U.S. v. Slaughter

• Decision Date: 25 April 1990
• Docket Number: No. 89-1203,89-1203
• Citation: 900 F.2d 1119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. SLAUGHTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1119

900 F.2d 1119

UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. SLAUGHTER, Defendant-Appellant.

No. 89-1203.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 1989.

Decided April 25, 1990.

Eric J. Klumb, Milwaukee, Wis., for Plaintiff-Appellee.

Richard S. Kling, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and WOOD, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

BAUER, Chief Judge.

Daniel Slaughter pled guilty to one count of tax evasion and one count of dealing in firearms without a license, for which he was sentenced to two consecutive five-year terms. At Slaughter's sentencing hearing, the district court also held him in civil contempt for refusing to obey the court's earlier order to submit to "processing," and committed him to custody until he complied with that order. In this appeal, Slaughter seeks resentencing, claiming that the district court's conduct of the sentencing hearing violated Fed.R.Crim.P. 32(c)(3)(D) and that his counsel during the sentencing hearing did not afford him effective assistance. Slaughter also claims that the district court's contempt order was improper, and should therefore be vacated. We affirm Slaughter's sentence, but vacate the district court's contempt order and remand for further proceedings.

I.

On August 31, 1988, a federal grand jury in Wisconsin returned a forty-two count indictment charging the defendant Dan Slaughter with various firearms and tax evasion offenses. The U.S. Attorney's office subsequently filed a one count information alleging that Slaughter purchased and distributed firearms without a license in violation of 18 U.S.C. Sec. 922(a)(1) and 924(a). On December 6, 1988, Slaughter appeared before Judge Terence T. Evans of the United States District Court for the Eastern District of Wisconsin and, pursuant to a plea agreement, pled guilty to the last count of the multi-count indictment (failure to file his 1984 income tax return in violation of 26 U.S.C. Sec. 7201) and to the firearms charge contained in the information. After conducting a detailed Rule 11 colloquy, see Fed.R.Crim.P. 11, and hearing the government's offer of proof, Judge Evans accepted Slaughter's pleas, ordered a presentence investigation and report, and continued the case to January 24, 1989, for sentencing.

Complicating the proceedings before Judge Evans was the fact that, two years earlier, Slaughter had been tried and convicted of seven drug-related charges in federal court in Chicago. See United States v. Rollins, 862 F.2d 1282 (7th Cir.1988) ("the Chicago convictions"). Judge James Holderman of the United States District Court for the Northern District of Illinois sentenced Slaughter on the Chicago convictions to several concurrent terms of imprisonment, the longest of which was ten years, and imposed a fine, a period of probation, and a "special parole term for life." Id. at 1286-87. At the time of the proceedings before Judge Evans, the Chicago convictions had been affirmed by this court, but Slaughter's case had been remanded for resentencing. Id. at 1299.

That the Chicago convictions would affect the Wisconsin proceedings became apparent at the December 6th hearing. In setting Slaughter's case for sentencing, Judge Evans expressly took note of the Chicago convictions, and specifically of the fact that a presentence investigation and report had already been completed in that case ("the Chicago presentence report"). Judge Evans suggested that all that was required was "just some updating of the prior presentence that was prepared in the Northern District of Illinois," and therefore set an early sentencing date. Also, as suggested above, Slaughter was already in custody on the Chicago convictions at the time of his Wisconsin indictment. This fact motivated the counsel for the government to request, at the close of the December 6th hearing, that agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") be permitted to "process" Slaughter (i.e. obtain fingerprints, handwriting exemplars and a photograph). Counsel explained that this was necessary because Slaughter was never arrested and thus never "processed" by ATF. Judge Evans responded, "Okay. So ordered."

