upholding “obey the law” injunction that merely echoed statutory text in Interstate Commerce Act case because “statutory terms adequately describe the impermissible conduct”
How later courts described this case
- upholding “obey the law” injunction that merely echoed statutory text in Interstate Commerce Act case because “statutory terms adequately describe the impermissible conduct”
- upholding injunction where “the circumstances . . . show[ed] that [the defendant] understood its meaning” and “never sought a modification or clarification of its language”
- "[T]he mere fact that the injunction is framed in language almost identical to the statutory mandate does not make the language vague."
- the requirements of Rule 11 are “applicable only to guilty pleas (or pleas of Nolo contendere ) and not to stipulations.”
Written by the judges who cited it.
The opinion
BROWNING, Circuit Judge,
concurring in the majority opinion in part, and in the result:
I join all of the majority opinion except the concluding three paragraphs of Part E. I do not believe United States v. Weston, 448 F.2d 626 (9th Cir. 1971), can be distinguished on the grounds advanced in those paragraphs. I do, however, believe Weston is distinguishable on another ground.
Concern for the fairness of sentencing procedure has grown over the last decade. See, e. g., Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1 (1972). Weston made an important contribution in this troublesome area by limiting the circumstances in which the sentencing judge may rely on anonymous and unsubstantiated allegations of wrongdoing reported by the probation office. The majority opinion distinguishes Weston from the present case on a basis I do not believe justified by the facts of the two cases, and that I fear may weaken Weston’s capacity to correct abuses in sentencing.
Weston involved a single conviction for transportation of heroin. At sentencing, the probation officer reported the opinions of unidentified drug agents that the defendant was the chief area heroin supplier and that she frequently travelled long distances to make large heroin buys from which she earned six-figure profits. The defendant denied the allegations but did not attempt to disprove them, arguing that to do so would be impossibly burdensome. This court agreed, concluding that it would be unfair to enhance sentence on the basis of “unsworn evidence detailing otherwise unverified statements of a faceless informer . . that [defendant] is probably guilty of additional and far more serious crimes . . . 448 F.2d at 631 . 1 We held that the burden of refuting such allegations in a sentencing report cannot be placed on the defendant unless and until *1268 the state produces “information such as to be persuasive of the validity of the charges there made.” Id. at 634 .
Ordinarily the defendant must bear the burden of going forward with evidence that information relied upon in sentencing is false or misleading. Weston relieved the defendant of this duty when information proffered by the prosecution is particularly prejudicial because it relates to substantially more serious wrongdoing than that for which defendant stands convicted, and is especially suspect because it is uncorroborated and based upon anonymous sources. If the defendant denies such allegations 2 the prosecution must produce some factual basis for crediting the information before the defendant can be compelled to assume the burden of rebuttal.
The factual parallels between this case and Weston are striking. As in Weston , the defendant in this case refused to cooperate with the probation office. Here, as there, serious allegations of additional criminal activity were made in the presentence report — in both cases the report pictured the defendant as the chief operative in a large-scale illegal business, while the proven charges were limited to a few illicit transactions. In our ease, the presentence report attributes the allegations generally to ICC agents. In Weston , the report attributed the allegations generally to agents of BNDD. Here, as there, nothing was offered to demonstrate the reliability of the agency sources. Here, as there, the allegations were not corroborated by other information. 3 Here, as there, the defendant “vigorously denied the accuracy of the charges and objected to the judge’s consideration of them without more substantiation of them than appeared in the probation report.” Id. at 631 . Here, as there, the defendant chose not to attempt to disprove the new allegations.
The majority distinguishes Weston on the ground that the burden of refuting the allegations was less severe for Miller than it was for Weston. The burden was the same. The government suggested in both cases that the defendant could by reasonable investigation secure evidence to disprove the additional allegations of criminal activity if they were untrue. In both cases, the government argued that the defendant could disprove the alleged large profits from illegal activities by producing bank, business, employment, and personal property records. In both cases the government suggested the defendant could disprove the alleged criminal activities — in Weston frequent trips to Arizona and Mexico to secure heroin; in this case frequent instances of illegal trucking — by cataloging the defendant’s conduct over the relevant period. 4
*1269 The government’s contention that the defendant’s sentence may be enhanced because of uncorroborated allegations of additional serious criminal activity in a probation report unless he carries the burden of disproving them was rejected in Weston in language applicable here (id. at 634):
This will not do. It is tantamount to saying that once a defendant has been convicted of offense A, narcotics agents can say to the probation officer, and the probation officer can say to the judge, “We think that she is guilty of much more serious offense B, although all we have to go on is an informer’s report,” and the judge can then say to the defendant, “You say it isn’t so; prove that to me!” In addition to the difficulty of “proving a negative,” we think it a great miscarriage of justice to expect Weston or her attorney to assume the burden and expense of proving to the court that she is not the large scale dealer that the anonymous informant says that she is.
