*2 LUMBARD, Before FEINBERG and TIMBERS, Judges. Circuit FEINBERG, Judge: Circuit appeals from a Vito M. Pastore conviction, jury a trial before a after in the United Judge Lloyd F. MacMahon1 for the Northern Dis- District Court States York, knowing- wilfully trict of New a false income tax return. ly filing 7206(1). Appellant offers a num- U.S.C. § why his conviction should be ber of reasons argues and also that one of the set aside improper. of his sentence was conditions reject the attack on the conviction but We complaint regarding find merit in the sentence.
I argue does not Since insufficient, evidence was our statement of facts be brief. From the evidence it, jury properly could before Pastore, following facts. found an at- torney, represented Town of Fleming, 1970-71, York, New in connection with system. of a sewer Appel- the installation Cedrone, Frank pipeline lant contacted contractor, him job, to interest telling low bid initially him that received was and inquiring about million whether the $2 job be done for under million. could fUA brought in turn Kenneth Mar- Cedrone shall, developer, ultimately land who placed a successful bid of between $1.4 thereafter, Shortly the name million. $1.5 to Ron- changed business was of Marshall’s Systems, and the business was Ore Soil the name of Ron- incorporated later (“Ron-Ore”). Systems, Ltd. At Ore Soil first, manager project Cedrone York, sitting District Court for States District of New des- the United Southern Of ignation. Fleming project; sewer la- on the tion. The most Ron-Ore troublesome of these con- ter, president of Ron-Ore. he became cerns the Government’s use of handwriting corporate three letters of name first exemplars by Galoni, Cedrone and who Cedrone; three, the last Pas- represented prosecution During witnesses.4 Ron-Ore was used as a Apparently, tore. trial, request prosecution at the payments to Pastore from the conduit for *3 presence court, outside the jury project. sewer counsel, and defense Cedrone and Galoni provided specimens various in their hand- theory The Government’s was checks, writing by of a number of for examination proceeds 1971 the Govern- it,2 purchased by Ron-Ore or upon expert. Nick drawn ment’s Galoni wrote his name appellant. went Seven checks spelled correctly ten times with one “1” and cash, were to “Nick payable Galloni” “l’s,” another ten times with two as it “Nick and were endorsed Galloni.” At tri- peared on the crucial checks. Cedrone pro- al, Galoni, employee a Ron-Ore whose name specimens handwriting, vided 12 six in “1,” with properly spelled only one denied name, two in the name of his own “Irv endorsing receiving pro- the checks or Furletti,” in two the name of Galoni with checks, remaining ceeds. Of the all but one “1”, expert two with two “l’s.” The one payable apparently fictitious he compared testified that had Galoni’s and payees, last was payable to a exemplars with the handwritten Cedrone’s who testified that he knowledge had no endorsements “Nick Galloni” on the reverse Many the check.3 of these checks were checks; disputed side of four of the Ce- signed George for Ron-Ore in the name of exemplars compared drone’s were also Sedrick, person. who was a fictitious the endorsement on a check payable to “Irv evidence also showed that check for upon examination, Based Furletti.” his $4,062, account, drawn the Ron-Ore expert his gave opinion that the exemplars by appellant pay for a Cadillac was used and the check endorsements were not made in 1971. The Government contended by person. the same This testimony, represented payment these sums all of made, objection helped to negate for services to Ron-Ore and an inference that either Galoni or Cedrone been, not, but were included had endorsed the checks and kept pro- tax appellant’s By income return for 1971. themselves, as defense argued ceeds counsel verdict, jury accepted its Govern- jury. theory. ment’s Appellant argues that use of the exemp- appellant, sentenced under 18 improper under lars was United States v. years’ imprisonment, U.S.C. to two Chiu, (2d 1975). Lam Muk F.2d 330 Cir. which were six months of to be served in a case, In that Government had intro- jail-type suspended institution. The duced into evidence ten letters addressed to remaining execution of months of sig- a confidential informant placed bearing proba- the sentence and Pastore on the name special with the nature in of defendant. tion for that condi- On “resign tion that he from the Bar.” theory On the letters were authenticated special appeal, content, Pastore attacks this condi- by they were received without tion of the sentence. proof direct of authentication the testi- expert. mony handwriting part As
