United States v. Li, Crim. No. 80-1213

Decision Date02 April 1981
Docket Number81-0327.,Crim. No. 80-1213
Citation510 F. Supp. 276
PartiesUNITED STATES of America, Plaintiff, v. Gail G. L. LI, M.D., Defendant. UNITED STATES of America, Plaintiff, v. Gail G. L. LI, M.D., Defendant.
CourtU.S. District Court — District of Hawaii

Elliot Enoki, Asst. U. S. Atty., Wallace W. Weatherwax, U. S. Atty., Honolulu, Hawaii, for plaintiff.

David C. Schutter, Judith Ann Pavey, Honolulu, Hawaii, for defendant.

ORDER AFFIRMING MAGISTRATE

SAMUEL P. KING, Chief Judge.

On April 1, 1981, the magistrate heard and ruled orally in favor of the government on a motion by the United States for Leave to File Unsealed Sentencing Memorandum. The magistrate entered a written Order Granting Motion for Leave to File Unsealed Sentencing Memorandum on April 2, 1981. Defendant noted his appeal from the oral ruling and then from the written order.

This matter commenced with a conference (on the record) in my chambers on Friday, March 27, 1981, with counsel for defendant and an assistant U.S. attorney to discuss the filing of a sentencing memorandum by the government. The assistant U.S. attorney in charge of this case had notified defense counsel of his intention to file with the clerk a sentencing memorandum, a copy of which was provided to defense counsel. Defense counsel then requested an emergency meeting with me to ask that the government's sentencing memorandum be sealed in the same manner as if it were a part of the presentence report by the probation office. It being then close to 4:00 p. m. on a Friday afternoon and the sentencing not being until April 6, 1981, I stated that I was not prepared to give the matter much consideration and ordered the government to file its sentencing memorandum as a sealed document without prejudice to its right to move for leave to unseal the document. The government chose not to file the sentencing memorandum on March 27, but instead filed its motion for leave to file an unsealed sentencing memorandum. The motion was referred automatically to the magistrate. The magistrate granted the motion. The defendant appealed.

The matter was properly within the jurisdiction of the magistrate. 28 U.S.C. § 636, Magistrate Rules IV A 1. The test on this appeal is whether the magistrate's ruling is clearly erroneous or contrary to law. Magistrate Rules IV A 3.

As I understand defendant's position, he argues that the government's sentencing memorandum may contain prejudicial matter that would not be admissible in evidence or that might be untrue. Neither argument has any merit.

The Federal Rules of Evidence do not apply to sentencing proceedings. FRE 1101(d)(3). By federal statute, 18 U.S.C. § 3577 (1976):

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

The Supreme Court has stated frequently that, in discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in a crime. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959). See also Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 387 (1949); United States v. Grayson, 438 U.S. 41, 48-50, 98 S.Ct. 2610,...

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8 cases
  • U.S. v. Fogel, 86-3063
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 15 September 1987
    ...justice process, and that "[s]entencing by ambush should be avoided even more studiously than trial by ambush." United States v. Li, 510 F.Supp. 276 (D.Haw.1981). We therefore affirm the district court's denial of appellant's motion to present testimony to rebut the government's sentencing ......
  • US v. Fautanu, 90-00791 ACK.
    • United States
    • U.S. District Court — District of Hawaii
    • 1 August 1990
    ...is clearly erroneous or contrary to law. See, e.g., United States v. Ramirez, 555 F.Supp. 736, 738-39 (E.D.Cal.1983); United States v. Li, 510 F.Supp. 276, 277 (D.Haw.1981); United States v. Brown, 431 F.Supp. 56, 58 (D.Minn.1976), aff'd, 552 F.2d 817, cert. denied, 431 U.S. 949, 97 S.Ct. 2......
  • United States v. Ramirez
    • United States
    • U.S. District Court — Eastern District of California
    • 17 January 1983
    ...States Magistrates, Rule 7(e). Thus, the judgment is reversible only if it is clearly erroneous or contrary to law. United States v. Li, 510 F.Supp. 276, 277 (D.Haw. 1981); United States v. Williams, 220 F.Supp. 556, 557 II RIGHT TO COUNSEL A. Court Appointed Counsel Generally, the defendan......
  • U.S. v. Wilfred American Educational Corp., 91-1084
    • United States
    • U.S. Court of Appeals — First Circuit
    • 7 November 1991
    ...or adopt essentially similar practices, so as to preclude even the appearance of "sentencing by ambush." Id. (quoting United States v. Li, 510 F.Supp. 276 (D.Haw.1981)).9 Although the discussion in Wilfred's appellate brief focuses exclusively on the Campbell affidavit, the brief states as ......
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