revenue.
On February 3, 1956, I was advised by the Probation Office that the defendant had failed to comply with the last condition of his probation. While the failure to comply with conditions of probation may in certain situations warrant the revocation of probation and the imposition of a sentence of imprisonment, 18 U.S.C. § 3653, I chose rather, in the exercise of the discretionary powers given me by 18 U.S.C. § 3651, to extend the defendant's period of probation for two more years. My opinion is reported in 137 F.Supp. 553, and my decision was affirmed per curiam by the Second Circuit Court of Appeals, 235 F.2d 46.
On June 14, 1956, the defendant complied with the condition of his probation to make full payment of his tax liability to the Internal Revenue Bureau. On the basis of this payment the defendant now seeks an order terminating his probation, and his motion is opposed by the Probation Office, which is represented here by the United States Attorney.
The authority for discharging the probationer, as that for extending his probationary period, is statutory. The statute reads in part:
'The court may revoke or modify any condition of probation, or may change the period of probation.' 18 U.S.C. § 3651.
18 U.S.C. § 3653 reads in part:
'When directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.'
The question of what criteria should guide the judge in the exercise of his discretion in such matters was answered by Chief Justice Hughes in Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 156, 77 L. Ed. 266, wherein he stated:
'No criteria for modification or revocation are suggested which are in addition to, or different from, those which pertain to the original grant. The question in both cases is whether the court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant. The only limitation, and this applies to both the grant and any modification of it, is that the total period of probation shall not exceed five years.'
While the fact that the defendant has finally complied with the express condition of his probation is in his favor, it is certainly not determinative by itself of the present motion. Although probation was continued because of defendant's failure to pay his tax liability, the period of extension was not made conditional on the time it would take defendant to make payment.
It is noteworthy that at the time of the probation extension, I did not fix the extension for such period only as it would take the defendant to pay his tax liability. Indeed, counsel for the defendant pleaded with the Court to extend the period of probation for only one year, but this Court nevertheless saw fit to fix the extension of probation for a period of two years, which would be the maximum period of probation permitted under the statute.
The additional period of probation was fixed at two years and was imposed on Squillante because his failure to comply with the conditions of his original probation indicated that he was not yet ready to be totally free of supervision. Indeed, at the hearing on February 3, 1956, I stated:
'I may very well revoke this probation because I think there has been too much horseplay entirely on this thing. I do not think that he has complied with what I directed that he comply with, nor has he shown an honest intention to pay this sum of money. I think if he had actually intended to pay it, there would be no objection here today to the extension of probation. Indeed, there would be a consent to it.'
Normally, I might be inclined to view defendant's payment of his tax liability as indicative of reformation and possibly entitling him to a termination of probation. The information submitted to me by the Probation Office indicates, however, that his activities are of a suspicious character and certainly of a quality that would ...