U.S. v. Truscello, Docket No. 97-1404

• Decision Date: 22 January 1999
• Docket Number: Docket No. 97-1404
• Citation: 168 F.3d 61
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Dominick TRUSCELLO; John Gammarano; Salvatore Lombardi; Barry Nichilo; Gaetano Vastola; Manny Garafolo; Steven Long, Defendants, Steven Crea, Defendant-Appellant.

Page 61

168 F.3d 61

UNITED STATES of America, Appellee, v. Dominick TRUSCELLO; John Gammarano; Salvatore Lombardi Barry Nichilo; Gaetano Vastola; Manny Garafolo Steven Long, Defendants Steven Crea, Defendant-Appellant.

Docket No. 97-1404.

United States Court of Appeals Second Circuit.

Argued Sept. 14, 1998.

Decided Jan. 22, 1999.

Bridget M. Rohde, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY, Emily Berger, Assistant United States Attorney, Brooklyn, NY, on brief), for Appellee.

Paul A. Victor, New York City (Dublirer, Haydon, Straci & Victor, New York City, Flora Edwards, New York City, of Counsel, Betty M. Crea, New York City, of Counsel, on brief), for Defendant-Appellant.

Before: KEARSE, Circuit Judge, CASEY ^* and POLLACK, ^** District Judges. ^***

CASEY, District Judge:

PRELIMINARY

Steven Crea appeals from the district court's denial of his motion to resettle his sentence to delete certain conditions of his supervised release that were listed in a written Judgment and Commitment Order (the "J & C") after his oral sentence was imposed. Crea argues, inter alia, that under Federal Rule of Criminal Procedure 43, his oral sentence should control because the J & C contained additional conditions to his supervised release. For the reasons discussed below, we need not reach Crea's remaining arguments because the above issue is dispositive. The J & C's enumeration of the conditions of supervised release did not alter the oral sentence, but merely provided an explanation of what that supervised release entailed. Accordingly, Crea's motion to modify the J & C to conform to his oral sentence was denied.

BACKGROUND

Defendant-appellant Crea entered into a plea agreement, pleading guilty to conspiracy to defraud the United States in violation of 18 U.S.C. § 371. ¹ On December 8, 1995, he was sentenced before Judge Sterling Johnson, Jr. to nine months imprisonment, which he served, and three years supervised release with the special condition that he pay $22,230 in restitution, and a $50 special assessment. Although Judge Johnson's oral pronouncement of sentence did not articulate the standard conditions of supervised release, the written J & C included fourteen requirements listed as "standard conditions." ² Arguing that the J & C's inclusion of the standard conditions was not consistent with his oral sentence, Crea moved before Judge Johnson to correct the J & C to conform to his oral sentence. Crea's motion was denied by Memorandum and Order, dated June 26, 1997. See United States v. Crea, 968 F.Supp. 826 (E.D.N.Y.1997).

DISCUSSION

Implicit in the very nature of supervised release is that certain conditions are necessary to effect its purpose. Crea's appeal must be denied simply because there is no conflict between the oral sentence imposed by Judge Johnson and the written J & C reflecting that oral sentence. Federal Rule of Criminal Procedure 43 requires that a defendant be present at the imposition of his sentence. When a J & C conflicts with the oral sentence, Rule 43's requirement that the defendant be present for his sentence is violated. See United States v. Werber, 51 F.3d 342, 347 (2d Cir.1995). Accordingly, this Circuit has held that "where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment ... the oral pronouncement ... must control." United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974) (emphasis added) (internal quotation marks omitted); see also United States v. DeMartino, 112 F.3d 75, 78-79 (2d Cir.1997); Werber, 51 F.3d at 347; United States v. Moyles, 724 F.2d 29, 30 (2d Cir.1983).

Crea's reliance on certain of these cases, however, is misplaced, for they involved actual inconsistencies, whereas it is equally well established that it is permissible for the written judgment to resolve genuine ambiguities in the oral sentence, see, e.g., United States v. Pugliese, 860 F.2d 25, 30 (2d Cir.1988); Moyles, 724 F.2d at 30. Thus, on the one hand, we held in Marquez that it was impermissible to impose a simple fine orally and then, in the written judgment, to impose instead a committed fine, the consequence of nonpayment of which would be imprisonment. See 506 F.2d at 622. And in DeMartino, we vacated a written judgment imposing a 63-month term of imprisonment when the court had orally pronounced a 48-month term. See 112 F.3d at 80-81; id. at 79 (after pronouncing sentence orally, district court not allowed to enter a conflicting written judgment because it "change[d] its mind about the appropriateness of the sentence" (internal quotation marks omitted)).

On the other hand, where there was no real inconsistency but rather an ambiguity, we have upheld the written judgment. For example, where the sentencing court was silent with regard to whether the terms of imprisonment were to be served concurrently or consecutively, the written judgment could permissibly specify either. See Pugliese, 860 F.2d at 30. And where the sentencing judge's statement of intent to impose a special assessment was ambiguous, such an assessment could be imposed in the written judgment. See United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986).

In the present case, we think it clear that the difference between the oral pronouncement of sentence and the written judgment did not amount to a conflict, but rather that the latter reflected a clarification of what the oral pronouncement meant by "supervised release." During Crea's plea colloquy, the trial court had made it clear that certain conditions would apply to Crea's term of supervised release, failure to comply with which would result in imprisonment. And at sentencing, the court reiterated that Crea would be required to serve a term of supervised release. The written judgment simply clarified the meaning of that sentence by specifying what the supervision was to entail.

In sum, there is no indication here that the written judgment changed the sentence that was pronounced orally. The oral pronouncement of sentence simply did not specify what the conditions of supervised release were to be; the specification of those conditions in the written judgment did not in any way conflict with the oral pronouncement.

Our view is buttressed by the fact that we previously have concluded that, at oral sentencing, even the most general allusion to the "standard conditions" of supervised release is a sufficient basis on which to predicate the imposition of each of the conditions normally regarded as standard. See United States v. Smith, 982 F.2d 757, 759, 764 (2d Cir.1992) (where sentencing court referred only to "standard conditions adopted by this court," those conditions were in effect imposed). Thus, explicit reference to each and every standard condition of supervision is not...