Probation was originally provided for under the Federal Probation Act. This Act was relaced by the Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3551-3556). As you know, Probation is a form of sentence. Here are the Duties of the Sentencing Commision, which refer to Conditions of Probations section 3563,which addresses your concerns:
Sec. 3563. Conditions of probation
(a) Mandatory Conditions. - The court shall provide, as anexplicit condition of a sentence of probation - (1) for a felony, a misdemeanor, or an infraction, that thedefendant not commit another Federal, State, or local crimeduring the term of probation;(2) for a felony, that the defendant also abide by at least onecondition set forth in subsection (b)(2), (b)(3), or (b)(13),unless the court finds on the record that extraordinarycircumstances exist that would make such a condition plainlyunreasonable, in which event the court shall impose one or moreof the other conditions set forth under subsection (b);(3) for a felony, a misdemeanor, or an infraction, that thedefendant not unlawfully possess a controlled substance;(4) for a domestic violence crime as defined in section 3561(b)by a defendant convicted of such an offense for the first timethat the defendant attend a public, private, or private nonprofitoffender rehabilitation program that has been approved by thecourt, in consultation with a State Coalition Against DomesticViolence or other appropriate experts, if an approved program isreadily available within a 50-mile radius of the legal residenceof the defendant;(5) for a felony, a misdemeanor, or an infraction, that thedefendant refrain from any unlawful use of a controlled substanceand submit to one drug test within 15 days of release onprobation and at least 2 periodic drug tests thereafter (asdetermined by the court) for use of a controlled substance, butthe condition stated in this paragraph may be ameliorated orsuspended by the court for any individual defendant if thedefendant's presentence report or other reliable sentencinginformation indicates a low risk of future substance abuse by thedefendant;(6) that the defendant - (A) make restitution in accordance with sections 2248, 2259,2264, 2327, 3663, 3663A, and 3664; and(B) pay the assessment imposed in accordance with section3013;(7) that the defendant will notify the court of any materialchange in the defendant's economic circumstances that mightaffect the defendant's ability to pay restitution, fines, orspecial assessments;(8) for a person described in section 4042(c)(4), that theperson report the address where the person will reside and anysubsequent change of residence to the probation officerresponsible for supervision, and that the person register in anyState where the person resides, is employed, carries on avocation, or is a student (as such terms are defined undersection 170101(a)(3) of the Violent Crime Control and LawEnforcement Act of 1994); and(9) that the defendant cooperate in the collection of a DNAsample from the defendant if the collection of such a sample isauthorized pursuant to section 3 of the DNA Analysis BacklogElimination Act of 2000.If the court has imposed and ordered execution of a fine and placedthe defendant on probation, payment of the fine or adherence to thecourt-established installment schedule shall be a condition of theprobation.
(b) Discretionary Conditions. - The court may provide, as furtherconditions of a sentence of probation, to the extent that suchconditions are reasonably related to the factors set forth insection 3553(a)(1) and (a)(2) and to the extent that suchconditions involve only such deprivations of liberty or property asare reasonably necessary for the purposes indicated in section3553(a)(2), that the defendant - (1) support his dependents and meet other familyresponsibilities;(2) make restitution to a victim of the offense under section3556 (but not subject to the limitation of section 3663(a) or3663A(c)(1)(A));(3) give to the victims of the offense the notice orderedpursuant to the provisions of section 3555;(4) work conscientiously at suitable employment or pursueconscientiously a course of study or vocational training thatwill equip him for suitable employment;(5) refrain, in the case of an individual, from engaging in aspecified occupation, business, or profession bearing areasonably direct relationship to the conduct constituting theoffense, or engage in such a specified occupation, business, orprofession only to a stated degree or under stated circumstances;(6) refrain from frequenting specified kinds of places or fromassociating unnecessarily with specified persons;(7) refrain from excessive use of alcohol, or any use of anarcotic drug or other controlled substance, as defined insection 102 of the Controlled Substances Act (21 U.S.C. 802),without a prescription by a licensed medical practitioner;(8) refrain from possessing a firearm, destructive device, orother dangerous weapon;(9) undergo available medical, psychiatric, or psychologicaltreatment, including treatment for drug or alcohol dependency, asspecified by the court, and remain in a specified institution ifrequired for that purpose;(10) remain in the custody of the Bureau of Prisons duringnights, weekends, or other intervals of time, totaling no morethan the lesser of one year or the term of imprisonmentauthorized for the offense, during the first year of the term ofprobation;(11) reside at, or participate in the program of, a communitycorrections facility (including a facility maintained or undercontract to the Bureau of Prisons) for all or part of the term ofprobation;(12) work in community service as directed by the court;(13) reside in a specified place or area, or refrain fromresiding in a specified place or area;(14) remain within the jurisdiction of the court, unlessgranted permission to leave by the court or a probation officer;(15) report to a probation officer as directed by the court orthe probation officer;(16) permit a probation officer to visit him at his home orelsewhere as specified by the court;(17) answer inquiries by a probation officer and notify theprobation officer promptly of any change in address oremployment;(18) notify the probation officer promptly if arrested orquestioned by a law enforcement officer;(19) remain at his place of residence during nonworking hoursand, if the court finds it appropriate, that compliance with thiscondition be monitored by telephonic or electronic signalingdevices, except that a condition under this paragraph may beimposed only as an alternative to incarceration;(20) comply with the terms of any court order or order of anadministrative process pursuant to the law of a State, theDistrict of Columbia, or any other possession or territory of theUnited States, requiring payments by the defendant for thesupport and maintenance of a child or of a child and the parentwith whom the child is living;(21) be ordered deported by a United States district court, orUnited States magistrate judge, pursuant to a stipulation enteredinto by the defendant and the United States under section238(d)(5) of the Immigration and Nationality Act, except that, inthe absence of a stipulation, the United States district court ora United States magistrate judge, may order deportation as acondition of probation, if, after notice and hearing pursuant tosuch section, the Attorney General demonstrates by clear andconvincing evidence that the alien is deportable; or(22) satisfy such other conditions as the court may impose.
