United States v. Huckaby ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-41200
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILRY HUCKABY, III,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
(January 12, 1995)
Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The principal question in this case is whether the
district court correctly made available to the public among the
records of this criminal prosecution the presentence report (PSIR)
prepared on appellant Huckaby. Although the federal rules now
mandate that the presentence report be disclosed to the defendant
and his attorney, the report is ordinarily kept confidential to
protect the sentencing process, the defendant's privacy interest,
and those people who have cooperated with criminal investigations.
No statute or rule, however, requires that presentence reports
remain confidential after the sentencing hearing has occurred;
information contained in the PSIR is often divulged at sentencing
hearings. The interests of justice counsel that before any such
reports be made public, the court find compelling, particularized
circumstances that outweigh the noted interests in non-disclosure.
In this case, the trial court concluded that such compelling
circumstances exist. We agree with his findings, and affirm his
extraordinary order.1 Appellant's other contentions relating to
his sentence and conviction lack merit.
BACKGROUND
Appellant Huckaby, currently a state district judge in
Louisiana, came under investigation for income tax evasion. He was
charged in an information filed June 29, 1994, with one misdemeanor
count of failing to file an income tax return for calendar year
1987, in violation of 26 U.S.C. § 7203. The next day, Huckaby and
the United States filed a proposed plea agreement in which Huckaby
would plead guilty in exchange for the government's agreement not
to prosecute him for any other tax offense of which it then knew.
The district court refused to accept the plea agreement. Huckaby
then pled guilty to the information.
In a lengthy PSIR, the probation office concluded that
Huckaby had not filed any timely federal income tax returns for
nearly twelve years, that he had similarly failed to file timely
returns for his law practice, and that he had not filed tax returns
to the state of Louisiana for much of this period. He persuaded
the City of Shreveport, Louisiana, which he earlier served as a
1
A motions panel of this court granted a preliminary stay of the order
on November 18, 1994. The preliminary stay was vacated by order of this court
issued January 9, 1995. This opinion states the reasons for the January 9 order.
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councilman, not to withhold income tax on his salary. When pressed
by the IRS, he filed returns on some occasions. His financial
records were in disarray, however, making the computation of unpaid
taxes difficult. Nevertheless, as reflected on the PSIR, the
Internal Revenue Service estimated the total taxes owed by Huckaby
for tax years 1981 through 1992 as being $146,311.25, exclusive of
penalties and interest.
Huckaby's prosecution has been highly publicized in his
home town of Shreveport. Community opinion has deeply divided over
whether Huckaby should be prosecuted at all or whether, for his
violation of public trust, his punishment should be stern and
exemplary. Judge Walter read a prepared statement at Huckaby's
sentencing hearing in which he chastised the government for
prosecuting Huckaby's case as a misdemeanor rather than felony tax
evasion and criticized Huckaby for implying that he was being
singled out for prosecution because he is black. According to the
court, there is a firmly held and widely disseminated opinion among
Huckaby's friends and some Shreveport public officials and
community leaders that "the defendant is being prosecuted because
he is black and because he has raised himself to a position of
power within the community." Judge Walter referred to letters he
had received, which characterized Huckaby's crime as a "mistake" or
"error." Judge Walter briefly summarized the offense-related
conduct described in the PSIR2 and derided Huckaby's attempt to
2
The district court cited statements in the PSIR concerning
defendant's use of his clients' trust funds as his own; his evasion of $1,000 of
sales tax by lying about his residence; his failure to file state income tax
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shift blame from himself for his consistent failure to file tax
returns timely. The judge concluded:
Because of the widespread misconceptions about
this case, I'm going to take the unusual step
of filing the presentence report, together
with your objections, into the record, for
anyone who is interested in the truth.
The judge then sentenced Huckaby to a twelve-month term of
imprisonment plus a fine of $5,000, and a one-year term of
supervised release; he also ordered Huckaby to pay IRS the full
amount of taxes due for 1987.
On appeal, Huckaby contends that the district court
should not have rejected the plea bargain; that the court made two
errors in assessing the offense level for sentencing purposes; and
that he abused his discretion in ordering public disclosure of the
PSIR and objections thereto. We consider first the matter of the
presentence report and then discuss Huckaby's other issues.
DISCUSSION
Although Fed. R. Crim. Pro. 32(c) requires the
preparation of a presentence investigation report in most criminal
cases, the rule does not expressly prohibit disclosure of the
report after sentencing. Nevertheless, the rule continues a
longstanding practice of treating presentence investigation reports
as confidential and not public documents. It prohibits disclosure
returns for at least nine years and to pay over $24,000 of state income tax; his
failure to timely file his federal income tax for twelve years; his failure to
file an income tax return for 1989 and his evading the payment of taxes for those
years; his unlawfully stopping the city from withholding taxes on his city
council salary and his failure to keep records of the thousands of dollars
flowing through his law firm.
