U.S. v. Atkin, 93-3196
| Decision Date | 07 July 1994 |
| Docket Number | No. 93-3196,93-3196 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mark ATKIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, IN (argued), for plaintiff-appellee.
Fred R. Hains, South Bend, IN (argued), for defendant-appellant.
Before ESCHBACH, EASTERBROOK, and RIPPLE, Circuit Judges.
Testifying before a grand jury, Mark Atkin denied that he had ever seen Paul Rockholt possess or use methamphetamine. A jury convicted Atkin of perjury, which under the Sentencing Guidelines has a base offense level of 12, enhanced by three if the lie caused "the unnecessary expenditure of substantial governmental or court resources." U.S.S.G. Sec. 2J1.3(b)(2) comment 1. A prosecutor told the probation officer who prepared the presentence report that Atkin's misstatements caused the grand jury to summon five additional witnesses, from as far away as Texas. The judge concluded that putting on these additional witnesses, needed to establish Rockholt's criminal activities, produced an "unnecessary expenditure of substantial governmental or court resources." He sentenced Atkin to 24 months' imprisonment, the highest sentence in the range for level 15 and criminal history I. Atkin contends that uncorroborated hearsay may not be the basis for sentencing under the guidelines.
The prosecutor's statement, relayed through the probation officer, was indeed hearsay. But the Rules of Evidence do not apply to sentencing, Fed.R.Evid. 1101(d)(3), where hearsay is a staple. Nichols v. United States, --- U.S. ----, ---- - ----, 114 S.Ct. 1921, 1927-28, 128 L.Ed.2d 745 (1994). Judges must ensure that the hearsay they use is reliable (just as they must ensure that the live testimony on which they base their decisions is reliable), and corroboration is a step toward, but no guarantee of, reliability. Sometimes the corroboration is illusory; sometimes hearsay is rock solid without corroboration. Our review of the district judge's assessment is deferential, United States v. Corbin, 998 F.2d 1377, 1385-86 (7th Cir.1993); United States v. Campbell, 985 F.2d 341, 348 (7th Cir.1993), and we have never held that corroboration is essential in sentencing. The whole history of sentencing cuts the other way; until recently judges relied on intuition and hunch, a process sustained by the Supreme Court. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). See also United States v. Masters, 978 F.2d 281, 286-87 (7th Cir.1992).
The transcripts of the grand jury, which show witnesses testifying after Atkin, supply documentary support for the prosecutor's claims. The prosecutor could have provided the probation officer with travel vouchers and other physical evidence of the witnesses' movements and toted up the cost to the government. Although such documents would have quantified the costs, they would not have established causation. Neither the transcripts of the grand jury nor the travel documents show that these witnesses were called because of Atkin's lies. Maybe they would have been called anyway. The prosecutor has substantial discretion over such matters, and the best way to explore causation is to take a tour through his thought processes. The prosecutor offered a monologue to the probation officer, and the district judge was sufficiently impressed by the reputation for veracity maintained by the United States Attorney's office to credit it. Relying on an institutional reputation--one whose loss would cost the prosecutor dearly--as compared with facial twitches and other means of assessing credibility, cannot be thought irrational.
Atkin believes that this procedure left him defenseless. How so? True, he didn't have a chance if he let the presentence report pass without challenge. But he was entitled to put on evidence of his own. What better source of evidence than the prosecutor and the case agents? (Rockholt was under investigation for both drug and tax offenses, so there would have been...
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