U.S. v. Tolla

• Decision Date: 09 January 1986
• Docket Number: D,No. 1388,1388
• Citation: 781 F.2d 29
• Parties: 29 Ed. Law Rep. 581 UNITED STATES of America, Appellee, v. Jo Ann TOLLA, Defendant-Appellant. ocket 85-1091.
• Court: U.S. Court of Appeals — Second Circuit

Page 29

781 F.2d 29

29 Ed. Law Rep. 581

UNITED STATES of America, Appellee, v. Jo Ann TOLLA, Defendant-Appellant.

No. 1388, Docket 85-1091.

United States Court of Appeals Second Circuit.

Argued July 17, 1985.

Decided Jan. 9, 1986.

Harold James Pickerstein, Chief Asst. U.S. Atty., Bridgeport, Conn. (Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellee.

Andrew B. Bowman, Westport, Conn., for defendant-appellant.

Martin Margulies, Bridgeport, Conn., submitted a brief for amicus curiae Connecticut Civil Liberties Union.

Before PIERCE and PRATT, Circuit Judges, and STEWART, District Judge. ^*

STEWART, District Judge.

On January 7, 1985, following a plea of nolo contendere, appellant Jo Ann Tolla was convicted of income tax evasion in violation of 26 U.S.C. Sec. 7201. The sole issue presented on this appeal is whether the United States District Court for the District of Connecticut (Eginton, Judge ) abused its discretion in directing appellant to refrain from teaching young people as a condition of her one-year probation. Appellant contends that this condition of probation bears no reasonable relationship to the goals of probation, and that its imposition was improper. Since we disagree with appellant's contention, we affirm the District Court.

BACKGROUND

On April 10, 1984, a federal grand jury sitting in Connecticut returned a seven-count indictment charging appellant Jo Ann Tolla and her husband Charles M. Tolla, Jr. with income tax evasion in violation of 26 U.S.C. Sec. 7201. Counts Five, Six and Seven of the indictment alleged that on September 10, 1981, during a question and answer session with an agent of the Internal Revenue Service, appellant made false statements under oath in order to conceal reportable income and evade income taxes that she and her husband owed for the calendar years 1977, 1978 and 1979.

On January 7, 1985, appellant pled nolo contendere to Count Six of the indictment. During the September 10 session with the IRS agent, appellant furnished the basis for Count Six when she falsely denied under oath that in 1978, she and her husband had hired outside contractors to install a swimming pool and landscape the grounds of their home, that they had engaged the services of an interior decorator, and that they had made large purchases of household furnishings. According to the Government, the failure to report the income expended on these goods and services enabled the Tollas to evade the payment of more than $20,000 in income taxes. At the January 7 hearing, the Government advised the court that pursuant to its plea agreement with appellant, it would recommend that Counts Five and Seven be dismissed, and that appellant not be sent to prison. The court accepted appellant's plea and entered a finding of guilty against her with respect to Count Six of the indictment.

On February 28, 1985, Judge Eginton sentenced appellant to three years in prison. In accordance with the Government's recommendation, however, he suspended execution of the sentence, placed appellant on probation for three years, and directed her to perform 300 hours of community service. He also directed that as a further condition of her probation, appellant refrain from teaching religious education to young people.

Prior to sentencing, appellant's pastor at St. Gabriel's Roman Catholic Church as well as nuns with whom she worked and studied had written letters to the judge extolling appellant's dedication to her family and church and urging the judge to exercise leniency in sentencing her. Therefore, in imposing the restriction on her teaching activities, the judge was aware that appellant was pursuing a degree in religious education through the Archdiocese of Bridgeport and was teaching on a voluntary basis in St. Gabriel's Religious Education Program. He was also aware Subsequent to the filing of a notice of appeal on March 8, 1985, the judge advised the parties that he wished to resentence appellant and scheduled a second sentencing hearing for March 27, 1985. On that same date, appellant filed a motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure seeking a reduction in sentence, including modification of the special probation condition originally imposed by the court. The motion was accompanied by a letter from appellant in which she expressed remorse for her crime and gratitude to the judge for not sending her to prison. She also advised the judge that she had discussed the circumstances of her crime with her pastor, and that, despite his knowledge over a three-year period of the on-going IRS investigation and of her subsequent conviction, he had still offered her the position of Religious Education Director at St. Gabriel's. Finally, appellant asked the judge to lift his prohibition against her teaching of religious education during the period of her probation.

