*3 purports religious organi- The sect to be a EDWARDS, Before WALD and Circuit quasi-religious organization, zation or a Judges, McGOWAN, Circuit Senior being belief its members are Judge. original descendents ... from one of the Israel, community tribes of and there is a Opinion for the Court filed Circuit at this living Israel moment.2 Judge WALD. The defendant denied in the Concurring opinion filed Circuit objected Senior at- group prosecution’s Judge tempt “guilt by McGOWAN. to establish association.”3 Appellee Id. 1. Brief Government [hereinafter App. C at 35. Brief] Lemon, 82-234,
2. United States v. No. Tran- script Hearing, September of Pretrial at 6. Hebrew, pretrial as Black and who is The court denied the defendant’s wanted 20, 1982. On September release motion on District of Columbia burglary for a 29,1982, entered a guilty Lemon September in which a quantity blank airline tick- to one of two counts in the indictment. plea ets were stolen. Lemon admitted know- pleading guilty, In The car in which the defendant was bank account on De- depositing in his ingly riding in at the time of his arrest was 28, 1981, check in the forged cember registered Beverly Caro another sus- $5,000 Perseco Compa- amount of from the pected Black Hebrew. Ms. Caro has been exchange guilty plea, for Lemon’s ny.4 observed members of law enforcement remaining government dropped at a meeting frequented by house count, which involved a similar transaction Hebrews and a convention of Black He- Welding with a check from the “Double J” The court set a date brews. Company.5 of October alleged The checks the defendant *4 A. The Government’s Memorandum on deposited have his account are the Sentencing same as the checks used in a allegedly Angela Kegler.
In similar scheme Ke- sentencing, by its memorandum prosecution charges renewed its that Lemon arrest, gler, at the time of her was at- was- a the Black Hebrew sect member of tending meeting of the Women’s Auxil- of part pattern and that his crime was iary Kingdom (the of God crimes benefit of the committed for the Hebrews) garb and she was dressed in the community.6 Black Hebrew The prosecu- of the sect. that, argued although tion was his first been accused has also Terry Warr offense, given the defendant should be checks from stolen one of the passing substantial sentence because it would deter has Warr Welding Company. J” “Double him group and others involved in the from the Black member of as a been identified such and because the de- activity, Hebrew sect. fendant had failed to to the respond prose- cution’s request cooperate that he in its address 4455 G used the The defendant investigation illegal activity among S.E., when arrested Street, as his address Black Hebrews.7 has The address on G Street in Ohio. meeting as a clandestine support
In of its been identified allegations that Lemon was a member of the Black Hebrews and of the Black Hebrews for members house committed his offense for the benefit of the members of of known sect and numbers group, government referred back to its frequenting have been observed the sect motion, memorandum on the bond review past.8 in the that location which stated: made addition- Counsel for the defendant, The at the time of his arrest sentencing allocution: al claims in its company was of Bruce Green and a) Myrtle Washington, a twice convict- Bruce both of whom have been Stewart has ed felon and a member of cult through identified sources as members of monitoring progress in court been wanted, the Black Hebrews. Green case; the defendant’s arrest, at the time of the defendant’s arrested for a b) Terry Warr has been Alexandria, Virginia.
a check charge the defendant’s involv- scheme similar to alleged boyfriend to be the Stewart check. is a Welding a Double J Warr ing Warrena Bostick who has been identified Lemon, 82-234, Tran- Id. at 26. 4. United States v. No. 29, 1982, script Hearing, September at 8. App. Id. at 34. C 2; App. B 28. 5. See id. Government Brief App. Brief A at 25-26. 6. Government Hebrews, member of He- their organization, beliefs and
self-admitted brews.9 alleged well as in illegal their involvement defend- that the argued activities. On the basis of the above infor- the Black He- membership in alleged ant’s mation, that, government argued “giv- sentencing because significant brews was personal en the group motivations larger pattern of a part his crime was this crime ... a period substantial of incar- Black He- crimes committed economic required ceration is as a determent [sic] to Israel. “repatriation” fund their brews to future conduct of this type by defend- to its earli- referred government again ant and others involved with him.”11 memorandum: er bond review He- members of the Black A number of B. Information Before the Other Court fugitives justice. from brew sect are twenty-four The FBI lists at least indi- presented addition viduals, identified as Black who memoranda, the court currently sought are on arrest and being presentence report, had before it a the con- bench warrants. tents of which were summarized for Black Hebrews involved criminal ac- counsel, defendant and a letter from tivity commonly tend toward crimes of judge. the defendant to the The presen- tickets, including fraud stolen airline report tence notes that both for- Lemon’s use, and bank fraudulent credit card friend, mer employer ques- and a when give fraud. These of crimes them types officer, tioned probation stated that the ability freely throughout to move they were aware that Lemon had some *5 United no actual States with little or cost association with the Black Hebrews.12 Further, to them. a number of the Black with report, together The the defendant’s having Hebrews have been identified as letter, also describes Lemon’s back- family obtained passports fraudulently. ground, employment history, education and The execution of search warrants at and explanation includes Lemon’s own have premises known Black Hebrew led why job, he left his he resorted to why iden- discovery bogus of numerous offense, committing this and how he obtain- tifications of which matched credit many briefly, ed the stolen checks. To summarize cards checks discovered at and/or ' Lemon upbringing strongly described his same time. oriented, driving achievement him toward a The Black Hebrews have houses scholarship to an preparatory exclusive throughout the United States where a completion school and successful of a col- fugitive food, can receive clothing and lege many years education. After with shelter. (WHUR), Howard radio station University Source information indicates that Black disappoint- Lemon said that he had become charged Hebrews with crimes in the decline, United provided changing States are with the ed with the under man- wherewithall, i.e., money and agement, pioneering documents of the innovative and necessary to take them to Israel where a style originally that he had found so stimu- Black Hebrew community currently re- differences devel- lating. policy As these siding, many of fugitives.10 whom are began per- he to lose interest and his oped, sta- formance declined. After he left the The attached to its sentenc- December, ing memorandum a tion for free lance work in newspaper collection of 1980,13 magazine concerning and articles