United States v. Hamad

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Appellee, -

UNITED STATES OF AMERICA,

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No. 05-4196

v.

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HATEM MAHMOUD HAMAD, -

Appellant. -

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Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 05-00074—David D. Dowd, Jr., District Judge.

Argued: April 25, 2007

Decided and Filed: July 19, 2007

Before: GILMAN and SUTTON, Circuit Judges; TARNOW, District Judge.*

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COUNSEL

ARGUED: David C. Jack, Wadsworth, Ohio, for Appellant. Mark S. Bennett, UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. Douglas A. Berman, THE OHIO STATE

UNIVERSITY, MORITZ COLLEGE OF LAW, Columbus, Ohio, as court-appointed Amicus

Curiae. ON BRIEF: David C. Jack, Wadsworth, Ohio, for Appellant. Vasile C. Katsaros,

UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. Douglas A. Berman, THE OHIO

STATE UNIVERSITY, MORITZ COLLEGE OF LAW, Columbus, Ohio, as court-appointed

Amicus Curiae.

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OPINION

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SUTTON, Circuit Judge. What happens when a district court, applying the advisory

sentencing guidelines, not only increases a sentence based on its own fact findings but also does so

on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32

of the Federal Rules of Criminal Procedure would authorize this procedure; another would not.

Because the escalation of a sentence based on undisclosed evidence raises serious due process

concerns, we construe the rule to require a sentencing court either to disclose sufficient details about

*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

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the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain

from relying on the evidence. We vacate Hatem Hamad’s sentence and remand for resentencing.

I.

When Warren County (Ohio) police officers responded to the scene of a reported fight, they

met Nick Loomis, who claimed that he had just been stabbed by his neighbor, Hatem Hamad. At

Hamad’s nearby residence, the officers met Hamad’s wife, who told them that her husband kept

weapons in the home—two, to be exact, a semi-automatic pistol and a shotgun.

A federal grand jury indicted Hamad for (1) violating the felon-in-possession statute (he

previously had been convicted of distributing cocaine), see 18 U.S.C. § 922(g)(1), and (2) failing

to register a shotgun with a barrel shorter than 18 inches, see 26 U.S.C. § 5861(d). Hamad pleaded

guilty to both offenses.

The district court scheduled Hamad’s sentencing hearing for August 2, 2005. A day before

the hearing, the court postponed it, explaining that the court had received “in chambers a number

of documents that reflect poorly on the defendant.” JA 20. The documents, the court noted, “were

submitted with a request that the information be kept confidential.” In an effort to comply with

Criminal Rule 32, which permits the submission of confidential information at sentencing as long

as the court provides a summary of the information to the defendant and gives him a reasonable

opportunity to respond, see Fed. R. Crim. P. 32(d)(3)(B) & 32(i)(1)(B), the district court provided

the following summary of the documents:

In a general sense, the documents describe a man who has been violent with his own

wife and children, threatens harm to other persons, treats his wife as an inferior

person because of her gender and should be considered a dangerous man. The

information supplied predicts that when the defendant is released from confinement

and rejoins society he will continue to be abusive to his family and will come to a

new neighborhood with no warning signs.

Id.

Also attached to the court’s order was a public letter jointly written by Warren’s Mayor and

its Director of Public Service and Safety. The letter described Hamad as “a menace and a threat to

the lives of the many good and law-abiding citizens in [their] community,” noted that “[t]here ha[d]

been several incidents where Hatem Hamad [had] demonstrated his abusive and violent temperament

by inflicting harm to others without remorse” and requested that the court sentence him “to a lengthy

and extended incarceration.” JA 22.

After receiving this information, the district court indicated that it was considering imposing

a sentence above the 41–51 month guidelines range, rescheduled the sentencing hearing and placed

the documents under seal.

Hamad moved to disclose the full contents of the documents, arguing that the court’s reliance

on them to increase his sentence would violate Criminal Rule 32 and, if not that, the Federal

Constitution. Reasoning that its prior order provided “a fair summary” of the information, as

required by Criminal Rule 32, and that “a failure to provide a more thorough disclosure would not

be prejudicial” to Hamad, the district court denied the motion. JA 45. At the same time, it offered

to disclose the documents to Hamad’s counsel and the government in camera on the condition that

counsel “not reveal the particulars of the accusations in such a manner as to identify the person or

persons supplying [the] information.” Id.

