The opinion of the court was delivered by: Stephen M. Orlofsky, District Judge
This case presents an issue which has not been frequently litigated in
this District, or in the Third Circuit. Specifically, I must decide
whether and under what circumstances a defendant's term of probation may
be terminated early.
The facts and circumstances of this case are undisputed. After his
trial on Hobbs Act extortion and federal bribery charges ended in a hung
jury, Defendant, Joseph S. Caruso ("Caruso"), pled guilty on January 27,
2000, to a one-count Superseding Information charging him with conspiring
to travel in interstate commerce to promote and facilitate a corrupt
payment in violation of N.J. Stat. Ann. § 2C:27-2, and the Federal
Travel Act, 18 U.S.C. § 1952, and in violation of 18 U.S.C. § 371.
In support of his motion for the early termination of his probation
approximately fifteen months before he would otherwise complete the
thirty-six month term of probation originally imposed by this Court,
Caruso has filed two Certifications, dated January 3, 2003 ("Original
and January 21, 2003 ("Reply Certification"),
respectively. A review of Caruso's Certifications reveals that the
principal reason for the filing of this motion for the early termination
of his probation relates to Caruso's suspension from the practice of law
by the New Jersey Supreme Court and the New York Court of Appeals.
Following his plea of guilty, Caruso, who was a practicing attorney at
the time of his guilty plea, was suspended from the practice of law by
the Supreme Court of New Jersey for a three year period, retroactive to
February 8, 2000. Thus, Caruso is eligible to reapply for admission to
the bar of the New Jersey Supreme Court on February 8, 2003. Original
Certification at ¶ 6. In New York, however, Caruso's suspension from
the practice of law runs concurrently with his period of probation.
Thus, in the State of New York, Caruso cannot reapply for admission to
the New York bar until he completes his term of probation on April 19,
2004. Original Certification at ¶ 7.
The underlying offense to which Caruso pled guilty was a serious
crime. Caruso, who at the time of the offense was a member of the bar of
this Court and a municipal prosecutor in the City of Camden Municipal
Court, participated in the solicitation of a bribe on behalf of the then
Mayor of the City of Camden, Milton Milan, to reappoint Elliott S.
Stomel, Esq., to the position of Camden Municipal Public Defender. At the
time of the commission of this offense, Caruso held the position of
Municipal Prosecutor, a position in which he was charged with upholding
the law and protecting and serving the public. Notwithstanding the
seriousness of Caruso's offense, this Court granted the Government's
motion for a downward departure based upon Caruso's substantial
cooperation and assistance to the Government in the prosecution of the
former Mayor of the City of Camden, Milton S. Milan.
While there is not a great deal of reported decisional law analyzing
motions for the early termination of probation pursuant to Section
3564(c), or the early termination of supervised release pursuant to
18 U.S.C. § 3583(e)(1), there is general agreement that the early
termination of probation is a decision entrusted to the sound discretion
of the District Court and is warranted only in cases where the defendant
demonstrates changed circumstances, such as exceptionally good behavior.
See United States v. Atkin, 38 Fed. Appx. 196, 2002 WL 378076 (6th Cir.
2002) (unpublished)*fn1, citing United States v. Lussier, 104 F.3d 32,
36 (2nd Cir. 1997).
Recently, in the case of United States v. Paterno, 2002 WL 1065682
(D.N.J. 2002), my colleague, Judge Bassler, was also confronted with a
motion for the early termination of probation pursuant to
18 U.S.C. § 3564(c). In Paterno, the defendant had pled guilty to a
one-count Information charging him with conspiracy to bribe a public
official in violation of 18 U.S.C. § 371. Under the Sentencing
Guidelines, the defendant faced a term of imprisonment from twenty-four
to thirty months. In Paterno, as in this case, the Government moved for a
downward departure based upon the defendant's substantial assistance.
Judge Bassler granted the motion for a downward departure, sentencing the
defendant to a probationary term of five years. In denying the
defendant's motion for early termination of probation, Judge Bassler
Defendant here has not exhibited any new or exceptional
justify termination of his probation.
He has served nearly three years of his five year
probation term. The Court notes that Defendant's
sentence of five years probation was already a
significant departure from the 24 to 30 month term of
incarceration it could have imposed. Merely complying
with the terms of his probation and abiding by the law
are not in and of themselves sufficient to warrant early
termination of probation; rather, this is simply what is
expected of Defendant (emphasis added).
2002 WL 1065682 at *3.
Other courts, considering the analogous issue of early termination of
supervised release, have reached the identical conclusion that mere
compliance with the terms of probation or supervised release is what is
expected of probationers, and without more, is insufficient to justify
early termination. See Karacsonyi v. United States, 152 F.3d 918, 1998 WL
401273 (2nd Cir. June 10, 1998) (unpublished); United States v. Rasco,
2000 WL 45438 (S.D.N.Y. Jan. 19, 2000); United States v. Yung, 1998 WL
422795 (D.Kan. Jun. 12, 1998); See also United States v. Hardesty, 2002
WL 731705 (D.Kan. April 2, 2002); United States v. Herrera, 1998 WL
684471 (S.D.N.Y. Sept. 30, 1998).
While Caruso has generally complied with the conditions of his
probation, there is nothing contained in the record before me of an
unusual or extraordinary nature that would warrant the early termination
of his probationary sentence. Moreover, this motion appears to have been
prompted solely by the fact that Caruso will not be able to reapply for
admission to the New York bar until he successfully completes his term of
probation on April 19, 2004. This is hardly a changed circumstance which
warrants the early termination of his probation. Caruso was certainly
aware at the time of his guilty plea that he was likely to be suspended
from the practice of law in both New Jersey and New York.
Congress has authorized federal courts to impose probation as an
alternative to a term of imprisonment. Given the nature and gravity of
Mr. Caruso's crime, conspiracy to solicit a bribe for a corrupt public
official, it would indeed send the wrong message if this Court, based
solely upon Caruso's compliance with the conditions of his probation,
were to terminate his probationary sentence early. While the Court is
certainly gratified that Caruso is complying with the terms of his
probation and is attempting to reform his life, the suggestion that this
Court should terminate Caruso's probation early merely to allow him to
reapply for admission to the bar of the State of New York is a
proposition, the mere statement of which is its own refutation.
Having considered the factors set forth in 18 U.S.C. § 3564(c),
specifically, the "nature and circumstances of the offense," "the
seriousness of the offense," "the goal of promoting respect for the law,"
"providing just punishment for the offense," and "to afford adequate
deterrence to criminal conduct," I shall deny Caruso's motion for the
early termination of his probation. The Court will enter an appropriate
form of Order.
This matter having come before the Court on the motion of Defendant,
Joseph S. Caruso, for the entry of an Order for Termination of Probation
pursuant to 18 U.S.C. § 3564(c), Jeffrey C. Zucker, Esq., Sufrin
Zucker Steinberg & Wixted, P.C., appearing for Defendant, Joseph S.
Caruso, Christopher J. Christie, Esq., United States Attorney and James
B. Nobile, Esq., Assistant United States Attorney, appearing for the
United States; and,
The Court having considered the papers submitted by the parties;
For the reasons indicated in the Opinion accompanying this Order;
It is on this 28th day of January, 2003, hereby ORDERED that
Defendant's Motion for Early Termination of Probation is DENIED.