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View Case Details
 
UNITED STATES OF AMERICA
vs.
WILLIAM MOTTO
 
Case:
Criminal No. 85-214-02,
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
July 16, 1997, Decided
 
Court:
NORMA L. SHAPIRO, J.
 
Author:
The Hon. Justice Shapiro
 

William Motto was convicted of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. SEC .846; possession of cocaine with intent to distribute in violation of 21 U.S.C. SEC. 841(a)(1); and operating a continuing criminal enterprise, in violation of 21 U.S.C. SEC. 848.

At a hearing on April 3, 1997, Court learned that Mr. Motto may have evaded his obligation to satisfy his fine although he had the ability to do so. On May 1, 1997, Court scheduled a hearing for June 4, 1997, on a rule to show cause why the defendant's probation should not be permitted to terminate as scheduled upon payment of a substantial amount of the fine balance. Thereafter, the parties attempted to reach an agreement enabling the defendant to pay the balance due on the fine.

The hearing was postponed twice, once at the request of the government and once jointly. The United States and the defendant informed Court on June 24, 1997, that they had not reached an agreement and requested even more time. Court determined that as Mr. Motto's term of probation would end on July 31, 1997, a violation of probation petition should be filed. A petition for violation of probation, dated June 26, 1997, was filed in this case on June 27, 1997; hearings were held on June 30, 1997 and July 1, 1997.

Having reviewed the evidence before me, I find that it is more probable than not that the following facts are true:

FINDINGS OF FACT

1. On March 12, 1986, defendant was originally sentenced by the Honorable Anthony J. Scirica in this case to 20 years imprisonment on Count 56 and 15 years imprisonment on Count 1 to run concurrently with the sentence imposed on Count 56.

2. A fine and forfeiture were also ordered. By order of January 19, 1989, the Honorable Anthony J. Scirica modified the defendant's sentence pursuant to a Rule 35 Motion and reduced defendant's total period of incarceration to 17 years under Count 56 without modification of sentence on any other count.

3. On February 15, 1990, defendant sought post-conviction relief by filing a motion pursuant to 28 U.S.C. SEC. 2255. The 2255 motion was reassigned to the Honorable Norma L. Shapiro for disposition.

4. On September 4, 1991, Court, ruled on defendant's motion, granted it in part and denied it in part, vacating the sentence on all counts and scheduled a new sentencing hearing.

5. On November 1, 1991, Court resentenced the defendant to a general sentence of 13 years on Counts One and 56. As part of the general sentence, Court also imposed a fine of $100,000 and forfeiture of assets. Court further ordered that the fine shall be paid during the period of probation imposed on Count 34 and in such installments as directed by the probation office. On Count 34, Court suspended the imposition of sentence of custody and placed the defendant on probation for a period of five years and ordered that a fine in the amount of $25,000 be imposed. Court further ordered that in addition to the standard terms and conditions of probation supervision, the defendant should among other items, "pay the total fine of $125,000 imposed in installments as directed by the probation office."

6. On June 25, 1992, Court further reduced defendant's sentence pursuant to Federal Rule of Criminal Procedure 35(b) and ordered that Court's previous sentence of November 1, 1991 be amended as follows:

a. On Counts 1 and 56, defendant's custodial sentence is REDUCED to TIME SERVED as of July 31, 1992. The fine of $ 100,000 and forfeiture of assets remain as previously ordered.

b. On Count 34, a fine in the amount of $25,000 is imposed but imposition of sentence of custody is SUSPENDED and, upon release from custody, defendant is placed on probation for a period of five (5) years, the first six (6) months of which are to be spent at Greater Philadelphia Center for Community Corrections ("GPCCC"), with work-release privileges and release for medical treatment only except by express permission of Court.

c. If, by reason of defendant's impaired health, defendant is not admitted to GPCCC, Court will order defendant placed on house arrest with electronic monitoring at a residence approved by the probation office. If defendant is placed on home confinement, he shall be permitted to leave his home for work, church or medical treatments only.

d. Defendant shall comply with the rules and regulations of the probation department applicable for the Special Offender Program.

e. Defendant shall obtain employment approved by the Probation Office.

f. At the conclusion of the six-month period described above, defendant shall attend and participate in such drug testing, mental health and/or substance abuse therapy as deemed necessary by the probation office.

g. In addition to forfeiture of assets, defendant shall pay a total fine in the amount of $125,000 ($100,000 on Counts 1 and 56; $25,000 on Count 34) in installments as directed by the Probation Office.

h. Because of this defendant's family circumstances with regard to his father and brother, Court will permit deviation from the usual requirement that defendant not associate with certain others accused or convicted of criminal activity with regard to family social events.