II trial, Muk prof- his defense at Lam Chiu argu samples We consider first the various fered three of his handwriting, ments addressed to the of convic- prepared had after his arraign- which he 2. Two of the checks were bank treasurer’s cooperated 4. Both with the Government purchased checks with Ron-Ore funds. pursuant immunity grants. testified Furletti, employed by was Irv This Ron-Ore worker. as a construction of his ment at direction use Galoni were witnesses and not on trial intended show Defendant It at trial. themselves. true at least Ce- handwriting not the same as possibly his drone —and Galoni —had a motive but, handwriting in the ten letters relied on falsify5 arguably, not strong as as a The district found Furthermore, the Government. defendant’s. defense counsel handwriting samples “objectionable these cross-examined Galoni concerning the cir- self-serving exemplars prepared specially cumstances which he had made the ex- trial,” 522 at emplars, F.2d and excluded and had an opportunity to do the affirmed, noting them. We that: same with Cedrone. In conclusion, while it might be better to have such sam- Unquestionably, strong defendant has ple signatures prepared under supervi- writing to alter to render motive so as court, sion cf. United States v. incriminating Wolf- it dissimilar to an docu- ish, (2d F.2d prosecution we are alleged by the to be in not ment *4 prepared say that the absence Accordingly, of such any handwriting his hand. requires precaution reversal under the specific the cir- sample prepared purpose here. cumstances showing dissimilarity handwriting of of inherently suspect and should not ad- remaining attacks on the con into evidence. mitted less require viction discussion. Appellant Id. at 332. argues judge the district erred in al lowing testify strong language, this Cedrone
Despite broad Pastore re checks, our ceived prior we do not believe that decision Ron-Ore and that the “Ron” requires here. Lam Muk Chiu of reversal did Ron-Ore identified Cedrone and the rigid not adopt excluding exemp- rule all “Ore” identified Pastore. The latter was the prepared dissimilarity objectionable; lars show of not the basis of Cedrone’s the own handwriting writer’s to that in knowledge was quite made clear before he another document. The decision there af- left the As to testimony regard stand. ruling firmed the of a trial in judge checks, exclud- ing the Cedrone’s direct testimony ing exemplars. holding Such a sufficiently personal does on based knowl judge’s not foreclose a trial discretion edge, contrary appellant’s Per claim. evidence, admit exemplars similar into haps testimony may if Cedrone’s have been judge believes there are sufficient indi- unduly general, but defense counsel had Indeed, cia reliability. opinion in ample opportunity in cross-examination to Lam Muk Chiu emphasized such indicia in knowledge. elicit the basis of Cedrone’s distinguishing a case relied by appellant contends that the prosecutor’s Pastore also there. at 332. III Wigmore, Id. See Evi- unfairly inflamed jury. summation (Chadbourn 1970) dence (“the rev. phrases While there a few that should matter should omitted,6 be left to the trial judge’s emphatic court’s have been discretion”). significant It is also that Lam jury direction to the to focus on the issue Muk Chiu was a powerful error, defendant with a before it corrected the if any. Final specimens distort reason to his ly, any objection judge’s hand- supplemen writing damaging and cast doubt on charge” evi- tal “Allen was waived failure to against contrast, dence him. Cedrone raise the below. issue Cedrone, yet g., Lenny had not 6. E. Cedrone sentenced on an reference brother appellant primary partici- charging filing as the “three indictment a false income pants Fleming”; return, in this raid on the Town of already pleaded tax he had description of the Government’s as case “a Moreover, guilty. there were other counts out- picture corrupt representative peo- of a of the Also, against standing him his wife. ple Fleming together getting of the Town of Galoni, against two-count indictment who had Cedrone, Lenny with of Frank the likes Ron-Ore, unreported received income from had just pockets lining money all their of the trial been dismissed before in return tor his project.” was available this testimony against Pastore. properly jury cautioned the that the defendant any charge corruption. trial for not on recently challenges to entertain to the va-
III
conditions,
of such
either because
lidity
issue
the most difficult
now to
We come
unreviewability or because of
notions of
indicated,
already
us. As
before
Note,
obstacles.
perceived procedural
See
years imprison-
to two
Pastore
sentenced
Challenges,
of Probation
Judicial Review
for the
ment,
him on
placed
but
(1967). Perhaps
188-96
Colum.L.Rev.
resign
condition he
on the
18 months
last
paucity
appellate
relative
decisions is
Appellant
bar.
claims
of the
member
judges
impos-
restraint of trial
due to the
judge’s
exceeded the
condition
conditions, although
ing probation
18 U.S.C. §
because
a sufficient number of unusual
have been
statute,
not authorize forfei-
does
illustrate the potential
sentences to
dimen-
certainly
license and
professional
ture
problem.
g.,
judges
E.
trial
sions
that will affect
a forfeiture
not
extreme,
probation,
conditioned
at one
probation;
possible period
beyond
or on
on sterilization8
banishment from
7206, the statute de-
26 U.S.C. §
because
years9
period10
for 25
or for a lesser
state
violated,
not authorize such a
does
fendant
and,
extreme, on donating
at
the other
sanction;
New York State
and because
Cross,11
writing
to the Red
or on
blood
to,
over admission
jurisdiction
exclusive
why
reasons
the Police
essay on “the
De-
from,
Appellant also ar-
the bar.
removal
should be entitled to the
partment
respect
denied him
special
condition
gues
just
citizenry
citizenry
as the
is enti-
him of his license
by depriving
process
due
respect
Depart-
of the Police
tled to the
appro-
or an
without notice
practice law
instances,
In all but one of these
ment.”
