11-1188-cr
United States v. Colasuonno


                               UNITED STATES COURT OF APPEALS

                                       FOR THE SECOND CIRCUIT


                                          August Term, 2011

                   (Argued: November 15, 2011           Decided: October 12, 2012)

                                        Docket No. 11-1188-cr


                                     UNITED STATES OF AMERICA,

                                                       Appellee,

                                                  v.

                                         PHILIP COLASUONNO,

                                                       Defendant-Appellant.



Before:
                              KEARSE, WALKER, and RAGGI, Circuit Judges.



          Appeal from a judgment of the United States District Court for the Southern District

of New York (Hellerstein, J.), resentencing defendant to four months’ incarceration after he

was found to have willfully violated probation by failing to pay ordered restitution.

Defendant, who filed for bankruptcy after his initial sentencing, submits that the automatic

stay provision of the Bankruptcy Code, see 11 U.S.C. § 362(a), temporarily relieved him of
his restitution obligations and precluded the district court from revoking his probation for

failing to pay restitution. Alternatively, he submits that the record evidence did not permit

the district court to reject his advice-of-counsel defense to the charged violation of probation.

In any event, he asks this court to modify the amended judgment to reconcile a purported

inconsistency between the written and oral sentence regarding his obligation to pay

restitution while incarcerated.

       AFFIRMED IN PART and DISMISSED IN PART.



              DANIEL W. LEVY (Katherine Polk Failla, on the brief), Assistant United
                   States Attorneys, for Preet Bharara, United States Attorney for
                   the Southern District of New York, New York, New York, for
                   Appellee.

              EDWARD S. ZAS, Federal Defenders of New York, Inc., New York,
                  New York, for Defendant-Appellant.


REENA RAGGI, Circuit Judge:

       Defendant Philip Colasuonno, who stands convicted of substantive and conspiratorial

bank fraud and tax crimes, appeals from an amended judgment entered on April 6, 2011, in

the United States District Court for the Southern District of New York (Alvin K. Hellerstein,

Judge) resentencing him to four months’ imprisonment on the substantive tax count upon a

finding that Colasuonno violated his original sentence of probation by willfully failing to pay

court-ordered restitution. Colasuonno, who declared bankruptcy after his initial sentencing,



                                               2
submits that the automatic stay provision of the United States Bankruptcy Code, see 11

U.S.C. § 362(a), temporarily halted his obligation to pay restitution and barred the district

court from revoking his probation for nonpayment. This argument presents us with a

question of first impression in this Circuit as to what effect, if any, the Bankruptcy Code’s

automatic stay provision has on court-ordered conditions of a criminal sentence or

proceedings to address violations of those conditions. We conclude that such orders and

proceedings fall within an express exception to the automatic stay because they constitute

a “continuation of [the] criminal action or proceeding.” Id. § 362(b)(1). In the alternative,

Colasuonno argues that he relied in good faith on advice of counsel in not paying restitution

and that the record evidence does not support the district court’s rejection of this defense.

Because this argument is also meritless, we affirm the amended judgment of conviction.

       Insofar as Colasuonno, who has now completed his four-month incarceratory

sentence, asks this court to modify the amended judgment to clarify that he was under no

obligation to pay restitution while incarcerated, we dismiss that part of his appeal as unripe

for adjudication.

I.     Factual Background

       A.     Colasuonno’s Conviction and Initial Sentencing

       On November 2, 2006, Colasuonno was found guilty after a jury trial of substantive

and conspiratorial bank fraud, see 18 U.S.C. §§ 1344, 1349, relating to deceitfully inflated

financial statements that Colasuonno and his brother Dominick submitted to J.P. Morgan

                                              3
Chase in order to secure business loans from that institution. Thereafter, Colasuonno waived

indictment and, on June 18, 2007, pleaded guilty to an information further charging him with

conspiracy to commit tax fraud and aiding and abetting the preparation of false tax returns.

These crimes originated in his “off the books” cash payments to certain employees over the

course of five years and in his resulting underpayment of $781,467 in payroll taxes. See 26

U.S.C. § 7206; 18 U.S.C. § 371.

       On July 19, 2007, in a consolidated proceeding, the district court sentenced

Colasuonno principally to time served (one day) with concurrent terms of five years’

supervised release on the two bank fraud counts and the tax fraud conspiracy count, and to

a concurrent five years’ probation on the false tax preparation count. In explaining its

decision not to sentence Colasuonno within the recommended Guidelines prison range of 46

to 57 months for his crimes, the district court cited Colasuonno’s serious health problems.

The court nevertheless imposed special conditions on Colasuonno’s probation, confining him

to his home for 46 months and requiring him to pay restitution to the Internal Revenue

Service (“IRS”) in the amount of $781,467.          The judgment of conviction directed

Colasuonno to cooperate with the IRS in working out a schedule for such repayment.

       B.     Colasuonno’s Initial Failure To Pay Restitution Prompts a Court-Ordered
              Schedule for Monthly Payments

       For almost a year after sentencing, Colasuonno made not a single payment toward the

restitution ordered by the district court. This prompted the district court to issue a summons


                                              4
requiring Colasuonno to appear and to answer a charge that he had failed to abide by a

condition of his probationary sentence. A number of hearings ensued at which Colasuonno,

who had a monthly income of $7,059 dollars from Social Security benefits and private

disability insurance, disputed whether he could be compelled to use the insurance payments

to satisfy restitution.1 The district court resolved this question against Colasuonno and, on

December 12, 2008, ordered that, beginning January 15, 2009, Colasuonno pay 15% of his

monthly income—$1,058.55—toward restitution. When Colasuonno’s attempts to secure

a stay or modification of this payment schedule proved unsuccessful, he started to make the

ordered payments, so that by July 15, 2009, he had paid approximately $6,630 in restitution.

       C.     Colasuonno Files a Chapter 7 Bankruptcy Petition

       On July 24, 2009, without notice to either the district court or the Probation

Department, Colasuonno and his wife jointly filed a Chapter 7 bankruptcy petition in the

United States Bankruptcy Court for the Southern District of New York. See 18 U.S.C.

§ 3563(a)(7) (requiring defendant on probation to notify court of any material change in

economic circumstances that might affect ability to pay restitution).

