Fiore v. U.S., No. 199

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, and OAKES and WINTER; OAKES; This appeal is from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward; FEINBERG
Citation696 F.2d 205
PartiesJames L. FIORE, Jr., Appellant, v. UNITED STATES of America, Appellee. ocket 81-2432.
Docket NumberD,No. 199
Decision Date13 December 1982

Page 205

696 F.2d 205
James L. FIORE, Jr., Appellant,
v.
UNITED STATES of America, Appellee.
No. 199, Docket 81-2432.
United States Court of Appeals,
Second Circuit.
Argued Sept. 28, 1982.
Decided Dec. 13, 1982.

Page 206

Zulima V. Farber, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, P.C., Roseland, N.J., for appellant.

Warren Neil Eggleston, Asst. U.S. Atty., S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Gerard E. Lynch, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, Chief Judge, and OAKES and WINTER, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, denying a petition for correction of sentence. The petition, brought under 28 U.S.C. Sec. 2255, claims that appellant's probation was improperly conditioned on his payment of a fine imposed upon his corporation which was in excess of the maximum fine to which he was individually subject and which he was sentenced to pay. The condition is said to be illegal because it increases the maximum penalty permitted by statute. We agree with appellant's contention and reverse.

James L. Fiore, Jr., an accountant, commenced a laboratory testing corporation, Bucks County Research Institute, Inc. (BCRI), the business of which was to perform clinical studies and research concerning over-the-counter drugs. Fiore was president, secretary, sole shareholder and only full-time employee of BCRI. He obtained contracts with Vicks Division Research and Development of New York (Vicks) to do clinical studies on certain over-the-counter cough mixtures, cold pills, liquids and nasal spray and apparently followed the practice of a predecessor laboratory testing concern in paying "consulting fees" to a Vicks employee in charge of offering and accepting bids for such contracts. BCRI then submitted test results to Vicks that were not achieved pursuant to Vicks' test performance instructions. BCRI submitted clinical test reports representing that a particular doctor who was a qualified medical investigator had performed the

Page 207

tests when in fact the tests were performed by another doctor who lacked appropriate accreditation and qualification in the Commonwealth of Pennsylvania. The signature of the qualified doctor was evidently forged on the test results, although this does not appear in the Rule 11 allocution. When the tests were compared to those of other testing laboratories Vicks conducted an intra-corporate investigation which led to Fiore's discovery.

Fiore was charged with a violation of 21 U.S.C. Sec. 331(b) prohibiting the "adulteration or misbranding of any food, drug, device or cosmetic in interstate commerce," the violation of which is a misdemeanor punishable by a maximum fine of $1,000 and a maximum term of imprisonment of one year. BCRI was charged with making false statements in a matter within the jurisdiction of the United States Food and Drug Administration in violation of 18 U.S.C. Sec. 1001, a felony punishable by a maximum fine of $10,000 in the case of a corporation. Fiore pleaded guilty to the charges against him, and, as an officer of BCRI, pled guilty for the corporation. The sentence as to the corporate defendant was that it pay a sum of $10,000. Fiore's sentence was that he pay a fine of $1,000 and the imposition of the sentence was suspended and the defendant placed on probation for a period of three years on the following terms and conditions:

1. That the defendant pay the fine of $1,000 in a lump sum;

2. That the defendant pay in full the fine imposed on Bucks County Research Institute, Inc. in installments arranged through the Probation Department; and

3. That the defendant henceforth not take any role, whether it be direct or indirect, in the operation of a medical testing laboratory.

No objection to the sentence was made or appeal taken. In the roughly seven months after imposition of the sentence only $408.81 of BCRI's fine was paid and the Probation Department petitioned for revocation of probation when Fiore declined to make further payments. He claimed that he had been misadvised by prior counsel that he was not required to pay the fine. He then acknowledged his obligation to commence paying installments and paid an additional $1600. Fiore then filed the instant petition which was denied in November of 1981.

The governing statute is 18 U.S.C. Sec. 3651 which provides in pertinent part as follows:

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant 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.

This statute is the only source of the court's power to suspend the imposition or execution of sentence. United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928); Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Beacon Piece Dyeing & Finishing Co., 455 F.2d 216, 216-17 (2d Cir.1972); United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Under the statute the sentencing court's discretion to set the conditions of probation is broad, the validity of conditions being reviewable only upon abuse of discretion. United States v. Pastore, 537 F.2d 675, 681 (2d Cir.1976). See also United States v.

