U.S. v. Schlette, Nos. 87-1106

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore ANDERSON, NOONAN and THOMPSON; DAVID R. THOMPSON
Citation842 F.2d 1574
Decision Date23 May 1988
Docket Number87-7430 and 87-7436,Nos. 87-1106,87-1155
Parties, 56 USLW 2630, 15 Media L. Rep. 1305 UNITED STATES of America, Plaintiff-Appellee, v. Malcolm R. SCHLETTE, Defendant, Estate of William O. Weissich, Petitioner-Appellant, Marin Independent Journal, Applicant-Appellant. ESTATE OF William O. WEISSICH, Petitioner, Marin Independent Journal, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest.

Page 1574

842 F.2d 1574
91 A.L.R.Fed. 793, 56 USLW 2630, 15
Media L. Rep. 1305
UNITED STATES of America, Plaintiff-Appellee,
v.
Malcolm R. SCHLETTE, Defendant,
Estate of William O. Weissich, Petitioner-Appellant,
Marin Independent Journal, Applicant-Appellant.
ESTATE OF William O. WEISSICH, Petitioner,
Marin Independent Journal, Petitioner,
v.
UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF
CALIFORNIA, Respondent,
United States of America, Real Party in Interest.
Nos. 87-1106, 87-1155, 87-7430 and 87-7436.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 15, 1988.
Decided March 31, 1988.
As Amended May 23, 1988.

Page 1575

Mark L. Musto, Goldstein & Phillips, San Francisco, Cal., for Estate of William O. Weissich.

Judith R. Epstein, Crosby, Heafey, Roach & May, Oakland, Cal., for Marin Independent Journal.

William T. McGivern, Jr., Chief Asst. U.S. Atty., N.D. Cal., for plaintiff-respondent-appellee.

Appeal from the United States District Court for the Northern District of California, and on Petitions for Writ of Mandamus.

Before ANDERSON, NOONAN and THOMPSON, Circuit Judges.

Page 1576

DAVID R. THOMPSON, Circuit Judge:

Malcolm R. Schlette pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C.App. Sec. 1202(a)(1) (repealed 1986), and was placed on probation. While on probation, he walked into William O. Weissich's law office and shot him dead. Later that same day, Schlette committed suicide to avoid imminent capture by the police. This sad and unfortunate murder-suicide might have received only moderate publicity but for the circumstance that Weissich, the former Marin County District Attorney, had successfully prosecuted Schlette for arson in 1955. From the time Schlette was incarcerated until his death, he never forgave Weissich for having obtained his conviction. He vowed to kill Weissich, a vow he kept in 1986.

The Weissich murder became an immediate cause celebre. The Estate of William O. Weissich (the "estate") and the Marin Independent Journal (the "newspaper") applied to the district court for release of Schlette's presentence investigation report, which had been prepared when Schlette was placed on probation for the firearm offense. The estate and the newspaper also sought release of a psychiatric report and a postsentence probation report. The estate argued that it required access to these documents to determine whether the court's probation service knew that Schlette posed a threat to Weissich and should have warned Weissich of a danger to his life. The newspaper stated that its interest was in learning what information the district court had available to it when it placed Schlette on probation. These requests were made under Federal Rule of Criminal Procedure 32(c) and the Freedom of Information Act, 5 U.S.C. Sec. 552 ("FOIA"). The newspaper also asserted a first amendment right of access to the documents.

The government opposed disclosure. It argued the documents are confidential court records and should not be released without a showing of compelling need for disclosure, a need it contended was lacking. The district court refused to order disclosure. It concluded that the documents are confidential and neither the estate nor the newspaper had shown a compelling need for disclosure. The district court did not consider the newspaper's first amendment argument in favor of access to the documents. The FOIA requests were rejected on the ground that the documents were court records and therefore not subject to the FOIA.

The estate and the newspaper each appealed the district court's order denying release of the documents. On our own motion, we consolidated the appeals and ordered the appellants to show cause why the appeals should not be dismissed for lack of standing under United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982). The estate and the newspaper then filed petitions seeking a writ of mandamus ordering the district court to release the sought-after documents.

