UNITED STATES of America, Plaintiff-Appellee, v. Gino ROSCIANO, Defendant-Appellant.
No. 73-1666.
United States Court of Appeals, Seventh Circuit.
July 18, 1974
Argued June 13, 1974.
499 F.2d 173
With all due deference and respect to my brethren in the majority, my reading of the record has failed to uncover any statement of reasons by the trial judge—let alone those that approach the stature of explicit and substantial—justifying his dispensing of a presentence report. Accordingly, on the basis of the foregoing, I would find that the trial judge abused his discretion.
I find it somewhat anomalous that courts are fastidious in safeguarding a criminal defendant‘s rights prior to a verdict of guilt, yet upon being convicted we fail to adhere to our zeal to assure the defendant our full and fair attention on the equally important aspect of sentencing. When a defendant challenges the sentencing procedure, we often seek to avoid confrontation by uttering the rubric: Sentencing is a matter of broad discretion, including the procedures attending it. But while discretion is a sine qua non, it has its limits. We scarcely need to be reminded that sentencing has a tremendous and far-reaching impact on the life of a human being.
I would remand to the district court for consideration of a presentence report.
James R. Thompson, U. S. Atty., Ann P. Sheldon, Gary L. Starkman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIRCHILD, CUMMINGS, PELL, STEVENS, SPRECHER and TONE, Circuit Judges.
PER CURIAM.
This matter came before us as a result of our May 2, 1974, order granting an en banc rehearing of the panel decision herein reported at 499 F.2d 166. The question involved is whether a district judge, who has not been requested by counsel to do so, is nevertheless required by
The function of en banc hearings is not to review alleged errors for the benefit of losing litigants. Western Pacific R. R. Corp. v. Western Pacific R. R. Co., 345 U.S. 247, 256-259, 73 S. Ct. 656, 97 L.Ed. 986 (1953);
Barring some Congressional delay, effective August 1, 1974, an amendment to
SWYGERT, Chief Judge (dissenting).
I join in Judge Stevens’ dissent from the holding that the en banc rehearing was improvidently ordered. As my Brother demonstrates, the fact that a new national rule governing criminal procedure in the district courts would require reasons for the dispensation of a presentence report may be in the offing or that the Parole Board may ameliorate any injustice visited on Gino Rosciano is a poor excuse for avoiding a frontal examination of the procedure adopted by the judge in this case. In fact, it is no excuse at all because as far as Rosciano is concerned, the new rule will not benefit him and the hope that the Parole Board may rectify any injustice is exactly that, a hope, and not as Judge Stevens so adequately illustrates, an assurance. Courts should be ever sensitive to the rights and liberties of individuals. Rosciano‘s liberty is at stake—not the salutary effect of some future rule, nor the suggestion that the Parole Board may right a wrong which may have resulted from what seems to me an extreme disparity of sentences in this case.
STEVENS, Circuit Judge, with whom SWYGERT, Chief Judge, and SPRECHER, Circuit Judge, join, dissenting.*
Sentencing is a critical stage of the criminal process. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). We have recently recognized its importance by imposing procedural requirements upon the district courts of this circuit that were not explicitly mandated by any provision of the Federal Rules of Criminal Procedure. United States v. Miller, 495 F.2d 362 (7th Cir. 1974). Before that opinion was released, since it represented a departure from procedures theretofore required in this circuit, the active judges of the court considered whether or not to have the issue argued before the full court. Had there been substantial disagreement among the active judges—as there was in this case—certainly the decision would have been made en banc rather than by a divided three-judge panel.
One may ask why the preparation of a presentence report—or an explanation of why it need not be prepared—is a matter of less importance than its proper use after it has been prepared.
The trial judge must have broad discretion in his performance of the sentencing function. The sentence must do more than fit the crime; it must fit the particular defendant and also, on occasion, the particular moment in history when it is being imposed. It is therefore imperative that sentencing procedures be fair and that they appear to be fair—to the defendant, to those who are deeply interested in his future, and to the public at large. It is that imperative that led the court to hold that normally there must be disclosure of those portions of the presentence report which affect the trial judge‘s determination. It is of comparable importance to have such a report prepared in the first instance, or to have the record plainly disclose why there is no need for a report in a particular case.
