U.S. v. Schiff, 836

• Decision Date: 17 May 1989
• Docket Number: D,No. 836,836
• Citation: 876 F.2d 272
• Parties: -1447, 89-2 USTC P 9465 UNITED STATES of America, Appellee, v. Irwin A. SCHIFF, Defendant-Appellant. ocket 88-1481.
• Court: U.S. Court of Appeals — Second Circuit

Page 272

876 F.2d 272

63 A.F.T.R.2d 89-1447, 89-2 USTC P 9465

UNITED STATES of America, Appellee, v. Irwin A. SCHIFF, Defendant-Appellant.

No. 836, Docket 88-1481.

United States Court of Appeals Second Circuit.

Argued March 16, 1989.

Decided May 17, 1989.

Irwin A. Schiff, Forest Hills, N.Y., pro se.

Peter S. Jongbloed, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellee.

Before MESKILL, MINER and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

This is a pro se appeal by Irwin A. Schiff from a ruling on his Rule 35 motion to correct and reduce his sentence filed in the United States District Court for the District of Connecticut, Dorsey, J. Appellant Schiff's motion alleges, inter alia, that the conditions of probation imposed by the district court violate his constitutional right not to be a witness against himself and his constitutional rights of free speech and freedom of association. The district court denied Schiff's motion, finding that the conditions imposed were reasonably related to the goal of preventing Schiff from engaging in future acts similar to those for which he had been convicted and to the protection of the public.

We affirm the decision of the district court.

BACKGROUND

We have previously set out the facts of this case in detail, see United States v. Schiff, 801 F.2d 108 (2d Cir.1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987), and we therefore mention them only briefly here. Schiff was convicted in 1985 of three counts of attempted tax evasion in violation of 26 U.S.C. Sec. 7201 (1982) and one count of willful failure to file a corporate tax return in violation of 26 U.S.C. Sec. 7203 (1982). As we noted in our prior opinion, in which we affirmed the convictions underlying the sentence challenged here, Schiff is a "professional Following his conviction, the district court imposed a sentence on Schiff that was comprised of both incarceration and probation. Schiff's Rule 35 challenge is to three of the five special conditions attached to his probation. These conditions are:

                tax resister."    Schiff, 801 F.2d at 109
                

(3) defendant shall remain current insofar as all legally required tax payments with reasonable and good faith compliance [sic] and shall file all returns required by tax laws; (4) defendant shall not associate or maintain any relationship with any group that advocates non-compliance with or violation of tax laws; (5) defendant shall not participate in or promote any meeting sponsored or promoted by groups or individuals formed or brought together, such as seminars, media events or any other forum for the purpose of promoting or advocating non-compliance with or violation of tax laws.

Schiff contends that the third special probation condition (i.e., the first of these three conditions) forces him to testify against himself by filing tax returns, that the phrase "all legally required tax payments" is vague and that the court cannot order payment of a tax that has not yet been assessed by the Internal Revenue Service (IRS). As to the fourth and fifth special conditions, Schiff argues that they are vague and overbroad, that they violate the First Amendment and that they are unrelated to his convictions. Schiff also makes various arguments that address the legality of the convictions underlying his sentence.

The district court did not consider Schiff's argument that his convictions should be overturned, but it did consider, and reject, his other contentions in a thoughtful opinion. We agree with the reasoning of the district court.

DISCUSSION

In 1981-1983, the time period during which Schiff committed the acts charged in the indictment, probation was authorized for defendants such as Schiff under the federal Probation Act, 18 U.S.C. Sec. 3651 (1982). Under section 3651, the decisions whether a defendant would be granted probation and under what conditions probation would be granted were left to the discretion of the trial judge. Any conditions of probation, however, had to be " 'reasonably related to the simultaneous goals of rehabilitating the defendant and protecting the public.' " United States v. Sterber, 846 F.2d 842, 843 (2d Cir.1988) (quoting United States v. Tolla, 781 F.2d 29, 32-33 (2d Cir.1986)). If a condition was "unnecessarily harsh or excessive" in light of these goals, it was invalid. Id.

Under the rule applicable to offenses committed before November 1, 1987, a district court could "correct an illegal sentence at any time and ... correct a sentence imposed in an illegal manner within the time provided." Fed.R.Crim.P. 35(a). It also, within certain time limits, could reduce a sentence upon a motion or sua sponte. Fed.R.Crim.P. 35(b). Schiff cites both sections of Rule 35 in asking that the conditions of his probation be corrected.

