Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Criminal No. 87-00162.
Sloviter, Chief Judge, and Cowen and Garth, Circuit Judges. Sloviter, Chief Judge, concurring.
The proceeding underlying the present appeal was initiated by a petition filed by the probation office having supervision over Daniel R. Ofchinick, Sr. The petition sought a date for a hearing for the court "to determine if the probationer has violated the conditions of his probation." Among other provisions of Ofchinick's sentence, he had been placed on probation subject to a number of terms and conditions, one of which required him to make restitution to his victims.
This court had previously affirmed the district court's order that set the total amount of Ofchinick's restitution obligation, relating to his conviction for mail and securities fraud and RICO violations, at a total of $3,988,629.54. United States v. Ofchinick, 883 F.2d 1172, 1175-76, 1184 (3d Cir. 1989). Because Ofchinick had paid only a total of $150 toward that restitution obligation, on September 21, 1990 the district court ordered that a probation violation hearing be held on October 5, 1990.*fn1 At the hearing, the evidence that was adduced included evidence of Ofchinick's income and expenses. At the conclusion of the hearing, the district court ruled from the bench, ordering Ofchinick to pay $1000 per month in installment payments to discharge his restitution obligation. Appendix at 47. The district court ruled: "I'm ordering him to pay $1,000 a month restitution beginning with the last day of this month, and the last day of every month hereafter until his restitution is paid. If he doesn't pay it he's going back to jail." Appendix at 47.
Ofchinick appealed the district court's oral ruling, arguing that the $1000 per month payment schedule violated his due process rights, because the evidence was insufficient to establish that he had the ability to make such payments. He argues, as well, that his First Amendment rights are violated by such an order as it does not recognize or give him credit for his $600 per month payment to the church of which he is a minister.
Initially we confronted a jurisdictional problem in that the district court, in delivering its oral ruling, had not reduced that ruling to a written order which could be docketed. In the absence of a docketed order, Ofchinick's notice of appeal was premature. We, thereupon, directed the district court to enter a written order resolving its October 5, 1990 hearing so that the clerk of the district court could enter that order in its docket. On May 3, 1991, the district court entered the order which was required if jurisdiction was to vest in this court.*fn2 Ofchinick's earlier filed notice of appeal thereupon ripened, and vested jurisdiction in this court to address Ofchinick's challenges to the district court's disposition of the probation violation hearing. See In re Matter of Grand Jury Empaneled January 21, 1975, 541 F.2d 373, 376-77 (3d Cir. 1976).
The government nevertheless contends that although an effective order has now been filed by the district court, an appeal still does not lie because "the order is not ripe for review." Supplemental Brief of the Government, filed April 9, 1991, at 2. The government does not agree that the mere filing of an order setting forth a new probationary condition is sufficient to invoke our jurisdiction. Rather, in supplemental briefing ordered by this court, the government argues that the district court's order "merely implements the [restitution] order previously affirmed by this court," id., and that because Ofchinick has apparently thus far complied with that order and has not been incarcerated for its violation,*fn3 he does not present an issue that is ripe for appeal. The government argues that:
the order constitutes an administrative step implementing the previous order of restitution, which both the district court and this Court had found Ofchinick able to pay. Although the district court warned that Ofchinick must pay the set amount or go to jail, this is the understood threat that accompanies every probation condition.
The order does not become ripe for review unless or until probation is revoked.
Supplemental Brief of the Government, at 5, 7. In effect, the government's position is that until Ofchinick fails to make the ordered $1,000 per month payment, has his probation revoked, and is remanded to prison, he may not appeal the condition of probation imposed by the ...