CORE TERMS: disclosure,
presentence report, presentence, sentencing, grand jury, secrecy, right
of access, confidentiality, first amendment, common law right,
third-party, third parties, ongoing, judicial proceeding, compelling
need, functioning, sentence, particularized, offender, public interest,
right to inspect, confidential, insure, public disclosure, public
access, privacy, rebut, information received, denied sub nom, third
party
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Headnotes
COUNSEL: Chris Gair, AUSA, Office of the United States Attorney,
Chicago, Illinois; David J. Stetler, AUSA, Office of the United States
Attorney, Criminal Receiving, Appellate Division, Chicago, Illinois;
James R. Ferguson, AUSA, for Plaintiff-Appellant.
Matthew A. Flamm, Orlikoff & Flaum, Chicago, Illinois; James I. Marcus,
Williams & Marcus, Chicago, Illinois; Jeffrey Schulman, Chicago,
Illinois; Richard Orlikoff, Orlikoff & Flamm, Chicago, Illinois, for
Defendant-Appellee.
Matthew A. Flamm, Scott A. Weiss, Orlikoff, Orlikoff & Flaum, for
Intervenor-Appellee.
JUDGES: Cudahy and Manion, Circuit Judges, and Henley, Senior
Circuit Judge. *
* The Honorable J. Smith Henley, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, is sitting by
designation.
OPINIONBY: CUDAHY
OPINION: [*226]
CUDAHY, Circuit Judge
This appeal requires that we decide whether, and under what
circumstances, a district court may release the presentence
investigation report of a criminal defendant
[**2] to
members of the news media. The district court authorized disclosure of
the defendant's presentence report under the "common law right of
access" to judicial records.
See
Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d
570, 98 S. Ct. 1306 (1978). The government appeals, arguing that the
district court applied an incorrect legal standard in determining
whether disclosure was appropriate. We vacate the district court's
disclosure order and remand for reconsideration under the appropriate
legal principles.
I.
Facts and Proceedings Below
The defendant, Michael Corbitt, served as Chief of Police of the Village
of Willow Springs, Illinois for approximately ten years, ending in 1982.
On May 20, 1987, Corbitt was indicted in the Northern District of
Illinois on three counts of extortion and racketeering, in violation of
18 U.S.C. sections 1951 and 1962(c) and (d). The indictment alleged
that, during his tenure as Chief of Police, Corbitt accepted bribes in
exchange for permitting various criminal enterprises to operate with
impunity, and that he extorted payments from businesses in Willow
Springs and elsewhere. Corbitt
[**3] pled
guilty to all three counts; he was sentenced on January 11, 1988 to four
years on each count, the sentences to run concurrently.
At Corbitt's sentencing, Judge Prentice Marshall stated that he had
decided to impose a sentence lower than that recommended in the
presentence report due to an unprecedented, and apparently spontaneous,
torrent of letters written on Corbitt's behalf. In statements directed
at the defendant, the judge remarked that "one of the things that struck
me about [the letters] is not just that ordinary folk have come forward
in your behalf, but . . . elected . . . and appointed public officials
in the community in which you have resided, have come forth for you."
Corbitt's sentencing provoked an outcry in Willow Springs; Village
residents expressed a strong interest in learning which public officials
had written letters, many apparently on official letterhead, seeking
leniency for Corbitt. Three days after Corbitt's sentencing, the Board
of Trustees of Willow Springs unanimously approved a resolution stating
that no Village official had been authorized to use his or her office to
secure a lighter sentence for Corbitt; the board also sent a letter to
Judge
[**4]
Marshall, asking him to allow public access to the letters written by
Village officials.
The
Southtown Economist, a newspaper covering the Village of
Willow Springs, reported extensively on Corbitt's conviction and
sentencing. On January 19, 1988, Pulitzer Community Newspapers, Inc.
("Pulitzer"), publisher of the
Southtown Economist, moved to
intervene in Corbitt's case to secure release of the presentence report
and testimonial letters on which Judge Marshall had relied in
sentencing. Pulitzer argued that, since Corbitt's conviction involved
misconduct in office, the entire criminal proceeding was "affected with
a public interest." Pulitzer also asserted that the public had an
especially strong interest in learning what factors, possibly including
the pleas of Village officials, had persuaded the district court to
impose what was perceived to be an inordinately lenient
[*227]
sentence. Corbitt objected to disclosure of any sentencing materials
which had not previously been disclosed during the sentencing hearing;
however, he declined to file a brief opposing Pulitzer's motion in the
district court, and has not participated in this appeal. The United
States filed a brief
[**5] stating
that, while it did not object to disclosure of the unsolicited letters
written on Corbitt's behalf, it opposed the disclosure of any part of
Corbitt's presentence report.
On August 24, 1988, the district court issued a memorandum opinion
granting Pulitzer substantial access to the presentence report and
letters. Judge Marshall began his opinion by noting that prior decisions
of this court, which held that a criminal defendant must show a
"compelling need" for disclosure of the presentence report of a
government witness, were not controlling because, in those cases, "no
third party had sought release of [the] presentence report." The court
then noted that, through a series of amendments to
Federal Rule of Criminal Procedure 32, there had been a "gradual
relaxation" of the traditional secrecy of the presentence report,
culminating in the current version of Rule 32, which mandates defense
access to the report in every case. Relying on
United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988), the
court also rejected the government's argument that the "free flow of
information" to the sentencing judge would be curtailed if the report
were made public.
