Lumbard, Feinberg and Oakes, Circuit Judges.
This case raises serious questions about the operation of the sentencing process as applied to Wesley Clyde Brown, a young, black teacher and writer, who refused to fight in the Vietnam War. Brown is presently serving a sentence of two and a half years in Lewisburg Federal Correctional Facility. He appeals from an order of the United States District Court for the Eastern District of New York, Walter Bruchhausen, J., refusing to disclose the contents of a pre-sentence report or to reduce his sentence further. For reasons set forth below, we remand the case to the district court for resentencing in the light of this opinion.
Appellant applied to his local draft board in June 1967 for conscientious objector status. His response to the question whether he was opposed to war in any form reflected his belief that blacks have been an oppressed class; he replied, in effect, that he only opposed wars that perpetuated what he saw as the oppression of his people. His application was denied, apparently on the ground that opposition to particular wars did not qualify under the statute, a view later ratified by the Supreme Court in Gillette v. United States, 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971). In due course, Brown was notified to report for induction, refused to do so, and was indicted in the Eastern District for violation of 50 U.S.C. App. § 462(a). After the Supreme Court had decided Gillette, Brown entered a plea of guilty in November 1971 before Judge Bruchhausen. In January 1972, Brown was sentenced to three years in prison. Thereafter, Brown moved under Fed.R.Crim.P. 32(b) and 35 to disclose the pre-sentence report and to reduce his sentence by granting probation. The judge refused the former relief but did reduce appellant's sentence to two and one-half years. This appeal followed.
Appellant raises a number of issues regarding the manner in which his motion was handled. The most important involve the judge's refusal to disclose any portion of the contents of the presentence report. The background of that ruling is as follows: In November 1971, after appellant had pleaded guilty, his counsel pointed out the nature of the conscientious objector claim and asked, in view of Brown's undoubted sincerity, that the court consider the possibility of probation, conditioned upon alternative national service. Counsel stated that he had personally known appellant for seven years and was familiar with his civil rights work in Southern states in voter registration drives. He strongly urged that neither society nor appellant would benefit from Brown's incarceration; on the contrary, strict probation while Brown did work in the national interest would benefit both. The United States Attorney stated that the Government "would have no objection to such a disposition if the Court would be mindful to give [it] . . . ." The judge stated that the Probation Office should be informed of the facts.
Sentence was imposed on January 27, 1972. Before then, we are told, letters attesting to appellant's character, sincerity and lack of criminal record were forwarded to the Probation Office. On the day of sentence, counsel for Brown in substance repeated what he had said at the time of the guilty plea. The court then imposed a sentence of three years, without comment or explanation on the record. (The judge apparently did indicate at a bench conference that this was a "sentencing panel" case and that he believed a three-year prison term was appropriate.)*fn1 Subsequent to the hearing, a number of extraordinary letters were sent to the judge from potential employers of Brown, from clergymen, from teachers and from others interested in his case. The letters emphasized Brown's talents, sincerity, and dedication to helping the black community. All strongly urged the inappropriateness of further incarceration. In May 1972, appellant brought the motion for disclosure of the pre-sentence report and for reduction of sentence, which was heard in June.
At the hearing, counsel reminded the judge of his prior direction that the Probation Office be made aware of defendant's background and then explained why he requested disclosure of the presentence report.
[Mr. Standard]: Now since I had not seen the pre-sentence report, it was impossible for me to determine whether either yourself or the panel had before it the information with regard to the defendant's background, particularly as it related to his conscientious objector application.
Now I have intentionally divided this application into two parts with the hope that your Honor would order disclosure of the pre-sentence report, and I would then ask for an adjournment on the application for reduction, which has been timely made, until I have had a chance to study the presentence report.
The following colloquy then ensued:
The Court: Well it is not the policy of the Court to disclose pre-sentence reports --
Mr. Standard: I wonder --
The Court: (Continuing) -- it has never been done in all my time in the ...