United States v. Dockery

• Decision Date: 25 May 1971
• Docket Number: No. 23730.,23730.
• Citation: 447 F.2d 1178
• Parties: UNITED STATES of America v. Jean D. DOCKERY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

447 F.2d 1178 (1971)

UNITED STATES of America v. Jean D. DOCKERY, Appellant.

No. 23730.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 1970.

Decided May 25, 1971.

Petition for Rehearing Denied July 9, 1971.

Certiorari Denied November 9, 1971.

Mr. Sheldon I. Cohen, Washington, D. C. (appointed by this court) for appellant.

Mr. Broughton M. Earnest, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and James A. Treanor, III, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT, MacKINNON and WILKEY, Circuit Judges.

Certiorari Denied November 9, 1971. See 92 S.Ct. 299.

PER CURIAM:

We here decide, consistently with the great weight of authority, that it was not a denial of due process of law for the trial judge in sentencing to rely upon the presentence investigative report without disclosing its entire contents to appellant. The longstanding and uniform understanding of the requirements of due process makes the contrary argument one "more properly to be made to the Supreme Court," Castle v. United States, 120 U.S.App.D.C. 398, 401, 347 F.2d 492, 495 (1964), cert. denied, 381 U.S. 929, 85 S.Ct. 1568, 14 L.Ed.2d 687 (1965), and to the rule-making authority.

I

Jean D. Dockery was indicted for escaping from custody in violation of 18 U.S.C. § 751(a).¹ She had escaped on March 8, 1968 but the warrant for her arrest was not executed until 11 months later on April 1, 1969, when she was apprehended. On June 6, 1969 she was arraigned without counsel, a plea of not guilty was entered and she stated that she would retain counsel. However, on July 18, 1969 her present counsel was appointed to represent her. On August 1, 1969, appellant made an oral motion that she be committed to St. Elizabeths Hospital for a period not to exceed 60 days to determine whether the offenses with which she was charged² were the product of her mental condition and whether she was then mentally competent to stand trial.

On August 29, 1969, the acting superintendent of the National Institute of Mental Health, St. Elizabeths Hospital, reported that appellant was "competent to stand trial" but was suffering from "drug dependence, heroin * * * cocaine"; that the alleged offense of sale of narcotic drugs, with which she had been charged prior to her escape, was a product of her illness (drug dependence); but the alleged offense of escape from custody was not a product of that illness. On September 5, 1969, appellant gave notice of an insanity defense in accordance with D.C.Code § 24-301(j) and also moved for a bifurcated trial.

However, on September 19, 1969, she changed her plea to guilty on the escape charge and the Government stated to the court that after sentence was imposed it would move to dismiss the narcotics charge that was pending when appellant escaped. Appellant was then fully interrogated by the court to determine the factual basis for the plea, i. e., that she had escaped through a third floor window of the building where she was in custody, had climbed down over two adjoining roofs, and was gone about a year (11 months and 7 days) before she was apprehended. She now objects that, when she was finally sentenced, she did not have an opportunity to see the presentence report, but at the time the court accepted her guilty plea her counsel stated: "Mrs. Dockery would not object if she was sentenced today" (which would have been without a presentence report). The court replied that it would "have to refer it to the probation officer for a full report" and denied the request.

When appellant was sentenced on October 28, 1969, the following colloquy occurred between her counsel and the court:

MR. COHEN: * * * As you know, I called your office upon finding out that you would be doing the sentencing and requested that the presentencing sic report be made available for my inspection or, if not, that I be at least given the opportunity to know of the contents so I would be able to answer anything in there that needed answering or refute anything in there that needed refutation.

As Your Honor knows, I was not permitted to either see the contents or know of the contents.

THE COURT: The Court will be very glad, Mr. Cohen, to go over the alleged prior record, to see whether or not there are any discrepancies with you, and with the defendant.

MR. COHEN: Your Honor, the defendant has a substantial record for petty offenses, disorderly, and various other offenses. There are some other offenses charged there which have been dropped and there is one offense which she is now serving time for and that is for possession of narcotics.

Whatever else is in the report besides a list of prior offenses I don\'t know and I think that too may bear discussion.

