DocketNumber: 858, Docket 75-1428
Judges: Lumbard, Feinberg, Timbers
Filed Date: 6/21/1976
Status: Precedential
Modified Date: 10/19/2024
Vito M. Pastore appeals from a judgment of conviction, after a trial before a jury and Judge Lloyd F. MacMahon
I
Since appellant does not argue that the evidence was insufficient, our statement of facts may be brief. From the evidence before it, the jury could properly have found the following facts. Pastore, an attorney, represented the Town of Fleming, New York, in 1970-71, in connection with the installation of a sewer system. Appellant contacted Frank Cedrone, a pipeline contractor, to interest him in the job, telling him that the low bid initially received was about $2 million and inquiring whether the job could be done for under fUA million. Cedrone in turn brought in Kenneth Marshall, a land developer, who ultimately placed a successful bid of between $1.4 and $1.5 million. Shortly thereafter, the name of Marshall’s business was changed to Ron-Ore Soil Systems, and the business was later incorporated under the name of Ron-Ore Soil Systems, Ltd. (“Ron-Ore”). At first, Cedrone was project manager for
The Government’s theory was that in 1971 the proceeds of a number of checks, drawn upon Ron-Ore or purchased by it,
The judge sentenced appellant, under 18 U.S.C. § 3651, to two years’ imprisonment, six months of which were to be served in a jail-type institution. The judge suspended execution of the remaining 18 months of the sentence and placed Pastore on probation for that period with the special condition that he “resign from the Bar.” On appeal, Pastore attacks this special condition of the sentence.
II
We consider first the various arguments addressed to the judgment of conviction. The most troublesome of these concerns the Government’s use of handwriting exemplars by Cedrone and Galoni, who were prosecution witnesses.
Appellant argues that use of the exemplars was improper under United States v. Lam Muk Chiu, 522 F.2d 330 (2d Cir. 1975). In that case, the Government had introduced into evidence ten letters addressed to a confidential informant and bearing a signature in the name of defendant. On the theory that the letters were authenticated by content, they were received without any direct proof of authentication by the testimony of a handwriting expert. As part of his defense at trial, Lam Muk Chiu proffered three samples of his handwriting, which he had prepared after his arraign
Unquestionably, a defendant has a strong motive to alter his writing so as to render it dissimilar to an incriminating document alleged by the prosecution to be in his hand. Accordingly, any handwriting sample prepared for the specific purpose of showing dissimilarity of handwriting is inherently suspect and should not be admitted into evidence.
Id. at 332.
Despite this strong and broad language, we do not believe that our prior decision requires reversal here. Lam Muk Chiu did not adopt a rigid rule excluding all exemplars prepared to show the dissimilarity of the writer’s own handwriting to that in another document. The decision there affirmed the ruling of a trial judge in excluding such exemplars. Such a holding does not foreclose a trial judge’s discretion to admit similar exemplars into evidence, if the judge believes there are sufficient indicia of reliability. Indeed, the opinion in Lam Muk Chiu emphasized such indicia in distinguishing a case relied on by appellant there. Id. at 332. See III Wigmore, Evidence § 697 (Chadbourn rev. 1970) (“the matter should be left to the trial court’s discretion”). It is also significant that Lam Muk Chiu was a defendant with a powerful reason to distort the specimens of his handwriting and cast doubt on damaging evidence against him. In contrast, Cedrone and Galoni were witnesses and not on trial themselves. It is true that at least Ce-drone — and possibly Galoni — had a motive to falsify
The remaining attacks on the conviction require less discussion. Appellant argues that the district judge erred in allowing Cedrone to testify that Pastore received Ron-Ore checks, and that the “Ron” of Ron-Ore identified Cedrone and the “Ore” identified Pastore. The latter was not objectionable; the basis of Cedrone’s knowledge was made quite clear before he left the stand. As to the testimony regarding the checks, Cedrone’s direct testimony was sufficiently based on personal knowledge, contrary to appellant’s claim. Perhaps Cedrone’s testimony may have been unduly general, but defense counsel had ample opportunity in cross-examination to elicit the basis of Cedrone’s knowledge. Pastore also contends that the prosecutor’s summation unfairly inflamed the jury. While there were a few phrases that should have been omitted,
