United States v. Jean D. Dockery , 447 F.2d 1178 ( 1971 )

PER CURIAM:

We here decide, consistently with the great weight of authority, that it was not a denial of due process of law for the trial judge in sentencing to rely upon the presentenee investigative report without disclosing its entire contents to appellant. The longstanding and uniform understanding of the requirements of due process makes the contrary argument one “more properly to be made to the Supreme Court,” Castle v. United States, 120 U.S.App.D.C. 398, 401, 347 F.2d 492, 495 (1964), cert. denied, 381 U.S. 929, 85 S.Ct. 1568, 14 L.Ed.2d 687 (1965), and to the rule-making authority.

I

Jean D. Dockery was indicted for escaping from custody in violation of 18 U.S.C. § 751(a).¹ She had escaped on March 8, 1968 but the warrant for her arrest was not executed until 11 months later on April 1, 1969, when she was apprehended. On June 6, 1969 she was arraigned without counsel, a plea of not guilty was entered and she stated that she would retain counsel. However, on July 18, 1969 her present counsel was appointed to represent her. On August 1, 1969, appellant made an oral motion that she be committed to St. Elizabeths Hospital for a period not to exceed 60 days to determine whether the offenses with which she was charged ² were the product of her mental condition and whether she was then mentally competent to stand trial.

On August 29, 1969, the acting superintendent of the National Institute of Mental Health, St. Elizabeths Hospital, reported that appellant was “competent to stand trial” but was suffering from “drug dependence, heroin * * * cocaine”; that the alleged offense of sale of narcotic drugs, with which she had been charged prior to her escape, was a product of her illness (drug dependence) ; but the alleged offense of escape from custody was not a product of that illness. On September 5, 1969, appellant gave notice of an insanity defense in accordance with D.C.Code § 24-301(j) and also moved for a bifurcated trial.

However, on September 19, 1969, she changed her plea to guilty on the escape charge and the Government stated to the court that after sentence was imposed it would move to dismiss the narcotics charge that was pending when appellant escaped. Appellant was then fully interrogated by the court to determine the factual basis for the plea, i. e., that she had escaped through a third floor window of the building where she was in custody, had climbed down over two adjoining roofs, and was gone about a year (11 months and 7 days) before she was apprehended. She now objects that, when she was finally sentenced, she did not have an opportunity to see the pre-sentence report, but at the time the court accepted her guilty plea her counsel stated: “Mrs. Dockery would not object if she was sentenced today” (which would have been without a presentence report). The court replied that it would “have to refer it to the probation officer for a full report” and denied the request.

When appellant was sentenced on October 28, 1969, the following colloquy occurred between her counsel and the court:

MR. COHEN: * * * As you know, I called your office upon finding out that you would be doing the sentencing and requested that the pre-senteneing [sic] report be made available for my inspection or, if not, that I be at least given the opportunity to know of the contents so I would be able to answer anything in there that needed answering or refute anything in there that needed refutation.

As Your Honor knows, I was not permitted to either see the contents or know of the contents.

THE COURT: The Court will be very glad, Mr. Cohen, to go over the alleged prior record, to see whether or not there are any discrepancies with you, and with the defendant.

MR. COHEN: Your Honor, the defendant has a substantial record for petty offenses, disorderly, and various other offenses. There are some other offenses charged there which have been dropped and there is one offense which she is now serving time for and that is for possession of narcotics.

Whatever else is in the report besides a list of prior offenses I don’t know and I think that too may bear discussion.

This puts me on the horns of a dilemma this morning, somewhat between Scylla and Charybdis that I risk, at the risk of asserting the defendant’s rights as I view them — I risk antagonizing the same court which we are asking to exercise its discretion and be lenient in sentencing.

THE COURT: The Court is always glad to hear any mitigating circumstances that you have that would be helpful in imposing sentence. * *

As I said, I will be glad to go down the list of the offenses for which she was found guilty so that we will know whether we are talking about the same things or not.

MR. COHEN: All right, I will appreciate that.

THE COURT: I am not concerned with her juvenile record. The adult record shows receiving stolen goods in 1959 for which she was given 180 days.

In ’65 it was vagrancy and disorderly; vagrancy on two counts in 1966 in which she was given $100 or sixty days on each count to run concurrently.

In ’66, vagrancy and narcotics, one year, which is the one that I believe she is presently serving. Isn’t that correct?

MR. COHEN: No, Your Honor.³

THE COURT: It is not?

