United States v. Anthony R. Conte

99 F.3d 60, 1996 U.S. App. LEXIS 27419, 1996 WL 599699
CourtCourt of Appeals for the Second Circuit
DecidedOctober 21, 1996
Docket645, Docket 96-1344
StatusPublished
Cited by35 cases

This text of 99 F.3d 60 (United States v. Anthony R. Conte) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Anthony R. Conte, 99 F.3d 60, 1996 U.S. App. LEXIS 27419, 1996 WL 599699 (2d Cir. 1996).

Opinion

KEARSE, Circuit Judge:

Defendant Anthony R. Conte, convicted following Ms plea of guilty to bank fraud in violation of 18 U.S.C. § 1344 (1994) and sentenced to a term of probation, appeals from a judgment of the Umted States District Court for the Eastern District of New York, Charles P. Sifton, Chief Judge, revoking his probation and sentencing him to a four-month term of imprisonment. The court found that Conte violated the terms of Ms probation by, inter alia, failing to work at a lawful occupation and providing information to Ms probation officer that was not truthful. On appeal, Conte contends principally that the Sentenemg Reform Act of 1984 (“Sentencing Act” or “Act”), 18 U.S.C. § 3551 et seq. (1994), does not provide that the reports and responses required of- a probationer must be truthful, and hence the court had no statutory authorization to impose a truthfulness requirement or to pumsh him for pro-vidmg information that was false. He also argues that there was insufficient evidence to support the findings of probation violations, that the revocation proceedings violated his Fifth and Sixth Amendment rights, and that the district judge should have recused himself from ruling on the probation violation charges. Finding no merit m any of Ms contentions, we affirm.

I. BACKGROUND

Following Ms plea of guilty and a period of cooperation with the government, Conte was sentenced in May 1995 to, inter alia, a three-year term of probation. The judgment of conviction set forth 13 “STANDARD CONDITIONS OF PROBATION” (the “Standard Conditions”), including the following:

(2) The defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month.
(3) The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.
(5) The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons.
(10) The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer.

Judgment dated June 2, 1995. In addition, the judgment imposed one special condition: “A special condition of probation is that the defendant spend the first 12 months of the period of probation under house arrest.” Id.

In October 1995, Conte began serving Ms one-year term of house arrest and signed a form entitled “Home Confinement Program-Participant Agreement” (“Agreement”). In the Agreement Conte stated, in pertinent part, as follows:

2. I will remain at my approved residence at all times, except for employment and other activities approved in advance by my probation or pretrial services offi *62 cer. Regularly occurring activities are provided for in my written weekly schedule which remains in effect until modified by my officer. I must obtain my officer’s advance permission for any special activities (such as doctor’s appointments) that are not included in my written schedule.

On January 31, 1996, the United States Probation Department (“Department” or “Probation Department”) petitioned the district. court to find that Conte had violated the above conditions of his probation. The six numbered charges were:

1. Failure to Comply with Special Condition of House Arrest,
2. Failure to Submit Truthful and Complete Wrtten [sic ] Reports to the Probation Department,
3. Failure to Answer Truthfully All Inquiries by the Probation Officer,
4. Failure to Follow the Instruction of the Probation Officer,
5. Failure to Work Regularly at a Lawful Occupation,
6. Failure to Permit a Probation Officer to Visit Him at His Home.

Conte moved to dismiss the second and third charges on the ground that the Sentencing Act does not require him to give information that is truthful. He also moved to dismiss several charges on the ground, inter alia, that they violated his Fifth Amendment privilege against self-incrimination, and he asserted that the allegation that he failed to allow a probation officer into his home on the occasion in question violated his Sixth Amendment right to counsel.

The district court held a hearing at which the government presented evidence from probation officers and from employees of Marcal Paper Mills (“Marcal”), a company with which Conte had claimed to do business. According to Probation Officer David J. Washington, Conte had told the Probation Department that he was the self-employed owner and sole operator of a recycling business known as American Recycling Corporation, and that as part of his operations he daily rented a U-Haul truck to transport recyclable paper materials that he purchased from various apartment complexes in Queens, New York, and resold to Marcal in New Jersey. Washington testified that on a number of occasions, probation officers instructed Conte to submit for their inspection all of the books, records, and receipts pertaining to his business, as well as the licenses he needed in order to operate the business. In response, Conte had submitted only what appeared to be a corporation “Mt” and the start of an employment log; he did not produce any other business documents. Two probation officers testified that employees at U-Haul and the apartment complexes from which Conte supposedly collected recyclable materials had no record of him or of American Recycling Corporation. Two employees of Marcal also testified. One stated that he did not recognize Conte; the other stated that although she had seen Conte at the Marcal plant, she did not believe he delivered materials on a daily basis.

Two probation officers testified to Probation Department surveillances of Conte’s activities in December 1995 and January 1996, which disclosed numerous failures by Conte to follow preapproved schedules for absences from his home. On one occasion, Conte did not appear at the destinations indicated on his pre-approved itinerary. On another, Conte went to a shopping mall without Department authorization. On several days, Conte returned home between 24 and 46 minutes late; on another, he left home 27 minutes earlier than he was authorized to do. On January 5, 1996, Conte told probation officers he was not going to work; when Washington asked to enter Conte’s home, Conte refused him entry. On January 12, 1996, having received permission to go to meet with his attorney, Conte left home but did not show up at the attorney’s office; he refused to disclose where he had been.

Conte testified on his own behalf at the hearing. Without denying the allegations against him, he offered explanations for, inter alia,

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Bluebook (online)
99 F.3d 60, 1996 U.S. App. LEXIS 27419, 1996 WL 599699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anthony-r-conte-ca2-1996.