The opinion of the court was delivered by: COOPER
On August 17, 1976, following the defendant's guilty plea to two counts of Failure to File United States Individual Income Tax Returns in violation of 26 U.S.C. § 7203, we imposed a sentence of one (1) year on each of Counts 1 and 2; execution of sentence was suspended and defendant placed on probation for three (3) years, subject to the standing probation order of this Court. A special condition of probation was that defendant pay $ 11,000 in back income taxes at intervals determined by his Probation Officer. Further, that he report to his Probation Officer every sixty (60) days. In light of the facts of the case (see infra ), we emphasized that the probation process must be strict at all times, with quarterly probation reports submitted to the Court unless ordered otherwise.
In open Court on August 16, 1979 (three years to the day after the imposition of sentence), defendant admitted to violating the most serious provision of his probation sentence by associating with known criminals and persons of ill repute. We remanded him for sentence and on September 6, 1979 we revoked probation and imposed a jail term of two years; defendant appealed therefrom; our Circuit Court on February 22, 1980 left our order undisturbed.
Pursuant to Rule 35 of the Federal Rules of Criminal Procedure, defendant now moves for a reduction of the sentence we imposed on September 6, 1979. We recognize the considerable effort and attention devoted by counsel to this application; he has made the most of the little that possibly can be extracted from the total record here involved.
When he first came on for sentence on August 18, 1976, the defendant was 40 years old, unmarried, with a very poor and erratic work record, a history of alcoholism and of severe anti-social activities. The probation officer assigned to the case had submitted an impressive report on the defendant, noting that: " . . . the subject was the product of an intact, closely knit small family unit where there were no serious problems other than occasional financial pressures. Both parents worked to afford their children most of the necessities in life and also saw to it that they received the proper religious and moral insight."
All these assets defendant had discarded and had adopted instead a dissolute life pattern pursuant to which defendant utterly failed to acknowledge social responsibilities or moral considerations of any kind. He had accumulated a criminal record which we were prompted to denounce as "a disgrace." p. 7
Defense counsel on the instant application has himself pointed it out as: " . . . a criminal record of substantial magnitude." (p. 2 Affidavit of Harry C. Batchelder, Jr., verified December 31, 1979 and hereinafter cited as Affidavit). The probation report had revealed and we stated it on the record that he had two children he had abandoned, their whereabouts he claimed were unknown to him. For what it was worth, we emphasized "you have an obligation to the children . . . you owe them (concern)." (10, 11) 1
The probation report also revealed that defendant had been gainfully employed for several months leading up to the date of sentence, in a store situated in Washington, D.C.; that his last arrest (a misdemeanor) had occurred in May, 1973; and that other instances of defendant's good deportment in recent years indicated a turn for the better. The defendant told the court at the sentence hearing of his intention to marry. A woman in the court room, identifying herself as a mother of two children aged 12 and 15, asked permission to speak. She told the court: "He is a changed person. He is in the store from the time the store opens which is ten o'clock in the morning, until nine o'clock at night . . . . I am engaged to him . . . I am willing to marry him." (8, 9) 1
While we entertained some misgivings, we decided that the doing of justice to defendant and community alike strongly indicated an attempt at rehabilitation via two years probation (including the payment of $ 11,000 in back income taxes) with frequent probation progress reports to the Court. Throughout the sentencing, we spoke in the simplest of terms. In order to impress the vast majority of defendants, talking plainly, with colloquial expressions liberally interspersed, is an imperative.
