*1 America, UNITED STATES of Plaintiff-Appellee,

Tommy Wayne MILLER,

Defendant-Appellant. America,

UNITED STATES of Plaintiff-Appellee, ATKINS,

Jack Tippitt, Jack a/k/a Defendant-Appellant. 73-1866,

Nos. Appeals, Court of Seventh Circuit.

Heard Jan. April

Decided 12, 1974. Belleville, Jr., Ducey, Thomas Cornelius Krause, St. E. l., Lehman D.

Il Louis, defendants-appellants. Ill., Atty., Schwarz, Wil Henry S.U. A. Atty., E. Evers, III, U. S. Asst. liam C. Ill., plaintiff-appellee. Louis, St. Judge, KILEY, Circuit Senior Before Judge, CUMMINGS, and HOFF Circuit Judge.* MAN, District Senior sitting des- * of Illinois is District Judge of the Northern Hoffman Julius J. District Senior ignation. *2 Judge. CUMMINGS, years Circuit tenced defendant to five to be concurrently served with his Texas sen- 73-1866, In No. defendant Miller appeal tence. This attacks the district pleaded guilty Dyer to a violation of the policy uniform not to reveal the (18 2312). Act U.S.C. district § presentence report of a except contents presentence ordered that a investi- prior portion. for the record gation conducted, prior and the crimi- appeal In the related in No. 73- ensuing presen- portion record of the nal pleaded guilty defendant Atkins report sent to defense counsel. tence was charging Count I of an indictment him sentencing, Prior to defendant filed a distributing gram weight with net .46 permission requesting to exam- motion heroin in violation of 21 U.S.C. § presentence report ine the on the entire remaining 841(a)(1). The three counts ground otherwise “re- he could not that were dismissed the Government. At the ceive a fair sentence.” time sentencing, Prior to Atkins’ counsel filed sentencing, motion denied. this was pre- a motion for leave to examine the sentencing hearing, At sentence hearing, At explained that defendant had ad- explained he that filed the prior in the that several matters vised motion because he led was to believe presentence portion of the record that there were certain material facts judge thereup- The district were false. presentence report that not were regular it was his custom on said that “actually situation,” so that he presen- portion of a not to deliver might present evidence to refute wish to record, report except prior tence major allegations some in the re- stating jeopardize a “that would lot case, port. defense coun- As Miller’s of * * if this was copy only had been furnished with'a sel “we would vealed presentence report portion of the of that try every of this man’s life issue containing prior Atkins’ record. again over judge reiterated his same district ** judge said he did While any portion presen- not to reveal rely entirely custom, only his not prior except record. for the specifics comment on the of this case imposed, Atkins’ Before sentence was simply made clear that he considered the pages emphasized four example to be the reason case an for prior record really He did his not consider custom. only There was then revealed arrests. deviating from the custom. Defendant exchange: judge and addressed the district stated You believe don’t COURT: “THE drowning description of smoke there’s there’s that where girl por- prior friend in the record fire? tion of the was incor- Well, hope I DUCEY: “MR. gave rect; defendant then version that, necessarily believe doesn’t He mentioned that was the incident. currently go by only the Court penitentiary in a Texas state shown, what convic- has been what drug- serving 8-year sentence for tions . burglary. Although store Well, go by record “THE COURT: many burglary Ducey, as 13 thing, said ball whole Mr. whole being against processed charges thing. past wax, His not one drugstore defendant, just he claimed that item.” one record burglary only one of which he was sentence, 5-year imposing a Before accused. he knew judge remarked district drugs had sold an addict revealing Atkins Without habit, al- money his own get and feed the other sections of report, “that though unsure court was thereupon sen- the you sole to do it.” explained reason Committee’s note thought although that defend- also disclosure is not made mandatory, ant not rehabilitable because hospitalized he had been several times hoped “It is that courts will make in- drug addiction. creasing use of their discretion to dis- generally may close so defendants appeals, question be both *3 opportunity