7. Defendant William Motto's probationary term commenced on July 31, 1992. In accordance with this court's June 25, 1992 order that the defendant comply with the rules and regulations of the probation department, the defendant executed on August 3, 1992 a document entitled Conditions of Probation and Supervised Release. The defendant by his signature, dated August 3, 1992, acknowledged the standard conditions as well as the special conditions of probation ordered by Court, including that a fine of $125,000 was to be paid. The standard conditions of probation include that the defendant shall submit to his Probation Officer a truthful and complete written report within the first five days of each month and the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.

8. Defendant William Motto's probationary term was due to expire on July 31, 1997.

9. A petition for violation of probation, dated June 26, 1997, was filed in this case on June 27, 1997. The petition alleges: a) that the defendant violated the special condition of probation to pay a $125,000 fine; and b) that he misrepresented to the probation officer his ability to satisfy his fine obligation of $125,000 and his ability to pay only $100 monthly toward his fine.

10. As of July 1, 1997, the defendant has paid the following amounts on his fine.

a. installment payments totaling $7,425; and

b$67,000 in the form of a check from Charles D. Cannuli tendered to the Probation Officer in court on July 1, 1997. (A declaration of Charles D. Cannuli submitted with this check to Court states that Mr. Cannuli is 33 years old and has known defendant William Motto for at least 15 years; that he withdrew $67,000 from a personal brokerage account and transferred it to his personal bank account; and had a certified check in the amount of $67,000 issued and delivered to Mr. Motto for payment of his fine. Mr. Cannuli declares that this is a loan which will be repaid within 10 years. Mr. Cannuli's declaration does not state the source of the $67,000, nor how long he has possessed the funds.

11. On July 1, 1997, the defendant also agreed that $25,700 seized by the government from the defendant's residence would be transferred to the Clerk of Court for payment of his fine by agreement of the parties. An additional $2,570 posted as a claim and cost bond for the seized money will also be transferred to the Clerk of court for payment of his fine.

12. A balance of $22,375 still remains on defendant Motto's fine.

13. At the time of the allegations set forth in the violation of probation petition prepared by United States Probation Officer Jay Purcell, defendant William Motto was serving a probationary term of this court.

14. These findings are based largely on the testimony of United States Probation Officer Jay Purcell, FBI Special Agent Sidney Perry, the exhibits submitted by the government and the defendant at the preliminary hearing on the violation petition, the previous court record in this case, and the Probation Office's file on William Motto.

15. The testimony of Probation Officer Jay Purcell was credible. Mr. Purcell is the defendant's probation officer and therefore is familiar with the terms of probation as well as the defendant's statements regarding his assets.

16. The testimony of FBI Special Agent Sidney Perry, who investigated the defendant's original case and who is now the FBI agent assigned to the current investigation, was credible.

17. The evidence introduced at trial and during the sentencing phase shows the defendant established a pattern of holding his assets in the names of nominees in order to disguise his ownership of the assets. For example, the government introduced at trial evidence of 15 safety deposit boxes used by defendant Motto's organization to store his cocaine and money. The safety deposit boxes were obtained by Motto and his workers, often under false names (Supp. App. 2502-2517, 2608, 2898-2900, 2903-04).

18. The trial evidence established that the defendant invested some of his cocaine profits in Certificates of Deposit obtained for him in the names of his various workers, including Greg Cavalieri, Nicky Bongiorno, Joe Bonsera, Anthony Sutera, and Pasquale Giordano (Supp. App. 2517-20). The Certificate of Deposit obtained by Anthony Sutera in his name at Motto's request was held in trust for Angela Ranieri, now Motto's wife. The evidence showed that when Sutera cashed in the certificate he gave the money to the defendant William Motto (Supp. App. 2281-82, Government Exhibit 404).

