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UNITED STATES v. CREA

June 26, 1997

UNITED STATES OF AMERICA, against STEVEN CREA, Defendant.


The opinion of the court was delivered by: JOHNSON

MEMORANDUM & ORDER

 JOHNSON, District Judge:

 BACKGROUND

 On August 18, 1995 the Defendant, Steven Crea, pled guilty to conspiracy to defraud the United States Government. On December 8, 1995, the Defendant was sentenced to nine months imprisonment, various fines, restitution, and three years of supervised release. The Defendant served his sentence of imprisonment and was released from jail on November 7, 1996.

 The Defendant then met with his probation officer, Mark J. Maffucci, who gave the Defendant a copy of the Judgment and Commitment Order. The Defendant also signed Probation Form 7A, titled "Conditions of Probation and Supervised Release" acknowledging his awareness of the conditions governing his term of supervised release. The Defendant protested the validity of the standard conditions, numbered one through thirteen on the form, by signing and writing in "I will abide by all conditions pending a review and determination by the Court regarding the scope of the Court order." *fn1"

 The Defendant claims that imposing the conditions constitutes an ex post facto modification of his sentence in violation of Federal Rule of Criminal Procedure 32.1(b). Defendant alleges violation of his rights to due process, privacy and movement, freedom of association, freedom from warrantless search and seizure *fn2" and his right against self-incrimination. Def. Mem. at 9.

 For the reasons set forth below, the Defendant's motion is denied. The Defendant shall abide by each of the conditions set forth in Probation Form 7A and the Judgment and Commitment Order for the remainder of his term of supervised release. As informed by this Court at the plea colloquy, the Defendant may be returned to prison for up to two years for violating any of the standard conditions for the remainder of his term of supervised release.

 DISCUSSION

 The Defendant first argues that the conditions of supervised release were not properly imposed, and that he is therefore not bound by them. He then argues that the Court does not have the authority to impose the conditions at this time. Although the Court concludes that the conditions were properly imposed, in the interest of finality, the Court will address the Defendant's argument regarding the Court's authority to modify the conditions of supervised release. The Court will first provide a brief overview of the purpose of supervised release to provide some context for the Defendant's arguments.

 I. SUPERVISED RELEASE

 Supervision is a means of protecting the public from those who have been deemed dangerous. The defendant is allowed a chance to readjust to society and an opportunity to learn how to live a life free of criminal activity. Supervised release is intended to impose reasonable restrictions on the Defendant's liberty in light of the Defendant's past criminal behavior, to provide the much-needed guidance of a probation officer, and to discourage activity which may lead to further crimes. *fn3"

 Supervised release requires a defendant to alter his or her behavior, but compared to imprisonment, the conditions of supervised release impose a very minor infringement on a defendant's liberty. Simply put, individuals on supervised release are not entitled to the same liberties as others who have not been determined to need supervision. As recently stated by the Second Circuit Court of Appeals;

 
The constitutionality of limitations on an individual's right to associate with those who have been convicted of unlawful activity has been upheld in a variety of contexts, most commonly to prevent a convicted defendant from associating with those who would lead him back into a life of crime. The government may, for instance, impose restrictions "reasonably and necessary related" to its continuing interest in a wrongdoer's rehabilitation, and in protecting the public from further criminal acts. Sanitation and Recycling Indus. v. City of New York, 107 F.3d 985, 998 (2d Cir. 1997).

 Crea alleges that the condition prohibiting his association with convicted felons "burdens [his] First Amendment right of freedom of association" and "directly impacts his ability to maintain his livelihood." Def. Not. of Mot. at P14. Crea pled guilty to conspiracy, thus rendering his past associations especially relevant to his criminal history and future propensity for crime. This condition is therefore particularly necessary in this case.

 In United States v. Bolinger, 940 F.2d 478 (9th Cir. 1991), the court upheld a condition of supervised release prohibiting the defendant's participation or membership in motorcycle clubs. The court, considering the defendant's plea of guilty to firearms possession and drug dealing, concluded that this was a valid restriction on the defendant's freedom of association.

 
The sentencing judge could properly have concluded that Bolinger was more likely to relapse into crime if he returned to his prior associations. Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal. Bolinger, 940 F.2d at 480 (citing Malone v. United States, 502 F.2d 554, 556-57 (9th Cir. 1974), cert. denied, 419 U.S. 1124, 42 L. Ed. 2d 824, 95 S. Ct. 809(1975)).

 The Defendant entered into a very favorable plea agreement with the government, and was sentenced at the mid-point of the applicable guideline range of six to twelve months. He has greatly profited from a system that balances the defendant's rehabilitation with the need to protect the public. Now, through semantical manipulations, the Defendant wishes to escape the minor requirements of supervision. This, the Court will not allow.

 II. "VARIANCE" BETWEEN THE WRITTEN AND ORAL SENTENCING PRONOUNCEMENTS

 The written conditions listed in Probation Form 7A and the Judgment and Commitment Order fully conform with the Court's oral imposition of a sentence of three years supervised release. Rather than being a "variance," as alleged by the Defendant, the detailed list of conditions is merely a means of setting forth the procedures and administration of supervision, ...


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