U.S. v. Spallone

• Citation: 399 F.3d 415
• Decision Date: 04 March 2005
• Docket Number: Docket No. 03-1791.
• Parties: UNITED STATES of America, Appellee, v. Silvio SPALLONE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

399 F.3d 415

UNITED STATES of America, Appellee, v. Silvio SPALLONE, Defendant-Appellant.

Docket No. 03-1791.

United States Court of Appeals, Second Circuit.

Argued: September 15, 2004.

Decided: March 4, 2005.

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Vivian Shevitz, South Salem, New York (Melvyn Roth, Garden City, New York, of counsel), for Defendant-Appellant.

Jeffrey A. McLellan, Attorney, Tax Division, United States Department of Justice, Washington, D.C. (Eileen J. O'Connor, Assistant Attorney General, Tax Division; Robert J. Lindsay, Alan Hechtkopf, John Hinton III, Attorneys, Tax Division, on the brief; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.

Before: SACK, RAGGI, and HALL, Circuit Judges.

RAGGI, Circuit Judge:

Defendant-Appellant Silvio Spallone pleaded guilty to income tax evasion, see 26 U.S.C. § 7201, in the United States District Court for the Eastern District of New York (Jacob Mishler, Judge) and, on August 18, 2000, was sentenced to thirty months' imprisonment, three years' supervised release with a special condition that he pay restitution in the amount of $1,425,014, corrected on August 24, 2000 to $2,450,515, and a $100 special assessment. By order dated April 18, 2002 (Jacob Mishler, Judge), the court reduced Spallone's sentence pursuant to Fed.R.Crim.P. 35(b) to "time served." United States v. Spallone, 99-CR-0317, Order (E.D.N.Y. Apr. 18, 2002). At issue on this appeal is a subsequent order, entered December 4, 2003 (Denis R. Hurley, Judge), compelling Spallone to serve the supervised release term and to pay restitution as ordered in the original judgment of conviction. United States v. Spallone, 99-CR-0317, Order (E.D.N.Y. Dec. 4, 2003).¹ Spallone argues that this order is unlawful because it impermissibly attempts to modify or correct the reduced sentence imposed on April 18, 2002. We reject Spallone's argument. While a district court's ability to correct or modify a sentence is narrowly circumscribed by Fed.R.Crim.P. 35 and 36, it nevertheless retains inherent authority to interpret ambiguities in its own orders and judgments. In this case, there is such an ambiguity in the use of the term "sentenced" in the April 18, 2002 order granting Rule 35(b) relief. The district court did not exceed its authority in clarifying this ambiguity. Moreover, having reviewed the totality of circumstances de novo, we concur in the district court's conclusion that the April 18, 2002 order reduces only Spallone's incarceratory sentence and does not vacate the sentence of supervised release or restitution specified in the August 18, 2000 judgment of conviction. Accordingly, we affirm the December 4, 2003 judgment ordering Spallone to serve supervised release and to pay restitution.

I. Factual Background

A. Spallone's Original Sentence

On September 30, 1999, after several witnesses had testified against him at trial, Spallone pleaded guilty to two counts of income tax evasion in violation of 26 U.S.C. § 7201. On August 18, 2000, he was sentenced to concurrent thirty-month terms of incarceration and three year terms of supervised release with a special condition that he pay restitution to the United States in the amount of $1,425,014, plus interest and penalties and a $100 special assessment. On consent of the parties, the court entered an order on August 24, 2000, correcting the restitution amount to reflect the victim's true loss of $2,450,515. See Fed.R.Crim.P. 35(a) (stating that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error").

B. The Order Reducing Sentence Pursuant to Rule 35(b)

Following imposition of judgment, Spallone began to cooperate with federal authorities, in consideration whereof the government, on July 9, 2001, moved in the district court for a reduction of Spallone's sentence pursuant to Fed.R.Crim.P. 35(b).² The government candidly advised the court that it was not then in a position to assess the value of Spallone's cooperation; nevertheless, it filed the motion to prevent the lapse of the rule's one-year limitations period. The government stated that it would submit supporting papers or withdraw the motion as soon as it had fully evaluated Spallone's assistance.