       When, on September 3, 2009, Colasuonno again moved in the district court for

modification of his restitution schedule, citing financial hardship, he made no mention of the

pending bankruptcy petition, much less did he indicate that it would affect his ability to pay

restitution. On October 21, 2009, the district court denied modification, observing that
       1
       This amount does not reflect an additional $6,020 in monthly income being received
by Colasuonno’s wife.
                                              5
Colasuonno’s professed financial hardship arose from his “own choices and preferences,”

including his expenditures on “unnecessary luxuries.”         Order Denying Request for

Modification of Restitution Payment Schedule at 3, No. 05-cr-1110 (Oct. 21, 2009), ECF No.

112.

       That same day, Colasuonno moved pro se for reconsideration, for the first time

revealing his bankruptcy filing but not arguing that it relieved him of his obligation to pay

restitution on the schedule set by the court. The district court granted reconsideration on

October 27, 2009, and directed Colasuonno to provide further information about his financial

condition. Instead, Colasuonno filed a notice of appeal, divesting the district court of

jurisdiction.     Subsequently withdrawing that appeal, Colasuonno again sought

reconsideration of the restitution payment schedule, which the district court denied on

January 20, 2010, without prejudice to renewal “after good faith negotiations, providing full

knowledge to the [bankruptcy] trustee.” Endorsed Letter Ruling, No. 05-cr-1110 (Jan. 20,

2010), ECF No. 117.

       D.       The Probation Violation Proceeding

       Colasuonno continued making full restitution payments through November 2009.

Although the district court never reduced the ordered monthly payment, from December

2009 through February 2010, Colasuonno paid only $300 per month toward restitution, after

which he ceased paying restitution altogether. In total, he had paid $11,949 toward the

ordered $781,467 restitution.



                                             6
       In April 2010, some nine months after filing for bankruptcy, Colasuonno first

suggested—to his probation officer—that the automatic stay afforded by the Bankruptcy

Code relieved him of any obligation to pay restitution. On October 20, 2010, the district

court issued a summons for Colasuonno to appear and to answer the charge that he had

violated his probation by failing to make a good faith effort to pay the ordered restitution.

       In defending against the charged violation, Colasuonno’s counsel argued in the

alternative that (1) “the automatic stay should allow [Colasuonno] to forego restitution

payments until the bankruptcy court rules on a reorganization,” and (2) Colasuonno did not

willfully violate probation because he relied in good faith on his bankruptcy counsel, who

advised him that he need not pay restitution while the automatic stay was in effect.2 Robert

M. Baum Letter to Judge Hellerstein at 2 (Jan. 5, 2010) (unavailable on ECF).

       On February 18, 2011, the district court conducted an evidentiary hearing at which

both Colasuonno’s wife and his bankruptcy counsel testified concerning the advice provided.

The district court rejected Colasuonno’s advice-of-counsel defense, finding that he had failed

fully to disclose to bankruptcy counsel relevant facts about his restitution obligation,

specifically, that payment was a condition of a criminal sentence. The district court further

ruled that the automatic stay of the Bankruptcy Code did not operate to halt Colasuonno’s


       2
         Insofar as Colasuonno raised other defenses that he does not pursue on this appeal,
we deem them forfeited and do not discuss them further. See Graves v. Finch Pruyn & Co.,
457 F.3d 181, 184 (2d Cir. 2006) (applying general rule that argument not pressed on appeal
“is therefore waived, and we will not consider it”).


                                              7
obligation to comply with conditions of his criminal sentence, including the condition of

payment of restitution. Accordingly, it found Colasuonno in violation of probation.

       E.     Colasuonno’s Resentencing

       On March 17, 2011, after affording the parties an opportunity for briefing and oral

argument, the district court revoked Colasuonno’s probationary sentence and, reviewing the

sentencing factors specified in 18 U.S.C. § 3553(a), resentenced Colasuonno on the

substantive tax crime of conviction to four months’ imprisonment followed by a one-year

term of supervised release. As a special condition of supervised release, the district court

required Colasuonno to pay restitution in the amount of $846,913.61 (as now adjusted for

interest) in monthly installments equal to 15% of Colasuonno’s gross monthly income.

       In imposing this sentence, the district court found that “cheating” lay at the heart of

both Colasuonno’s crime of conviction and his violation of probation; that the victim of

Colasuonno’s cheating was not simply the government, but the public at large; that

Colasuonno’s failure to pay restitution obligations had been “willful”; that the record

revealed Colasuonno’s “efforts to use every single potential advantage not to pay [his]

restitution obligations”; and that, consistent with these efforts, Colasuonno had “used

bankruptcy as an excuse” to avoid paying restitution. Resentencing Tr. 51, 05-cr-1110 (Mar.

7, 2011).

       Colasuonno filed a timely notice of appeal. Failing to secure bail pending appeal from

either the district court or this court, he served his four-month prison term and was released

from custody on September 15, 2011.

                                              8
II.    Discussion

       A.     The Bankruptcy Code’s Automatic Stay Does Not Affect the Conditions of a
              Criminal Sentence of Probation, Including a Restitution Condition, Nor Does
              It Bar Revocation Proceedings for Noncompliance

       Under § 362(a) of the Bankruptcy Code, the filing of a bankruptcy petition

automatically “operates as a stay, applicable to all entities” of, inter alia:

        (1) the commencement or continuation . . . of a judicial, administrative,
        or other action or proceeding against the debtor that was or could have
        been commenced before the commencement of the case under this title,
        or to recover a claim against the debtor that arose before the
        commencement of the case under this title;

        (2) the enforcement . . . of a judgment obtained before the
        commencement of the case under this title;

        (3) any act to obtain possession of property of the estate . . . ; [and]

        (6) any act to collect, assess, or recover a claim against the debtor that
        arose before the commencement of the case . . . .

11 U.S.C. § 362(a). This automatic stay is a “fundamental debtor protection[],” giving a

“breathing spell from the collection process” so debtors can “attempt a repayment or

reorganization plan to satisfy existing debt.” Eastern Refractories Co. v. Forty Eight

Insulations Inc., 157 F.3d 169, 172 (2d Cir. 1998); see generally SEC v. Brennan, 230 F.3d

65, 70 (2d Cir. 2000) (discussing intent behind automatic stay).

       The reach of § 362(a) is, however, cabined by its own language, which affords

automatic stay protection “[e]xcept as provided in subsection (b).” 11 U.S.C. § 362(a).

Subsection (b) of § 362 states, in pertinent part, that the filing of a bankruptcy petition “does

                                                9
not operate as a stay—(1) under subsection (a) of this section, of the commencement or

continuation of a criminal action or proceeding against the debtor.” Id. § 362(b)(1).