19. Defendant William Motto confirmed that he made a lot of money from drug trafficking in an autobiography entitled "Your Baby's a Junkie", submitted as Exhibit G in support of defendant's motion for modification and reduction of sentence:

I began a life of dealing cocaine and living in the fast-lane. And, boy, was I in the fast lane really! Without getting into too much detail, I lived the life of 10 movie stars. I've been to nearly every resort in the world. I had more cars than most people have shoes! There was nothing I wanted in the category of material things or anything else that could be bought with money that I couldn't have - one way or another. In plain words, I had everything!

Exhibit G to defendant's motion for modification and reduction of sentence, at

9.

20. Based on the testimony of Special Agent Perry, none of defendant William Motto's drug proceeds and assets were recovered by the government other than one Volvo automobile.

21. Defendant William Motto still has substantial assets, including real estate, rental income and automobiles, which he has placed in the names of nominees in order to disguise the ownership of those assets and to avoid paying his fine to this court and taxes to the IRS. The amount of these assets were more than enough to pay his fine in full and he has lied to the Probation Office regarding his financial situation and his ability to pay his fine.

22. Defendant William Motto owns 1422 Jackson Street, Philadelphia, Pennsylvania and has placed this property in the name of a nominee, that is Ralph Cecchini, in order to disguise his true ownership of this property, the appraised value of which is $63,000, as of February 8, 1995. See Government Exhibit 12. This finding is based on review of the evidence submitted at the preliminary hearing on the violation petition, including a review of the prison tapes in which William Motto admitted ownership of this property. William Motto is discussing his property at 1422 Jackson Street in the telephone conversation introduced by the government in Exhibits 3, 3T, 4, 4T, 8, and 8T.

23. William Motto not only owns 1422 Jackson Street which has a value of approximately $63,000, but also had sufficient funds available to make improvements on the property, in the opinion, in the amount of $12,000: $6,000 for carpentry work and an additional $6,000 for heating and plumbing work. In addition, William Motto received rental income on 1422 Jackson which he failed to disclose to Court or the Probation Department. William Motto had a tenant in this property on 1422 Jackson Street who at the time of the conversations in 1991 had just vacated the premises. William Motto discussed receiving between $600 and $700 in rent if he were to rent this as a three story home and $1,000 a month rent if he divided the property into two apartments. There is probable cause to believe that William Motto had rental income from this property which he failed to disclose to Court or the Probation Department.

24. Defendant owns 1260 Pierce Street, Philadelphia, Pennsylvania, purchased on December 31, 1990 from Frank Monte, and has placed this property in the name of a nominee, Angela Ranieri, to disguise the true ownership of this property. See Government Exhibit 15. The appraised value of this property as of February 8, 1995 was $42,000. See Government Exhibit 16. This finding is based on review of the evidence submitted at the preliminary hearing on the violation petition, including a review of the prison tapes in which William Motto admitted ownership of this property. William Motto is discussing his property at 1260 Pierce Street in the telephone conversation introduced by the government in Exhibits 1 and 1T.

25. William Motto not only owns 1260 Pierce Street, Philadelphia, Pennsylvania, but also purchased this property on December 31, 1990 as an investment to produce rental income. In a conversation on January 11, 1991, William Motto admitted he arranged for workers to make improvements to this property through a friend in prison. It is clear that William Motto is making the decisions as to what improvements will be made in this property and is instructing Angela Ranieri that the people he hired through his prison friend are going to do just a quick job in cleaning up 1260 Pierce Street so that they (defendant and Angela) can rent it. William Motto is also instructing Angela that the seller of the property, Frankie (referring to Frank Monte), is responsible for some of the repairs. William Motto purposely failed to disclose his ownership of this property at 1260 Pierce Street and his rental income to Court or the Probation Department.

26. Defendant owned 15 Circle Drive, Margate, New Jersey and placed this property in the name of a nominee, Anthony Mario, to disguise the true ownership of this property. This finding is based on review of the evidence submitted at the preliminary hearing on the violation petition, including a review of the prison tapes in which William Motto discusses exercise of control over this property. William Motto is discussing his property at 15 Circle Drive, Margate, New Jersey in the telephone conversations introduced by the government in Exhibits 2, 2T, 7, 7T, 8 and 8T.

