Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.
The defendant was prosecuted on two counts which charged him with knowingly and willfully failing to make and file income tax returns for 1953 and 1954. See Internal Revenue Code of 1939, § 145(a); Internal Revenue Code of 1954, § 7203, 26 U.S.C.A. § 7203. He was convicted on both counts and now appeals.
The only ground alleged in the appeal is the refusal of the trial judge to grant a continuance when the case was called for trial. It appears that information was filed on March 12, 1957. The defendant was arraigned on May 24, 1957 and came without counsel. He entered a plea of not guilty and was notified that his case would come up for trial on June 17, 1957.It was only on Saturday, June 15, 1957, that he called a lawyer by telephone and made arrangements to meet him at the court house on Monday, June 17th.
The lawyer thus secured, who has been retained as counsel in this appeal, moved for continuance on the ground that he had only been called into the case on Saturday and had had no time to prepare. The judge refused the continuance. There was no reversible error in this.
It is well established that the granting of a continuance is within the discretion of the trial judge and his decision will not be disturbed except for abuse of that discretion. Avery v. State of Alabama, 1940, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377; Boyer v. United States, 5 Cir., 1937, 92 F.2d 857.
There was no abuse here. This defendant had had definite notice of the time of trial from May 17th on. The evidence shows that he had also known for some time that his income tax matters were under investigation and had failed to appear at a conference called by an Internal Revenue official sometime earlier. Nor was he a person of such little experience that he did not know what was happening to him. He stated that he was an owner, buyer and seller of parcels of real estate and that on a number of occasions he had furnished bail for persons accused of crime. The district judge was clearly entitled to conclude that the failure to retain counsel promptly was an endeavor to postpone the day of trial.
Although not mentioned as a ground for appeal, there are other phases of the case which we believe should be commented upon to make sure that this defendant has been treated fairly with regard to his conviction.
After the verdict was returned his counsel moved for a new trial and asked for some time to get the transcript of the case to review the sufficiency of the evidence. The trial judge told him that the case had just been completed and the testimony was fresh in everybody's mind. He thereupon denied the request to postpone the filing of specific reasons for a new trial and overruled the motion. This refusal was clearly within his discretion. Fed.R.Crim.P. 33, 18 U.S.C.A.
The court then passed sentence without receiving a presentence report. In this he did not commit error. While the judge may ask for a presentence report he is not compelled to do so however commendable the practice. Fed.R.Crim.P. 32(c) (1), United States v. Schwenke, 2 Cir., 1955, 221 F.2d 356, United States v. Karavias, 7 Cir., 1948, 170 F.2d 968.
The petitioner appears to suggest that the immediacy of the sentencing deprived him of the opportunity to accumulate and present evidence in mitigation. However, under federal rule 32 (a) sentence is to be imposed without unreasonable delay and we have not been shown how the defendant was prejudiced in any way by the timing of the proceedings. See United States v. Tannuzzo, 2 Cir., 174 F.2d 177, certiorari denied 1949, 338 U.S. 815, 70 S. Ct. 38, 94 L. Ed. 493; Bankey v. Sanford, D.C.N.D.Ga., 74 F.Supp. 756, affirmed 5 Cir., 1947, 165 F.2d 788, certiorari denied 1948, 333 U.S. 847, 68 S. Ct. 649, 92 L. Ed. 1130.
The sentence imposed by the court was a severe one.The defendant was sentenced to a year's imprisonment and $10,000 fine on the first count and a year's imprisonment and $10,000 fine on the second count to run consecutively. However, the execution of imprisonment on the second count was suspended and the defendant placed on probation for five years, with special conditions among which was that fines be paid in full not later than the end of the first year of probation. So long as the sentence imposed by the trial court is within the terms of the relevant statute the exercise of the judgment of the trial judge is not subject to review by a Court of Appeals. United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 604, and cases there cited. While the sentence was severe in this case the court was quite evidently convinced that the violation was flagrant and should be dealt with accordingly. That is a matter solely for the trial judge to determine.
The judgment of the district court will ...