In Re Subpoena & Order Dir. Probation Officers, 737 F. Supp. 30 (W.D.N.C. 1990)
May 16, 1990
United States District Court, W.D. North Carolina, Charlotte Division.
*31 James M. Sullivan, Asst. U.S. Atty., Charlotte, N.C., for plaintiff.
C. Frank Goldsmith, Jr., Charles E. Burgin, Marion, N.C., for defendant.
ROBERT D. POTTER, Chief Judge.
This Matter is before the Court on the Government's motion, filed May 15, 1990, to quash an order, entered by North Carolina Superior Court Judge Marvin K. Gray, that is being served on United States Probation Officer James R. McLean, Jr. for a state court proceeding, State v. James Clifton Gibbs, which seeks disclosure of the probation file of Joshua Jordon. Counsel for James Gibbs filed a response to the Government's motion on May 15, 1990.
James Clifton Gibbs is an indigent defendant in a state capital murder trial. The trial is taking place in the North Carolina Superior Court, McDowell County. On May 11, 1990, Judge Gray entered an order directing U.S. Probation Officer McLean to furnish Gibbs' attorney with a copy of the probation file of Joshua Jordon, including any records of his criminal convictions, criminal activity, violations of the conditions of this probation or parole, and revocation of probation or parole. The order indicated that Jordon would be called as a witness for the state and that the probation file was necessary for Gibbs' defense.
The Government contends that the information sought is of a confidential nature that is used to apprise this Court of relevant characteristics of defendants that appear before it. The Government has cited the case of United States v. Figurski, 545 F.2d 389 (4th Cir. 1976) as providing the proper procedure for disclosing to third parties information contained in a presentence report. The Court has carefully reviewed that case, as well as the pleadings of both parties. The Court concludes that it must for the most part grant the Government's motion.
Rule 32(c) (3) of the Federal Rules of Criminal Procedure governs the disclosure of presentence reports. However, the Rule is silent about disclosure to third parties. See Figurski, 545 F.2d at 391. Nonetheless, the Fourth Circuit has adopted the rule that "information contained in a presentence report should not be disclosed to third parties unless lifting confidentiality is required to meet the ends of justice". Id. (citing Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229, 1233 (N.D.Cal.1968)).
When a request by a third party for information contained in a presentence report is made, the Court must examine the information in camera to determine whether the following test has been met. Id. at 392. First, if the report contains exculpatory material, that part of the report must be disclosed. Second, if the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of fact. Id. at 391.
In this case, the Court has carefully conducted an in camera review of Jordon's probation file. No information contained in the report is of an exculpatory nature to Gibbs. In fact, Gibbs' name is only mentioned one time in relation to a contract dispute between Jordon and Gibbs. Although the Court believes counsel for Gibbs could have obtained Jordon's criminal record through normal discovery methods, the Court has attached a copy of his record to this Order. The Court believes that this impeachment information will have a reasonable likelihood of affecting the trier of fact.
The Court would be remiss if it failed to mention the troubling nature of this matter *32 to the Court. It appears that defense counsel for Gibbs is attempting to use the United States Probation Office as a discovery tool. Ordinarily, the Court believes our federal system of Government precludes the intrusion by the state court system into what is in effect records of this Court. The Court will be extremely reluctant to provide further information from probation office files in this or any future cases.
In summary, the Court believes that the probation office records of Joshua Jordon are devoid of exculpatory information regarding James Clifton Gibbs. The Court does believe that Jordon's arrest record is of sufficient impeachment value that it may reasonably affect the trier of fact. Accordingly, the Court has attached a copy of that record to this order. Because the order entered by Judge Gray on May 11, 1990 is otherwise contrary to established law of the Fourth Circuit, the Court must quash the order and any subpoenas directing Probation Officer McLean to appear with the probation records of Joshua Jordon.
NOW, THEREFORE, IT IS ORDERED that the Government's motion to quash be, and hereby is, GRANTED, except as to Jordon's arrest record. The Court has attached a copy of the arrest record to this Order.
The Clerk is directed to certify copies of this Order to defense counsel for James Clifton Gibbs, the Clerk of Court for the North Carolina Superior Court (McDowell County), Judge Marvin K. Gray, the United States Probation Office, and the United States Attorney.
