U.S. v. Jackson

• Decision Date: 25 September 1989
• Docket Number: 88-2039,Nos. 88-1686,s. 88-1686
• Citation: 886 F.2d 838
• Parties: 28 Fed. R. Evid. Serv. 1141 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Jeffery JACKSON, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 838

886 F.2d 838

28 Fed. R. Evid. Serv. 1141

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Jeffery JACKSON, Defendant-Appellant, Cross-Appellee.

Nos. 88-1686, 88-2039.

United States Court of Appeals Seventh Circuit.

Argued Jan. 5, 1989.

Decided Sept. 25, 1989.

James G. Richmond, U.S. Atty. Office of the U.S. Atty., Hammond, Ind., Dennis Staffelbach, Thomas O. Plouff, and William T. Grimmer, Asst. U.S. Attys., Office of the U.S. Atty., South Bend, Ind., for the U.S.

Charles W. Lahey, South Bend, Ind., for Jeffrey Jackson.

Before POSNER, COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Jeffery Jackson was initially charged with participating in a scheme involving the alteration of postal money orders. Upon a request by the government, Jackson was ordered by the district court to provide handwriting exemplars to postal inspectors. Jackson refused repeatedly to comply. As a result he was charged with criminal contempt and ultimately convicted in a jury trial. Arguing that he was deprived of assistance of counsel at his presentence interview with a probation officer, Jackson now appeals the sentence imposed for his contempt conviction. His appeal of that sentence has been consolidated with the government's appeal of the district court's grant of Jackson's motion in limine in the underlying money order alteration case. The district judge in the money order case has prohibited the government from introducing evidence of Jackson's refusal to give handwriting exemplars. The trial of Jackson on the money order alteration charges was stayed by the district court, pursuant to 18 U.S.C. Sec. 3731, to permit the government to bring an interlocutory appeal of the granting of the motion in limine. We find no sixth amendment right to assistance of counsel at a presentence interview conducted by a probation officer and affirm the sentence imposed for contempt. We reverse the order excluding evidence of Jackson's refusal to provide handwriting exemplars.

Background

While serving a murder conviction sentence at the Indiana State Prison, Jackson was charged in a nine-count indictment. ¹ The charges related to Jackson's alleged involvement with other inmates in a scheme in which United States postal money orders were altered inside the prison and mailed outside to be cashed. Prior to trial, the government requested that Jackson provide handwriting exemplars to postal inspectors. On October 30, 1987, Chief Judge Allen Sharp issued an order directing Jackson to furnish handwriting and hand-printing exemplars. On November 10, 1987, a postal inspector met with Jackson in order to obtain the ordered exemplars. Jackson refused to furnish handwriting specimens. On November 18, the government filed a petition for an order to show cause why Jackson should not be found in contempt for his refusal to obey the October order to furnish exemplars.

On November 20, 1987, a hearing was held on this matter and the government introduced testimony concerning the nature of the investigation and the significance and need for the court-ordered exemplars. The postal inspectors had been unable to discover sufficient "known" writings of Jackson for the document analyst to make a determination of authorship. After hearing the testimony, the district judge reaffirmed the October order and again directed Jackson to provide handwriting exemplars. Jackson was given until 5:00 p.m. that day to comply. However, in disregard for the court order Jackson again refused to provide handwriting exemplars.

Another petition to require Jackson to provide handwriting and printing exemplars was filed by the government. On December 11, 1987, a hearing was held on this motion. The district judge issued another order directing Jackson's compliance by 3:00 p.m. of that same day. For the third time, through his attorney, Jackson indicated his refusal to furnish handwriting exemplars. As a result Jackson was ordered to stand trial for criminal contempt of court pursuant to 18 U.S.C. Sec. 401(3).