full to rebut or the fore of us whether explain presentence reports facts in Criminal Procedure of Federal Rules which will be material in factors de- permits to maintain a termining sentences.” disclosing infor of never uniform report apart in a As in mation noted 8A Moore’s Federal Practice (2d thereof. prior 1973) record the j[ [4], principal from ed. 32.03 “the argument provides: against rule That disclosure is that it discourage cooperation will frank of presentence in- report of the “The knowledge those with of the offender vestigation contain shall dry up investigator’s and thus the and defendant record criminal Pp. of information.” The character- his about information such Advisory Committee and the and istics, condition financial his this, Court considered but affecting the amend- his behavior circumstances adopted ment was courage imposing nevertheless en- to helpful sen- may in as Wright, 2 in disclosures. probation or Federal granting or in tence Practice and de- Procedure: Criminal § treatment correctional (1969).1 at 400 information fendant, other such and Court. required by the may be as agree ofWe course that be imposing sentence nature, cause of its confidential the en his or to disclose defendant tire need not be made part material or of part to counsel or made available in tained of deciding However, record. discretion in opportuni- investigation and afford what to disclose must be exercised on a to or ty to the defendant case-by-ease basis. fairness to Any dis- material thereon. comment parties, a district court should hereafter his counsel or defendant closed any grounds state in the re attorney to disclosed also be shall port motivating imposition sup- (Italics government.” To reliance sentence.2 avoid criti plied.) cal misinformation in the which this rule sentences two opportunity last no defendant has had to in 1966. by amendment explain, added if the contradict safeguards, that, with (2d 1. Recommendations Moore’s Federal Practice ed. U are reports [4], Advisory disclosed he n. 32.21. The Commit- 32.03 Association Bar adopted proposal American in contained has been the Sec- tee’s Sentencing Alterna Relating unpub- ond Council in an Standards Circuit’s Judicial (Approved Draft 4.4 Circuit, § and Procedures tives In this we are lished resolution. Institute, Pe Model 1968) ; February Law American the minutes of the advised ; (P.O.D.1962) National 7.07(5) 1974, meeting Judges § Cir- nal Code of this Chief Delinquency, Model on Crime cuit Council some district ; (1963) President’s Sentencing 4§ Act do and others not. Ad Enforcement Law on Commission Powell, 2. See v. F.2d 325 United States Challenge Justice, The ministration (4th Espinoza, 1973) ; States v. Cir. United ; (1967) Society Lehr Free Crime (5th 1973) ; Cir. United States Presentence ich, Disclosure The Use (2d 1972) Brown, ; 470 F.2d 285 Cir. F.R.D. Reports U.S.App.D.C. Bryant, United States Advisory Crimi (1969) ; Committee (1971) ; 442 F.2d 775 Preliminary Pro Rules, Draft nal 1967; White, 382 F.2d reproduced Amendments, at 8A posed dissenting opinion). gards any presen these cases feared that disclosure would sufficiently important lengthy lead trial-type proceedings at sentence, affect sentencing stage, opinion substance does modify power should be disclosed to not to limit the evi- the defendant or his counsel before sen dence taken collateral issues. In its pronounced. tence is If the trial proposed notes to draft of seeking pre denies motion access to amendments, report, sentence reported: “Experience jurisdictions henceforth make it clear that his sentence determi does not lend predicated nation argument support to the that disclosure describe substance complete presentence in less will result significant. considers argument reports or the This will the kind of error avoid exem unnecessarily procedures will become Burke, plified by Townsend v. U.S. protracted.” *4 1690; 736, 1252, Unit 92 L.Ed. 68 S.Ct. The herein established Myers, rel. ed States ex Jackson v. by any previous foreclosed decision of 1967); (3d State Killi Cir. v. F.2d 707 Thus in United Court. v. States ; (1962) 140, an, 91 Ariz. P.2d Humphreys, (7th 457 F.2d 242 Cir. Pohlabel, N.J.Super. 