Judge
[**6] Marshall
declined to rely on the first amendment right of access to criminal
proceedings as a basis for disclosure, but instead turned to the "common
law right of access" to judicial records recognized in
Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d
570, 98 S. Ct. 1306 (1978). Under this theory, according to the
district court, the party seeking access to a document "must identify a
proper interest in the information it seeks; for instance, 'the
citizen's desire to keep a watchful eye on the workings of public
agencies' or 'a newspaper publisher's intention to publish information
concerning the operation of government.'" Once such an interest is
shown, a presumption arises that disclosure is appropriate; the party
opposing disclosure may only defeat the presumption by identifying, with
specificity, interests in confidentiality which outweigh the right of
access.
The court found that Pulitzer's "assertion of a public interest in
keeping watch over official misconduct triggers application of the
common law right of access to judicial records." Judge Marshall also
held that the government had failed to rebut the presumption of
openness, since it
[**7] relied
on "conjectural statement[s]" regarding the general policies served by
confidentiality, rather than on specific facts which counselled against
disclosure of
Corbitt's presentence report in particular. The
court observed that the government's concern over the potential harm to
witnesses mentioned in the report could be addressed by redacting
portions of the report identifying witnesses whose names had not been
disclosed in open court. The court also determined,
sua sponte,
that certain portions of the report should be redacted to protect the
privacy of the defendant and others. However, except for the redactions,
Pulitzer was given access to the entire presentence report. The
government appeals; Judge Marshall has stayed the disclosure authorized
by his opinion pending resolution of the appeal. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Since the issue of disclosure of the presentence report is
independent of the merits of the criminal prosecution of defendant
Corbitt, we have jurisdiction over the government's appeal under the
collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47,
93 L. Ed. 1528, 69 S. Ct. 1221 (1949). See
United States v. Gerena, 869 F.2d 82, 83-84 (2d Cir. 1989);
Applications of Nat'l Broadcasting Co., 828 F.2d 340, 343 (6th
Cir. 1987);
In re New York Times Co., 828 F.2d 110, 113 (2d Cir. 1987),
cert. denied sub nom.
Esposito v. New York Times Co., 485 U.S. 977, 108 S. Ct. 1272, 99
L. Ed. 2d 483 (1988);
In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1307-08 (7th
Cir. 1984);
United
States v. Dorfman, 690 F.2d 1230, 1231-32 (7th Cir. 1982).
The government did not object in the district court to disclosure of the
letters written on Corbitt's behalf, and does not challenge disclosure
of the letters on appeal. This opinion therefore only addresses the
propriety of disclosure of Corbitt's presentence report.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**8]
[*228] II.
Source of the District Court's Authority to Disclose Corbitt's
Presentence Report
Pulitzer argues that disclosure of Corbitt's presentence report is
warranted under either of two separate, but related, legal theories: (1)
the common law right to inspect and copy judicial records, or (2) the
first amendment right of access to criminal proceedings.
A.
The Common Law Right of Access to Judicial Records
In
Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d
570, 98 S. Ct. 1306 (1978), the Supreme Court recognized a "common
law right of access" to judicial records. This right of access
establishes, as a general matter, that court files should be open to the
public for inspection and copying. However, the Court observed that the
"common law right of access" is a flexible concept, which allows the
district court to deny access where its records would be used for
"improper purposes"; specifically, the discretionary decision whether to
release judicial records should be informed by a "sensitive appreciation
of the circumstances that led to . . . [the] production [of the
particular document in question]."
Id. at 598, 602-03; [**9]
United States v. Edwards, 672 F.2d 1289, 1293 (7th Cir. 1982).
While this court has recognized that the common law right of access
creates a "strong presumption" in favor of public access to materials
submitted as evidence in open court,
id. at 1294, this presumption should not apply to materials
properly submitted to the court under seal. n2 Where judicial records
are confidential, the party seeking disclosure may not rely on
presumptions, but must instead make a specific showing of need for
access to the document. Of course, the public's right to inspect
judicial documents may not be evaded by the wholesale sealing of court
papers. Instead, the district court must be sensitive to the rights of
the public in determining whether any particular document, or class of
documents, is appropriately filed under seal. The question then becomes
whether presentence reports are properly filed under seal; we discuss
below the interests which support the confidentiality of presentence
reports.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2
See
The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210,
1219 (9th Cir. 1989) ("there is no [common law] right of access to
documents which have traditionally been kept secret for important policy
reasons");
In re Application of Nat'l Broadcasting Co., Inc., 635 F.2d 945,
952 n. 4 (2d Cir. 1980);
United States v. Carpentier, 526 F. Supp. 292, 295-96 (S.D.N.Y.
1981); cf.
United
States v. Dorfman, 690 F.2d 1230, 1233 (7th Cir. 1982).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**10]
B.
The First Amendment Right of Access to Criminal Proceedings
The first amendment right of access to judicial proceedings provides no
broader right to disclosure of the presentence report. The Supreme Court
has conducted a two-pronged inquiry in order to determine whether any
particular stage of a criminal proceeding should be open to the public:
first, the Court has considered "whether the place and process have
historically been open to the press and general public,"
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 92 L. Ed.
