whom the officer might contact, but alsoany plan which the defendant might havefor future conduct (i.e., making restitution).If the information is obviouslyproper for the sentencing judge's consideration,it will be included; if there isa disagreement over the information, it canstill be offered by the defendant.My own conclusion is simple: <strong>The</strong> PresentenceInvestigation Report furnished tothe trial judge carries the imprimatur of approvalof the Chief Probation Officer ofthe District in which the Report was prepared.If you can possibly get the informationwhich you want the judge to considerincluded in that Report, you aredramatically better off than if you preparea defendant's Presentence InvestigationReport.<strong>The</strong> Ex Parte Co~tferenceIt should also be understood that the appellatecourts have held that United StatesProbation Officers can have exparte conferenceswith the sentencing judge. InUnited States v. Houston, the 5th Circuitwrote that ''It is not improper for the districtjudgc k, hold prcsclitence confcrcncc..;w~th 3 nrobstion staff.""' In llnitcd Stdcsv. ~o&ales, the 9th Circuit said that"When a probation officer is preparing apresentence report, he is acting as an 'armof the Court' and this permits ex parkcommunication.""What the sentencing judge learns fromthe United States Probation Officer is notlimited to what is included in the PresentenceInvestigation Report or what he istold in open court.<strong>The</strong> Notification ReqrrirenterrtTitle I8 U.S.C. Sec. 3552(d) givesdefendants' lawyers a blessing with thenew notification requirement:"<strong>The</strong> court shall assure that a reportfiled pursuant to this section is disclosedto the defendant, the counselfor the defendant, and the attorneyfor the Government at least tor daysprror to the date set for sentencing,unless the minimum period is waivedby the defendant." (Emphasisadded)Now we will have plenty of time to lookat the Presentence Investigation Report, goover it with the defendant and prepare forthe sentencmg proceeding.We will have an affirmative duty-as Isee it-to make a written response addressedto the United States Probation Officerwho prepared the Report detailingwhat, if anything, we find to beerroneous.We should make this response for tworeasons: (1) If we are right in our complaint,the United States Probation Officerwill have the opportunity to correct thematter about which we have complained;and, (2) If we do not make a written response,we might well be ineffective in theassistance which we give to the defendant.[Note: As recently as August 4, 1987, the3rd Circuit was answering a Petition forWrit of Habeas Corpus in which the Petitionerwas alleging, among other things,that his attorney had failed to insure thepreparation of an accurate Presentence InvestigationRepo~t;]~~A Response to a Proble~n ReportIf you are furnished with a PresentenceInvestieation Renort which vou believe to&.contain materially inaccurate information,I would suggest that you prepare a Memorandumto the United States Probation Officerwho prepared the Report whichshould include at least some of this nonaccusatorylanguage:1. I have reviewed the PresentenceInvestigation Report which you havefurnished to me. I have also had thedefendant read it, and we have discussedit.2. We believe that the following informationcontained in the Report isinaccurate: (set out what is inaccurate)3. We know that you would nothave intentionally included any materiallyfalse information in this Report;however, we are concernedthat the sentencing judge could ormight rely on this information in imposingsentence. This would not befair to the defendant.4. We would, therefore, request thatwe meet at the earliest possible timein order to talk about this.Hand-carry this to the United States ProbationOfficer in order that you do not loseprecious time waiting for the mail to bedelivered. If the United States ProbationOfficer agrees with your complaints, donot hesitate to ask that the Report be rewritten.<strong>The</strong> importance of a "clean" PresentencelnvestigationReport is seen in thelanguage of the 1983 Advisory Committeereport concerning Rule 32(c)(3)(D):"As noted above, the Bureau ofPrisons and the Parole Commissionmake a substantial use of the presentenceinvestigation report. Undercurrent practice, this can result inreliance upon assertions of fact in thereport in the making of critical determinationsas to custody or parole.<strong>For</strong> example, it is possible that theBureau or Commission, in thecourse of reaching a decision on suchmatters as institution assignment,eligibility for progratns, or computationof salient factors, will placegreat reliance upon factual assertionsin the report which are in factrotmre and ivhiclt remained zmchal-Ienged at the time of sentencing becausedefendant or his counseldeemed the error ~rrtirnportartt in thesentencing conte~t . . ." (Emphasisadded)A Written Objectionto the Presentence Investigation ReportIf, despite all your efforts to the contraty,the Presentence Investigation Reportstill contains inaccuracies which you believeto be prejudicial to your defendant(either now or when he goes into confinementor both), I would suggest a writtenobjection which should contain at leastsome of the following:<strong>The</strong> Defendant and his lawyer havecarefully reviewed the Presentence InvestigationReport and would respectfully suggestthat it contains misinformation whichis materially inaccurate." Some of the informationcontained in the Report does notbear an indicia of reliability.'<strong>The</strong> Defendanthas a right not to be sentenced on thebasis of invalid inf~rmation.'~<strong>The</strong> matter complained of is as follows:(Set out in detail in order that the sen-8 VOICE for the <strong>Defense</strong> I October 1987
tencing judge does not have to go back andforth to find the offensive matter.)<strong>The</strong> Defendant requests the followingrelief:a. That a hearing be had in order thatevidencemight be introduced to rebutthis misinformation;h. That this Honorable Court not considerthe matter complained of forany purpose; and,c. That the matter complained of he excisedfrom the Presentence InvestigationReport.judge can 'exercise a wide discretion in thesources and types of evidence' he uses toassist him in determining the kind and extentof punishment to he impo~ed."'~In United States v. Jackson, the 5th Circuitwrote that "<strong>The</strong> defendant must begiven the chance to inform the Court of anymitigating circumstances, hut we see liUleadvantage to be gained by having otherstdfy for him at sentencing." (Emphasisadded)''In Unifed States v. Sattefield. the 11thCircuit slates that "Although a non-capitaldefendant does not have a constitutionalright to call and cross-examine witnessesto rebut information contained in the presentence report (citing Ashley), Rule32(c)(3)(A) gives him the right to commenton the report and correct any alleged factualinaccuracies contained the~in."'~In United Stares v. Papajohn, the 8thCircuit-again foreclosing the defendantfrom having au evidentiary hearing-wrotethat "Due urocess does not mandate anBecause of the amendment to Rule 35,tb is the only opportunity that this Defendantwill have to present these objectionsto this Honorable Court. Without the opportunity€0 present evidence, the Defendantrisks being sentenced on the basis ofmisinformation which would deny him dueprocess of law.Because the Presentence InvestigationReport will follow the Defendant to hisplace of confinement, the Defendant willhe prejudiced by the misinformation withinthat Report as it will be used by the Bureauof Prisons to determine his classification,his eligibility to participate in programswithin the institution and his eligibility forfurloughs.<strong>The</strong> Presentence InvestigationReport At the SentencingProceeding<strong>The</strong> Defen6anf's Oppottunify to CommentOn the Presentence Investigafim ReportRule 32(c)(3)(A) concludes with thissentence:"<strong>The</strong> court shall afford the defendantand the defendant's counsel anopportunity to commenl on the reportand, in the discretiot~ of the court,to introduce testimony or other informationrelating to any factual iuaccuracy.''(Emphasis added)In United Stafes v. Ashley, the 5th Circuitdetermined that ". . . a sentencingOctober 1987 1 VOICE for the <strong>Defense</strong> 9
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