242, 160 v. State 1972), principal case, the Government’s (App.Div.1960). A.2d 647 we that the “need for said disclosure” say do not sentencing We was because the defendant “obviated” always must make these disclo great presenting given latitude was sures, exceptional for there cases day- picture at true long hearing character justify which would deviation from the the trial court. The foregoing approach. example, For a dis Duffy Judge for his discus- cited case judge may particular trict find in a case disclosure fear that sion of the if that closed, certain material item dis is Bak- dry up of information sources inevitably defendant would know 931, F.2d er United provided information, who that and that 1968), court vacat- (4th where Cir. compelling hiding reasons for there are because remanded ed a sentence identity In of the informant. such a the case, only had been the defendant’s judge might not choose presen- to partial permitted access so, item, but if should to outlined the court report. There reliance on discount his permitted under minimum reliability. lesser allow stating to for case, that the facts judge by in the district discretion vested may be a fair “extent determine a 32(c)(2) allows him to Rule greater circumstances.” other exceptional procedure proper for such rejected court Baker rare, eases, and to de should which un- lawof aas that view cide what duty to disclose der no enough affect the important to is report. sentence. Trigg, F.2d States United holding that district must 1968), de- (7th certiorari 860, Cir. any policies abandon of nondisclosure 1863, L. nied, 88 S.Ct. 391 U.S. their under exercise discretion to access did not we Ed.2d in a manner consistent with the unfa- sentencing, purpose of informed we by the disclosed matters vorable they to will be able are confident recommendations prosecution in its protect and other confiden- informants con- except court, a state probation officers’ so tial matters itself the district viction not be cut information will judge in disclosed. Although the district off. ruling also relies Government fendant Greathouse, post-conviction 484 F.2d States motions unless the (7th 1973). pertinent Cir. There defendant factual information is sum- argued she been should have marized disclosed safeguards.” appropriate co-defendant Greene’s counsel with impeaching testimony. for use in adversary role, Due to his the need for But not she had asked to see prosecutor’s report disclosure of a trial, report’s at we held “the greater probation than the need for a negligent suppression not would warrant report. protect But officer’s the need to also reversal.” We noted the trial analogous, sources of information is explicitly court had found Greene to be a is the effect errors in the liar,” “pathological im- so further We therefore conclude that defendants peachment in bench trial Greathouse’s normally, subject guide- unnecessary. out, lines hereinbefore set be advised of portions presentenee The statement United States v. material White, report.3 Sentences vacated and eases willing rely “we are proceedings remanded for further opinion. the district the discretion sistent with this considering in * * * requiring that without HOFFMAN, JULIUS J. Senior Dis- particular bearing upon facts the exer- Judge. trict *5 disclosed,” discretion cise of his respectfully dissent. jeopardy the incidental to double issue provisions the current Under of Rule opinion In which that focused. right 32(c), no a has convicted defendant context, been overruled it has North report prepared,1 presentence to have a Pearce, 711, 723, Carolina v. 395 U.S. 89 prepared, and in one the the event 656, 2072, and S.Ct. 23 L.Ed.2d we no divulge judge required district longer quoted the consider sentence to Furthermore, its a contents.2 binding. presentence report reliance with- disclosing allowing Solomon, out its process. 1110, rebuttal is not a denial due 1119-1121 of York, 241, v. Williams New denied sub Sommer 337 U.S. certiorari nom. 911, 1079, (1949); S.Ct. L.Ed. 399 U.S. Wil- S.Ct. Oklahoma, 565, 2201, supports 576, our re liams 26 L.Ed.2d S. U.S. 421, (1959). dealt Ct. 3 L.Ed.2d 516 sult. There we with a confidential prepared by prosecutor memorandum the therefore, policy, Disclosure, involves dealing defendant, the and with and a matter whether as of the was submitted to the court with op- defendant should be accorded some out contents to de allegations portunity to see refute citing After fense counsel. made in a has been a (422 32(e)(2), p. declared F.2d at we controversy. subject of considerable See 1121): Advisory Rules, Notes of Committee however, Circuit, U.S.C.A., in this “Hereafter Fed.R.Crim.P. in cam- Pamphlet trial not consider Supplementary court shall prosecutor’s mixed, era about a de- practice with in federal courts is opinion vestigation thereto have 3. and the dissent This court be- to the regular imposition ac- in been circulated to the sentence or fore the requested service; probation granting tive no has the court unless * ** * en banc. cases be reheard otherwise directs. 