No. 05-4196 United States v. Hamad Page 3

Hamad’s counsel declined the offer, explaining that he could not adequately rebut the

evidence if he could not discuss it with Hamad. Without additional information, counsel observed,

Hamad would not be able to tell him that, say, “Jim Blow is a crack head who [has] had it in for me

since day one” and, even if counsel could satisfactorily investigate the information contained in the

documents himself, he could not present the fruits of any investigation in court if it “might arguably

reveal to my client” that the “information . . . might have come from Jim Blow.” JA 55–56. The

district court repeated its view that the summary was “adequate to prepare [Hamad] for the

sentencing hearing,” JA 58, but recognized that “there is a great deal more that’s contained here that

[counsel did] not have,” JA 53.

At the hearing, counsel noted that Hamad’s wife and children were there to support him.

Although counsel offered to let the court question them in chambers, he declined to offer their

testimony. In addressing the mayor’s letter, counsel noted that the mayor must have relied on

second-hand information in writing the letter because Hamad and the mayor had never met and the

Warren police had never arrested Hamad. Hamad testified that he was a good husband and father,

that he did not view women as inferior, that it bothered him that people were making false

allegations about him and that, since the September 11, 2001 terrorist attacks, he had been targeted

unfairly because he is a Muslim. Hamad’s counsel recommended a sentence at the bottom of the

41–51 month range.

The district court sentenced Hamad to 48 months’ imprisonment. “[T]o be very clear,” the

court acknowledged, it had “taken into consideration materials that [were] under seal, and ha[d]

relied upon them in the exercise of [its] discretion within the advisory guideline range.” JA 97. The

district court denied Hamad’s motion to unseal the confidential documents during appeal and

ordered the clerk to send the sealed documents to the Sixth Circuit.

On appeal, our court initially slated the case for disposition without oral argument. In view

of the district court’s candid acknowledgment that it had relied on the sealed documents presented

to the court and in view of the question whether Criminal Rule 32 authorizes this procedure, or

indeed whether the United States Constitution permits it, we scheduled the case for oral argument.

We also appointed Douglas A. Berman, Esq., a Professor of Law at the Moritz College of Law at

The Ohio State University, as an amicus curiae to offer written and oral presentations about the

appropriate resolution of the appeal. We are grateful for his assistance and, as always, for the

assistance provided by counsel for both parties.

II.

A.

Two provisions of Criminal Rule 32 have a direct bearing on this appeal. “The presentence

report,” Rule 32(d)(3) says, “must exclude”:

(A) any diagnoses that, if disclosed, might seriously disrupt a

rehabilitation program;

(B) any sources of information obtained upon a promise of

confidentiality; and

(C) any other information that, if disclosed, might result in physical

or other harm to the defendant or others.

(Emphasis added.) Rule 32(i)(1)(B) says that a sentencing court “must give to the defendant and

an attorney for the government a written summary of—or summarize in camera—any information

No. 05-4196 United States v. Hamad Page 4

excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing,

and give them a reasonable opportunity to comment on that information.”

Under one reading of these provisions, the district court did all that Criminal Rule 32 asks

of it. The court correctly recognized that the rule applies even when confidential information is

given directly to the district court, as opposed to the probation department. See United States v.

Hayes, 171 F.3d 389, 393–94 (6th Cir. 1999). Although Rule 32(e)(2) deals expressly only “with

the right to review the presentence investigation report,” Hayes explained that “the right to review

other information relied on by a court at sentencing is implicit in the adversarial scheme created by

Rule 32 . . . .” Id. at 392; see also id. at 394 (recognizing that district courts need not always funnel

ex parte information through the probation department, particularly when “the court receives

[information] after the presentence report has been prepared”).

The court, at first glance, also appears to have complied with the requirements of these

provisions. It did not disclose the confidential information. See Fed. R. Crim. P. 32(d)(3)(B). It

provided a “written summary” of the confidential information to the parties. See Fed. R. Crim. P.

32(i)(1)(B). And by all appearances it gave Hamad all the notice and time he needed to

respond—what the rule refers to as a “reasonable opportunity to comment.” See Fed. R. Crim. P.

32(i)(1)(B). Having reviewed the confidential documents ourselves, we can add that the court

accurately summarized them and that, had the court been more specific about the contents of the

documents, it would have risked exposing the sources of the information. Cf. United States v.

Scalzo, 716 F.2d 463, 466 (7th Cir. 1983) (“The trial court must, on a case by case basis, balance

the policy of making disclosure as specific as possible with the need to preserve confidentiality.”)

