United States v. Janiec, 71-2027 and 71-2149.

• Decision Date: 23 June 1972
• Docket Number: No. 71-2027 and 71-2149.,71-2027 and 71-2149.
• Parties: UNITED STATES of America v. Lawrence JANIEC et al., Appellant in No. 71-2149. Appeal of Samuel LAYTHAM, in No. 71-2027.
• Court: U.S. Court of Appeals — Third Circuit

464 F.2d 126 (1972)

UNITED STATES of America v. Lawrence JANIEC et al., Appellant in No. 71-2149.

Appeal of Samuel LAYTHAM, in No. 71-2027.

Nos. 71-2027 and 71-2149.

United States Court of Appeals, Third Circuit.

Argued March 13, 1972.

Decided June 23, 1972.

As Amended July 14, 1972.

Joel D. Lowinger, Millburn, N. J., for appellant in No. 71-2149.

Thomas F. Campion, Shanley & Fisher, Newark, N. J., for appellant in No. 71-2027; Joseph L. Cook and Robert F. Gallo, Newark, N. J., on the brief.

Amos Gern, Asst. U. S. Atty., Newark, N. J., for appellee.

Before MAX ROSENN and JAMES ROSEN, Circuit Judges, and TEITELBAUM, District Judge.

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

This case raises squarely the long standing and often debated issue of disclosure of presentence investigation reports to a defendant, his attorney and the attorney for the Government.

Appellants, Janiec and Laytham were indicted on two counts: bank robbery and putting lives in jeopardy during that robbery by use of a dangerous weapon in violation of 18 U.S.C. § 2113(a) and (d). After plea negotiations, they pled guilty to one count, and the remaining count was dismissed on motion of the Government.

Appellants were sentenced on July 30, 1971, in the District Court for the District of New Jersey. The district court commented, when sentencing appellant Janiec, as follows:

Mr. Janiec, your life has been a life of crime. In 1930, you robbed a bank and you used loaded guns. You used pistols. This court has taken into consideration all the facts involved in the commission of this crime. The sentence of this court is as follows: It is adjudged that you . . . be placed in an appropriate institution for twenty years. . . .

When sentencing appellant Laytham, the court noted: "I have read your presentence report." The sentence imposed on both appellants was the maximum permissible under 18 U.S.C. § 2113(a), twenty years imprisonment.

In August 1971 appellants filed motions made pursuant to Rule 32(c)(2) Fed.R.Crim.P., for disclosure of presentence reports, and, pursuant to Rule 35 Fed.R.Crim.P., for reduction of sentence. In oral argument on these motions, Janiec's attorney argued that Janiec had not been convicted of robbing a bank with loaded guns in 1930, but merely of the robbery itself. Further, he contended that since, presumably, the source of the district court's information was the presentence report, that report was therefore in error. Apparently, Janiec's attorney was correct, and the district court's statement that Janiec "robbed a bank and . . . used loaded guns" in 1930 was in error.¹ The district court, after this matter was brought to its attention, again reviewed the presentence report. Presumably, this second review erased any erroneous impression as to Janiec's conduct in 1930, since the presentence report does not list a conviction in 1930 for bank robbery with loaded guns.

By order filed September 21, 1971, the district court denied appellants' motions. For the reason detailed below, we remand for resentencing.

The appellants' primary contention is that they have a constitutional right to mandatory disclosure of the entire presentence investigation report prepared by the probation department.² An impressive body of legal opinion has developed reflecting various views with respect to this important issue. This body of legal opinion is exhaustively summarized in the dissenting opinion of Judge J. Skelly Wright in United States v. Dockery, 145 U.S.App.D.C. 9, 447 F.2d 1178, 1186, cert. denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971), and need not be repeated here.

We do not hold that there is any right for mandatory disclosure of the entire presentence report. In view of the weight of precedent against appellants' position, and the specific language of Rule 32(c), we believe, as urged in Dockery, that any argument on this issue should most properly be presented to the Supreme Court. However, we do conclude that the list of prior convictions, contained in the presentence report, must be disclosed, when requested by the defendant or his counsel unless the district court does not rely in any way upon a defendant's prior convictions. We believe that this conclusion is constitutionally required.

