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U.S v. MOLINA

October 7, 2002

UNITED STATES OF AMERICA, PLAINTIFF,
V.
TEDDY MOLINA, DEFENDANT.



The opinion of the court was delivered by: Munson, Senior District Judge

MEMORANDUM-DECISION AND ORDER

Currently before the court is defendant Teddy Molina's letter-motion seeking the release of a co-defendant's presentence report, this co-defendant having testified against defendant at his sentencing hearing.*fn1 For the reasons set forth below, defendant's motion is DENIED.

BACKGROUND

As a result of events that occurred on August 1, 2001, in Syracuse, New York, defendant and co-defendants Jose Cireno, Carlos Belez and Irvin Avil's Manso were charged with conspiring to commit a robbery affecting interstate commerce in violation of 18 U.S.C. § 1951.

On August 15, 2001, a federal grand jury returned a four-count indictment charging defendant with violations of 18 U.S.C. § 922(j); 922(k); 922(g)(1); and, 26 U.S.C. § 5871. Defendant signed a plea and cooperation agreement whereby he entered a plea of "Guilty" to Count Four of the subsequent indictment, 01-CR-354, which charged him with Possession of Firearms As a Prohibited Person in violation of 18 U.S.C. § 922(g)(1). Similarly, co-defendants Jose Cireno, Carlos Belez and Irvin Avil's Manso signed plea and cooperation agreements.

Co-defendant Cireno subsequently testified on behalf of the government at defendant's sentencing hearing and was subjected to cross-examination by defendant's counsel. Defendant's counsel moved for the release of Cireno's presentence report arguing that the release was necessary so as to obtain a copy of Cireno's rap sheet because he had been otherwise unsuccessful in obtaining a copy. Presumably, defendant's counsel sought the release of Cireno's presentence report because it possibly contained impeachment material. Defendant's counsel based his argument on the Jencks Act, 18 U.S.C. § 3500.

DISCUSSION

A. Presentence Reports as Jencks Act Material

The Jencks Act, in pertinent part, provides:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. 18 U.S.C.A. § 3500(b) (emphasis added).

In United States v. Canniff, 521 F.2d 565 (2d Cir. 1975), the Second Circuit Court of Appeals held that the Jencks Act, 18 U.S.C.A. § 3500, did not apply to the disclosure of presentence reports. The Second Circuit reasoned that, because the probation department acted as an extension of the United States Courts rather than as an extension of the United States Attorney, the prosecutor "had no right to or control over copies of the report." Id. 521 F.2d at 573.

Furthermore, the prosecution never had possessed the requested materials, and the Second Circuit posited that the government "cannot be required to produce that which it does not control and never possessed or inspected." Canniff, 521 F.2d at 573.

In United States v. Moore, 949 F.2d 68 (1991), the Second Circuit Court of Appeals once again examined the release of presentence reports to third parties based on the Jencks Act. Invoking confidentiality as its chief concern, the Second Circuit denied a motion seeking the release of co-defendants' presentence reports. See Id. 949 F.2d at 71. The Second Circuit denied the motion despite the fact that while the United States Attorney's Office did not have access to the presentence reports, it nevertheless possessed the presentence reports in question.

See Id. The Second Circuit observed that Congress enacted the Jencks Act in 1957 at which time not even defendants themselves were entitled to see their own presentence reports as a matter of right; defendants did not enjoy such a right until 1975. The Second Circuit reasoned that to hold the Jencks Act, enacted by Congress nearly two decades earlier, intended to permit the routine release of presentence reports to third parties while it had not provided the same to defendants themselves would be nothing short of "ironic." Moore, 949 F.2d at 71. Therefore, in the instant case, defendant is not entitled to his co-defendant's presentence report under ...


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