United States v. Tyrone D. Wilson

OAKES, Circuit Judge

(dissenting):

I dissent. I have searched the record, and in my view it fails to disclose any possible supportable grounds for the finding that Wilson “wilfully violated the terms of his probation.” There was only a cursory attempt below to examine Wilson’s income and no attempt to assess his expenses for any particular month or months. The court’s finding of willful violation was in the face of undisputed testimony that he had been unemployed a considerable period of time, that his house had been robbed twice, that his gross income averaged between $200 and $300 per month, and that he made many payments in accordance with the court’s condition of probation that he pay $15 a week plus $5 in arrears, and indeed that he sometimes sent $30 and $40 when he could afford it. The record indicates that the court’s findings of willfulness was based upon the simple fact that he did not make payments which the only evidence in this record discloses he could not make. The district court’s finding that “at no time did he advise the probation officer that he was unable because of the press of other financial obligations to meet this obligation” was in the face of the probation officer’s direct testimony as follows:

Q. Has he offered any explanation of his inability to make those payments ?
A. Yes, he has.
Q. What have those explanations been, so far as you can recall ?
A. He doesn’t have the money to continue under the order as promulgated by the Court in the Bronx.

Accordingly I would simply vacate the judgment revoking probation, without remand.