This puts me on the horns of a dilemma this morning, somewhat between Scylla and Charybdis that I risk, at the risk of asserting the defendant\'s rights as I view them — I risk antagonizing the same court which we are asking to exercise its discretion and be lenient in sentencing.

THE COURT: The Court is always glad to hear any mitigating circumstances that you have that would be helpful in imposing sentence. * *

As I said, I will be glad to go down the list of the offenses for which she was found guilty so that we will know whether we are talking about the same things or not.

MR. COHEN: All right, I will appreciate that.

THE COURT: I am not concerned with her juvenile record. The adult record shows receiving stolen goods in 1959 for which she was given 180 days.

In \'65 it was vagrancy and disorderly; vagrancy on two counts in 1966 in which she was given $100 or sixty days on each count to run concurrently.

In \'66, vagrancy and narcotics, one year, which is the one that I believe she is presently serving. Isn\'t that correct?

MR. COHEN: No, Your Honor.³

THE COURT: It is not?

MR. COHEN: There was a later sentence.⁴

THE COURT: I see. She was arrested January 21, 1969, in Baltimore for soliciting and sentenced to six months, paroled March 22, 1969, with a detainer for return to the District of Columbia. She returned to custody April 1, 1969, remained in custody while serving the sentence imposed in the previous case. She entered a plea of guilty in the present case.

Appellant's counsel then made an extended plea in her behalf (covering 7 pages of the transcript), explained the two cases which were before the court that morning and made a very fine plea in behalf of appellant. He discussed a prior conviction of appellant for possession of narcotics in Criminal No. 1240-65 which had been appealed and affirmed, and pointed out how this meant that, if appellant were to have been convicted of the narcotics charge that was being dismissed that day, she would have faced a 10 to 40 year sentence on this second narcotics charge, with no possibility of probation, parole or suspension of sentence. Counsel argued that the threat of this substantial punishment had motivated appellant to escape, and further contended that the Government, in agreeing to dismiss the current narcotics charge when sentence was imposed on the escape charge, was admitting that they did not have the evidence to support that charge.⁵ The colloquy terminated as follows:

MR. COHEN: * * * Now after having made the motion to be sentenced without the presentence report and that having been denied because the defendant had to await presentencing sic report, we are in the position of not being able to see the contents of the presentencing report other than the list of prior convictions, which we are aware of.

So for those reasons I now move that this Court either show the report to me or at least state the reasons that were given in the report to give me a chance to answer any of them, if they need answering, and move for a week\'s continuance so that this may be done.

I truly feel that these in camera proceedings are a denial of due process for the defendant and have no place in our jurisprudence.

THE COURT: Your motion is denied.

Thereafter the court sentenced appellant to incarceration for a period of not less than 6 months nor more than 18 months, such sentence to be consecutive to any sentence then being served in this or any other jurisdiction.⁶

The following proceedings then occurred which culminated in the court recommending narcotic treatment:

MR. COHEN: Your Honor, may I address the Court on another point?

I sent a letter to the probation officer and I don\'t know if you were advised of this,⁷ that Mrs. Dockery felt that she still had a narcotics problem and requested that she be transferred to Lexington for treatment for her narcotics.

Again I don\'t know if this is one of the matters that was brought before you or if this was a matter that was considered by you.

THE COURT: I believe that Mrs. Dockery changed her mind about the Lexington situation before.⁸

What was the situation about that, Mrs. Dockery?

THE DEFENDANT: I really don\'t remember.

THE COURT: You don\'t remember?

The Court would recommend that you be given narcotic treatment at whatever institution the Attorney General selects for your incarceration.

Thereafter the narcotics charge was dismissed.

II

On this appeal appellant contends that her rights to due process of law and to effective assistance of counsel in her defense require disclosure of the information contained in the presentence report, and that such rights were denied her when the court refused to allow her and her counsel to examine and know the contents of the presentence report utilized by the court at the time of her sentencing. The answer to this contention in the first instance is to be found in Fed.R.Crim.P. 32(c) which provides as follows:

(c) Presentence Investigation

(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be

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