Opinion
Cr. No. 98-850M-01 (JMF)
May 24, 2000
MEMORANDUM
The information in this case charges that the defendant conspired to purloin bank money in violation of 18 U.S.C. § 371, 2113(b). Defendant was involved in a scheme whereby her conspirators gave her checks stolen from the mail. She then secured false identification cards in the names of the persons from whom the checks were stolen. She uttered 13 of the checks in a six month period by purchasing merchandise from stores in the D.C. metropolitan area and then returning the merchandise for a refund and pocketing the cash.
She pled guilty to the information on March 12, 1999 and on June 25, 1999 she was sentenced to probation. A condition of her probation was:
As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The defendant is now employed and her probation officer seeks an order from me specifically asking that the defendant be ordered to notify her employer of her conviction in this case. Defendant protests that, since her new job does not give her access to financial records, cash or credit cards, it is not necessary that she give such notice. The government joins the Probation Office in urging me to order the defendant to notify her employer.
Of the cases brought to my attention by the parties' excellent briefs, the most detailed analysis of the propriety of the imposition of the employer notification provision is found in United States v. Doe, 79 F.3d 1309 (2d Cir. 1996). Doe, an accountant and lawyer, filed a false claim on behalf of a client. When the IRS questioned the return, Doe cooperated with the government and brought about the conviction of one of his partners. Doe pled guilty and was sentenced to probation and, like this defendant, sought to be relieved of the obligation to tell his accounting clients of his conviction. The United States Attorney and the Probation Office joined in his application for relief believing that the risk that Doe would resume filing false returns on behalf of his clients was minuscule. Nevertheless, the trial judge refused to relieve Doe of the obligation to notify his potential clients because he had agreed to this condition of his probation and should live up to that agreement. The Second Circuit reversed holding that the trial judge had failed to consider whether the obligation to notify his employer was "reasonably necessary to protect the public from further crimes of the defendant, but may not be imposed to any greater extent than reasonably necessary to achieve that purpose." 79 F.3d at 1320. This court found that this requirement flowed from the Congressional requirement that a discretionary condition of probation which impinged upon or constituted a deprivation of liberty or property be imposed only if its imposition was "reasonably necessary for the purposes indicated in section 3553(a)(2)" 18 U.S.C.A. § 3563(b). The "purposes indicated in section 3553(a)(2)" are:
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
18 U.S.C.A § 3553(a)(2) (West Supp. 2000).
Hence, according to the Second Circuit, the imposition of an obligation to notify one's employer of a conviction is justified only when it is reasonably necessary to protect the public.
Accord: United States v. Blangiardo, 1996 WL 185683 (S.D.N Y April 17, 1996)(Doe followed; no need for notification when probationer's new job and position unlike prior position in providing access to commit fraud).
In United States v. Schechter, 13 F.3d 1117 (7th Cir. 1994), the court reached a different result. Schechter was required to notify his employer of his past criminal conduct and his being on supervised release. Schechter had embezzled money from his last three employers, one of which was a church. Understandably, imposing a notification requirement could hardly be described as an "abuse of discretion."
In United States v. Ritter, 118 F.3d 502 (6th Cir. 1997) Ritter committed a criminal act for the first time in his life. He wired money from an account in the bank in which he worked to his own account to pay off pressing debts. When confronted by the bank, he immediately acknowledged his crime. After his being sentenced to probation, he secured work with an air cargo company as a flight dispatcher, scheduling and briefing flight crews, arranging flight plans and fuel stops, and coordinating the loading of freight. Although his new job was utterly unlike his old job, the Sixth Circuit upheld the requirement that he notify his new employer of his conviction of embezzlement. This court read the existing case law to support the imposition of the notification requirement:
As these cases and others attest, even though supervised release restrictions may affect constitutional rights such as First Amendment protections, most restrictions are valid if directly related to advancing the individual's rehabilitation and to protecting the public from recidivism.
Id. at 505.
The court found that compelling Ritter to admit his conviction advanced his rehabilitation by forcing him to account for his behavior and deterred him from finding another "easy way out."
It then noted that, but for the notification, Ritter's employer and potential employers might put Ritter in "a position of trust or one with easy access to valuables and thus become particularly vulnerable to a recurrence of criminal activity." Id. Hence "[w]ithout notification, an ignorant employer shoulders a heavy risk of financial harm." Id. Finally, the court indicated that the notification is much less an intrusion on any liberty interest that could be claimed than an outright prohibition on a particular type of employment.
A fair reading of the concerns expressed in these cases tips the balance in favor of requiring the defendant in this case to notify her employer of her conviction and her being on probation. First, doing so should have a significant deterrent effect on the defendant. One can hope that she will learn from this experience the many awful consequences that flow from criminal conduct and determine to avoid such consequences by mending her ways. The necessity for deterrence in this case is most important. The defendant was on probation for uttering, forgery, and obtaining property by false pretense in Virginia when she committed the crimes which lead to her being placed on probation in this case. Her first criminal experience apparently taught her very little. I can only hope that requiring her to face the consequence of notifying her employer will educate her more dramatically than her first conviction did as to what criminal behavior brings in its wake and deter her from committing another crime.
Second, as I have just noted, defendant was on probation in Virginia for uttering, forgery and theft by false pretenses when she committed the offenses charged in this case. To make the matter worse, her adjustment to that probation was, according to the pre-sentence report, marginal to poor and lead to efforts to have the court revoke it. Most significantly, she pled guilty to participating in a scheme by which stolen checks were made available to her over a period of time. Her commission of these crimes was not a single fall from grace. To the contrary, she stole money 13 times from the merchants with whom she dealt. The duration of the scheme and the frequency of her criminal behavior militate in favor of protecting those who employ her from a resumption of her criminal behavior. The employer is, after all, literally defenseless to protect itself unless notification is given.
Finally, while defendant claims her new duties do not give her access to money or checks, the defendant's representation of her duties cannot be independently verified without alerting her employer to her being on probation. Considering the nature of the crime the defendant committed, her prior criminal behavior and her commission of new offenses while on probation for old ones, I must conclude that notification of the employer is "reasonably necessary" to protect the employer and to deter the defendant from engaging in criminal behavior.
While notification of the employer is necessary, the manner is equally important. No one has any interest in seeing the defendant lose her job. To the contrary, it seems to be the only way to get the victims of her crime the restitution I ordered and to continue the defendant's rehabilitation. I will therefore direct that the Probation Office cause the defendant to deliver to defendant's employer the following letter which I will deem to satisfy her obligation to notify her present employer of her conviction.
Dear Sir or Madam:
Magistrate Judge John M. Facciola placed Shelly Young on probation upon her conviction of the misdemeanor of conspiracy to steal bank funds on June 25, 1999. He has directed the United States Probation Office to advise you of this fact. He also directed the Probation Office to advise you that by bringing this matter to your attention he certainly does not intend that any action be taken against Ms. Young. The judge believes that Ms. Young's continued employment is crucial in accomplishing the rehabilitation he hoped to accomplish by putting Ms. Young on probation.
Sincerely, Probation Officer