       In invoking § 362(a) in the district court, Colasuonno argued that the automatic stay

relieved him of the obligation to make restitution payments during the pendency of his

reorganization proceeding. Baum Letter to Judge Hellerstein at 2. Before this court,

Colasuonno recast his argument, maintaining that the automatic stay operated on the

revocation proceeding itself to “bar[] the district court from revoking [his] probation based

solely on his non-payment of restitution.” Appellant’s Br. 20. At oral argument, counsel

confirmed that Colasuonno was relying principally on the latter argument, but reiterated that

the result of the automatic stay’s application to the probation revocation proceeding was that

Colasuonno effectively did not need to pay restitution.3

       Courts have rejected claims of both varieties in similar contexts. See United States

v. Caddell, 830 F.2d 36, 39 (5th Cir. 1987) (rejecting argument that automatic stay

“suspend[ed] the restitutory condition of [defendant’s] probation”); Coulter v. Aplin (In re

Coulter), 305 B.R. 748, 753 (Bankr. D.S.C. 2003) (rejecting argument that probation

violation hearing, held after failure to pay restitution, violated automatic stay). We do the

same here, concluding that proceedings to enforce a probationary sentence constitute the


       3
        Indeed, although Colassuono stops short of articulating such a theory, his argument
reduces to the proposition that the filing of a bankruptcy petition thus stays the criminal
judgment of sentence itself.
                                             10
“continuation of a criminal action or proceeding against the debtor” and thus fall within the

specific exception to the automatic stay codified at 11 U.S.C. § 362(b)(1).4

              1.      The Statutory Text of § 362(b)(1)

       Because applicability of the § 362(b)(1) exception to the Bankruptcy Code’s

automatic stay presents a question of law, our standard of review is de novo. See United

States v. Bari, 599 F.3d 176, 178 (2d Cir. 2010). That review necessarily begins with the

statutory text to determine whether the language, viewed in context, unambiguously reveals

Congress’s intent. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If it does, no

further inquiry is necessary. “Only if we discern ambiguity do we resort first to canons of

statutory construction, and, if the meaning remains ambiguous, to legislative history.” Daniel

v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005) (citations omitted); see

also Florida Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008).


       4
          While no party questions our jurisdiction to decide this question, we are under an
independent obligation to consider the matter. See Quigley Co. v. Law Offices of Peter G.
Angelos (In re Quigley Co.), 676 F.3d 45, 50 (2d Cir. 2012). Although “relief for a violation
of the [automatic] stay must be sought in the Bankruptcy Court,” Eastern Equip. & Servs.
Corp. v. Factory Point Nat’l Bank, 236 F.3d 117, 121 (2d Cir. 2001), which normally “has
exclusive jurisdiction to determine the applicability of the automatic stay and to grant relief
from the stay,” 3 Collier on Bankruptcy ¶ 362.08 (Alan N. Resnick & Henry J. Sommer eds.,
16th ed.), we have clarified that “[w]hether the stay applies to litigation otherwise within the
jurisdiction of a district court or court of appeals is an issue of law within the competence
of . . . the court within which the litigation is pending,” Erti v. Paine Webber Jackson &
Curtis, Inc. (In re Baldwin-United Corp. Litig.), 765 F.2d 343, 347 (2d Cir. 1985). Because
this appeal concerns a probation violation proceeding and resentencing, litigation otherwise
undoubtedly within the jurisdiction of the district court, see 18 U.S.C. § 3565; Fed. R. Crim.
P. 32.1(b)(2), as well as within our own jurisdiction to review, see United States v. Lettieri,
910 F.2d 1067, 1068 (2d Cir. 1990), we may therefore consider the question of whether the
automatic stay barred such proceedings.
                                              11
       The plain language of § 362(b)(1) exempts the “commencement or continuation of a

criminal action or proceeding against the debtor” from the automatic stay afforded by

§ 362(a). Because the term “criminal action” is not defined in the Bankruptcy Code, it bears

its “ordinary or natural meaning,” FDIC v. Meyer, 510 U.S. 471, 476 (1994), which is “[a]n

action instituted by the government to punish offenses against the public,” Black’s Law

Dictionary 34 (9th ed. 2009). A “criminal proceeding” is commonly understood as “a

proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s

punishment; a criminal hearing or trial.” Id. at 1324. Because these definitions overlap to

some degree, we construe Congress’s use of both words to signal its intent to create an

exception for any action or proceeding that relates to an adjudication of guilt or that punishes

a defendant for crimes.5 See Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074,

1086 (9th Cir. 2000) (“[I]n the case of the automatic stay, Congress has specifically

subordinated the goals of economic rehabilitation and equitable distribution of assets to the

states’ interest in prosecuting criminals.”). An alternative construction would “violate[] the

established principle that a court should give effect, if possible, to every clause and word of

a statute.” Moskal v. United States, 498 U.S. 103, 109–10 (1990); see Lamie v. United States

Trustee, 540 U.S. 526, 536 (2004) (reaffirming “preference for avoiding surplusage” in

construing Bankruptcy Code where such avoidance “does not lead to absurd results”). Thus,
       5
         To the extent Colassuono cites cases from other circuits stating that exceptions to the
automatic stay should be construed narrowly, see, e.g., In re Grede Foundries, Inc., 651 F.3d
786, 790 (7th Cir. 2011), our construction of § 362(b)(1) does not violate this principle, as
it derives from the plain language of the statute.
                                              12
a hearing to set punishment, i.e., a sentencing, undoubtedly qualifies as a criminal

proceeding, but so too does a hearing to ensure that a defendant is complying with the

conditions of sentence. Such a construction is reinforced by language in § 362(b)(1)

applying that statutory exception to the “commencement or continuation” of a criminal action

or proceeding. The common meaning of “continuation” reaches broadly to cover not only

an “uninterrupted extension” of an activity, but also “the action of carrying on or resuming

after an interruption or break.” Webster’s Third New International Dictionary 493 (1986).

Further, “continuation” means “the causing of something to continue,” as illustrated by an

example with particular relevance to this case: “payments made in continuation of” a legal

obligation. Id.