*5
responds that the
hearing. Appellee
priate
range from the horrendous to the
which
court’s
dis-
was within the
broad
condition
trivial,
appellate court set aside the
an
that,
90(4)
in view of section
of
cretion
However, a sentence of probation
ditions.13
Law,7 no
Judiciary
York
the New
State
that prohibited
sustained
a
has been
de-
necessary.
notice
further
belonging to or associating
fendant
from
probation
conditions of
legality
organizations
of
“with
Irish Catholic
or
little attention ei-
surprisingly
visiting “any
groups”
pubs”;14
received
or
Irish
has
“public speeches
courts or from commen-
appellate
prohibition
designed
on
ther from
general
may
encourage
be due to
others to violate
This
to
tators.
appellate
courts until
has also
unwillingness
of
tax] law[s]”
[income
Commonwealth,
924,
Loving
v.
206 Va.
147
provides:
7. That section
(1966),
grounds,
78
rev’d on other
388
S.E.2d
Any person being
attorney
and counsel-
1,
1817,
(1967)
proved.15 offense for had; here, of deci- which conviction appellate there are a number aside a refusing to set sentence that sions required beMay provide for the pro- give up required the defendant support any persons, of support for whose period for the of his legally or responsible. business he is fession States, Whaley v. United g.,E. probation. may require person The court as con- 1963) (defendant, (9th Cir. 324 F.2d 359 probation of ditions to reside partici- in or agent, impersonated prohibited FBI who pate program aof residential com- business); repossession going back into munity center, from both, treatment or for all Frank, Cal.App.2d People v. part the period probation (doctor, (1949) who committed P.2d ten-year patient, required act old
lewd The court require person who is medicine); from Stone abstain an addict within the meaning of section States, (9th F.2d v. United 332-33 title, 4251(a) of this a drug dependent stewards, 1946) (railroad who defraud- meaning within the of section 2(q) employer, prohibited returning ed Public Act, Health Service (42 employment).16 amended U.S.C. as a § condition probation, participate the commu- The propriety of conditions on supervision programs nity authorized difficult issues because raises the relevant 4255 of this part section title all or standards, sentencing generally, as with . . . . [Em- See, vague or non-existent. either M. phasis added.] Frankel, Sentences, Criminal Law Without It would be hard use more Order 3-11. The sentence in this case was “upon words than such terms and condi- imposed pro- U.S.C. tions as court deems best.” And nei- part entering vides in legislative history ther the of section 3651 conviction, nor decisions of the of appeals courts offer justice when satisfied that the ends of precise much more a standard. The Ninth and the best interest of the as well Circuit stated: *6 as the will thereby, defendant be served probation discretion in matters [J]udicial may impose a sentence in of six excess only by requirement is limited the that provide months and that the defendant the and conditions terms thereof bear “a jail-type be confined in a institution or a relationship reasonable the treatment period treatment institution not ex- protection accused ceeding six and months the execu- public.” tion of the remainder of the sentence be Inc., United v. Nu-Triumph, States 500 F.2d suspended and the defendant placed on 594, (1974). Similarly, 596 in Porth v. probation upon for such and 15, supra Templar, at note the Tenth Cir- terms and as the conditions court deems cuit stated: best. . sentencing judge The has broad power probation While on among the designed conditions impose serve the thereof, the ditions defendant— community. accused and the The only May pay one required be a fine in is that limitation the conditions have a sums; several reasonable relationship treatment May required be to make restitution of the accused and the of the reparation parties to aggrieved for actual public. object, course, is pro- 330, Templar, (10th 15. Porth v. 453 F.2d consider, 334 probation did not condition that de- 1971) (failure returns). to file tax illegal who fendant had been convicted of sale engage “not securities Greenhaus, See also United States v. 85 F.2d sale”). bond stock or 116, denied, 596, (2d Cir.), 117 cert. 299 57 U.S. 192, noted, (1936) (court S.Ct. 81 439 L.Ed. but
681
right
the
abiding
period.
citizen and at
law for that
law
duee a
public against
protect
Imprisonment obviously
away
takes
time
same
livelihood,
providing
or antisocial behavior.
while
criminal
means of
mini-
continued
then,
Why,
mum sustenance.