We come now to the most difficult issue before us. As already indicated, the judge sentenced Pastore to two years imprisonment, but placed him on probation for the last 18 months on the condition he resign as a member of the bar. Appellant claims that this condition exceeded the judge’s power because 18 U.S.C. § 3651, the general probation statute, does not authorize forfeiture of a professional license and certainly not a forfeiture that will affect appellant beyond the possible period of probation; because 26 U.S.C. § 7206, the statute defendant violated, does not authorize such a sanction; and because New York State has exclusive jurisdiction over admission to, and removal from, the bar. Appellant also argues that the special condition denied him due process by depriving him of his license to practice law without notice or an appropriate hearing. Appellee responds that the condition was within the court’s broad discretion and that, in view of section 90(4) of the New York State Judiciary Law,
The legality of conditions of probation has received surprisingly little attention either from appellate courts or from commentators. This may be due to the general unwillingness of appellate courts until recently to entertain challenges to the validity of such conditions, either because of notions of unreviewability or because of perceived procedural obstacles. See Note, Judicial Review of Probation Challenges, 67 Colum.L.Rev. 181, 188-96 (1967). Perhaps the relative paucity of appellate decisions is due to the restraint of trial judges in imposing probation conditions, although there have been a sufficient number of unusual sentences to illustrate the potential dimensions of the problem. E. g., trial judges have conditioned probation, at one extreme, on sterilization
The propriety of conditions on probation raises difficult issues because the relevant standards, as with sentencing generally, are either vague or non-existent. See, M. Frankel, Criminal Sentences, Law Without Order 3-11. The sentence in this case was imposed under 18 U.S.C. § 3651, which provides in part that upon entering a judgment of conviction, the court
when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best. .
While on probation and among the conditions thereof, the defendant—
May be required to pay a fine in one or several sums; and
May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and
May be required to provide for the support of any persons, for whose support he is legally responsible.
The court may require a person as conditions of probation to reside in or participate in the program of a residential community treatment center, or both, for all or part of the period of probation
The court may require a person who is an addict within the meaning of section 4251(a) of this title, or a drug dependent person within the meaning of section 2(q) of the Public Health Service Act, as amended (42 U.S.C. § 201), as a condition of probation, to participate in the community supervision programs authorized by section 4255 of this title for all or part of the period of probation . . . . [Emphasis added.]
It would be hard to use more general words than “upon such terms and conditions as the court deems best.” And neither the legislative history of section 3651 nor decisions of the courts of appeals offer much more precise a standard. The Ninth Circuit has stated:
[J]udicial discretion in probation matters is limited only by the requirement that the terms and conditions thereof bear “a reasonable relationship to the treatment of the accused and the protection of the public.”
United States v. Nu-Triumph, Inc., 500 F.2d 594, 596 (1974). Similarly, in Porth v. Templar, supra at note 15, the Tenth Circuit stated:
The sentencing judge has a broad power to impose conditions designed to serve the accused and the community. The only limitation is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. The object, of course, is to pro*681 duee a law abiding citizen and at the same time to protect the public against continued criminal or antisocial behavior.
453 F.2d at 333. In the District of Columbia Circuit, the sentencing court’s authority has also been described in expansive but vague terms:
The power to impose conditions is a broad one, governed by the standard of reasonableness, which permits insulating the individual from the conditions that led him into trouble.
United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, 1174, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973) (en banc) (Leventhal, J., concurring). Finally, the Eighth Circuit has emphasized the broad discretion of the sentencing court:
Probation of a convicted defendant is a matter of grace and not a matter of right. . . . The granting of probation, and the conditions upon which it is granted as well as its revocation are matters purely within the discretion of the trial court and are reviewable only upon abuse of discretion.
United States v. Alarik, 439 F.2d 1349, 1351 (1971).
In addition to noting the absence of definitive guidelines in the statute or in appellate decisions, a number of general observations are appropriate. Had the judge rejected probation and simply sent Pastore to jail for the full two years of his sentence instead of only for six months, there could ordinarily have been no meaningful claim that Pastore had been improperly denied the right to practice law for that period. Imprisonment obviously takes away the means of livelihood, while providing minimum sustenance. Why, then, should the lesser penalty be objectionable if the greater is not?