MR. COHEN: There was a later sentence.⁴

THE COURT: I see. She was arrested January 21, 1969, in Baltimore for soliciting and sentenced to six months, paroled March 22, 1969, with a detainer for return to the District of Columbia. She returned to custody April 1, 1969, remained in custody while serving the sentence imposed in the previous case. She entered a plea of guilty in the present case.

Appellant’s counsel then made an extended plea in her behalf (covering 7 pages of the transcript), explained the two cases which were before the court that morning and made a very fine plea in behalf of appellant. He discussed a prior conviction of appellant for possession of narcotics in Criminal No. 1240-65 which had been appealed and affirmed, and pointed out how this meant that, if appellant were to have been convicted of the narcotics charge that was being dismissed that day, she would have faced a 10 to 40 year sentence on this second narcotics charge, with no possibility of probation, parole or suspension of sentence. Counsel argued that the threat of this substantial punishment had motivated appellant to escape, and further contended that the Government, in agreeing to dismiss the current narcotics charge when sentence was imposed on the escape charge, was admitting that they did not have the evidence to support that charge.⁵ The colloquy terminated as follows:

MR. COHEN: * * * Now after having made the motion to be sentenced [without the presentence report] and that having been denied because the defendant had to await pre-sentencing [sic] report, we are in the position of not being able to see the contents of the presentencing report other than the list of prior convictions, which we are aware of.

So for those reasons I now move that this Court either show the report to me or at least state the reasons that were given in the report to give me a chance to answer any of them, if they need answering, and move for a week’s continuance so that this may be done.

I truly feel that these in camera proceedings are a denial of due process for the defendant and have no place in our jurisprudence.

THE COURT: Your motion is denied.

Thereafter the court sentenced appellant to incarceration for a period of not less than 6 months nor more than 18 months, such sentence to be consecutive to any sentence then being served in this or any other jurisdiction.⁶

The following proceedings then occurred which culminated in the’ court recommending narcotic treatment:

MR. COHEN: Your Honor, may I address the Court on another point?

I sent a letter to the probation officer and I don’t know if you were advised of this,⁷ that Mrs. Dockery felt that she still had a narcotics problem and requested that she be transferred to Lexington for treatment for her narcotics.

Again I don’t know if this is one of the matters that was brought before you or if this was a matter that was considered by you.

THE COURT: I believe that Mrs. Dockery changed her mind about the Lexington situation before.⁸

What was the situation about that, Mrs. Dockery?

THE DEFENDANT: I really don’t remember.

THE COURT: You don’t remember?

The Court would recommend that you be given narcotic treatment at whatever institution the Attorney General selects for your incarceration.

Thereafter the narcotics charge was dismissed.

II

On this appeal appellant contends that her rights to due process of law and to effective assistance of counsel in her defense require disclosure of the information contained in the presentence report, and that such rights were denied her when the court refused to allow her and her counsel to examine and know the contents of the presentence report utilized by the court at the time of her sentencing. The answer to this contention in the first instance is to be found in Fed.R.Crim.P. 32(e) which provides as follows:

(e) Presentence Investigation

(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.

(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the Court. The Court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government. (Emphasis added.)

The last two sentences of Rule 32(c) (2) were added by an amendment of February 28, 1966 which became effective July 1, 1966. The Notes of the Advisory Committee on Rules with respect to the 1966 amendment and the Rule generally state:

Practice in the federal courts is mixed, with a substantial minority of judges permitting disclosure while most deny it.

Substantial objections to compelling disclosure in every case have been advanced by federal judges, including many who in practice often disclose all or parts of presentence reports. ******

Hence, the amendment goes no further than to make it clear that courts may disclose all or part of the pre-sentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in pre-sentence reports which will be material factors in determining sentences. (Emphasis added.)

