Hot on the heels of United States v. Baker, 2007 Wl 4006103 (2d Cir. November 16, 2007), discussed here, in which the Second Circuit reversed a child pornography possession case for an unexplained failure to depart below the Guidelines, the Court reversed a similar case two days ago, United States v. Juwa, 2007 WL 4179834 (2d Cir. November 28, 2007), because of a substantial upward departure based on what appeared to be unsubstantiated relevant conduct.  The two cases have prompted this memorable headline from the Second Circuit Blog: "Have you hugged a sex offender lately?" 

In Baker, the issue was the sentencing judge's failure to explain why leniency wasn't appropriate in light of the absence of any evidence that the defendant had molested children.  In Juwa, the sentencing court must explain if its 60-month enhancement above the applicable guideline was improperly based on a finding that the defendant had engaged in multiple acts of child sexual abuse, rather than the single instance to which the defendant intended to plea guilty in state court. 

Juwa is significant for the Court's reiteration of a fundamental if obvious point: that the defendant has a "due process right to be sentenced based on accurate information."  The Court went on to say, quoting a Third Circuit decision, United States v. Matthews, 773 F.2d 48, 51 (3d Cir. 1985), "[f]actual matters considered as a basis for sentence must have ‘some minimal indicium of reliability beyond mere allegation.'"  Moreover, an indictment, "standing alone and without independent substantiation" cannot be the kind of "accurate" information required for the imposition of a criminal punishment. 

These statements, while admittedly a bit on the stingy side, will be useful, as Harlan Protass points out in his blog, in challenging the use of any relevant, especially acquitted, conduct to enhance a defendant's sentence.  In addition, they should be quoted in all letters to the Probation Department objecting to factual inaccuracies in the presentence report, which as I have noted previously, tend to be rife and subject to very little accountability.

On a final note, Juwa is disappointing for the Court's failure to take the opportunity to address some other issues raised in that sentence, such as whether a 60-month enhancement of a child pornography possession case is reasonable based on the defendant's prior acts of sexual abuse, even if substantiated, where the defendant was separately pleading guilty in another court to the sexual abuse (and a five-year sentence) and the Guidelines themselves only call for a 2 year or so enhancement in those circumstances. 

The presentation of uncorroborated hearsay, opinions and outright speculation as hard facts in pre-sentence reports is a constant bone of contention for federal criminal defense lawyers. The source of the information could be a ten year-old police report of a domestic abuse incident, or a telephone call with the F.B.I. case agent who describes all the relevant conduct the defense lawyer worked so hard to exclude from the plea agreement. But the source may never be known, much less scrutinized, because defense lawyers have no right of access to information submitted ex parte to the probation officer, and probation officers in turn are not required to reveal the source in their final report.

The American Bar Association Criminal Justice Section wants to change that. It has drafted a report and recommendation, adopting a recommendation of the Sentencing Initiative of the Constitution Project, for new subsections (c)(3) and (c)(4) to Fed.R.Crim.P. 32, which would require:

• Any party providing information to the probation officer to provide a copy simultaneously to the opposing party, absent cause; and
• The probation officer, upon request of either party, to turn over any documents or a written summary of oral information used in the preparation of the report that had been obtained from a non-party.

The draft report points out that in the era of sentencing guidelines, when very specific factual findings impact whether and how long someone goes to jail, more meaningful scrutiny of the factual claims in the pre-sentence report is necessary, so as to achieve greater reliability. As the report explains, quoting the Constitution Project's report: "Dueling ex parte submissions, followed by reports without citations, do not result in the level of reliability in the fact-finding process that would result through the ordinary adversarial process."

The draft report and recommendation will be presented to the ABA Criminal Justice Section Council for approval during its November 3-4, 2007 meeting in D.C., and the Section is currently soliciting comments.

One can already hear the protests that such a rule will necessarily increase litigation and workload. As a practical matter, however, these fears may well be unfounded (and even if they weren’t, they are surely outweighed by the goal of increased reliability). Where the factual dispute impacts the applicable guideline, the matter will most likely be litigated anyway. The proposed new rule merely ensures that that litigation will be based on full disclosure of all relevant information. Where the challenged fact has no guideline impact, but is merely provided “by way of background” (usually of a negative variety), defense lawyers will typically try to avoid litigating the issue so as to minimize the spotlight on bad facts at sentencing.

In the end, therefore, the real value of the proposed change lies in removing the secrecy surrounding the pre-sentence process that permits unfair behind-the-scenes manipulation of the facts. The bad fact may never appear in the final report in the first place, if the probation officer has to reveal its suspect source, or the defense lawyer has had an opportunity to persuade the probation officer that it is too unreliable to be included.