United States v. Orlander Raymond Brown

JAMES C. HILL, Circuit Judge,

specially concurring:

The majority has concluded that the trial court erred by restricting cross-examination of the Government’s key witness, Hargle, concerning his motivation for appearing as a government witness. Hargle was an accomplice to Brown’s crime who, prior to Brown’s trial, had entered a plea of guilty, but had not been sentenced. Counsel for the defense asked Hargle on cross-examination whether he had been advised of the recommendations contained in the presentence report prepared by his probation officer, leaving the impression that Hargle had agreed to plead guilty and testify for the government in exchange for a favorable sentencing recommendation. 1

When the prosecutor objected to defense counsel’s question, the trial court sustained the objection, insofar as the question pertained to the recommendation of the probation officer. The Court stated that such a recommendation “is not any part of the plea bargaining,” and instructed the jury not to speculate as to what was actually recommended since the recommendation would be irrelevant to the issues to be decided in the case. Although cross-examination was restricted with respect to the presentence report, the court did not otherwise restrict defense counsel’s ability to inquire whether Hargle had been promised leniency in exchange for his testimony. For example, the Court’s ruling did not preclude defense counsel from inquiring whether the prosecutor, as opposed to the probation officer, had ever suggested such an arrangement.

In view of this minimal restriction on defense counsel’s ability to show Hargle’s motivation for testifying, the question is whether the trial court should have allowed *175 defense counsel to cross-examine Hargle concerning the probation officer’s recommendations. The affirmative answer of the majority is based on the Sixth Amendment right of an accused to cross-examine witnesses against him. While finding error in the ruling of the trial judge, however, the majority concludes that the error is harmless and, consequently, affirms the defendant’s conviction. Since I would affirm the decision of the district court, including the ruling as to Hargle’s testimony, I concur in the result reached by the majority, but I am constrained to disagree as to the admissibility of testimony revealing a probation officer’s recommendations.

The Sixth Amendment guarantees a criminal defendant the right to determine on cross-examination whether any promise of leniency might have induced a key government witness to testify on the government’s behalf. Alford v. United States, 282 U.S. 687 , 51 S.Ct. 218 , 75 L.Ed. 624 (1931); Grant v. United States, 368 F.2d 658 (5th Cir. 1966). The majority, however, would not restrict the area of inquiry to inducements which might have been made by the prosecutor or his representative. Rather, the majority’s approach would also permit inquiry into recommendations contained in a presentence report prepared by one who is employed by the judiciary and is independent of the plea bargaining process, i.e., a probation officer. I believe that the majority disregards the fundamental role of the probation officer and the presentence report in the sentencing process.

Rule 32(c), F.R.Crim.P., governs the preparation and use of presentence reports:

(c) Presentence Investigation.

(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.

The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.

(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

Significantly, the rule provides for preparation of presentence reports by probation officers, who are independent of the prosecutor’s plea bargaining negotiations, to assist the court in the sentencing process. Contrary to the conclusion of the majority, it is clear that the recommendations contained in a presentence report are different from the sentencing recommendations of a prosecutor in several important respects. First, and most importantly, such reports are prepared by an employee of the judiciary to provide assistance requested by the court. In recognizing this distinction, I do not intend to minimize the importance of the prosecutor’s role, as an officer of the court, in resolving cases through plea bargaining. I am mindful, however, that probation officers are accountable solely to the judiciary and, unlike prosecutors, they are not obligated to serve as advocates.

Second, a probation officer’s recommendations are not properly used as inducements to obtain testimony or cooperation from government witnesses, whereas a prosecutor’s recommendations are so used. Finally, a probation officer’s recommendations must be based on an objective evaluation of the factors specified in Rule 32(c)(2), supra. A prosecutor’s sentencing recom *176 mendation, on the other hand, might well be influenced by the defendant’s willingness to cooperate with the government.

A further distinction exists between the recommendations contained in a presentence report and the sentencing recommendations made by a prosecutor, which serves to illustrate my conclusions. Rule 32(c)(3)(A), F.R.Crim.P. specifically provides as follows:

(A) Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the'presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons . . (emphasis added). 2

The Advisory Committee Note to Rule 32(c)(3)(A) explains why sentencing recommendations are excluded from the mandatory disclosure requirement of the rule:

Any recommendation as to sentence should not be disclosed as it may impair the effectiveness of the probation officer if the defendant is under supervision on probation or parole.

In subsection (c)(3)(D), Rule 32 provides further that

[a]ny copies of the presentence investigation report made available to the defendant or his counsel and the attorney for the government shall be returned to the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs.

The Committee Report indicates that this section is intended to insure that presentence reports do not become available to “unauthorized persons.”

Thus, from the text of Rule 32 itself, two relevant considerations are readily apparent. First, a defendant is entitled to examine the contents of a presentence report, exclusive of the sentencing recommendation, if any. Second, unless the court, in its discretion, directs otherwise, any copies of the presentence report made available to the defendant or his counsel and the attorney for the government must be returned to the probation officer immediately following the imposition of sentence or the granting of probation. Ordinarily, presentence reports should not be made available to “unauthorized persons,” i.e., persons not entitled by Rule 32 to read the reports.

The totally different posture of the prosecutor, as an advocate, to that of the probation officer, as an advisor to the court, amply illustrates to me that a prosecutor’s willingness to recommend leniency is material and must be disclosed, but a probation officer’s sentencing recommendation is immaterial to any issue in the case. Although it is contended here that the confidentiality of the report had been breached and the recommendation had been disclosed before the trial, the fact is that the law contemplates these recommendations as confidential while demanding disclosure of any recommendation by the prosecutor. This illustrates the distinction that one recommendation can be an inducement and the other cannot.

In short, given the purpose of the presentence report — to provide adequate information for sentencing — as well as the role of the probation officer and the confidentiality generally associated with such reports, I believe the trial court properly restricted cross-examination of witness Hargle.

. As he announced his ruling on the prosecution’s objection to this line of questioning, the trial judge stated:

THE COURT: I assume what he is trying to do is to show that this man has agreed to plead guilty in return for the recommended sentence of an unknown quantity and that now he is testifying on behalf of the Government.

I will sustain as far as any recommendation of the probation officer. The recommendation of the probation officer in the final analysis is not any part of the plea bargaining.

. Thus, disclosure of the contents of the presentence report, exclusive of any sentencing recommendation, is mandatory unless the court is of the opinion disclosure would seriously interfere with rehabilitation, compromise confidentiality or create risk of harm to the defendant or others. Prior to 1975, the rule provided that such disclosure was discretionary with the trial judge. See Gregg v. United States, 394 U.S. 489 , 89 S.Ct. 1134 , 22 L.Ed.2d 442 (1969).