UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: October 15, 1976.
UNITED STATES OF AMERICA, APPELLEE
RAYMOND ROBIN, APPELLANT
Appeal from a criminal sentence entered by the United States District Court for the Southern District of New York, Constance Baker Motley, J., on a judgment of conviction after a guilty plea.
Moore, Timbers and Gurfein, Circuit Judges.
MOORE, Circuit Judge:
Raymond Robin, age forty-eight at the time of sentence, a former and then retired police officer and a licensed bailbondsman, appeals from a jail sentence of thirty (30) years plus fines and probation imposed upon him after his plea of guilty to a three count indictment (June 1974) against him, charging (1) conspiring to distribute narcotics in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and (2) illegally possessing and distributing heroin on two separate occasions in March, 1974, in violation of Title 21, U.S.C. § 846. During the same month that appellant was indicted in the Federal District Court for the Southern District of New York, an indictment containing substantially the same accusations of narcotics violations was handed down in the New York State Courts.
After being fully warned of his constitutional rights, appellant waived arraignment on both indictments on the understanding that he would cooperate with the federal authorities (the Government) and perhaps reach an agreement on the disposition of his case. The federal indictment*fn1 was ordered sealed and remained so for almost a year. In May, 1975, it was ordered unsealed, apparently after the Government became dissatisfied with the type of cooperation offered by the appellant. Appellant was arraigned in June 1975 and released on bail after a plea of not guilty.
In November, appellant petitioned in the Federal District Court before District Judge Motley to withdraw his previously entered plea of not guilty and to plead guilty as charged. The guilty plea was accepted by the court over the objection of the Government, which wished to nolle prosequi the case.*fn2
Appellant was sentenced on January 9, 1976, to fifteen years in prison on each count, with the sentences in Counts One and Two to run concurrently and the sentence on Count three to run consecutively, totalling thirty (30) years' incarceration. Fines totalling $75,000 were also imposed, and a special three year special parole term was ordered to follow the thirty-year term of imprisonment.
Prior to sentencing, a State Assistant District Attorney (Cunningham), who had investigated State charges against appellant, submitted a letter to the Federal District Judge on the subject of the state investigation.*fn3 A copy was sent to appellant's privately-retained counsel.*fn4 On the morning of sentencing, January 9, 1976, appellant's counsel sought access to the presentence report*fn5 which had been ordered prepared after appellant's guilty plea. Counsel was permitted to see the report before the commencement of proceedings at 10:00 A.M., but was prohibited from taking it out of the judge's chambers and from showing it to his client.
The sentencing proceeding was marked by repeated disputes between the Government and the appellant on the underlying facts of the case. Appellant offered a tape and certain State Court exhibits to the Court to rebut the Government's version of the facts surrounding the case, but the Court refused to consider them.*fn6
The Government's posture at sentencing was that appellant was a major heroin trafficker. The Government did not rest this conclusion on the charges to which appellant actually pleaded guilty,*fn7 but rather on extrinsic material which was summarized in the presentence report and the Cunningham letter, both of which served to outline what the Government "expected to prove" at trial. Although the District Judge disclaimed reliance on allegations of crimes not proven,*fn8 she concluded that she could receive the Government's version of the facts at the sentencing proceeding.*fn9 When the Judge pronounced sentence, she addressed appellant in part as follows:
"Mr. Robin, as I have indicated, the Court is convinced that your involvement in narcotics was on a major scale, and that this crime was committed after the very severe penalties enacted by the New York State Legislature went into effect which means that anybody involved in the narcotics traffic after that date is involved on a major scale because he is taking a major risk which you obviously were willing to take in view of the large sums of money involved in narcotics traffic." Tr. at 60.
Appellant filed a timely notice of appeal challenging the sentence. Following oral argument, we ordered that the presentence report be made part of the record on appeal.*fn10 Having examined the report as well as the rest of the record, we believe that serious error was committed in the course of the sentencing procedures which mandates vacatur of the sentence and resentencing before a different district judge.