the Black condition deteriorated. his financial by government, by App. Id. 9. A at 25 n. on a motion order of the 5. July 1983. district court dated App. Id. C at 35. appears confusion sur- 13. There to be some App. Id. A at rounding of Lemon’s em- the termination date report ployment. presentence states at The Report presentence 12. Presentence at 10. The discussing employment points his report part appeal, two was made of the record on —once Lemon asserted University radio station. family help, his ask Rather than illegal activity his career and knowledge them that he had no thus admit faltered, finally he had Hebrews, condition financial Black and was members when a lucrative illegal conduct resorted to unable, unwilling, to assist not therefore stated itself. Lemon presented opportunity investigation.18 in their prosecutors $9,500 of- totaling were checks two summary argued defense paid to whom he someone fered to him no reliable evi- produced had prosecution check when cleared for each $1000 was a member that the defendant dence identify person, He did account. or that his offense was Black Hebrews person probably was say but he did in furtherance of their committed He stated that he Black Hebrew. not a Defense counsel continued: activities. clothes, deposited spent money circumstances, I would these Under to New York. trip presents, Christmas that the alle- Your Honor rule move that to make and a desire expressed He remorse Mr. Lemon’s affiliation gations of pro- several occasions —to restitution on Hebrews and the Government’s officer,14 judge15 his letter to the bation here was activity that his criminal theory sentencing hearing.16 and at the of the conspiracy to further used Hearing allegations that those Sentencing Black C. The by this Court disregarded hear- greater part Lemon, your I ask that Mr. and would and relevance reliability ing concerned hearing motion after my Honor rule on representations about proceed. before we from the Government association with membership or defendant’s em- Defense counsel Black Hebrews. Reukauf, your THE COURT: Mr. offender, status as a first Lemon’s phasized invitation the U.S. client extended an ar- history, employment his education to assist in its investi- Attorney’s Office because of the solely it was guing that organization? of this gation membership in the alleged Yes, REUKAUF: sir. MR. he risked a substantial Hebrews that declined, as Mr. Was it THE COURT: he describ- for what period imprisonment *6 represents? Behr Lemon strenuous- crime.”17 “paper ed as a declined, It was MR. REUKAUF: although he ac- membership, denied ly Honor, posi- Lemon’s because Mr. Your several members of knowledged knowing he not a member of tion is that is sect, as well as members the Black Hebrew therefore, and, he is not in a organization organi- religious political other black information about provide zations, position his work at the Howard through employment in at WHUR 1980.” history concluding left his evaluation— Lemon and once in the single (or late) in appears reference in December to us that the that Lemon left WHUR It December, 1981, addition, depar- report report presentence states that Lemon 1980. In to a employment next as a free- commenced his we in error. But because ture from WHUR is magazine photographer case, inconsistency for a remanding lance writer and can are However, report’s July, in the initial 1981. authoritatively pro- resolved in future be more summary version of the motiva- of defendant’s ceedings. offense, Lemon involvement in the tion for his December, 1981, said to have left WHUR is Report at 12. 14. Presentence month in which he commit- is the same which December, 1981, date is ted the offense. App. D at Brief 15. Government supplemental memo- cited in the randum, argues sudden which “[t]his 82-234, Lemon, Tran- No. 16. United States v. intelligent and in the life of an transformation Sentencing Hearing, script October Judge persuaded Jackson educated man Transcript], Sentencing at 14. [hereinafter already appellant determined to become ‘had ” Supplemental professional Memo- criminal.’ at 2-5. Id. judge, Appellees at 3. Yet the randum for and recommendations relative his “comments parole,” appears “Mr. Id. at 6. to have assumed that people He knows certain probation, released were sentenced organization. organization, with the who are affiliated in a rather minimal fashion. with his with employment connection Also it supports we submit our asser- University Radio He Howard Station. tions that there is some deterrent effect people in this cult and has interviewed come from a might lengthy sentence religious groups other cults and other but in this case. position he is not in a provide We submit that it is relevant to the with information about Government Court’s consideration. criminal within the and he activity group, indicates, legal As our memorandum position very has taken that from the the Court should consider all the facts beginning. in sentencing and circumstances a de- premised the Government’s offer is So fendant. on its that he in fact is a member theory any allega- We have not tried to make group. unsupported. tions that are We have he denies Since think, I rea- provided, Court with a
group, the offer not one that can be assumptions. sonable basis for our We him in accepted by any meaningful way. have outlined those facts we feel we THE COURT: You mean unless he is a so, prove, could if asked to do that sup- group provide member of the he can’t theories, port maybe our have it; gone information about any is that correct? even farther than Mr. Reukauf suggest- Well, cannot, MR. REUKAUF: he ed. me, tells provide any information about
any activity of the Black He- have not submitted to the Court brew group.19 allegations allegedly unverified relia- briefly discussing After the different ble informants. We have outlined obser- ver- sions of surrounding the circumstances vations made of allegedly individuals in- WHUR, departure from the Court contin- volved with Mr. Lemon and observations ued: that are before the Court in this case. THE COURT: You want me to rule on The court is concerned intimately disregard any representations motion to the case of Kegler involving Miss checks from the concerning Government mem- problems of the same nature and the bership affiliation with the Black He- case, experienced have in that and I brews? up. think it all adds Yes, MR. REUKAUF: sir. indicate, feeling As we it is our he is a THE COURT: What do you have organization member of this that, about say Mr. Behr? sentencing. relevant fact in Honor, MR. BEHR: Your it is posi- our *7 THE Do I your COURT: understand tion that we have the provided Court motion to be that I should disregard that with the basis of our the theory and altogether, give or that I it relevance of it to the and sentencing that less than I might consideration some oth- it is our position that the circumstances er information? outlined n our opposition to the bond [sic] I MR. REUKAUF: think that it is review motion and in our allo- inappropriate for the Court to consider cution do indicate strongly, rather if not that Lemon has Mr. been seen the conclusively, that Mr. Lemon is a member company people belong who to a organization this and is membership group.