The language of the Rule and the Advisory Committee Note thus make it doubly clear that the trial judge has a discretion to “disclose all or part of the presentence report.” And the adjudicated cases indicate that it is not a denial of due process of law for the trial judge in sentencing to rely upon the presen-tence investigation report without disclosing such report to the defendant or giving the defendant an opportunity to rebut it. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969).⁹ Disclosure is a matter within the sound discretion of the trial judge, Good v. United States, 410 F.2d 1217, 1221 (5th Cir. 1969); there is no duty to turn over the presentence report, United States v. Crutcher, 405 F.2d 239, 245 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); it is not improper in sentencing to use information obtained outside the presentence report and in-court observations and sentencing does not involve an issue subject to trial procedures, United States v. Trigg, 392 F.2d 860, 864 (8th Cir. 1968); there is no obligation to divulge, nor any right in the defendant to see, the entire presentence report at any time, Baker v. United States, 388 F.2d 931, 933 (4th Cir. 1968); furnishing the presentence report to defendant is discretionary with the trial judge, and it is not a violation of due process to refuse to do so, Thompson v. United States, 381 F.2d 664, 666-667 (10th Cir. 1967); the defendant is not entitled to be informed of the contents of a presentence report and this is not a denial of his right of confrontation, United States v. Fischer, 381 F.2d 509, 511 (2d Cir. 1967); and it is not a violation of due process for a trial court in imposing sentence to rely upon the presentenee report without affording defendant an opportunity to contradict or rebut statements contained in the report, Hoover v. United States, 268 F.2d 787, 790 (10th Cir. 1959). Compare Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Powers v. United States, 325 F.2d 666, 667 (1st Cir. 1963); Stephan v. United States, 133 F.2d 87, 100 (6th Cir. 1943). This unbroken line of authority is not likely to be repudiated. A contrary rule, if one there is to be, must come from the Supreme Court by way of judicial decision or a change in Rule 32(c). See 18 U.S.C. § 3771. Also implicit in the court decisions holding such sentencing procedure to be consistent with due process ¹⁰ and the right of confrontation¹¹ is the further conclusion that such sentencing procedure is not a deprivation of defendant’s right “to have the assistance of counsel” ¹² since the function of counsel at sentencing was necessarily involved and determined when the due process and confrontation questions were decided.

Having thus determined that it was not a violation of the constitutional rights of defendants appearing for sentence for Rule 32(c) (2) to vest discretion in the judge to disclose all or part of the presentence report, we next consider whether'that discretion was properly exercised in this case. In United States v. Queen, 140 U.S.App.D.C. 262, 435 F.2d 66 (1970), we rejected the contention of appellant that it was a violation of due process in the circumstances of that case for the trial judge to refuse to exercise her discretion under Fed.R.Crim.P. 32(c) (2) to disclose the presentence investigative report to appellant or his counsel. In so holding, however, we stated:

While we believe that the discretion called for by Rule 32 is the exercise of discretion in individual cases, not the discretion of the trial judge to adopt a uniform policy of non-disclosure in all cases irrespective of circumstances, yet on the facts of this case it is clear that the most important element of the usual pre-sentence report, appellant’s record of prior convictions, was disclosed to appellant and his counsel during trial. On this record, it appears that appellant and his counsel had an opportunity to confirm or deny the record of previous convictions, and to explain the circumstances thereof. Hence failure of the trial judge to exercise discretion under Rule 32 does not give rise to any legitimate complaint of lack of due process.

140 U.S.App.D.C. at 263, 435 F.2d at 67.

Thereafter in United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775 (1971), cert. denied, 402 U.S. 932, 91 S.Ct.1534, 28 L.Ed.2d 866 (April 26, 1971), counsel’s request for permission to inspect the presentence report was denied consistently with the judge's uniform policy of treating such documents as confidential communications between himself and the United States Probation Office, and we cited our decision in Queen, supra, holding “that the failure of the court in the circumstances there presented to disclose the presentence report did not violate due process of law.” However, we held that the court in denying the request had not properly exercised its discretion and remanded the case for resentencing. In Bryant, Judge Fahy also stated:

The Rule vesting discretion in the court, however, has had the approval of the Supreme Court, and the Court had before it the view of its Advisory Committee that due process does not require disclosure. Notes of Advisory Comm. on Rules, supra. In addition, in Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed. 2d 442 (1969), though not a decision on the issue of due process but a comment upon the terms of the Rule, the Court stated that “[pjresentence reports are documents which the rule does not make available to the defendant as a matter of right."

143 U.S.App.D.C. at 55-56, 442 F.2d at 777-778 (emphasis added).

In the instant case we find that the trial judge when requested willirigly offered to go over appellant’s “alleged prior record, to see whether or not there are any discrepancies with you, and with the defendant.” She also indicated her receptiveness “to hear any mitigating circumstances * * * that would be helpful in imposing sentence” and offered “to go down the list of the offenses for which she was found guilty so that we will know whether we are talking about the same things or not.” The judge then did just that and disclosed the prior convictions from the presen-tence report that she was considering in connection with her sentence. She also indicated that she was aware of certain juvenile offenses, but was not interested in them or in anything by way of possible offenses except the “offenses for which she was found guilty,” thus eliminating arrests where no conviction resulted. Thereafter, appellant’s counsel made a lengthy plea for leniency from which it cannot be said that his assistance was ineffective in protecting those rights of appellant which were entitled to protection. Also the transcript here does not show that the court’s decision with respect to disclosure of the report conformed to a set pattern it invariably followed in all cases which would negate the exercise of an individual discretion in this case. We accordingly find from the face of the record that the court properly exercised the discretion vested in it by Rule 32(c) (2) and that the rights of appellant were adequately protected.

