U.S. v. Doe
| Decision Date | 22 March 1996 |
| Docket Number | D,No. 992,992 |
| Citation | 79 F.3d 1309 |
| Parties | 96-1 USTC P 50,209 UNITED STATES of America, Appellee, v. John DOE, Defendant-Appellant. ocket 95-1470. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, requiring, as a condition of probation, that defendant notify his clients of his conviction for assisting in the preparation of a false income tax return.
Emily Berger, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Faith E. Gay, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.
Vivian Shevitz, Mount Kisco, New York (Carol E. Gette, on the brief), for Defendant-Appellant.
Before: KEARSE, WALKER, and HEANEY *, Circuit Judges.
Defendant, an accountant convicted of aiding and abetting the preparation and filing of a false income tax return, in violation of 26 U.S.C. § 7206(2) (1994), appeals from a postjudgment order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, requiring him, as a condition of the probation imposed in his judgment of conviction, to notify his tax-preparation clients of his conviction. On appeal, defendant contends principally that the notification condition constitutes an occupational restriction that is not reasonably necessary to protect the public. For the reasons that follow, we vacate the order of the district court and remand for reconsideration.
The events prior to entry of the April 28, 1995 judgment of conviction are not in dispute. The questions raised by the present appeal principally concern the meanings and propriety of certain postjudgment instructions by the court.
Defendant, referred to as John Doe for purposes of this opinion, is an attorney and an accountant, though not a certified public accountant. Prior to December 1990, he was employed as a tax return preparer by a New York City accounting firm that came under investigation by the Internal Revenue Service ("IRS") for preparation of fraudulent income tax returns. The presentence report ("PSR") prepared on Doe by the Probation Department stated that, according to the government, the firm's partners instructed its staff accountants preparing tax returns to, inter alia, overstate the value of miscellaneous deductions and claim undocumented deductions without regard to accuracy.
In 1988, Doe prepared and filed, for one of the firm's clients, a tax return that falsely claimed deductions of $2,763. Doe's act came to the IRS's attention in 1989. In 1990 Doe himself pleaded guilty in March 1994 to one count of aiding and abetting the preparation and filing of a false income tax return. At the plea hearing, the court asked, "Do you understand that you face a possible loss of your license to practice law or accounting?" Doe answered affirmatively. (Plea Hearing Transcript, March 18, 1994, at 12-13.)
Doe began cooperating with the government, left the firm, and opened his own office. Doe's cooperation led to the conviction, following a plea of guilty, of one of the firm's partners
The statutory maximum prison term for Doe's offense was three years. Because Doe had no criminal history points as calculated under the federal Sentencing Guidelines ("Guidelines"), the applicable Guidelines range of imprisonment was 0-6 months, and he was eligible to be sentenced to one-to-five years' probation rather than imprisonment. The government moved pursuant to Guidelines § 5K1.1 for a downward departure from the Guidelines range in light of Doe's substantial assistance to the government in its investigation.
Doe was sentenced some 13 months later. At the sentencing hearing, Doe's attorney Jeffrey C. Hoffman urged the court to be lenient, noting that Doe was sure to be suspended from the practice of law as a result of his conviction, and that as a matter of policy in grievance matters before New York State's Appellate Division, that suspension would not be shorter than his federal period of probation. The court responded as follows:
I am fully aware of, Mr. Hoffman, what the Appellate Division does in a great many cases with respect to probation. The argument is made to me where attorneys are brought before me for sentencing for wrongdoings that I shouldn't put them on probation because they will be disbarred or suspended. My answer to it is they are lucky they are not going to be incarcerated for the full three years prior to them being able to walk the streets. They shouldn't be arguing on the issue of whether or not they will be able to practice law, when they themselves have disqualified themselves.
18 months probation. $5,000 cost of supervision. A $5,000 fine. A $50 special assessments fine and cost of supervision and the special assessment.
(Sentencing Transcript, April 28, 1995, at 5-6.) The court did not mention any particular condition of probation.
The written judgment entered on April 28, 1995, included the following preprinted provision:
While the defendant is on probation pursuant to this judgment,....
....
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
On the same day, Doe signed a form entitled "Conditions of Probation and Supervised Release" (the "Probation Form") that stated "[i]t is the order of the Court that you shall comply with the following standard conditions" (Probation Form at 1), and contained, as its p 14, the same third-party notification language as p 13 of the judgment, substituting only "you" and "your," respectively, for "the defendant" and "the defendant's" (id. at 2).
For approximately six weeks after he was sentenced, Doe was under the supervision of the Probation Office in the Eastern District of New York ("EDNY"). The EDNY Probation Office did not require Doe to notify his accounting clients of his conviction. However, since Doe resided within the Southern District of New York ("SDNY"), supervision was to be transferred to the SDNY Probation Office. The latter office raised a question as to whether Doe should be required to give such notification to his clients. By letter dated June 1, 1995, Hoffman wrote to the EDNY Probation Office to urge that the notification requirement not be imposed.
Hoffman pointed out that, as the United States Attorney's Office was aware, Doe had commenced his own tax-preparation service in 1990, that he had been under the auspices of that Office for some 4 1/2 years, and that there had been no complaints about his conduct during that time. Hoffman stated that Doe's clientele had remained relatively static during that period and that the imposition of the client-notification requirement "would result in the crippling, if not the total destruction, of his business." (Hoffman letter to EDNY Probation Office dated June 1, 1995 ("Hoffman June 1 Letter"), at 2.)
As a result of Hoffman's letter, the EDNY Probation Office sent a memorandum to the district judge, stating that the SDNY Probation Office had "advised that they will accept supervision after the issue of third party risk has been resolved." (Memorandum from U.S. Probation Officer James M. Stein & Supervising U.S. Probation Officer Laurence Meyerson to the district judge dated June 9, 1995 ("Probation Office June 9 Memorandum"), at 1.) The memorandum enclosed the Hoffman June 1 Letter and agreed with it, stating, in part, that the EDNY Probation Office viewed it as "unlikely that Mr. [Doe] will again involve himself in criminal activity," and that though third-party notification is often desirable, "an exception" should be made here (Probation Office June 9 Memorandum at 1):
The purpose of this memorandum is to request Your Honor's decision regarding Mr. [Doe's] continued employment as a public accountant since it can be construed as a third party risk due to his conviction in [sic ] the instant offense. It is noted that the offender is not a Certified Public Accountant and consequently he is not required to be licensed as a Public Accountant by the State of New York. In regard to the third party risk issue, the probationer's attorney ... has submitted a letter wherein he candidly outlines the reasons why the probationer should be permitted to continue to be employed as a public accountant and the adverse effects it would have if the probationer was [sic ] required to advise his clientele of his tax law conviction.
It is clear that Mr. [Doe's] employment as a public accountant represents a third party risk and the conditions of probation which were reviewed and signed by him on April 28, 1995, specifically states [sic ], "... as directed by the probation officer, you shall notify third-parties of risks that may be occasioned by your criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm your compliance with such notification requirement."
The Probation Department in the Eastern District of New York has carefully and thoroughly reviewed all factors in this case and is of the opinion that it is unlikely that Mr. [Doe] will again involve himself in criminal activity.... The issue of third party risk is considered an extremely important matter and its importance should never be undermined. However, in this instance, the undersigned officer believes and respectfully recommends that an exception to the third party risk issue be made and the probationer should be given the opportunity to continue employment as a...
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