Unpublished Disposition, 904 F.2d 711 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 711 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Shirley A. CONNELLY, Defendant-Appellant.

No. 89-10450.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1990.* Decided June 13, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


Shirley Connelly appeals the district court's revocation of her probation for failure to abide by the terms of the court's sentence. On September 11, 1986, the district court found Connelly guilty of two counts of failure to file income tax returns in violation of 26 U.S.C. § 7203 and one count of fraudulent claims in violation of 26 U.S.C. § 287. The court fined Connelly $5,000 and sentenced her to six months confinement and four years and six months of supervised probation during which time she would be subject to several conditions. These conditions included payment of all federal taxes and penalties due, full cooperation with the IRS in its investigation and collection of her taxes, and payment of the fine. On September 1, 1989, the district court revoked Connelly's probation because she had not paid her fine and was attempting to thwart IRS collection efforts by using dummy corporations and fraudulent transfers to shelter her home, her only significant asset, from seizure. We affirm.

Connelly first argues that there was insufficient evidence to find that she was thwarting the IRS's collection efforts in violation of her probation. Connelly claims that her willingness to file a quitclaim deed on her home is ample evidence of her good faith efforts to aid the IRS. The district court had sufficient evidence to show that the quitclaim deed was ineffective to transfer title in the home, because of the fraudulent transfers to dummy corporations controlled by the defendant and her husband. The district court did not abuse its discretion. See United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir. 1984) (" [E]vidence and facts [must] be such as to reasonably ... satisfy the judge that the probationer's conduct has not been as required by the conditions of probation.").

Second, Connelly argues that the district court lacked jurisdiction to revoke her probation, because the relevant conduct occurred prior to sentencing. Connelly's failure to pay the fine and the fraudulent transfers in fact took place during the probationary period. The district court did not abuse its discretion.

Third, Connelly argues that the district court erred by conditioning continuation of her probation on a waiver of her fifth amendment right not to incriminate herself. This issue was raised for the first time on appeal and is reviewed for plain error. United States v. Bustilla, 789 F.2d 1364, 1367 (9th Cir. 1986). Connelly has failed to show any specific denial of her rights. See United States v. Pierce, 561 F.2d 735, 740 (9th Cir. 1977) (" [T]he burden is on the defendant to raise any Fifth Amendment claim he may have with regard to a risk of further prosecution in order to avoid imposition of a disclosure condition."), cert. denied, 435 U.S. 923 (1978). The district court did not abuse its discretion.

Finally, Connelly argues that the district court erred by failing to make specific findings as to whether the violation warranted imprisonment. We have reviewed the record, and it is clear from the transcript that the district court weighed the appropriateness of revoking probation in this case. The record from the transcript is sufficient. See United States v. Rilliet, 595 F.2d 1138, 1140 (9th Cir. 1979). The district court did not err.



The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3