U.S. v. Dace, s. 73-1689

• Citation: 502 F.2d 897
• Decision Date: 26 September 1974
• Docket Number: 73-1763,Nos. 73-1689,s. 73-1689
• Parties: UNITED STATES of America, Appellee, v. Edward Eugene DACE, Appellant. UNITED STATES of America, Appellee, v. Vernon Henry SCHNEIDER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 897

502 F.2d 897

UNITED STATES of America, Appellee, v. Edward Eugene DACE, Appellant.

UNITED STATES of America, Appellee, v. Vernon Henry SCHNEIDER, Appellant.

Nos. 73-1689, 73-1763.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 16, 1974.

Decided June 10, 1974, Rehearings and Rehearings En Banc

Denied Sept. 26,1974.

Donald L. Wolff, Clayton, Mo., for appellant.

Irl B. Baris, St. Louis, Mo., for appellant, Schneider.

Terry I. Adelman, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

These appeals challenge the consecutive sentences imposed on mail fraud charges, and the refusal of the district court to permit appellants to examine presentence investigation reports. We affirm.

Appellants were charged in a 26-count indictment with devising a fraudulent insurance claim scheme to obtain money from the Hartford Insurance Group and using the mails in execution thereof in violation of Title 18 U.S.C. 1341.

Appellant Dace pled guilty to three counts out of twenty-four counts in which he was named as a defendant. He was sentenced to five years' imprisonment on each of two counts to run consecutively (total of ten years) and five years' probation to follow. Appellant Schneider pled guilty to three counts out of seven in which he was named defendant and received a like sentence.

After commencing the service of their respective sentences, each of the appellants filed a motion for reduction of sentence which was denied

Severity of Sentences

Appellants charge that the district court abused its discretion in sentencing defendants to the maximum period of confinement on each of two counts, to be served consecutively, followed by a five-year probation period on a third count.

In Woosley v. United States, 478 F.2d 139 (CA 8 1973), this court sitting en banc reversed a sentence as excessive, stating at 147 as follows:

We hold that we possess the power to review the severity of a criminal sentence within narrow limits where the court has manifestly or grossly abused its discretion. This is such a case. The severity of the sentence shocks the judicial conscience. ¹

Appellants contend that under the circumstances of this case the sentence itself was a manifest or gross abuse of discretion. They argue that under current standards consecutive sentences should only be used where it is necessary to protect the public from further criminal conduct by the defendant, and no such showing was here made. See, American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures, Approved Draft, 1968, at 171-81. They also point out that their participation in this illegal scheme was minor when compared to that of one Paul Martin who pled guilty to two counts in a similar case and was sentenced to one year imprisonment and a $1,000 fine by the same judge.

We recognize that in the general vernacular the sentences imposed may properly be characterized as heavy. The defendants will be required to serve a minimum of three and a third years before they will be eligible for parole. However, we are not prepared to say that the court has manifestly or grossly abused its discretion.

The government points out in its brief that we deal with a sophisticated and well-planned scheme to defraud the victim company of substantial amounts of money. It involved numerous false claims, including many with which defendants were not charged in the 26-count indictment. They pled guilty to three counts for which they could have been sentenced to fifteen years' imprisonment. There is no question but what the defendants fully understood their maximum exposure in entering their pleas to three counts. Defendant Dace in his motion for reduction of sentence recited that prior to entering his plea the government advised that it would seek permission from the court to withdraw all but one or two counts, but that defendant was advised said permission was not granted and, instead, all counts but three would be dismissed.

The government also points out in its brief that there may have been reasons for the lighter sentence received by Paul Martin. He cooperated fully with the government from the very beginning and consented to be a witness against all potential defendants in this widespread scheme.

We do not here list the many factors which could properly be considered by the court in fixing sentence. We merely point out that there were many matters to be weighed. Violations of the mail fraud statute cover such a broad range of offenses that comparison of sentences is not particularly helpful.

The record fails to demonstrate a gross abuse of discretion by the trial court in fixing the sentences imposed.

