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UNITED STATES v. SCHWARTZ

October 30, 1995

UNITED STATES OF AMERICA
v.
STEVEN SCHWARTZ



The opinion of the court was delivered by: KATZ

 AND NOW, this 30th day of October, 1995, following a probation revocation hearing pursuant to Fed. R. Crim. P. 32.1(a)(2), the court makes the following findings of fact and conclusions of law.

 1. On August 16, 1995, the Probation Office filed a petition with the court requesting a probation revocation hearing (the "Revocation Petition") on the grounds that Mr. Schwartz has violated the conditions of his probation. On October 23, 1995, the government filed its Notice of Violation of Probation and Hearing Memorandum (the "Notice"), which was amended on October 26, 1995 to reflect defendant's conduct on October 23, 1995. Mr. Schwartz's probation requires that he:

 
(1) refrain from violation of any law (federal, state, and local) and get in touch immediately with your probation officer if arrested or questioned by a law-enforcement officer. . . .
 
(4) answer truthfully all inquiries by the probation officer . . .

 A special condition for payment of the fine and restitution was also imposed. Judgment and Commitment Order of May 26, 1989 (hereinafter J & C) at 2.

 2. The Revocation Petition charges Mr. Schwartz with violating these conditions by committing disorderly conduct, *fn1" on July 10, 1995, at the Montgomery Count Courthouse by trying to force his way into the chambers of Common Pleas Judge Bernard A. Moore after making several phone calls to Judge Moore's chambers that were not resolved to Mr. Schwartz's satisfaction. The Notice expands the grounds for revocation to include lying to the probation officer, failing to file income tax returns, and not making a good faith effort to pay the restitution and fine.

 3. Mr. Schwartz contests the factual assertions in the Revocation Petition. In addition, Mr. Schwartz argues that the Revocation Petition should be denied as moot because his term of probation expired prior to the alleged conduct upon which the petition is based.

 4. Thus, the court must determine: (1) whether Mr. Schwartz's term of probation expired prior to the events giving rise to the revocation petition; and, (2) if not, whether Mr. Schwartz violated the conditions of his probation as charged in the Revocation Petition.

 Probation History

 5. This court's judgment and commitment order of May 26, 1989 directed:

 
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. *fn2"

 J & C at 1.

 6. After imposing this sentence, the court stayed its execution and continued Mr. Schwartz's bail pending appeal. On May 25, 1990, after Mr. Schwartz's conviction was affirmed on appeal, the court revoked Mr. Schwartz's bail and directed the United States Marshal to execute the custodial sentence imposed on May 26, 1989. Order of May 24, 1990.

 7. Mr. Schwartz's term of probation did not begin to run while his sentence was stayed pending appeal, nor did his term of probation run during the period of his custodial sentence on Count Three. 18 U.S.C. ยง 3564(a) (term of probation does not run while the defendant is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than thirty consecutive days). *fn3"

 8. On July 5, 1991, Mr. Schwartz completed the custodial sentence imposed on Count 3 and commenced the five year probationary term imposed on Count 2. Mr. Schwartz's term of probation was originally scheduled to expire on July 4, 1996.

 9. Mr. Schwartz argues that his probationary sentence commenced prior to July 5, 1991. A footnote in the court's Order of April 6, 1994 reads:

 
The court's Orders of February 25, 1991 (Document 117), September 25, 1991 (Document 124), October 7, 1991 (Document 129), January 4, 1994 (Document 142), and Feb 3, 1994 (Document 148) ...

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