In Re Subpoena & Order Dir. Probation Officers, 737 F. Supp. 30 (W.D.N.C. 1990)

*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