Presentence Investigation Reports

Appellants charge that the district court abused its discretion in refusing to grant them permission to examine their presentence reports prior to sentencing, and in connection with their motions for reduction of sentence. They contend that the court erred in routinely denying access to the presentence reports, ² and, particularly in this case, where a heavy sentence was imposed. They argue that in view of the severe sentences imposed it is reasonable to conclude that there must have been derogatory information in the presentence investigation reports.

Rule 32(c)(2) of the Federal Rules of Criminal Procedure is permissive in nature. It permits but does not require that all or part of the material contained in the report be disclosed to the defendant or his counsel. We have consistently held that the matter of disclosure is within the discretion of the trial court. United States v. Schrenzel, 462 F.2d 765, 775 (CA 8 1972) (rehearing en banc denied); United States v. MacLeod, 436 F.2d 947, 950 (CA 8 1971); United States v. Gross, 416 F.2d 1205, 1214 (CA 8 1969).

Proposed amendments to the Federal Rules of Criminal Procedure to take effect July 1, 1974, were transmitted by the Supreme Court to the Congress April 22, 1974. 15 Crim.L.Rep. 3007, April 24, 1974. They require that the court upon request shall permit the defendant or his counsel to read the presentence report and afford comment with respect thereto, or under certain circumstances, in lieu thereof, the court must state orally or in writing a summary of the factual information contained therein relied on in determining sentence and give the defendant or his counsel an opportunity to comment thereon. ³ However, since these amendments have not as yet been adopted we adhere to the discretionary rule still in existence. Compare, United States v. Tompkins, 487 F.2d 146, 150 (CA 8 1973).

Subsequent to submission of this cause, we directed that this court be furnished copies of the presentence reports. Examination thereof would permit us to determine whether they possibly contained material misinformation or unverified derogatory hearsay which might have influenced the court in imposing sentence. See, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947).

The presentence reports describe the pervasive scheme to defraud in which appellants were involved. This description is consistent with the scheme described in the indictment to which appellants pled guilty. The reports do state that '* * * Postal Inspectors have indicated there are many more fraudulent claims in which they feel Dace and Schneider were involved.' This, of course, was not established and is merely an opinion, and would be recognized as such by a sentencing judge. However, we do note that the government made the same allegation in its brief filed in this court to which no exception was taken by appellants by way of reply. Similarly, appellant Schneider at the time of sentencing and in his brief before this court points out that he made full restitution on the claims in the counts to which he pled guilty. As previously indicated, postal authorities and the government in its brief believe there are many more fraudulent claims in which appellants were involved. The presentence reports point out that because of the number of people involved in the scheme it is almost impossible to determine the amount of money that appellants actually profited from the scheme. It is stated that the victim company paid out over $50,000 on at least forty known fraudulent claims between December 1967 and July 1971.

The proposed amendments to Rule 32, Fed.R.Crim.P., recognize (and will require if adopted) that it is the better practice to disclose the contents of the presentence report to the defendant or his counsel, or under certain circumstances, in lieu thereof, state the factual information relied on in determining sentence and afford defendant or his counsel an opportunity to comment thereon. Here we must decide only whether the trial court abused its discretion in failing to disclose the reports.

After reviewing the record, we are satisfied that the presentence reports do not contain material misinformation or unverified derogatory hearsay of such a nature that it can be said the trial court abused its discretion in not revealing the same to appellants before imposing sentence.

Affirmed.

LAY, Circuit Judge (dissenting).

Today we uphold obviously abusive and punitive criminal sanctions. The sentences approved by this court shock the human conscience and by legal standards stun the judicial conscience as well. But perhaps more relevant here, they were imposed illegally.

Disclosure of the Presentence Reports

Without bothering to give any reason for the harsh penalties or to reveal to defendants or their counsel the contents of their presentence reports, the district court imposed five-year maximum sentences, to be served consecutively, on these first offenders. There exists no possible reason for such severe punishment other than the district court's reliance on uncorroborated hearsay contained within the presentence reports. The defendants pled guilty...