(internal quotation marks omitted); United States v. Woody, 567 F.2d 1353, 1362 (5th Cir. 1978)

(“In some cases, because of the need to protect sources . . . the summary may be very general and

of little help to the defendant in either providing additional information or in commenting on the

substance of the report or challenging its factual accuracy.”) (internal quotation marks omitted).

But the district court’s interpretation of these rules is not the only plausible reading of them,

and it is not the one we adopt. First, as applied to this case, the district court’s sentencing procedure

raises serious constitutional concerns—even if the required summary was as accurate and as specific

as it could be without disclosing its sources and even if the defendant was given as much time as he

wished and as many witnesses as he needed to respond to the summary. The fact remains that the

court did not—and could not—disclose sufficient information to allow the defendant to counter or

test the reliability of this evidence that he was a dangerous person and a blight on the community,

and the fact remains that the court relied on this information in increasing his sentence.

A sentencing hearing, we recognize, is not a criminal trial, and many of the constitutional

requirements of a criminal trial do not apply at sentencing. See Williams v. New York, 337 U.S. 241

(1949). The Rules of Evidence do not apply at sentencing, see Fed. R. Evid. 1101(d)(3), and due

process does not require otherwise, Williams, 337 U.S. at 251 (“The due-process clause should not

be treated as a device for freezing the evidential procedure of sentencing in the mold of trial

procedure.”). Congress prefers the inclusion rather than the exclusion of information at sentencing,

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.”), a preference that during

most of the twentieth century led the courts and the rules’ drafters to favor the completeness of

information presented at sentencing over its accuracy. See Stephen A. Fennell & William N. Hall,

Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence

Reports in Federal Courts, 93 Harv. L. Rev. 1615, 1632–35 (1980).

While the Constitution requires evidence submitted at a criminal trial to be assessed under

a “beyond a reasonable doubt” standard, In re Winship, 397 U.S. 358, 364 (1970), it could be said

No. 05-4196 United States v. Hamad Page 5

as late as 1986 that “[s]entencing courts have traditionally heard evidence and found facts without

any prescribed burden of proof at all.” McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986). The right

to confront adverse witnesses and to prohibit the introduction of testimonial hearsay without cross-

examination does not apply at sentencing. See United States v. Katzopoulos, 437 F.3d 569, 576 (6th

Cir. 2006); United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992) (en banc); see also

Williams, 337 U.S. at 250 (“The type and extent of [sentencing] information make totally impractical

if not impossible open court testimony with cross-examination.”) (applying the Due Process Clause

at a time when the Court had not yet incorporated the Confrontation Clause); Williams v. Oklahoma,

358 U.S. 576, 584 (1959). Until the amendment of Criminal Rule 32 in 1975, the Criminal Rules

did not make the disclosure of a presentence report to the defendant mandatory, see Federal Rules

of Criminal Procedure Amendments Act of 1975, Pub. L. 94-64, § 2, 89 Stat. 370, and our court (and

several other courts of appeals) upheld the validity of this procedure in the face of due process

challenges. See United States v. Lowe, 482 F.3d 1357, 1359 (6th Cir. 1973) (per curiam) (citing

cases). Even the Apprendi-Blakely-Booker right to have a jury make fact findings used to increase

a sentence, which by its terms does apply at sentencing, does not cover this case because the judge

did not apply his findings of fact to a mandatory guidelines system. See United States v. Booker,

543 U.S. 220, 245 (2005).

While many of the protections, constitutional or otherwise, that guard a criminal defendant’s

procedural rights at trial have not historically applied at sentencing or to this type of case, that does

not end the inquiry. Most of these decisions applied to a different sentencing regime from the one

we consider today. Today, district courts face an elaborate set of sentencing guidelines under which

a district court must compute a recommended guidelines range and consider, if not necessarily

follow, that recommendation—and relief from those sentences through parole is the exception, not

the rule. Then, district courts sentenced individuals under an utterly indeterminate sentencing

regime and were not required to make fact-based sentencing computations in determining a

sentence—and relief from those sentences through parole was the rule, not the exception. Under

today’s system, it remains unclear whether the Constitution gives sentencing courts a free hand to

rely on undisclosed—or, to be more dramatic, secret—accusations that increase an individual’s

sentence. When the Court in Williams v. New York determined that the Constitution does not give

a criminal defendant the right to cross-examine witnesses against him at sentencing, it was careful

to point out that this did not mean that “sentencing procedure[s] [are] immune from scrutiny under

the due-process clause.” Williams, 337 U.S. at 252 n.18. Other cases prove the point. See, e.g.,

Mempa v. Rhay, 389 U.S. 128, 137 (1967) (due process right to counsel at sentencing); Brady v.