For the reasons set forth in Chief Judge Swygert‘s dissent from the panel opinion, this record portrays an appearance of manifest unfairness that has not been explained. An explanation might well demonstrate the fairness of both the sentence and the sentencing procedure; but without any explanation, we must be concerned, not merely with the status of this litigant, but with the prac-
On the merits, the question raised by this appeal is simply whether a trial judge who determines that he does not need a presentence report should state on the record his reasons for dispensing with it. In years past, when there may have been a greater willingness to assume that a judge‘s private or ex parte deliberations approached the omniscient, the question would readily have been answered in the negative. Today there is a greater awareness of the fact that injustice does occur from time to time in the sentencing process; today the question should clearly be answered affirmatively. Why, then, should we not do so in this case?
First, it is suggested that nothing more than the destiny of one litigant is involved on this appeal. But that is the nature of our adversary system; since the earliest days of the common law, judges have applied and molded rules to resolve controversies between particular litigants. Much of our law, with a special emphasis on its procedures, was evolved through the process of case-by-case adjudication. The fact that an issue is raised by a particular litigant with a stake in the application of a rule is a reason for, not against, making a needed change, and, of course, if the law of the circuit is to be changed, it is appropriate that such action be taken by the court sitting en banc.2
Second, it is pointed out that neither the panel decision nor the action of the trial judge is in square conflict with any prior decision of this court.3 If we are dedicated to the proposition that the law shall never be changed, or, more narrowly, that judicial decisions shall never change the law, then that reason is sufficient; indeed, it is sufficient not only to refuse to act en banc, but also to justify disposition of the appeal by an unpublished order.4 I suggest, however, that the scholarly treatment of the issue in Judge Hastings’ original opinion for the panel evidenced an appropriate awareness of the importance of the underlying issue. If we believe that our prior decisions are not only consistent but also correct, nothing further need be said; but if one is persuaded—as I am—that the old rule should be changed, then that consistency is a compelling reason why the matter should be considered by the full court sitting en banc.
Third, reference is made to the proposed amendment to
Moreover, after the proposed rule does become effective, interpretation of the “reasons stated on the record” requirement will be necessary. In view of what I regard as an incorrect panel conclusion that the record in this case adequately discloses the trial judge‘s reasons for not ordering a presentence report, I think we should unambiguously hold that the reasons for the trial judge‘s action must be stated with much greater clarity than they were in this case,6 and not take the chance that the panel opinion will be treated as justification for only token compliance with the new rule.7
Fourth, it is said that the case is not even particularly important to the appellant since the equivalent of the presentence report will be given to the Parole Board although not to the judge. Whatever significance this comment may have must rest on the assumption that the trial judge‘s participation in the sentencing process is not merely secondary in importance to the function performed by the Parole Board, but indeed of no special importance at all. Arguably the judge should be entirely removed from the sentencing process and either all sentences should be automatically set by legislative mandate or, at the other extreme, they should all be indeterminate and the timing of a prisoner‘s release should be committed exclusively to the discretion of the executive. Neither of these extremes has been adopted in the federal system. As long as the judge is required to play a critical role in the sentencing process, the procedures which he follows will retain their critical importance.
There is a certain irony in the suggestion that the availability of the equivalent of a presentence report to the Pa-
Finally, I note another irony in the suggestion that this case is not really very important to the appellant who is commencing his six-year term in a federal prison. The considerations set forth in the court‘s per curiam memorandum were all perfectly apparent before we invited appellant to employ counsel to argue the matter before the court sitting en banc. We all took the time to read the briefs, to listen to that argument, and to deliberate about the matter. I am not at all persuaded that our order granting rehearing en banc was entered improvidently; I would agree, however, that the order we enter today merits that characterization. I believe we do this litigant and ourselves an injustice by failing to address an important issue squarely.
APPENDIX
UNITED STATES of America, Plaintiff-Appellee, v. Harry R. FAWCETT and George Manuel, Defendants-Appellants.