that appellant's pastor had recently offered her the paid position of Program Director. In explaining his sentencing decision, the judge directed his remarks in large measure to those members of Mrs. Tolla's religious community who had written on her behalf. He emphasized the seriousness of the crime of perjury. He pointed out that if he had sent appellant to prison, a step he had rejected only out of concern for her children, she would have been unable in any event to teach religious education. Finally, he observed that "it is entirely the wrong image for me * * * to let an admitted and flagrant repeated perjurer give children religious education or any other type of education."

At the March 27 hearing, the judge informed appellant that he had originally intended to prohibit her from teaching young people, not from teaching religious education, and, as a result, had declined to sign his initial judgment. In addressing the merits of appellant's Rule 35 motion, he acknowledged that it raised issues that he had not considered at the original sentencing. While concluding that he should take into account appellant's honest admission of criminal wrongdoing and otherwise exemplary conduct during the three and one half years that had elapsed since the commission of the crime, the judge remained disturbed nonetheless by the prospect of a perjurer in the classroom. He resentenced appellant to a suspended three-year term of imprisonment and reduced the period of her probation to one year and her community service obligation to 200 hours. Although he removed the reference to religious education, he continued the special condition by prohibiting appellant from teaching young people during the period of her probation. He defined young people as anyone eighteen years of age or younger. ¹ The district court stayed imposition of the restriction on appellant's teaching activities pending the outcome of the present appeal.

DISCUSSION

Federal trial courts are accorded broad discretion to decide which defendants merit probation and under what conditions they will serve their probation. 18 U.S.C. Sec. 3651 (1982). Since conditions of probation are subject to review only for abuse of discretion, Fiore v. United States, 696 F.2d 205, 207 (2d Cir.1982); United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir.1971), a defendant who seeks to overturn a particular condition must establish that the court acted outside its discretionary authority in imposing it. The burden is a heavy one. In this Circuit, as in others, discretionary authority in probation matters is bounded by only two limitations. The first requires that the courts comply with the provisions of the Federal Probation Act, 18 U.S.C. Sec. 3651 (1982). Fiore, 696 F.2d at 208; see also United States v. Kohlberg, 472 F.2d 1189, 1190 (9th Cir.1973) (per curiam). The second requires that conditions of probation be reasonably related to the simultaneous goals of rehabilitating the defendant and protecting the public. Fiore, 696 F.2d at 208; United States v. Pastore, 537 F.2d 675, 681 (2d Cir.1976); see also United States v. Nu-Triumph, Inc., 500 F.2d 594, 596 (9th Cir.1974); Porth v. Templar, 453 F.2d 330, 333 (10th Cir.1971). In other words, conditions or probation must serve the objectives of probation, which are "to produce * * * law abiding citizen[s] and at the same time to protect the public against continued criminal or antisocial behavior." Porth, 453 F.2d at 333.

Appellant claims that the restriction on her teaching activities as a condition of her probation is irrational, punitive, and unrelated to the goals of probation, and that Judge Eginton exceeded his discretionary authority in imposing it. The Government responds that appellant was spared imprisonment solely for the sake of her children, that she could not have taught young people if she had been imprisoned, and that the condition imposed by the court is related to the goals of probation because it promotes appellant's continued rehabilitation and protects impressionable young people from the influence of a convicted perjurer. Given the circumstances of this case, we believe that the court's imposition of the challenged condition did not constitute an abuse of discretion.

In reaching this conclusion, we give little weight to the Government's arguments that appellant would have been sent to prison but for her children, and that, once imprisoned, she could not have taught young people anyway. Neither argument merits extended discussion. No one challenges on this appeal the legitimacy of the court's initial decision to place appellant on probation rather than imprison her. ² Once a court lawfully determines that a defendant should be placed on probation, the focus of its concern must of necessity shift away from issues of guilt and punishment to those of rehabilitation and protection of the public. See Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); Higdon v. United States, 627 F.2d 893, 897-98 (9th Cir.1980). Moreover, the hypothesized impact of a prison sentence on appell...