(c) Modifications of Conditions. - The court may modify, reduce,or enlarge the conditions of a sentence of probation at any timeprior to the expiration or termination of the term of probation,pursuant to the provisions of the Federal Rules of CriminalProcedure relating to the modification of probation and theprovisions applicable to the initial setting of the conditions ofprobation.
(d) Written Statement of Conditions. - The court shall directthat the probation officer provide the defendant with a writtenstatement that sets forth all the conditions to which the sentenceis subject, and that is sufficiently clear and specific to serve asa guide for the defendant's conduct and for such supervision as isrequired.(e) Results of Drug Testing. - The results of a drug testadministered in accordance with subsection (a)(5) shall be subjectto confirmation only if the results are positive, the defendant issubject to possible imprisonment for such failure, and either thedefendant denies the accuracy of such test or there is some otherreason to question the results of the test. A defendant who testspositive may be detained pending verification of a positive drugtest result. A drug test confirmation shall be a urine drug testconfirmed using gas chromatography/mass spectrometry techniques orsuch test as the Director of the Administrative Office of theUnited States Courts after consultation with the Secretary ofHealth and Human Services may determine to be of equivalentaccuracy. The court shall consider whether the availability ofappropriate substance abuse treatment programs, or an individual'scurrent or past participation in such programs, warrants anexception in accordance with United States Sentencing Commissionguidelines from the rule of section 3565(b), when considering anyaction against a defendant who fails a drug test administered inaccordance with subsection (a)(5).
Continued (as my screen was freezing up due to the length of that statutue):
Because your wife's assets are closely linked with yours and/or your financial/economic circumstances, changes to her situations are indicative of changes to yours. Ergo, this request is not beyond the scope of the express provisions. In terms of limitations of the power to invade you and your families privacy, there is the limitation that the "conditions [set] are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section3553(a)(2),..."
Of course, our Constitutional Right against Cruel and Unusual Punishment is a right you retain during probation (which is a sentence) as well.
Hope this helps to clarify.
Actually, in financial embezzlement cases and the like, they can certainly confiscate a spouses assets, when it is evident that the wrongdoing spouse used these illegally gotten assets to fund the spouse in any way.
And remember, the financial disclosure is not always due to restitition requirements, particular in a financial matter - it could be required to determine if the financial misdoing is still going on, fraudulent transfers are still taking place, etc.
There is not express limitation in their discretionary requests about them not being able to seek info related to family member.
There is not requirement that they can only ask about her assets if they plan on, and have reason to take her assets anyway. But even if there was, the fact that fraudulent conveyances take place frequently between family members to hide funds (let's look at Madoff), let's them in the discretionary door.
I'm wondering, however, if one decided to take the full jail sentence rather than probation, would things be different, i.e. more restricrtive?
So, the 'wrong' you committed, correct me if I am wrong, is that you took company IT property (software?) and gave it to others 33 times. While you didn't charge them for it, you essentially 'stole' it, right? (OBviously you thought it wasn't a big taking and didn't hurt the co., as your family/friends probably wouldn't have spent the $$ to buy it, so it is not like you deprived the co. of customers, perhaps.) Incidentally, I'm so sorry the reprecussion are so severe - but they certainly are cracking down, bootleg software, yes?
Remember, the judgement is not the sentence, and probation has broad discretion.
Did you have a sentence of restitution??? Apparently so - but I guess you do not yet know what that amount of restitution will be?
Honestly, I do not expect them to take your wife's car, particularly if she only has one. Now, if you guys suddenly had 5 Benz's in the new 5 car garage, well obviously.
No, their power would likely not end if you are incarcerated - you would still have the restititution sentence and the requirement to divulge financial information. And your sending yourself back to jail would be an unwise thing to do to your wife/family, all over a car, big deal. What they are currently requesting is permitted by law, so you really need to comply, or else get charged with violation of probation etc.
Being secretive about your and your family's assets will only make you appear to be guilty of something, such a non-disclosure. Why add to your problems? You are close to this being over and getting on with your life. You admit you broke the law (even if you don't agree with the sentence) and even if you didn't have such bad intent.
