785 F.

2d 870

UNITED STATES of America, Plaintiff-Appellee,

v.
Arria Chyvonne GRAVES a/k/a Karen Lynn McAfee,
Defendant-Appellant.
No. 84-1119.

United States Court of Appeals,

Tenth Circuit.
March 12, 1986.
1

Charles D. Anderson, Federal Public Defender, Cyd Gilman, Asst. Federal

Public Defender, D. Kan., for defendant-appellant.

Benjamin L. Burgess, Jr., U.S. Atty., Emily B. Metzger, Asst. U.S. Atty., D.
Kan., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge and SETH, Circuit Judge, and WINDER,
District Judge.*

WINDER, District Judge.

Appellant claims the district court erred in denying her motion to strike certain
alleged offenses from the "prior record" section of her presentence report
because evidence of those alleged crimes had been obtained in violation of her
constitutional rights. We find no violation of appellant's constitutional rights in
the inclusion of this information in the presentence report and affirm the ruling
of the district court.

Appellant was indicted on May 3, 1983 by a federal grand jury in the Western
District of Oklahoma on one count of forging an endorsement of a United
States treasury check with the intent to defraud the United States, in violation of
18 U.S.C. Sec. 495, and on one count of conspiracy to take from the United
States mails, unlawfully possess and forge an endorsement of a United States
treasury check with the intent to defraud the United States, in violation of 18
U.S.C. Sec. 371. Under Rule 20 Fed.R.Crim.P., the case was transferred to the
United States District Court for the District of Kansas, and on November 8,

1983 appellant pled guilty to the conspiracy charge.

7

Prior to appellant's sentencing, the probation department prepared an extensive

presentence report. The "prior record" portion of this report listed seventeen
prior offenses in which appellant was allegedly involved. One of the alleged
offenses was possession of marijuana for which appellant was arrested, but not
charged, because it was ruled there was an illegal search and seizure of the
vehicle in which the marijuana was found. Another alleged offense was
conspiracy and possession with intent to distribute heroin and cocaine; these
charges were dismissed after the court determined that the search warrant by
which the controlled substance was obtained was illegal. The presentence
report also listed other alleged offenses involving arrests only and appellant
requested that the district court strike these from the report because of their lack
of probative value and potential for inaccuracy. On appeal, however, appellant
makes no claim respecting those arrests.

The district court heard appellant's motion to strike on January 12, 1984. The
court denied appellant's motion although the district judge indicated that he
would not consider the two alleged offenses described above in imposing
sentence. He did, however, decline to strike the alleged offenses from the
presentence report or to have a new report prepared containing no mention of
these matters because he did not believe that he should prevent the Federal
Bureau of Prisons, the United States Parole Commission or the United States
Probation Department from considering these matters at the post-sentencing
stage of appellant's case. After denying appellant's motion to strike, the district
court sentenced her to three years imprisonment and recommended
confinement in an institution where she would be evaluated and would receive
treatment for drug addiction. Thereafter, appellant filed this appeal.

On appeal, appellant seeks no relief from the sentence imposed by the district
court. Her sole contention is that the failure of the district court to strike from
the report the two matters described above will unjustly prejudice the postsentencing handling of her case by the Bureau of Prisons, the Parole
Commission and the Probation Department, in violation of her constitutional
rights.

10

Rule 32(c)(2) Fed.R.Crim.P. specifies the information to be included in the

presentence report and, as pertinent here, states:

(A) Any prior criminal record of the defendant;

11
***
12

(D) any other information that may aid the court in sentencing ...
13
14

The contents of the presentence report are intended to be extremely broad in

order to provide the court a thorough description of the defendant's
background. In fact, 18 U.S.C. Sec. 3577 provides that "[n]o limitation shall be
placed on the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence."

15

Appellant acknowledges the breadth of the permissible scope of the

information included in a presentence report, but contends that constitutional
limitations require exclusion of the information in question here. The marijuana
that appellant allegedly possessed was discovered during the illegal search of a
vehicle. The charges of conspiracy and possession with intent to distribute
heroin and cocaine were dismissed after the court determined that the search
warrant used in that case was illegal. Appellant, therefore, claims that the
availability of information concerning these alleged offenses to federal agencies
having control over the nature and duration of her incarceration will result in
prejudice to her in violation of her constitutional rights.

16

With few limitations, a court has almost unlimited discretion in determining

what information it will hear and rely upon in imposing sentence. United States
v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972).
However, two exceptions have been generally recognized by the courts,
including this circuit: (1) a defendant has a due process right to have his or her
sentence based on accurate information, and (2) in limited cases certain
information linked to the denial of a constitutional right cannot form the basis
for sentencing. United States v. Jones, 640 F.2d 284, 286 (10th Cir.1981).