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of the PSIR even to the defendant or his counsel when, in the
opinion of the court
The report contains diagnostic opinions which,
if disclosed, might seriously disrupt a
program of rehabilitation; or sources of
information obtained upon a promise of
confidentiality; or any other information
which, if disclosed, might result in harm,
physical or otherwise, to the defendant or
other persons.
Rule 32(c)(3).
Notwithstanding the rule's silence, "in both civil and
criminal cases the courts have been very reluctant to give third
parties access to the presentence investigation report prepared for
some other individual or individuals. United States Dept. of
Justice v. Julian, 486 U.S. 1, 12, 108 S. Ct. 1606, 1613 (1988)
(emphasis in original). There is a "general presumption that
courts will not grant third parties access to the presentence
reports of other individuals." United States v. Smith, 13 F.3d
860, 867 (5th Cir. 1994), cert. denied, ___ U.S. ___, 114 S. Ct.
2151 (1994).
The ordinary confidentiality of presentence reports is
supported by powerful policy considerations. These may be
summarized briefly, for they have been discussed at length in other
opinions. See, e.g., Julian, supra; United States v. Corbitt, 879
F.2d 224, 230-35 (7th Cir. 1989); United States v. Schlette, 842
F.2d 1574 (9th Cir. 1988), opinion amended, 854 F.2d 359 (9th Cir.
1988); Durn v. Bureau of Prisons, 804 F.2d 701, 704-05 (D.C. Cir.
1986). First, the defendant has a privacy interest in the
presentence report because it reveals not only details of the
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offense but, in the broadest terms, "any other information that may
aid the court in sentencing . . ." A PSIR routinely describes the
defendant's health, family ties, education, financial status,
mental and emotional condition, prior criminal history and
uncharged crimes. That the defendant has pled guilty or been
convicted of a crime does not require the dissemination of his
entire personal background in the public domain. And despite the
care with which they are prepared, PSIR's do not conform to the
rules of evidence and may contain errors. Rule 32 affords a
defendant an opportunity to object to errors and requires the court
to resolve any factual disputes over its accuracy, but the PSIR is
not usually rewritten to remove misinformation. Hence,
misunderstandings about a defendant could easily arise from the
routine publication of PSIR's.
Second, as a repository of investigatory evidence about
the defendant's involvement in criminal activity, the PSIR often
relies upon confidential informants or sources of information and
may include facts obtained from proceedings before the grand jury,
which are otherwise secret. Were the confidentiality of
presentence reports to be freely or regularly breached, the
government's access to information needed for criminal
investigation would be severely compromised.
Third, relevant to the sentencing process alone, the
court depends heavily upon the PSIR to fulfill the mandate of the
Sentencing Guidelines and impose a just sentence. Disclosure of
such reports to the public may stifle or discourage that vital
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transmission of information by the defendants, whose contribution
to a PSIR is significant, and by cooperating third parties.
While the reports themselves have historically been
treated as confidential, however, the sentencing hearings in which
their contents may be disclosed are not. For this reason, it is
difficult to conceive that confidentiality of the information in a
PSIR must be maintained under all circumstances, and no court has
so held. Instead, a standard similar to that which regulates the
disclosure of grand jury proceedings has evolved. As the Seventh
Circuit stated in Corbitt, only where a "compelling, particularized
need for disclosure is shown should the district court disclose the
report; even then, however, the court should limit disclosure to
those portions of the report which are directly relevant to the
demonstrated need." 879 F.2d at 239. See also, United States v.
Charmer Industries, Inc., 711 F.2d 1164, 1175 (2d Cir. 1983).3
The district court here explicitly relied on Corbitt and
Schlette in deciding that the interests of justice compelled
disclosure of Huckaby's presentence report. His decision is
reviewed for an abuse of discretion. Schlette, 842 F.2d at 1566-
77; Charmer Industries, , 711 F.2d at 1177.
Huckaby contends that disclosure of the report on his
offense "served only the purpose of providing justification to the
3
In Schlette, the Ninth Circuit arguably articulated a less stringent
standard for disclosure of a PSIR. See discussion in Corbitt, supra. We apply
the Corbitt standard. Moreover, to the extent that the courts' analyses in other
cases have turned on the identity of the party requesting disclosure, such as a
co-defendant or news organization, this opinion does not address such possible
grounds of distinction. The court divulged Huckaby's PSIR on his own initiative
in the interest of community tranquility -- this opinion is limited to its unique
facts.
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public for the imposed sentence." He criticizes the court for
failing to redact irrelevant portions of the report prior to
disclosure, he complains that the report contained extensive
information about extrinsic offenses, and he alleges prejudice if
the report is publicized.
What Huckaby does not assert, however, is as important as
the complaints he is making. He does not say to this court that
any facts stated in the PSIR are incorrect. In the trial court, he
objected to a number of statements in the report, causing the
probation officer to make some corrections. His remaining factual
contentions about the extrinsic offense evidence have been
abandoned on appeal. His consistent failure to file tax returns
and late filing of returns is abundantly documented by IRS records
and documents from state and local taxing authorities. He has
claimed no particular privacy interest in any of the information
contained in the report, perhaps preferring to rest his attack on
the broader ground of complete confidentiality. He has not
asserted that the extrinsic offenses did not occur, although the
report itself contains a self-serving exculpatory letter he
submitted to the court. Apart from his consistent course of tax
evasion, Huckaby has no other embarrassing criminal history
revealed in the PSIR.
