United States of America, Appellee. v. Saul I. Birnbaum, Appellant, 402 F.2d 24 (2d Cir. 1969)

On January 23, 1968, Birnbaum applied to the district court for an order to show cause why a writ of coram nobis should not be granted, to review and correct the sentence so as to place Birnbaum on probation, and, in any event, why, inasmuch as Birnbaum was challenging the legality of Judge Cooper's act, a hearing should not be had at which Judge Cooper would be a summoned witness, to present the relevant facts to the court. This application was heard on January 27 by Judge Inzer Wyatt who promptly denied it after extensive oral argument. This order has been appealed to this court.

The two appeals have been consolidated, several stays of execution have been granted, and appellant has not yet commenced to serve his sentence of imprisonment.

Appellant first contends that he was been serving a suspended sentence and has legally been a probationer since April 1, 1966; therefore Judge Cooper's orders directing that appellant's prison sentence be served constituted an illegal revocation of probation. 18 U.S.C. 3651-3656. Appellant maintains that Judge Cooper's sentencing statements and subsequent actions have shown a judicial intention to invoke the provisions of the Federal Probation Act and to place appellant on a probationary status. Of course Judge Cooper's actions failed to comply with the requirements of the Federal Probation Act, 18 U.S.C. 3651-3656, which appellant admits, but appellant argues that the Federal Probation Act is a remedial statute which must be liberally construed, e.g., Scalia v. United States, 62 F.2d 220, 223 (1 Cir. 1932); Reeves v. United States, 35 F.2d 323, 325 (8 Cir. 1929); Nix v. James, 7 F.2d 590, 592 (9 Cir. 1925), and liberal construction of the Act permits the status of probation to exist under the Act even though the technical requirements that are prerequisites under the statutes authorizing the act of grace are not fulfilled. McHugh v. United States, 230 F.2d 252 (1 Cir.), cert. denied, 351 U.S. 966, 76 S. Ct. 1030, 100 L. Ed. 1486 (1956); Campbell v. Aderhold, 36 F.2d 366 (N.D. Ga. 1929).

This contention must be rejected. Judge Cooper's statements at appellant's sentencing do not reflect any present intention to place the appellant on probation. At most, the statements only contain an intimation that if appellant made an 'impressively convincing showing' of a change in attitude and character before the jury's verdict received the final approval of the appellate courts the sentencing court might then consider suspending the appellant's sentence of imprisonment and might grant probation. The lack of a clear, present intent at the time of sentencing to impose some form of probationary status distinguishes the present case from those cited by appellant. See McHugh v. United States, supra; Campbell v. Aderhold, supra. Both McHugh and Campbell involved situations where the sentencing judge obviously intended to place the convicted person on probation but failed to articulate his intentions unambiguously.

Judge Cooper's and Justice Heller's private conversations at social gatherings do not materially aid appellant's contentions. Even if intended to result in probationing appellant, the conversations could not have had that legal effect. Liberal construction of the Federal Probation Act does not permit a complete disregard of the technical requirements of the Act. The Act expressly contemplates extensive investigation of an accused's background by the probation service of the court before probation may be initially authorized, and close supervision thereafter by a person formally appointed by the court for that purpose, see 18 U.S.C.A 3654, who usually is an officer of the probation service. See 18 U.S.C. 3651-3656; Rule 32, Fed. R. Crim. P. To allow the status of probation to be formulated and administered during purely social gatherings would not only cause a great deal of enforcement uncertainly but would be contrary to the general policies underlying the Act. Furthermore, Justice Heller's private conversations with Judge Cooper only reflect Justice Heller's willingness to aid appellant in achieving the necessary change in his character which might merit a later grant by Judge Cooper of probationary grace. Judge Cooper's replies to Justice Heller's comments only show that he had on objection to Justice Heller's activities on behalf of Birnbaum.

A complete and thorough reading of the record reveals that until the coram nobis hearing before Judge Wyatt neither appellant nor anyone who had been present at the sentencing of Birnbaum believed that Judge Cooper had then indicated that Birnbaum had been granted probation. The fact that certain leaders of the charitable organizations Birnbaum was aiding may have erroneously believed that Birnbaum's sentence had been suspended when the sentence was imposed has little bearing on the meaning of Judge Cooper's sentencing remarks.⁵  It is indeed possible that appellant and his attorneys may have misinterpreted Judge Cooper's language relative to any possible future judicial action, but any such unfortunate misconceptions of appellant and others could not reasonably create in anyone's mind a belief that appellant was serving his sentence pending adjudication of his appeal from his conviction. There just was no language indicating Birnbaum was to enjoy probationary status under the Act, only that execution of the imprisonment sentence was to be stayed pending appeal.