Moreover, it is of some significance that 18 U.S.C. § 3651 lists various special conditions of probation. In addition to a fine, these are: restitution or reparation to aggrieved parties, provision for support of a person for whom a defendant is legally responsible, participation in a residential community treatment center, and participation in a community program for drug addicts. We do not suggest that specification of four conditions of probation negates other possibilities. But it supports our belief that, without entering the battle over whether there should be general appellate review of sentencing, careful scrutiny of an unusual and severe probation condition is appropriate. In engaging in such review, we accept the broad standard of the cases cited above that judicial discretion on conditions of probation is limited by the requirement that they bear “a reasonable relationship to the treatment of the accused and the protection of the public.” Such a
Finally, there is a serious issue whether a federal district judge, unguided by Congress except in the most general terms, can require a defendant to give up a lawful livelihood. Examples that illustrate the problem spring to mind. In sentencing defendants convicted of a tax offense: Could a district judge require a doctor to relinquish his license to practice medicine? Could a judge force a teacher to resign from the public school system or from a private school or to give up private tutoring? What about a bricklayer? Could he be required to resign as an officer of his union? These are perhaps unlikely examples because the connection between the crime and any “treatment of the accused” or “protection of the public” is weak. But suppose the doctor has been convicted of selling narcotics or the teacher of assaulting a child? The impulse to ban the defendant from continuing in the same job is strong, and perhaps the power of a district judge to do so should be obvious. On the other hand, imprisonment, monetary impositions and community treatment programs are potent and, possibly, sufficient sanctions for a sentencing judge. Perhaps the suitability of a defendant for continuing in a particular job should not be determined in the sentencing process unless the legislature specifically authorizes it, but should be resolved in other ways and in other forums and guided, when possible, by the legislature.
With these general considerations in mind, we turn to the precise condition imposed upon Pastore — forced resignation from the bar. The judge undoubtedly believed that Pastore’s conviction conclusively demonstrated that he lacked the good character statutorily required for admission to the bar,
There is, no doubt, a general public feeling that one who has been convicted of a crime should not practice law, and this proposition is surely true in many cases. But the applicable law cited above recognizes that there are exceptions and that the facts of the individual case should control. Since expulsion from the state bar is a sanction precisely governed by statute and regulation, it would seem preferable not to impose that sanction except by the procedure and for the reasons there prescribed. The protection of the public that was the judge’s legitimate concern here could have been safeguarded by sending the judgment of conviction to the Appellate Division of the State of New York for appropriate proceedings. While these proceedings have sometimes been unduly dilatory in the past and are subject to other telling criticism, as the concurring opinion of Judge Lumbard illustrates,
We do not condone appellant’s conduct. Nor do we believe that sentencing judges should show particular solicitude for lawyers or for others engaged in a profession. The sentence of six months in jail and 18 months on probation was certainly an appropriate exercise of discretion by the trial judge. However, we have before us a severe additional sanction that deprives a defendant of his livelihood (in this case, presumably for well past the 18-month period of probation, if not for life). There is also an issue as to whether protection of the public requires imposition of this extreme sanction, and we have some doubts over the power of a sentencing judge to impose such a condition. Given the availability of alternative and well-defined procedures for expulsion from the bar, which would have accorded appellant procedural rights here denied him, we hold, in the exercise of our supervisory power, that this particular condition of probation was improper. Accordingly, we remand for resentencing.
. Of the United States District Court for the Southern District of New York, sitting by designation.
. Two of the checks were bank treasurer’s checks purchased with Ron-Ore funds.
. This was Irv Furletti, employed by Ron-Ore as a construction worker.
. Both cooperated with the Government and testified pursuant to immunity grants.
. Cedrone had not yet been sentenced on an indictment charging the filing of a false income tax return, to which he had already pleaded guilty. Moreover, there were other counts outstanding against him and his wife. Also, a two-count indictment against Galoni, who had received unreported income from Ron-Ore, had been dismissed before trial in return tor his testimony against Pastore.
. E. g., reference to Cedrone, his brother Lenny and appellant as the “three primary participants in this raid on the Town of Fleming”; description of the Government’s case as “a picture of a corrupt representative of the people of the Town of Fleming getting together with the likes of Frank and Lenny Cedrone, and just lining their pockets with all of the money that was available in this project.” The judge properly cautioned the jury that the defendant was not on trial for any charge of corruption.
. That section provides:
Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.
Whenever any attorney and counsellor-atlaw shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys.
. Matter of Hernandez, No. 76757 (Cal.Super. Ct., Santa Barbara County, June 8, 1966) (narcotics violation by defendant living with man to whom she was not married and receiving welfare payment for their illegitimate child); People v. Blankenship, 16 Cal.App.2d 606, 61 P.2d 352 (Dist.Ct.App.1936) (statutory rape by defendant with syphilis).
. Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), rev’d on other grounds, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (miscegenation).