The crux of the majority opinion in this case is that it was permissible for the district court to rely upon the defendant’s alleged serious misconduct despite defendant’s denial because defendant, as the alleged actor, was best able to refute • the charge but had failed to do so. This was essentially the position taken by Judge Carter in his dissent in Weston. 5 It was expressly rejected by the majority in Weston and should be rejected here. Since it is always the alleged conduct of the defendant that is involved, the proposed distinctions would eliminate the Weston rule.
For a different reason, I believe Weston does not control this case. Despite the presence in the presentence report of uncorroborated allegations of serious additional offenses denied by the defendant that would warrant relief under Weston , Miller is not entitled to resentencing because he failed to make a prima facie showing that his sentence was enhanced by the challenged allegations.
To make out a claim under Weston and Townsend v. Burke, 344 U.S. 736 , 741, 68 S.Ct. 1252 , 92 L.Ed. 1690 (1948), the defendant must show that improper or inaccurate information was relied upon in the sentencing determination. See, e. g., Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc); Santoro v. United States, 462 F.2d 612, 612 (9th Cir. 1972). Absent such a showing, no prejudice has been suffered and relief is unwarranted.
In Weston , reliance was clear. Before reading the presentence report the sentencing judge said the offense warranted the minimum statutory sentence of five years. After reading the report, and in express reliance upon its allegations of serious additional criminal conduct, the judge imposed the maximum sentence of 20 years.
As the majority notes, in this case the presentence report alleged 85 instances of illegal trucking with gross revenues to Miller of $2.8 million. At the sentencing hearing, the prosecutor calculated orally that the net profit to Miller from these activities was about $700,000 and suggested that a fine approximating these alleged profits would be appropriate.
Defense counsel contended that the government’s assertions as to the extent of Miller’s illegal enterprises were exaggerated. The court asked defense counsel to offer a figure for a fine that would “take the profit out of [Miller’s] illegal activities.” Counsel suggested $35,000 to $50,000. The judge then imposed a fine of $100,000. The record indicates that rather than acting upon the estimate of defendant’s illegal traffic in the probation report, the judge accepted the figure offered by defense counsel as an appropriate measure of the fine necessary to extract Miller’s ill-gotten *1270 profits, and raised the amount to $100,000 for the purpose of deterrence. 6 I would distinguish Weston only on this ground.
. As the court continued, “To us, there is something radically wrong with a system of justice that can produce such a result.” 448 F.2d at 631 .
. See United States v. Harris, 558 F.2d 366, 375 (7th Cir. 1977); United States v. Bass, 175 U.S.App.D.C. 282, 291 , 535 F.2d 110, 120-21 (1976); United States v. Yates, 554 F.2d 342, 343-44 (7th Cir. 1977).
. This case differs from decisions of other circuits which have distinguished Weston where there was testimony supporting the charges made at sentencing. See United States v. Bass, 175 U.S.App.D.C. 282, 293 , 535 F.2d 110 , 121 n. 21 (1976); United States v. Williams, 499 F.2d 52, 55 (1st Cir. 1974); United States v. Allen, 494 F.2d 1216 (3d Cir. 1974); United States v. Needles, 472 F.2d 652, 657-59 (2d Cir. 1972).
. The Weston opinion summarizes the argument in this respect as follows (id. at 633-34):
It can be argued that there were a number of things that Weston might have done to refute the charge beside denying it: (a) The probation report named four persons, two of whom had been convicted and two of whom were charged with narcotics offenses, as Weston’s distributors. This, it is said, provided a fertile field for investigation of probation reports, files, interviewing witnesses, defendants, etc. We note, however, that the report did not state that in any of the four cases there was evidence that any of the named persons was Weston’s distributor, or that any of them had admitted it.
(b) The report indicated that Weston had made trips to Mexico as frequently as every two weeks. It is argued that she was in a position to supply information, if true, that she had not traveled, that she had lived continuously in the area, information as to where she was at various times during the preceding several months, etc.
(c) In view of the amount of profit alleged in the transaction, Weston had available to her a showing as to what monies or properties she had, her bank accounts, what type of household furniture and brie a brae; whether she was employed and what her salary was. In this connection it is noted that she had *1269 retained counsel and apparently had the money to pay him.
. Dissenting in Weston , Judge Carter said (at 634-35):
The trial court gave appellant’s retained counsel an opportunity to make an investigation and report the results thereof to the court. The areas listed in the opinion were fertile fields for investigation by the defense, but counsel refused to undertake any investigation, or to assist in any way in supplying information within such areas to the court.
. “I still don’t know what would discourage you from this business, Mr. Miller. I’d like to keep you out of it if I could and get you to obey the law.” Reporter’s Transcript at 96.