Clark, Associate Justice,*fn* and Cummings and Pell, Circuit Judges.
This is an appeal from an order revoking probation and imposing a new sentence. Martin was indicted on June 24, 1969, for violating 18 U.S.C. § 1542, in that on or about September 25, 1959, he, "wilfully and knowingly, did make a false statement in an application for a passport with intent to induce and secure for his own use the issuance thereof under the authority of the United States contrary to the laws regulating the issuance of such passports...."*fn1 Specifically it was alleged that Martin signed the application as "Martin Moore," a citizen of the United States, whereas he was really a Jamaican citizen in this country as a permanent resident alien. On trial, Martin was found guilty by a jury. The trial judge, however, granted a motion for a new trial. The case was subsequently reassigned by the Executive Committee of the district court.
On January 13, 1970, Martin's attorney wrote the United States Attorney and informed him that the defendant wished to leave the United States and "at this time he has no intention of returning to the United States to live."
On February 3, 1970, the United States Attorney responded and agreed to dismiss the indictment subject to the following conditions:
"(a) That the defendant depart this country and not return.
"(b) That he be ordered deported from the United States and in lieu thereof be granted voluntary departure."
On February 11, 1970, Martin's counsel responded to the proposal by categorically rejecting the conditions. He pointed out that he had stated that Martin wished to return to Jamaica and had no intention of returning to the United States to live and these are still "to the best of my knowledge, Mr. Martin's intentions. However, he does not intend to turn those contentions into conditions for dismissal of the indictment pending against him."
On February 18, 1970, Martin appeared before the district court and pleaded guilty to the offense charged. The court then said,
"It is my understanding that agreement has been reached between the Government and your counsel that upon the entry of this plea of guilty the Government is willing to accede to the recommendation of your counsel that six months' probation be granted, with a condition of probation that you leave the country within 60 days."*fn2
There is nothing affirmatively to show us that the district court was aware of any of the prior correspondence.
Martin's probation officer had advised Martin to contact the officer with information concerning the date of departure and the name of the airline and Martin was given an eight months' supply of Federal Report Forms to be filled out and returned to the Probation Department.
The Government asserts that the defendant advised the probation officer that he understood all of the instructions and would abide by them. Martin departed for Jamaica on February 28, 1970, but apparently tiring of the thalassic area he returned to the United States early in April 1970. At no time did Martin file any of the monthly probation report forms, even though shortly after arriving in Jamaica he had written the probation officer that he had lost the forms and needed replacements, which were sent to him. In early June of 1970, Martin apparently went to the probation office and informed them of his actions. Subsequently, a bench warrant was issued for his arrest. Martin turned himself in at the probation office explaining that he had not thought he was violating his probation order by returning to the United States prior to the expiration of six months. He admitted failure to file any of the monthly probation report forms.
Martin's motion to vacate the sentence was overruled and in October 1970, the district court ...