27. Anthony Mario owned this property for approximately 12 years prior to its transfer to the defendant William Motto. This finding is supported by the conversation between William Motto and his brother Vincent Motto, including that portion in which they discuss Gulla having gotten 12 years out of a tar roof and the conclusion that William Motto should be able to get at least that much use out of a new tar roof rather than a more expensive roof. Gulla is Anthony Mario, as testified to by FBI Special Agent Sidney Perry. Government Exhibit 39 corroborates that this property was purchased approximately 12 years before this telephone conversation, that is, on September 20, 1978 by Anthony Mario and Kennith Committee. This property was transferred in 1985 to Anthony Mario.

28. William Motto was on notice that prison authorities were recording his conversations. With respect to 15 Circle Drive, Margate, New Jersey, William Motto generally spoke as if 15 Circle Drive was owned by Gulla rather than by him, but at times in the conversation, William Motto and the people with whom he was speaking about 15 Circle Drive referred to the property as defendant Motto's. William Motto anticipated receiving between $800 and $850 a month in rental income for this house; the appraised tax assessment value of this property as of 1994 was $186,200. According to the public records, this property was sold on September 29, 1995 for $106,000, over $80,000 below the assessed value. There is probable cause that this property was owned by William Motto, that he received rental income on it, and that he hid this asset and any income from it from the Probation Office and Court.

29. William Motto and Vincent Motto purchased 1511 East Moyamensing Avenue, Philadelphia, Pennsylvania on May 1, 1983 for $17,500. See Government Exhibit 32 and Deed to 1511 E. Moyamensing, Book 240, Page 327. *fn1 On August 30, 1985, after William Motto was indicted, the property was transferred to William Motto alone for $20,000. This property was transferred from William Motto to his brother Vincent Motto in 1988. Government Exhibit 32 reflects that Vincent Motto obtained this property on March 11, 1988 and that the deed was recorded on May 25, 1988; the transfer price was $20,000. Government Exhibit 32 further shows that Vincent Motto sold this property on February 2, 1996 to Lisa Flacco for $37,000. William Motto owned this property and used it as a garage to store various automobiles he owned, including a vintage Corvette.

30. William Motto used his then girlfriend, now wife, Angela Ranieri (Motto) as a nominee to conduct financial transactions on his behalf, including the purchase and rental of property. For example, William Motto owned 1638 South Clarion Street, Philadelphia, Pennsylvania; the testimony of Special Agent Perry that the source of funds for the purchase of this property was drug proceeds was credible. Agent Perry testified that the source of this information was Nicholas Bongiorno who was present for the transaction and the prior owners of the property who confirmed that it was paid for in small denomination bills. According to Government Exhibit 40, this property was transferred from William Motto on June 13, 1985 to Angela and Lucy Ranieri. William Motto was arrested on June 13, 1985; William Motto transferred 1638 S. Clarion Street on June 16, 1985 in an attempt to hide this asset. Again, according to Government Exhibit 40, Angela and Lucy Ranieri transferred the property on August 15, 1985 to Lucy Ranieri and on June 15, 1988 transferred it back from Lucy Ranieri to Angela and Lucy Ranieri for $1. On June 1, 1989, Angela and Lucy Ranieri sold this property to Mary Squarcette for $53,500. These transfers were an attempt by William Motto to hide this asset from the probation office, from the original sentencing Court, from this court, and from the government. The $53,500 was a source of funds that William Motto could have used to pay his fine.

31. An analysis of the tax returns of William Motto and Angela Ranieri shows that they were concealing substantial assets from the government, the Probation Office, and Court and that there were additional sources of income not accounted for on the tax returns.

32. For the years 1988 through 1993, the total gross combined income for Angela Ranieri and William Motto was reported as $157,734. The income reported by Angela Ranieri and the defendant was insufficient to cover their normal living expenses, much less the purchase of real estate, which shows that they had other unreported sources of income. Defendant Motto owned real estate and Angela Ranieri acted as a nominee for the defendant in the purchase and sale of those properties in order to disguise the true ownership of the properties. One of the unreported sources of income for the defendant was income generated by the rental and sale of his properties.

33. Angela Ranieri operated Garden Produce as a cover to present a law-abiding front as a "legitimate" source of income for Angela Ranieri and William Motto. The evidence showed that William Motto and Angela Ranieri attempted to disguise their income through the use of Garden Produce as a tax paying entity; see telephone conversations between William Motto and Bill Lawson introduced by the government in Government Exhibit 8 and 8T.