. State v. Doughtie, 237 N.C. 368, 371, 74 S.E.2d 922, 924 (1953) (assault with deadly weapon); People v. Baum, 251 Mich. 187, 189, 231 N.W. 95, 96 (1930) (liquor law violation).
. Springer v. United States, 148 F.2d 411, 415-16 (9th Cir. 1945) (Selective Service Act violation).
. Butler v. District of Columbia, 120 U.S.App.D.C. 317, 346 F.2d 798 (1965) (false reports of police brutality).
. The exception is People v. Blankenship, supra note 8 (sterilization).
. Malone v. United States, 502 F.2d 554 (9th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) (gun running to Irish Republic).
. Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971) (failure to file tax returns).
. See also United States v. Greenhaus, 85 F.2d 116, 117 (2d Cir.), cert. denied, 299 U.S. 596, 57 S.Ct. 192, 81 L.Ed. 439 (1936) (court noted, but did not consider, probation condition that defendant who had been convicted of illegal sale of securities “not engage in any stock or bond sale”).
. We put aside for the moment any argument that disbarment here may be for life and was therefore not a lesser penalty than imprisonment for two years.
. E.g., Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974) (requiring sentencing court to make an explicit finding on the record that youthful offender would not benefit from treatment under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq.); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (approving remand of case to trial court for reconsideration of sentence when there is a possibility that sentencing court had relied on two unconstitutional convictions in meting out sentence); United States v. Manuelia, 478 F.2d 440 (2d Cir. 1973) (improper for court to sentence defendant immediately after conviction subject to revision after presentence report is obtained); United States v. Brown, 470 F.2d 285 (2d Cir. 1972) (when sentencing judge refused to disclose presentence report as an unvaried rule, remand with instructions to exercise discretion in each case); McGee v. United States, 462 F.2d 243 (2d Cir. 1972) (vacation and remand for resentencing when sentence is not revised after major count of conviction is dismissed).
. Cf., e. g., N.Y. Educ.L. §§ 3012, 3013, 3020, 3020-a (McKinney 1970); see 29 U.S.C. § 1111.
. N.Y. Judiciary Law § 90(l)a provides:
Upon the state board of law examiners certifying that a person has passed the required examination, or that the examination has been dispensed with, the appellate division of the supreme court in the department to which such person shall have been certified by the state board of law examiners, if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law, shall admit him to practice as such attorney and counsellor-at-law in all the courts of this state, provided that he has in all respects complied with the rules of the court of appeals and the rules of the appellate division relating to the admission of attorneys.
. N.Y. Judiciary Law § 90(4), quoted at note 7 supra.
. Rules Relating to Attorneys, N.Y. App.Div., 4th Dep’t, § 1022.21, provides in pertinent part:
(a) Upon the filing with the Appellate Division of a certificate of the conviction of an attorney of a serious crime as defined in paragraph (b) in a court of record in this State or any other State, territory or district, the court shall immediately refer the matter to a referee, justice or judge for disciplinary hearings, whether the conviction resulted from a plea or a verdict after trial and regardless of the pendency of an appeal. If the crime is not a serious crime as defined in paragraph (b), the court may refer the matter to the chief attorney for appropriate disciplinary action or to a referee, justice or judge as above provided.
(b) For purposes of this section, the term “serious crime” includes any felony not resulting in automatic disbarment under section 90(4) of the Judiciary Law, and any lesser crime a necessary element of which by statutory or common law definition involves interference with the administration of justice, criminal contempt of court, false swearing, misrepresentation, fraud, failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft; or an attempt, conspiracy or solicitation of another to commit such a crime.
. Appellant cites Matter of Taylor, 29 A.D.2d 132, 286 N.Y.S.2d 138 (4th Dep’t 1968), for the proposition that under state law his conviction in this case would not be regarded as a felony and therefore would not trigger automatic disbarment.
. Also, cf. Report on the Grievance System, The Association of the Bar of the City of New York 9-19 (1976).
. General Rule 4 of that court provides in pertinent part:
When it is shown to the Court that any member of its bar has been suspended or disbarred from practice in any court of record, or has been guilty of conduct unbecoming a member of the bar of the Court, the member will be forthwith suspended from practice before the Court, and notice of his suspension will be mailed to him, and unless he shows good cause to the contrary within 40 days, thereafter, he will be further suspended or disbarred from practice before this Court.
. On this disposition of the case, we need not deal with appellant’s constitutional and statutory arguments.