U.S. v. Curran

• Decision Date: 01 August 1990
• Docket Number: No. 90-1181,90-1181
• Citation: 926 F.2d 59
• Parties: UNITED STATES of America, Appellee, v. Walter F. CURRAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 59

926 F.2d 59

59 USLW 2531

UNITED STATES of America, Appellee, v. Walter F. CURRAN, Defendant, Appellant.

No. 90-1181.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1990.

Decided Feb. 14, 1991.

Robert J. Cordy, with whom Burns & Levinson, Boston, Mass., was on brief for defendant, appellant.

Peter A. Mullin, Asst. U.S. Atty., Washington, D.C., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for appellee.

Before TORRUELLA and CYR, Circuit Judges, and RE, ^* Judge.

AMENDED OPINION

TORRUELLA, Circuit Judge.

Walter Curran appeals his sentence of five years incarceration, five years probation and order to pay $2.3 million in restitution for violations of 18 U.S.C. Secs. 1341, 1342 and 1344. For reasons stated below, we vacate the sentence and remand for further proceedings consistent with this opinion.

FACTS

Curran, a stockbroker at the time, was indicted in the United States District Court for the District of Massachusetts for being involved in several schemes to defraud clients and friends. The indictment alleged that Curran mailed, or caused to be mailed, certain specified statements, checks, letters, agreements and other documents on particular dates "for the purpose of executing and attempting to execute" schemes and artifices to defraud in violation of 18 U.S.C. Secs. 1341, 1342 and 1344.

Curran was also indicted in the United States District Court for the Northern District of New York on two counts charging him with willfully failing to report the importation from Canada into the United States of more than $10,000 in United States currency, in violation of 31 U.S.C. Secs. 5316 and 5322, and with willfully making a false statement to a United States Customs Service officer, in violation of 18 U.S.C. Sec. 1001.

A plea agreement negotiated by the parties provided that Curran would plead guilty to a thirteen count indictment. On November 20, 1989, Curran pled guilty as agreed, and a presentence report was prepared. This report included a "victim impact" section, which contained statements provided by four of the victims. Curran took strong exception to this "victim impact" section.

Prior to sentencing, the district judge received numerous letters about the case from third parties, including letters from Curran's wife, family members and the victims. These letters were not made part of the presentence report, nor were their contents disclosed to appellant or his attorney. They were, however, delivered by the judge to the probation officer, at some point unbeknownst to appellant or his attorney. On February 5, 1990, the district court imposed a heavier sentence than was recommended by the government. During the sentencing procedure, and in reference to the letters, the court stated:

I just want to make reference to a letter from ... one [sic] of the victims. They urged me, and I quote, "We beg the Court to impose the strongest, severest of penalties that the law provides on Mr. Curran ...--we ask this in order that Mr. Curran never again be in a position of trust or honor where he can use his employment and personal status to rape decent human beings from that which they have honestly earned ...

On appeal, Curran contends that the court relied on information that neither he nor his counsel had a meaningful opportunity to examine or object to, and that this violated both Rule 32 of the Federal Rules of Criminal Procedure and the Due Process Clause of the Constitution. The government avers that Curran was aware of the information contained in said letters, which was virtually identical to the information contained in the "victim impact" report, and thus was able to contradict it.

DISCUSSION

I. Due Process and Rule 32

Generally, "a district judge has discretion to consider a wide range of information concerning a defendant's background in arriving at an appropriate sentence." United States v. Romano, 825 F.2d 725, 728 (2d Cir.1987); see also United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). A district court has broad discretion in the information it may receive and consider regarding defendant and his conduct. 18 U.S.C. Sec. 3577; United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615-16, 57 L.Ed.2d 582 (1978); United States v. Tucker, 404 U.S. at 446, 92 S.Ct. at 591; United States v. Santamaria, 788 F.2d 824 (1st Cir.1986); United States v. Tracey, 675 F.2d 433 (1st Cir.1972).