relevant the Court’s determination as Suppose to motivation THE COURT: he was seen in and commission of this of- dealer, company fense and to the the of a known narcotics potential likelihood of future (1) offenses if Mr. Lemon were justified disregarding would I be that? Id. at 5-6. account management, he with and the of his Suppose No. REUKAUF:
MR. company employer, speculated known com- former who that seen were the advocated overthrow of preoccupation who was due to increased with munists That is the difference the United States. outside interests21 dealer, to the narcotics it seems between comments, government, The in its final me. reported that checks had been written on Because one is ostensi- THE COURT: stereo clothing, equip- Lemon’s account for organization and the other political ably ment, tickets, items, personal and other conspiracy? a criminal ostensibly argued expenditures that were incon- these Yes, sir; the because MR. REUKAUF: that he com- sistent with Lemon’s claim had are He- says you a Black Government because of financial need. mitted crime brew, involved in a con- are criminal you that The also noted Lemon had charged haven’t Mr. Lem- spiracy. They its for respond request failed informa- They that. haven’t faced him on with about from whom person got tion on that. haven’t They with his accusers the stolen check.22 provided information that that is reliable defendant, The in his own comments to fact, equals Black Hebrew that court, again declared remorse and know All we about the Black conspiracy. denied his again strenuously involvement what has Government Hebrews with the Hebrews.23 Presented with what we can read in the shown us and information, the above immedi- religious that it is a cult and newspapers, ately any and without statement reasons certainly that allegations there are that years four pronounced a sentence of maxi- cult or maybe a lot members imprisonment possibility mum with on fringe of the cult are members Although 16 months.24 parole after committing criminal are activities the statutory sentence was well within funneling the monies cult. years imprisonment maximum of ten and a Let me I THE COURT: see if under- $10,000 fine,25 counsel conceded motion. your stand unusually it is an argument at oral it to be the infor- Do I understand severe sentence for a first offender. disregarded altogether, mation should be improper it is me to consider that? Sentencing II. The Basis Court’s Yes, MR. REUKAUF: sir. legal prickly Before issue of attacking THE motion is denied.20 COURT: manner the court whether and in what argued theory thus prosecutor the same properly could consider in his memorandum advanced on in- concerning Lemon’s representations in the Black Hebrews volvement fact and that the government relevant should whether court first determine membership. established such extent this in- any significant relied formation sentence. This task imposing cir- inquired The court then about is made the court’s failure more difficult of the defendant’s af- departure cumstances for its decision provide any explanation ter from his years employment nine sentencing. We must thus time of acknowledged defense WHUR. The attempt reasoning the court’s reconstruct discrepancy there was between We conclude defendant, variety from a of sources. who ascribed his *8 account of that, although our the sen- inquiry to from declining performance policy differences added). Id. (emphasis 24. Id. at 20. 7-10 Id. at
21. 10. 25. See U.S.C. 2314. § Id. 22. 12-13. Id. at 14.
