United States District Court, D. New Jersey
WILLIAM J. MARTINI, District Judge.
Defendant Robert Gorman brings this action pursuant to 18 U.S.C. § 3402, seeking review of the decision of the Magistrate's Judgment of Conviction on one count of lewdness. For the reasons that follow, the Magistrate Court's decision is AFFIRMED.
On October 14, 2012, a park ranger arrested Defendant Robert Gorman when he observed Defendant masturbating during park hours at Gateway National Recreation Area (Sandy Hook), in Highlands, New Jersey. Defendant was issued a Violation Notice for public lewdness pursuant to 36 C.F.R. § 7.29(c). This is a class B misdemeanor carrying penalties of up to 6 months imprisonment and fines of up to $5, 000. Defendant pled guilty to this offense on December 19, 2012.
Defendant Robert Gorman is a single, sixty-six-year-old male currently residing in New York, New York. He has one prior offense. In 1972, he was arrested in New York City and charged with "obscene performance." He plead guilty to an amended charge of disorderly conduct.
In preparation for the current sentencing, the Magistrate ordered preparation of a Pre-Sentence Investigation Report ("PIR"). As part of the PIR process, Defendant was provided with a personal financial statement form, which he was required to complete and submit to the probation office. Defendant failed to do so.
Despite Defendant's failure, the PIR contained adequate information about his financial condition and ability to pay a fine. The PIR noted the following: Defendant has been consistently working in the food industry since 1978, most recently at various catering companies in the New York area. He reported an adjusted annual gross income of approximately $14, 000. He has no significant assets and had credit card debt of $210.
The PIR also noted Gorman is a Navy veteran with some college education. He lives in a low-income co-operative building. He is divorced and has a 42-yearold son from his previous marriage. The PIR also noted that he is mentally healthy, without substance abuse or gambling problems. He does have several physical health conditions, including sciatic pain from a ruptured disc, mitral valve prolapse, and gastrointestinal discomfort that he attributes to food poisoning. He receives treatment for his conditions through the Veteran's Administration Clinic. There was no report that his physical conditions interfered with his ability to work.
The Magistrate sentenced Defendant on March 20, 2013 to pay a $1, 000 fine, with the option of payment in $75 monthly installments. On April 11, 2013, the Magistrate entered a Judgment of Conviction. On April 16, 2013, Defendant timely filed notice of appeal claiming that the Magistrate erred as a matter of law by refusing to look at Defendant's personal financial statement when he tried to hand it to the Magistrate at the time of the sentencing. Defendant stated in front of the Magistrate that he was unaware that he had to submit the personal financial statement to the probation office.
With apparent frustration, the Magistrate refused to look at Defendant's personal financial statement, citing Defendant's failure to follow the procedure of giving it to his probation officer. Nevertheless, the Magistrate did hear the Federal Defender request a low fine based upon Mr. Gorman being periodically on unemployment and making only $14, 000 a year.
Although the Magistrate's tone towards the Defendant was brusque after Defendant tried to submit his personal financial statement, the Magistrate did repeatedly ask both Defendant and the Federal Defender for additional facts that they wanted him to consider before sentencing Defendant.
II. STANDARD OF REVIEW
For the purpose of this appeal, the court will review the findings of the Magistrate for clear error. United States v. Seale, 20 F.3d 1279, 1284 (3d Cir. 1994). A finding is considered "clearly erroneous" when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). A decision is considered contrary to the law if the ...