2d 1, 106 S. Ct. 2735 (1986); second, the Court has asked "whether
public access plays a significant positive role in the functioning of
the particular process in question."
Id. We believe that
Pulitzer's assertion of a right to inspect Corbitt's presentence report
fails to satisfy either prong of this "experience and logic" test.
As a preliminary matter, we note that this court has held that the first
amendment right of access extends to documents submitted in connection
with a judicial proceeding.
See, e.g.,
United States v. Peters, 754 F.2d 753, 763 (7th Cir. 1985);
In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308-09 (7th
Cir. 1984). [**11] n3
However, the
[*229]
press' right of access to documents submitted for use in a hearing must
be considered separately from the press' right to attend the hearing
itself.
United
States v. Dorfman, 690 F.2d at 1234; see also
United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir. 1985)
(considering press' right to inspect criminal indictment separately from
acknowledged right to attend trial). Whether or not the public and the
press have a first amendment right of access to sentencing
hearings,
we must determine independently whether there is a right to disclosure
of presentence reports submitted at such hearings. n4
See
United States v. Santarelli, 729 F.2d 1388, 1390-91 (11th Cir.
1984) (distinguishing between presumptive openness of sentencing
hearings, and general confidentiality of presentence reports and
hearings at which defendant challenges report's contents).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3
See also, e.g.,
The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210,
1213 n.4 (9th Cir. 1989);
Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.
1989);
In re Search Warrant for Secretarial Area, 855 F.2d 569, 573 (8th
Cir. 1988);
United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988);
In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). [**12]
n4 Other courts have apparently held that if the press has a right to
attend a given judicial proceeding, it thereby acquires the conditional
right to inspect documents filed in connection with the hearing.
See,
e.g.,
United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989);
Seattle Times Co. v. United States Dist. Court, 845 F.2d 1513,
1516-17 (9th Cir. 1988);
United States v. Haller, 837 F.2d 84, 86-87 (2d Cir. 1988);
In re New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987);
In re Washington Post Co., 807 F.2d 383, 389-90 (4th Cir. 1986);
Associated Press v. United States Dist. Court, 705 F.2d 1143,
1145 (9th Cir. 1983). Under this approach, it would appear that
presentence reports would be presumptively open to the public, if
sentencing
hearings are public; the sentencing court could only
refuse to disclose the report where, in the individual case, the court
made "specific, on the record findings" of a "compelling need" for
sealing. By contrast, under our approach, whereby presentence reports
are considered, in effect, an independent "proceeding", we may consider
the press' right of access to presentence reports
as an independent
class of documents, and not merely as applied to a particular
report. Given the characteristics which all presentence reports share,
which we believe justify their presumptive secrecy, our "class-wide"
approach obviates the need for repeated adjudications of the press'
right of access to these documents.
Compare
The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210,
1215 n.7 (9th Cir. 1989) (blanket holding that public has no right
of access to search warrant application materials prior to return of
indictments "relieves the government of the considerable burden of
responding on a case-by-case basis to actions such as [the present]")
with
In re Search Warrant for Secretarial Area, 855 F.2d 569, 574 (8th
Cir. 1988) (government must show, in each case, that pre-indictment
sealing of search warrant application materials "narrowly tailored" to
further a "compelling governmental interest").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**13]
It is clear that presentence reports have traditionally been
confidential -- indeed, it is only in the past 25 years that the
defendant has had access to the presentence report, either as a
discretionary matter or as of right.
See
Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct.
1079 (1949) (no denial of due process where sentencing judge
considered presentence report which was not disclosed to defendant);
infra at 22 [slip op.] (discussing amendments to
Fed. R. Crim. P. 32(c) to insure defendant a meaningful opportunity
to inspect and controvert contents of presentence report). The right of
access of an individual directly affected by the document, the
defendant, does not establish that the document has historically been
"open to the public."
United
States v. Dorfman, 690 F.2d at 1234.
Further, as we discuss below in some detail, public disclosure of the
contents of the presentence report would not promote the effective
functioning of the probation office, or, by extension, the sentencing
court; rather, disclosure would constitute a positive hindrance to the
probation office's performance of its obligation to provide the
[**14]
sentencing court with a comprehensive analysis of the defendant's
character. For these reasons, we do not believe that a first amendment
right of access attaches to presentence reports.
III.
Under either the common law or the first amendment, the question of
public access to presentence reports is resolved by examining the
considerations which support the confidentiality of these reports. Three
general factors justify the secrecy of presentence reports: (1) the
privacy interests
[*230] of
the defendant, the defendant's family and the crime victim; (2) the
interest of the court in full disclosure of information relevant to
sentencing; and (3) the interest of the government in the secrecy of
information related to ongoing criminal investigations, and information
derived from grand jury proceedings. We consider these factors in turn.
A.
Privacy Interests of the Defendant and Others
The criminal defendant has a strong interest in maintaining the
confidentiality of his or her presentence report. Sentencing
proceedings, and particularly the presentence investigation, often
involve a broad-ranging inquiry into a defendant's private life, not
limited by traditional rules
[**15] of
evidence.
See
18 U.S.C. § 3661 ("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
district judge may consider the defendant's family history, mental and
physical health, financial situation and other personality traits
affecting the defendant's social adjustment. n5 A sentencing judge may
also consider allegations (even if supported only by hearsay or
illegally obtained evidence) that the defendant has committed other,
uncharged crimes; the court may even consider prior acquittals, or
crimes committed by the defendant as a juvenile, for limited purposes.
n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5
See, e.g.,
Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct.