23. have re- The government to now takes the fencing judge appear position does not that this evi- report demonstrates that “the the de- specific allegation lied on appellant’s dence of in the membership Black He- was a member of the fendant minor, negligi- was a Hebrews even brews, given sub- appear he does to have ble, the judge’s factor in determination as weight government’s repre- to the stantial impose.”27 to to re- what sentence Before allegation. of that support sentations document, viewing this which was words, he to have relied on appears other argu- made to counsel after available oral alleged about the defendant’s ment, government agreed with counsel with the Black Hebrews. associations for the that the had on judge defense relied provide an Although court did not membership evidence of defendant’s sentence, for he explanation imposing the the Black Hebrews as a factor in sentenc- following did “comments and rec- make ing.28 on parole” ommendations relative to Form view the judge’s We do not “comments “Report A.O. entitled on Sentenced. on and recommendations relative to parole” Offender United District States Form A.O. 235 as the equivalent of completed on of the Judge,”26 the date for explanation imposed. sentence hearing, October First, the form does not call a statement Although this represents conviction this of reasons for sentence it is imposed; first, known, defendant’s so far I am as is the use intended for of the Parole Commis- opinion that of the when Mr. Lemon left dealings sion officials in prison and future employment his at WHUR in might with the defendant. While the form already a pro- determined to become interpreted requesting be an explanation fessional criminal. of candor His lack impose to in- any decision sentence probation officer, with the and his unwill- volving opposed incarceration as to immedi- to ingness co-operate with Attor- the U.S. ate it does probation, expla- not call for any Office in ney’s its of an investigation length nation of the of the imprisonment. organization known as the Black He- Furthermore, Form A.O. 235 elicit does not brews, whether or not he member is a judge’s par- conclusions respect it, casts considerable the genui- doubt on the accuracy ticular matters propriety ness of any expressions remorse or [sic] which were contested be- defendant protestations of his reform. Given intel- sentencing.29 fore The judge’s response and ligence education I him to believe be here bears out these observations. danger to the from which I community very statement brief and fails to address conclude he I should be isolated. think either the con- sufficiency evidence potential for rehabilitation and his cerning deterrability are point mimimal at this any Black Hebrews or the propriety in evidence; his life. considering yet event of this Legal Analysis requests “[g]ive Empirical judge An and 26. The form com- of the Disclo- regarding Courts, appropriateness parole Reports ments sure of Presentence in Federal present offense, prior in view background (1980). 93 Harv.L.Rev. 1680-83 In direct any mitigating aggravating response shortcomings, these a recent circumstances.” to Rule 32 amendment of the Federal Rules requires Procedure Criminal Supplemental Appellee Memorandum finding any either to make a fact dispute indicate not or to the matter will (ef- See 32(c)(3)(D) 28. The on this based its brief as- considered. F.R.Crim.P. sumption, August 1983) stated at Advisory counsel fective Commit- argument judge appeared oral that the to have Although requirement tee Notes. did relied on the information. apply sentencing proceedings reviewed here, appear apply any new it would empirical 29. There is Form evidence that A.O. infra sentencing proceedings on remand. See typically judge’s fails to elicit the resolution note 59. disputes of factual such as the in this case. one Hall, Sentencing: Due Process at See Fennel & *9 explanation own his with the defendant’s of subjects the of dis- were main these issues motivation. and the de- government the pute between Thus, sentencing proceedings. fendant in the (3) Finally, judge’s characterization the it to assume that while is reasonable “unwillingness cooper- of to the defendant’s judge the on considerations identified in its Attorney’s ate with the U.S. Office parole to 235 as relevant were Form A.O. of known as investigation organization decision, sentencing in his prominent also Hebrews, is a the whether or not he that those considerations we cannot assume it,” to reliance appears of disclaim member the were the exclusive basis for decision. membership. of specific allegation on the to appears Yet conclusion nevertheless this to the comments Looking judge’s first degree government’s the rest to some on recommendations, appears that the and it of claim that representations support in its (1) had that the defendant judge concluded organization, and a member of the profession- to already determined become acknowledgment not on defendant’s merely 1980; (2) displayed had a lack al criminal in acquainted with some members that he was office; (3) probation candor the and with through his organization employment to with the unwilling cooperate been government specifically The with WHUR. of the Black investigation in its activity requested illegal information about the to judge These factors led Hebrews. Hebrews, and the defend- among “po- further that the defendant’s conclude knowledge any ant such denied his deterrabili- for rehabilitation and tential knowledge The defendant’s activity: in his life.” ty point are minimal activities, thus his to re- ability those that the de- (1) judge’s stated belief government’s could spond request, to the to already fendant had determined become merely be inferred the basis of hardly job he left his professional criminal when acquaintance mem- his admitted with some any in 1980 does not echo such at WHUR through bers work. in re- presentence the expressed conclusion relied on judge conclusion that the Our the merely period which described port, the the about government’s representations as during employment which Lemon left his Black He- involvement with the defendant’s Yet the instability.30 one of relative sentencing in the defendant brews significant presented his flat strongly bolstered denial presentence sentencing judge outside disregard rep- motion that he those defense have led him this con- report might in defendant. resentations alleged involve- clusion was the defendant’s judge gave See at 928. Because the supra ment with the Black Hebrews. no his denial of the defense explanation for de- (2) The conclusion judge's motion, certain why we cannot be of candor” fendant had exhibited a “lack proper purpose what deemed may may probation with the officer consider defendant’s relevant membership in the be based on his denial of do Black Hebrews. We association reading Based on our prosecutor Black Hebrews. devoted his entire know that officer’s in the of his probation observations memorandum most presentence report, argument sentencing hearing conclude that at the indirectly membership judge’s belief was least based allegations defendant’s significance on the claim that defend- the Black Hebrews and There- sentencing. ant’s his involve- itself crime was motivated fore, denying the defense judge, if the compared ment with the Black assume, supplemental appears as did error. We in its be in asserts judge’s sentencing judge, left his the defendant memorandum conclusion the. December, 1980, year given job* sudden turn full reasonable at WHUR activity offense, in the month that he same committing twice as stated before employment. left his is based This assertion supra presentence report. See note single presentence report on a reference in the *10 932
motion,
of the
signaled
acceptance
III.
Issues
respect to the
government’s position with
sentencing judge
has wide
information,
may
have considered
imposing
discretion in
a sentence. The
“
an
judge may
inquiry
relevant.
‘conduct
broad
significant
broadly
highly
either as to the
scope, largely unlimited
to us that the
Although
appear
it does not
consider,
may
kind of information he
or the
government’s
ar-
judge fully accepted
”
source from which it
come.’ Roberts
his denial of
guments,
explain
his failure to
States,
552,556, 100
445
v. United
U.S.
S.Ct.
deci-
sentencing
the defense motion and the
1358, 1362,
(1980) (quoting
that it
unusual for a first
under
imposed
18
3577. If the sentence
U.S.C. §
limits, it is
statutory
generally
this statute to receive a sentence of this
is within
subject
appellate
review
absence
severity.31
v.
of constitutional concerns. United States
Finally,
govern-
we note that both the
Tucker,
447,
404
92
at 591-592.
