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IN THE MATTER OF LOBEL

United States District Court, S.D. New York


April 6, 2005.

In the Matter of the Application For Disclosure of Probation Records Pursuant to an Order of the United States District Court for the Southern District of New York Under Docket Number 03 Cr. 296 (RWS) of MARC LOBEL.

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

MEMORANDUM OPINION

Petitioner, a licensed practicing attorney in the State of New York, seeks disclosure of monthly supervision reports concerning Marc Lobel (hereinafter "Lobel") complied by the United States Department of Probation (hereinafter "Probation") pursuant to the order of this Court under a judgment of conviction entered on February 6, 2004, in United States v. Bialostok, et. al. 03 Cr. 00296-RWS.

In that case, Lobel was convicted by judgment entered on February 6, 2004 on his plea of guilty for one count of violation of Title 18 U.S.C. Section 1956, involving conspiracy to commit money laundering. He was sentenced to a three year term of probation, including a six month period of home confinement, and ordered to pay a $2000.00 fine. The remaining counts were dismissed. Petitioner now moves this Court to disclose all records accumulated thus far by Probation pertaining to Lobel. In support of this application, Petitioner asserts that he represents a civil plaintiff who was awarded a money judgment against Lobel, and as such Petitioner wishes to review the probation records relating to Lobel to ascertain Lobel's finances, specifically any available assets and his currently earned income. Petitioner concedes that Lobel has been deposed previously but believes he was not forthcoming fully in his deposition, thereby necessitating additional investigation by Petitioner.

  Neither Probation nor Lobel oppose Petitioner's motion on the record; however, for the reasons set forth below, Petitioner's motion is denied without prejudice to the right of Petitioner to consult with the Chief Probation Officer.

  Discussion

  Probation records, including but not limited to pre-sentence reports and periodic progress reports, are prepared to assist the District Court in sentencing and in re-sentencing should a violation of probation occur. As the Second Circuit concludes in United States v. Charmer Industries, 711 F.2d 1164 (2d Cir. 1983), "the pre-sentence report is a court document and is to be used by non-judicial federal agencies and others only with the permission of the court." Id. at 1170. Since this Court sentenced Lobel, this Court retains jurisdiction over the application to disclose his probation records, whether Lobel himself seeks review of such records or whether, as in the instant matter, a third party does so. See United States v. Schlette, 842 F.2d 1574, 1576 (9th Cir. 1988) (holding that third parties had standing to move District Court for access to probation records but did not have standing to appeal District Court's denial of access as the third parties were not parties to underlying criminal proceeding).

  Although Rule 32(e)(2) of the Federal Rules of Criminal Procedure mandates disclosure of pre-sentence reports to defendants, their counsel, and prosecuting attorneys, the rule falls silent with respect to third party disclosures. See Fed.R. Cr. P. 32(e)(2). The Second Circuit answers this silence in Charmer by presumptively favoring non-disclosure of probation records to third parties "in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice." Charmer, 711 F.2d at 1175. The Charmer test further articulates that "[a] central element in the showing required of a third person seeking disclosure is the degree to which the information in the pre-sentence report cannot be obtained from other sources." Id. at 1178.

  In the case at hand, Petitioner seeks financial information about Lobel, information that absolutely can be gathered through other means. Beyond a doubt, Petitioner can further investigate Lobel's available assets and income without asking this Court to exercise its discretion in disclosing the probation records. See Charmer, 711 F.2d at 1177 ("[T]he presence of salary data in the [pre-sentence] [r]eport does not indicate that disclosure of the [r]eport is needed.").

  Furthermore, this Court will not use its authority to grant Petitioner's request for an outcome inconsistent with the Court's obligation to rely on probation records for the sole purpose of sentencing. As the Honorable Charles L. Brieant stated in In the Matter of Peter Hein Horsford, 699 F. Supp. 463 (S.D.N.Y. Nov. 21, 1988),

Prosecutorial use of a pre-sentence report is incompatible with the purpose of the report as a sentencing and correctional tool. Candor and openness on the part of the report's primary source, the defendant, may be stifled if the report is available for subsequent prosecutorial or investigative use.
Id. at 465 (quoting The Pre-sentence Investigation Report, Administrative Office of the U.S. Courts, Publication 105 (Revised 1984 ed.), 3).

  Nor does the Freedom of Information Act, 5 U.S.C. ยง 552, (hereinafter "FOIA"), require grant of the application. In United States v. Julian, 486 U.S. 1 (1988), the Supreme Court, interpreting Exemption 5 of the FOIA statute, distinguishes between "a governmental claim of [confidential] privilege for pre-sentence reports when a third party is making the request and such a claim when the request is made by the subject of the report" and concludes that "there is simply no privilege [of confidentiality] preventing disclosure in the latter situation." Id. at 14 (emphasis in original).

  The Supreme Court further elaborates this privacy interest in United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749 (1989). Again interpreting FOIA, the Court holds that Exemption 7(c) prevents third parties from obtaining a private citizen's criminal records held by a federal agency. That exemption, known as the law enforcement exemption, refuses disclosure of information compiled for law enforcement purposes that reasonably could constitute an unwarranted invasion of personal privacy. Specifically, the Court denies journalists' request to release the rap-sheets of four private individuals who purportedly had been involved in organized crime. Asserting that FOIA acts exclusively as a tool of the public citizenry to watch dog the conduct of federal agencies, the Court concludes that "when [a third party's request for law enforcement records] seeks no `official information' about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is unwarranted." Id. at 1485. These authorities establish that Petitioner cannot sidestep Exemptions 5 and 7(c) of the FOIA to achieve disclosure of Lobel's probation records.

  As discussed above, Petitioner fails to provide a compelling reason to release Lobel's probation records and thereby fails the Second Circuit's Charmer test. Further, Petitioner cannot rely on FOIA to obtain this information, as Exemptions 5 and 7(c) both prevent third parties from accessing such records. For the foregoing reasons, Petitioner's motion to disclose Lobel's probation records is denied.

  It is so ordered.

20050406

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