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United States District Court, Northern District of New York

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. § 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 $100 balance in a checking account at the Citizens Bank of Cape Vincent. Gov't Ex. 14.

14. On or about December 5, 2001, Taintor received a lump sum distribution from the Veterans Administration in the amount of $27,732, and deposited the check in his Citizens Bank account on December 10, 2001. See Gov't Exs. 8, 16.

15. Beginning on December 10, 2001, and concluding on January 7, 2002 (the date he certified his December 2001 monthly report), Taintor made the following withdrawals from his Citizens Bank account: (a) on December 10, 2001, he wrote a check to cash in the amount of $9,000 and cashed the check; (b) on December 17, 2001, he wrote a check to cash in the amount of $8,200, and deposited the money in his mother-in-law's bank account; (c) on December 21, 2001, he wrote a check to cash in the amount of $2,000 and cashed the check; (d) on January 7, 2002, he wrote a check in the amount of $1,520.53, and although the bank was unable to supply a legible copy, the court concludes that Taintor applied that amount to his town and county tax bill; and, (e) on January 7, 2002, Taintor wrote a check to the Becker Cleveland Funeral Home in the amount of $5,744. Gov't Exs. 8, 16, 17.

16. On January 7, 2002, Taintor failed to report the $27,732 Veterans Administration distribution as cash inflow for December 2001, and those funds were available to pay back penalties and interest do and owing the IRS as ordered by Judge Fullam. See Gov't Ex. 14.

17. In March 2002, Taintor purchased a 2001 Ford F-150 Supercrew pickup valued at approximately $20,500, and paid for it with proceeds from the December 2001 Veterans Administration distribution. Gov't Ex. 8; Taintor Testimony.

18. The court completely discredits the explanation offered by Taintor at the hearing, and specifically finds that he lied when he testified, in essence, as follows: he believed the amount he was required to report on the January 7, 2002, Probation 8 Form was limited to the amount he had in his bank account at the end of the month; he believed that he was only required to report "income," not "cash inflow;" and, he did not report the Veterans Administration distribution because he independently researched the issue on the Internet, and decided that the distribution was not classified as "income."

19. The court is reasonably satisfied that Taintor made a materially false written statement concerning cash flow on the January 7, 2002, Probation 8 Form, Monthly Supervision Report, and lied at the hearing.

C. Violation 3: False Statement: Financial Statement (Residence)

20. To the extent they are relevant to this allegation, the court incorporates its preceding findings of fact.

21. The court credits the testimony of Gonzalez that: in the course of his supervision duties, he was tasked with monitoring Taintor's financial condition in order to assess his ability to make payments toward his obligation to the IRS; he repeatedly requested financial information from Taintor who was slow and reluctant to produce it, or did not produce it at all; he requested that Taintor complete a financial statement which Taintor did on July 26, 2002; and, on that statement, Taintor reported that he purchased his residence in 1997 for $135,000, and reported the fair market value by entering the notation, "?". See Gov't Exs. 9, 18.

22. In a March 24, 1997, residential loan application, Taintor reported that he had purchased the property in 1986 for $42,000, reported the then value of the lot as $30,000, the cost of proposed improvements as $190,000, and the resulting total value as $220,000 (value of the lot plus improvements). Ex. 19.

23. In the petition, Gonzalez concluded that Taintor lied on the financial statement when he reported the purchase price as $135,000 because he should have reported $232,000, the original purchase price of $42,000 plus improvements of $190,000. See Ex. 9.

24. At the hearing, Taintor testified that: he originally purchased the property as a camp in 1986 for $42,000; in 1997, he applied for a residential loan to essentially destroy the camp, and replace it with his residence; at the time and with the advice of the residential loan officer, he estimated the value of the property without the camp as $30,000 and the cost of the rebuilding as $190,000, the latter figure used to justify the amount he actually needed for construction which was $135,000; and, he actually received a construction loan for $135,000.