       With this understanding of the language of § 362(b)(1), we easily conclude that

Colasuonno’s criminal prosecution for bank fraud and tax crimes constituted a criminal

action. We further conclude that, for purposes of § 362(b)(1), the criminal action did not end

when the judgment of conviction became final. Rather, the action continued through

satisfaction of the judgment because all duties imposed on the defendant, as well as the

court’s authority to hold the defendant to account for those duties, derive from, and in that

respect continue, the original criminal action. To hold otherwise would be to ignore the fact

that the purpose of a criminal action is not simply to charge a defendant with criminal

conduct or to try him on such charges. It is to punish the defendant for offenses committed

against the public. See Black’s Law Dictionary 34. Although a criminal action may

                                             13
commence with a charge, it continues through the range of pre-trial conferences and

hearings, through trial itself, and, where guilt is found, through all the proceedings that

determine sentence, provide for compliance with sentence, and address violations of

sentence. Thus, the language of § 362(b)(1) unambiguously signals Congress’s intent to

exempt all parts of the process aimed at punishing a defendant for criminal conduct from any

interruption by the Bankruptcy Code’s automatic stay. Accordingly, the automatic stay

Colasuonno obtained through his bankruptcy filing did not preclude the government from

enforcing the conditions of his probationary sentence, including the condition that he pay

restitution. Nor did the automatic stay—effectively or otherwise—relieve Colasuonno of his

obligation to pay restitution.

       While we think the plain meaning of the text, viewed in context, is sufficient to reach

this conclusion, it is reinforced by the legislative history of § 362(b), which emphasizes that

“bankruptcy laws are not a haven for criminal offenders, but are designed to give relief from

financial over-extension.” S. Rep. 95-989, at 54 (1978), reprinted in 1978 U.S.C.C.A.N.

5787, 5840. A failure to recognize enforcement of the conditions of a probationary sentence

or proceedings to address violations of probation as a “continuation” of the criminal action

that resulted in such a sentence would allow the bankruptcy laws to become a haven for

criminal offenders, allowing them to interrupt, if not completely frustrate, their criminal

punishment.




                                              14
       Colasuonno’s counsel conceded at oral argument that § 362(a) and (b)(1) could not

fairly be construed to relieve a criminal defendant from his duty to comply with conditions

of probation that bar the defendant from committing another crime, see 18 U.S.C.

§ 3563(a)(1); prohibit him from possessing a controlled substance, see id. § 3563(a)(3); or

require him to register as a sex offender, see id. § 3563(a)(8). Nor does the automatic stay

bar a district court from conducting a probation revocation hearing regarding such violations.

Insofar as Colasuonno nevertheless maintains that the § 362(b)(1) exception to the automatic

stay should not apply to a restitution condition of probation, we discuss this argument more

fully infra Part II.A.3. We consider it useful at the outset, however, to note that a restitution

order is not imposed because a defendant has over-extended himself financially to various

creditors. A restitution order arises from a defendant’s commission of a crime. Indeed, “[i]n

each order of restitution” for a crime, the court is required to “order restitution to each victim

in the full amount of each victim’s losses as determined by the court and without

consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).

Thus, while we have characterized the purpose of restitution as “essentially compensatory,”

United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006), the compensation is for no

ordinary debt, nor is the person compensated simply a creditor.              Rather, restitution

compensates a crime victim, to the extent money can do so, for actual injuries sustained,

whether to body or property, from a criminal offense. See id. The Supreme Court

recognized as much in Kelly v. Robinson, 479 U.S. 36 (1986), when it stated that “[a]lthough

                                               15
restitution does resemble a judgment ‘for the benefit of’ the victim, the context in which it

is imposed,” a criminal sentencing, “undermines that conclusion.” Id. at 52 (quoting 11

U.S.C. § 523(a)(7) in holding that restitution orders are not dischargeable under Chapter 7).

       The only one of our sister circuits to have considered the question has similarly

construed § 362(b)(1). See United States v. Caddell, 830 F.2d at 38–39 [5th Cir.] (rejecting

argument that bankruptcy filing precluded imposition of restitution or suspended that

condition of probation so as to bar revocation for nonpayment). A number of district courts

have also concluded that “[a]ction by the government to enforce the terms of a sentence [is]

plainly a continuation of the entire criminal proceeding.” United States v. Troxler Hosiery

Co., 41 B.R. 457, 460 (M.D.N.C. 1984); see Bryan v. Rainwater, 254 B.R. 273, 278 (N.D.

Ala. 2000) (“Because a criminal sentence would be meaningless absent authority to ensure

that it is complied with, an action by the state to enforce the terms of a sentence is clearly a

continuation of a criminal action.”). A leading commentator on bankruptcy agrees, observing

that “[i]t seems clear that a criminal court may revoke probation, or penalize the debtor, for

the failure to pay criminal restitution” under § 362(b)(1). 3 Collier on Bankruptcy

¶ 362.05[1][b] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.). Further reinforcing

recognition of a probation violation hearing as a continuation of the criminal action

sentencing the defendant to probation is 18 U.S.C. § 3565(a), which provides (1) for

probation revocation hearings to be conducted pursuant to Fed. R. Crim. P. 32.1, and (2) for

decisions as to whether probation should be continued or revoked and a defendant

                                              16
resentenced to be made by reference to the criminal sentencing factors identified in 18 U.S.C.

§ 3553(a). The fact that a violation of probation can result in a defendant being resentenced

for the original crime of conviction, see 18 U.S.C. § 3565(a)(2); United States v.

Verkhoglyad, 516 F.3d 122, 130 n.6 (2d Cir. 2008), is an additional reason for identifying

a revocation proceeding, for purposes of 11 U.S.C. § 362(b)(1), as a “continuation” of the

criminal action commenced to achieve punishment, see generally Gardner v. Florida, 430

U.S. 349, 358 (1977) (recognizing sentencing as “critical stage of the criminal proceeding”).

       Nor are we persuaded to construe § 362(b)(1) more narrowly by Colasuonno’s

contention that it would be easy enough for the government to minimize any interruption in

a defendant’s compliance with a criminal sentence by applying to have the automatic stay

lifted, presumably under 11 U.S.C. § 362(d). The Supreme Court has rejected a similar

argument in the context of state criminal proceedings, observing that “apart from the burden

on state officials of following and participating in bankruptcy proceedings, it is unseemly to

require state prosecutors to submit the judgments of their criminal courts to federal

bankruptcy courts.” Kelly v. Robinson, 479 U.S. at 48 n.8. A comparable undue burden

would fall on federal prosecutors if required to follow and participate in bankruptcy

proceedings. See id. This is evident from the record, which shows that Colasuonno did not

report his bankruptcy filing to prosecutors or the district court for three months despite the

disclosure obligation within 18 U.S.C. § 3563(a)(7). The unseemliness of prosecutors

submitting state criminal judgments to bankruptcy courts raises particular federalism

                                             17
concerns, but it is also unseemly, perhaps to a different degree, to require federal judgments

of conviction to be presented to bankruptcy courts for determinations as to whether the

automatic stay renders those judgments temporarily immune from enforcement. See United

States v. Caddell, 830 F.2d at 39 (“[T]he language in [Kelly] extends generally to penal

sanctions of restitution without regard to whether the court imposing the sanction is a state

or federal court.”).