We review the district court's decision not to alter the conditions of Schiff's probation for abuse of discretion. See Sterber, 846 F.2d at 843 (probation conditions within discretion of trial judge); Tolla, 781 F.2d at 32 (reviewing probation conditions following district court's denial of portion of Rule 35 motion); Fiore v. United States, 696 F.2d 205, 207 (2d Cir.1982).

It is well established that a motion under Rule 35 can only be used to correct an illegal sentence, and not to correct trial errors or errors in other pre-sentencing proceedings. See Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962); United States v. Bonansinga, 855 F.2d 476, 477-78 (7th Cir.1988); United States v. Smith, 839 F.2d 175, 181-82 (3d Cir.1988); United States v. Mathews, 833 F.2d 161, 164 (9th Cir.1987); United States v. Willis, 804 F.2d 961, 964 (6th Cir.1986); United States v. DeFillipo, 590 F.2d 1228, 1233 n. 4 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979). The district court therefore properly did not consider the arguments Schiff raised below concerning We begin by noting that in setting conditions of probation the discretion given to the district court is broad and many conditions that may infringe on a person's constitutional rights have been approved. The permissible scope of such conditions is great. See Frank v. United States, 395 U.S. 147, 154, 89 S.Ct. 1503, 1508, 23 L.Ed.2d 162 (1969) (Warren, C.J., dissenting) (describing "the high degree of control that courts, together with their probation officers, can maintain over those brought before them"). With this in mind, we address in turn each of the challenged probation conditions.

                the validity of his conviction.  The time for raising those points was on his direct appeal to this Court, see Schiff, 801 F.2d 108, or in a habeas corpus proceeding. 1   We therefore do not address these arguments here.  Although the district court stated in its decision below that Rule 35 cannot be used to address the convictions underlying Schiff's sentence, Schiff has persisted in raising arguments on this appeal that go to the legitimacy of his convictions.  Despite repeated prompting by the panel during oral argument, Schiff never adequately addressed the only question that we have jurisdiction to hear:  the legality of the conditions of his probation.  We now turn to that question
                

A. Special Condition Three: Filing All Required Tax Returns

We have held before that someone convicted of failure to file income tax returns may, as a condition of probation, be required to file those delinquent returns. See United States v. Kraeger, 711 F.2d 6, 8 (2d Cir.1983) (per curiam). Similarly, we see no reason why requiring Schiff to make a good faith effort to keep current in his taxes is an abuse of discretion. He had been convicted of attempted evasion of income tax. We believe the condition in question to be entirely reasonable and appropriate.

Schiff's argument that the condition is vague amounts to a rehash of his basic thesis: he does not have to pay taxes. He asserts that no income tax is "legally required." Rather, he claims to believe that income taxes are voluntary in the sense that one does not have to pay them unless one wants to. To the extent that income taxes are said to be "voluntary," however, they are only voluntary in that one files the returns and pays the taxes without the IRS first telling each individual the amount due and then forcing payment of that amount. The payment of income taxes is not optional, however, see, e.g., Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir.1988); Newman v. Schiff, 778 F.2d 460, 467 (8th Cir.1985), and the average citizen knows that the payment of income taxes is legally required. The third special probation condition, mandating that Schiff pay all "legally required" taxes, is neither overbroad nor vague.

Schiff also contends that he cannot be ordered to pay taxes when the IRS has not determined the amount of any tax liability on his part. In other words, Schiff wants the IRS to tell him how much he owes, and have the judicial system confirm that amount, before he commits to paying taxes. Schiff, however, misinterprets the law. If he earns sufficient income, he is required to file an income tax return and pay the taxes for which he is responsible. 26 U.S.C. Secs. 6001, 6151 (1982); 26 U.S.C. Sec. 6012 (1982 & Supp. IV 1986) (as amended by Technical and Miscellaneous Revenue Act of 1988, Pub.L.No. 100-647, Sec. 1001(b)(2), 102 Stat. 3342, 3349); 26 C.F.R. Sec. 1.6012-1 (1988). This condition of probation mandates no more than the law requires.

Finally, Schiff argues that the third special probation condition forces him to be a witness against himself, a constitutional right that he distinguishes from the right against self-incrimination. Not only is Schiff incorrect in his view of the Fifth Amendment's self-incrimination clause, but he should know from our earlier decision that the Fifth Amendment does not give a person the right to withhold ... required information on [an...