It is well settled, however, that a defendant has a due process right to be sentenced upon information which is not false or materially incorrect. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Tucker, 404 U.S. at 446, 92 S.Ct. at 591; United States v. Espinoza, 481 F.2d 553, 555 (5th Cir.1978); United States v. Harris, 558 F.2d 366 (7th Cir.1977); United States v. Malcolm, 432 F.2d 809 (2d Cir.1970). ¹ By contrast, it is less clear that due process compels an opportunity to inspect or challenge the information to be relied upon by the sentencing court. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1941) (holding that the court could consider extra-record material when sentencing defendant); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); United States v. Morin, 889 F.2d 328 (1st Cir.1989); Powers v. United States, 325 F.2d 666, 667 & n. 4 (1st Cir.1959); 8A Moore's Federal Practice p 32.03, at 32-64 (2d ed. 1988); see also Fed.R.Crim.P. 32, advisory committee notes.

Rule 32, Fed.R.Crim.P. 32(c)(3)(A) ², embodies the congressional intent to assure a defendant's due process rights in the sentencing process. United States v. Romano, 825 F.2d at 728. This rule essentially requires both disclosure of the presentence report to the defendant and an opportunity for the defendant to contest the accuracy of the information contained therein. Rule 32 does not itself apply in this situation because the letter referenced by the district court in the sentencing hearing was not made part of the presentence report.

Extension of the disclosures provided by this rule is clearly a matter of congressional policy. See discussion in Moore Sec. 32.03. Although courts have determined that a defendant and defendant's counsel should be given an "opportunity to review a presentence report and provide comments to ensure that the 'report [is] completely accurate in every material respect,' " United States v. Romano, 825 F.2d at 728 (citing H.R.Rep. No. 247, 94th Cong., 1st Sess. 18, reprinted in, 1975 U.S.Code Cong. & Admin.News 674, 690), there is no judicial precedent which holds that the Due Process Clause requires disclosure of all information relied upon by the sentencing court. Indeed, any such precedent would appear to be irreconcilable with Rule 32(c)(3), which deals first and foremost with authorized instances of nondisclosure of presentence report information relied on by the district court in sentencing.

After comparing the victim's contentions included in the impact report vis-a-vis the letters sent to the district court, we agree with appelalnt that there are statements of fact contained in those letters which were not included in the "victim impact" report; relevant statements which appellant did not have an opportunity to contradict. ³ However broad the district court's discretion may be in determining the appropriate procedure for availing the defendant an opportunity to challenge information in a presentence report, "some process was due by which [defendant] could challenge the accuracy of presentence information presented to the district court." United States v. Romano, 825 F.2d at 729 (citing United States v. Fatico, 579 F.2d 707, 711-14 (2d Cir.1978)). Thus, we believe that these proceedings present an appropriate occasion for the exercise of our supervisory powers.

II. Supervisory Powers

Title 28, United States Code, section 2106, provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

It is well established that not every trial error or infirmity which might call for the application of supervisory powers constitutes a "failure to observe that fundamental fairness essential to the very concept of justice." Instead, our obligation requires us to "oversee the efficient administration of justice." Thigpen v. Smith, 792 F.2d 1507, 1516 (11th Cir.1986); United States v. Cortina, 630 F.2d 1207 (7th Cir.1980).

In exercising their supervisory powers, federal courts, "guided by considerations of justice," McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1956), may "formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1982); see also United States v. Perez, 904 F.2d 142, 148 (2d Cir.1990). These powers, nevertheless, are to be used "sparingly," United States v. Babb, 807 F.2d 272, 279 (1st Cir.1986) (quoting United States v. Lieberman, 608 F.2d 889 (1st Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980)), and may not be mustered to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal Procedure 52(a), Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); see also United States v. Pacheco-Ortiz, 889 F.2d 301, 310 (1st Cir.1989) (declining to exercise supervisory power to overturn conviction which was in no way a product of any harmful prosecutorial misconduct which would warrant new trial).

Rule 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be...