Maryland, 373 U.S. 83, 87 (1963) (due process right to obtain evidence favorable to the accused,

held by the government and “material either to guilt or to punishment”) (emphasis added); Townsend

v. Burke, 334 U.S. 736, 741 (1948) (due process right to ensure that sentence was not based upon

“assumptions concerning [defendant’s] criminal record which were materially untrue”); cf. Gardner

v. Florida, 430 U.S. 349, 362 (1977) (plurality) (qualifying Williams v. New York in the context of

capital cases and holding that defendant had a due process right not to receive a death sentence

based on information that he “had no opportunity to deny or explain”).

The upshot is this: while a defendant may not have the constitutional right to confront the

witnesses against him at sentencing, it remains unclear under modern sentencing practices what due

process right he has to know who these witnesses are and what they have said, to respond

meaningfully to the accusations or otherwise to ensure that the accusations are accurate. Although

“[t]he district court may consider hearsay evidence in determining a sentence, . . . the accused must

be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability

in respect of defendant’s right to due process.” Silverman, 976 F.2d at 1512 (internal quotation

marks and emphasis omitted); see Scalzo, 716 F.2d at 466 (noting the “fundamental and undisputed”

due process “right of a defendant to be sentenced on the basis of accurate information”).

No. 05-4196 United States v. Hamad Page 6

Second, we need not determine the scope, or even the existence, of this due process right nor

whether the district court violated it by increasing Hamad’s sentence based on confidential

accusations. When a court faces two plausible interpretations of a law, it may—indeed

must—resolve the ambiguity on the basis of the interpretation that sidesteps rather than precipitates

resolution of the constitutional question. See Jones v. United States, 529 U.S. 848, 858 (2000)

(“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful

constitutional questions arise and by the other of which such questions are avoided, our duty is to

adopt the latter.”) (internal quotation marks omitted); Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Califano v. Yamaski, 442 U.S. 682, 693

(1979). Otherwise, the court would be attributing to the lawmakers an intention to adopt a statute

(or rule) that implicates a serious question about limits on their authority rather than attributing to

them the more respectful intention of acting well within their constitutional authority. See Burns

v. United States, 501 U.S. 129, 138 (1991) (“declin[ing] to impute . . . an intention to Congress” to

adopt a Rule of Criminal Procedure that would allow a district court “sua sponte [to] depart upward

from an applicable Guidelines sentencing range without providing notice to the defendant”).

Third, the path of least constitutional resistance remains open to us here. There is another

way of reading one of the provisions before us—Rule 32(i)(1)(B)—that diminishes, if not

eliminates, the due process issue. The provision, recall, says that a sentencing court must provide

the parties with a “summary” of the confidential information and must give the parties “a reasonable

opportunity to comment on that information.” Fed. R. Crim P. 32(i)(1)(B). The requirement of a

“summary,” when read in conjunction with Criminal Rule 32(d)(3)(B)’s prohibition on disclosing

confidential information, indicates that the summary may not disclose the source of the information

or what comes to the same thing: revealing so many details as to make that source knowable.

The question is whether one can fairly say that a defendant has “a reasonable opportunity

to comment on that information” when the court has summarized it so generally that a meaningful

response is not possible. The right created by the rule is the right to comment on the information

relied upon by the sentencing court, not the summary of that information. See id. (“[T]he court . . .

must give to the defendant and . . . the government a written summary of—or summarize in

camera—any information excluded from the presentence report . . . on which the court will rely in

sentencing, and give them a reasonable opportunity to comment on that information.”) (emphases

added). The “reasonable opportunity to comment” proviso, in other words, may be read in one of

two ways. It could be read to require the court to give the defendant reasonable notice of the

confidential information through an accurate summary of it, a reasonable time to prepare a response

and a reasonable opportunity at the sentencing hearing to put on as many witnesses as need be to

respond to the information disclosed—which is how the district court read the rule. Or it could be

read to say that a defendant never has a reasonable opportunity to respond when the summary—due

to a promise of confidentiality and the nature of the charge—cannot offer the defendant sufficient

information to form a meaningful response.