ORDER
Nos. 72-1332, 72-1333
* * * * *
VI.
Before sentencing, Fawcett requested a copy of the presentence report. The request was denied. Appellant argues that although
The judgment is Affirmed.
STEVENS, Circuit Judge (dissenting in part).
The majority seems to interpret Williams v. New York, 337 U.S. 241 (1949), and the many cases which have followed it, as establishing the broad proposition that the trial judge has no obligation to disclose any information contained in a presentence report even though it may be of critical importance in his determination of the sentence. As I read Williams, it decides a much narrower issue.
In Williams the Court held that the sentencing judge is not limited to the consideration of evidence received in open court or factual matter which would be admissible under accepted rules of evidence. But the Court did not address the narrow question whether the sentencing judge may rely upon critical information about the defendant‘s past without at least giving him notice of the substance of the matter relied upon. Indeed, it is of interest that in Williams the sentencing judge discussed in specific detail the items in the presentence report which had persuaded him to impose the death penalty. See Record 12-20,
“It is significant that although the court revealed the foregoing information, neither appellant nor his counsel made any claim that all or any part of it was untrue or inaccurate in the slightest respect. No request was made to be confronted with the witnesses supplying the information. Nor was any request made for an opportunity to offer rebuttal evidence. Since appellant and his counsel remained silent when confronted with the information above related, the court acted on its conclusion to reject the jury‘s recommendation and imposed the death penalty (R. 20).” Appellee‘s brief at 6, Williams v. New York, No. 671, O.T. 1948.
The rationale of three other Supreme Court decisions persuades me that the sentencing procedure must avoid the risk that the trial judge has relied upon critical misinformation which the defendant has had no opportunity to contradict or to explain. If the judge regards any information in the presentence report as sufficiently important to affect the sentence, the substance of that information must be disclosed to the defendant or his counsel before sentence is pronounced. I draw that conclusion from the holdings in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; and Kent v. United States, 383 U.S. 541, 562-563, 86 S.Ct. 1045, 16 L.Ed.2d 84.
Mempa, of course, established the basic proposition that sentencing is a critical stage of the criminal prosecution; for that reason, counsel must be provided. Kent reminds us that counsel cannot adequately represent his client unless he is provided with the information on which the trier of facts bases its determination. And in Townsend the Court squarely held that the imposition of sentence on the basis of misinformation “which the prisoner had no opportunity to correct [rendered] the proceeding lacking in due process.” 334 U.S. at 741, 68 S.Ct. at 1255.
The fundamental elements of due process are required in the sentencing procedure. The most fundamental of all such requirements is adequate notice. Unless the defendant is given an opportunity to correct material misinformation, or to explain facts that might be given improper weight in a secret presentation, he has not had such notice. In my opinion, if a trial judge denies a motion seeking access to a presentence report, he must either make it clear that his sentence determination is not predicated on the contents of the report or describe the substance of any matter he considers significant. In order to avoid the kind of error exemplified by Townsend v. Burke, I believe the Constitution mandates a procedure comparable to that employed by the trial judge in Williams v. New York. It may require more; to the extent that the majority approves anything less, I respectfully dissent.
UNITED STATES of America, Appellee, v. Amos Lane BRIDGES, Appellant.
No. 73-1796.
United States Court of Appeals, Seventh Circuit.
June 12, 1974
Rehearing Denied July 8, 1974.
Argued Jan. 24, 1974.
Notes
(c) 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, except that the court, at its discretion, may dispense with a presentence report, in the following situations:
(i) If the maximum penalty is one year or less;
(ii) If the defendant has two or more prior felony convictions;
(iii) If the defendant refuses to be interviewed by the probation department or requests that disposition be made without a presentence report;
(iv) If it is impractical to verify the background of the defendant.
As the Advisory Committee Note indicates this change in the rule has as its “principal objective uniformity in presentence practice throughout the federal system and fairness to the defendant to be sentenced.” The likelihood that an amendment to Rule 11 will become effective on August 1, 1974, did not prevent the court from exercising its supervisory power in Moody v. United States, supra, n. 2, decided on May 22, 1974.