I
JURISDICTION

Under our decision in United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982), third parties who have been denied access to proceedings in which they were not parties in the district court do not have standing to appeal. Id. at 1165 (citing United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir.1978)). Because neither the estate nor the newspaper was a party to Schlette's underlying criminal proceeding, neither has standing to appeal from the district court's order denying access to the requested documents. Id. Therefore, the appeals of the estate and the newspaper are dismissed. We agree with the estate and the newspaper, however, that they have standing to seek review of the district court's order by petition for a writ of mandamus. Id. We now consider these petitions.

II
STANDARD OF REVIEW

It is the general rule that a district court's decision whether to release a presentence

Page 1577

report is reviewed for an abuse of discretion. United States v. Charmer Indus., Inc., 711 F.2d 1164, 1177 (2d Cir.1983); United States v. Walker, 491 F.2d 236, 238 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974). The unstated rationale for this rule seems to be "[e]very court has supervisory power over its own records and files." See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). Thus, because the presentence report and related documents are court records, the disclosure of which to third parties is not expressly provided for by any statute, control of these documents rests within the discretion of the district court. Cf. Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289, 1294 (9th Cir.1986) ("We review a district court's denial of access to its records for abuse of discretion."); U.S. Indus., Inc. v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.) ("In the absence of an absolute prohibition against disclosure [of confidential grand jury documents], an exercise of judicial discretion is manifestly required."), cert. denied, 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965).

A court abuses its discretion when its "decision is based on an erroneous conclusion of law or when the record contains no evidence on which [it] rationally could have based that decision." Hill v. United States Immigration & Naturalization Serv. (In re Hill), 775 F.2d 1037, 1040 (9th Cir.1985). Under this deferential standard of review, this court does not substitute its judgment for that of the district court. Barona Group of the Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc., 824 F.2d 710, 724 (9th Cir.1987). Rather, we will reverse only if we have "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Id.; see also United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir.1987) (abuse of discretion means court failed to consider significant factor, or "an irrelevant or improper factor is considered and given significant weight," or it commits clear error of judgment in weighing all proper factors). It also is our rule that mandamus lies to correct an abuse of discretion. Goldblum v. National Broadcasting Corp., 584 F.2d 904, 906 n. 2 (9th Cir.1978) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)).

III
ANALYSIS

A. Basis for Disclosure of Presentence Reports

1. Disclosure Under Rule 32(c)

Federal Rule of Criminal Procedure 32(c) deals with the preparation, contents and disclosure of presentence investigation reports. See Julian v. United States Dep't of Justice, 806 F.2d 1411, 1414-15 (9th Cir.1986), cert. granted, --- U.S. ----, 107 S.Ct. 3209, 96 L.Ed.2d 695 (1987). The probation service of the district court prepares the report, which includes information about the defendant's history, prior criminal record, financial condition, and circumstances affecting his behavior. Fed.R.Crim.P. 32(c)(2)(A). The report also contains a classification of the offense charged and of the defendant under the Sentencing Commission guidelines, 28 U.S.C. Sec. 994(a), see Fed.R.Crim.P. 32(c)(2)(B), as well as a statement about the impact of the charged crime on the victim. Fed.R.Crim.P. 32(c)(2)(D).

Rule 32(c) requires the district court to release the presentence report to the defendant and his counsel at a reasonable time before the sentencing hearing. Fed.R.Crim.P. 32(c)(3)(A). The defendant, however, is not entitled to see "any final recommendation as to sentence" contained in the report. Id. The court also may withhold from the defendant or his counsel those portions of the report "that in the opinion of the court contain[ ] diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm,

Page 1578

physical or otherwise, to the defendant or other persons." Id. If the district court concludes there is information in the report which should not be disclosed under Rule 32(c)(3)(A), "the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant and the defendant's counsel an opportunity to comment thereon." Fed.R.Crim.P. 32(c)(3)(B). The report is to be returned to the probation officer after the sentencing hearing, unless the court in its discretion otherwise directs. Fed.R.Crim.P. 32(c)(3)(E).