Appellant next contends that if his appeal from his conviction was of no avail Judge Cooper conditionally promised him probationary grace if he 'realigned his sights,' that he relied on that promise, and that the protection of the integrity of the judicial system distates that this promise be fulfilled. A careful reading of Judge Cooper's statement, however, reveals no conditional promise that appellant's imprisonment sentence would be suspended but only a suggestion that probation remained a feasible possibility. After having been convicted by juries at two trials appellant may well have overly reacted to the faint glimmer of hope offered by the judge's statement. But appellant's state of mind is irrelevant; that he may have been misled by his own wishful thinking or by the overly optimistic advice of counsel provides no basis for the relief he seeks. Cf., Sasser v. United States, 352 F.2d 796 (6 Cir. 1965), cert. denied, 385 U.S. 883, 87 S. Ct. 174, 17 L. Ed. 2d 111 (1966).

Even conceding that a vague conditional promise could be extracted from Judge Cooper's statement, Judge Cooper unambiguously reserved the power to reassess the situation and decide whether, after Birnbaum's conviction had become final, probation would be inappropriate in light of all relevant factors, including that of appellant's behavior while his appeal was pending. Probation is not a matter of right, or a contract; it is a matter of grace, e.g., Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932); Fox v. United States, 354 F.2d 752, 754 (10 Cir. 1965); Bryson v. United States, 265 F.2d 9 (9 Cir.), cert. denied, 360 U.S. 919, 79 S. Ct. 1437, 3 L. Ed. 2d 1535 (1959); United States v. Gerson, 192 F. Supp. 864 (E.D. Tenn. 1961), affirmed, 302 F.2d 430 (6 Cir. 1962), and it should only be granted when both the individual's and the public's interests will be best served by the suspension of sentence. See Toyosaburo Korematsu v. United States, 319 U.S. 432, 435, 63 S. Ct. 1124, 87 L. Ed. 1497 (1943); Kirsch v. United States, 173 F.2d 652 (8 Cir. 1949); United States v. Nix, 8 F.2d 759 (S.D. Cal. 1925); United Staes v. Durkin, 63 F. Supp. 570 (N.D. Ill. 1945).

Birnbaum further asserts that fundamental ideas of fairness demand that he be placed on probation because he was misled by Judge Cooper's remarks and actions. But Birnbaum did not lose any basic rights by following the advice of Judge Cooper. He was not induced to plead guilty by the judge's alleged promise of probation. See, e.g., Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Shelton v. United States, 368 U.S. 26, 78 S. Ct. 563, 2 L. Ed. 2d 579 (1958); Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L. Ed. 830 (1941). Birnbaum was convicted by a jury after a full and fair trial. Birnbaum may indeed have devoted much time and effort and have contributed large sums to charities in the hope that these activities might keep him free from confinement. That was a calculated risk that he undertook in an effort to persuade the sentencing judge that he should not suffer confinement, an effort that proved fruitless.

Lastly, appellant contends that the unusual circumstances of this case dictate that this court should either formalize a probationary status for him or order that the court below issue a writ of coram nobis with the resulting evidentiary hearing. Basically, the appellant appears to believe that Judge Cooper abused his discretion by not granting appellant probation after dangling the possibility of probation before him if he 'realigned his sights,' which the judge's statement induced him to do.

We see no abuse of discretion on the part of Judge Cooper or any need for any further investigation in this matter. Judge Cooper appears to have given long and detailed consideration both to the appellant's original one year imprisonment sentence and to appellant's subsequent motion for a reduction and a suspension of that sentence. It appears that in the judge's eyes appellant did not make the 'impressively convincing showing' that the judge felt was necessary before he could grant probation. Also, the judge did not seem to feel that the best interest of the public would be served by granting appellant probation.

The question before us for decision is not whether this court or another sentencing judge might have reacted differently to the request for modification of the sentence. Absent an abuse of discretion, Judge Cooper's determination must stand and cannot be disturbed on appeal. E.g., Heath v. United States, 375 F.2d 521 (8 Cir. 1967); United States v. Piccioli, 352 F.2d 856, 859-860 (2 Cir. 1965); Mount v. United States, 333 F.2d 39, 45 (5 Cir.), cert. denied, 379 U.S. 900, 85 S. Ct. 188, 13 L. Ed. 2d 175 (1964); Pependrea v. United States, 275 F.2d 325, 329-330 (9 Cir. 1960); Roth v. United States, 255 F.2d 440 (2 Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 31, 3 L. Ed. 2d 61 (1958); United States v. Rosenberg, 195 F.2d 583, 603-609 (2 Cir.), cert. denied, 344 U.S. 838, 73 S. Ct. 20, 97 L. Ed. 687 (1952).

Moreover, there being no abuse of discretion which would permit appellate reversal of the sentencing judge's decision to adhere to the unreviewable sentence he had originally imposed, it would also be improper to permit review through the use of a collateral method, such as a writ of coram nobis.

Affirmed.