Rule 32(c)(2) provides that the presentence report ". . . shall contain any prior criminal record of the defendant." (emphasis supplied). Thus, under normal conditions, the sentencing judge will have before him a list of a defendant's prior convictions.³

It is possible that the list of prior convictions contains only offenses which were brought out at the defendant's trial. Thus, it would have an independent verification. However, the list of prior convictions may contain reports of prior convictions which were obtained from extra-judicial sources.⁴

In most cases, the prior convictions of a defendant play a major role in the formulation of the sentence. This is, of course, especially true where the defendants have a long history of crime — as is apparently the case with Laytham and Janiec.⁵

In practice, because the list of prior convictions is of such importance in determining sentence, the district court often discloses its contents to the defendant, usually orally from the bench. The defendant then can comment upon his prior record and thus correct any erroneous information it may contain.

The practice of disclosing a defendant's prior convictions, in order to give a defendant a chance to explain, supplement or correct his record, has led to a significant constitutional holding, first enunciated in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and recently given forceful statement in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).⁶ Although the cases are closely related on their facts, we limit our discussion to Tucker, for that decision presumably best illustrates the intent of the Court.

In Tucker, the defendant was tried by a jury and convicted of bank robbery. During the course of the trial, at which the defendant testified in his own behalf, the prosecution was permitted to impeach his credibility by cross-examining him concerning prior convictions. The defendant acknowledged three previous felony convictions.

The district court, during sentencing, entered into a colloquy with the defendant and his attorney, in which the district court made clear that he based his sentence, at least in part, upon these three previous felony convictions. Later, it was conclusively determined in a collateral proceeding that two of the prior convictions were constitutionally invalid because the defendant had been unrepresented by counsel and had not waived his right to assistance of counsel. Tucker v. United States, 299 F.Supp. 1376 (N.D.Cal.1969).

Thereafter, proceeding under 28 U.S.C. § 2255, the defendant filed a motion attacking the verdict and sentence. While acknowledging that the use of the invalid prior convictions for impeachment was error, the district court found that it was harmless beyond a reasonable doubt in view of the overwhelming evidence and dismissed. Tucker v. United States, supra. The 9th Circuit affirmed but it found that there was ". . . a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed." Tucker v. United States, 431 F.2d 1292, 1294 (9th Cir. 1970). It refused to vacate the conviction but remanded for resentencing ". . . without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)." Id., at 1294 (emphasis supplied).

On appeal to the Supreme Court, the Government argued that a federal district judge has wide and largely unreviewable discretion in imposing sentence and, in view of other information in possession of the trial judge at time of sentencing, detrimental to the defendant, it was highly unlikely that a different sentence would have been meted out had the judge known that two of the previous convictions were constitutionally invalid.

The Supreme Court, affirming the judgment of the Court of Appeals, held:

. . . we deal here not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, `this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.\' Id., at 741. The record in the present case makes evident that the sentencing judge gave specific consideration to the respondent\'s previous convictions before imposing sentence upon him. Yet it is now clear that two of those convictions were wholly unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

United States v. Tucker, supra, 404 U.S. at 92 S.Ct. at 591.

This holding makes clear that if there is, one, "misinformation of a constitutional magnitude" before the district court, and, two, if that "misinformation" is given specific consideration by the sentencing judge, then the case must be remanded for sentencing anew.

The first factor — whether there is misinformation of a constitutional magnitude before the sentencing court — is, of course, inextricably tied to the defendant's list of prior convictions contained in the presentence report.⁷ As we have noted, Rule 32(c)(2) provides that whenever a presentence report is utilized by the district court, it must contain a record of prior convictions, if any. But no standards are laid down for the preparation of this part of the presentence report. The information may be, of course, completely accurate. But it may also contain information which is inaccurate since the report may not list convictions which were later reversed or modified. Moreover, it may even list "convictions" which are...