Baker v. United States

• Decision Date: 08 January 1968
• Docket Number: No. 11241.,11241.
• Parties: Charles Dallas BAKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

388 F.2d 931 (1968)

Charles Dallas BAKER, Appellant, v. UNITED STATES of America, Appellee.

No. 11241.

United States Court of Appeals Fourth Circuit.

Argued May 29, 1967.

Decided January 8, 1968.

John J. Kirby, Jr., Charlottesville, Va. (Court-assigned counsel), for appellant.

Terrell L. Glenn, U. S. Atty. (Marvin L. Smith, Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN, BRYAN and WINTER, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

A motion in 1966 under 28 U.S.C. § 2255 to vacate Charles Dallas Baker's sentence of 14 years imprisonment on his plea of guilty in the District Court in 1963, to armed bank robbery, was denied and he appeals.

His 1966 attack was premised on the trial court's refusal to order disclosure before sentence of the contents of the probation officer's presentence report. The contention was that the report was misleading with respect to Baker's prior behavior, the mistake accounting for a more severe punishment than would have been ordered had the report been accurate. Notwithstanding the obvious care of the sentencing judge in ascertaining condign punishment, we feel the judgment should be vacated to permit Baker, if he can, to erase any such error.

The attack began with the statement of the Court at sentencing:

"They Baker and a codefendant have entered pleas of guilty. However, I can\'t overlook the seriousness of their previous records.

"Now one — and I just as well be specific — Baker, has been successful through his father\'s assistance in never having to do any time. There were serious charges and they were withdrawn simply because his daddy paid it off, which is commendable so far as his father is concerned, but I am afraid it ruined the boy. If he had let him do some time back then, probably he wouldn\'t be here today."

Following his commitment, Baker wrote the judge asserting his innocence of any earlier wrongdoing and denying that anyone had paid anything in order to save him from criminal prosecution. Later, on his behalf an attorney procured partial access to the presentence report, and referring to a list of six criminal charges against him, said to be included in the report, asked Baker for an explanation of each. One of them in substance was that he had been accused of cheating and swindling in 1959¹ in Georgia, and $27,000.00 had been advanced by members of his family over a period of five years to avoid his prosecution. Affidavits were filed with the Court in refutation of this charge and any such repayment. All of this data was tendered to the District Court in support of the § 2255 motion.

Declaring that neither he nor the author of the report had accused Baker of convictions, but only criminal charges and arrests, and that as a matter of law he was under no duty to disclose any portion of the report to Baker, the District Judge denied the motion. Baker asserts, however, that his fear was that the Court thought he would have been convicted but for the aid of family members which he and they now deny.

Although the motion is based upon several alleged mistakes in so much of the report as came to his knowledge, essentially it raises the question of a defendant's right to know before sentence the contents of a report prepared pursuant to F.R.Crim.P. 32(c) (2), which reads as follows:

"(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condi tion and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government." (Accent added.)

By its terms, the rule is permissive as to whether the court discloses all or part of the material contained in the report of presentence investigation. We are mindful that in the district courts in this Circuit there is wide variation in the practice concerning disclosure. In one district disclosure of all is the rule, withholding of part the exception. In other districts, including at least one where disclosure of the report has resulted in improper pressures being visited on confidential informants, with the consequent risk that limitation of the sources of information and effectiveness of the report will ensue, the practice is to treat the presentence report as a confidential document solely for consideration by the court.

It is not now our intention to formulate a prescription of all that should be disclosed to the accused. We outline only the minimum disclosure required under the particular facts of this case and without which there would be an abuse of discretion. Of course, the extent of a fair disclosure may be greater in other circumstances.

Fixed practices aside, we must observe that there is no obligation upon the Court to divulge, or any right in the defendant to see, the entire report at any time. See Williams v. State of Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); F.R.Crim.P. 32 (c) (2), supra. Indeed, there could be danger in delivering it to the defendant or his attorney for scrutiny. It could defeat the object of the report — to acquaint the court with the defendant's background as a sentencing guide — by drying up the source of such information. See United States v. Fischer, 381 F.2d 509 (2 Cir. July 24, 1967). To illustrate, the probation officer could be deprived of the confidence of trustworthy and logical informants — persons close to the accused — if they knew they could be confronted by the defendant with their statements. The investigation would then amount to no more than a repetition of the public records — so limited a function as to obviate the need of a probation officer.

Admittedly there are items in the report of which the defendant is rightfully entitled to be advised. The sentencing court should apprise him, orally from the bench, of at least such pivotal matters of public record as the convictions and charges of crime, with date and place, attributed to him in the report. As this may be done without handing the defendant or counsel the report, the procedure could not lead to a destruction of the probation officer's sources of information.

The defendant should then be given an opportunity to refute or explain any record disparagement of his earlier deportment. Indeed, this is vital in any consideration of the report. In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) the pronouncement of sentence on information extensively and materially false, where a defendant is not afforded an opportunity to correct or controvert the erroneous basis of punishment, was held to render the proceedings lacking in due process. Of course, if the adequacy of the disclosure is doubted, an appeal on the question can be accomplished by sealing the report and certifying it as a part of the record, to be revealed only to the appeals court. Afterwards, re-sealed it would be returned to the trial judge for his confidential custody.

No conviction or criminal charge should be included in the report, or considered by the court, unless referable to an official record. Of course, the defendant's general conduct and behavior, as well as his reputation in the community in regard to honesty, rectitude and fulfillment of his civic and domestic responsibilities, may be treated in the report. Whether any of such commentary should be released will remain in the discretion of the District Judge. Names of informants, as well as intimate observations readily traceable by the defendant, ordinarily should be withheld lest, to repeat, disclosure cut off the investigator from access to knowledge highly valuable to the sentencing court. It is to be expected of the judge, however, that he winnow substance from gossip.

It is Baker's contention that Townsend v. Burke, supra, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) and Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) compel disclosure of the report here. Townsend found due process lacking when the sentencing judge plainly relied upon a materially false compilation of the criminal...