Nine months later, on April 1, 2002, the government filed a letter with the court detailing the investigative leads supplied by Spallone. Acknowledging that Spallone's cooperation had not yet led to any prosecutions, the government urged the court to rule on the pending Rule 35(b) motion to ensure that Spallone received consideration before he "served his entire term of incarceration." Prosecution Letter to Court, Apr. 1, 2002, at 2. In response to what appears to have been an informal court inquiry as to whether the government opposed a sentence reduction to "time served," the government filed another letter stating that it did not. Prosecution Letter to Court, Apr. 17, 2002 ("In as much as Your Honor presided over the trial, took the defendant's plea and imposed the sentence, the government has no objection to any reduction of the defendant's sentence that Your Honor deems appropriate.").³

By order dated April 18, 2002, Judge Mishler granted the government's Rule 35(b) motion, ruling as follows:

On April 1, 2002, the government respectfully submitted an[] application for a reduction of sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure in reference to the above named defendant Sylvio Spallone.

The government having no objection to any reduction of the defendant's sentence as stated in their letter dated April 17, 2002[,]

It is, ORDERED that the defendant Sylvio Spallone be sentenced to time served.

United States v. Spallone, 99-CR-0317 (E.D.N.Y. Apr. 18, 2002).

Judge Mishler did not thereafter enter an amended judgment of conviction in Spallone's case. Instead, it appears that a copy of his April 18, 2002 order was simply forwarded to the Bureau of Prisons, which promptly released Spallone, thereby sparing him the further six months' imprisonment, four months' custody in a half-way house, and ten weeks' home detention that he would otherwise have been required to serve pursuant to his original thirty-month prison sentence.

A release notice by the Bureau of Prisons advised Spallone of his obligation to report to a probation officer within three days of arrival in his resident district and supplied the name and business address of the Chief Probation Officer for the Eastern District of New York. The same release order, on a line intended to alert Spallone to outstanding obligations including "fine, restitution, etc.," noted "N/A," presumably meaning "not applicable."

C. The Motion to Compel Supervised Release and Restitution

Following his release from custody, Spallone did not report to the United States Probation Department to begin serving his term of supervised release.⁴ Accordingly, by letter motion dated November 5, 2002, the government requested the district court to order Spallone to comply with the supervision and restitution provisions of his judgment of conviction, arguing that Judge Mishler's April 18, 2002 order reduced only the incarceratory terms of Spallone's sentence.

In support of its motion, the government explained that its April 1, 2002 request for a ruling on the Rule 35(b) motion had been prompted by discussions with Spallone's counsel, who was "concern[ed] that the defendant would serve his entire 30-month sentence prior to the completion of the government's investigation and that, therefore, the defendant would not receive any reward for his cooperation." Prosecution Letter to Court, Nov. 5, 2002, at 2. The government noted that "during these discussions, there was never any consideration that the defendant's term of Supervised Release or his restitution payments be modified. The sole issue was when would the defendant be released from incarceration." Id. at 3. The government asserted that the court's April 18, 2002 order answered this question, effectively ordering Spallone's "immediate release." Id. But "[a]t no time did the court abrogate its prior order that the defendant ... complete 3 years of Supervised Release and make restitution." Id.

In a Memorandum and Order dated December 4, 2003, Judge Hurley granted the government's motion and ordered Spallone to serve the term of supervised release and to pay restitution ordered in his August 18, 2000 judgment of conviction. Judge Hurley ruled that the April 18, 2002 order granting Rule 35(b) relief was not a superseding judgment imposing an entirely new sentence, as defendant argued, but simply "a mechanism to modify the incarceration aspect of the earlier judgment," with no effect on the restitution and supervised release components of that judgment. United States v. Spallone, 99-CR-0317, Order at 6-7 (E.D.N.Y. Dec. 4, 2003). In support of this interpretation, Judge Hurley cited circumstances giving rise to the order:

The nature of the April 18, 2002 order must be viewed in the undisputed context in which it was issued: (1) defense counsel asked the government to make application to Judge Mishler to reduce the incarceration portion of the sentence so that Spallone would receive some benefit from his post sentence cooperation; (2) neither party mentioned the restitution or supervised release portions of Judge Mishler's sentence during those discussions; and (3) the government explained to Judge Mishler in its letter of April 1, 2002, that it was making the Rule 35(b) motion then, rather than later, because otherwise Spallone would have "served his entire term of incarceration" before the matter was presented to the Court.

Id. at 7. He further noted that Judge Mishler had entered "[n]o amended judgment ... to eliminate the restitution and supervised release portions of defendant's sentence." Id. at 7-8. Because the ...