U.S.
S.Ct.
appeal
ment and the defense in this
dis
Despite
judge’s
the trial
broad
sentencing
concluded on the basis of the
recently
cretion in
this court
sentencing,
proceedings
judge
rely
that the
did
on the
that “it is also fundamental
emphasized
government’s
about mem-
representations
range
per
that some limitation on the
in the Black
sect.32 Al-
bership
Hebrew
missible
considerations is re
though
has now revised its
guarantee
quired by
constitutional
position
light
judge’s
of the
comments on
v.
process.”
Campbell,
due
United States
Form
A.O.
the limitations of
docu-
(D.C.Cir.1982).
684 F.2d
The Su
ment
us
require
to consider the whole rec-
important
has clarified an
dis
preme Court
ord, including
rulings
statements and
made
upon
tinction
bears
the task before us:
at the
conclude
hearing. statutorily
modification of a
Appellate
judge
from the information before the
an entirely
authorized sentence ...
sentencing,
sentencing hearing
and the
careful
different matter than the
scruti
judge’s “comments and recommendations
which the
ny
judicial process by
parole”
relative to
on Form A.O. 235 that
particular punishment was determined.
judge
relied on the
alleged
unjustified
Rather than an
incursion into
failure
cooperate
with the
province
sentencing judge,
its investigation of the Black Hebrews and
is,
responsibility
contrary,
latter
on the
necessary
always
on the
about
incident of what has
representations
appropriate
been
review of
appellate
the defendant’s association with the Black
criminal cases.
Hebrews, but not on the particular allega-
tion that the defendant was a member of
States,
Dorsyznski v. United
3042, 3053,
the Black Hebrews.
94 S.Ct.
41 L.Ed.2d
course,
suggest
government’s representations
31. Of
we do not
about
sen-
sidered
imposed
tence
was unreasonable. We refer to
the Black Hebrews.
severity
the relative
of the sentence
supra
additional reason to believe that the
con-
32. See
note 28.
tion,
sentencing process
but “when the
cre-
original) (citing
United
(1974) (emphasis
possibility that misinfor-
(5th
significant
ated a
Hartford,
F.2d
v.
States
*11
decision.”33
mation infected the
that a
Thus, it is established
Cir.1974)).
“improper
not
based on
sentence
urges on us the
especially
The defendant
v.
Dorsyznski
information.”
inaccurate
of United States v.
reasoning and result
7, 94
States,
at 431 n.
S.Ct.
418 U.S.
United
Weston,
(9th Cir.1971), cert.
approval United States of the former head of the testimony Bass, however, 110. The defendant Organized FBI’s Crime section in the accuracy govern disputed *12 office, information upon New York based that he was “a well- allegation ment’s by furnished to him a reliable confiden- narcotic persistent known and trafficker.” informant, allegedly tial a member of the saw “no reason to bar Id. at 117. We Family. Gambino The Government ob- judges considering from rele jected to disclosure of the confidential accuracy vant whose is not dis source for the obvious reasons that both to vacate the puted,” and refused sentence. his life and usefulness as an informant Id. at 121. In the event that the defendant jeopardized. However, would be the allegations contested the in later proceed proffered Government additional evi- ings, suggested we that “the district court informant, might the to dence to corroborate the con- request Government submit sisting testimony coconspir- some verification .... the of the of two Alternatively, court ators who turned Government’s evidence might existing support find factual allegations indicia of for the reliability .... in the trial and who are under the Or the simply district court could resen witness protection program. Government tence appellant, making clear that it was co-conspirators given Id. at 709. The had not considering disputed the information.” descriptions detailed incidents Id.35 allega- the strongly supported addition, government tions. In the offered recognized circuits have also the
Other
testimony
police
of two
officers who
validity
principle.36
of the Weston
observed the
independently
defendant
question
Circuit confronted the
Second
leading
with
members of the
and at
family,
reliability
of information considered in
a funeral service for the “boss of bosses” to
sentencing in a context not dissimilar from
only “family
which
members” were admit-
Fatico,
this.
In United States v.
579 F.2d
Cir.1978),
Finally,
long
ted.
the defendants had
rec-
(2d
government
707
had al-
leged
activity
that the
ords of criminal
associated
clearly
defendants were “members
crime
organized
family
organized
Gambino
and with
crime. Faced with this evi-
important figures
upper
dence,
echelon of
sentencing judge
nevertheless or-
guidance
by
that,
principle
Weston
35. This
was followed
the trial
announced in
as a
Hall,
in United States v.
