Many federal practitioners believe that a client’s federal presentence report is a confidential document and cannot be disclosed, except to the court, counsel, and the Bureau of Prisons (or to the same in any subsequent supervision violation or a new federal case). This is not the case. Last September, Judge Lungstrum (Kansas City, Kansas) granted a government motion to disclose a PSR to state court prosecutors. United States v Francisco Bernal-Martinez.
Francisco Bernal-Martinez was convicted of federal crimes in the District of Kansas in 2004. He was later indicted for attempted murder in state court in the Bronx. The United States filed a motion to disclose Mr. Bernal’s 2003 PSR to the Bronx District Attorney. This was purportedly for the purposes of a Sandoval hearing (a pretrial hearing to determine the extent to which a defendant will be subject to impeachment by cross examination with prior bad acts, should he testify), plea negotiations, and sentencing. Mr. Bernal lodged a pro se objection that disclosure would not be in the interests of justice, the PSR was not relevant to the state case, and the disclosure could bias the state court against him.Judge Lungstrum used this three-part test from United States v. Iqbal, 84 F.3d 507, 510 (5th Cir. 2012): would disclosure of the PSR 1) violate the defendant’s expectation of privacy; 2) compromise confidential informants or other governmental access to information, or 3) have a chilling effect on the free flow of information that is vital to PSR-related inquiries and interviews?
Ultimately, Judge Lungstrum granted the government’s motion. Discussing Mr. Bernal’s right to privacy, Judge Lungstrum noted:[W]hile the dissemination of private information about a defendant, or the potential for disclosure of misleading or inaccurate information about a defendant, is arguably the most concerning from a defendant’s perspective, this factor is not a cause for concern in this case. Mr. Bernal-Martinez does not assert that any of the information contained in the PSR is incorrect and he does not assert any particular privacy interest in any of the information contained therein. Moreover, Mr. Bernal-Martinez did not assert any objections to any information in the PSR and he did not raise any objections at his sentencing hearing. Thus, despite Mr. Bernal-Martinez’s assertion that the state court judge may become biased against him upon reviewing the information contained in the PSR, that concern does not tip the balance in favor of non-disclosure in the absence of any argument that the PSR is misleading or inaccurate.
Would the result have been different had there been an unresolved objection? Who knows. However, this is a reminder that it is necessary to object to any information in the report that is unreliable or that relates to uncharged or pending offenses. While the court may decide that it need not resolve the objection (see Fed.R.Crim.P. 32(i)(3)(B)), if you don’t object to information in a PSR within the time limits of Rule 32, the opportunity is gone forever, and you cannot know if/when a failure to object may later prejudice your client.