1079 (1949) (sentencing judge's consideration of presentence report
containing wide range of information concerning defendant's personal
life and past criminal behavior does not deny due process, even though
defendant not allowed to examine report or challenge its contents).
[**16]
n6
See
United States v. Agyemang, 876 F.2d 1264, slip op. at 12-14
(7th Cir. 1989) (approving sentencing court's extensive reliance on
hearsay);
United States v. Nowicki, 870 F.2d 405, 406-07 (7th Cir. 1989)
(sentencing court may consider allegation, even if based on hearsay,
that defendant threatened co-defendant or witness);
United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir. 1988);
United States v. Perez, 858 F.2d 1272, 1275, 1277-78 (7th Cir.
1988).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The contents of the presentence report reflect the breadth of
information on which the sentencing court may rely. Rule 32(c)(2)(A)
provides generally that the presentence report "shall contain"
"information about the history and characteristics of the defendant,
including his prior criminal record, if any, his financial condition,
and any circumstances affecting his behavior that may be helpful in
imposing sentence or in the correctional treatment of the defendant." A
monograph prepared by the Probation Division of the Administrative
Office of the United States Courts
[**17]
provides a more expansive discussion of the goals of the presentence
report.
The presentence report describes the defendant's character and
personality, evaluates his or her problems, helps the reader
understand the world in which the defendant lives, reveals the
nature of his or her relationships with people, and discloses those
factors that underlie the defendant's specific offense and conduct
in general.
The Presentence Investigation Report 1 (2d ed. 1984). To fulfill
this function, the presentence report should contain: a listing of
juvenile adjudications involving the defendant (which is normally
confidential under state law); allegations concerning the defendant's
involvement in other, uncharged offenses; the defendant's physical and
mental health (including the defendant's I.Q., results of psychiatric
tests, history of substance abuse problems and any "unusual fears,
hostilities, obsessions, compulsions, depressions, or sexual
deviations"); any history of child abuse or neglect; details of the
defendant's relationship with his or her spouse or "significant other";
and a detailed accounting of the defendant's financial condition.
Id.
at 10-16. The monograph
[**18] also
provides that the presentence report should contain information about
the defendant's family, including
[*231] any
"history of emotional disorders, diseases, and criminal behavior."
Id. at 13. n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7
See also
Gregg v. United States, 394 U.S. 489, 492, 22 L. Ed. 2d 442, 89
S. Ct. 1134 (1967) (noting that "there are no formal limitations on
the [] contents [of presentence reports], and they may rest on hearsay
and contain information bearing no relation whatever to the crime with
which the defendant is charged"); Model Penal Code § 7.07(3)
(presentence report should contain,
inter alia, "the defendant's
history of delinquency or criminality, physical and mental condition,
family situation and background, economic status, education, occupation
and personal habits"); Fennell & Hall,
Due Process at Sentencing: An
Empirical and Legal Analysis of the Disclosure of Presentence Reports in
Federal Courts, 93 Harv.L.Rev. 1613, 1623-26 (1980).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Criminal Rule 32(c)(3)
[**19] allows
the defendant to challenge the accuracy of factual statements contained
in the presentence report.
See generally
United States v. Brown, 870 F.2d 1354, slip op. at 11-14 (7th
Cir. 1989);
United States v. Perez, 858 F.2d 1272, 1276-77 (7th Cir. 1988);
United States v. Eschweiler, 782 F.2d 1385, 1387-91 (7th Cir.
1986);
United States v. Rone, 743 F.2d 1169, 1171-76 (7th Cir. 1984).
However, under Rule 32(c)(3)(D), the sentencing court need not make a
finding as to all matters which the defendant contests. Instead, the
court may simply disregard contested facts, in which case the challenged
statements remain in the report, and, at least to some extent, may be
relied upon by the Parole Commission in making release decisions.
Levesque v. Brennan, 864 F.2d 515, 518-20 (7th Cir. 1988).
Further, the defendant does not have the right to challenge
"evaluations", as opposed to "facts", contained in the report; thus,
some of the most subjective, and potentially embarrassing or
inflammatory, material in the report is immune to challenge.
United States v. Manso-Portes, 867 F.2d 422, 428 (7th Cir. 1989) [**20]
(defendant may not challenge statement that he had "managerial position"
in drug conspiracy);
cf.
United States v. Atehortua, 875 F.2d 149, slip op. at 4 (7th
Cir. 1989). Even if the district court accepts the defendant's version
of disputed facts, the inaccurate material is not excised from the
report; instead, the district court's contrary finding is simply
attached to the report as an appendix. Thus, there is a strong
possibility that the report will contain material which is untrustworthy
or simply incorrect, or which the defendant has not been given a full
opportunity to rebut.
See Fennell & Hall,
supra note 7, at
1628-30 (documenting instances of inaccuracies and "subtle distortions
in presentence reports). This consideration, together with the certainty
that the report will contain much highly personal, though accurate,
information, counsels against disclosure of presentence reports to third
parties, especially where the defendant objects.