       Thus, we construe the plain language of § 362(b)(1) to exempt from the automatic stay

proceedings undertaken to enforce the conditions of a probationary sentence.

              2.       The § 362(b)(1) Exception Is Not Limited to Proceedings Affording a
                       Defendant the Same Rights as Trial

       In urging otherwise, Colasuonno relies on decisions by the Supreme Court and this

court stating that a probation revocation hearing is not a criminal proceeding. See Minnesota

v. Murphy, 465 U.S. 420, 435 & n.7 (1984); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973);

United States v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012); United States v. Carlton, 442 F.3d

802, 807 (2d Cir. 2006). The argument is flawed in several respects. First, these cases

reached that conclusion in the context of deciding whether a defendant facing revocation of

probation was entitled to the same constitutional rights as a defendant facing prosecution.6

See Minnesota v. Murphy, 465 U.S. at 435 & n.7 (holding that probationer’s Fifth
       6
         To the extent Colassuono cites language in Palma v. United States, 228 F.3d 323,
327 (3d Cir. 2000), stating that probation revocation hearings are civil proceedings, that case
repeated the point in dictum while considering the unrelated question of whether a notice of
appeal from a decision returning firearms to a defendant pursuant to 18 U.S.C. § 925(c) was
subject to the time limit for criminal appeals in Fed. R. App. P. 4.
                                              18
Amendment right to refuse to answer questions is limited to responses that would incriminate

probationer); Gagnon v. Scarpelli, 411 U.S. at 790 (holding that defendant’s right to counsel

at probation revocation hearings is not absolute); United States v. Carthen, 681 F.3d at 99

(holding that Confrontation Clause and requirement of proof beyond reasonable doubt do not

apply in revocation proceedings); see generally United States v. Carlton, 442 F.3d at 807

(“Because revocation proceedings generally have not been considered criminal prosecutions,

they have not been subject to the procedural safeguards . . . associated with a criminal trial.”).

       The context of our review is quite different, focusing on a statute, § 362(b)(1), that

creates a specific exception to the Bankruptcy Code’s automatic stay for proceedings that

commence or continue criminal actions or proceedings. Nothing in the text of § 362(b)(1)

signals that the scope of the exception is to be determined by the rights afforded to a

defendant in a particular proceeding. Indeed, any number of criminal proceedings afford a

defendant less than the full panoply of rights mandated at trial. For example, the full

protections of the Confrontation Clause do not apply to preliminary hearings, see United

States v. Bell, 464 F.2d 667, 671–72 (2d Cir. 1972); bail proceedings, see United States v.

Martir, 782 F.2d 1141, 1144–45 (2d Cir. 1986); or sentencing, see United States v. Martinez,

413 F.3d 239, 242–43 (2d Cir. 2005). Similarly, the requirement of proof beyond a

reasonable doubt does not apply to suppression hearings, see United States v. Matlock, 415

U.S. 164, 177 & n.14 (1974); bail hearings, see 18 U.S.C. § 3142(f)(2); or sentencing, see

United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005). Colasuonno does not suggest

                                               19
that these proceedings fall outside the § 362(b)(1) exception, so as to be halted by the

automatic stay.

       Second, and more to the point, § 362(b)(1) does not exempt from the automatic stay

only those proceedings that, by themselves, would qualify as a criminal action or proceeding.

Rather, the text provides for the exception to reach activity that is a “continuation” of a

criminal action or proceeding. Thus, whether or not a scheduling conference in a criminal

case—at which the defendant need not even be present, see McKethan v. Mantello, 522 F.3d

234, 238 (2d Cir. 2008)—might by itself be deemed a criminal action or proceeding, because

it ensures continuation of such an action § 362(b)(1) exempts the conference from the

automatic stay as much as it exempts the trial for which such a conference would establish

a schedule. The same reasoning applies with even more force here. Because a criminal

action seeks, in the end, to punish a person for crimes committed against the public, orders

that establish the conditions of a criminal sentence and proceedings that address possible

violations of those conditions are both reasonably viewed as continuations of the criminal

action, regardless of whether they would be deemed criminal actions or proceedings in and

of themselves for purposes of affording the defendant the same rights as pertain at trial.

Indeed, to allow an automatic stay to halt the operation of orders or proceedings intended to

ensure compliance with a criminal sentence would frustrate the very purpose for which the

criminal action was commenced.




                                             20
              3.      No Exception to § 362(b)(1) Applies to a Probation Condition
                      Requiring Payment of Restitution

       Colasuonno nevertheless maintains that a restitution obligation is sufficiently different

from other conditions of probation to warrant construing § 362(b)(1), as some bankruptcy

courts have, not to apply to proceedings whose sole purpose is to collect restitution. See In

re Barboza, 211 B.R. 450, 452 (Bankr. D.R.I. 1997) (“[I]f the sole objective of a post-petition

probation hearing is to collect restitution, then that proceeding may be a violation of the

automatic stay.”); Washington v. Hale (In re Washington), 146 B.R. 807, 809 (Bankr. E.D.

Ark. 1992). Even if the language of § 362(b)(1) supported the distinction drawn by these

courts—which we do not think it does—Colasuonno is wrong in characterizing the sole

purpose of his revocation proceeding as the collection of restitution. Rather, the proceeding

sought to address the breach of trust placed in Colasuonno when the court initially decided

to sentence him to a term of probation rather than incarceration for his substantive tax crime.

