U.S. v. Robin

• Decision Date: 15 October 1976
• Docket Number: No. 951,D,951
• Parties: UNITED STATES of America, Appellee, v. Raymond ROBIN, Appellant. ocket 76-1033.
• Court: U.S. Court of Appeals — Second Circuit

Page 775

545 F.2d 775

UNITED STATES of America, Appellee, v. Raymond ROBIN, Appellant.

No. 951, Docket 76-1033.

United States Court of Appeals Second Circuit.

Argued April 20, 1976.

Decided Oct. 15, 1976.

Frederick T. Davis, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Lawrence B. Pedowitz, New York City, of counsel), for appellee.

Joseph I. Stone, New York City, for appellant.

Before MOORE, TIMBERS and GURFEIN, Circuit Judges.

MOORE, Circuit Judge:

Raymond Robin, age forty-eight at the time of sentence, a former and then retired police officer and a licensed bailbondsman, appeals from a jail sentence of thirty (30) years plus fines and probation imposed upon him after his plea of guilty to a three count indictment (June 1974) against him, charging (1) conspiring to distribute narcotics in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and (2) illegally possessing and distributing heroin on two separate occasions in March, 1974, in violation of Title 21, U.S.C. § 846. During the same month that appellant was indicted in the Federal District Court for the Southern District of New York, an indictment containing substantially the same accusations of narcotics violations was handed down in the New York State Courts.

After being fully warned of his constitutional rights, appellant waived arraignment on both indictments on the understanding that he would cooperate with the federal authorities (the Government) and perhaps reach an agreement on the disposition of his case. The federal indictment ¹ was ordered sealed and remained so for almost a year. In May, 1975, it was ordered unsealed, apparently after the Government became dissatisfied with the type of cooperation offered by the appellant. Appellant was arraigned in June 1975 and released on bail after a plea of not guilty.

In November, appellant petitioned in the Federal District Court before District Judge Motley to withdraw his previously entered plea of not guilty and to plead guilty as charged. The guilty plea was accepted by the court over the objection of the Government, which wished to nolle prosequi the case. ²

Appellant was sentenced on January 9, 1976, to fifteen years in prison on each count, with the sentences in Counts One and Two to run concurrently and the sentence on Count Three to run consecutively, totalling thirty (30) years' incarceration. Fines totalling $75,000 were also imposed, and a special three year special parole term was ordered to follow the thirty-year term of imprisonment.

Prior to sentencing, a State Assistant District Attorney (Cunningham), who had investigated State charges against appellant, submitted a letter to the Federal District Judge on the subject of the state investigation. ³ A copy was sent to appellant's privately-retained counsel. ⁴ On the morning of sentencing, January 9, 1976, appellant's counsel sought access to the presentence report ⁵ which had been ordered prepared after appellant's guilty plea. Counsel was permitted to see the report before the commencement of proceedings at 10:00 A.M., but was prohibited from taking it out of the judge's chambers and from showing it to his client.

The sentencing proceeding was marked by repeated disputes between the Government and the appellant on the underlying facts of the case. Appellant offered a tape and certain State Court exhibits to the Court to rebut the Government's version of the facts surrounding the case, but the Court refused to consider them. ⁶

The Government's posture at sentencing was that appellant was a major heroin trafficker. The Government did not rest this conclusion on the charges to which appellant actually pleaded guilty, ⁷ but rather on extrinsic material which was summarized in the presentence report and the Cunningham letter, both of which served to outline what the Government "expected to prove" at trial. Although the District Judge disclaimed reliance on allegations of crimes not proven, ⁸ she concluded that she could receive the Government's version of the facts at the sentencing proceeding. ⁹ When the Judge pronounced sentence, she addressed appellant in part as follows:

"Mr. Robin, as I have indicated, the Court is convinced that your involvement in narcotics was on a major scale, and that this crime was committed after the very severe penalties enacted by the New York State Legislature went into effect which means that anybody involved in the narcotics traffic after that date is involved on a major scale because he is taking a major risk which you obviously were willing to take in view of the large sums of money involved in narcotics traffic." Tr. at 60.