The two central policies underlying Rule 32 cut in opposite directions. The rule plainly

seeks to maximize the amount of information available to district courts in exercising their

sentencing discretion. See Fed. R. Crim. P. 32(d)(2) (requiring presentence report to include “the

defendant’s history and characteristics” and “the financial, social, psychological, and medical impact

on any individual against whom the offense has been committed”); see also 18 U.S.C. § 3661. Read

in light of this consideration, we could permit sentencing courts to rely on confidential information

even when the summary makes a meaningful response unrealistic. At the same time, the procedural

requirements of this provision and the rest of Rule 32 plainly advance due process concerns. See

United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000) (“This Circuit has consistently

construed the requirements of Rule 32 in a strict manner, largely because the rule protects a

defendant’s right to due process.”); Hayes, 171 F.3d at 392 (“Federal Rule of Criminal Procedure

32 protects the right to due process by requiring disclosure of most information relied upon at

No. 05-4196 United States v. Hamad Page 7

sentencing.”). Read in light of this consideration, we could require a sentencing court under

circumstances like these either (1) to obtain permission to disclose the information or (2) to refrain

from using it in sentencing the individual.

Faced with two interpretations of the rule, each plausibly supported by the text and each

plausibly supported by a policy underlying the rule, we adopt the construction that avoids the

constitutional question. In reaching this conclusion, we take a path not unlike the one the Supreme

Court followed in Burns v. United States, 501 U.S. 129 (1991). At issue in Burns was whether

Criminal Rule 32 required a district court to give a criminal defendant notice before it sua sponte

departed from the guidelines sentencing range. At the time, Rule 32(c)(3)(A) required a court to

give the parties 10 days’ notice of the contents of the presentence report but did not contain a similar

provision requiring the court to notify the parties that it was considering a sua sponte departure.

Based on this silence, the government argued that no notice was required. In rejecting this

interpretation, the Court observed that it (1) would “render[] meaningless the parties’ express right

‘to comment upon . . . matters relating to the appropriate sentence,’” id. at 136 (quoting Fed. R.

Crim. P. 32(a)(1)), and (2) would be “inconsistent with Rule 32’s purpose of promoting focused,

adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences,” id. at

137. Of particular importance, for our purposes, the Court concluded that, “were we to read Rule

32 to dispense with notice, we would . . . have to confront the serious question whether notice in this

setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district

court sua sponte may depart upward from an applicable Guidelines sentencing range without

providing notice to the defendant we decline to impute such an intention to Congress.” Id. at 138.

For many of the same reasons the Court embraced in Burns, it seems appropriate to avoid a serious

due process question here.

B.

That leaves us with two additional tasks in resolving this appeal. One, in light of this

construction of Rule 32, did the district court’s summary give Hamad sufficient information so that

he had a “reasonable opportunity to comment” on the confidential documents? The answer is no.

The court’s summary provided only a “general sense” of the charges made by the confidential

witnesses, saying that Hamad (1) was “violent with his own wife and children,” (2) “threaten[ed]

harm to other persons,” (3) “treat[ed] his wife as an inferior person” and (4) should be generally

“considered a dangerous man.” JA 20. These accusations both attacked Hamad’s reputation—his

reputation as a husband, father and member of the community—and suggested his future

dangerousness. While Hamad retained the option of putting on witnesses saying he was a good man

and a risk to no one, it did not give him the option, in defense counsel’s words, to point out that his

accuser “is a crack head who’s had it in for [Hamad] since day one.” JA 55. Because the summary

did not refer to any specific incident or name its source(s), it did not give Hamad a “reasonable

opportunity” to rebut the information or otherwise question its accuracy. The district court’s

inability to provide Hamad with information regarding the “precise nature of any behavioral

characteristics or instances of illegal conduct,” United States v. Woody, 567 F.2d 1353, 1361–62 (5th

Cir. 1978), not only handicapped his ability to contest those accusations, but also undercut Rule 32’s

purpose of promoting “focused, adversarial resolution of the legal and factual issues relevant to

fixing Guidelines sentences,” Burns, 501 U.S. at 137. See Rita v. United States, 127 S. Ct. 2456,

2465 (2007) (“[T]he sentencing court subjects the defendant’s sentence to the thorough adversarial

testing contemplated by federal sentencing procedure.”).

