Appeal from the United States District Court for the Eastern District of Illinois. No. 73-46-E; No. 73-26-E JAMES L. FOREMAN, Judge.
Kiley, Senior Circuit Judge, Cummings, Circuit Judge, and Hoffman, Senior District Judge.*fn*
In No. 73-1866, defendant Miller pleaded guilty to a violation of the Dyer Act (18 U.S.C. § 2312). The district court ordered that a presentence investigation be conducted, and the prior criminal record portion of the ensuing presentence report was sent to defense counsel. Prior to sentencing, defendant filed a motion requesting permission to examine the entire presentence report on the ground that he could not otherwise "receive a fair sentence." At the time of sentencing, this motion was denied.
At the sentencing hearing, defense counsel explained that defendant had advised that several matters in the prior record portion of the presentence report were false. The district judge thereupon said that it was his regular custom not to deliver any portion of a presentence report except the prior record, stating "that would jeopardize a lot of sources of information if this was revealed * * *," and that "we would try every issue of this man's life all over again on the presentence report * * *." While the judge said he did not rely entirely on the custom, his only comment on the specifics of this case made clear that he simply considered the case to be an example of the reason for his custom. He did not really consider deviating from the custom. Defendant addressed the district judge and stated that the description of the drowning of his girl friend in the prior record portion of the presentence report was incorrect; defendant then gave his version of the incident. He mentioned that he was currently in a Texas state penitentiary serving an 8-year sentence for a drugstore burglary. Although the prior record portion of the presentence report said that as many as 13 burglary charges were being processed against defendant, he claimed that the drugstore burglary was the only one of which he was accused.
Without revealing any of the contents of the other sections of the presentence report, the district judge thereupon sentenced defendant to five years to be served concurrently with his Texas sentence. This appeal attacks the district judge's uniform policy not to reveal the contents of a presentence report except for the prior record portion.
In the related appeal in No. 73-1868, defendant Atkins pleaded guilty to Count I of an indictment charging him with distributing.46 gram net weight of heroin in violation of 21 U.S.C. § 841(a) (1). The remaining three counts were dismissed by the Government. Prior to sentencing, Atkins' counsel filed a motion for leave to examine the presentence report. At the sentencing hearing, he explained that he filed the motion because he was led to believe that there were certain material facts in the presentence report that were not "actually the situation," so that he might wish to present evidence to refute some of the major allegations in the report. As in Miller's case, defense counsel had only been furnished with a copy of that portion of the presentence report containing Atkins' prior record. The same district judge reiterated his policy not to reveal any portion of the presentence report except for the prior record. Before sentence was imposed, Atkins' counsel emphasized that the four pages of prior record in the presentence report revealed only arrests. There was then this exchange:
"THE COURT: You don't believe that where there's smoke there's fire?
"MR. DUCEY: Well, I hope the Court doesn't necessarily believe that, because the Court should only go by what has been shown, what convictions. . .
"THE COURT: Well, I go by the whole thing, Mr. Ducey, the whole ball of wax, not one thing. His past record is just one item."
Before imposing a 5-year sentence, the district judge remarked that he knew Atkins was an addict and had sold drugs to get money and feed his own habit, although the court was unsure "that was the sole reason for you to do it." The district judge also thought that defendant might not be rehabilitable because he had been hospitalized several times for drug addiction.
In both appeals, the question before us is whether Rule 32(c) (2) of the Federal Rules of Criminal Procedure permits a district court to maintain a uniform policy of never disclosing information in a presentence report apart from the prior record portion thereof. That rule provides:
"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. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government." (Italics supplied.)
The last two sentences of this rule were added by amendment in 1966. The Advisory Committee's note explained that although ...