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United States v. Robert Berg Enterprises, Inc.

United States District Court, D. Maine

October 5, 2015

UNITED STATES OF AMERICA
v.
ROBERT BERG ENTERPRISES, INC.

ORDER DENYING MOTION FOR EARLY TERMINATION OF PROBATION

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

Having concluded that federal statute prohibits a termination of probation before the expiration of one year, the Court rejects the corporate Defendant’s request for such an early termination. The Court also rejects the corporate Defendant’s request that the Court reduce the sentence imposed on Robert Berg, one of the former officers of the corporation, for the commission of the separate federal felony of acting as an accessory after the fact in a marijuana conspiracy in order to make up for asserted mistakes the Court made during the corporate sentencing.

I. BACKGROUND

On August 7, 2015, the Court sentenced Robert Berg Enterprises, Inc. (RBE), a corporation, for trafficking in counterfeit goods, a violation of 18 U.S.C. § 2320(a)(1), to one year probation, a $10, 000 fine, restitution in the total amount of $11, 855.87, and a $400 special assessment. J. (ECF No. 24). On August 14, 2015, the Government filed a Satisfaction of Judgment, indicating that RBE had satisfied and paid in full the monetary penalties. Satisfaction of J. (ECF No. 26). On August 18, 2015, RBE moved the Court for early termination of its probation on the ground that it had paid all of the court-ordered amounts. Def. Robert Berg Enterprises, Inc.’s Unopposed Mot. to Terminate Probation (ECF No. 27). The motion represented that “Joel Casey, AUSA has no opposition to the relief sought herein.” Id. at 1. In addition, the United States Probation Office wrote the Court, indicating that it had no objection to an early termination.

After receiving the motion, the Court reviewed 18 U.S.C. § 3564(c), which reads:

(c) Early termination. The court, after considering the factors set forth in section 3553(a) to the extent that they are applicable, may, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, terminate a term of probation previously ordered and discharge the defendant at any time in the case of a misdemeanor or an infraction or at any time after the expiration of one year of probation in the case of a felony, if it is satisfied that such action is warranted by the conduct of the defendant and the interest of justice.

Id. (emphasis supplied). As RBE had been convicted of a felony, this statutory provision prevents this Court from reducing the term of probation to less than one year for RBE, and the Court wrote to counsel, alerting them to this provision, and asking for their positions on the applicability of § 3564(c). In response, Attorney Berne wrote the Court to confirm that “the statue precludes termination of probation in a felony case before one year elapses.” Email from Att’y Rick Berne to Clerk of Court (Sept. 10, 2015). However, Attorney Berne indicated that the principle, namely Robert Berg, was “seeking answers to a few additional questions.” Id.

On September 11, 2015, Attorney Berne forwarded a letter from Mr. Berg directed to him, which reads:

I did not know there was a “challenge” option.
I am a bit disappointed in this probation error.
I was told by you and the court that once we paid fines in full [RBE] would be off probation.
I straddled the company with more debt to pay that lump sum 30K. I was assured by you and the Judge at the sentencing that [RBE] would be off of probation. And my wife could get back to business without the burden of probation on her business.
If I was told [RBE] was going to be on probation weather (sic) we pay immediately or while we make payments over 1 to 2 years, I would have opted to make payments ...

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