18-2320 United States v. Dodd

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of October, two thousand nineteen.

Present: ROBERT A. KATZMANN, Chief Judge, JOHN O. NEWMAN, MICHAEL H. PARK, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 18-2320

MICHAEL DODD, AKA MIKE, AKA MICHAEL STANLEY,

Defendant-Appellant. ___________________________________

For Appellant: Colleen P. Cassidy, Federal Defenders of New York, Inc. Appeals Bureau, New York, NY.

For Appellee: Jack James Dennehy (David C. James, on the brief), Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.

1 Appeal from a judgment entered on November 30, 2016 in the United States District Court

for the Eastern District of New York (Korman, J.) convicting defendant of conspiracy to commit

money laundering in violation of

(h) and 1956(a)(2) and imposing various

conditions of supervised release.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the lower court is AFFIRMED IN PART AND VACATED IN

PART.

Defendant Michael Dodd appeals from a judgment convicting him of conspiracy to

commit money laundering and imposing certain conditions of supervised released. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

Dodd pleaded guilty to a single count information charging him with conspiracy to

commit money laundering in violation of

(h) and 1956(a)(2). On June 15, 2016,

the district court sentenced Dodd to 33 months’ imprisonment and three years of supervised

release.

Dodd argues that two of the conditions of supervised release imposed by the district court

in its written judgment are invalid because the court did not orally pronounce them at sentencing:

(1) a prohibition on maintaining or opening any bank or financial accounts without approval

from his probation officer, and (2) a requirement that, on request, he produce annual tax returns

to the Probation Department. The government concedes that the first condition must be vacated

because it was not included in the oral sentence. However, it argues that, even if the second

condition was not expressly stated at the oral sentencing, it falls within the “special conditions”

recommended in § 5D1.3(d)(3) of the Sentencing Guidelines and so is permissible.

2 “We review de novo the asserted discrepancy between the spoken and written terms of

[a] sentence. It is a question of law whether the spoken and written terms of a defendant’s

sentence differ impermissibly.” United States v. Washington,

(2d Cir. 2018).1

“The Federal Rules of Criminal Procedure provide that a defendant must be present at

pronouncement of sentence.”

. Therefore, after a sentence has been pronounced, the

written judgment may clarify the terms of the spoken sentence, but may not add to them. See

United States v. Truscello,

(2d Cir. 1999). If there is a substantive discrepancy

between the spoken and written versions of a defendant’s sentence, the spoken version ordinarily

controls. United States v. Rosario,

(2d Cir. 2004).

We have nonetheless allowed a written modification of the spoken sentence when the

modification added a condition of supervised release classified as “mandatory” or “standard” in

§ 5D1.3(a) and (c) of the Guidelines. “[R]ather than conflicting with the oral sentence,” we

explained, “the standard and mandatory conditions listed in the written judgment reflected a

clarification of what the oral pronouncement meant by ‘supervised release.’” United States v.

Thomas,

(2d Cir. 2002). We later held that the “special’ conditions” listed in

§ 5D1.3(d) are, when the conditions listed for their imposition are present, “no different in

practical terms from ‘standard’ conditions, that is, they are generally recommended.” United

States v. Asuncion-Pimental,

(2d Cir. 2002) (per curiam).

Among the “special conditions” listed in § 5D1.3(d) is § 5D1.3(d)(3), which recommends

that, “[i]f the court imposes an order of restitution, forfeiture, or notice to victims, or orders the

defendant to pay a fine,” as it did here, then the court should impose “a condition requiring the

defendant to provide the probation officer access to any requested financial information.” We

1 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.

3 have specifically affirmed the addition of a condition in the written judgment that “mirrors

§ 5D1.3(d)(3).” Thomas,

.

Tax returns are “financial information.” If the district court had imposed a condition of

supervised release mirroring § 5D1.3(d)(3), as it did in Thomas, then Dodd would have been

required to provide his tax returns to his probation officer upon request. The written judgment

thus simply “clarifie[s],” Truscello,

, that tax returns are among the “financial

information” covered in § 5D1.3(d)(3) and does not impose any additional obligation.

For the reasons set forth above, we AFFIRM the judgement insofar as it imposed a

special term of supervised release requiring the defendant to provide the Probation Department,

upon request, with yearly income tax returns, VACATE the judgment insofar as it imposed a

special term of supervised release prohibiting the defendant from maintaining or opening any

financial accounts without the Probation Department’s approval, and REMAND with directions

to strike that condition of supervised release.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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