Criminal sentences are not generally reviewable in this Circuit.*fn11 However, this Court does have the authority to review sentences under certain limited circumstances. Where there is a possibility*fn12 that sentence was imposed on the basis of false information or false assumptions concerning the defendant, an appeal will lie to this Court and the sentence will be vacated.
"Misinformation or misunderstanding that is materially untrue regarding a prior criminal record, or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process." Townsend v. Burke, 334 U.S. 736 at 740-1, 68 S. Ct. 1252, 92 L. Ed. 1690. United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970).
Accord, United States v. Herndon, 525 F.2d 208 (2d Cir. 1975); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973).
Rule 32(a)(1) of the Federal Rules of Criminal Procedure (Rule) provides in pertinent part that:
"Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment."
We have held that a defendant must be permitted to state his version of the facts to the court; where the possibility of reliance on misinformation is shown, this right must be extended to permit that presentation by the defendant which will enable the sentencing judge to grasp the relevant facts correctly. United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973); see also, United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974); United States v. Powell, 487 F.2d 325, 329 (4th Cir. 1974). In appropriate circumstances, this may mean that a defendant will be permitted to submit affidavits or documents,*fn13 supply oral statements,*fn14 or even participate in an evidentiary hearing;*fn15 alternatively, further corroboration of sentencing data may be required.*fn16 And while in such cases the procedure to be followed lies within the sound discretion of the sentencing judge, a court's failure to take appropriate steps to ensure the fairness and accuracy of the sentencing process must be held to be plain error and an abuse of that discretion.
Presentence reports, prepared by probation officers for use at sentencing,*fn17 often call for an exercise of the Court's discretion in this regard. The contents of the reports are not subject to the rules of evidence,*fn18 and experience has shown that they are heavily relied upon by sentencing judges.*fn19 Accuracy is therefore of prime concern. Reflecting this concern, defendants have been given increasingly greater access*fn20 to presentence reports in order to point out inaccuracies. Rule 32(c)(3)(A) mandates disclosure of the report - save for any sentence recommendation - upon request of the defendant; disclosure may be withheld only if rehabilitation of the defendant will be thereby jeopardized, or harm is likely to result to the defendant or others.
To enable a defendant to effectively present his version of the facts to the court by pointing out inaccuracies in the presentence report, we have held that a defendant must be given adequate time to prepare and present a rebuttal to information which he contests.*fn21 In United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973), defense counsel requested (and was shown) a copy of the presentence report on the morning of sentencing. At the same time, the court also made available to counsel a prosecutor's memorandum prepared in aid of sentencing. We held that the defendant lacked adequate opportunity to prepare a rebuttal and that defense counsel's well-meant attempts to rebut at sentencing could not cure this defect.
"[The] morning [of sentencing] when . . . chief defense counsel . . . was shown the prosecutor's memorandum, he asked for an adjournment so that he could have 'an opportunity to answer them.' Although defense counsel had had no time to review or possibly even to absorb seventeen separate incidents hitherto unfamiliar to him, the request for an adjournment of sentence was denied. The Assistant United States Attorney then made a strong plea that 'Mr. Rosner be dealt with in the harshest possible terms'."
"Here the defendant did have able and conscientious counsel, but unless counsel was given adequate opportunity to correct any misinformation in the prosecutor's memorandum, we doubt that his spontaneous comment before sentence was adequate to afford the defendant his due." 485 F.2d at 1229, 1230 (quotation marks in original).
