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UNITED STATES v. DANDREA

February 4, 1998

United States of America, Plaintiff,
v.
J. David Smith and Steven Dandrea, Defendants.



The opinion of the court was delivered by: POLITAN

 Dear Counsel:

 This opinion is a redacted version of a full opinion filed under seal in this matter. Those portions which were redacted are clearly noted by the Court.

 This matter comes before the Court on a motion by defendant J. David Smith, GTECH Corporation, Smith's former employer, and an uncharged individual, for the institution of contempt proceedings and additional relief against the United States Attorney's Office based upon an alleged violation of Federal Rules of Criminal Procedure 6(e) and 32. Defendant Steven Dandrea has filed a motion only with respect to the Rule 32 issue. The Court has reviewed the papers submitted in support of and in opposition to the motion, and the parties have attended several conferences relating to the matter. Based upon the reasoning set forth more particularly below, the Court finds that Rule 6(e) was violated when the United States Attorney's Office disseminated the sentencing memorandum to the public by posting it on the Government's Internet web site and by mailing it to certain state lottery regulators. The Court also finds that Rule 32 was violated when the United States Attorney's Office made the sentencing memorandum public.

 STATEMENT OF FACTS

 The catalyst of this matter was the conviction of defendants Smith and Dandrea by a jury on October 4, 1996, of all counts of a twenty-one-count indictment charging a kickback scheme involving the hiring by Smith of Dandrea as a consultant to GTECH, the vendor for the New Jersey State Lottery.

  Sentencing was scheduled for January 8, 1997, *fn1" and the Assistant United States Attorney ("AUSA") in charge of the case met with the United States Probation Office to provide it with the Government's version of the offense conduct. In early January 1997, a sentencing expert hired by the defendants contacted the Probation Office to inform the office that new counsel for the defendants had not yet been retained. He further requested that any meeting with defendant Smith be delayed until new counsel was retained.

 Regardless, the AUSA proceeded with her obligations under the Sentencing Guidelines, and informed the Court that the sentencing could not go forward on January 8, 1997, and the date was adjourned. New counsel for the defendants contacted the AUSA on January 14, 1997, to request an adjournment of the motion schedule until February 28, 1997, to allow counsel to review the record. The AUSA agreed to the request.

 On that date, the AUSA informed Smith's new counsel that the sentencing memorandum of the United States Attorney's Office would be filed the next day. On January 15, 1997, the United States Attorney's Office filed with the Clerk's Office a Memorandum in Support of Sentencing. The memorandum was posted on the Internet web site maintained by the United States Attorney's Office and was distributed to members of the press, the public, and state lottery regulators. This dissemination is the genesis of this application.

 In the days following the disclosure of the sentencing memorandum, newspaper articles outlining the allegations in the memorandum appeared in several newspapers in Texas. These newspapers reported that defendant Smith had received kickbacks, similar to those for which Smith was convicted, from uncharged individuals. The articles state that these allegations were made in the sentencing memorandum. There were also quotes in several of the articles from the AUSA in charge of the case.

 Smith, Dandrea, GTECH, and the uncharged individual complained to this Court, contending that the memorandum contained grand jury material and asserting that the AUSA and the United States Attorney's Office had violated Rule 6(e) by disclosing it to the public. They also maintained that by making the memorandum public, the United States Attorney's Office violated Rule 32. This Court sealed the memorandum on the ground that Rule 6(e) material was implicated, ordered the United States Attorney's Office to remove it from the Internet, and ordered the AUSA to retrieve those copies of the memorandum that she had disseminated. This Court also ordered the parties to file, under seal, briefs concerning the extent to which the sentencing memorandum contained secret grand jury material. *fn2"

 The Court will first determine whether the AUSA violated Rule 32 and/or this Court's Standing Order on sentencing. Then, the Court will determine whether the AUSA violated Rule 6(e) by including certain material in the sentencing memorandum. Finally, the Court must, if necessary, craft an appropriate sanction.

 DISCUSSION

 As an initial observation, the United States Attorney's Office has sought in this matter to rewrite Rule 6 and Rule 32 by totally disregarding the serious issues of confidentiality and grand jury secrecy clear on the face of both rules. It is indeed distressing to this Court to see an obvious effort by the United States Attorney's Office to seek publicity and trial by newspaper in matters where basic fundamental rights (of parties and nonparties) are involved. Those rights, under the rules, are clearly subject to the power and discretion of the Court, which is clothed with the responsibility of ensuring that the sensitive issues of confidentiality inherent in both Rule 6 and Rule 32 are respected and balanced against other considerations. This is a judicial function, not a prosecutorial function. The decision is always with the Court.

 Rule 323

 The preparation of presentence reports ("PSRs") *fn4" are governed by Rule 32(b). This rule provides in pertinent part:

 
(b) Presentence Investigation and Report.
 
(1) When Made. The probation officer must make a presentence investigation and submit a report to the court before the sentence is imposed, unless:
 
(A) the court finds that the information in the record enables it to exercise its sentencing authority meaningfully under 18 U.S.C. s 3553; and
 
(B) the court explains this finding on the record.
 
* * *
 
(3) Nondisclosure. The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty.
 
(4) Contents of the Presentence Report. The presentence report must contain--
 
(A) information about the defendant's history and characteristics, including any prior criminal record, financial condition, and any circumstances that, because they affect the defendant's behavior, may be helpful in imposing sentence or in correctional treatment;
 
* * *
 
(5) Exclusions. The presentence report must exclude:
 
(A) any diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation;
 
(B) sources of information obtained upon a promise of confidentiality; or
 
(C) any other information that, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons.
 
(6) Disclosure and Objections.
 
(A) Not less than 35 days before the sentencing hearing--unless the defendant waives this minimum period--the probation officer must furnish the presentence report to the defendant, the defendant's counsel, and the attorney for the Government. The court may, by local rule or in individual cases, direct that the probation officer not disclose the probation officer's recommendation, if any, on the sentence.
 
(B) Within 14 days after receiving the presentence report, the parties shall communicate in writing to the probation officer, and to each other, any objections to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the presentence report. After receiving objections, the probation officer may meet with the defendant, the defendant's counsel, and the attorney for the Government to discuss those objections. The probation officer may also conduct a further investigation and revise the presentence report as appropriate.
 
(C) Not later than 7 days before the sentencing hearing, the probation officer must submit the presentence report to the court, together with an addendum setting forth any unresolved objections, the grounds for those objections, and the probation officer's comments on the objections. At the same time, the probation officer must furnish the revisions of the presentence report and the addendum to the defendant, the defendant's counsel, and the attorney for the Government.

 Fed. R. Crim. P. 32(b).

 The report generally contains information gleaned from sources including the defendant, the defendant's family, law enforcement agencies, employers, and others who are acquainted with the defendant.

 
Frequently information disclosed to probation officers during the presentence investigation is given to the investigators in confidence. For example, a defendant may disclose his income but not wish to have those figures made public. A psychiatrist may provide an evaluation whose availability would best be restricted to the court and those involved in the defendant's rehabilitation. Law enforcement agencies frequently wish to protect the sources of information in their records and will sometimes exact a promise of confidentiality from the probation officer.

 United States v. Charmer Indus., 711 F.2d 1164, 1171 (2d Cir. 1983). The Fifth Circuit recently articulated three compelling reasons underlying ...


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