The opinion of the court was delivered by: BRYAN
The Chief Probation Officer of this court petitions for an extension of the probation term of defendant Rosner 'for 4 years to expire on 4/22/62. To be terminated sooner, if Rosner pays taxes found to be due.'
Defendant pleaded guilty to two indictments charging him with wilfully and knowingly attempting to evade and defeat a large part of the income tax due and owing by him to the United States for the calendar years 1946 and 1947 in violation of Section 145(b) of the Internal Revenue Code, 26 U.S.C. § 145(b) On November 15, 1956 the defendant was sentenced to six months' imprisonment and fined $ 5,000 on the first of these indictments. On the other he received the same sentence but execution of the prison sentence was suspended and he was placed on probation for a period of one year to begin after completion of the prison sentence on the other indictment. It was a condition of probation 'that defendant cooperate with agencies of the government with regard to his income tax liabilities.'
The defendant has served his prison term under the first sentence and has paid the fines imposed on both. The one year period of probation under the second sentence which commenced upon his release from imprisonment will expire on April 22, 1958.
The grounds of the petition for extension of this probation period are 'That Rosner has been negotiating with the Internal Revenue Department to determine the amount of taxes due. That we have been advised by the Internal Revenue Department that negotiations are still under way and that more time is needed by them to determine the amount of taxes owed by Rosner and to evaluate the degree of cooperation.'
The application is opposed by the defendant who asserts that he has met all of the conditions upon which probation was granted, and that he is therefore entitled to be released from supervision when the original term expires.
On the argument of the petition before me both the Government, represented by the United States Attorney and by counsel representing the Regional Counsel of the Bureau of Internal Revenue, and counsel for the defendant, agreed that the facts as stated on the argument were undisputed. There is therefore no necessity for the taking of testimony and the petition will be decided upon the record at the argument.
There is no doubt about my authority to grant this application. Whether or not I should do so is entirely a matter in my discretion.
The statute which authorizes probation, 18 U.S.C. § 3651, provides in part that
'The court may revoke or modify any condition of probation, or may change the period of probation.'
18 U.S.C. § 3653, dealing with procedures in the administration of probation, 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.
'* * * At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised * * * may issue a warrant for his arrest for violation of probation occurring during the probation period. * * *.
'As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of the sentence was ...