ARREST RECORD: Joshua Samuel JORDON Date Offense Court/Source Disposition 9-11-73 Unauthorized Use of Criminal Court Nol-prossed. (Age 19) Automobile Portsmouth, VA 10-15-73 Assault & Battery General District Nol-prossed. (Age 19) Hampton, VA 3-22-76 Larceny by Check Criminal Court $25 each count & (Age 22) (2 counts) Portsmouth, VA costs. 5-14-76 Violation of Court Order Criminal Court Fined, 10 dys jail (Age 22) of 3-22-76 Portsmouth, VA susp 12 mos. 8-24-76 Simple Assault Criminal Court Nol-prossed. (Age 22) Portsmouth, VA 12-22-76 Grand Larceny, but Circuit Court $100 fine & cost, (Age 22) found guilty of lesser Chesapeake, VA 30 dys impr. included charge 2-12-77 Assault Municipal Court $15 fine & cost. (Age 23) Courtland, VA 10-13-78 Theft From Interstate US Court 9 mos impr susp, (Age 24) Shipment (Less than North Platte, NE 1 yr probation. $100) 6-15-81 Theft Fremont Co, 2 yrs impr susp (Age 27) Iowa except 42 dys, 1 yr prob, restitution & cost. 8-6-81 Bad Check Atchinson Co. 2 yrs prob, cost (Age 27) (Misdemeanor) Missouri & restitution. 2-2-83 Bad Check Tazewell Co. Nol-prossed. (Age 29) (Misdemeanor) Virginia 3-23-83 a) Bad Check (Misdemeanor) Tazewell Co. a) 6 mos impr (Age 29) Virginia susp, $100 fine, b) Failure to Appear 40 hrs com ser. b) $20 fine, 10 dys susp except ½ day. 6-22-83 Fraud General District Nol-prossed. (Age 29) Bristol, VA
*33 Date Offense Court/Source Disposition 7-6-83 Failure to Support Dependent Bristol, VA $50 per week (Age 29) Children support. 7-8-83 Defective Equipment General District $30 fine & cost. (Age 29) Washington Co., VA 10-19-83 Defraud Mark Bond Tazewell Co, VA Fine & cost. (Age 29) 5-23-84 a) Failure to Appear in Bristol, VA a) 10 dys impr, (Age 30) Contempt Order due cost. b) 6 mos to Failure impr, cost, susp to pay support. b) if $1500 arrearage Non-support. paid. 5-29-84 Fugitive from NC Central District Dismissed. (Age 30) Bristol, VA 5-29-84 Failure to Appear Central District $500 fine & cost, (Age 30) Bristol, VA 210 dys jail, both susp upon service of 30 dys. 6-22-84 Grand Larceny & Felonious Tazewell Co., VA 1 yrs impr susp, (Age 30) Defraud By Indeterminate Check prob, cost & restitution. 12-10-84 a) Worthless Check Circuit Court a) 3 yrs impr (Age 30) over $100 (4 cases) Sullivan Co., TN b) 11 mos 29 dys b) Bad Check impr, c) 3 yrs c) Fraudulent Breach impr. All cases of Trust to run concurrent. 7-19-85 Embezzlement From US District 10 yrs impr susp, Interstate Shipment Houston, TX 5 yrs prob, restitution. 10-28-85 Obtain Property by District Court Dismissed. False Pretense Catawba Co., NC 5-23-86 Obtain Property by Wilkes Co. Sheriff No disposition False Pretense Office known. 8-27-86 Grand Larceny by Roanoke, VA Dismissed. Check 12-11-86 Larceny Felony District Court Dismissed. Cabarrus Co., NC 2-3-87 Obtain Property by Greensboro Police Disposition unknown. False Pretense Department 2-23-87 Obtain Property by Superior Court Dismissed. False Pretense Iredell Co., NC 10-19-87 a) Prob violation US District a) 10 yrs impr. b) Fraud by Wire Statesville, NC b) 3 yrs impr. 11-23-87 Obtaining Property by Davidson Co, NC Dismissed. False Pretense 3-3-88 a) Sexual Offense 2nd Superior Court Dismissed. Degree; Fayetteville, NC b) Assault on Female c) Poss Stolen Vehicle 3-10-88 Obtain Property by Avery Co, NC Nol-prossed. False Pretense