Page 208

Alarik, 439 F.2d 1349, 1351 (8th Cir.1971). The sentencing court may not, however, go beyond the plain language of section 3651, see United States v. Temple, 372 F.2d 795, 799 (4th Cir.1966), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967) (statute permitting punishment by fine or imprisonment does not permit fine and probation), nor may the court exceed the limitation that the conditions imposed must bear " 'a reasonable relationship to the treatment of the accused and the protection of the public.' " Pastore, supra, at 681; Higdon v. United States, 627 F.2d 893, 898-99 (9th Cir.1980); United States v. Pierce, 561 F.2d 735, 739 (9th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978). Thus, appellate courts have upheld conditions of probation that are tailored to serve the rehabilitation of the defendant and the protection of the public. E.g., United States v. Margala, 662 F.2d 622 (9th Cir.1981) (defendant convicted of stock fraud reasonably required to forfeit retirement benefits acquired from defrauded company after fraud set in motion); United States v. Tonry, 605 F.2d 144 (5th Cir.1979) (defendant convicted of repeated violations of Federal Election Campaign Act reasonably forbidden to engage in political activity while on probation); United States v. Miller, 549 F.2d 105, 107 (9th Cir.1976) (defendant convicted of alcohol-related transgressions reasonably forbidden to consume alcohol while on probation); Malone v. United States, 502 F.2d 554 (9th Cir.1974) (defendant convicted of gun running to the Irish Republic reasonably forbidden to belong to Irish Catholic organizations or groups or to visit any Irish pubs); Porth v. Templar, 453 F.2d 330, 334 (10th Cir.1971) (defendant convicted of failure to file tax returns reasonably forbidden to make public speeches encouraging income tax violations). And, conversely, courts have set aside conditions that are unreasonably excessive or are unrelated to the goals of probation. See Pastore, supra, at 679 (citing cases); e.g., Matter of Hernandez, No. 76757 (Cal.Super.Ct., Santa Barbara County, June 8, 1966) (requiring sterilization of unwed mother convicted of narcotics violation); Springer v. United States, 148 F.2d 411, 415-16 (9th Cir.1945) (requiring blood donation of defendant convicted of Selective Service Act violation). See also United States v. Clovis Retail Liquor Dealers Trade Association, 540 F.2d 1389, 1390 (10th Cir.1976) (requiring defendant in criminal antitrust case to pay reparations to party not specifically harmed by violation, e.g., county alcoholic rehabilitation organization).

Implicit in the limitations on the permissible conditions of probation are two others suggested by the $10,000 condition imposed on Fiore in this case. First, it is not permissible to require a defendant to pay the penalty or serve the term of a codefendant as a condition of probation. After all the efforts that the courts make to ensure that defendants are not mistakenly or maliciously convicted for crimes that others have committed, it would be incongruous were it permissible to compel a defendant, once convicted of his misdeeds, to suffer penalties for another's wrongdoings as well as his own. It is true that Fiore is president, secretary, sole stockholder and the only full-time employee of that co-defendant. To the extent that Fiore caused or neglected to prevent the fraud by BCRI, it would have been entirely proper that he be convicted for that fraud. 1 But the degree

Page 209

of Fiore's control and complicity in having tests performed by unqualified...

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  • U.S. v. Gementera, No. 03-10103.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 9, 2004
    ...v. Smith, 972 F.2d 960, 961-62 (8th Cir.1992) (not siring children except by wife for a narcotics conviction); Fiore v. United States, 696 F.2d 205, 208-10 (2d Cir.1982) (making reparations for crime to which only a co-defendant had pled guilty). He also cites Springer v. United States, 148......
  • U.S. v. Casamento, Nos. 201-217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 11, 1989
    ...parties for actual damages or loss caused by the offense for which conviction was had." Interpreting Sec. 3651 in Fiore v. United States, 696 F.2d 205, 209 (2d Cir.1982), this court wrote that a "defendant may not be required to pay reparations to persons not aggrieved by his crimes, or sim......
  • U.S. v. Sun-Diamond Growers of California, SUN-DIAMOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1998
    ..."violations" by persons not under his control. United States v. Sweeney, 914 F.2d 1260, 1263 (9th Cir.1990). Cf. Fiore v. United States, 696 F.2d 205, 208-09 (2d Cir.1982) (reversing condition of probation imposed on defendant who was president, secretary, sole stockholder and only full-tim......
  • U.S. v. Barnette, Nos. 84-3727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 8, 1986
    ...701 (11th Cir.1983) (per curiam). A sentencing court may not "impose fees and charges at will on a defendant," Fiore v. United States, 696 F.2d 205, 209 (2d Cir.1982); the amount of actual losses must be established in some manner. Cf. Johnson, 700 F.2d at 701-702 (remand for resentencing w......
  • Request a trial to view additional results
35 cases
  • U.S. v. Gementera, No. 03-10103.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 9, 2004
    ...v. Smith, 972 F.2d 960, 961-62 (8th Cir.1992) (not siring children except by wife for a narcotics conviction); Fiore v. United States, 696 F.2d 205, 208-10 (2d Cir.1982) (making reparations for crime to which only a co-defendant had pled guilty). He also cites Springer v. United States, 148......
  • U.S. v. Casamento, Nos. 201-217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 11, 1989
    ...parties for actual damages or loss caused by the offense for which conviction was had." Interpreting Sec. 3651 in Fiore v. United States, 696 F.2d 205, 209 (2d Cir.1982), this court wrote that a "defendant may not be required to pay reparations to persons not aggrieved by his crimes, or sim......
  • U.S. v. Sun-Diamond Growers of California, SUN-DIAMOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1998
    ..."violations" by persons not under his control. United States v. Sweeney, 914 F.2d 1260, 1263 (9th Cir.1990). Cf. Fiore v. United States, 696 F.2d 205, 208-09 (2d Cir.1982) (reversing condition of probation imposed on defendant who was president, secretary, sole stockholder and only full-tim......
  • U.S. v. Barnette, Nos. 84-3727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 8, 1986
    ...701 (11th Cir.1983) (per curiam). A sentencing court may not "impose fees and charges at will on a defendant," Fiore v. United States, 696 F.2d 205, 209 (2d Cir.1982); the amount of actual losses must be established in some manner. Cf. Johnson, 700 F.2d at 701-702 (remand for resentencing w......
  • Request a trial to view additional results

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