United States v. Michael E. Yates

554 F.2d 342, 1977 U.S. App. LEXIS 13546

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 4, 1977
• Docket: 76-2036
• Status: Published

Opinions

CHRISTENSEN, Senior District Judge.

The appellant, Yates, was indicted on two counts of knowingly and intentionally possessing and distributing cocaine. He pleaded guilty to one count. After presentence investigation, probation officer’s report, and hearing, the court sentenced him to imprisonment for a term of four years with a special parole term of three years to follow that confinement. The second count was dismissed. The single claim pressed on this appeal is that the sentencing judge improperly considered prejudicial hearsay evidence in determining the sentence.² The record does not substantiate this claim.

The court had requested counsel for the defendant and the government to furnish information to the probation officer for the purposes of the presentence report. Both parties reserved the right to present directly to the court additional evidence in support or opposition to the defendant’s motion for probation. At the sentencing hearing, defendant’s counsel made a statement but objected to claims made by government counsel that defendant had been reported to have sold marijuana after released on bond, and that he had sold drugs to high school students. The court permitted the government to attempt to prove these assertions, but it developed that the statements were based on hearsay to the extent the proffered evidence purported to cover them.

We need not nicely weigh in this case the extent and under which circumstances hearsay evidence may be considered in the sentencing process. See, e. g., Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); United States v. Collins, 432 F.2d 1136 (7th Cir. 1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed. 625 (1971); United States v. Chewning, 458 F.2d 381 (9th Cir. 1972). Cf. United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971); United States v. Weston, 448 F.2d 626 (9th Cir. 1971). Nor is it necessary to evaluate defendant’s argument that, in light of Rule 32(c)(1), (c)(3)(A), Fed.R.Crim.P., the presentence report prepared by the probation officer is to be the primary source of information on which the sentence is to be based and that there must be opportunity for a defendant to rebut claimed inaccuracies. Defendant was permitted to deny the accuracy of the hearsay statements and did not question the accuracy of the presentence report. The record indicates that in imposing sentence the court disregarded any hearsay statements or claims and acted upon the basis of the presentence report.

Although the defendant claims that the judge displayed a change of attitude toward him after hearing the hearsay testimony, the record does not bear this out. On the contrary, before the hearsay was ever mentioned, the judge had pointed out that the favorable impression he had received at the time of the initial appearance of the defendant before him had been dispelled by the presentence report.³

The record also demonstrates that any reference to the hearsay objected to by defendant was disregarded by the sentencing judge and that in arriving at the sentence he placed primary reliance upon the presentence report.⁴

Being well within the limits provided by law,⁵ based upon due consideration, and not vulnerable to the question raised,⁶ the sentence and judgment are AFFIRMED.

2 . Agent Brunholtz testified that he purchased cocaine from the defendant on two occasions during March and April of 1976 (the transactions which were the basis of the indictment) and that the defendant had offered to sell, him heroin. All of these were testified to by Agent Brunholtz as personally occurring between himself and the defendant. He further testified on the basis of information furnished to him by others, however, that the defendant had supplied local junior high school students, and following his arrest he had offered to sell marijuana to an informant of a local police department. This was the hearsay testimony to which defendant objected.

3 . “[A]nd I got the impression much as you are now, that you were visibly shaken by the proceeding, outwardly at least, and the Court is — was impressed by that. In fact Mr. Clark was correct, I told him privately that I thought that your — you were quite shaken by it. I am not totally sure, however Mr. Yates, that my impression of you is correct and I — reading this [the presentence report] and discussing it, I have some serious reservations about your attitude about this. I think that, and the Court is pretty blunt about this, that you may be acting in Court only one way and doing something else. . . .”

4 . “I would not give it [the hearsay evidence] that weight either certainly. , . I think what I’m going to do is well justified from the pre-sentence report itself, disregarding any other testimony that is presented , . . what I will do . . will be well within those [statutory] limitations and it’s based on the pre-sentence report and I feel that my actions are justified. I think the Court did get a false impression of you Mr. Yates and it was largely from your appearance in Court that the pre-sentence report doesn’t back up.' I don’t think your actions outside of this Court have any — bear any semblance to your actions in Court.”

5 . 21 U.S.C. § 841(b)(1)(A) authorizes imprisonment of not more than fifteen years, a fine of not more than $25,000, or both.

6 . Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), supra; Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), supra; United States v. Collins, 432 F.2d 1136 (7th Cir. 1970), supra; United States v. Allen, 494 F.2d 1216 (3d Cir.), cert. denied sub nom., Liles v. United States, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 83 (1974).