34. Angela Ranieri purchased 2336 South Beulah Street, Philadelphia, Pennsylvania, on February 16, 1994 for $13,000 from Alvin and Fred Makadon. According to Government Exhibit 24, the estimated fair market value of this property as of March 27, 1997 is $22,000. Based upon the evidence presented in this case, Angela Ranieri purchased this property as a nominee for William Motto.

35. Peter Motto, the father of William Motto and a nominee used by William Motto to hide his assets, purchased a property at 1732 South 12th Street, Philadelphia, Pennsylvania on August 1, 1965. On March 11, 1994, Peter Motto transferred this property to Angela Ranieri, trustee for Billie Motto and Jade Motto. According to Government Exhibit 28, the appraised value of this property on February 9, 1995 was $63,000. No mortgages or judgments were found on this property. Pursuant to the trust documents contained in Government Exhibit 28, the entire net income of this property obtained from any rents was to be for the sole use of Angela Ranieri during the term of her natural life.

36. According to Government Exhibit 33, Angela Ranieri, as trustee for Billie Motto and Jade Motto, obtained the property at 1227 Morris Street, Philadelphia, Pennsylvania on September 20, 1994. This property transfer was recorded on November 29, 1994; the estimated fair market value of this property as of March 28, 1997 was $40,000.

37. The corporation, Homes of the 90's, Inc. was incorporated on May 11, 1990 in the state of New Jersey; Government Exhibit 49. The corporation's initial registered agent was James B. Christaldi. There were two directors constituting the initial board of directors. They were James B. Christaldi and Angela Ranieri. The corporation's certificate of incorporation had been revoked as of December 31, 1993. On page three of Government Exhibit 49, the corporation's agent, James Christaldi applied for reinstatement of this corporation on March 17, 1995. James Christaldi gives his address as 428 Otter Branch Court, Glendora, New Jersey 08029. James Christaldi lists himself as the president of Homes of the 90's. William Motto in Government Exhibit 7, discussed James Christaldi's involvement in 15 Circle Drive, Margate, New Jersey and gave James Christaldi's telephone number, 609-939-2425, to Vincent Motto. Based upon a stipulation of the parties, this telephone number is subscribed to James Christaldi at 428 Otter Branch Court, Glendora, New Jersey. Homes of the 90's filed a 1993 federal corporate tax return on April 14, 1994 signed by James Christaldi as president of the corporation; Government Exhibit 71. This 1993 tax return stated that the corporation was inactive and had no assets, income, nor expenses.

38. Homes of the 90's, purchased two properties in 1993, despite having filed a tax return stating that it had no assets. Homes of the 90's purchased 1136 Mifflin Street, Philadelphia, Pennsylvania on January 29, 1993, for $25,000. According to Government Exhibit 20, the appraised value of this property as of February 8, 1995 was $ 24,000. Angela Ranieri and Lucy Ranieri transferred a property at 11 Catawba Road, Washington Township, New Jersey to Homes of the 90's, Inc.; the mailing address, 1200 Park Drive, Cherry Hill, New Jersey, was the residence of William Motto and Angela Ranieri (Motto). According to Government Exhibit 35, the transaction value was $60,000. The appraised value of this property on February 15, 1995 was also $60,000. Neither of these properties were disclosed on the tax returns filed by Homes of the 90's for 1993 (see Government Exhibit 71); Homes of the 90's held both properties as a nominee for William Motto.

39 William Motto had available to him in 1991 at least $150,000 which he was considering investing in a property located at 123 Yarmouth, Longport, New Jersey. William Motto is discussing his potential investment in this property at 123 Yarmouth in a telephone conversation introduced by the government in Exhibit 4 and 4T.

40. William Motto was using his Uncle Henry and Angela Ranieri to locate and purchase property. William Motto's asking "Uncle Henry" whether the guy selling the house "will work with us" and if he "knows the situation," was a reference to the fact that any property that William Motto purchased would be paid for with cash and put in a nominee's name. William Motto is using a code in this conversation when he refers to a dollar fifty and 150, in that he is really referring to $150,000 as made clear later in the conversation.

