United States v. Trevino, 4th Cir. (1996)
United States v. Trevino, 4th Cir. (1996)
United States v. Trevino, 4th Cir. (1996)
No. 95-5359
CARLOS TREVINO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-78-F)
Argued: February 2, 1996
Decided: July 12, 1996
Before HALL and HAMILTON, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by published opinion. Judge Hall wrote the majority opinion, in which Judge Hamilton joined. Judge Phillips wrote a concurring and dissenting opinion.
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COUNSEL
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF: Janice McKenzie Cole, United States Attorney, J. Douglas McCullough, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
OPINION
HALL, Circuit Judge:
A jury found Carlos Trevino guilty of conspiring to traffic in marijuana and of traveling in interstate commerce in aid of racketeering.
Trevino appeals the convictions, contending that the district court
erred by denying his motion to disclose the Presentence Investigation
Reports (PSRs) of conspiracy members who testified against him.
Neither Trevino nor his counsel have seen the reports; the district
court examined the PSRs in camera prior to announcing its decision.
On appeal, we have reviewed the PSRs at issue, and we are satisfied
that the district court's ruling was not clearly erroneous; we therefore
affirm.
I.
According to the government, Trevino was involved in a marijuana
distribution conspiracy headed by Stephen Wilson. Wilson began selling marijuana in 1983 after his farming business became unprofitable;
he continued to traffic in large quantities of marijuana until sometime
in 1992 or 1993. On December 6, 1994, the grand jury indicted
Trevino, charging that he participated in the conspiracy, and that he
traveled in interstate commerce with the intent to facilitate an unlawful activity. See 21 U.S.C.A 846 (West Supp. 1996); 18 U.S.C.A.
1952 (West Supp. 1996).
The government's case against Trevino consisted of the testimony
of twelve witnesses; as many as nine of them were connected with the
conspiracy. Prior to trial, Trevino requested that the district court
release the presentence reports of seven eventual witnesses who had
previously entered into plea agreements with the government. The
court, after obtaining the PSRs and examining them in camera, denied
Trevino's request.
At trial, Wilson told how he had been introduced to marijuana
growers and dealers by a companion he had met in Florida, where he
had gone to purchase tomatoes to resell in North Carolina. Wilson
took his tomato profits and bought approximately twenty pounds of
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marijuana from Joe Munyos in southern Texas. Wilson's new business flourished, and he began to hire couriers to transport large quantities of marijuana purchased from Munyos or another supplier,
Freddy Gonzales.
Wilson testified that he met Trevino in 1988 when Trevino accompanied Munyos on a trip to North Carolina. Wilson stated that he initially hired Trevino, who speaks Spanish, to help oversee the Mexican
migrants who worked on Wilson's farm. According to Wilson,
Trevino eventually became his "right-hand man" in the drug business,
coordinating the Texas-to-North Carolina runs. Wilson said that he
fired Trevino on January 1, 1991, upon learning that Trevino had
skimmed $16,000 from a drug payment that he was to deliver to Gonzales. Wilson estimated that, over the entire course of the conspiracy,
his operation had sold over fifteen tons of marijuana.
The other testifying co-conspirators detailed their sundry dealings
with Trevino. Some admitted having accompanied Trevino on drugbuying trips; others mentioned having delivered drugs to him from
time to time.
Customs agent Michael Doherty concluded the government's case.
He testified that, during a telephone conversation, Trevino admitted
being involved with Wilson in the marijuana business, though simultaneously insisting that Wilson was the mastermind.
Trevino took the stand and denied any wrongdoing. The jury, however, decided otherwise; it found Trevino guilty of both charges, and
he was subsequently sentenced by the district court to 151 months'
imprisonment. Trevino appeals, maintaining that the court's denial of
his request for the PSRs warrants a new trial.
II.
A.
Due process requires that the government disclose to the accused
any favorable evidence in its possession that is material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963).1 "Favorable"
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1 Ordinarily, the accused must ask the government to produce Brady
materials; however, "there are situations in which evidence is obviously
3
Once the accused has made a plausible showing that the evidence
would be both material and favorable, the trial court must review the
information in camera to ascertain its true nature and determine
whether it must be disclosed. Ritchie at 58-60; Love at 1313.3 The
court conducts its examination in private because the Constitution
does not accord an accused the right of unrestricted access to the government's files. Ritchie at 59-60; Love at 1313; see also United States
v. Leung, 40 F.3d 577, 583 (2d Cir. 1994) ("In the rare circumstances
where [an in camera] inspection is required, its purpose is not to provide a general discovery device for the defense[.]"). The trial court's
ultimate conclusion as to whether the information is subject to disclosure -- whether the evidence is both material and favorable -- may
be disturbed on appeal only if it is clearly erroneous. United States v.
Mora, 994 F.2d 1129, 1139 (5th Cir.), cert. denied, 114 S. Ct. 417
(1993).
B.
Presentence reports represent a special subcategory of potentially
discoverable confidential information, and rules governing their disclosure have evolved apart from the relatively recent Ritchie decision
and the line of lower court cases that have followed. In United States
v. Figurski, 545 F.2d 389 (4th Cir. 1975), we held that presentence
reports prepared on behalf of government witnesses must be examined by the district court in camera before any of the information contained therein is disclosed to the accused. Id. at 392. We did not,
however, establish any guidelines to assist the courts in making the
necessary threshold determination, i.e., whether an accused has sufficiently justified the court's involvement in the discovery process. In
view of the potential effect of Ritchie on the distinct body of law pertaining to the disclosure of presentence reports, and in view of the
issue on appeal, the time is ripe to speak on the subject.