process,
court
dered the evidence Investigation stressing operate the im- While unreliability. its reliability, Circuit portance Second On October United States reversed, sug- holding that standards sent a letter the defendant’s Attorney met, and gested Weston had been requesting the defendant’s attorney cooper- use in prevent Process does not sen- “Due in an of the Black He- investigation ation declarations tencing out-of-court brews.37 letter stated: is good where there unidentified informant are you As aware we believe Mr. of his identity for the non-disclosure cause Lemon has information that would be is sufficient corroboration oth- there continuing to us helpful investiga- in our (citation omitted). er at 713 means.” Id. being tion of activities conducted by the members of Black Hebrew Courts in these cases have confront learning We are sect. interested in from evidentiary ed two issues: simultaneously him, the facts and circum- particularly, sufficiently kind of relia what evidence obtaining surrounding stances enough. ble how evidence It is much charged against checks in the indictment good questions reason that these have him and the of the items disposition pur- Fatieo, neatly scissored. As in been *13 through checking the use of the chased informant, of unidentified statements an question. in We are further account in- value, may of be useful if otherwise dubious learning any from him terested other By means. the corroborated additional might illegal information he have about token, may evidence many pieces same of members of the Black He- activities on uncor depends be if each unpersuasive brew sect. short, In hearsay. require the roborated your to extending are this offer We process ments of due the context of a that can presentence client so we inform information accuracy to to challenge the coopera- Judge your Jackson of client’s sentencing be used in cannot be reduced to or lack of at the time of cooperation tion a The extensive discussion simple formula. sentencing. supporting evidence found insuffi the attorney government report- for the The reliable in Weston and that found ciently sentencing ed his and at in memorandum sufficiently provide reliable Fatieo useful hearing the that the defendant had failed at end of In guideposts spectrum. each the request.38 to to this respond locating along that spectrum, case development the of a case-by-case any continue expla- defendant has not offered necessarily process person due identify flexible standard. for his to the nation failure checks; he We that first from whom obtained the for begin process identifying instance, claim appear the be he not to that allegations properly that could con does supported sufficiently identify if reliable he unable to the How- person.39 sidered ever, has stated that he is government’s evidence. We consider the the defendant contentions, first, any to information about provide defendant failed unable cooperate investigation activity to in its Hebrew and, second, “cooper- he unable to group, Black was a therefore aspect ate” in this member of the Hebrews. approached Because we are 37. letter who he said him. was attached to the court, appears remanding memorandum on this case to the district clarify opportunity as Attachment C. record will have an defendant identify the individual whether he is unable to 26; App. Sentencing Brief A at Government which, true, any explanation if or has other Transcript at 13. doing In a reason not so. would be valid case, reject judge could not that reason It is unclear from own inquiry summarily appropriate into without he account of the circumstances under which veracity of the defendant’s claim. checks or not he obtained stolen whether identify the individual claimed to unable 936 erts, his
its he sometimes failure to do investigation.40 Although response so in prosecution’s specific provide he was in- for this request asserted that unable infor- mation member, be considered one may he was as factor in formation because not hand, On the sentencing.42 other the de- proposition judge very properly any fendant repeatedly knowledge denied questioned,41 we understand the overall activities the Black Hebrews. profess thrust of his statements to lack of Although made regrettably no any about knowledge illegal activities of explicit into inquiry veracity of Lemon’s the Black Hebrews. provide claim that he was unable to States, In v. United 445 Roberts U.S. requested, rejection his of this (1980), S.Ct. L.Ed.2d implicit claim is in his reliance on apparent held Supreme Court that a court cooperate.43 event, the failure In any consider, as one factor in imposing cooperate reliance on the failure to in this sentence, a defendant’s refusal to cooperate facet of government’s investigation can investigating with officials criminal con- be upheld, in the face of the defendant’s spiracy partici- in which was a confessed denial that he was able cooperate, only if Roberts, pant. however, In the court was sufficiently there was reliable evidence that careful to note the of any absence reason the defendant did have information about cooperate the defendant’s refusal to de- assume, those activities. did the spite requests “repeated period ... over a government, the Black Hebrews are years.” three at S.Ct. engaged only in illegal not activities but at particular, 1362. In the court noted that legitimate also in It activities. would defendant not contended that “he therefore be appropriate, particularly to provide requested unable assist- given the first amendment concerns dis- ance.” Id. S.Ct. below, cussed to infer the defendant’s *14 short, “neither he lawyer nor his offered knowledge illegal merely of activities from any explanation to the sentencing court.” evidence of innocent associations with Black Furthermore, Id. the court noted that the process Hebrews. Due in this context re- claim defendant’s on that appeal “his fail- quires some identifiable link between the ure cooperate justified by legitimate among defendant and illegality the Black fears of physical retaliation and self-incrim- Hebrews. ination .... would have merited serious if they presented consideration had been Membership C. The Defendant’s in the the
properly
judge.”
sentencing
Id.
Black Hebrew Sect
Justice Brennan added
his
in
concurring
The defendant
not
denies
only
the
opinion
justification
“if a
that
prof-
were
government’s allegation that he is a mem-
fered,
judge
proceed
the
would then
to de-
Hebrews;
ber of the Black
also
he
claims
termine its veracity and reasonableness.”
that the first amendment
the
bars
consider-
563,
Id. at
939
claim antees freedom of
with religious
ent
in the defendant’s
association
acquiescence
is a religious
the Black Hebrew sect
political organizations,
and
however unpop
conclude
organization,
comfortably
we can
Thus, the government
punish
ular.
cannot
purposes
appeal
for the
membership
an individual for mere
in a
protected by
the first amend-
group
religious
political organization
that em
ment.50
illegal
legal
braces both
and
aims unless the
conclusion that
the Black Hebrew
Our
specifically
individual
intends to further the
protected by
sect is an association
the first
illegal aims.
Ro
group’s
United States v.
not,
course, wholly
amendment does
im-
bel,
258,
419,
389
88
19 L.Ed.2d
U.S.
S.Ct.
regulation.
munize its activities from state
Russell,
(1967);
508
Elfbrandt v.