We are not unmindful that the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States is tentatively suggesting a change in Rule 32(c) to give defendants and their counsel an expanded opportunity in more cases to be advised of a larger portion of the material set forth in the presentence investigative reports, and that such suggested amendment also has the support of many members of the organized bar. However, it is our observation that the opinion of those who have had familiarity with presentence reports is preponderantly opposed to increasing the degree of disclosure. The Notes of the Advisory Committee stated that “most [judges] deny [disclosure],” Fed.R.Crim.P. 32. Those opposed to increasing the burden of disclosure feel that the Probation Officer who makes the report is an arm of the court, much the same as is the judge’s law clerk, and that judges can be relied upon to properly evaluate the information supplied. Also, from firsthand familiarity with the situation, many judges believe that making disclosure more mandatory wil dry up reliable sources of information, and reduce the availability of completely frank and reliable personal appraisals of the defendant by experts, and thus alter the form of the report and make it less valuable as an instrument to insure a rehabilitative sentence.¹³ However, if there is to be a change in the practice it should come about through a change in the Rule or by Supreme Court decision, and not through this court violating the clear language of the Rule by stretching the Constitution to new limits, contrary to a long line of previously decided cases.

Affirmed.

1 . 18 U.S.C. § 751(a) provides:

Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.

2 . She was also charged with a narcotics offense, in addition to the escape charge.

3 . This is not a controlling point, but the Government brief on this point states that as a result of a conviction in Baltimore, Maryland, appellant did serve time from January to March of 1969 and that the trial court was correct when it stated, at the time of sentencing on October 28, 1969, that appellant was serving time on the 1966 narcotics conviction. Service of that sentence had been delayed by an unsuccessful appeal.

4 . Id.

5 . This does not necessarily follow. The Government could have considered it to be in the interests of substantial justice to make such disposition of the charges.

6 . See note 3, supra.

7 . The court’s reply which follows indicates that the judge had been advised.

8 . Id.

9 . The decisions in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) are distinguishable on their facts. Kent held that a District of Columbia statute was controlling in that it made juvenile court records available to persons having legitimate interest in the protection of the child and that his lawyer was such a person. In Specht a defendant who was convicted of violating the Colorado statute prohibiting the taking of indecent liberties, which provided for a maximum sentence of ten years, was subsequently without notice or a full hearing proceeded against under the Sex Offenders Act and given an indeterminate sentence of one day to life. On such facts the Court held that the invocation of the Sex Offenders Act constituted the “making of a new charge leading to criminal punishment.” 386 U.S. at 610, 87 S.Ct. 1209, at 1212. In Mempa, following conviction, the imposition of sentence was suspended and the defendant was placed on probation. His probation was subsequently revoked and sentence imposed without the benefit of counsel and the Court held that he was entitled to counsel at that hearing.

There is nothing in the holding of these cases overruling Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) or requiring the disclosure of the entire presentence report to the defendant. In fact, quite to the contrary, in Specht, Justice Douglas, speaking for eight members of the Court (Justice Harlan concurred in the result), stated:

“We adhere to Williams v. New York, supra; but we decline the invitation to extend it to this radically different situation.” 386 U.S. at 608, 87 S.Ct. 1209, at 1211.

The opinion also states that the Court was still supporting the rationale expressed in Williams as follows:

“Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant’s life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.” 386 U.S. at 606, 87 S.Ct. 1209, at 1210.

10 . U.S.Const., Fifth Amendment.

11 . Id., Sixth Amendment.

12 . Id.

13 . Regardless of contrary opinion, the Supreme Court in Specht, by quoting the prior extract from Williams, indicated their recognition that a change in the rule might seriously dry up the flow of information:

“We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.”

386 U.S. at 606, 87 S.Ct. 1209, at 1210. Relying on limited information the dissent speculates that information sources would not dry up. Possibly “dry up” is too absolute a term. Certainly in the event that disclosure became mandatory and informants were so advised (as they should be), some sources would “dry up” and others would become less informative particularly by being less candid and by partially withholding information. To argue to the contrary is to argue against human nature. It is also not persuasive to say that some drying up may already have occurred by the courts being given discretionary authority to disclose the contents of the reports. The fact that some injury may already have occurred is no argument for aggravating the injury. It is also significant that the proposed new rule allows discretion on disclosure where disclosure “would be harmful to the defendant or to other persons * * See 48 F.R.D. 553, 615 (1970).