JOHN R. BROWN, Chief Judge:
This appeal seeks to determine the limit to which the non-governmental recipient of a consent judgment entered
The appellant, Lewis Landay, was indicted on six counts of causing the interstate transportation of forged securities, 18 U.S.C.A. § 2314, arising out of an elaborate check kiting scheme involving two banks. As a result of this scheme one of the banks, the First National of Atlanta, incurred a loss of approximately $60,000. On October 17, 1973 Landay pleaded guilty to three of these counts and the other three were dismissed. On November 9 he signed a consent judgment for $60,423.58 in favor of the First National Bank. A substantial portion of this judgment was immediately satisfied by a consent garnishment of Landay's account at another bank.
Although Landay itemizes four points of appeal in his brief, they are in essence two and we will treat them as such.
First, he attacks the probation condition because by its language it affects "all assets and property he now owns" and so is not limited to the "actual
The disagreement with which we are faced in this case does not involve the amount of restitution but rather the method. At the time he passed sentence the Trial Judge had before him a consent judgment in which Landay freely and voluntarily admitted the exact amount the First National claimed he owed. There is no question but that the amount of the consent judgment was the amount of restitution that the Trial Judge contemplated as the condition of probation. Neither could the parties have envisioned any other sum. There was no error in the way the sentence was imposed here.
The real question, and Landay's second point of appeal, is whether he complied with this condition. We do not find it necessary to rely on those cases that hold that any ambiguity in a sentence is to be resolved in favor of the defendant. Gaddis v. United States, 6 Cir., 1960, 280 F.2d 334; United States v. Martin, 7 Cir., 1972, 467 F.2d 1366. The single ground for revocation of the probation was Landay's failure to execute the assignment asked for by the bank. After oral argument we asked the parties (including First National as amicus)
In considering the revocation of probation the trial court must convince itself that the defendant has not in good faith attempted to comply with the conditions of his probation. United States
DYER, Circuit Judge (dissenting):
This appeal is not about what we should do for the victim who was bilked out of $60,000, but what we should do about the thief who plea bargained a maximum 60 year sentence and $60,000 fine into a 6 months' sentence plus probation on his promise to make restitution, and now reneges.
The simple fact is that Landay has not complied with the special provision of his probation that he execute "whatever documents may be necessary" to transfer funds to make restitution, but on the contrary has refused to do so. As a consequence, the victim must file suit in Maryland to obtain judgment against the thief because he refuses to execute a limited power of attorney for the release of the funds from his father's estate. This is not acting in good faith, keeping the faith, or keeping the bargain. This is bad faith and conduct entirely inconsistent with a bona fide effort to accomplish rehabilitation. See Hensley v. United States, 5 Cir. 1958, 257 F.2d 681; United States v. Steiner, 7 Cir. 1957, 239 F.2d 660.
I do not share the majority's philosophical objections to requiring a thief to make restitution to his victim as a condition of probation, a condition which is, in any event, statutorily authorized. 18 U.S.C.A. § 3651. In my view the Government should be applauded rather than rebuked for having attempted to make the thief live up to his plea bargain, and the district court should be affirmed for having exercised its sound discretion in revoking Landay's probation. I dissent from Part II.
In his letter of transmittal to the executor of the estate he provided: