Opinion
No. 74-1888.
Argued September 30, 1974.
Decided October 23, 1974. As Amended October 29, 1974.
Henry Skrypeck, pro se; Joan K. Cavanagh, pro se; James Drew, Atty. Advisor (appointed by the United States District Court), for appellants.
David T. Stitt, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee.
Appeal from the United States District Court for the District of Columbia.
Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
Appellants are charged with second degree burglary, destruction of the property of a foreign government, and harassment of an official of a foreign government. After preparation of a report by the District of Columbia Bail Agency, the Federal Magistrate released the appellants on their personal recognizance.
22 D.C. Code § 1801(b) (1973).
18 U.S.C. §§ 970, 1116(c) (1970 Supp. II).
18 U.S.C. §§ 112(b), 1116(b) (1970 Supp. II).
At their arraignment, appellants were informed by the court that they had to report to the Probation Office and submit to an interview that would initiate the presentence report investigation. This condition for continued release pending trial was imposed under U.S.D.C.D.C. local rule 2-7(c)(2) which provides:
At arraignment a mandatory condition of continued bail shall be that the alleged offender immediately provide the Probation Office with formal data, not related to the offense, concerning schooling, family status, military record, medical history, employment, and the like, so that routine inquiries may be initiated while the case is pending, looking toward a more prompt preparation of a presentence report when required. Information developed by this procedure shall be destroyed in the event of acquittal or dismissal and it shall be disseminated only as the judge to whom the case is assigned shall by order direct.
The local rule was approved by the Judicial Council. While some weight is accorded the approval, the Court is not bound by it. See In re Imperial "400" National, Inc., 481 F.2d 41, 42 (3d Cir), cert. denied, Judicial Council of the Third Circuit v. Nolan, 414 U.S. 880, 94 S.Ct. 68, 38 L.Ed.2d 125 (1973). Moreover, the issue presented in this case was not identified at the time of Council consideration of this rule.
Upon appellants' refusal to comply with the order, the District Judge issued bench warrants for appellants' arrests. Appellants appealed from the Court's order and this Court stayed the imposition of the condition during the pendency of the appeal. After oral arguments, the record in the case was remanded to the District Court to conduct an evidentiary hearing to ascertain the nature and extent of the presentence inquiry.
The requirement of submission to the Probation Office interview is imposed after the court has made its bail determination. There is no pretence that the interview is to serve any purpose other than the preparation of the presentence report.
U.S.D.C.D.C. local rule 2-7(c)(2) specifically provides that the purpose of the interview is to initiate the presentence investigation.
When conditions are imposed on the release of a person accused of a crime, the court must comply with the provisions of the Bail Reform Act of 1966. That act provides that any person who is charged with an offense must be released pending trial without condition other than the execution of an unsecured personal appearance bond, ". . . unless the officer determines . . . that such a release will not reasonably assure the appearance of the person as required."
18 U.S.C. § 3146 et seq. (1970).
18 U.S.C. § 3146(a) (1970).
Under the procedure mandated by the local rule, the determination of the defendant's inclination to appear at trial is complete and bail is set before he is ordered to report to the Probation Office. The condition acts as a device to cut short a release that has already been ordered. As such it is a coercive measure that insures the cooperation of the accused in the presentence investigation by threatening a penalty that the Bail Reform Act forbids.
While the presentence report serves an important function in our system of criminal justice, it must not be forgotten that the preparation of the report entails a significant intrusion by the government into the private life of its citizens. The investigation puts the employer, the school, and the neighbor on notice that a person they have readily accepted in the past may now be guilty of a crime. If the investigation is conducted before the adjudication of guilt, the acquitted defendant is forced to explain away the inquiry and fight to regain his good name.
After arraignment the Probation Office conducts an interview with the defendant without counsel being present. The Probation Officer then fills out either "Probation form 1 (long form) (February 1966)" or "Probation form 1a (short form) (March 1966)." A copy of each of these forms is contained in Appendix I.
The Officer follows up the interview by sending "Probation form 14 E (March 1964)" to the defendant's school. A copy of this form is contained in Appendix II. We note that the form advises the recipient that the Probation Office is investigating the defendant.
"Probation form 14 D (March 64)" is sent to the defendant's employer. A copy of this form is contained in Appendix III. This form also advises the recipient that the defendant is under investigation.
See, American Bar Association Project On Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures 209 (Approved Draft, 1968).
On the other hand, the early preparation of the report may result in the reduction of delay between entry of a guilty plea or adjudication of guilt, and the imposition of sentence. A person hopeful of receiving probation may well desire expedition of the sentencing process.
Local rule 2-7(c)(2) robs the individual of the right to make a meaningful election between the two courses of action. Under the present practice the defendant can either submit to the intrusion or be relegated to a cell. The impact of such a one sided choice is clear. The defendant is the person who either gains or loses from the pre-trial investigation. It is only proper that the choice be left with him.
Federal Rule of Criminal Procedure 32 requires a prompt imposition of sentence. The Probation Office personnel testified that local rule 2-7(c)(2) serves to shorten the time required after adjudication of guilt for the preparation of the presentence report. It is apparently the practice in the District of Columbia that there are supplementary interviews after conviction and that the presentence reports are filed within thirty days of conviction. This consideration may have merit, but it cannot justify expeditions gained through conditions on release that conflict with the Bail Reform Act. We also note that the probation authorities prepare presentence reports on defendants in confinement without the benefit of pre-conviction interviews.
Testimony of Edward Docekal, Presentence Unit Supervisor, United States Probation Office. Transcript at 18.
The Government relies on language in Gregg v. United States, 394 U.S. 489, 89 S. Ct. 1134, 22 L.Ed.2d 442 (1969), as supporting the Probation Office in its pre-trial preparation reports. However, Gregg doesn't suggest that pre-conviction preparation of presentence reports may be conducted in a manner that violates the Bail Reform Act, nor does it approve the intrusions on privacy permitted by U.S.D.C. D.C. local rule 2-7(c)(2).
Testimony of Edward Docekal. Transcript at 22.
It is difficult to devise a system that will permit the defendant to arrive at an intelligent and uncoerced choice. Written questions handed to the defendant at arraignment and returned after consultation with an attorney might give the accused an opportunity to decide the degree to which he wishes to assist the Probation Office, if at all. It is for the courts and the Probation Office to decide the exact procedures to be followed consistent with the Bail Reform Act and the accused's right of privacy.
Because local rule 2-7(c)(2) is inconsistent with the Bail Reform Act of 1966, it must be set aside. The order of the Court imposing compliance with the rule by the appellants as a condition for continued release is reversed. This case is remanded to the District Court.
So ordered.
APPENDIX I
APPENDIX II
APPENDIX III