Appeal from a judgment entered in the Southern District of New York, Murray I. Gurfein, District Judge, after evidentiary hearings, revoking probation and imposing imprisonment.
Medina, Feinberg and Timbers, Circuit Judges. Feinberg, Circuit Judge (dissenting).
On this appeal from a judgment entered May 4, 1973 in the Southern District of New York, Murray I. Gurfein, District Judge, after extensive evidentiary hearings, revoking probation and imposing a two year term of imprisonment to be suspended after four months, the sole issue is whether the district judge abused his discretion. We hold that he did not. We affirm.
Revocation of appellant's probation was a sequel to his conviction on January 14, 1972, after a four day jury trial before Judge Gurfein, of nine counts of mail fraud in connection with his fraudulent purchase of tickets from certain airlines in violation of 18 U.S.C. § 1341 (1970). On March 6, 1972, Judge Gurfein imposed what strikes us as a lenient sentence: two years probation and a $2500 fine to be paid in installments under the supervision of the probation department. In addition to the usual conditions of probation, a special condition was imposed requiring appellant to make full restitution to the defrauded airlines by April 1, 1972.
Shortly after being placed on probation, appellant was charged with violating his probation. On June 20, 1972, the probation office filed a revocation petition charging that appellant had violated the provision that he make restitution. After notice to appellant, Judge Gurfein held an evidentiary hearing on June 26, at the conclusion of which he stated that he would not consider poverty as a ground for revocation; he modified the restitution schedule and required appellant to make payments to the airlines thereafter through the probation department in monthly installments.
On August 16, 1972, the probation office filed a second revocation petition charging that appellant had violated his probation in three respects: he had failed to report to the probation officer on August 15;*fn1 he had failed to make the July restitution payment to TWA which he had been ordered to make; and he had made a first installment payment to Eastern Airlines with a check that had bounced. Beginning September 26, 1972 and extending through January 30, 1973, hearings on this revocation petition were held on six separate days. Appellant was required to produce his books and records. He testified on his own behalf. Testimony was taken from appellant's creditors. His bank records were received in evidence.
On May 4, 1973, Judge Gurfein filed an opinion setting forth findings of fact in support of his conclusion that probation should be revoked. While it is true that the judge did not find in haec verba that appellant was financially able to make the payments to the airlines which he had been ordered to make, the entire tenor of the findings when read in the context of the record as a whole leaves us with the firm conviction that it was appellant's refusal to make the restitution payments to the airlines, although financially able to do so, that lead to revocation of his probation. After all, the restitution payments due were relatively small: $390 to Eastern Airlines and $364.65 to TWA. The judge found, among other things, that appellant's wholly owned company, Worldwide Electric Corporation, owned a truck, although appellant had falsely testified that it did not own an automobile; certainly a truck is an asset of value. Appellant testified that he had been "robbed" on April 5 and 13, 1972, although he did not report such robberies until the day before the first revocation hearing; presumably one does not claim to have been robbed unless property of value is taken, especially when the robberies are offered as an explanation of a loss of assets. There was other evidence of appellant's financial ability to make the restitution payments.
Our careful examination of the record satisfies us that Judge Gurfein's findings are fully supported by the evidence and that they more than adequately warrant his exercise of discretion in revoking probation. The record as a whole clearly establishes that Judge Gurfein intended to, and did, revoke appellant's probation on the ground that he did not fail to make the payments to the airlines because of penury and that he did have the means to pay.
We find no merit in appellant's claims that his probation was revoked on grounds not charged and that the district court did not find that appellant had violated any specific conditions of probation.
We hold that Judge Gurfein acted well within the broad discretion granted to district judges in determining that probation should be revoked.
FEINBERG, Circuit Judge ...