U.S. v. Kendis, s. 89-5260
| Decision Date | 05 July 1989 |
| Docket Number | 89-5261,Nos. 89-5260,s. 89-5260 |
| Citation | 883 F.2d 209 |
| Parties | UNITED STATES of America v. Sherman KENDIS, Appellant. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Sherman Kendis, Fort Worth, Tex., pro se.
Donna A. Krappa, Edna Ball Axelrod, Newark, N.J., for appellee.
Before SLOVITER, HUTCHINSON and NYGAARD, Circuit Judges.
This is an appeal by Sherman Kendis, pro se, from the order of the district court denying his motion for reconsideration of the court's order denying his motion for reduction of sentence pursuant to Fed.R.Crim.P. 35. Kendis, an attorney, pled guilty on February 9, 1987 to one count of bank fraud for unlawfully converting $144,976.29 while acting as an attorney for Ocean Club in Atlantic City by forging the signature of payees on checks given him for purposes of settlement of their claims. We shall refer to this matter as Kendis I. Pursuant to his plea agreement, Kendis was required, inter alia, to pay restitution to all potential victims. On April 10, 1987 Kendis was sentenced to five years imprisonment but all but six months of the incarceration were suspended and he was placed on five years probation to commence upon release. Execution of the sentence was stayed until May 4, 1987 when he reported for prison. On the same day he filed for personal bankruptcy.
Kendis was released from custody on September 21, 1987. In October 1987, the government moved to revoke Kendis' probation on the ground that the money he had used to make restitution to clients during the period between the acceptance of his guilty plea and his sentencing was actually money which had been entrusted to him by other clients and which he had improperly converted to his own use.
In November, 1987 Kendis was indicted on five counts of bank fraud committed during the period between March 11, 1987 and May 4, 1987 while he was released on bail and awaiting sentencing in Kendis I. We shall refer to this matter as Kendis II.
On December 14, 1987, following a hearing on the revocation of probation issue, the district court revoked Kendis' probation. Thereafter on September 30, 1988 Kendis pled guilty to two counts of the five count indictment in Kendis II. He was sentenced on October 13, 1988 to three years incarceration and a fine of $10,000 on each of the two counts to which he had pled guilty, the sentences to run consecutively, and was also ordered to pay $264,925 in restitution and a $100 special assessment. On the same day the district court vacated its sentence in Kendis I as a result of the revocation of Kendis' probation, and sentenced him to four years incarceration to be served consecutively to that imposed in Kendis II. The court also directed that Kendis pay restitution as previously ordered.
On appeal Kendis contends first that the district court abused its discretion in revoking his probation on Kendis I because the offense on which the district court relied for such revocation occurred prior to his sentencing and hence while he was not on probation. We reject Kendis' argument. In United States v. Camarata, 828 F.2d 974, 977 n. 5 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1036, 98 L.Ed.2d 1000 (1988), we recognized that some courts had adopted the fraud on the court exception to the general rule that revocation of probation is generally based on acts occurring after sentencing. See also United States v. Veatch, 792 F.2d 48, 51 (3d Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). We are now faced with the issue directly, and we also adopt the principle that revocation of probation is permissible when defendant's acts prior to sentencing constitute a fraud on the court.
Kendis argues, however, that his action in using clients' converted funds to pay restitution did not constitute a fraud on the court because there was no concealment of the crime and the court was aware of the possibility of other potential victims of Kendis' illegal activity. In this case, the record shows that Kendis relied heavily on his acts of restitution to persuade the district court to...
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