U.S. v. Molina
| Decision Date | 20 January 2004 |
| Docket Number | Docket No. 02-1742. |
| Parties | UNITED STATES of America, Appellee, v. Teddy MOLINA, also known as Samuel Molina, also known as Teddy Samuel Molina, Defendant-Appellant, Jose Cireno, also known as James Ortiz, Irvin Aviles Manso, also known as Irvin Aviles and Carlos Belez, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Northern District of New York, McAvoy, J.
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Robert G. Wells, Syracuse, New York, submitted a brief for Defendant-Appellant.
Richard R. Southwick, Assistant United States Attorney, Syracuse, New York (Glenn T. Suddaby, United States Attorney, Northern District of New York, Syracuse, New York, of counsel), submitted a brief for Appellee.
Before: CARDAMONE, JACOBS, and POOLER, Circuit Judges.
Teddy Molina (defendant or appellant) appeals from a judgment of conviction and sentence entered November 26, 2002 in the United States District Court for the Northern District of New York (Munson, J.), following his guilty plea to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000). Molina pled guilty before District Judge Thomas J. McAvoy. Sentencing was referred to District Judge Howard G. Munson, who conducted the sentencing hearing.
This appeal presents us with a sentencing record that we believe contains error. The error is not a reasoned error by the district court, but an error of omission. It is not uncommon when reviewing a record on appeal to be confronted with an error not so substantial as to require reversal, and yet not so insignificant that it may in justice be ignored. Such is the circumstance of this case, and the reason why we write.
In the early morning hours of August 1, 2001 in Syracuse, New York, Teddy Molina with three other men — José Cireno, Carlos Belez, and Irvin Aviles Manso — were apprehended by Syracuse police after a citizen reported that they had been observed crouching in some shrubbery at a house on Seymour Street. When the police arrived, Molina and his cohorts fled, pursued by the police on foot. All four were quickly captured. But during the chase, the men dropped firearms that were later recovered by the police. In all, four firearms were found, including a sawed-off shotgun and three pistols, one of which had an obliterated serial number.
Subsequently, it turned out that Molina and the other three men were planning an armed robbery of an individual they believed was a drug dealer who had drugs and money in his Seymour Street home. On August 15, 2001 a federal grand jury handed down a four-count indictment charging all four participants with weapons charges, as follows: receiving stolen firearms (Count 1); selling defaced firearms (Count 2); unlawfully transporting firearms (Count 3); and possession of a firearm as a prohibited person (convicted felon) (Count 4). Teddy Molina pled guilty to Count 4, charging him with possession of firearms as a prohibited person in violation of § 922(g)(1).
His plea, pursuant to a plea agreement, satisfied his criminal liability under the indictment and left open the question of whether an aggravating role adjustment should be applied for his role in the offense. Molina's presentence investigation report (PSR) recommended a two-level enhancement for his role as manager or organizer under the U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3B1.1(c). Before the sentencing hearing and to prepare for that hearing, defendant's counsel asked the district court that he be provided with the presentence reports and criminal histories of Molina's three co-defendants. The district court did not rule on this motion prior to holding Molina's sentencing hearing.
On September 23, 2002 the sentencing hearing was held on the proposed two-level enhancement for Molina being an organizer. The government called one of his co-defendants, José Luis Cireno, as a witness. Cireno testified with respect to Molina's role in organizing the crime, including the facts that Molina suggested the crime, provided each co-defendant with a firearm, brought tape to the purported crime scene to tie-up the intended victim, and brought walkie-talkies for communication. Defense counsel cross-examined Cireno, but called no witnesses.
Several weeks later the district court denied by memorandum and order dated October 7, 2002 Molina's motion for disclosure of his co-defendants' PSRs. It ruled that neither the Jencks Act, 18 U.S.C. § 3500 (2000), nor our ruling in United States v. Charmer Industries, Inc., 711 F.2d 1164 (2d Cir.1983), supported Molina's request for co-defendants' presentence reports. Judge Munson noted that he had reviewed in camera co-defendant Cireno's presentence report and found that it contained no exculpatory or impeachment material. The district court ruled that since the other two co-defendants were not called to testify, defendant's request for their PSRs was moot.
On October 17, 2002 the district court granted the two-level sentence enhancement the government had requested, raising Molina's total offense level to 26, for which he was sentenced to 80 months in prison, three years of supervised release, and a $100 special assessment. This appeal followed.
On appeal, Molina contends the district judge erred by failing to conduct an in camera review of two of his co-defendants' presentence reports to determine whether they contained exculpatory and/or impeachment material that appellant could present at his sentencing hearing; and, additionally erred in imposing a two-level enhancement for appellant's role in the offense pursuant to U.S.S.G. § 3B1.1(c) without making sufficient factual findings. We discuss each contention in turn.
To keep our analysis in context, we take a brief look at how presentence reports evolved. The present day presentence report traces its ancestry back to the Federal Probation Act of 1925, Pub.L. No. 596, ch. 521, § 4, 43 Stat. 1259, 1260-61 (repealed in 1984), establishing probation offices to supervise offenders placed on probation. Trial judges began to use probation officers as a source of informal information regarding offenders. This informal approach was standardized in 1946 by Federal Rule of Criminal Procedure 32(c)(1). The presentence report thereafter became "the single most important document at sentencing" and during defendant's imprisonment. Stephen A. Fennell & William N. Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv. L.Rev. 1615, 1623 (1980).
Focus turns to Federal Rule of Criminal Procedure 32, particularly Rule 32(c), which for the first time required the probation department to prepare a report on each defendant. Subdivision (d)(2) of Rule 32 sets out the information that a presentence report should contain. Insofar as pertinent here, it includes
(i) any prior criminal record;
(ii) the defendant's financial condition; and
(iii) any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment;
. . . .
(F) any other information that the court requires.
Subdivision (e) discusses the disclosure of the report and the probation officer's recommendation. It states: "Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty." Fed.R.Crim.P. 32(e)(1).
Thus, presentence investigation reports, created by the probation office, function primarily to assist the court in determining an appropriate sentence. For that reason they are generally viewed as confidential so as not to impede the free flow of information needed to assist the sentencing judge. See Charmer, 711 F.2d at 1171, 1173. But the confidentiality of presentence reports has not been considered absolute because of due process concerns that a court not impose an unjust sentence based on materially false information obtained from others besides the defendant. Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
With this background in mind, we turn to the question before us: defendant's request to have an examination of his co-defendants' PSRs. With respect to third party disclosures, we have approved a procedure by which the sentencing court examines requested presentence reports in camera for exculpatory or impeachment material that might aid the defendant requesting it. The court then determines if the policy of confidentiality is outweighed by a compelling need for disclosure to meet the ends of justice. See Charmer, 711 F.2d at 1175; United States v. Moore, 949 F.2d 68, 72 (2d Cir.1991). Here, it is undisputed that the district court examined the presentence report of the witness, Cireno. The question before us therefore is whether the district court erred in not following the same procedure with the two additional non-testifying co-defendants. This issue is a question of first impression.
To begin, we set out our standard of review. Ordinarily, a district court's decision as to disclosure of a presentence investigation report is reviewed for an abuse of discretion. United States v. Pena, 227 F.3d 23, 27 (2d Cir.2000). In the instant case, however, the sentencing court ruled that the motion for disclosure was moot as to the two non-testifying defendants. Because that ruling was one of law, and not an exercise of discretion, we review it de novo. See Catanzano...
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