25. There has been no appraisal of the house since 1997 and the government offered no proof of current market value.

26. The residence is a six bedroom, three bathroom, two-story single family home located on a waterfront lot adjacent to the Saint Lawrence River. PSI, ¶ 34.

27. At the time of his original pre-sentence investigation, the listed fair market value of the residence was $170,000. PSI, ¶ 45.

28. At the time of his original pre-sentence investigation, there were two 50" televisions in Taintor's residence, a large workshop in the basement, a boat dock with a bass boat and two jet skis, and a 2001 Ford Pickup which was then registered in Taintor's name. PSI, ¶ 46.

29. At the time of his original pre-sentence investigation, Taintor stated that the boat, truck and jet skis belonged to his children and wife. PSI, ¶ 48.

30. The court is not reasonably satisfied that Taintor made a false statement concerning the purchase price of his residence on the Financial Statement.

D. Violation 4: Special Condition: Failure to Make Payments to IRS

31. To the extent they are relevant to this allegation, the court incorporates its preceding findings of fact.

32. From the time that Taintor's probation was transferred to this district until the time the petition was filed, Taintor either owned outright or had access to, among others, the following assets:

(a) Monthly social security checks of approximately $1,287, and veterans administration checks in an undetermined amount (see PSI, ¶ 41);

(b) A lump sum distribution from the Veterans Administration in the amount of $27,732;

(c) A residence of an undetermined value, but in excess of $135,000;

(d) A 2001 Ford truck valued at $20,500, registered in his wife's name, but purchased with the proceeds of the Veterans Administration distribution;

(e) A life insurance policy with a cash surrender value of at least $2,700; and,

(f) A 1991 Baha Cruiser valued by Taintor at between $10,000 and $20,000 (see Gov't Ex. 18).

33. Taintor's only payments toward his court-ordered debt were $204 per month garnished from his social security benefits except that he sold the boat the week-end before the hearing, and paid $7,000 to the IRS the day before the hearing.

34. Judge Fullam's sentence required that Taintor sell the boat within six months of judgment, and Taintor failed to comply.

35. Gonzalez made repeated attempts to gather financial information from Taintor which Taintor refused to supply, including information that would permit Gonzalez to ascertain the cash surrender value of his life insurance policy which Taintor valued, at the hearing, at $2,700.

36. The court is reasonably satisfied that Taintor had assets available to make additional payments toward his court-ordered debt, refused to cooperate with Gonzalez in satisfying that obligation, and failed to sell his boat within six months, all in violation of Special Condition # 4.

E. Miscellaneous Findings

37. The Guideline calculation for Taintor's underlying conviction reflected an offense level of 10, criminal history category I, and an imprisonment range of 6 to 12 months. See Judg., Gov't Ex. 1.

38. Taintor received a 2 level downward adjustment for acceptance of responsibility, predicated in part, on his agreement that he would pay all interest and penalties due the IRS during his probationary period. PSI, ¶¶ 3-4, 17.

39. Taintor's tax evasion conviction resulted from criminal conduct that included his hiding corporate income by converting client checks to cash, and then diverting cash for his personal use without reporting it on his tax returns. PSI, ¶ 9.

40. Taintor's conduct in converting the Veterans Administration distribution to cash, utilizing the cash for his personal benefit, and hiding the distribution and conversion on a report designed to monitor his financial ability to repay the court-ordered debt is precisely the same conduct for which he was originally convicted.

IV. Legal Principles and Analysis

A. Revocation Standard

Rule 32.1 of the Federal Rules of Criminal Procedure governs probation revocation proceedings, and a defendant is entitled to written notice of the violations and a hearing. Disposition of the case is governed by 18 U.S.C. § 3563, 3565. Fed.R.Cr.P. 32.1(b)(2)(A), (d). If the court finds that the defendant violated his probation, the court must consider the applicable sentencing factors recited in 18 U.S.C. § 3553(a), and either "(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or (2) revoke the sentence of probation and resentence the defendant under subchapter A [18 U.S.C. § 3551 et. seq.]." 18 U.S.C. § 3565(a)(1-2) (alteration added).

