UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 94-41200 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HILRY HUCKABY, III,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court for the Western District of Louisiana _________________________________________________________________

(January 12, 1995)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The principal question in this case is whether the

district court correctly made available to the public among the

records of this criminal prosecution the presentence report (PSIR)

prepared on appellant Huckaby. Although the federal rules now

mandate that the presentence report be disclosed to the defendant

and his attorney, the report is ordinarily kept confidential to

protect the sentencing process, the defendant's privacy interest,

and those people who have cooperated with criminal investigations.

No statute or rule, however, requires that presentence reports

remain confidential after the sentencing hearing has occurred;

information contained in the PSIR is often divulged at sentencing hearings. The interests of justice counsel that before any such

reports be made public, the court find compelling, particularized

circumstances that outweigh the noted interests in non-disclosure.

In this case, the trial court concluded that such compelling

circumstances exist. We agree with his findings, and affirm his

extraordinary order.1 Appellant's other contentions relating to

his sentence and conviction lack merit.

BACKGROUND

Appellant Huckaby, currently a state district judge in

Louisiana, came under investigation for income tax evasion. He was

charged in an information filed June 29, 1994, with one misdemeanor

count of failing to file an income tax return for calendar year

1987, in violation of

. The next day, Huckaby and

the United States filed a proposed plea agreement in which Huckaby

would plead guilty in exchange for the government's agreement not

to prosecute him for any other tax offense of which it then knew.

The district court refused to accept the plea agreement. Huckaby

then pled guilty to the information.

In a lengthy PSIR, the probation office concluded that

Huckaby had not filed any timely federal income tax returns for

nearly twelve years, that he had similarly failed to file timely

returns for his law practice, and that he had not filed tax returns

to the state of Louisiana for much of this period. He persuaded

the City of Shreveport, Louisiana, which he earlier served as a

1 A motions panel of this court granted a preliminary stay of the order on November 18, 1994. The preliminary stay was vacated by order of this court issued January 9, 1995. This opinion states the reasons for the January 9 order.

2 councilman, not to withhold income tax on his salary. When pressed

by the IRS, he filed returns on some occasions. His financial

records were in disarray, however, making the computation of unpaid

taxes difficult. Nevertheless, as reflected on the PSIR, the

Internal Revenue Service estimated the total taxes owed by Huckaby

for tax years 1981 through 1992 as being $146,311.25, exclusive of

penalties and interest.

Huckaby's prosecution has been highly publicized in his

home town of Shreveport. Community opinion has deeply divided over

whether Huckaby should be prosecuted at all or whether, for his

violation of public trust, his punishment should be stern and

exemplary. Judge Walter read a prepared statement at Huckaby's

sentencing hearing in which he chastised the government for

prosecuting Huckaby's case as a misdemeanor rather than felony tax

evasion and criticized Huckaby for implying that he was being

singled out for prosecution because he is black. According to the

court, there is a firmly held and widely disseminated opinion among

Huckaby's friends and some Shreveport public officials and

community leaders that "the defendant is being prosecuted because

he is black and because he has raised himself to a position of

power within the community." Judge Walter referred to letters he

had received, which characterized Huckaby's crime as a "mistake" or

"error." Judge Walter briefly summarized the offense-related

conduct described in the PSIR2 and derided Huckaby's attempt to

2 The district court cited statements in the PSIR concerning defendant's use of his clients' trust funds as his own; his evasion of $1,000 of sales tax by lying about his residence; his failure to file state income tax

3 shift blame from himself for his consistent failure to file tax

returns timely. The judge concluded:

Because of the widespread misconceptions about this case, I'm going to take the unusual step of filing the presentence report, together with your objections, into the record, for anyone who is interested in the truth.

The judge then sentenced Huckaby to a twelve-month term of

imprisonment plus a fine of $5,000, and a one-year term of

supervised release; he also ordered Huckaby to pay IRS the full

amount of taxes due for 1987.

On appeal, Huckaby contends that the district court

should not have rejected the plea bargain; that the court made two

errors in assessing the offense level for sentencing purposes; and

that he abused his discretion in ordering public disclosure of the

PSIR and objections thereto. We consider first the matter of the

presentence report and then discuss Huckaby's other issues.

DISCUSSION

Although Fed. R. Crim. Pro. 32(c) requires the

preparation of a presentence investigation report in most criminal

cases, the rule does not expressly prohibit disclosure of the

report after sentencing. Nevertheless, the rule continues a

longstanding practice of treating presentence investigation reports

as confidential and not public documents. It prohibits disclosure

returns for at least nine years and to pay over $24,000 of state income tax; his failure to timely file his federal income tax for twelve years; his failure to file an income tax return for 1989 and his evading the payment of taxes for those years; his unlawfully stopping the city from withholding taxes on his city council salary and his failure to keep records of the thousands of dollars flowing through his law firm.