32(c) 32(c)(2). 1. Fed.R.Crim.P. 2. Fed.R.Crim.P. (1) probation service of When Made. The in- shall make a court minority judges permit- necessity case-by-case ap- substantial vious for a ting deny proach sentencing. most disclosure while it. See in The dissolution survey prepared the Judicial Confer- the draft amendment in the forms Columbia, proposed by re- Advisory of the District of as ence Papers ported in on Discov- and 19644 lends Conference credence Cases, importance ery relative 33 F.R.D. Federal Criminal the latter obser- (1963). any event, 32(c) vation. 125-127 See also Grone- under Rule Investigation (2) finally amended, as wold, Presentence Practic- System, retained in the Federal Probation Fed. discretion to es decide dis- whether Prob., Sept. pp. necessary. closure is in fact Turning present appeals, Supreme As submitted Court opinion substantially Court’s would be Committee, the 1944 draft meaningless (in body the current provided of the Criminal Rules law) unless the statement be made avail- attorneys, parties, able to and such other “a district should hereafter persons designate. grounds the court as state rules, adopting report motivating imposition provision, and Rule struck the sentence” 32(c) point. then silent on mandating is seen such matters Thereafter, the courts construed Rule (not “may”) must be disclosed to 32(c) to mean judgment Again, defendant. port a confidential document Supreme Court, reasons such as need not be made to the de- available opinion ones in this advanced Court’s obliga- fendant, and that there was no have make not been deemed sufficient tion to allow the defendant to contradict mandatory. Furthermore, findings rebut See court. Court states that Wright, Federal Practice and Proce- denies trial a motion “[i]f 524, pp. 394-395, Note dure: Criminal § seeking presentenee report, access to a and 46. cases cited in *6 February 28, 1966, On that his sentence determination is not adding following predicated was amended on the contents the re- provision: port or describe substance of significant.” considers imposing sentence “The court mandatory in its This too must be seen may defendant or to the judge’s determina- If trial context. part the material counsel predicated contents of tion is tained report, this statement the third clause of opportuni- investigation an and afford mat- him disclose those would ty defendant determina- influenced that ters which thereon.” comment tion. suggests, Although, Court my opinion, it this Court’s adopted to been have amendment policy on dis- responsibility to determine encourage disclosure, it clear is urging Formulating re- closure. make Supreme did not Court prime is the Rules in the Criminal forms ob- mandatory, perhaps of the (from right to read solute proposed would the amendment 3. As could he confidential mandatory a sum- to disclose made it have mary excluded) See thereon. comment and to See Proposed Preliminary Draft Proposed Preliminary Second Amendments Draft of Proce- of Criminal to Rules Procedure, Amendments December Criminal Rules of pp. dure, 39—40. March 1962, p. 25. proposed would amendment 4. As ab- the defendant have Supreme Court’s Advi-

function The means of

sory Rules. the Court here

accomplishing that which by Supreme Court to establish

seeks to the Rules.

adoption amendment of an fact, which this Court result immediately (by come about seeks would provi- existing process) upon way due right Court sion however, date, To Su- to disclosure. provide

preme has declined

right. the dis-

Accordingly, would affirm rulings denying defendants’ trict sought

motions which

entire contents

ports. Secretary Labor, BRENNAN,

Peter J. Department Labor, Appellant, CORPORATION,

ACE HARDWARE Appellee.

No. 73-1498. Appeals, Court of States Eighth Circuit.

Submitted Feb. *7 April

Decided Notes he should make it clear henceforth