See United States v. Verkhoglyad, 516 F.3d at 130 n.6; see also U.S.S.G. ch. 7, pt. A intro.

cmt. 3(b) (explaining that probation violation proceedings sanction breach of trust, not

violation conduct). Upon finding that Colasuonno breached that trust by employing every

means available to avoid complying with the restitution condition of probation, the district

court carefully reconsidered the statutory factors relevant to the tax crime of conviction under

18 U.S.C. § 3553(a) and, mindful of Colasuonno’s related criminal conduct as well as his

breach of trust, decided to revoke rather than continue probation and to resentence



                                              21
Colasuonno to a term of four months’ incarceration on the crime of conviction. See 18

U.S.C. § 3565(a). Consistent with our recognition that the purpose of a criminal action is

to punish a defendant for offenses against the public, we conclude that Colasuonno’s

probation revocation hearing, which could, and did, result in his being resentenced for his

tax crime, is properly viewed under § 362(b)(1) as the continuation of a criminal action

without regard to whether the violation triggering revocation pertained to restitution or some

other condition of probation.

       Further, to the extent these bankruptcy courts relied, as does Colasuonno himself, on

Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552 (1990), and Hucke

v. Oregon, 992 F.2d 950 (9th Cir. 1993), subsequent events deprive both cases of whatever

weight they initially bore. In Davenport, a case holding that restitution orders qualified as

dischargeable “debts” under Chapter 13, the Supreme Court rejected a government argument

that dischargeability would conflict with the policy behind § 362(b)(1), observing in dictum

that “[s]ection 362(b)(1) does not . . . explicitly exempt governmental efforts to collect

restitution obligations from a debtor.” 497 U.S. at 560. The Court observed that it was not

“irrational or inconsistent” for Congress to permit criminal offenses to be prosecuted during

the pendency of a bankruptcy action while simultaneously precluding probation officials

from enforcing restitution orders while the debtor sought Chapter 13 relief:

        Congress could well have concluded that maintaining criminal
        prosecutions during bankruptcy proceedings is essential to the
        functioning of government but that, in the context of Chapter 13, a

                                             22
         debtor’s interest in full and complete release of his obligations outweighs
         society’s interest in collecting or enforcing a restitution obligation
         outside the agreement reached in the Chapter 13 plan.

Id. at 560–61.

       In fact, Congress soon signaled a quite different policy choice in enacting the Criminal

Victims Protection Act of 1990, Pub. L. 101-581, § 3, 104 Stat. 2865, thereby “expressly

withdrawing the Bankruptcy Court’s power to discharge restitution orders under” Chapter

13, Johnson v. Home State Bank, 501 U.S. 78, 83 n.4 (1991). By thus “overrul[ing] the

result in Davenport,” id., Congress itself “removed or weakened the conceptual

underpinnings” of that decision, Neal v. United States, 516 U.S. 284, 295 (1996) (internal

quotation marks omitted) (discussing in different context when deference is not owed to prior

decisions). Indeed, because a Chapter 13 debtor no longer has any “interest in full and

complete release of his [restitution] obligations,” Pennsylvania Dep’t of Pub. Welfare v.

Davenport, 495 U.S. at 561, the comparison drawn by the Court in Davenport and relied on

by Colasuonno now lacks any foundational support. These circumstances not only absolve

us from our usual obligation to accord great deference to Supreme Court dicta, see Donovan

v. Red Star Marine Servs., 739 F.2d 774, 782 (2d Cir. 1984); they also suggest particular

hazard in relying on Davenport’s dictum to construe § 362(b)(1) to exempt from the

automatic stay all revocation proceedings except those pertaining to nonpayment of

restitution.




                                              23
       Insofar as the Ninth Circuit in Hucke v. Oregon was willing to draw such a

distinction, see 992 F.2d at 953 (suggesting that if “revocation proceeding constituted

collection efforts, then it would violate the automatic stay”), that same court subsequently

rejected Hucke’s reasoning en banc and unanimously, concluding that it was “at odds with

the plain words of the statute,” In re Gruntz, 202 F.3d at 1085 (noting that language of

§ 362(b)(1) admits no “exception for prosecutorial purpose”). We too conclude that the plain

language of § 362(b)(1) does not support a restitution exception.

       In a further attempt to distinguish a failure to pay restitution from other probation

violations, Colasuonno’s counsel suggested at oral argument that revocation proceedings

might be analyzed under § 362(b)(4), another exception to the automatic stay, which

expressly excludes money judgments.7 This limitation on the scope of § 362(b)(4) affords

Colasuonno no relief. As its text indicates and legislative history confirms, § 362(b)(4)

applies to actions in which “a governmental unit is suing a debtor to prevent or stop violation

of fraud, environmental protection, consumer protection, safety, or similar police or

regulatory laws.” S. Rep. 95-989, at 52, reprinted in 1978 U.S.C.C.A.N. at 5838; accord

United States v. Troxler Hosiery Co., 41 B.R. at 459 (concluding that, as used in predecessor

to § 362(b)(4), “police or regulatory power” refers to the administration and enforcement of
       7
        In pertinent part, § 362(b)(4) exempts from the automatic stay “the commencement
or continuation of an action or proceeding by a governmental unit . . . to enforce such
governmental unit’s . . . police and regulatory power, including the enforcement of a
judgment other than a money judgment.” 11 U.S.C. § 362(b)(4) (emphasis added).
Colasuonno’s principal brief does not discuss § 362(b)(4) at all, and his reply brief only
mentions the subsection in passing.
                                              24
state laws affecting health, welfare, morals, and safety). Thus, we have previously applied

this exception in the context of civil and administrative enforcement actions. See SEC v.

Brennan, 230 F.3d at 67 (concluding that “money judgment” exclusion from § 362(b)(4)

barred enforcement of repatriation order obtained in civil fraud proceeding); City of New

York v. Exxon Corp., 932 F.2d 1020, 1022 (2d Cir. 1991) (holding that § 362(b)(4) allowed

action by city seeking reimbursement of environmental cleanup costs); see also Board of

Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 39–40 (1991) (holding that

proceeding by Federal Reserve alleging unsafe banking practices fit “squarely within

§ 362(b)(4)”); 3 Collier on Bankruptcy ¶ 362.05[5][b][i] (discussing cases applying this

exception in “state bar disciplinary proceedings, employment discrimination actions, labor

law enforcement proceedings, rent regulation enforcement, the enforcement of the minimum

wage laws and enforcement of water quality control standards”).