4 of the PSIR even to the defendant or his counsel when, in the

opinion of the court

The report contains diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons.

Rule 32(c)(3).

Notwithstanding the rule's silence, "in both civil and

criminal cases the courts have been very reluctant to give third

parties access to the presentence investigation report prepared for

some other individual or individuals. United States Dept. of

Justice v. Julian,

,

(1988)

(emphasis in original). There is a "general presumption that

courts will not grant third parties access to the presentence

reports of other individuals." United States v. Smith,

(5th Cir. 1994), cert. denied, ___ U.S. ___,

(1994).

The ordinary confidentiality of presentence reports is

supported by powerful policy considerations. These may be

summarized briefly, for they have been discussed at length in other

opinions. See, e.g.,

United States v. Corbitt,

(7th Cir. 1989); United States v. Schlette,

(9th Cir. 1988), opinion amended,

(9th Cir.

1988); Durn v. Bureau of Prisons,

, 704-05 (D.C. Cir.

1986). First, the defendant has a privacy interest in the

presentence report because it reveals not only details of the

5 offense but, in the broadest terms, "any other information that may

aid the court in sentencing . . ." A PSIR routinely describes the

defendant's health, family ties, education, financial status,

mental and emotional condition, prior criminal history and

uncharged crimes. That the defendant has pled guilty or been

convicted of a crime does not require the dissemination of his

entire personal background in the public domain. And despite the

care with which they are prepared, PSIR's do not conform to the

rules of evidence and may contain errors. Rule 32 affords a

defendant an opportunity to object to errors and requires the court

to resolve any factual disputes over its accuracy, but the PSIR is

not usually rewritten to remove misinformation. Hence,

misunderstandings about a defendant could easily arise from the

routine publication of PSIR's.

Second, as a repository of investigatory evidence about

the defendant's involvement in criminal activity, the PSIR often

relies upon confidential informants or sources of information and

may include facts obtained from proceedings before the grand jury,

which are otherwise secret. Were the confidentiality of

presentence reports to be freely or regularly breached, the

government's access to information needed for criminal

investigation would be severely compromised.

Third, relevant to the sentencing process alone, the

court depends heavily upon the PSIR to fulfill the mandate of the

Sentencing Guidelines and impose a just sentence. Disclosure of

such reports to the public may stifle or discourage that vital

6 transmission of information by the defendants, whose contribution

to a PSIR is significant, and by cooperating third parties.

While the reports themselves have historically been

treated as confidential, however, the sentencing hearings in which

their contents may be disclosed are not. For this reason, it is

difficult to conceive that confidentiality of the information in a

PSIR must be maintained under all circumstances, and no court has

so held. Instead, a standard similar to that which regulates the

disclosure of grand jury proceedings has evolved. As the Seventh

Circuit stated in Corbitt, only where a "compelling, particularized

need for disclosure is shown should the district court disclose the

report; even then, however, the court should limit disclosure to

those portions of the report which are directly relevant to the

demonstrated need."

. See also, United States v.

Charmer Industries, Inc.,

(2d Cir. 1983).3

The district court here explicitly relied on Corbitt and

Schlette in deciding that the interests of justice compelled

disclosure of Huckaby's presentence report. His decision is

reviewed for an abuse of discretion. Schlette,

-

77; Charmer Industries, ,

.

Huckaby contends that disclosure of the report on his

offense "served only the purpose of providing justification to the

3 In Schlette, the Ninth Circuit arguably articulated a less stringent standard for disclosure of a PSIR. See discussion in

We apply the Corbitt standard. Moreover, to the extent that the courts' analyses in other cases have turned on the identity of the party requesting disclosure, such as a co-defendant or news organization, this opinion does not address such possible grounds of distinction. The court divulged Huckaby's PSIR on his own initiative in the interest of community tranquility -- this opinion is limited to its unique facts.

7 public for the imposed sentence." He criticizes the court for

failing to redact irrelevant portions of the report prior to

disclosure, he complains that the report contained extensive

information about extrinsic offenses, and he alleges prejudice if

the report is publicized.

What Huckaby does not assert, however, is as important as

the complaints he is making. He does not say to this court that

any facts stated in the PSIR are incorrect. In the trial court, he

objected to a number of statements in the report, causing the

probation officer to make some corrections. His remaining factual

contentions about the extrinsic offense evidence have been

abandoned on appeal. His consistent failure to file tax returns

and late filing of returns is abundantly documented by IRS records

and documents from state and local taxing authorities. He has

claimed no particular privacy interest in any of the information

contained in the report, perhaps preferring to rest his attack on

the broader ground of complete confidentiality. He has not

asserted that the extrinsic offenses did not occur, although the

report itself contains a self-serving exculpatory letter he

submitted to the court. Apart from his consistent course of tax

evasion, Huckaby has no other embarrassing criminal history

revealed in the PSIR.

