The opinion of the court was delivered by: MARVIN KATZ
AND NOW, this 13th day of March, 1995, upon consideration of defendant's Emergency Motion To Rescind The Order Issued Ex-Parte Commanding The Production Of Defendant's Records Maintained With The Division Of Gaming Enforcement and the government's response, it is hereby ORDERED that defendant's Motion is DENIED and the New Jersey Division of Gaming Enforcement shall deliver the records detailed in the court's Order of February 27, 1995 forthwith.
In early April 1989, defendant was tried pursuant to a three count indictment for bank fraud. On April 14, 1989, the jury returned a verdict of guilty on two counts of bank fraud. On May 26, 1989, the court sentenced defendant as follows:
On Count 3 defendant is committed to the custody of the Attorney General or his duly authorized representative for imprisonment for a term of EIGHTEEN MONTHS.
On Count 2 defendant shall pay a fine to the United States of $ 10,000.00 (TEN THOUSAND DOLLARS). Sentence of imprisonment is suspended and defendant is placed on probation for a term of five years on the special conditions that he pay the fine, restitution to Philadelphia Nation Bank of $ 94,085.25 (NINETY-FOUR THOUSAND, EIGHTY-FIVE DOLLARS AND TWENTY-FIVE CENTS), the special assessment of $ 100.00 (ONE HUNDRED DOLLARS) on such terms as the probation office determines he is able and that the defendant shall make no direct contact with any witness or the family, associates or friends of any witness.
Judgment in a Criminal Case at 1.
On April 27, 1990, the Third Circuit affirmed defendant's conviction and sentence of incarceration to be followed by probation.
On March 15, 1994, upon petition from the United States Probation Office (the "Probation Office"), the court ordered a probation revocation hearing pursuant to Rule 31.1, Fed.R.Crim.P., to determine whether Mr. Schwartz' conduct with regard to the disclosure of his financial condition to his probation officer and his efforts to satisfy his fine and restitution obligations violated his probation. On May 17, 1994, the court concluded:
21. Defendant has violated a General Condition of his probation by not following his probation officer's instructions regarding disclosure of his financial condition and by falsifying information in response to the probation officer's inquires.
22. Defendant has willfully refused to pay the fine and restitution ordered by this court as special conditions of his probation. See Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983); U.S. v. Palma, 760 F.2d 475 (3d Cir. 1985),
Findings of Fact and Conclusions of Law of May 18, 1994 (hereinafter "Findings") at 9, and sentenced defendant to six months incarceration to be followed by the unexpired term of his probation on the same terms and conditions as previously imposed. Order of May 18, 1994. On January 23, 1995, the Third Circuit affirmed the court's finding that defendant violated the conditions of his probation and the court's corresponding sentence. On April 6, 1994 defendant filed a motion attacking his conviction and sentence pursuant to 28 U.S.C. § 2255. Defendant supplemented this motion on June 1, 1994. By Order of September 9, 1994, the court denied the § 2255 motion. The Third Circuit has affirmed this Order.
The court finds that it was not inappropriate for the government to request the Gaming Order on an ex-parte basis given the nature of the information sought and defendant's demonstrated tendency to ignore the conditions of his probation and obstruct any investigation regarding his compliance with such conditions. See Findings at 4-9. In addition, it is clear from the facts and circumstances surrounding defendant's probation and the narrow time specification on the ...