It is not hard to get another car, don't ruin your life for the 'principle' of the matter - of which you may not even be correct - an 18 year old can scrape up enough to get a car - I'm sure your wife can too. NOt that I'm suggesting this will come to be, at all, but let's put it into perspective. Why compound your own problems, which are largely behind you with just a little more patience on your part needed, but restarting them. You owe it to your family, IMHO.
The other reason could be to see if you are actually 'selling' the IT material - unexpected moneys coming into the household would be evidence of that - not conclusive of course, but no evidence is conclusive, obviously.
Please, never use your 401k to borrow unless it is life or death, unless a reputable expert advised you to do so. 401ks have protections against creditors, cars do not.
The best you can do it get your proofs. Cancelled check from parents to you, preferably with notation in the memo line is helpful to show where and why. If the money you originally used for the first contractor was disclosed, and not required to be paid for restitution, that should be OK, presumably. Also, the $25k, was that a fine or restitution? Restitution should be payment ultimately back to the victim co, yes.
OK, so your old car is about to die, why not take it off the road, so each only have one car at your disposal?
A loan from your parents probably will not take precedence over your debt to the 'system' I'm afraid - regardless of its legitimacy (kind of like tax bills and child support). So, whether part of you crime bill debt is paid or your parents debt is paid, you will still be reducing your total debt by that amount, so it really shouldn't matter. I would try to work with them to get on or stay on a good payment plan. $25k can be knocked off in good time (once you get a job of course, I know if has to be very tough being laid off, click here for some considerations and options at the end, when you need to think outside the box).
I know the felon status is a job killer, time to really think out side the box. I feel for you, the punishment does not appear to fit the crime, if only for the part about the felony status!
One more thing, the government has grand ways of learning about all of our finances and failing to disclose does not mean that they won't learn of them, but it does put you at risk for prosecution if an affidavit or under oath statement is false, by ommission or otherwise.
Was there a question that we missed, or do you follow up? Please let me know.
Otherwise, I hope this helps to clarify and...
I just spent the last 1/2 hour chasing this case for you and reviewing it:
IP 94-0057-CR /
It is NO way discusses that which you were hoping, so apparently you never read it? It in no way casts doubt as the government's ability to probe assets of anyone other than the accused. Keep in mind, you are not the accused, you are the convicted, so if cases concerning defendant's not yet convicted would not be on point or applicable.
If you have another case you intended or want reviewed, please include the direct link AND cut and paste the parts you consider relevant and I will consider looking at them.
Also, yes, you can do search queries on Westlaw, although they will charge for the search. You have the same access to Westlaw, a subscription service that I would have, if I chose to purchase a day's access or a weeks access of the pertinent area of law/jurisdiction. They do not require you to be an attorney. If you would like me to then do some work with your Westlaw account, if you choose to establish one, I may consider it, after we see what occurs here.
I can not speculate if your previous lawyer was rooting for the prosecution or not being diligent in his research that you likely charged for. However, please know that if there was no case law supporting that which you seek, he would be doing his lawful duty under the law to be frank with you and not blow hot smoke to create false hope. There are limits to what may be investigated, as noted in the statutes you requested that I provided you, a while back.
Please recall, I do not receive credit for time spent and efforts expended on your behalf until you click ACCEPT.
I believe I have answered your additional question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger and can not create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. This will not cost you anything, if you already deposited to the company for this service. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterwards, don't hesitate to Reply and I'm happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks!
Gulliver, attorney/client privilege is a special privilege - there is no equivalent amongst spouses.
Incidentally, as you are not apparently satisfied with my efforts, I invite you to OPT me out so another expert, if they feel to spend some time here with you, can take over.
Hi Gulliver, thank you, XXXXX XXXXX Please let me know as well if you would like me to look at that case when you find it.
Potent as it was, however, the bill of discovery could not be used to obtain documents (or other discovery) from someone who was not a party. Thus, although federal courts are vested with certain inherent discovery powers owning to the equitable power of Chancery courts to issue bills of discovery, we conclude that there is no broad, general inherent power to order a non-party beyond the district to produce documents.
National Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir. 1993) cert. deniedXXXXX 882 (1994). -- Unfortunately this holding is not applicable as it pertains to a civil matter and differing codes entirely.
See Baldwin v. United States, 805 F.Supp. 1026 (S.D. Fla. 1992). - this concerns trying to collect on tenancy by the entirely property with spouse, not disclosure requirements. Your issue is solely (at this point) disclosure permitted by statute, expressly. If it every came down to the gov't trying to take your spouses assets, that would be an entirely different issue than you have now.
Again, they have not tried to take your spouses assets, they only want to know about them. The only way they can investigate if they were actually your assets illegitimately passed to your spouse is by knowing about them and checking out the history, papertrail.
So unfortunately, at this point, these cases don't help you - at this point anyway. Perhaps later, but your issue is disclosure, not collections, at present.
I believe I have answered your additional questions, and hope you honor same by clicking Accept. I hope you have a better understanding of your legal issue as a result. As you know, I am only the messenger and can not create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. This will not cost you anything, if you already deposited to the company for this service. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterwards, don't hesitate to Reply and I'm happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks!
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