To protect Huckaby's legitimate privacy interest, even

though he did not so request, this court amended the district

court's disclosure order to exclude Part C of the PSIR titled

"Offender Characteristics", and the objections by the defendant and

8 the probation officer's responses pertaining to that section.

Huckaby's family history, educational background, current financial

status and similar information have no bearing on the court's

reasons for disclosure. As amended, the disclosure order does not

significantly intrude on Huckaby or his family.

The disclosure order likewise does not impinge on the

other policy reasons for maintaining confidentiality. The

government does not object to disclosure of the presentence report

in this case, because it distinguishes this case from those in

which it has consistently urged protection of confidentiality.

Here, because the information against Huckaby came from his own

files, his statements to investigating officers, and IRS and other

official records, there is no risk of injuring third-party

informants or of prejudicing ongoing criminal investigations.

Further, the criminal conduct revealed by the PSIR implicates only

Huckaby, not any other person. The interests of law enforcement

will not be disserved by disclosure.

There is also little risk that disclosure of this PSIR

has interfered with the broader interest of justice that must be

effectuated in the sentencing process. Because no confidential

witnesses or informants contributed to the PSIR, disclosure affects

no one except Huckaby. Huckaby had ample opportunity to offer

corrections to the PSIR, reducing the risk that the court would err

in its sentence. As for the general interests of the federal

sentencing process, there is no reason to suppose that the

9 disclosure of part of this PSIR will lead to disclosure of reports

in any but the very rarest of cases.

Contrary to Huckaby's contention, the district court had

clearly balanced the desirability of publication over the need for

confidentiality before he decided to release the PSIR. As the

court prefaced his comments, this was a case in which it was

difficult to speak but impossible to remain silent. The court

summarized the allegations in the PSIR concerning Huckaby's

consistent failure to file proper tax returns to federal, state and

local authorities over more than a decade. Rather than read the

entire PSIR into the sentencing hearing transcript, the court chose

to let that report speak for itself. Huckaby does not deny that

there has been widespread publicity about his case or that it has

become racially inflammatory within the community. He contributed

to the publicity and to the erroneous racial inferences that have

been drawn. The court hoped that release of the PSIR would explain

the basis of Huckaby's prosecution so as to eliminate any shadow of

doubt that this proceeding was racially motivated. Rather than

allow bitterness to fester within the community as a result of

Huckaby's guilty plea and sentence, the court decided to juxtapose

against the rhetoric on Huckaby's behalf the seamy reality of his

tax avoidance.

The court took bold, extraordinary action in releasing

the PSIR. He acted under a felt, compelling necessity of relieving

racial tension that has accumulated because of this case. There

was further a particularized need for the revelation of facts found

10 in the PSIR, because only the dispassionate reports of IRS, the

contents and omissions in Huckaby's own records and the admissions

and inconsistencies in Huckaby's statements to investigating

authorities would persuade the public of his culpability. The

court did not abuse his discretion in releasing the PSIR, as we

have redacted it.

Huckaby's other challenge to his conviction and sentence

may be easily disposed of. He contends that the district court

abused its discretion in rejecting his attempted plea bargain with

the United States. Huckaby contends that the court had no

authority to reject the plea agreement, but this is not correct.

United States v. Adams,

(5th Cir. 1981); United States

v. Bean,

(5th Cir. 1977). In any event, Huckaby has

not demonstrated that the court's rejection of the plea agreement

prejudiced him in any way. The court accepted his guilty plea to

the same charge contained in the agreement. The only possible harm

that could accrue would stem from the government's decision to

prosecute Huckaby on other tax offenses, but no such prosecution

has been commenced. Huckaby's concern is premature at best.

Huckaby also contends that the district court erred in

awarding a two-level enhancement of his sentencing level for

obstruction of justice and in failing to grant him a two-point

reduction for acceptance of responsibility. If the court had made

both findings favorably to him, the offense level would have been

reduced from 15 to 11, resulting in a Guideline Sentencing range of

8-14 months. Defendant's sentence of 12 months, albeit the

11 statutory maximum, falls approximately in the middle of this range.

He cannot demonstrate that these issues would probably have

resulted in his receiving a lesser sentence. Consequently, any

error committed by the district court on these matters is harmless.

CONCLUSION

Based on the foregoing discussion, the order of the

district court that unsealed the PSIR is affirmed as modified, the

court did not abuse its discretion in rejecting the plea agreement

between Huckaby and the United States, and appellant's challenges

to his sentence are meritless.

Order AFFIRMED as modified; conviction and sentence

AFFIRMED.

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