District of Colum-
333. In the
F.2d at
453
objectionable
great-
if the
penalty
lesser
authority
Circuit,
sentencing court’s
bia
The answer must be that
er is not?17
expansive
but
described
has also been
discretion,
exercising
vague terms:
lawfully
this must be done
whatever
impose conditions is a
course, the term “lawful”
penalty.
Of
one,
by the standard of
governed
broad
sentencing discretion
begs
question;
is
reasonableness,
permits insulating
frequently
unreviewable.
broad indeed
the conditions that
individual from
Nevertheless,
recent
has been at
trend
led him into trouble.
process
least to focus
to reduce the
Moore,
v.
U.S.App.D.C.
158
United States
injustice from isolated eccentrici-
chance of
1174,
denied,
cert.
486 F.2d
ty.18
(1973)
L.Ed.2d
U.S.
S.Ct.
J.,
banc) (Leventhal,
concurring).
(en
Fi
Moreover,
signifi
it
is of some
emphasized
Eighth Circuit
nally, the
3651 lists various
cance that
U.S.C. §
sentencing
discretion of
the broad
special
probation.
conditions of
In addition
court:
fine,
repara
these are: restitution or
to a
defendant
Probation of
convicted
aggrieved parties, provision
sup
tion to
grace and not a matter of
matter of
whom a
port
defendant
proba-
right.
granting
.
.
. The
responsible, participation in a
legally
resi
tion,
upon which it is
and the conditions
center,
community treatment
dential
as its revocation are mat-
granted as well
community program
participation
the discretion of the
purely
ters
within
suggest
spec
We do not
drug addicts.
only upon
and are reviewable
trial court
of probation
ification of four conditions
ne
of discretion.
abuse
possibilities. But
it
gates
supports
other
Alarik,
1349, 1351
United States
439 F.2d
that,
entering
without
our belief
battle
(1971).
general
there should be
appel
over whether
sentencing,
of de-
careful
noting
scrutiny
In
the absence
late review of
addition
guidelines
appel-
probation
in the statute or in
and severe
finitive
of an unusual
condi
decisions,
appropriate.
engaging
a number of
observa-
in such
late
tion
review,
accept
Had the
re-
the broad standard of the
appropriate.
we
tions
simply
judicial
sent Pastore to
cases cited above
discretion on
jected
years
of his sentence
the full two
conditions of
limited
jail for
months,
only
they
for six
there could
bear “a
requirement
reasonable
instead
*7
meaningful
relationship
no
claim
to the treatment of
ordinarily have been
the accused
improperly
public.”
denied
of the
Pastore had
Such a
any argument
put
for the moment
meting
17. We
aside
two unconstitutional
convictions in
out
may be for life and was
that disbarment here
Manuelia,
sentence); United States v.
478 F.2d
penalty
imprison-
not a lesser
than
therefore
(2d
1973) (improper
440
Cir.
for court
to sen-
years.
for two
ment
immediately
tence defendant
after conviction
subject
presentence
report
to revision after
is
States,
Dorszynski
E.g.,
United
418 U.S.
18.
Brown,
obtained); United States v.
470 F.2d
(1974) (re-
onstrate
rule,
Apparently
view on the Government’s
so25
Pastore
no
express
We
fo-
automatically suspended
in
state
could have been
that disbarment
contention
inevitable;
court,
practice
our concern
from
in that
would
would
rum
exist,
sen-
good part
objective
and the
have achieved a
of the
controversy does
here decided the
had
followed
the district
in mind here. But
tencing procedure
rule,
notice or
without
under the Northern District
appellant
Pastore
against
issue
between Pas-
have had
right
The connection
would then
to show
argument.
protec-
“good
why
tax violation
cause” to the district court
he
income
tore’s
resigna-
requiring
suspended
in
should not be “further
public
or dis-
of the
tion
practice”
the resolu-
from
depends
the bar
barred
before that
tion from
court.
