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
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.
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.
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
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.
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. § 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.
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