       For reasons already discussed, we do not think a probation revocation proceeding is

analogous to these civil and administrative actions, whether the charged violation relates to

a condition requiring payment of restitution or some other condition. Probation is a form of

criminal punishment, and the purpose of a probation revocation proceeding is to determine

whether a defendant can comply with the conditions of that punishment or whether it is

properly revoked and a new sentence imposed. In these circumstances, we conclude that

Congress intended for probation revocation proceedings, a continuation of the criminal action

that resulted in the probationary sentence at issue, to be exempted from the Bankruptcy

                                             25
Code’s automatic stay pursuant to § 362(b)(1) and that § 362(b)(4) is simply inapplicable.8

Indeed, the fact that Congress excluded the enforcement of money judgments from

§ 362(b)(4), see S. Rep. 95-989, at 52, reprinted in 1978 U.S.C.C.A.N. at 5838 (explaining

that government should not receive “preferential treatment” in collecting money judgments

“to the detriment of all other creditors”); accord SEC v. Brennan, 230 F.3d at 75, while not

excluding from § 362(b)(1) the government’s enforcement of restitution and fine components

of criminal sentences, only reinforces our conclusion that Congress specifically intended to

exempt from the automatic stay any proceedings that could reasonably be deemed to

commence or continue a criminal action or proceeding, including proceedings to enforce the

conditions of a probationary sentence, even if the condition pertains to the payment of

restitution. See Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 453

(2007) (“[W]here Congress has intended to provide . . . exceptions to provisions of the

Bankruptcy Code, it has done so clearly and expressly.” (omission in original; internal

quotation marks omitted)).

       We thus conclude, consistent with the text of § 362(b)(1) and the weight of reasoned

authority, that the Bankruptcy Code’s automatic stay did not—effectively or
       8
         Although one bankruptcy court has construed both § 362(b)(1) and (b)(4) to
encompass criminal proceedings, see United States v. Landstrom Distribs., Inc. (In re
Landstrom Distribs., Inc.), 55 B.R. 390, 393 (Bankr. C.D. Cal. 1985), we agree with the
courts that have rejected this reading, see 134 Baker St., Inc. v. Georgia, 47 B.R. 379, 381
(N.D. Ga. 1984); United States v. Troxler Hosiery Co., 41 B.R. at 459; see also Sacirbey v.
Guccione, 589 F.3d 52, 66 (2d Cir. 2009) (setting forth canon of avoiding surplusage).



                                            26
otherwise—absolve Colasuonno of his duty to comply with the restitution condition of his

probationary sentence on the schedule set by the district court, nor did it bar the district court

from revoking Colasuonno’s probation in light of his willful violation of this condition of his

criminal sentence.

       B.      The District Court Reasonably Rejected Colasuonno’s Advice-of-Counsel
               Defense

       In the alternative, Colasuonno challenges the sufficiency of the evidence supporting

revocation of his probation. Specifically, he faults the district court’s finding that he did not

rely in good faith on the advice of bankruptcy counsel that the automatic stay relieved him

of his restitution obligation and, in fact, willfully failed to comply with that condition. See

18 U.S.C. § 3565 (authorizing court to revoke probation upon finding of violation); id.

§ 3614(b)(1) (allowing court to resentence defendant to imprisonment if “defendant willfully

refused . . . or had failed to make sufficient bona fide efforts to pay” restitution). In making

this argument, Colasuonno assumes a “heavy burden,” because a district court need only be

“reasonably satisfied” that a probationer has failed to comply with the conditions of

probation to revoke sentence. United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir. 1990);

see also United States v. Hooker, 993 F.2d 898, 900 (D.C. Cir. 1993) (suggesting

“reasonably satisfied” standard may require less than preponderance of evidence). We

review the district court’s violation determination for abuse of discretion, which we will not




                                               27
identify with respect to findings of fact absent clear error. See United States v. Carlton, 442

F.3d at 810. A reviewing court will reject a finding of fact as clearly erroneous only when

the record as a whole leaves it with “the definite and firm conviction that a mistake has been

committed.” United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008). That is not this case.

       It has long been understood in other contexts that to benefit from an advice-of-counsel

defense, a party must show that he (1) “honestly and in good faith” sought the advice of

counsel; (2) “fully and honestly la[id] all the facts before his counsel”; and (3) “in good faith

and honestly follow[ed]” counsel’s advice, believing it to be correct and intending that his

acts be lawful. Williamson v. United States, 207 U.S. 425, 453 (1908); accord United States

v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir. 1989). Each requirement must

be satisfied. Cf. United States v. Evangelista, 122 F.3d 112, 117 (2d Cir. 1997) (affirming

denial of advice-of-accountant jury charge in tax fraud case for defendants’ demonstrated

failure to follow accountant’s advice).        The district court found that Colasuonno’s

advice-of-counsel defense failed at the second step because he did not advise his bankruptcy

attorney of the fact that his obligation to pay restitution derived from a criminal conviction

and was a condition of a criminal sentence, nor did he provide the attorney with a copy of

the restitution order, which would itself have revealed these critical facts. Far from being

clear error, this finding is amply supported by the record.




                                               28
       Bankruptcy counsel testified that he was not provided with a copy of the restitution

order and did not remember ever being told that the restitution payments derived from a

criminal case. Insofar as Colasuonno’s wife testified that these facts had been provided to

counsel, the district court was not required to credit her account. See Mathie v. Fries, 121

F.3d 808, 812 (2d Cir. 1997) (“[A] reviewing court owe[s] particularly strong deference

where the district court premises its [factual] findings on credibility determinations.”

(internal quotation marks omitted)). Indeed, bankruptcy counsel stated that if he had known

the omitted facts, he would have had to conduct more research to decide whether the

obligation was subject to the automatic stay. This was sufficient to permit the district court

to find that Colasuonno had failed fully and honestly to lay all facts before counsel as

required to claim the benefit of an advice-of-counsel defense.

       Colasuonno submits that the district court could not reach this conclusion absent

evidence that counsel would, in fact, have given different advice had he known the

information Colasuonno failed to disclose. We are not persuaded. No such evidence was

required to sustain the district court’s finding that Colasuonno did not “fully and honestly

lay[] all the facts before his counsel.” Williamson v. United States, 207 U.S. at 453. In any

event, bankruptcy counsel’s admission that he would have had to do more research to offer

any advice regarding the effect of the automatic stay on Colasuonno’s restitution obligation

was enough to permit the district court to conclude that the failure to disclose this




                                             29
information precluded Colasuonno from successfully invoking an advice-of-counsel defense.