As foreshadowed by Judge Evans' comments at the December 6th hearing, the presentence report submitted at the January 24th sentencing hearing was nothing more than the Chicago presentence report with six pages of new material. ¹ Slaughter objected to the inclusion of the Chicago presentence report, both before the sentencing hearing via a letter to Judge Evans and at the start of the hearing, claiming that the report contained inaccuracies. After verifying that Slaughter did not intend to withdraw his guilty pleas, Judge Evans stated, "[I]f you can tell me what in this presentence [report] you object to I will probably not consider it.... So you tell me what you object to in this presentence report. You and Mr. Kulkoski [Slaughter's counsel] can do this together or you can do it yourself." Transcript of Sentencing Proceedings ("Sent.Tr.") at 12-13.

After calling a recess to give Slaughter an opportunity to review the presentence report, Judge Evans reconvened the sentencing hearing, at which time Slaughter himself began listing his challenges to the assertions in the presentence report concerning his prior criminal record (such inaccuracies being of substantial concern to Slaughter because the nature and disposition of his prior criminal charges would affect his parole eligibility). Id. at 14-21. Slaughter also challenged several of the government's allegations regarding sources of unreported income involved in the tax evasion charge at issue, and told the court that he wanted to call witnesses to bolster his challenges. Id. at 21-23. Although Judge Evans did not grant this request, he did take extensive, sworn testimony from Slaughter. Id. at 23-55. At the close of this lengthy examination, Judge Evans afforded the counsel for the government, Slaughter's counsel and Slaughter himself an opportunity to make a final statement regarding sentencing. All three took advantage of this opportunity. Id. at 55-63.

After all such testimony and statements were in, Judge Evans ruled as follows:

Now, the more I have gotten to know Mr. Slaughter the more I wish this case would have been tried because I'm reasonably confident that, had it been, Mr. Slaughter would stand convicted of many, many more counts than are present here. And I underscore that. Because even ... accepting all of the objections that Mr. Slaughter would make to the presentence report, the sentence I intend to impose here would not be adequate. In other words, accepting everything he says is true today, I would if I had it available to me give a more severe sentence than I intend to impose.

Id. at 63. As to Slaughter's challenges to the statements in the report regarding the disposition of his prior criminal cases, Judge Evans stated, "I take no position on how the Bureau of Prisons wants to consider that." He added:

In so far as the challenges to the presentence report, this would be more important if I had a lot more [prison] time to give to Mr. Slaughter than is available in this case. I think the record is accurate enough for Rule 32 purposes because ..., quite frankly, I don't believe much of anything that Mr. Slaughter has to say.

Id. at 64.

Judge Evans then sentenced Slaughter to two consecutive five-year terms, both to run consecutively to the sentence imposed by Judge Holderman for the Chicago convictions. After sentence was imposed, counsel for the government informed the court that Slaughter had so far refused to submit to the "processing" ordered by the court at the December 6th hearing, and asked the court to renew its order. Judge Evans did so.

Later that same day, the parties again appeared before Judge Evans. Counsel for the government told the court that Slaughter had again refused to be processed, and requested that the court hold him in civil contempt unless and until he did so. After giving Slaughter and his counsel an opportunity to respond to this request, Judge Evans found Slaughter in contempt for failing to comply with his earlier directives, and ordered Slaughter to be committed on the contempt citation until he agreed to be processed, with no jail time served on the contempt order to be credited toward his sentences. Judge Evans filed a written civil contempt order the following day memorializing this ruling.

Slaughter filed a timely notice of appeal, raising the challenges discussed below.

II.

Slaughter's primary challenge on appeal is that Judge Evans did not comply with Fed.R.Crim.P. 32 ("Rule 32") in conducting the sentencing hearing, and therefore resentencing is required. The pertinent portion of Rule 32 provides that, when the defendant alleges factual inaccuracies in the presentence report, "the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons." Fed.R.Crim.P. 32(c)(3)(D). As a defendant charging that this rule has been violated, Slaughter has the burden of showing that he made allegations of inaccuracy before the sentencing court and that the court failed to make findings regarding the disputed matters or a determination that these matters would not be considered in sentencing. United States v. Eschweiler, 782 F.2d 1385, 1389 (7th Cir.1986).

To meet this burden, Slaughter points to the laundry list of inaccuracies in the presentence report that he alleged before Judge Evans: approximately six regarding his prior criminal history and approximately four regarding the tax evasion charge. He...