384 U.S.
Indeed,
has offered to
11,
1238,
(1966);
86 S.Ct.
(3) The First Amendment and Protected
proscribes punishment
first amendment
Groups
Illegal
Aims
protected
an individual for
in a
has il
organization
organization
unless the
sentencing'context,
Outside
guar-
legal
is axiomatic that the first amendment
aims and the individual
intends to
882, 886-887,
(1944);
attempt
This does considered for that not as the defendant however, appears purpose. limited argue, emphasize, that even representations must this limited use of show that the necessarily proceeds of about the defendant’s associations offense for which the defendant was constitutionally protected group, in the convicted were intended to ab- benefit showing sence of a reliable that he had the showing Hebrews.53 Such would of intent to illegal purposes, further its course be the evidence must strongest of the de- withstand the heightened degree fendant’s of scruti- intent to further the illegal aims ny necessary that we deem to insure but it is not the only penalized evidence defendant is not for mere that would the requisite establish association religious intent and with members of a the first satisfy amendment. group. On the hand, other the limitations of the
first easily amendment would be evaded if We are requiring courts confronted the defendant’s intent could simply with information of this sort necessarily to be inferred from evidence of his explain sentencing decision,54 association their although Bass, supra Appellant 933-935, Although Brief for Weston see at 16-17. due require first process require govern- amendment does not such a show- would either that ing, process may. case, disregarded due sup- clause In this ment’s claim be or that it be ported by claimed reliable evidence. crime was committed for the benefit of the App. Black Hebrews. Government Brief A at 54. A statement of reasons for a de- See, e.g., allegation. generally required. 26. Defendant denied this Unit- Presen- cision is not Bazzano, Report reasoning tence ed Under v. 570 F.2d States 1133 n.
941 illegal the defendant and ac- link between considerations on of the explanation an the Black He- many tivity by would serve known members of a sentence is based which functions,55 in a case especially valuable brews. constitutional as this in which sensitive
such claimed that the defend- government The out simply point are at issue. rights crime was committed for benefit ant’s sentencing decision unexplained an government The of the Black Hebrews.56 close particularly vulnerable that he the defendant’s statement verified and due the first amendment scrutiny the offense on spent proceeds has been demand when process “tickets,”57 clothes, equipment and stereo about to consider information urged purchases may these alleged and then views or political religious organiza- of the have been for the benefit affiliations. no government provided But tion.58 to substantiate evidence whatsoever Application IV. purchases are of Certainly, claim. the relevant analysis of foregoing use, as ordinarily personal intended for type our task in review- principles clarifies legal claimed, particu- are not the defendant in this case. We decision ing achieving geo- maximum larly useful was suffi- whether there must determine repatriation to Israel. graphic mobility the defendant reliable evidence that ciently to be no evidence what- appears There thus affiliated with closely was a member of or claim that the government’s soever for the Hebrews, Black Hebrews that the of the defendant’s crime were to proceeds aims, the de- and that illegal have certain the Black Hebrews. benefit illegal those fendant intended to further remaining evidence of the defend- addition, we will determine aims. of or intent to further the knowledge ant’s evi- sufficiently there reliable whether Black con- illegal activities of the Hebrews defendant, or not he that the whether dence alleged cerns his association with other member, activities of was a knew whom some of have been consider- justify the Black Hebrews so as to illegal activity. Yet this evi- involved his failure to aggravating an factor ing as strands, thin each dence consists of several in their in- with the authorities cooperate that, together, even frayed of which is so vestigation. conclusions that we support cannot they the sentence on uphold We cannot accompany any must un- have determined us. When we the basis of the record before concerning a favorable use of information representations examine the protected with a or- defendant’s affiliation articulated in this light principles ganization. attempt than an opinion, we find little more hand, one claims On the guilt through association an establish association it can demonstrate direct suspicions. of uncorroborated accumulation that the one occasion between the defendant appear It does not from the record direct Bruce and Bruce single persons, can demonstrate two Green Stew- J., concurring), sentencing proceeding); cert. de United States v. (3d Cir.1977) (Adams, nal Hansen, 1078, nied, 2261, (2d 1983). Cir. 56 L.Ed.2d 701 F.2d 436 U.S. 98 S.Ct. Moore, (1978); United States v. 540 F.2d comprehensive summary argu For a 1088, 1091 (D.C.Cir.1976) (Separate Statements gen requiring judges ments in favor of federal McGowan, MacKinnon, J., J.); United sentence, erally state their reasons for a see Donner, (7th States v. 528 F.2d Cir. Bazzano, United States v. 1 130- 570 F.2d 1975). However, in certain limited circum J., (3d Cir.1977) (Adams, concurring). required explanation. stances courts have Pearce, See, e.g., North Carolina v. 395 U.S. App. A at 26. Brief 56. Government 711, 726, 89 S.Ct. L.Ed.2d (due permits (1969) process increased sentence Sentencing Transcript at 12-13. appeal if court on retrial after successful occurring origi- specific after identifies conduct n. Brief at 18 58. Government *19 art, through “identified sources” as Black supposedly engaged members of the by provided no government Hebrews. The has group. Even if the Black Hebrews were identity reliability about the simply a with conspiracy no first of for their those sources or the basis asser- status, amendment and mere membership tion persons that these are members. Even or affiliation were a proper consideration in if provided, information were these sentencing, place we would this case at a have the most tenuous con- individuals point spectrum on the well short of the illegal activity: nection to was want- Green case, quite evidence in the Fatico and close ed for at time of charge “a check to the Weston end of the spectrum. Cer- arrest,” and is alleged Stewart tainly then the evidence utterly is inade- boyfriend Bostick, to be the of Warrena quate satisfy requirement the additional Black Hebrew, who has been identified as a of the there first amendment that be relia- sources, again unnamed and who is ble evidence intent the illegal to further burglary wanted for a in which airline tick- or, group, activities of the for the purpose ets were stolen. considering cooperate, a failure to