       No different conclusion is warranted by Colasuonno’s argument, raised for the first

time on appeal, that as a non-lawyer, he should not have been expected to appreciate the

relevance of the fact that his restitution obligation was imposed in a criminal case. See In

re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (stating that appellant

waives “argument by failing to present it below”). Whether or not a party might ever be

excused for not laying before counsel facts whose relevance the party could not have been

expected to recognize, that is not this case. As the district court correctly stated, the

restitution order was “the most relevant part of the proceeding” to be disclosed to counsel in

seeking advice. Hearing Tr. 50, No. 07-cr-555 (Feb. 18, 2011), ECF No. 30. Thus, even if

Colasuonno had not defaulted this argument, we would reject it as a basis for identifying

abuse of discretion.

       Of course, in finding Colasuonno not to have relied in good faith on the advice of

counsel, but instead to have willfully violated the restitution condition of his probation, the

district court was entitled to rely on unique insights gained from its direct dealings with

Colasuonno throughout the litigation leading to his conviction, sentencing, and enforcement

of the sentence. See United States v. Jones, 531 F.3d 163, 171 & n.4 (2d Cir. 2008)

(recognizing that “district judges work with the benefit of insights and judgments . . . into

persons [and] crimes” often not conveyed by record). These insights prompted the district




                                              30
court to conclude that, since sentencing, Colasuonno had devoted his “efforts to us[ing] every

single potential advantage not to pay [his] restitution obligations.” Resentencing Tr. 51. Not

only had he failed to cooperate with the IRS in developing a schedule for payment of

restitution, but also, after the district court itself set a schedule, Colasuonno made repeated,

if unsuccessful, efforts to stay its operation or to modify its terms. At the same time

Colasuonno claimed financial hardship to support these efforts, he continued to enjoy

“unnecessary luxuries.” Order Denying Request for Modification of Restitution Payment

Schedule at 3. These facts, together with Colasuonno’s failure to disclose his July 2009

bankruptcy petition even in the detailed financial affidavits he filed in September 2009,

prompted the district court to find that Colasuonno was merely “us[ing] bankruptcy as an

excuse” to avoid further restitution payments and had “not in good faith” relied on counsel’s

advice. Resentencing Tr. 51.

       We identify no clear error in these findings or in the determination that Colasuonno

willfully violated the condition of his probationary sentence requiring him to pay restitution.

The finding that Colasuonno’s failure was willful amply justified the conclusion that he had

not made a good faith effort. See 18 U.S.C. § 3614(b)(1). Accordingly, we conclude that

the district court did not abuse its discretion in revoking probation and resentencing

Colasuonno to a term of incarceration and supervised release on the substantive tax crime of

conviction.




                                              31
       C.     The Request To Modify the Written Judgment Is Not Ripe

       Finally, Colasuonno asserts that, even if this court does not vacate the amended

judgment of conviction, it must modify that judgment to delete a statement indicating that

he was obliged to pay restitution while in prison. See Judgment at 6, No. 07-cr-555 (Apr.

6, 2011), ECF No. 33 (stating that “payment of criminal monetary penalties is due during the

period of imprisonment”). Colasuonno contends that (1) this aspect of the written judgment

conflicts with the oral sentence, which necessarily controls, see United States v. Ramirez,

344 F.3d 247, 255 (2d Cir. 2003); and (2) the district court, in any event, lacked authority to

order Colasuonno to pay restitution while in jail because it could only order payment of

restitution as a condition of supervised release, see generally United States v. Bok, 156 F.3d

157, 166–67 (2d Cir. 1998) (discussing imposition of restitution in context of supervised

release).   Colasuonno represents that, while imprisoned, he made partial—but not

full—monthly payments of restitution according to the schedule set by the court.

        Colasuonno did not object to the written judgment in the district court. He explains

that he could not do so because the amended judgment was entered after he had filed his

notice of appeal. We need not here decide whether this adequately excuses any default

because we decline to consider Colasuonno’s argument to modify the judgment at this time.

       Specifically, Colasuonno’s challenge to the written judgment fails to present a ripe

case or controversy. See Ross v. Bank of Am., N.A., 524 F.3d 217, 226 (2d Cir. 2008) (“The




                                              32
requirement that a dispute must be ripe prevents a federal court from entangling itself in

abstract disagreements over matters that are premature for review because the injury is

merely speculative and may never occur.” (internal quotation marks omitted)); see also

Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003) (requiring “a real or concrete dispute

affecting cognizable current concerns of the parties” before federal court will intervene).

Because Colasuonno’s prison term is over and because he does not seek the return of any

restitution payments he made while imprisoned, the modification he requests would neither

abate a present injury nor compensate for a past one. See United States v. Quattrone, 402

F.3d 304, 308 (2d Cir. 2005) (characterizing claims as moot where intervening events

“make[] it impossible for the court to grant any effectual relief whatever” (internal quotation

marks omitted)). Further, insofar as Colasuonno maintains that modification is necessary to

ensure that he is not prosecuted for contempt for paying less than the full amount due each

month according to the schedule set by the district court, see 18 U.S.C. § 401, he posits an

injury that may never materialize, see Simmonds v. INS, 326 F.3d at 357 (stating that

ripeness requirement allows courts “to avoid becoming embroiled in adjudications that may

later turn out to be unnecessary”).

        When and if the government attempts to prosecute Colasuonno for such putative

underpayments, he remains free to argue that he was not obligated to pay restitution while

incarcerated. At present, his application to amend the judgment must be dismissed as not

ripe.

                                              33
III.   Conclusion

       To summarize, we conclude as follows:

       1. Probation revocation proceedings are continuations of the criminal action wherein

the probationary sentence was initially imposed and, as such, are exempted from the

operation of the Bankruptcy Code’s automatic stay by 11 U.S.C. § 362(b)(1). No different

conclusion obtains because the condition of probation at issue pertains to restitution and,

thus, a defendant’s bankruptcy filing does not—effectively or otherwise—relieve that

defendant of a probation condition to pay restitution.

       2. The district court did not clearly err in finding that Colasuonno had failed to

establish an advice-of-counsel defense to the charged violation of probation because

Colasuonno withheld from counsel the fact most relevant to the operation of the automatic

stay on his restitution obligation, specifically, that the obligation derived from a criminal

conviction.

       3. Colasuonno’s request to modify his written judgment to delete a statement

obligating him to pay restitution while incarcerated is not ripe for adjudication.

       The judgment revoking probation and resentencing Colasuonno is therefore AFFIRMED

and the application to modify the written judgment is DISMISSED.




                                             34
