415 F2d 1130 United States v. Johnson

415 F.2d 1130

UNITED STATES of America, Plaintiff-Appellee,
Albert JOHNSON, Defendant-Appellant.

No. 23759.

United States Court of Appeals Ninth Circuit.

Aug. 26, 1969, Rehearing Denied Oct. 31, 1969.

Peter Heintz (argued), Sacramento, Cal., for appellant.

William B. Shubb (argued), Special Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and KILKENNY District Judge.1


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This appeal is from an order revoking probation. In 1966 Johnson pleaded guilty to the offense of dispensing narcotic drugs in an unstamped package (26 U.S.C. 4704(a)) and was awarded probation by the same district judge who made the order in question. In 1967 Johnson entered a plea of guilty to second degree burglary in a California state court. This came to the attention of the district judge, who then advised Johnson that he was placed on 'final warning' status. In 1968 Johnson pleaded guilty to traffic violations arising out of an automobile collision. After a series of evidentiary hearings, the District Court, on Nov. 26, 1968, made the order which is now challenged.


Johnson's counsel argues, quite forcefully, that the District Court, having 'forgiven' Johnson for the state burglary offense, revoked the probation upon the basis of minor traffic violations alone and thus so grossly abused its discretion that we should intervene. We cannot accept the argument. In the first place, we do not interpret the 'warning' letter as such total forgiveness of the California crime that the district judge, after having written the letter, was thereafter required to eliminate the offense from his consideration for all future time. Secondly, although the subsequent state law traffic violations, if viewed in isolation, were relatively minor, it is obvious that the District Court considered them to be the 'straw that broke the camel's back.' Probation was originally granted as a matter of grace, and we cannot hold that the court which extended the favor was, in the circumstances, disempowered to revoke it.




Hon. John F. Kilkenny, United States District Judge, District of Oregon, sitting by designation