The concern that the presentence report may contain minimally
substantiated and unchallenged allegations of the defendant's
involvement in other, uncharged crimes is identical to one of the
central considerations
[**21]
underlying the general rule of grand jury secrecy. n8 Courts have
recognized that the target of a grand jury investigation has an interest
in preventing the disclosure of allegations of criminality which he or
she has had no opportunity to rebut, and which may be based on nothing
more than rumor or speculation. n9 The Supreme Court has
[*232]
recognized the privacy interest of uncharged or acquitted targets, and
has suggested that the secrecy of grand jury materials is a significant
factor mitigating any concern about the procedural informality of grand
jury proceedings themselves.
Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 566-67 n. 11,
75 L. Ed. 2d 281, 103 S. Ct. 1356 (1983) ("grand jury secrecy has
traditionally been invoked to justify the limited procedural safeguards
available to witnesses and persons under investigation"). Similarly,
presentence investigation reports are not constrained by rules of
evidence or procedure, and may include allegations that the defendant
has committed other offenses. The defendant is given only a limited
opportunity to rebut the factual allegations contained in the report. If
these reports were routinely made available
[**22] to the
public, such a practice would raise serious questions about the fairness
of imputing criminal culpability to a defendant (and disclosing highly
personal information) without the procedural safeguards attendant to a
criminal trial.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 As the references to the treatment of grand jury materials throughout
this opinion indicate, we believe that presentence reports should
generally remain confidential for the same reasons supporting grand jury
secrecy.
United States v. Charmer Indus., Inc., 711 F.2d 1164, 1175 (2d
Cir. 1983) (noting that "the presentence report [] bear[s] many of
the characteristics -- and frailties -- of material presented to a grand
jury"). For a discussion of the factors underlying the general rule of
grand jury secrecy, see
United States v. John Doe, Inc. I, 481 U.S. 102, 109 n. 5, 95 L.
Ed. 2d 94, 107 S. Ct. 1656 (1987);
United States v. Sells Eng'g, Inc., 463 U.S. 418, 424, 77 L. Ed.
2d 743, 103 S. Ct. 3133 (1983);
Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 564 n. 8,
566-67 n. 11, 75 L. Ed. 2d 281, 103 S. Ct. 1356 (1983);
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19,
60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979);
United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6,
2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958) (quoting
United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954));
Hernly v. United States, 832 F.2d 980, 983-84 (7th Cir. 1987);
Lucas v. Turner, 725 F.2d 1095, 1099-1100 (7th Cir. 1984). [**23]
n9
See, e.g.,
United States v. Sells Eng'g, Inc., 463 U.S. 418, 424, 77 L. Ed.
2d 743, 103 S. Ct. 3133 (1983) ("Grand jury secrecy [] is 'as
important for the protection of the innocent as for the pursuit of the
guilty.'") (citation omitted);
United States v. Fischbach & Moore, Inc., 776 F.2d 839, 844 (9th
Cir. 1985);
Lucas v. Turner, 725 F.2d 1095, 1100, 1107 (7th Cir. 1984);
In re Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894,
895-96 (7th Cir. 1973) (noting, as factors justifying grand jury
secrecy, "the interest of a witness against disclosure of others'
testimony which he has had no opportunity to cross-examine or rebut" and
"the interest of those unfavorably mentioned in prosecutors' questions
or witnesses' answers");
In re Petition to Inspect and Copy Grand Jury Materials, 576 F.
Supp. 1275, 1281 (S.D.Fla. 1983), aff'd,
735 F.2d 1261 (11th Cir.),
cert. denied,
469 U.S. 884, 105 S. Ct. 254, 83 L. Ed. 2d 191 (1984); cf.
The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210,
slip op. at 3987-89 (9th Cir. 1989) (refusing to disclose affidavits
submitted in connection with search warrant applications, due in large
part to privacy and reputational interests of as-yet-unindicted persons
named in affidavits);
United States v. Smith, 776 F.2d 1104, 1113-14 (3d Cir. 1985)
(refusing to release portion of bill of particulars containing names of
unindicted co-conspirators).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**24]
Rule 32(c)(2)(D) also provides that the presentence report should
contain a statement assessing "the financial, social, psychological, and
medical impact" of the crime on its victims. Thus, quite apart from
information about the defendant, the presentence report may also contain
personal information concerning the crime victim's physical, emotional
and financial injuries.
See The Presentence Investigation Report
10 (including, in sample victim impact statement, fact that victim
suffers from "anxiety attacks," needs psychiatric counseling, and is in
precarious financial condition). The wide dissemination of this
information would discourage participation by victims in the sentencing
process, thus frustrating an important goal of Rule 32.
B.
Possible Adverse Effects of Disclosure on the Free Flow of
Information to the Sentencing Judge
The sentencing court has a substantial interest in insuring that all
information relevant to the sentencing decision is made available to the
court. The Supreme Court recognized forty years ago that "conscientious
judges" seek "to sentence persons on the best available information
rather than on guesswork and inadequate information."
Williams v. New York, 337 U.S. 241, 249, 93 L. Ed. 1337, 69 S.
Ct. 1079 (1949). [**25] The
Court accepted, as an obvious proposition, that "most of the information
now relied upon by judges to guide them in the intelligent imposition of
sentences would be unavailable if information were restricted to that
given in open court by witnesses subject to cross-examination."
Id. at 250.
