Don B. Cook v. Warden J. T. Willingham, and Carl F. Zarter, Administrative Assistant, United States Penitentiary, Leavenworth, Kansas

400 F.2d 885

Don B. COOK, Appellant,
v.
Warden J. T. WILLINGHAM, and Carl F. Zarter, Administrative Assistant, United States Penitentiary, Leavenworth, Kansas, Appellees.

No. 10012.

United States Court of Appeals Tenth Circuit.

September 23, 1968.

John C. Eldridge and Michael C. Farrar, Washington, D.C., for appellees.

Don B. Cook, pro se.

Before MURRAH, Chief Judge, and HILL, Circuit Judge.

PER CURIAM.

1

Cook was sentenced to a term of imprisonment by the United States District Court for the Eastern District of Texas and is now confined in the United States Penitentiary at Leavenworth, Kansas.

2

The sole issue raised is whether Cook is entitled to the production of the non-confidential portions of his presentence report, pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The district court held that the presentence report is made for the use of the sentencing court and thereafter remains in the exclusive control of that court despite any joint utility it may eventually serve. We agree.

3

The trial court in its discretion may permit an inspection of the presentence report, Thompson v. United States, 381 F.2d 664 (10th Cir. 1967) rehearing denied, October 10, 1967; Rule 32(c) Federal Rules Criminal Procedure, but it is not a violation of due process to deny a request for this report. Hoover v. United States, 268 F.2d 787 (10th Cir. 1959). See also Williams v. People of State of New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). Cook has made no attempt to obtain this report through the sentencing court, the only court that could grant his request.

4

Furthermore, the Freedom of Information Act makes agency information available to the public. It does not apply to "the courts of the United States." 5 U.S.C. § 551(1) (B). A presentence investigation is made and the report submitted to the sentencing court pursuant to Rule 32(c) Federal Rules Criminal Procedure. It is clear that the presentence report is not an agency report and is therefore not available to the public under 5 U.S.C. § 552.

5

Appellees' motion to affirm is granted.

6

Affirmed.