Much the same can be said in the present case with respect to the presentence report itself. The Government and prosecuting state authorities were urging that appellant be treated as harshly as the law permits,*fn22 largely on the basis of alleged information which was extrinsic to appellant's guilty plea. A memorandum in letter form from Cunningham had been submitted to the sentencing court, and defense counsel unsuccessfully sought an adjournment of sentencing in order to prepare a rebuttal.*fn23 On the day of sentencing, appellant's counsel was given the presentence report. We have examined this report in camera, and need only say that it contains a lengthy and detailed recital of activities by the appellant and others, in addition to extensive information about appellant's personal life. It would be virtually impossible for counsel to have read the report carefully within a very short space of time, let alone to have digested it or prepared a satisfactory rebuttal.
The importance of the presentence report and the Cunningham memorandum in this particular case cannot be overemphasized in view of appellant's plea of guilty. The absence of a trial prevented the judge from acquiring that familiarity with the case and the defendant which frequently aids immeasurably at sentencing. Moreover, the judge was also deprived of the benefit of defense counsel's cross-examination of witnesses and presentation of evidence at trial, both of which are invaluable means of correcting inaccuracies that may later be propounded at sentencing.*fn24
Without the benefit of a trial, the sentencing judge necessarily leaned heavily on the presentence report and the Cunningham letter as sources of information concerning the appellant's behavior and alleged criminal acts. This is borne out by the court's conclusions concerning appellant's major involvement in narcotics trafficking*fn25 and the profits which the court believed he derived therefrom. Appellant's blanket denials of financial affluence were given no consideration, and his counsel's similar denials and affirmative offer of proof regarding appellant's degree of involvement*fn26 with narcotics were similarly met by a summary rejection.*fn27 Throughout the sentencing proceeding, appellant's counsel vainly contested the veracity of the overall picture of appellant's involvement as chronicled in the presentence report and Cunningham letter.
There can be no question that the time allotted to appellant's counsel was insufficient to permit adequate study of the presentence report, particularly in view of the fact that counsel was not permitted to show the report to his client. Had the sentencing been preceded by a trial on the merits, this error might have been waived by counsel's failure to seek an adjournment of sentencing.*fn28 But such is not the case here, and we believe that the repeated objections of appellant at sentencing to every major allegation raised by the court, the Government, and the State prosecutors (who appeared at the sentencing proceeding and actually addressed the Court), should have alerted the sentencing judge to the necessity of permitting a further and more capable explication by the appellant. This is especially true in view of the harsh sentence obviously contemplated by the court, a factor which should have made the court still more sensitive to the need for a careful inquiry into the accuracy of the information before it.*fn29 The Court's failure to address any serious consideration to appellant's objections and offer of proof was, in the special circumstances of this case, an abuse of discretion amounting to plain error.
The court presumably was in possession of the presentence report at the time that appellant's counsel requested an adjournment on the basis of the Cunningham letter. Appellant maintains that the court refused to discuss the matter with his counsel and instead denied the request summarily.*fn30 In view of the contents of the report, and the unique importance to the sentencing process of both the letter and the report, we believe that this summary denial was reversible error. Appellant was entitled to reasonable preparation time to rebut material contained in the letter. There is no indication that appellant's request was other than reasonable; on the contrary, the facts support the reasonableness of the request.
The conclusion is inescapable that the appellant was severely impaired at sentencing by inadequate preparation that was wholly beyond his control. Moreover, it is clear from appellant's repeated and unequivocal objections (both personally and through counsel) to the veracity of the sentencing data that a serious question respecting accuracy was raised. For these reasons the sentence must be vacated, and a remand for resentencing ordered. Following the preferred practice in such cases, resentencing will be before a different judge.*fn31
Since the sentence imposed was within the statutory maximum, we cannot entertain a serious question as to its legality.*fn32 However, it is not inappropriate for this Court to note, with some concern, the particular severity of the sentence which was imposed in this case.*fn33 The imposition of a thirty-year prison sentence on this now forty-nine year old first offender is tantamount to a life sentence. Recognizing that substantial disparities in sentences exist and that they are of serious concern to those involved in the judicial system,*fn34 we are especially concerned when a harsh sentence is imposed upon so questionable a foundation as existed in this case.