41. The testimony of Probation Officer Jay Purcell that William Motto had a Mercedes Benz he took to a garage to have repaired is credible. It is corroborated by Government Exhibit 38, a photograph of William Motto's residence at 1200 Park Drive, Cherry Hill, New Jersey, which depicts a Mercedes Benz parked in defendant's driveway under his carport. This is a further indication that defendant Motto had disposable income which he failed to disclose to the Probation Office and Court.

42. In Monthly Supervision Reports defendant filed with the Probation Office from August 1992 through February 2, 1997, he consistently claimed he spent exactly the amount he earned each month, and failed to report any source of income other than his salary from Magic Produce, a corporation owned by his wife, Angela Ranieri. The defendant has intentionally provided false information to the Probation Office regarding his true assets and income throughout his period of probation.

CONCLUSIONS OF LAW

43. The standard of proof at the preliminary revocation hearing, as stated in Fed.R. Crim. Proc. 32.1(a)(1) is, "whether there is probable cause to hold the person for a revocation hearing." The standard of proof at a final violation of probation revocation hearing is whether Court is reasonably satisfied that the defendant has violated the terms of his probation. United States v. Babich, 785 F.2d 415 (3d Cir.), cert. denied 479 U.S. 833, 93 L. Ed. 2d 69, 107 S. Ct. 123 (1984); United States v. Gordon, 961 F.2d 426 (3d Cir. 1992).

44. The defendant's period of probation was tolled by the filing of the petition on June 27, 1997. See United States v. Lancer, 508 F.2d 719, 733 (3d Cir.), cert. denied, 421 U.S. 989, 44 L. Ed. 2d 478, 95 S. Ct. 1992 (1974); United States v. Bazzano, 712 F.2d 826, 835 (3d Cir.), cert. denied, 465 U.S.1078 (1983). Therefore, the defendant still has 34 days of his probationary period remaining to be served. If, at the final violation of probation hearing, Court rules in the defendant's favor, he will be required to serve the remaining 34 days of his probation.

45. The $125,000 fine as adjudged by Court on July 31, 1992 was a special condition of probation. The Conditions of Probation and Supervised Release form signed by the defendant on August 3, 1992, acknowledged his understanding of the conditions of his probation, and Court order; the fine was in fact a special condition of probation.

46. This decision is not based upon any information obtained from any electronic surveillance by the government, or derived from any electronic surveillance, even assuming such surveillance exists. Therefore, the defendant's argument that Court may not consider any of the misrepresentations by the defendant to his Probation Officer and Court regarding his ownership of any cash and/or jewelry seized at his residence because it is derivative evidence is moot, as Court has not considered that evidence.

47. Although the defendant has at times during the period of probation asserted his 5th Amendment privilege against self-incrimination as a basis for failing to provide financial information to the probation office and to Court, he has at times waived that privilege by completing Monthly Supervision Reports to the Probation Office, and writing unsolicited communications to Court. This decision is based solely upon the prior record, evidence presented to Court at the preliminary hearing on the violation of probation petition, and information provided to the Probation Office and this court by the defendant on those occasions where he chose to waive any rights he may have had to remain silent. Even if the defendant had the legal right, pursuant to United States v. Frierson, 945 F.2d 650 (3d Cir. 1991) and Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), to assert that privilege, his assertion of the privilege has not been held against him in any way.

48 Defendant has a legal obligation to make full payment of the adjudged $125,000 fine. Court, when it re-sentenced the defendant in 1992, delegated its authority to the Probation Office to determine appropriate installment payments to be made to satisfy the fine. This was in accordance with the law at the time, although the Third Circuit in United States v. Graham, 72 F.3d 352 (3d Cir.), cert. denied, 116 S. Ct. 1286 (1995), later determined that such a delegation was impermissible. However, the defendant agreed to these terms in the Conditions of Probation and Supervised Release, and he has never applied to amend the terms of his probation regarding the installment payments. The defendant continued to make monthly installment payments long after Graham was decided. The delegation of authority to the Probation Office did not relieve the defendant of his obligation to pay the fine in full or allow him to lie to the Probation Officer to have the installment amount set lower than he could actually afford to pay.

