U.S. v. Trevino, 95-5359

• Decision Date: 12 July 1996
• Docket Number: No. 95-5359,95-5359
• Citation: 89 F.3d 187
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos TREVINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 187

89 F.3d 187

UNITED STATES of America, Plaintiff-Appellee, v. Carlos TREVINO, Defendant-Appellant.

No. 95-5359.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1996.

Decided July 12, 1996.

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, J. Douglas McCullough, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Judge HALL wrote the majority opinion, in which Judge HAMILTON joined. Judge PHILLIPS wrote a concurring and dissenting opinion.

OPINION

K.K. HALL, Circuit Judge:

A jury found Carlos Trevino guilty of conspiring to traffic in marijuana and of traveling in interstate commerce in aid of racketeering. Trevino appeals the convictions, contending that the district court erred by denying his motion to disclose the Presentence Investigation Reports (PSRs) of conspiracy members who testified against him. Neither Trevino nor his counsel have seen the reports; the district court examined the PSRs in camera prior to announcing its decision. On appeal, we have reviewed the PSRs at issue, and we are satisfied that the district court's ruling was not clearly erroneous; we therefore affirm.

I.

According to the government, Trevino was involved in a marijuana distribution conspiracy headed by Stephen Wilson. Wilson began selling marijuana in 1983 after his farming business became unprofitable; he continued to traffic in large quantities of marijuana until sometime in 1992 or 1993. On December 6, 1994, the grand jury indicted Trevino, charging that he participated in the conspiracy, and that he traveled in interstate commerce with the intent to facilitate an unlawful activity. See 21 U.S.C.A § 846 (West Supp.1996); 18 U.S.C.A. § 1952 (West Supp.1996).

The government's case against Trevino consisted of the testimony of twelve witnesses; as many as nine of them were connected with the conspiracy. Prior to trial, Trevino requested that the district court release the presentence reports of seven eventual witnesses who had previously entered into plea agreements with the government. The court, after obtaining the PSRs and examining them in camera, denied Trevino's request.

At trial, Wilson told how he had been introduced to marijuana growers and dealers by a companion he had met in Florida, where he had gone to purchase tomatoes to resell in North Carolina. Wilson took his tomato profits and bought approximately twenty pounds of marijuana from Joe Munyos in southern Texas. Wilson's new business flourished, and he began to hire couriers to transport large quantities of marijuana purchased from Munyos or another supplier, Freddy Gonzales.

Wilson testified that he met Trevino in 1988 when Trevino accompanied Munyos on a trip to North Carolina. Wilson stated that he initially hired Trevino, who speaks Spanish, to help oversee the Mexican migrants who worked on Wilson's farm. According to Wilson, Trevino eventually became his "right-hand man" in the drug business, coordinating the Texas-to-North Carolina runs. Wilson said that he fired Trevino on January 1, 1991, upon learning that Trevino had skimmed $16,000 from a drug payment that he was to deliver to Gonzales. Wilson estimated that, over the entire course of the conspiracy, his operation had sold over fifteen tons of marijuana.

The other testifying co-conspirators detailed their sundry dealings with Trevino. Some admitted having accompanied Trevino on drug-buying trips; others mentioned having delivered drugs to him from time to time.

Customs agent Michael Doherty concluded the government's case. He testified that, during a telephone conversation, Trevino admitted being involved with Wilson in the marijuana business, though simultaneously insisting that Wilson was the mastermind.

Trevino took the stand and denied any wrongdoing. The jury, however, decided otherwise; it found Trevino guilty of both charges, and he was subsequently sentenced by the district court to 151 months' imprisonment. Trevino appeals, maintaining that the court's denial of his request for the PSRs warrants a new trial.

II.

A.

