urged the court to hold his motion under advisement until 72 days had passed from the time of the August, 1997 sentencing, and then modify the August, 1997 Order to revoke Motto's probation but impose no period of incarceration. This would have effectuated the court's desire to punish Motto for his transgressions but also avoid imposition of special parole. While the cross-motions were pending, Motto served the 72 days incarceration but his argument is still persuasive.
The function of old Rule 35(b) was to "give every defendant a second round before the sentencing judge, and [to afford] the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented ... in the interim." United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert. denied, 393 U.S. 918, 21 L. Ed. 2d 206, 89 S. Ct. 241 (1968). The government's recent position, raised after sentence was imposed in August, that a term of special parole is mandatory, is "further information about the ... case" that the court deems relevant to Motto's Rule 35(b) motion.
At the hearing on August 18, 1997, Motto had been in custody since July 18, 1997 for violation of probation based on the court's finding of probable cause for violation. Following a final hearing, the court determined Motto should spend the rest of his probationary term in custody for concealing his assets and ability to pay the fine imposed at sentencing. The court considered that punishment adequate because by the time of the final hearing on violation of probation, the fine had been paid in full. The court refused the government's request for an extended term of imprisonment and lifetime special parole because it viewed such a sentence as disproportionate to the offense in the circumstances and an effort to enhance his original sentence and/or punish Motto for uncharged drug and tax offenses.
The court was mindful that the facts regarding Motto's ability to pay his fine had been long known to the government but not revealed to the Probation Office or the court despite repeated requests to provide evidence of probation violations if available to aid the court in its supervision of this probationer. Only the persistence of the Probation Office at the urging of the court resulted in the violation hearing that forced payment of the fine. The court considered all circumstances in declining to impose a term of special parole. Had the court known a special parole term of at least three years was mandatory if a sentence of imprisonment were imposed, the sentence would not have been custodial; the punishment would have imposed an additional financial burden as fitting the offense.
To effectuate the court's intent, it is necessary to grant Motto's Rule 35(b) motion, vacate the sentence of imprisonment and terminate the probation without imprisonment. This does not depreciate the seriousness of the offense because the violation hearing forced the payment of the fine in full. The violation of probation should not be used to increase the penalty for the original offense nor to punish defendant for the other offenses the government has not charged because they cannot be proved beyond a reasonable doubt. The government may still indict Motto for any offense (e.g., drug dealing, tax evasion, perjury) it can prove.
The court has consulted its probation officer who is in agreement with this disposition. Although the defendant lied to the probation officer and failed to reveal his income and assets, this was concealed from the court not only by the defendant but by the government as well. The court's disposition sends an appropriate message.
An appropriate order follows.
AND NOW, this 12th day of November, 1997, upon consideration of the motions to correct or reduce sentence filed by the United States of America (the "government") and defendant William Motto ("Motto"), after a hearing in which counsel for both parties were heard, and in accordance with the attached Memorandum, it is hereby ORDERED that:
1. Motto's motion to alter the August, 1997 sentence pursuant to Federal Rule of Criminal Procedure 35(b) is GRANTED.
2. The court's sentence imposed on August 18, 1997, as modified on August 22, 1997, is MODIFIED as follows: Motto's probation is REVOKED ; no term of incarceration is imposed because all fines due and owing have been paid.
3. The government's motion to impose a term of special parole pursuant to Federal Rule of Criminal Procedure 35 is DENIED.
Norma L. Shapiro, J.