At the hearing, the government carries the burden of persuasion while the ultimate decision is whether the court is reasonably satisfied that the probationer has violated the terms of probation. United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir. 1990); United States v. Nagelberg, 413 F.2d 708, 709-10 (2d Cir. 1969); see also, United States v. D'Amato, 429 F.2d 1284 (3d Cir. 1970); United States v. Francischine, 512 F.2d 827 (5th Cir. 1975); United States v. Torrez-Flores, 624 F.2d 776 (7th Cir. 1980); Schneider v. Housewright, 668 F.2d 366 (8th Cir. 1981); United States v. Guadarrama, 742 F.2d 487 (9th Cir. 1984); United States v. Rice, 671 F.2d 455 (11th Cir. 1982). Clearly, the standard is far less than the traditional criminal burden of proof beyond a reasonable doubt, Nagelberg at 709, and the Eighth Circuit has suggested that the standard has more than been met by a "preponderance of evidence to convince a rational trier of fact that" the defendant violated the terms of probation. Schneider at 368. Given this court's comfort level with traditional definitions, it has applied a preponderance standard.

B. The Violations as Criminal Offenses

In analyzing the evidence as sufficient to support the allegations of new criminal conduct, the court has applied the basic legal definitions associated with a felon in possession and false statements. Thus, a convicted felon must have knowingly possessed the firearm; that is, purposely and voluntarily, and not by accident or mistake. United States v. Moore, 208 F.3d 411 (2d Cir. 2000); see also, 2 L. Sand, et. al., Modern Federal Jury Instructions, Instrs. 35-47, 35-49. To find a false statement, the court must be satisfied that a defendant willfully and knowingly falsified or concealed a material fact in a matter within the jurisdiction of the United States government. 2 L. Sand at 36-3.

In its findings of fact, the court was not satisfied that it could reasonably conclude that Taintor knowingly possessed the rifle. On the other hand, it was unequivocally satisfied that Taintor made a false material statement regarding his December 2001 income, but was not reasonably satisfied that he made a false statement concerning the value of his residence.

C. Sentencing Guidelines and Sentencing Factors

In the violation worksheet accompanying the petition, probation categorizes the felon in possession charge as a Grade A violation, the false statement charges as Grade B, and the special condition violation as Grade C. See Violation Worksheet. Accordingly, probation cites U.S.S.G. § 7B1.3(a) and 4(a) for the propositions that the imprisonment range for a Grade A violation is 12-18 months, and the court shall revoke supervision and has no sentencing options. On the other hand, Grade B and C violations have an imprisonment range of 4-10 and 3-9 months, respectively, and do have various sentencing options. See U.S.S.G. §§ 7B1.3(a)(1-2), 1.3(c)(1) and 1.4. The court is not sure it universally concurs with probation's citation to authority, but does generally agree with its observations, with the possible exception of gun possession as a Grade A violation.*fn2

The Sentencing Guidelines applicable to probation violations are "policy statements," not "guidelines," and the court may reject a strict application. See 28 U.S.C. § 994(a)(3); U.S.S.G. § 7A.1, 3(a). In general, if the court finds a violation, the court may continue probation, with or without extending the term or modifying the conditions, or revoke probation and impose any other sentence that could have been imposed initially. U.S.S.G. § 7A.2(a); 18 U.S.C. § 3565(a). However, if the violation consists of illegally possessing a firearm, the court must statutorily revoke probation and include a term of imprisonment. 18 U.S.C. § 3565(b)(2). When assessing an appropriate penalty under the Guidelines, the Sentencing Commission recommends that the court principally punish the violation of the court's trust extended by the probationary term in the first instance, while taking into limited account the seriousness of the underlying violation and the violator's criminal history. U.S.S.G. § 7A.3(b).

