Cite as U.S. v. Lauchli, 427 F.2d 258 (7th Cir. 1970)


           UNITED STATES of America, Plaintiff-Appellee,

                             V.

     Richard Albert LAUCHLI, Jr., Defendant-Appellant.

                         No. 18017.

        United States Court of Appeals, Seventh Circuit.

                        May 6, 1970.

                  As Amended May 20, 1970.

     Terence F. MacCarthy, Chicago, Ill., Edward G. Coleman,
Springfield, Ill., for defendant-appellant.

     Frank J. Violanti, U. S. Atty., Springfield, Ill., for
plaintiff-appellee.

     Before MAJOR and CASTLE, Senior Circuit Judges, and KILEY,
Circuit Judge.

     PER CURIAM.

     Petitioner Lauchli appeals from a district court judgment
revoking his probation.  We affirm.

     Lauchli was sentenced to 2 1/2 years imprisonment upon his
conviction for several violations of the National Firearms Act, 26
U.S.C. section 5801 et seq.  Sentence was suspended for other
violations of the same Act, and he was placed on probation for four
years to begin at the expiration of his sentence.  Lauchli's
probation began March 16, 1969.  He was arrested on April 17, 1969
for similar offenses [footnote 1] and, after a hearing, his
probation was revoked.  This appeal followed.

     At the revocation hearing a government agent testified to his
dealings with Lauchli in March and April, 1969, during which he was
shown submachine guns and silencers by Lauchli in the latter's
home.  He also testified that he purchased a number of these
submachine guns and silencers from Lauchli.  The agent test-fired
two of the silencers.  They worked.   Later he purchased re-
placement barrels from Lauchli for the submachine guns, and test-
fired them.  They also fired properly.

     Lauchli admitted the sales.  He contends here that if he had
complied with the formal firearm law registration and transfer
requirements, the information given would have forced him to
incriminate himself in the revocation hearing in violation of his
Fifth Amendment right; that the weapons purchased from him did not
technically fall within the definitions of the statutes; that what
he sold the agent were not silencers but were lawful sales of
"flash suppressors"; that he "clearly" did not violate the Illinois
act regulating possession of firearms; that various sections of the
relevant federal statutes are unconstitutional in violation of the
Second Amendment right to "keep and bear arms"; that use of an
electronic eavesdropping device in obtaining evidence against him
violated his Fourth Amendment right; and that the court should not
consider testimony taken at the probation revocation hearing since
he was not then represented by counsel.

     The government agent gave direct testimony of his dealings,
observations and purchases with respect to Lauchli's weapons and
silencers.  It is of no relevance to the issue of revocation
whether if Lauchli had complied with the law regarding registration
and transfer of firearms, the information given might have been
used against him.  No self-incriminating evidence was introduced
against him at the revocation hearing in violation of his Fifth
Amendment right.

     The government was not required, in order to sustain the
revocation, to prove beyond a reasonable doubt that Lauchli was
guilty of the offenses for which he, as a probationer, was ar-
rested.  He was it liberty as a matter of grace, and the district
court was empowered with discretion to determine whether, on the
evidence, Lauchli's probation should be revoked.  Burns v. United
States, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266 (1932).

     Lauchli admitted at the hearing that what the agent testified
to was true.  The court need not have decided that the guns were
technically firearms under the statutory definition of firearms, or
the "flash suppressors" were really silencers.  Although the formal
condition of probation was non-violation of "any law," revocation
is justified where Lauchli's conduct, so soon after probation was
granted, was inconsistent with the reformation and rehabilitation
objectives of probation policy.  See Reed v. United States, 181
F.2d 141 (9th Cir.), cert. denied, 340 U.S. 879, 71 S.Ct. 116, 95
L.Ed. 639 (1950); Dillingham v. United States, 76 F.2d 35 (5th Cir.
1935).  There is no abuse of discretion shown on this record.

     We cannot decide in this proceeding the constitutional
validity of the statutes under which Lauchli was originally con-
victed.  The only question for us is whether the district court
abused its discretion in deciding that revocation will serve the
ends of justice and the best interests of both the public and the
defendant.  Burns v. United States, 287 U.S. at 222, 53 S.Ct. 154.

     Furthermore, the issue of whether the government unlawfully
used an eavesdropping device to gather evidence against Lauchli is
beside the point here.  If the device was used, no evidence gath-
ered by its use was introduced at the revocation hearing.

     Finally, we have not considered any transcript of the
revocation proceedings at which Lauchli was not represented by
counsel.  We reject as unfair and ridiculous Lauchli's pro se brief
claim that he was denied competent counsel at the revocation
hearing.  He was quite competently represented by court-appointed
counsel.

     Both Attorney Edward G. Coleman of Springfield, Illinois, who
represented Lauchli in the district court and filed appellant's
brief in this court, and Attorney Terence F. McCarthy of Chicago,
who argued the appeal for Lauchli, have rendered highly
professional and dedicated service as court-appointed counsel in
behalf of Lauchli.  The court expresses its thanks to each of the
attorneys.

                        FOOTNOTES

1.  These included violations of 26 U.S.C. sections 5801 and 5871,
18 U.S.C. sections 1201-02, and Ill. Rev. Stat. ch. 38 section 24-
3.1 (1969).