Appellant filed a timely notice of appeal challenging the sentence. Following oral argument, we ordered that the presentence report be made part of the record on appeal. ¹⁰ Having examined the report as well as the rest of the record, we believe that serious error was committed in the course of the sentencing procedures which mandates vacatur of the sentence and resentencing before a different district judge.

Criminal sentences are not generally reviewable in this Circuit. ¹¹ However, this Court does have the authority to review sentences under certain limited circumstances. Where there is a possibility ¹² that sentence was imposed on the basis of false information or false assumptions concerning the defendant, an appeal will lie to this Court and the sentence will be vacated.

"Misinformation or misunderstanding that is materially untrue regarding a prior criminal record, or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process." Townsend v. Burke, 334 U.S. 736 at 740-1, 68 S.Ct. 1252, 92 L.Ed. 1690. United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970).

Accord, United States v. Herndon, 525 F.2d 208 (2d Cir. 1975); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973).

Rule 32(a)(1) of the Federal Rules of Criminal Procedure (Rule) provides in pertinent part that:

"Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment."

We have held that a defendant must be permitted to state his version of the facts to the court; where the possibility of reliance on misinformation is shown, this right must be extended to permit that presentation by the defendant which will enable the sentencing judge to grasp the relevant facts correctly. United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973); see also, United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974); United States v. Powell, 487 F.2d 325, 329 (4th Cir. 1974). In appropriate circumstances, this may mean that a defendant will be permitted to submit affidavits or documents, ¹³ supply oral statements, ¹⁴ or even participate in an evidentiary hearing; ¹⁵ alternatively, further corroboration of sentencing data may be required. ¹⁶ And while in such cases the procedure to be followed lies within the sound discretion of the sentencing judge, a court's failure to take appropriate steps to ensure the fairness and accuracy of the sentencing process must be held to be plain error and an abuse of that discretion.

Presentence reports, prepared by probation officers for use at sentencing, ¹⁷ often call for an exercise of the Court's discretion in this regard. The contents of the reports are not subject to the rules of evidence, ¹⁸ and experience has shown that they are heavily relied upon by sentencing judges. ¹⁹ Accuracy is therefore of prime concern. Reflecting this concern, defendants have been given increasingly greater access ²⁰ to presentence reports in order to point out inaccuracies. Rule 32(c)(3)(A) mandates disclosure of the report save for any sentence recommendation upon request of the defendant; disclosure may be withheld only if rehabilitation of the defendant will be thereby jeopardized, or harm is likely to result to the defendant or others.

To enable a defendant to effectively present his version of the facts to the court by pointing out inaccuracies in the presentence report, we have held that a defendant must be given adequate time to prepare and present a rebuttal to information which he contests. ²¹ In United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973), defense counsel requested (and was shown) a copy of the presentence report on the morning of sentencing. At the same time, the court also made available to counsel a prosecutor's memorandum prepared in aid of sentencing. We held that the defendant lacked adequate opportunity to prepare a rebuttal and that defense counsel's well-meant attempts to rebut at sentencing could not cure this defect.

"(The) morning (of sentencing) when . . . chief defense counsel . . . was shown the prosecutor's memorandum, he asked for an adjournment so that he could have 'an opportunity to answer them.' Although defense counsel had had no time to review or possibly even to absorb seventeen separate incidents hitherto unfamiliar to him, the request for an adjournment of sentence was denied. The Assistant United States Attorney then made a strong plea that 'Mr. Rosner be dealt with in the harshest possible terms'."

"Here the defendant did have able and conscientious counsel, but unless counsel was given adequate opportunity to correct any misinformation in the prosecutor's memorandum, we doubt that his spontaneous comment before sentence was adequate to afford the defendant his due." 485 F.2d at 1229, 1230 (quotation marks in original).

Much the same can be said in the present case with respect to the presentence report itself. The Government and prosecuting state authorities were urging that appellant be treated as harshly as the law permits, ²² largely on the basis of alleged information which was...