To protect Huckaby's legitimate privacy interest, even
though he did not so request, this court amended the district
court's disclosure order to exclude Part C of the PSIR titled
"Offender Characteristics", and the objections by the defendant and
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the probation officer's responses pertaining to that section.
Huckaby's family history, educational background, current financial
status and similar information have no bearing on the court's
reasons for disclosure. As amended, the disclosure order does not
significantly intrude on Huckaby or his family.
The disclosure order likewise does not impinge on the
other policy reasons for maintaining confidentiality. The
government does not object to disclosure of the presentence report
in this case, because it distinguishes this case from those in
which it has consistently urged protection of confidentiality.
Here, because the information against Huckaby came from his own
files, his statements to investigating officers, and IRS and other
official records, there is no risk of injuring third-party
informants or of prejudicing ongoing criminal investigations.
Further, the criminal conduct revealed by the PSIR implicates only
Huckaby, not any other person. The interests of law enforcement
will not be disserved by disclosure.
There is also little risk that disclosure of this PSIR
has interfered with the broader interest of justice that must be
effectuated in the sentencing process. Because no confidential
witnesses or informants contributed to the PSIR, disclosure affects
no one except Huckaby. Huckaby had ample opportunity to offer
corrections to the PSIR, reducing the risk that the court would err
in its sentence. As for the general interests of the federal
sentencing process, there is no reason to suppose that the
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disclosure of part of this PSIR will lead to disclosure of reports
in any but the very rarest of cases.
Contrary to Huckaby's contention, the district court had
clearly balanced the desirability of publication over the need for
confidentiality before he decided to release the PSIR. As the
court prefaced his comments, this was a case in which it was
difficult to speak but impossible to remain silent. The court
summarized the allegations in the PSIR concerning Huckaby's
consistent failure to file proper tax returns to federal, state and
local authorities over more than a decade. Rather than read the
entire PSIR into the sentencing hearing transcript, the court chose
to let that report speak for itself. Huckaby does not deny that
there has been widespread publicity about his case or that it has
become racially inflammatory within the community. He contributed
to the publicity and to the erroneous racial inferences that have
been drawn. The court hoped that release of the PSIR would explain
the basis of Huckaby's prosecution so as to eliminate any shadow of
doubt that this proceeding was racially motivated. Rather than
allow bitterness to fester within the community as a result of
Huckaby's guilty plea and sentence, the court decided to juxtapose
against the rhetoric on Huckaby's behalf the seamy reality of his
tax avoidance.
The court took bold, extraordinary action in releasing
the PSIR. He acted under a felt, compelling necessity of relieving
racial tension that has accumulated because of this case. There
was further a particularized need for the revelation of facts found
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in the PSIR, because only the dispassionate reports of IRS, the
contents and omissions in Huckaby's own records and the admissions
and inconsistencies in Huckaby's statements to investigating
authorities would persuade the public of his culpability. The
court did not abuse his discretion in releasing the PSIR, as we
have redacted it.
Huckaby's other challenge to his conviction and sentence
may be easily disposed of. He contends that the district court
abused its discretion in rejecting his attempted plea bargain with
the United States. Huckaby contends that the court had no
authority to reject the plea agreement, but this is not correct.
United States v. Adams, 634 F.2d 830 (5th Cir. 1981); United States
v. Bean, 564 F.2d 700 (5th Cir. 1977). In any event, Huckaby has
not demonstrated that the court's rejection of the plea agreement
prejudiced him in any way. The court accepted his guilty plea to
the same charge contained in the agreement. The only possible harm
that could accrue would stem from the government's decision to
prosecute Huckaby on other tax offenses, but no such prosecution
has been commenced. Huckaby's concern is premature at best.
Huckaby also contends that the district court erred in
awarding a two-level enhancement of his sentencing level for
obstruction of justice and in failing to grant him a two-point
reduction for acceptance of responsibility. If the court had made
both findings favorably to him, the offense level would have been
reduced from 15 to 11, resulting in a Guideline Sentencing range of
8-14 months. Defendant's sentence of 12 months, albeit the
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statutory maximum, falls approximately in the middle of this range.
He cannot demonstrate that these issues would probably have
resulted in his receiving a lesser sentence. Consequently, any
error committed by the district court on these matters is harmless.
CONCLUSION
Based on the foregoing discussion, the order of the
district court that unsealed the PSIR is affirmed as modified, the
court did not abuse its discretion in rejecting the plea agreement
between Huckaby and the United States, and appellant's challenges
to his sentence are meritless.
Order AFFIRMED as modified; conviction and sentence
AFFIRMED.
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