Due process requires that the government disclose to the accused any favorable evidence in its possession that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). ¹ "Favorable" evidence includes not only that evidence tending to exculpate the accused, but also any evidence adversely affecting the credibility of the government's witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). ² Evidence is "material" if there is a reasonable probability that it will affect the result of the proceeding. See Bagley at 682, 105 S.Ct. at 3383-84 (opinion of Blackmun, J.).

On occasion, the government may possess potential Brady material that it deems privileged or that is otherwise confidential. If the accused does not specifically request that it be produced, this material is treated much like everything else in the government's file, i.e., "the prosecutor's decision on disclosure is final." Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987). If, however, the accused is able to identify the requested confidential material with some degree of specificity, he may then attempt to convince the district court that it is subject to disclosure. See id. at 58 n. 15, 107 S.Ct. at 1002 n. 15 (requiring the accused to "at least make some plausible showing" of how the evidence would be "both material and favorable to his defense"), quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); see also Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir.1995) (district court's judgment dismissing habeas petition vacated where state court declined to undertake an in camera examination of subpoenaed materials, even though the petitioner's showing "far exceeded that held sufficient by the Ritchie Court.").

Once the accused has made a plausible showing that the evidence would be both material and favorable, the trial court must review the information in camera to ascertain its true nature and determine whether it must be disclosed. Ritchie at 58-60, 107 S.Ct. at 1001-03; Love at 1313. ³ The court conducts its examination in private because the Constitution does not accord an accused the right of unrestricted access to the government's files. Ritchie at 59-60, 107 S.Ct. at 1002-03; Love at 1313; see also United States v. Leung, 40 F.3d 577, 583 (2d Cir.1994) ("In the rare circumstances where [an in camera ] inspection is required, its purpose is not to provide a general discovery device for the defense[.]"). The trial court's ultimate conclusion as to whether the information is subject to disclosure--whether the evidence is both material and favorable--may be disturbed on appeal only if it is clearly erroneous. United States v. Mora, 994 F.2d 1129, 1139 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 417, 126 L.Ed.2d 363 (1993).

B.

Presentence reports represent a special subcategory of potentially discoverable confidential information, and rules governing their disclosure have evolved apart from the relatively recent Ritchie decision and the line of lower court cases that have followed. In United States v. Figurski, 545 F.2d 389 (4th Cir.1976), we held that presentence reports prepared on behalf of government witnesses must be examined by the district court in camera before any of the information contained therein is disclosed to the accused. Id. at 392. We did not, however, establish any guidelines to assist the courts in making the necessary threshold determination, i.e., whether an accused has sufficiently justified the court's involvement in the discovery process. In view of the potential effect of Ritchie on the distinct body of law pertaining to the disclosure of presentence reports, and in view of the issue on appeal, the time is ripe to speak on the subject.

1.

The PSR may serve several purposes, but its principal function is to assist the district court in imposing an appropriate sentence on the criminal defendant who is the subject of the report. United States v. Charmer Industries, Inc., 711 F.2d 1164, 1170 (2d Cir.1983). Obviously, a PSR that is as accurate and complete as possible helps to ensure a just sentence. PSRs must include, inter alia, pertinent information about the defendant's life history and personal characteristics (including any prior criminal record), the defendant's financial condition, a victim impact assessment, the probation officer's proposed classification of the offense and the defendant's criminal history under the Sentencing Guidelines, and "any other information required by the court." Fed.R.Crim.P. 32(b)(4).

Indeed, concern over the accuracy of PSRs has resulted in several amendments to Rule 32 over the past thirty years, most recently in 1994. Before 1975, most federal courts did not permit the defendant to see his own PSR, much less comment on it. Fed.R.Crim.P. 32 advisory committee note (1974); see also Charmer at 1172. Rule 32(b) now provides that, except for the probation officer's final recommendation on the sentence (which the district court may direct be excluded), the entire report must be provided to the defendant and his counsel not less than 35 days prior to the sentencing hearing. Upon receiving his PSR, the defendant is entitled to contest any material information contained in or omitted from the report. Rule 32(b)(6)(B).

With the advent...