It is true, as the government points out, that the district court gave Hamad ample time and

opportunity to respond to this summary. See Br. at 33 (The district court “alerted Hamad to the use

of the sealed information fully two weeks prior to the sentencing hearing.”); id. at 33–34 (“[D]uring

the actual sentencing hearing, the court provided Hamad with a full opportunity to contest the

substance of the information relied upon, as contained in the Mayor’s letter and the summary

No. 05-4196 United States v. Hamad Page 8

provided by the court.”). But, in this case, no amount of notice and opportunity to respond would

have permitted Hamad to respond to these allegations fairly when only we, and not Hamad, have

seen them.

It is also true, as the government points out, that the district court offered to reveal the

confidential documents to Hamad’s counsel. Rule 32, however, directs sentencing courts to provide

information to defendants, not just their counsel. See Fed. R. Crim. P. 32(i)(1)(B) (“[T]he court . . .

must give to the defendant . . . a written summary of . . . any information excluded from the

presentence report . . . .”) (emphasis added). And as counsel pointed out in rejecting the offer, there

are some accusations that can be met only with the assistance of the client, and most accusations can

be met only by presenting evidence at the hearing that ultimately would risk disclosing to the client

who the accuser was.

Two, was this erroneous application of Rule 32 here harmless? See United States v.

Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (“[T]he fact that there was error in . . . sentencing

does not necessarily mean that [defendant] is entitled to resentencing.”). The answer again is no.

The district court to its credit candidly acknowledged that it relied on the confidential documents

in increasing Hamad’s sentence. See JA 97 (district court expressing its intention to make “the

record . . . very clear that [it had] taken into consideration materials that are under seal, and ha[d]

relied upon them in the exercise of [its] discretion within the advisory guideline range”). This

confidential information thus plainly “affect[ed] the district court’s selection of the sentence

imposed.” Hazelwood, 391 F.3d at 801 (internal quotation marks omitted). To this day, moreover,

Hamad has no way of knowing who his accuser is or how to respond to, much less impeach, the

accusations. Compare Hayes, 171 F.3d at 394 (holding that “the letters in this case contain factual

assertions and therefore are not the type of evidence that is ‘essentially irrebuttable’” and that “[w]e

will not insist that Hayes rebut evidence he has never seen in order to establish that he was

prejudiced by the district court’s reliance on that evidence”), with United States v. Meeker, 411 F.3d

736, 742 (6th Cir. 2005) (holding that district court committed harmless error by failing to provide

victim impact letters, relied on at sentencing, to the defendant; “[t]here seems to be little that Meeker

could have done to effectively rebut the heart-wrenching descriptions of his victims’ emotional

distress that were recounted in many of the letters,” and Meeker failed to explain how he could have

done so even though he was given access to the letters on appeal). By any measure, the error was

not harmless.

*****

Under Rule 32, sentencing courts will not invariably be faced with the stark choice between

obtaining permission to disclose confidential information or ignoring it. Testimony that primarily

describes the impact of a specific instance of a defendant’s behavior upon another’s emotions, for

example, frequently may be described particularly without revealing its source (so long as many

people witnessed the conduct), and at any rate it is the kind of information that, in contrast to the

information presented here, frequently will be “essentially irrebuttable.” Hayes, 171 F.3d at 394

(internal quotation marks omitted). And testimony that a defendant committed a certain act at a

certain time and place can often be described with particularity and exposed to meaningful

adversarial testing without revealing its source (again so long as many people witnessed the

conduct). A review of the sealed documents at issue in this case, however, convinces us of two

things: (1) that the district court’s summary did not give Hamad a meaningful opportunity to contest

the allegations they contained and (2) that any summary that provided such an opportunity would

almost certainly have revealed the documents’ sources. Because Hamad did not, and could not,

“reasonably comment on that information,” Hamad’s sentence violated Rule 32(i)(1)(B).

In assessing our resolution of this appeal, the reader no doubt wonders what these letters

said. How else to know whether we have handled the case correctly? That curiosity, however, only

No. 05-4196 United States v. Hamad Page 9

begins to approach what must have been Hamad’s feeling about the matter—how can I argue for a

shorter sentence when I cannot know why unidentified members of the community think I deserve

a longer sentence? If nothing else, reading an opinion premised on letters that the court has seen but

the public has not ought to give the reader a sense of what it was like to be in Hamad’s shoes.

III.

For these reasons, we vacate Hamad’s sentence and remand the case to the district court to

resentence Hamad without relying on the sealed documents. As for the suggestion of the amicus

curiae that we require a different district judge (who has not seen the documents) to resentence

Hamad, we entrust Judge Dowd with that decision.