The contempt charge was transferred to Judge William C. Lee for trial. A jury trial was held and Jackson was convicted. Following the conviction Judge Lee, in open court in the presence of counsel and the defendant, referred the matter to the probation office for a presentence investigation and report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure. A presentence investigation was conducted which included an interview with Jackson by Probation Officer Joseph Wiley. Jackson's attorney was not present during the interview. A statement made by Jackson during the interview with the probation officer was one of the factors used by the district judge in handing down a sentence of 30-months imprisonment to run consecutive to his state sentence and a mandatory three-year term of supervised release. Jackson appeals the sentence imposed on his conviction for contempt. ²

In the meantime, the government indicated to the district court its intention to elicit testimony regarding Jackson's refusal to provide exemplars for the trial on the underlying money order alteration charges. On the eve of trial, Jackson filed a motion in limine requesting Judge Sharp to exclude any testimony concerning his prior contempt conviction and refusals to provide exemplars. The motion to exclude this evidence was granted. The trial was stayed by the district court to allow the government to appeal the grant of the motion in limine as it pertains to the exclusion of evidence of Jackson's refusal to provide the court-ordered exemplars. ³

Right to Counsel During Presentence Interview

Jackson challenges the sentencing judge's use of statements he made to a federal probation officer in the course of a presentence interview. Jackson argues that his sixth amendment right to assistance of counsel was violated. ⁴ Consistent with Jackson's assertion, there is no indication in the record before us that Jackson's counsel was informed of the date and time of the interview or that he was present when the interview was conducted.

During this postconviction custodial interview, Jackson told the probation officer that neither his defense counsel nor Judge Sharp advised him that his failure to provide the ordered handwriting exemplars could result in a charge of criminal contempt.

A presentence report was prepared by the probation officer and disclosed to counsel pursuant to the Sentencing Guidelines for United States Courts, sections 6A1.1 and 6A1.2. Sections 6A1.1 and 6A1.2 deal with sentencing procedures. Under these provisions, a probation officer is required (under most circumstances) to prepare a presentence report and the court is required to adopt procedures to provide disclosure of the presentence report to the parties. As the commentary to 6A1.2 discusses, "parties are required to respond to the presentence report and to identify any issues in dispute." In accordance with provisions of the Guidelines, the defendant disputed the section 3E1.1 sentencing factor in the presentence report which concerned whether or not he had accepted responsibility for his criminal conduct. ⁵ The court made a tentative finding that Jackson had not met the requirements of section 3E1.1 for acceptance of responsibility. Thereafter, in accordance with Guidelines section 6A1.3(b) the court gave the defendant an opportunity to submit written objections to the tentative findings. Finally, at sentencing the district judge addressed the defendant's written 3E1.1 objection (and two other objections not raised on appeal).

Judge Lee upheld his tentative findings. He specifically noted Jackson's statement to the probation officer and considered it under the provision of section 3E1.1 which provides that the sentencing court may reduce the offense level by two levels "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility...." In determining if a defendant qualifies for an offense level reduction under section 3E1.1, the commentary indicates that the sentencing judge may consider whether the defendant made a "[v]oluntary and truthful admission to authorities of involvement in the offense and related conduct." [Application Note 1(c) ]. Judge Lee commented that he considered the statement made to the probation officer to be voluntary. Moreover, the judge determined that the recounting of Jackson's statement by the probation officer carried a sufficient indicia of reliability even if it would be inadmissible in other court proceedings. In doing so, Judge Lee relied on section 6A1.3(a) of the Sentencing Guidelines which states,

in resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.

See also 18 U.S.C. Sec. 3661. Based on the transcript of the hearings before Judge Sharp (which clearly indicated that the defendant and his lawyer knew that Jackson's refusal to comply with the court orders would lead to a separate contempt charge), Judge Lee found that Jackson's statement to the probation officer was untrue. Although his statement was voluntary, Jackson had not made a truthful admission regarding his conduct. Judge Lee took the interview statement as evidence that Jackson "had not accepted responsibility" for his acts of contempt. ⁶ As a consequence, the judge declined to invoke section 3E1.1 to reduce the defendant's offense level.

Implicit in Jackson's sixth amendment argument is that the interview with the probation officer constituted a critical stage in the criminal proceedings. Also implicit is that absent the denial of his right to counsel, he would have been informed by his attorney that under the Sentencing Guidelines a judge may reduce the offense level if there...