The presentence report not only assists the district court in sentencing a defendant. Julian, 806 F.2d at 1415. The report also is used by the Bureau of Prisons and the Parole Commission in assessing the prisoner for purposes of incarceration, treatment and, eventually, release. Id. Given the...

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  • U.S. v. Lexin, No. C 06 CR 0043 BEN.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 22, 2006
    ...they, or portions of them, are placed on the court record or authorized for disclosure to serve the ends of justice. U.S. v. Schlette, 842 F.2d 1574, 1579 (9th Cir.1988), citing U.S. v. McKnight, 771 F.2d 388, 390 (8th Cir.1985) cert. denied 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (19......
  • In re Boston Herald, Inc., No. 02-2340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 25, 2003
    ...right of access to presentence reports. See United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995); United States v. Schlette, 842 F.2d 1574, 1579-81 (9th Of all the ills associated with the disclosure of presentence reports, only the defendant's interest in privacy is implicated by the ......
  • Swickard v. Wayne County Medical Examiner, Docket No. 89602
    • United States
    • Supreme Court of Michigan
    • September 19, 1991
    ...532 F.Supp. 216, 227 (S.D.N.Y.1981); Rabbitt v. Dep't of the Air Force, 383 F.Supp. 1065, 1070 (S.D.N.Y.1974); United States v. Schlette, 842 F.2d 1574, 1581 (C.A.9, 14 The dissent cites Marzen v. Dep't of Health & Human Services, 825 F.2d 1148 (C.A.7, 1987), to support its position that th......
  • People v. Connor, No. H024743
    • United States
    • California Court of Appeals
    • February 6, 2004
    ...(See United States Dept. of Justice v. Julian (1988) 486 U.S. 1, 9, 108 S.Ct. 1606, 100 L.Ed.2d 1; U.S. v. Schlette (9th Cir.1988) 842 F.2d 1574, Although the Rule has always been silent concerning disclosure to third parties, federal courts have been "very reluctant to give third parties a......
  • Request a trial to view additional results
73 cases
  • U.S. v. Lexin, No. C 06 CR 0043 BEN.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 22, 2006
    ...they, or portions of them, are placed on the court record or authorized for disclosure to serve the ends of justice. U.S. v. Schlette, 842 F.2d 1574, 1579 (9th Cir.1988), citing U.S. v. McKnight, 771 F.2d 388, 390 (8th Cir.1985) cert. denied 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (19......
  • In re Boston Herald, Inc., No. 02-2340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 25, 2003
    ...right of access to presentence reports. See United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.1995); United States v. Schlette, 842 F.2d 1574, 1579-81 (9th Of all the ills associated with the disclosure of presentence reports, only the defendant's interest in privacy is implicated by the ......
  • Swickard v. Wayne County Medical Examiner, Docket No. 89602
    • United States
    • Supreme Court of Michigan
    • September 19, 1991
    ...532 F.Supp. 216, 227 (S.D.N.Y.1981); Rabbitt v. Dep't of the Air Force, 383 F.Supp. 1065, 1070 (S.D.N.Y.1974); United States v. Schlette, 842 F.2d 1574, 1581 (C.A.9, 14 The dissent cites Marzen v. Dep't of Health & Human Services, 825 F.2d 1148 (C.A.7, 1987), to support its position that th......
  • People v. Connor, No. H024743
    • United States
    • California Court of Appeals
    • February 6, 2004
    ...(See United States Dept. of Justice v. Julian (1988) 486 U.S. 1, 9, 108 S.Ct. 1606, 100 L.Ed.2d 1; U.S. v. Schlette (9th Cir.1988) 842 F.2d 1574, Although the Rule has always been silent concerning disclosure to third parties, federal courts have been "very reluctant to give third parties a......
  • Request a trial to view additional results

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