Vacated and remanded.
The Court of Appeals vacated the sentence and remanded for resentencing.
TIMBERS, Circuit Judge:
Sentence review is none of our appellate business.
Today's majority decision is the most unwarranted interference with a conscientious district judge's imposition of sentence within the limits prescribed by Congress that I have seen in more than sixteen years on the federal bench.
Raymond Robin - whose underworld code name is "Railroad" or "RR" - was caught red-handed selling a kilogram of heroin during a six day period in March 1974. A retired New York City police officer and bail bondsman, he pleaded guilty to three counts of violation of the federal narcotics laws. He has never said or suggested that he did not commit the offense. He has never indicated a scintilla of remorse. After a day-long sentence hearing,*fn1 he was sentenced by Judge Motley to two-thirds of the maximum prison penalty provided by Congress; was ordered to pay a $75,000 committed fine - the maximum; and was ordered to serve a three year special parole term upon his release from prison.
The majority candidly concedes that it does not like "the particular severity of the sentence which was imposed in this case." 545 F.2d at 782. Reaching deep down into its bag for a rationalization to justify its vacating a sentence imposed within statutory limits,*fn2 the majority comes up with the assertion, as the basis for its decision, that the defense was not given sufficient time to examine the presentence report.
The record is squarely to the contrary.
In the first place, no objection was made before Judge Motley of insufficient time to examine the presentence report and no request for an adjournment of sentencing was made for the purpose of examining the presentence report.*fn3 Second, the presentence report was made available in its entirety to Robin's attorney.*fn4 Third, the presentence report was used extensively by Robin's attorney in his plea to Judge Motley on behalf of his client during the lengthy sentence hearing.*fn5 Fourth, Judge Motley made it crystal clear at the outset of the hearing and throughout that in imposing sentence she would confine herself to the charges in the indictment to which Robin had pleaded guilty; specifically, the judge repeatedly stated that she would not take into consideration other matters set forth in the presentence report, including "other crimes which may have been committed by the defendant . . . . If he is guilty of some other crimes, they are not before me."*fn6 To this, defense counsel responded, "I'm glad to hear your Honor say that because your Honor has articulated the rule on sentencing. . . ." Finally, the claim that the defense was not given sufficient time to examine the presentence report - the ground for the majority's decision vacating sentence - aside from never having been raised in the district court, likewise has not been raised by appellant on appeal before us either in his briefs or in oral argument.
In short, the ground upon which the majority's decision is based must be viewed precisely for what it is: a ground never claimed by appellant or his counsel in the district court or on appeal; a ground totally devoid of any support in the record; but a ground nevertheless relied on by the majority as a vehicle not only for expressing its "concern" for "the particular severity of the sentence" but for vacating it.
If this were not enough to compel me to dissent, there is one other matter. Without the slightest basis in the record to justify it, the majority has directed that "resentencing will be before a different judge". 545 F.2d at 782. The majority characterizes this as "the preferred practice in such cases". Id. What is "preferred" of course is a subjective judgment. I had supposed that the extraordinary remedy of directing that proceedings on remand take place before another judge should be reserved for the extraordinary case. In my view, this is not such a case. In the context of imposition of sentence, one would expect, before ordering the extraordinary remedy of resentencing before a different judge, that such order be based upon a showing in the record of such bias or prejudice against the defendant as to render it difficult or impossible for the judge fairly and impartially to perform the duty which she took the oath more than ten years ago to perform. There is not a scintilla of a showing in this record of any such bias or prejudice, and the majority points to none.
The conclusion therefore is inescapable that the direction that appellant be resentenced before a different judge further confirms my belief stated above that the true reason for the majority's decision vacating this sentence is that the majority simply does not like "the particular severity of the sentence which was imposed". With deference, that strikes me as precisely the sort of sentence review which is none of our appellate business.
I therefore respectfully but most emphatically dissent.