Playing with Government Money? With Restitution Owed, Court Okays Anti-Gambling Probation Modifications

Jodi Lynn Budzynski pled guilty to defrauding the government of Social Security benefits and was sentenced to two years of probation and ordered to repay more than $48,000. When the probation office found out she was withdrawing money at a casino she was brought back before the district court, which modified her probation conditions to prohibit her from gambling and to allow a search if supported by reasonable suspicion that she had violated her probation terms. She appealed these added conditions.

In United States v. Budzynski, the Sixth Circuit affirmed both modified probation conditions, relying on the district court’s detailed explanation that drew a line from Ms. Budzynski’s issues with gambling to the statutory requirements for imposing discretionary probation conditions.

The panel began by side-stepping a question on the scope of its review by finding that even under Ms. Budzynski’s preferred approach the district court did not abuse its discretion. (This appears to be the first published decision from the Sixth Circuit finding that modifications of probation, and not only revocations, are reviewed merely for an abuse of discretion.) The government argued that 18 U.S.C. § 3742(a)(3) limits appellate review to probation conditions relating to restrictions on occupations and intermittent confinement, while Ms. Budzynski framed her request as one for review of a sentence imposed “in violation of law” under subsection (a)(1). 

The Court found that the district judge adequately justified the no-gambling condition based on Ms. Budzynski’s background and the permissible reasons for discretionary probation conditions. Such conditions must be tied to the familiar 3553(a)(1) and (2) factors and be no more restrictive than needed to serve the factors in 3553(a)(2).

Although her convictions were not for offenses involving gambling, the connection between her crimes and a history of financial improprieties and investigations related to her gambling sufficiently linked the condition to her characteristics and the offenses’ circumstances. It also served deterrent, rehabilitative, and retributive purposes.

The panel distinguished a Seventh Circuit case disapproving of a gambling restriction where there was no evidence the defendant had a gambling problem or even was a gambler, such that the condition would redirect money that might be lost from gambling towards restitution. Here the evidence showed that Ms. Budzynski frequented casinos even while she had failed to make any restitution payments. Also, the argument in that case that a gambling prohibition would redirect would-be gambling losses to restitution came from the government on appeal, not from the district court, whereas Ms. Budzynski’s judge expressed that very worry.

Nor was the restriction overbroad in outright barring gambling, rather than merely requiring truthful reporting of winnings as Ms. Budzynski would have it, since it was the loss of money that concerned the district court and the condition did not bar all recreational spending.

As for the search condition, the panel found that it aided compliance with probation conditions and was again justified by the 3553(a)(1) and (2) factors. It also distinguished a second Seventh Circuit decision where the district judge gave no explanation for a broad search condition.

Defense practitioners may find Budzynski most useful as a reminder to judges (or probation officers) that discretionary conditions must fit the person, the offense, and narrowly to probation’s purposes, or as a contrast to district court decisions that have failed to draw those connections.