This would at least
preserved
issue.
have
ap-
of that
tion
pellant
procedural rights he was denied
doubt,
is,
general public
feel-
no
There
here.
convicted of a
who has been
one
ing that
law, and this
practice
appellant’s
We do not condone
should not
conduct.
crime
cases.
surely
many
sentencing
true in
do we believe that
judges
Nor
proposition
recog-
particular
cited above
show
law
solicitude for law-
applicable
But
engaged
and that the
exceptions
yers
profession.
or for others
there
nizes
jail
case should control.
sentence of six months in
individual
and 18
of the
facts
certainly
from the state bar
months on
an
expulsion
Since
statute and
exercise of discretion
governed
propriate
the trial
precisely
sanction
However,
we
preferable
judge.
seem
not
have before us a
it would
se-
regulation,
except by
proce-
sanction that deprives
sanction
vere additional
impose that
de-
(in
prescribed.
case,
livelihood
this
pre-
the reasons
fendant of his
and for
dure
past
was the
well
sumably
18-month
protection
life).
probation,
concern here could have
if not for
There is
legitimate
also
judge’s
by sending
issue as to whether
safeguarded
been
Appellate
imposition
Division of
of this
public requires
extreme
conviction
sanction,
appropriate pro-
and we have some doubts over the
of New York
the State
sentencing judge
proceedings
impose
these
ceedings. While
unduly dilatory
past
availability
Given the
of alter-
been
a condition.
sometimes
criticism,
telling
procedures
as
well-defined
for ex-
subject to other
native and
and are
bar,
opinion
Judge
Lumbard
from the
which would have
concurring
pulsion
illustrates,24
speed up
procedural rights
here
remedy
accorded
hold,
bypass
him,
in the exercise
proceedings, not
denied
we
of our
improve such
Moreover,
power,
particular
district court
that this
supervisory
a federal
them.
regarding
improper.
adopt its own rules
disbar-
dition of
Accord-
attorneys
resentencing.26
discipline
ingly,
convicted
we remand
ment or
Taylor,
any
cites Matter
Appellant
practice
29 A.D.2d
disbarred
from
court of
(4th Dep’t
for the
record,
guilty
286 N.Y.S.2d
of conduct unbe-
or has been
proposition
his conviction
that under state law
Court,
coming
of the bar of the
a member
felony
regarded
not be
case would
suspended
member will be forthwith
from
trigger
not
automatic dis-
would
and therefore
Court,
and notice of his
before
barment.
him,
suspension will be mailed to
and unless
contrary
good cause to the
he shows
within
Also,
System,
Report on the Grievance
cf.
thereafter,
days,
he will be further sus-
City
the Bar of the
of New
The Association
pended
before this
or disbarred
(1976).
York 9-19
Court.
provides in
4 of that court
case,
Rule
25. General
disposition of the
we need not
26. On this
part:
pertinent
appellant’s constitutional
and statu-
deal with
When it is shown to
Court
tory arguments.
suspended
of its bar
member
*9
federal district court has
pretty
been
much
LUMBARD,
Judge (concurring):
Circuit
pro
The
forma.
federal district courts of
opinion
I concur in the court’s
but add a
have
circuit
seldom taken the
to
trouble
my
regard-
understanding
as to
few words
require any showing
knowledge
expe-
power
ing the
district court to act
beyond
rience
that which is certified
right
practice
the defendant
upon the
to
to
admission
the bar of one of our three
law in the New York state courts.
Indeed,
great
states.
majority of attor-
my opinion, the most that
In
the district
neys
York,
admitted to the bars of New
power
respect
has the
to do with
court
to
practice
Connecticut and Vermont
largely
practice in
defendant’s
New York
courts,
in their state
with only a small
appropriate Appel-
is to
courts
refer
spending
percentage
appreciable
Supreme
the New York
late Division of
amount of time on federal court matters.
disciplinary
the matter of
ac-
what
.Court
So far as
regarding
be taken
tion should
defend-
cerned, I think it is obvious that the courts
right
practice
ant’s
York
New
profession
have been far too lax in
It
true and never
courts.
is not
has been
imposing sanctions where there has been
true,
contends,
government
as the
that dis-
doing
substantial basis for
so. But that is
automatically
barment
follows conviction
not a
where the
matter
federal courts have
felony.
for a federal
Pastore’s conviction
any right or
duty
way.
lead the
evasion, though
felony
for tax
under fed-
law,
only
eral
would
have been a misde-
light
circumstances,
of all these
it
meanor under New York law and would be
my
view that
the district court has no
as a
treated
misdemeanor
the state
right
whatever to affect
in any disciplinary proceedings.
courts
E.
practice
defendant
in the New York
Assn.,
g.,
County
Neville v. Monroe
Bar
may only
courts.
It
refer the matter
266,
(4th Dept.
A.D.2d
primarily responsibility of the state. subjected
Applicants to extensive exam- investigation prior
ination to admission York and practice New also Connecti-
cut and Vermont. Thereafter