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January 17, 2003


The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge

Report and Recommendation

Pending is a petition alleging probation violations by William R. Taintor, Jr., referred by the Honorable Thomas J. McAvoy, District Court Judge, for a hearing and a report containing proposed findings of fact and recommendations. See 18 U.S.C. § 3401(i); 28 U.S.C. § 636(b)(1).

I. Background

After pleading guilty to tax evasion in the Eastern District of Pennsylvania, Taintor was sentenced on September 18, 2000, by the Honorable John P. Fullam to six months home detention and five years probation. Judge Fullam imposed the standard probation conditions, and special conditions requiring that Taintor pay one-half of the penalties and interest due the Internal Revenue Service ("IRS") within two years and that he sell his boat and apply the sales proceeds to his IRS debt within six months. The conditions were later modified, adding the requirement that Taintor provide probation access to his financial information. On May 17, 2001, Taintor's probation was transferred to this district.

On September 25, 2002, Taintor's probation officer, Franklin H. Gonzalez II, filed a petition alleging that Taintor had violated the standard probation conditions by engaging in three instances of new criminal conduct, and had violated the special condition by failing to reimburse the IRS for penalties and interest. On October 25, Taintor appeared before Judge McAvoy and requested the appointment of counsel. Judge McAvoy assigned uncompensated counsel, and adjourned further proceedings sine die. He then appointed James P. McClusky, Esq., and on November 25, 2002, issued the referral order.

On December 12, the court conducted a hearing and received testimonial and documentary evidence from both the government and Taintor. Gonzalez testified on behalf of the government, and Taintor, Jason Reichart and Brian Cuppernill testified on behalf of the defense. Following the hearing, the court told Taintor that it concluded that he committed perjury during his testimony regarding a Veterans Administration distribution and related financial transactions.

II. The Allegations

In paragraphs 1-3 of the petition, Gonzalez asserted that on three separate occasions, Taintor violated the mandatory condition that he not commit another federal, state or local crime. See 3563(a)(1); see also, Taintor Judg., pg.2, Gov't Ex. 1. Those violations alleged: (1) on November 15, 2001, Taintor, as a convicted felon, possessed a rifle in violation of 18 U.S.C. § 922(g); (2) on January 7, 2002, Taintor made a false statement concerning "cash inflow" on a Written Monthly Supervision Report in violation of 18 U.S.C. § 1001; and, (3) in a financial statement dated July 30, 2002, Taintor made a false statement concerning the value of his residence in violation of 18 U.S.C. § 1001. In a fourth violation, Gonzalez alleged that Taintor had violated Special Condition # 4 by not paying one-half of the penalties and interest due and owing the IRS within two years of judgment, and by not selling his boat within six months of the date of judgment.

III. Findings of Fact

As necessary to its recommendations, the court has weighed the testimony of all witnesses, reviewed the exhibits, incorporated Taintor's presentence investigation report ("PSI") into the record, and applied a preponderance of the evidence standard. Accordingly, it turns to its findings of fact.*fn1

A. Violation 1: Possession of a Rifle by a Convicted Felon

1. The court credits the testimony of Gonzalez, and finds that during a home visit on November 15, 2001, he entered the residence through the garage, observed a Savage model 110, 270 Winchester rifle on top of a boat, confronted Taintor with his discovery, listened to Taintor's explanation, seized the weapon and turned it over to the Jefferson County Sheriff's Department. See also, Gov't Exs. 10, 11.

2. Gonzalez did not immediately file a violation petition, but did issue a written reprimand. See Gov't Exs. 8, 12.

3. Taintor fully knew and understood that possession of a weapon by a convicted felon was a federal felony, all as evidenced by his signed acknowledgment of notices on September 18 and October 10, 2000. See Gov't Exs. 3, 6.

4. The court credits the testimony of Jason Reichart, Taintor's son-in-law, and finds that several days prior to November 15, 2001, Reichart observed the rifle in the automobile of Kevin Cuppernill, Taintor's daughter's boyfriend, advised Cuppernill that he should not have the rifle in the car because he had been drinking, and then retrieved the rifle from the car and placed it on the boat.

5. The court credits the testimony of Reichart and Taintor, and finds that both were aware of the weapons possession prohibition, and Reichart's testimony that he simply forgot about the prohibition when he put the weapon in the garage.

6. The court credits the testimony of Cuppernill's father, Brian, that he owned the rifle, gave it to Kevin before November 15 to hunt, and retrieved it from the Jefferson County Sheriffs Department some time after November 15.

7. The court is not reasonably satisfied that Taintor was untruthful when he testified that he does not hunt, had no reason to have the rifle at the house, and did not know it was there until confronted by Gonzalez.

B. Violation 2: False Statement: Written Monthly Supervision Report (Income)

8. The court credits the documentary evidence and testimony of Gonzalez and concludes that Taintor was subject to the standard condition of probation requiring that he "answer truthfully all inquiries by the probation officer," and was obligated to "provide the probation officer with access to any requested financial information." See Gov't Exs. 1, 4, 5.

9. Taintor was fully instructed by Gonzalez on all conditions of probation, and was fully aware that he was obligated to provide complete disclosure of all assets and financial resources owned or controlled by him to his probation officer for the purpose of, inter alia, ensuring compliance with the special condition of probation requiring his payment of interests and penalties to the IRS within two years of the date of judgment and the sale of the boat within six months of judgment. See also, Gov't Ex. 13 (summarizing the obligation).

10. As a special condition of probation designed to implement the financial conditions, Taintor was required to file a written Probation 8 Form, Monthly Supervision Report. See e.g., Gov't Ex. 14, Def. Ex. 1.

11. The Probation 8 Form contains a signature line certifying that the information supplied is "accurate and complete," and a warning that "[a]ny false statements may result in . . . 5 years imprisonment, a $250,000 fine, or both. (18 U.S.C. § 1001)." Gov't Ex. 14, p. 2 (alteration in the original).

12. The Probation 8 Form required that Taintor report, in writing, monthly information regarding cash flow and bank accounts.

13. On January 7, 2002, Taintor filed a Probation 8 Form for December 2001, certifying as accurate and subject to the penalties imposed by 18 U.S.C. ยง 1001, the following information: (a) he had a cash inflow of $3,457 and a cash outflow of $3,350; (b) he owned a 1994 Ford Explorer and a 1984 Jeep Cherokee; and, (c) he had a ...

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