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United States v. Schiff

decided: May 17, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
IRWIN A. SCHIFF, DEFENDANT-APPELLANT



Irwin A. Schiff appeals pro se from a decision of the United States District Court for the District of Connecticut, Dorsey, J., denying his motion for reduction or correction of sentence made pursuant to Fed.R.Crim.P. 35. Appellant Schiff was convicted in 1985 of one count of failure to file a corporate income tax return and three counts of attempted evasion of personal income taxes. Schiff claims, inter alia, that various conditions of his probation violate his constitutional rights to free speech and freedom of association and his constitutional right not to be a witness against himself. Affirmed.

Meskill, Miner and Mahoney, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge

This is a pro se appeal by Irwin A. Schiff from a ruling on his Rule 35 motion to correct and reduce his sentence filed in the United States District Court for the District of Connecticut, Dorsey, J. Appellant Schiff's motion alleges, inter alia, that the conditions of probation imposed by the district court violate his constitutional right not to be a witness against himself and his constitutional rights of free speech and freedom of association. The district court denied Schiff's motion, finding that the conditions imposed were reasonably related to the goal of preventing Schiff from engaging in future acts similar to those for which he had been convicted and to the protection of the public.

We affirm the decision of the district court.

BACKGROUND

We have previously set out the facts of this case in detail, see United States v. Schiff, 801 F.2d 108 (2d Cir. 1986), cert. denied, 480 U.S. 945, 94 L. Ed. 2d 789, 107 S. Ct. 1603 (1987), and we therefore mention them only briefly here. Schiff was convicted in 1985 of three counts of attempted tax evasion in violation of 26 U.S.C. § 7201 (1982) and one count of willful failure to file a corporate tax return in violation of 26 U.S.C. § 7203 (1982). As we noted in our prior opinion, in which we affirmed the convictions underlying the sentence challenged here, Schiff is a "professional tax resister." Schiff, 801 F.2d at 109.

Following his conviction, the district court imposed a sentence on Schiff that was comprised of both incarceration and probation. Schiff's Rule 35 challenge is to three of the five special conditions attached to his probation. These conditions are:

(3) defendant shall remain current insofar as all legally required tax payments with reasonable and good faith compliance [sic] and shall file all returns required by tax laws; (4) defendant shall not associate or maintain any relationship with any group that advocates non-compliance with or violation of tax laws; (5) defendant shall not participate in or promote any meeting sponsored or promoted by groups or individuals formed or brought together, such as seminars, media events or any other forum for the purpose of promoting or advocating non-compliance with or violation of tax laws.

Schiff contends that the third special probation condition (i.e., the first of these three conditions) forces him to testify against himself by filing tax returns, that the phrase "all legally required tax payments" is vague and that the court cannot order payment of a tax that has not yet been assessed by the Internal Revenue Service (IRS). As to the fourth and fifth special conditions, Schiff argues that they are vague and overbroad, that they violate the First Amendment and that they are unrelated to his convictions. Schiff also makes various arguments that address the legality of the convictions underlying his sentence.

The district court did not consider Schiff's argument that his convictions should be overturned, but it did consider, and reject, his other contentions in a thoughtful opinion. We agree with the reasoning of the district court.

Discussion

In 1981-1983, the time period during which Schiff committed the acts charged in the indictment, probation was authorized for defendants such as Schiff under the federal Probation Act, 18 U.S.C. § 3651 (1982). Under section 3651, the decisions whether a defendant would be granted probation and under what conditions probation would be granted were left to the discretion of the trial judge. Any conditions of probation, however, had to be "'reasonably related to the simultaneous goals of rehabilitating the defendant and protecting the public.'" United States v. Sterber, 846 F.2d 842, 843 (2d Cir. 1988) (quoting United States v. Tolla, 781 F.2d 29, 32-33 (2d Cir. 1986)). If a condition was "unnecessarily harsh or excessive" in light of these goals, it was invalid. Id.

Under the rule applicable to offenses committed before November 1, 1987, a district court could "correct an illegal sentence at any time and . . . correct a sentence imposed in an illegal manner within the time provided." Fed.R.Crim.P. 35(a). It also, within certain time limits, could reduce a sentence upon a motion or sua sponte. Fed.R.Crim.P. 35(b). Schiff ...


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