The government also claims that it can least specific knowledge of those activities. show indirect association between the de- We doubt first amendment would individuals, fendant two other Beverly and permit an inference of intent specific Myrtle Caro, Caro and Washington. illegal further of a group activities whose car the defendant riding was at the even specific an inference of knowledge of arrest, time of his “has been observed illegal activities on the of one basis or two members law enforcement at [unnamed] instances of association with members in- a house meeting frequented by Black He- volved in those activities. But the ab- brew members and at a convention of Black sence single of a direct between link Hebrews,” but has no apparent connection illegal defendant and activity illegal with any activity. Washington, who Hebrews, consideration of the evidence of allegedly “monitoring” had been proceed- the defendant’s affiliation ings against defendant, is a convicted Hebrews as an factor aggravating in sen- felon, government but the offers no basis tencing improper. was for its assertion that she is member a of the We therefore vacate the sentence and group. remand to the district court resentenc- Finally, claims that ing. possible It is proceed- in further defendant is connected with two other ings the government produce can additional sect, members Angela Kegler and evidence sufficiently of a reliable caliber Terry Warr, by their use of similar checks quantity was in- defendant in a similar manner. While the volved with the Black Hebrews with the offers to produce quite persuasive evidence specific group’s intent further of their membership Kegler allegedly — activities, or at least that of those he knew arrested a Black meeting Hebrew could responsible activities and thus be held garb dressed in “the of the sect” Warr respond for his the prosecu- failure allegedly self-admitted member —the not, tion’s If request information. only connection between them the de- sentencing judge clearly express should timing deposits fendant is the disregard the record his intention to checks. government’s representations on this mat- The government proof does not offer of a ter in imposing sentence. single instance of direct association be- Apart requirements proc- from the of due person tween the defendant and a whose ess and the first amendment which we demonstrated, reliably much remand, less such base Rule person 32(c)(3)(D) who is also involved in or even suspected illegal activity of the type newly amended Federal Rules Criminal sentencing process in this case does not the The presumably require would Procedure59 scrutiny. ei- proceedings withstand that judge in further any allegations as to findings to make ther report whose presentence
contained McGOWAN, Judge, Circuit con- Senior *20 defendant, or by the challenged is accuracy in the result: curring allegations. those disregard expressly in the remand to the District I concur in should alleviate requirement This new the issues in expose because that will Court task we have cases the difficult most future in procedures this case to the established confronted in this case.60 amended Fed.R.Crim.P. recently an it is unusual for recognize We which in 32(c)(3)(D), provides pertinent detailed court to undertake such a appellate part: and to sentencing proceedings review of sentencing of the overturn the decision and his If the comments of the defendant of another But we are not aware judge. testimony counsel or or other information urged has case in which the alleged any them factual introduced increased sentence on the sole substantially investiga- in the inaccuracy presentence alleged membership basis of the defendant’s of the report summary report tion or the by the first organization protected in an thereof, shall, as to each part or the court amendment, under investi- albeit one that is controverted, (i) finding make matter illegal activity. The for substantial gation (ii) allegation, or a determina- as to extraordinary amendment demands first finding necessary tion that no such is the state would use safeguards whenever will not because the matter controverted individual his association against an in sentencing. be taken into account This on the basis of shared beliefs. others rule not take effect The amended did place true when those beliefs particularly is 1, 1983, after the defendant’s August until of our outside the mainstream group and, thus, sentencing, was not automatical- and beyond sympathies per- and society Supreme to this case. The ly applicable of the aver- comprehension even the haps promulgating order the amended Court’s citizen. Even when members age however, that the amend- provides, Rule in activities engaged illegal association are just as and applied ment be “insofar against guard or seek aims we must pending.” then proceedings in practical, illegality the taint of any attempt spread of case that exactly the kind This association, for that is the throughout the Rule, the amendment of the and prompted the un- Under beginning persecution. provide on remand will application its case, believe usual circumstances of this court with a written record appellate the consti- responsibility that our to ensure and determinations made findings sentencing process integrity tutional of the This passing sentence. scrutiny. degree an unusual requires August 32(c)(3)(D) provides The amended rule took effect The amended rule and the defendant’s conviction sen- follows: after Supreme pro- tencing. Court’s order But the defendant and his If the comments of govern testimony “shall all other the amendments counsel or or vides and, allege any proceeding factual inaccu- introduced them thereafter commenced report racy presentence investigation just practical, proceedings insofar as thereof, summary report part or added.) (Emphasis believe pending.” then shall, as to each matter controvert- the court 32(c)(3)(D) compliance with Rule would ed, (i) finding allegation, make as to the just practical further both finding (ii) that no such a determination proceedings in this case. necessary the matter controverted because sentencing. be taken into account will not not, however, the situ- address 60. Rule 32 does findings and deter- A written record of such does not contest where a defendant ation accompa- appended minations shall be to and political accuracy about his of information ny any copy presentence investigation affiliations, simply objects religious but report made available to the Bu- thereafter improper. such information as consideration or the Parole Commission. reau of Prisons
will allow for limited review based on an appellate specula-
actual record rather than
tion. FUND,
I.A.M. PENSION NATIONAL
BENEFIT PLAN A
v.
INDUSTRIAL GEAR MANUFACTUR- COMPANY, Appellant.
ING
No. 82-2486. of Appeals,
United States Court
District of Columbia Circuit.
Argued Oct.
Decided Dec.