We sternly and firmly warned him of the dire consequences that would follow an infraction of any of the conditions of probation: " . . . if you . . . two-time me . . . the yellowest thing . . . you are going (to jail) because that to me is an unforgivable thing to do . . . . If I get to hear from the probation officer that you are not living up to every condition of probation, if you violate any one of them (you will be sent to jail)." (10, 11) 1 Addressing his attorney (Mr. Herwitz) we emphasized: " . . . make him recognize that this is a judge you can't touch when it comes to two-timing him and make him hear it from you. MR. HERWITZ: I shall, your Honor, and I know just as you said, you have gone out of your way . . . I am sure it isn't without a certain amount of trepidation." (13, 14) 1
Equally emphatically, we made known to the defendant that he would have our support if he behaved creditably: "If you make good, I will back you up . . . the Judge will be your support . . . ." His attorney spoke up, "Your Honor, I will take it upon myself . . . to implement this myself." (12, 15) 1 Finally, we pointed out that the defendant would be watched with care: "that's the reason I am getting those (probation) reports every 60 days . . . . I am giving you a chance and if you don't make good, I am going to hit you . . . good and solid." (17) 1
We appreciate counsel's frankness on the instant motion in referring to that hearing in 1976: "The sentencing minutes indicate a Court that had recognized Poynter's efforts to come up the ladder and the belief, although with some reservation, that Poynter might be turned around. . . . a Court visibly disturbed by Poynter's prior record . . . (The Court) in no uncertain terms, informed Poynter that if he failed, he could expect the worst. . . . warned that when giving a sentence of probation there are dangers given that a defendant must totally reorient his or her moral structure." (3, 4 of his affidavit)
Poynter placed on probation
The key to intelligent sentencing is the court's knowledge of the amount and kind of disciplinary action, in light of the offender's moral standards and educability (capacity and rate of learning), that will be needed to restore him to his place in the community with sound attitudes toward it.
By placing the defendant on probation in 1976, we intended to afford defendant the chance to prove himself, to reach for, and climb up to higher ground. In the past, we have been elated repeatedly by the steps forward taken by legions of probationers given a chance of rehabilitation most of them starting with disadvantages far exceeding those which confronted Poynter.
Frequently we have witnessed the moral rejuvenation of many of them, including the building of a value system, the gradual mastery of shame, false pride, fear, hatred; successful participation in socially rewarding activities; the balm of being free of surveillance. And once in a while, we have been privileged to see the process as a whole, from its incubation period through the stages of growth, of catastrophe, of therapy, of recovery, and of reintegration with the scars, it must be said, plainly visible on the epidermis of both offender and society, but beginning to fade. Repeatedly we have witnessed a defendant on probation erect a platform of self-deceit and on it go down to defeat, and while clinging to it, like the Phoenix, ascend and conquer.
A criminal court judge faces the spectre of a shattered career at a point where the wrong-doer is finally forced to examine himself and to acknowledge that his recipe for meeting life has failed. His predicament, brought on by arrest and subsequent court proceedings, produces severe shock, which may allow, for the first time, the admonitions of others to penetrate and help guide him onto a better track. Like physicians, judges must depend heavily on the recuperative powers of life itself, and trust to a reoriented will to stabilize character and subsequent behavior.
The determined offender against "the peace and dignity of the people" presents a challenge not to be evaded. The right to move safely, unmolested, through the city, to be secure at work and at home, to be protected against frauds and schemers, is the supreme luxury of civilization. For that luxury, the community pays a huge price, and is intolerant of failure or laxity on the part of its agents and instruments. It cannot be patient with or concerned about the welfare of offenders while they threaten its security and comfort. Many such offenders are crafty professionals whose aim is to bleed the community's resources for their own pleasures, at times using the instruments of the law itself to carry out and safeguard their operations and personal safety.
Rehabilitation vis-a-vis probation
The law rightly takes great pains in order that persons should not be convicted of offenses they did not commit, or adjudged culpable in a degree beyond their deserts, or be punished in excess of what sound discretion assigns to a given quantum of offense.
One of the real problems presented to this Court constantly is to be able to recognize the innate potential of individual offenders for moral rehabilitation, and to ascertain the kind and extent of family and community support that is available to them in their efforts to reestablish themselves. There is often little difference in the offense and in the superficial attitudes of persons widely different in their human needs. Though rounded up by the same department store detective for the same offense, the little stenographer excited about giving up her job for marriage and a family, the erratic and superficially charming woman whose act is the culmination of a long and progressive series of impositions and thefts against family, relatives and friends, and the ...