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United States v. Smith

April 19, 2006

UNITED STATES OF AMERICA
v.
SAMUEL DAVID SMITH, III, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 99-cr-00147) District Judge: Honorable Donetta W. Ambrose.

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 31, 2006

Before: McKEE, BARRY, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

Appellant Samuel David Smith, III, appeals from an order modifying the conditions of his term of supervised release and denying his motion to reconsider his petition to allow gainful employment during his supervised release. At issue is an occupational restriction imposed on Smith after sentencing which barred him from employment with an attorney or law firm for the three-year duration of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

I.

Appellant Smith pleaded guilty in September, 1999 to wire fraud in violation of 18 U.S.C. § 1343. The circumstances giving rise to the wire fraud conviction may be briefly summarized as follows. In 1994, Smith started a business named Litigation Support Services, holding himself out as a legal consultant with purported connections to the Motorola Corporation. In this capacity, he orchestrated a scheme in 1994 wherein he obtained some $589,750 from four individuals by misrepresenting his ability to broker for them a deal with Motorola. The fraudulent deal involved the purported purchase and sale of approximately 8,000 pagers and 500 cellular phones. Smith perpetrated the scheme by, among other things, making fraudulent representations to induce the victims to wire money, drafting a fake purchase order, and forging a letter on Motorola letterhead purporting to be from Motorola officials. After pleading guilty, Smith was sentenced to 41 months incarceration and three years of supervised release. At the time Smith was sentenced, he had no offer to work for an attorney or law firm, and the District Court did not impose an occupational restriction on his term of supervised release.

In May, 2004, in preparation for Smith's release from federal incarceration, he was transferred from a federal correctional institution to a community corrections center. At the time of this release from the federal correctional institution and transfer to the community corrections center, local attorneys who knew Smith offered to hire him during his period of supervised release. This offer was considered, but ultimately rejected, by Smith's program review team, which consisted of a Bureau of Prisons representative, two probation officers, and staff of the community corrections center.

In July, 2004, Smith, through the attorneys who had offered to hire him in May, petitioned the District Court to allow the employment. The District Court denied the petition. Smith began serving his term of supervised release in September, 2004, and subsequently filed a motion for reconsideration of the denied petition.

At about the same time, the government petitioned the District Court to modify Smith's term of supervised release to impose an occupational restriction barring Smith from seeking or obtaining any type of employment with a law firm or any other entity where Smith would have access to personal information of legal or business clients.

After a consolidated hearing on February 17, 2005, the District Court denied Smith's motion to reconsider and granted the government's petition to modify Smith's term of supervised release. However, the District Court limited the scope of the government's proposed restriction, banning Smith only from employment related to attorneys and/or law firms.

At the February hearing, the government established, and Smith did not dispute, previous convictions in the years 1991 through 1993 for the following crimes: (a) tampering with records, wherein Smith had prepared a fraudulent court order and a fraudulent letter, with a forged attorney's signature on the attorney's letterhead, and forwarded it to the Pennsylvania Board of Probation and Parole as well as the Allegheny County Court of Common Pleas; (b) altering, forging, or counterfeiting documents, wherein Smith had engaged in the unauthorized practice of law by holding himself out to others as an attorney and collecting legal fees (including a $1,000 retainer and $17,500 in legal and investigative fees); (c) intimidation of a witness/victim and obstructing the administration of law, wherein Smith had threatened the victim of an individual to whom Smith had represented himself to be an attorney; (d) tampering with records or identification, wherein Smith falsified a court order with the intent to deceive the Pennsylvania Board of Probation and Parole; and (e) theft by deception, wherein Smith withheld $25,700 from another ...


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