49. Although the defendant had made payments of $7,425 towards the fine prior to July 2, 1997, he did not consistently make those payments each and every month as required. Defendant failed to make any good faith effort to pay the fine amount until the violation of probation petition was filed on June 27, 1997. Within five days after the petition was filed, the defendant tendered a check for $67,000 to the court, and consented to the application of approximately $ 25,700 seized from his residence in 1995 towards his fine amount. Defendant has misrepresented to the Probation Office and Court his ability to pay the fine. In United States v. Reed, 573 F.2d 1020 (8th Cir. 1978), and United States v. Lettieri, 910 F.2d 1067 (2d Cir. 1990), Court found that the defendants' terms of probation could not be violated for failing to make full payment on a fine or restitution when over two years remained on the probationary period in each case. The defendant, with less than a month remaining on his probationary period, has willfully failed to pay the full amount of the fine.

50. Defendant intentionally misrepresented his ability to pay the fine both to the Probation Office and to Court. The defendant's Conditions of Probation clearly states at page two, at paragraph (2) that the defendant shall "submit a truthful and complete written report within the first five days of each month," and at paragraph (3), "You shall answer all inquiries by the probation officer and follow the instructions of the probation officer." Defendant did not simply fail to answer questions, but on numerous occasions affirmatively provided false information and failed to disclose his true assets to the probation office. Defendant's misrepresentations are material to the determination of probable cause in this matter.

51. Defendant's motion requesting the court to defer ruling on whether the government has shown probable cause to believe that the defendant has violated the terms of his probation is denied. Defendant has been provided due process, as required by Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); the court held an extensive evidentiary hearing at which defendant was represented by Counsel. There is no reason to continue to defer ruling on this matter.

52. It is unnecessary to determine as to whether the Jencks Act, 18 U.S.C. SEC. 3500, applies to a preliminary revocation proceeding and if it does, whether any Jencks statements of Special Agent Loke should have been provided to the defendant. Court declined to rely on Special Agent Loke's testimony. The conditional ruling to strike Special Agent Loke's testimony is made final. Since the defendant did not object to the introduction of the exhibits identified by Agent Loke, all of them were admitted.

53. Defendant will be incarcerated pending the final violation of probation hearing. The issue of whether or not to grant the defendant bail pending the violation of probation hearing is controlled by Fed. R. Crim. Proc. 32.1 (a)(1)(D): "If probable cause is found to exist, the person shall be held for a revocation hearing. The person may be released pursuant to Rule 46(c) pending the revocation hearing." Fed. R. Crim. Proc. 46(c) states that, "Eligibility for release ... shall be in accordance with 18 U.S.C. SEC. 3143. 18 U.S.C. SEC. 3143 requires that a defendant be detained unless Court finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community. Defendant is facing substantial incarceration if he is found to have violated the terms of his probation, and he possesses substantial assets which would enable him to flee this jurisdiction. There is clear and convincing evidence defendant should be held without bail pending the final revocation of probation hearing.

54. There is probable cause to believe that the defendant has violated the terms of his probation by willfully failing to pay the full amount of his fine, and by intentionally misrepresenting his income and assets to the Probation Office. Defendant shall be taken into federal custody forthwith pending the final revocation of probation hearing in this case and held in a facility adequate for his medical needs. The Probation Office shall forward relevant medical information to the Bureau of Prisons forthwith.

An appropriate order follows.

ORDER

AND NOW, this 16th day of July, 1997, upon consideration of the probation office's petition, after hearings pursuant to Fed.R.Crim.Pro. 32.1, and in accordance with the findings of fact and conclusions of law, it is ORDERED that:

1. The defendant's probation is REVOKED.

2. A warrant for Mr. Motto's arrest shall issue FORTHWITH.

3. Defendant shall be held without bail in the custody of the United States Marshal in a facility adequate for his medical needs pending the final revocation of probation hearing on August 15, 1997 at 9:30.

4. The Probation Office shall forward relevant medical information to the United States Marshal Service FORTHWITH.

5. Defendant's motion requesting the court to defer ruling on whether the government has shown probable cause to believe that the defendant has violated the terms of his probation is DENIED.

6. The motion to strike Special Agent Loke's testimony is GRANTED; as agreed by the parties, the exhibits identified by Agent Loke are admitted.

Norma L. Shapiro, J.

 
Notes:

*fn1 Government Exhibit 32 lists the 1983 owner as "MOTTO, William +;" a search of deeds by Court revealed that the 1983 owners were William Motto and Vincent Motto. Court takes judicial notice of the deed as it is a matter of public record.