Lower courts addressing third parties' requests for access to
presentence reports have relied upon the Supreme Court's basic insight
that publication of the contents of a presentence report would tend to
discourage full disclosure to the sentencing judge. In
United States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1973),
this court recognized that "requiring disclosure of a presentence report
is contrary to the public interest as it would adversely affect the
sentencing court's ability to obtain data on a confidential basis from
the accused and from sources independent of the accused for use in the
sentencing process."
See also
United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984);
United States v. [*233] Cyphers,
553 F.2d 1064, 1069 (7th Cir.),
cert. denied,
434 U.S. 843, 54 L. Ed. 2d 107, 98 S. Ct. 142 (1977). [**26] n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 This "free flow of information" rationale has been accepted as a
factor favoring nondisclosure by other courts considering this issue.
United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985),
cert. denied,
475 U.S. 1014, 89 L. Ed. 2d 309, 106 S. Ct. 1194 (1986);
United States v. Charmer Indus., Inc., 711 F.2d 1164, 1171 (2d
Cir. 1983);
United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1977)
(per curiam);
United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir. 1976);
United States v. Boesky, 674 F. Supp. 1128, 1130 (S.D.N.Y. 1987);
Hancock Bros., Inc. v. Jones, 293 F. Supp. 1229, 1232 (N.D.Cal.
1968).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In
United States v. Schlette, 842 F.2d 1574, 1580 (1988), the
Ninth Circuit recently rejected the argument that the flow of
information to the sentencing judge would be curtailed if presentence
reports were more widely disseminated. The court based
[**27] its
analysis on an empirical study of the effect of disclosure
to the
defendant on the information received through the presentence
report, and on "common sense": "Because Rule 32(c) mandates disclosure
of significant portions of the presentence report to the defendant, . .
. 'if any chilling of sources were to occur, this disclosure would
certainly trigger it.'"
Id. (citation omitted). We cannot fully
accept the Ninth Circuit's reasoning, whether based on empirics or
"common sense."
With regard to Schlette's "common sense" finding that the prospect of
disclosure of the presentence report to the defendant is the only factor
which might discourage potential witnesses, we simply disagree.
Certainly, persons questioned about the defendant's character might be
more forthcoming if they could be assured that the defendant would not
have access to their comments. However, simply because an individual is
willing to speak, knowing his or her comments will be disclosed to the
defendant, does not indicate that the witness is willing to have those
comments broadcast to the public at large.
See
United States v. Charmer Indus., Inc., 711 F.2d 1164, 1174-75 (2d
Cir. 1983); [**28]
Hancock Bros., Inc. v. Jones, 293 F. Supp. 1229, 1234 (N.D.Cal.
1968) ("Reprisal by the defendant is only one event to guard against
in promoting free and untrammeled disclosures by persons who have
information necessary for sentencing or grand jury purposes."). n11
Moreover, the desire to avoid being publicly associated with a convicted
criminal (by supplying information for the presentence report) might
apply equally to individuals who have favorable impressions of the
defendant as well as to individuals who possess adverse information. It
is in the best interests of the defendant, and society at large, that
this information be disclosed to the court before sentence is imposed.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 Similarly, even where a witness' grand jury testimony has been
disclosed to the criminal defendant or grand jury target, courts have
still found that the individual witness retains an interest in
preventing the wholesale disclosure of that testimony to third parties.
See, e.g.,
State of Illinois v. Sarbaugh, 552 F.2d 768, 775 (7th Cir.),
cert. denied sub nom.
J.L. Simmons, Inc. v. Illinois, 434 U.S. 889, 54 L. Ed. 2d 174,
98 S. Ct. 262 (1977).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**29]
Schlette's intuition that broader disclosure would not affect the
information received by the sentencing court also ignores the most
important source of presentence information: the defendant. The
Administrative Office's manual for probation officers provides that the
defendant should be interviewed at least twice, with one interview in
the defendant's home, in order "to establish a cooperative relationship
and to give the defendant confidence in the probation officer."
The
Presentence Investigation Report 3. The manual stresses that the
presentence investigation can be an important first step in the
rehabilitation of the defendant.
During the presentence investigation the defendant may be amenable
to personal change. The investigation may have both a salutary and
traumatic effect on the defendant. The crisis of the situation often
brings about a reevaluation of the offender's personal situation.
Thus, it is an excellent time to develop a positive atmosphere for
the subsequent supervisory relationship.
[*234]
Id. at 4. n12 Certainly, the defendant will not be deterred from
speaking sincerely and forthrightly by the disclosure regime of Rule 32.
However,
[**30] the
defendant might be reluctant to disclose details of his or her private
life due to the possibility that the contents of the presentence report
might one day end up in a newspaper. The defendant should not be denied
the opportunity to participate fully in the important rehabilitative
process of the presentence investigation because of the risk that
intimate details of his or her personal life may eventually be
published. Nor should the sentencing court be denied this highly
relevant information, which may provide greater insight into the
defendant's character than all other sources of presentence information
combined.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12
See also id. at 10 (defendant's version of the offense may be
especially helpful to a full understanding of defendant's character and
motivations); Fennell & Hall,
supra note 7, at 1623-25 & n. 51
(confronting defendant with apparently false statements from earlier
interviews may provide valuable insights into defendant's character and
extent of remorse).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Schlette's empirical
[**31]
analysis is not sufficient to overcome our belief that broader
disclosure of presentence reports would tend to reduce the information
available to the sentencing court.
