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UNITED STATES v. HOGAN

June 10, 1980

UNITED STATES of America, Plaintiff,
v.
Eugene HOGAN, Robin Peterson, Lee Peterson, and Sidney Stephanson, Defendants.



The opinion of the court was delivered by: SHARP

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE GRAND JURY TESTIMONY FROM PRESENTENCE REPORT

This cause comes before the Court on defendant Eugene Hogan's Motion to Strike Grand Jury Testimony from Presentence Report. Defendants Lee Peterson and Robin Peterson have joined in said motion. The Court, having reviewed the motion, memoranda and pleadings filed herein, and being fully advised, rules as follows:

 On November 16, 1979, Eugene Hogan, Lee Peterson, Robin Peterson and Sidney Stephanson were convicted by a jury of conspiring to import heroin and opium, of knowingly and intentionally importing opium, and of knowingly and intentionally importing heroin. The Court dismissed three other counts of the six-count indictment at the conclusion of the Government's case-in-chief.

 Defendants were sentenced on December 14, 1979. Prior to the Court's pronouncement of sentence, the United States Probation and Parole Office for the Western District of Washington prepared presentence investigation reports pursuant to Rule 32(c), Fed.R.Crim.P. In the "Details of the Offense" section of the reports the probation officers in charge of the presentence investigations of Eugene Hogan, Lee Peterson and Robin Peterson made direct reference to the testimony of two grand jury witnesses. During the sentencing hearing defendants objected to the inclusion of references to grand jury testimony in the presentence investigation reports. The Court orally informed the parties that it would not consider the testimony obtained from grand jury witnesses when it sentenced defendants, and invited the parties to file post-trial memoranda on the propriety of the United States Probation and Parole Office's consideration of grand jury testimony in presentence investigation reports. *fn1"

 Defendants' Motion to Strike Grand Jury Testimony comes before the Court at a time when defendants are preparing to serve their sentences. Defendants recognize that their presentence investigation reports will be reviewed by the Bureau of Prisons, the institutions of confinement and the United States Parole Commission, and by this motion defendants seek to preclude these entities from considering the grand jury testimony set out in the presentence investigation reports.

 As a beginning point, the law is clear that a sentencing judge has wide discretion in determining the appropriate sentence to impose. United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). To this end, a judge may conduct a broad inquiry, largely unlimited as to either the kind of information he may consider or its source. Tucker, supra; Serapo v. United States, 595 F.2d 3 (9th Cir. 1979). The justification for this policy is the strong public interest in imposing sentences based upon a complete evaluation of each individual offender and designed to aid in his particular rehabilitation. United States v. Miller, 588 F.2d 1256 (9th Cir. 1978), cert. denied, 440 U.S. 947, 99 S. Ct. 1426, 59 L. Ed. 2d 636 (1979); Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), cert. denied, 397 U.S. 925, 90 S. Ct. 931, 25 L. Ed. 2d 105 (1969). Congress has responded to the need of the sentencing judge for an open disclosure of facts pertaining to the background, character and conduct of the convicted defendant by enacting legislation *fn2" that codifies the judge's authority to conduct an inquiry broad in scope. See Smith v. United States, 551 F.2d 1193 (10th Cir. 1977), cert. denied, 434 U.S. 830, 98 S. Ct. 113, 54 L. Ed. 2d 90 (1977).

 In order to supplement the evidence produced during the trial, or the information received during the taking of a plea of guilty or nolo contendere, the United States Probation and Parole Office assists the sentencing judge by preparing a presentence investigation report. It is apparent from the language of Rule 32(c), Fed.R.Crim.P., that the primary function of the probation department in the preparation of a presentence investigation report is to provide the sentencing judge with objective and accurate information relating to the defendant. As stated in the Administrative Office of the United States Courts' guide for probation departments:

 
The presentence investigation report is a basic working document in judicial and correctional administration. Its primary purpose is to aid the court in determining the appropriate sentence.

 Administrative Office of the United States Courts, The Presentence Investigation Report, Pub. No. 105 at 1 (1978). While the presentence investigation report serves four other secondary functions, *fn3" the Court believes it necessary to observe that none of these functions involves the assistance of the attorney for the Government in his prosecution of the Government's case. The Government attorney is not entitled to see the presentence investigation report until after the jury has returned a conviction or the defendant has entered a plea of guilty or nolo contendere. Rule 32(c) (1) and (c)(3)(C), Fed.R.Crim.P.

 Rule 32(c)(2), Fed.R.Crim.P., also provides for the assimilation of such information in the presentence investigation report as "may be helpful . . . in the correctional treatment of the defendant." Courts have held that the United States Parole Commission, which gathers information and conducts hearings to determine all facets of an inmate's character before rendering parole decisions, is entitled to be as fully advised of the contents of the presentence report as is the sentencing judge. See United States v. Stevenson, 573 F.2d 1105 (9th Cir. 1978); Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976); Rosati v. Haran, 459 F. Supp. 1148 (E.D.N.Y. 1977); 28 C.F.R. ยง 2.19(a)(3).

 In Stevenson, supra, this Court refused to delete certain unsupported material from the presentence report even though the material was ignored for the purpose of sentencing. The defendant in Stevenson, supra, objected to unsubstantiated suggestions in the presentence investigation report that he was a professional drug smuggler, and that he was the leader and financier of a marijuana importation operation. On appeal, the Ninth Circuit affirmed this Court's decision not to strike these assertions from the presentence report, on the basis that defendant's due process rights in a parole determination were adequately protected without the excision of the controversial material. In reaching its conclusion the court of appeals referred to Billiteri v. United States Board of Parole, supra, for the proposition that the Parole Commission is to be afforded a full review of the presentence investigation report.

 The inclusion of unsupported statements by unidentified federal agents in Stevenson, supra, to the effect that the defendant was a professional drug smuggler, is a far cry from the material included in the presentence investigation report under consideration in the present case. In the case before us, the presentence investigation report includes summaries of the grand jury testimony of two witnesses, one of whom did not testify at trial.

 Rule 6(e)(2), Fed.R.Crim.P., is clear in its general mandate of non-disclosure of matters occurring before the grand jury. The Government takes the position that the exception to the general rule contained in Rule 6(e)(3)(A)(ii) permits disclosure of grand jury testimony to the probation office. This subsection of Rule 6 provides for disclosure, otherwise prohibited, to:

 
such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such ...

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