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3 An in camera review is also warranted where the government, pursuant to its duty under Agurs, see note 1, supra, submits confidential material to the court on its own initiative. See Mora, infra, at 1139 (agent's
field notes, not subject to disclosure under the Jencks Act, were produced
by the government and determined by the district court, following an in
camera review, to be not otherwise discoverable).
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1.
The PSR may serve several purposes, but its principal function is
to assist the district court in imposing an appropriate sentence on the
criminal defendant who is the subject of the report. United States v.
Charmer Industries, Inc., 711 F.2d 1164, 1170 (2d Cir. 1983). Obviously, a PSR that is as accurate and complete as possible helps to
ensure a just sentence. PSRs must include, inter alia, pertinent information about the defendant's life history and personal characteristics
(including any prior criminal record), the defendant's financial condition, a victim impact assessment, the probation officer's proposed
classification of the offense and the defendant's criminal history
under the Sentencing Guidelines, and "any other information required
by the court." Fed. R. Crim. P. 32(b)(4).
Indeed, concern over the accuracy of PSRs has resulted in several
amendments to Rule 32 over the past thirty years, most recently in
1994. Before 1975, most federal courts did not permit the defendant
to see his own PSR, much less comment on it. Fed. R. Crim. P. 32
advisory committee note (1974); see also Charmer at 1172. Rule
32(b) now provides that, except for the probation officer's final recommendation on the sentence (which the district court may direct be
excluded), the entire report must be provided to the defendant and his
counsel not less than 35 days prior to the sentencing hearing. Upon
receiving his PSR, the defendant is entitled to contest any material
information contained in or omitted from the report. Rule 32(b)(6)(B).
With the advent of the amendments requiring full disclosure to the
defendant, certain materials once commonly included in PSRs have
now been excluded. Rule 32(b)(5) requires the exclusion of "any
diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation[,] . . . sources of information obtained upon a
promise of confidentiality[,] or . . . any other information that, if disclosed, might result in harm, physical or otherwise, to the defendant
or other persons." The district court may still receive and rely on such
material in determining sentence, but, if it does, the court must summarize the information for the defendant and give him a reasonable
opportunity to comment. Fed. R. Crim. P. 32(c)(3)(A).
Notwithstanding that PSRs prepared in accordance with the 1994
amendments are somewhat watered-down versions of their earlier
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incarnations, there are still valid reasons to prohibit the routine disclosure of their contents to defendants in subsequent proceedings against
whom the subject of the report will testify. See U.S. Dep't of Justice
v. Julian, 486 U.S. 1 (1988):
[I]n both civil and criminal cases the courts have been very
reluctant to give third parties access to the presentence
investigation report prepared for some other individual or
individuals. . . . [O]ne reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that
will be incorporated into the report. A second reason is the
need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically
required some showing of special need before they will
allow a third party to obtain a copy of a presentence report.
Id. at 12 (emphasis deleted) (citations omitted). Granted, the "chilling
effect" on contributors should be ameliorated somewhat now that
sources of confidential information can no longer be named in the
PSR. Nevertheless, we must point out that the rule only specifically
excludes mention of the source of the information; it does not necessarily exclude the information itself.4 As the PSR is exposed to pair
upon pair of prying eyes, it becomes more likely that someone -- particularly a criminal confederate -- will be able to identify the source
of sensitive information contained in the report. 5
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4 The rule does prohibit inclusion of any information that "might" result
in harm to anyone, but, unless all information is excluded, there are no
assurances that the desired effect will be achieved. We would indeed be
hesitant to embrace an approach that, through an overabundance of caution, is capable of producing only a plain vanilla PSR. Such a document
would be of little use to the district court, which would be constrained
to consult outside sources to obtain the needed information. The defendant awaiting sentencing would be disserved as a result, because he
would only be permitted to view the court's written summary of the
information. We would then have come full circle to the pre-1975 days,
when the defendant was sentenced on the basis of information that he
could not effectively question.
5 Moreover, we would not overlook the common-sense observation that
perception often dictates reality. Even if the utmost care is taken to
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2.
We also note that PSRs, by their very nature, do not fit particularly
well within the Brady/Giglio framework. The initiating procedure is
not unusual; if a report's submission to the district court is not compelled by Agurs, see notes 1 and 3, supra, then the accused must, as
with any other potential Brady material, request that it be produced.
However, unlike most potential Brady material, the existence of a
PSR is a foregone conclusion, and its general contents are predictable.
The result is that, although our adversary system of justice rightly
requires defense counsel to uncover potentially favorable evidence, an
experienced advocate may avail himself of a "free shot" by couching
what is actually a general request for a witness's PSR in seemingly
specific terms that might suffice as "some plausible showing" of
materiality and favorability under Ritchie. For instance, in the Eastern
District of North Carolina, every PSR contains a section entitled "Impact of the Plea Agreement," which, in Trevino's words, "states in
concrete terms how a witness's guideline range was affected by the
plea agreement between the parties." Brief of Appellant at 19.
An accused armed with that knowledge would almost certainly be
able to satisfy Ritchie's threshold requirement with regard to any
cooperating witness by merely asserting that the witness's PSR contains evidence of his or her potential bias in favor of the government.
If Ritchie controlled, such an assertion would trigger the district
court's duty to examine the entire PSR in camera , regardless of
whether the plea agreement (1) actually had an effect on the witness's
Guideline range that is (2) substantial enough to give rise to a fair
inference of bias.
This simply will not do. The adversary system does not permit
either party to "engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents." United
States v. Zolin, 491 U.S. 554, 571 (1989) (holding that party asserting
crime-fraud exception to attorney-client privilege must make threshold showing to trigger in camera review).
C.
We conclude that a district court is under no duty to conduct an in
camera examination of a requested PSR unless the accused has first
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