Schlette relied exclusively on
a single study prepared for the Federal Judicial Center as support for
its empirical analysis. The main focus of this study, (published as
Fennell and Hall,
Due Process at Sentencing: An Empirical and Legal
Analysis of the Disclosure of Presentence Reports in Federal Courts,
93 Harv.L.Rev. 1613 (1980)), was on the effects of disclosure
to the
defendant on the quality and quantity of presentence information
received by the court; it concluded that defense access to the
presentence report had not had an appreciable effect on the "free flow
of information" to the sentencing judge. However, the report noted that
"third-party disclosure may adversely affect the court's ability to
obtain information,"
id. at 1684, and included in its
recommendations a suggestion that "the district courts should restrict
noncorrectional parties' access to the presentence report."
Id.
at 1696. We fail to see how this study supports the Ninth Circuit's
[**32]
conclusion that third-party access to the presentence report would not
adversely affect the information received by the sentencing court.
More generally, we reject
Schlette's analytical approach, which
focuses narrowly on the risks of disclosure of a
particular
presentence report. We believe that a district court faced with a
request for access to a presentence report should take a broader view,
and examine the potential effects of disclosure on future presentence
investigations. In a related area, the Supreme Court has stressed that a
district judge ruling on a petition for disclosure of grand jury
materials must consider the possible "systemic effects" of disclosure on
future grand juries before releasing grand jury materials in any
particular case.
In considering the effects of disclosure on grand jury proceedings,
the courts must consider not only the immediate effects upon a
particular grand jury, but also the possible effect upon the
functioning of future grand juries. Persons called upon to testify
will consider the likelihood that their testimony may one day be
disclosed to outside parties. Fear of future retribution or social
stigma may act as powerful deterrents [**33] to
those who would come forward and aid the grand jury in the
performance of its duties.
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 60
L. Ed. 2d 156, 99 S. Ct. 1667 (1979). n13 A district judge
[*235]
should follow a similar approach when ruling on a request for disclosure
of a presentence report, and ask whether disclosure would have untoward
effects on the gathering of information in future presentence
investigations.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13
See also, e.g.,
Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 566 n. 11, 75
L. Ed. 2d 281, 103 S. Ct. 1356 (1983);
United States v. Alexander, 860 F.2d 508, 514 (2d Cir. 1988);
In re Request for Access to Grand Jury Materials (Hastings), 833
F.2d 1438, 1441 (11th Cir. 1987);
Hernly v. United States, 832 F.2d 980, 984 (7th Cir. 1987);
United States v. Fischbach & Moore, Inc., 776 F.2d 839, 844 (9th
Cir. 1985) ("The broader societal interest in protecting grand jury
secrecy remains, even though disclosure to one party [in a civil
lawsuit] may have defeated the secrecy interests of a particular witness
or the party accused before the grand jury.");
Lucas v. Turner, 725 F.2d 1095, 1101, 1107-08 (7th Cir. 1984);
State of Illinois v. Sarbaugh, 552 F.2d 768, 775 (7th Cir.),
cert. denied sub nom.
J.L. Simmons, Inc. v. Illinois, 434 U.S. 889, 54 L. Ed. 2d 174,
98 S. Ct. 262 (1977).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**34]
C.
Government's Interest in Preventing Disclosure of Grand Jury
Materials, and Information Which May Compromise Ongoing Criminal
Investigations
The government also has an interest in preventing the disclosure of
presentence reports. The presentence report will often contain
information regarding the defendant's past or future cooperation with
the government. The report may also include information conveyed by
informants or cooperating codefendants regarding the defendant's
relative culpability for the offense for which he has been convicted,
and the defendant's involvement in other crimes which may be under
investigation. Especially where the defendant was a member of an
organized, ongoing criminal enterprise, disclosure may pose a
substantial risk to the safety of government informants, even though the
defendant is incarcerated. And disclosure of the defendant's cooperation
with the government may increase the risk of retaliation against the
defendant, both during his or her imprisonment, and upon release.
Therefore widespread disclosure of the presentence report may obstruct
the government's ability to investigate crimes.
See
United States v. Boesky, 674 F. Supp. 1128, 1129-30 (S.D.N.Y.
1987) [**35] (fact
that presentence report would reveal defendant's involvement in ongoing
criminal investigation justifies nondisclosure). n14
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 Courts upholding the secrecy of grand jury materials have also noted
the government's paramount interest in preventing the release of
information which may reveal the direction and progress of ongoing
criminal investigations.
See generally cases cited
supra
note 8.
See also
The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210,
slip op. at 3985-87 (9th Cir. 1989) (pre-indictment release of
affidavits supporting issuance of search warrants may jeopardize ongoing
investigation, and therefore disclosure inappropriate).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The presentence report may also contain information derived from grand
jury materials. Grand jury proceedings are protected under a separate,
related rule of secrecy, and their indirect disclosure through the wide
dissemination of presentence reports would be unacceptable. In a recent
decision, the Second Circuit approved the district
[**36]
court's consideration of grand jury materials in sentencing, but found
that the court had erred by permitting public disclosure of the
materials; the court suggested that the grand jury materials should have
been filed under seal, "parallel[ing] the treatment given to presentence
reports."
United States v. Alexander, 860 F.2d 508, 513-14 (2d Cir. 1988).
D.
