_________________________________________________________________
_________________________________________________________________
UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF NEW YORK
____________________
Docket No.
_______________________________
UNITED STATES OF AMERICA,
Appellee,
-against-
DONALD xxxxxxx,
Defendant-Appellant.
_____________________________________
APPEAL FROM A JUDGMENT
OF A UNITED STATES MAGISTRATE JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
_________________________________________________________________
BRIEF FOR APPELLANT DONALD xxxxxxx
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JURISDICTIONAL STATEMENT
This is an appeal from a final judgment of conviction rendered on February 3, 1998, and entered on March 5, 1998, in the Southern District of New York (Douglas F. Eaton, M.J.). A notice of appeal was timely filed. This Court has jurisdiction over the appeal pursuant to 18 U.S.C. 3402. The magistrate judge had jurisdiction pursuant to 18 U.S.C. 3401.
QUESTION PRESENTED
Whether the sentencing court abused its discretion by imposing conditions of probation that were not reasonably related to appel-lant's crime or to any of the relevant sentencing factors.
STATEMENT OF THE CASE
PRELIMINARY STATEMENT
Donald xxxxxxx was convicted, upon his guilty plea, of one count of criminal contempt, charged as a misdemeanor, in violation of 18 U.S.C. 401(3). Following a remand from this Court, Magistrate Judge Eaton resentenced Mr. xxxxxxx to a five-year term of probation, with six months to be served in community confinement. One condition of probation was that Mr. xxxxxxx not possess a firearm. Special conditions of probation included, first, that Mr. xxxxxxx file accurate federal and state income tax returns for all years from 1991 through the end of his probation, and, second, that he comply with a November 18, 1992 order of the Securities and Exchange Commission barring him from association with any securi-ties broker or dealer. A special assessment of $25 was also im-posed. The Legal Aid Society, Federal Defender Division, has con-tinued as counsel on appeal under the Criminal Justice Act.
STATEMENT OF FACTS
Donald xxxxxxx was accused of failing to obey an order of the United States Bankruptcy Court that directed him to appear for an asset deposition in aid of enforcing a judgment against him. The judgment, for $9.4 million, had been entered in an adversary pro-ceeding that arose out of the bankruptcy of Donald xxxxxxx & Co. (A.10b). (1)
The Plea Agreement and Plea Proceeding
On October 24, 1996, Mr. xxxxxxx entered into an agreement that he would plead guilty to a one-count information charging him with criminal contempt of court as a misdemeanor. The parties stipulated that they expected Mr. xxxxxxx's offense level to be 10, after a two-level downward adjustment for acceptance of responsibility, and his criminal history category to be I, because he had no other criminal record. This would result in a guideline senten-cing range of 6 to 12 months' imprisonment (A.10b-11). It was further agreed that "any appeal ... as to the defendant's sentence will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation" (A.12). The plea agreement made no mention of the possibility of a sentence of probation or of any possible conditions of probation.
On November 1, 1996, Mr. xxxxxxx appeared before Hon. Douglas F. Eaton for the purpose of pleading guilty. The court first swore in Mr. xxxxxxx and informed him that any false statement he made could subject him to a prosecution for perjury (P.2; A.15). The court established that Mr. xxxxxxx was not being treated for mental illness or substance abuse, and was not under the influence of medication, alcohol, or drugs (P.3; A.16).
Mr. xxxxxxx told the court that he had discussed the plea agreement and the charge against him with his attorney and under-stood them. He and his lawyer had both signed the plea agreement. Mr. xxxxxxx confirmed that he was satisfied with the representation he had received from his lawyer (P.3-4; A.16-17).
Mr. xxxxxxx acknowledged that the plea agreement represented his entire agreement with the government, and that no other promises had been made to him. No one was forcing him to plead guilty; he was doing so because he was guilty (P.4-5; A.17-18).
The court noted that the plea agreement anticipated a guide-line range of 6 to 12 months' imprisonment (P.6-7; A.19-20). Mr. xxxxxxx stated he understood that even if the court rejected this sentencing recommendation, he would not have the right to withdraw his guilty plea (P.4; A.17). The court explained that the senten-cing guidelines would govern the sentence, but that the maximum term of imprisonment and supervised release he could receive was one year (P.5-6; A.18-19). The court did not mention the possibility of a sentence of probation of up to five years, or possible conditions of probation.
The court next discussed with Mr. xxxxxxx the various rights that he would "give up" by pleading guilty (P.7; A.20). Most prominent was the right to a jury trial where he would be presumed innocent, the government would have to prove his guilt beyond a reasonable doubt, and any guilty verdict would have to be unanimous (P.7-8; A.20-21).
Mr. xxxxxxx acknowledged that he understood all these rights and understood that if he pleaded guilty there would be no trial and that he would stand convicted just as if he had been convicted after trial (P.8-9; A.21-22).
During the plea colloquy, the court did not make any mention of the waiver of the right to appeal that appeared in the plea agreement or list it as one of the rights that Mr. xxxxxxx was surrendering.
Mr. xxxxxxx then admitted he had willfully failed to appear at a deposition as ordered by the bankruptcy court, and was guilty as charged (P.9-14; A.22-27). The court accepted the guilty plea (P.15; A.28).
The Presentence Report
The Presentence Report ("PSR") prepared by the Probation Office noted that
Mr. xxxxxxx was 57 years old and had no prior record (PSR 55, 57). He had failed to
appear for a deposition in 1993 and was apprehended in 1995 (PSR 6). The Report noted
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