Violations are classified from Grades A-C at U.S.S.G. § 7B1.1. Grade A violations include federal felonies that are crimes of violence or involve possession of a firearm "of a type described in 26 U.S.C. § 5845(a)." Id. at 7B1.1(a)(1). § 5845(a) applies to firearms such as sawed-off shotguns and other weapons subject to concealment, and would not include the rifle at issue here. Thus, the Guideline Commentary suggests that if Taintor illegally possessed the rifle, his possession is a Grade B violation. See 7B1.1, Comm., n. 5. Accordingly, the court disagrees with probation's position in this regard.

At risk of an accusation that the court is climbing ivory towers, but for the sake of completeness since the report is drafted for the perusal of others, the analysis requires one more step. Aside from gun possession, the conduct is a Grade A violation if it is a crime of violence. In this Circuit, gun possession is a crime of violence, at least for purposes of the bail statute. See United States v. Dillard, 214 F.3d 88 (2d Cir. 2001); United States v. Carswell, 144 F. Supp.2d 123 (N.D.N.Y. 2001). Thus, if the District Court disagrees with this court's conclusion concerning Taintor's possession of a weapon, it is free to conclude that the violation is a Grade B gun possession or a Grade A crime of violence.

Regardless of the District Court's findings, it is not bound by the mandatory imprisonment required by 18 U.S.C. § 3565(b)(2). Therefore, it has the discretion to implement, or not, the policy recommendations recited at U.S.S.G. § 7B1.3. Those recommendations suggest that the court should (`shall") revoke probation in the case of a Grade A or B violation, and may do so in the case of a Grade C violation. The sentencing guideline ranges are accurately reported by probation in the worksheet as are the sentencing alternatives.

Lastly, when considering an appropriate sentence, the court should consider the statutory sentencing factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3565(a). As appropriate to the court's recommendations, those factors include: the nature and circumstances of the offense and the history and characteristics of the defendant; and, the need for the sentence to promote respect for the law and to provide just punishment, and to afford deterrence to criminal conduct. 18 U.S.C. § 3553(a)(1), (a)(2)(A)(B).

V. Conclusions and Recommendations

For the reasons stated, the court is reasonably satisfied that Taintor violated the terms of his probation by engaging in new criminal conduct (false statement) as alleged in Violation # 2, and by failing to pay the penalties and interest ordered within two years of judgment and by failing to sell his boat within six months of judgment as alleged in Violation # 4. The court is not reasonably satisfied that Taintor violated the terms of his probation by engaging in new criminal conduct (gun possession and false statement) as alleged in Violation #'s 1, 3.

The court recommends that the District Court find that Violation # 2 is a Grade B violation and Violation # 4 is a Grade C violation, and that the Guideline range for a Grade B violation offender, Criminal History Category I, is 4-10 months.

Based upon these findings, the court recommends that the District Court revoke Taintor's probation, and sentence him to six (6) months incarceration followed by an appropriate period of supervised release or an extension of his probationary term, as appropriate, with conditions that require his adherence to the original sentence of Judge Fullam regarding the payment of penalties and interest to the Internal Revenue Service.

The court's recommendation regarding incarceration is predicated upon an evaluation of the defendant's history and characteristics as recited in the original presentence investigation report, the need to punish his behavior in violating the court's trust reposed by a term of probation in the first instance, the need to promote respect for the proposition that convicted defendants must obey court orders regarding their behavior, and to deter others who would behave similarly. In this court's opinion, Taintor's conduct is especially egregious because it is the same behavior that resulted in his conviction in the first instance, he committed perjury during the hearing in an effort to justify what he absolutely knew to be illegal behavior, and because he has continually resisted probation in its efforts to supervise his compliance with the court's probationary orders. In essence, Taintor continues to put his self-interest and greed ahead of his obligation to comply with the law.

It is hereby

ORDERED that the Clerk serve copies of this Report and Recommendation upon the parties by regular mail.


Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THE RECOMMENDATIONS WITHIN TEN DAYS MAY PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of Health and Human Services, F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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