Relevance of Mandatory Disclosure to the Defendant Under
Rule 32 of the Federal Rules of Criminal Procedure
The district court relied on "th[e] gradual relaxation of Rule 32's
restraints on disclosure" to support its conclusion that the "tradition
of confidentiality, without more, does not justify withholding
presentence reports." We cannot agree that the amendments to Rule 32
have any significant bearing on the issue of third-party access to
presentence reports.
As the American Bar Association has noted, "no issue in the law of
sentencing has attracted the same sustained attention and controversy as
that of the defendant's asserted right to disclosure of the presentence
report."
Standards for Criminal Justice Standard 18-5.4,
commentary at 18-364 to -365 (2d ed. 1980). Initially, Rule 32 was
[**37] silent
as to the defendant's right to inspect the presentence report;
subsequently, the rule authorized the district court to release the
report upon request; finally, the rule was amended in 1983 to
require
disclosure to the defendant, request or no.
See generally,
United States Dep't of Justice v. Julian, 486 U.S. 1, 108 S. Ct.
1606, 1611-12, 100 L. Ed. 2d 1 (1988) [*236]
(outlining history of, and reasons for, successive amendments of Rule
32). Throughout the debate the central issue was one of fairness to the
defendant: if the defendant had the right to an open proceeding, to the
assistance of counsel and to confront his accusers in the guilt phase of
a criminal trial, how could a sentencing proceeding be conducted, in
effect, "behind [the defendant's] back"? Model Penal Code § 7.07,
commentary at 292-93 n. 16 (revised ed. 1985) (quoting comments of Judge
John J. Parker during ALI debates on model code). Based on these
concerns, and in order to insure the factual accuracy of the presentence
report, the Federal Rules of Criminal Procedure were gradually modified
to guarantee the defendant a meaningful opportunity to inspect and
challenge the contents
[**38] of the
report.
However, while the bonds of secrecy surrounding the presentence report
were loosened to permit defense access, the framers of the Federal Rules
remained sensitive to the concerns of law enforcement officials that
unlimited access to the report might discourage full disclosure of
relevant information to the sentencing judge, and might jeopardize
ongoing criminal investigations. Thus, unless the district court directs
otherwise, Rule 32(c)(3)(E) requires that "copies of the presentence
investigation report made available to the defendant . . . shall be
returned to the probation officer immediately following the imposition
of sentence." The Advisory Committee Notes to the 1974 amendment of Rule
32 make clear that this return requirement is meant "to insure that
[presentence reports] do not become available to unauthorized persons.
'Such reports shall be part of the record but shall be sealed and opened
only on order of the court.'"
62 F.R.D. 271, 325 (citation omitted);
see also
United States Dep't of Justice v. Julian, 108 S. Ct. at 1615
(Scalia, J., dissenting) (quoting letter of Chief of Probation Division,
indicating that main concern
[**39] with
defendant's retention of presentence report is that "there would be no
way of effectively prohibiting further disclosure of the information to
third parties"). As the government correctly notes in its brief,
acceptance of Pulitzer's argument that the presentence report should be
disclosed to the press routinely would eviscerate Rule 32's careful
specification of the chain of custody of the report.
Despite the amendments to Rule 32 mandating disclosure to the defendant
in all cases, the Probation Division of the Administrative Office of the
United States Courts continues to take the position that the presentence
report is a confidential document, which should be disclosed only to
correctional authorities.
The Presentence Investigation Report 2.
The Administrative Office also recommends that the probation officer
obtain the defendant's written consent prior to any third-party
disclosure.
Id. at 3.
Similarly, the ABA's
Standards for Criminal Justice, while
mandating disclosure of the presentence report to the defendant based on
considerations of "fundamental fairness," Standard 18-5.4(a), also state
quite emphatically that the report should not be disclosed
[**40] to
third parties, except the sentencing and appellate courts, and persons
having a "legitimate professional interest" in the report's contents.
Standard 18-5.3. The commentary notes:
These standards take the position that the presentence report should
not be a matter of public record. No legitimate interests are served
by public disclosure. The incentive both for the offender and for
sources close to the offender to cooperate candidly in the
presentence investigation might be lessened if they knew that their
statements could become part of the public record. Alternatively,
the desire to protect sources from harassment and revenge might lead
to the preparation of presentence reports that fail to convey
candidly the information gathered. . . . In turn, such evasive
phrasings might also make effective rebuttal of the report
impossible. Finally, the offender has a continuing right to privacy
in matters in his or her life and background that are not connected
with the offense for which the offender stands convicted. An obvious
social interest exists in minimizing unnecessary stigmatization [*237] of
the offender, since any failure to facilitate the eventual reentry
of offenders [**41] into
society is in turn a likely cause of recidivism.
Id. at 18-362.
The successive amendments of Rule 32, culminating in an extremely broad
right of access for defendants, are based on compelling considerations
of fairness to the person most directly affected by the contents of the
presentence report -- the defendant. These considerations have no
relevance to third-party requests for access. In fact, to the limited
extent that the procedures for defense access have any bearing on the
present inquiry, they would suggest that third-party access to a
presentence report should be an infrequent occurrence.
IV.
Showing Required to Justify Disclosure of Presentence Report
The considerations discussed above demonstrate that, as a general
matter, public disclosure of the contents of presentence reports would
interfere with the proper functioning of the probation office and the
sentencing court. The presentence investigation is a pr