17

In Smith v. United States, 551 F.2d 1193 (10th Cir.1977), cert. denied, 434
U.S. 830, 98 S.Ct. 113, 54 L.Ed.2d 90 (1977), this court rejected the
defendant's contention that inclusion of his previous arrest history in the
presentence report was improper. 551 F.2d at 1195-96. The court cited Tucker,
404 U.S. at 446, 92 S.Ct. at 591, wherein it was stated that a presentence
investigation inquiry may be "broad in scope, largely unlimited either as to the
kind of information ... [considered], or the source from which it may come."
551 F.2d 1196. This court recognized that consideration at sentencing of
convictions obtained when the defendant was not afforded the benefit of
counsel was limited by the Tucker decision, but in affirming the trial court in
Smith, recognized the clear authorization given the trial judge by 18 U.S.C.
Sec. 3577 to rely upon information concerning alleged criminal activity for
which the defendant had not been prosecuted. 551 F.2d at 1196. Other circuit

courts have also upheld the trial judge's right to consider evidence of crimes
allegedly committed by the defendant even if the defendant had not been
brought to trial for the alleged offenses, or no final disposition had been made
concerning those offenses. United States v. Ochoa, 659 F.2d 547, 549 (5th
Cir.1981) (appeal of state conviction not yet decided), cert. denied, 455 U.S.
959, 102 S.Ct. 1472, 71 L.Ed.2d 678 (1982); United States v. Metz, 470 F.2d
1140, 1142 (3rd Cir.1972) (indictments pending), cert. denied, 411 U.S. 919,
93 S.Ct. 1558, 36 L.Ed.2d 311 (1973); United States v. Doyle, 348 F.2d 715,
721 (2nd Cir.1965) (the defendant pled guilty to one count in the indictment;
the other counts were dismissed, but considered at sentencing), cert. denied,
382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965).
18

Appellant argues that neither the sentencing judge nor the federal agencies that
will later consider her parole should be allowed to consider illegally seized
evidence which could not be admitted at a trial. The government, on the other
hand, urges that the exclusionary rule is a judicially created remedy designed to
safeguard fourth amendment rights by deterring official misconduct and that
under United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561
(1974), this court should balance the incremental deterrent effect of applying
the exclusionary rule at sentencing and in post-sentencing administrative
proceedings against the costs of impairing effective and suitable punishment of
proven offenders and unduly complicating sentencing procedures.

19

We agree with the government's argument. We have already mentioned the

district judge's duty to "conduct [a presentence] inquiry broad in scope, largely
unlimited either as to the kind of information he may consider, or the source
from which it may come." Tucker, 404 U.S. at 446, 92 S.Ct. at 591. It is true
that in Tucker the Court barred the consideration at sentencing of convictions
obtained without affording the defendant the benefit of counsel. Tucker
recognized that the absence of counsel impugns the integrity of the fact finding
process so that a conviction obtained under such circumstances is unreliable.
See 404 U.S. at 447 n. 5, 92 S.Ct. at 592 n. 5. Most illegally obtained evidence
is not inherently unreliable, but "is excluded at trial on the theory that exclusion
will deter the making of illegal searches." United States v. Lee, 540 F.2d 1205,
1211 (4th Cir.1976), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177
(1976). See also, United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct.
613, 619-20, 38 L.Ed.2d 561 (1974) (the prime purpose of the exclusionary
rule is to deter unlawful police conduct). To decide whether illegally obtained
evidence should be kept from the court or from federal agencies who may later
consider such information in determining the post-sentencing status of
appellant, an evaluation must be made of the degree of deterrence which might
be promoted by exclusion, and that degree of deterrence must be weighed

against the concomitant limitation of the right of the sentencing judge to impose
sentence in light of all relevant facts. Calandra, 414 U.S. at 349-52, 94 S.Ct. at
620-22.
20

In the opinion of this court, extension of the exclusionary rule to sentencing or

post-sentencing proceedings before federal agencies would, in the ordinary
case, have a deterrent effect so minimal as to be insignificant. In the usual case,
law enforcement officers conduct searches and seize evidence for the purpose
of obtaining convictions, not for the purpose of increasing the sentence in a
prosecution already pending or one not yet commenced. It is apparent that the
significant deterrent to official lawlessness is the threat that an illegal search
and seizure would render the prosecution ineffective. The additional threat that
the sentence imposed in a future criminal prosecution might be less severe or
that the defendant in a future case might be paroled earlier would appear to
have little practical effect.

21

It also appears that sentencing proceedings could be intolerably delayed and

disrupted if it became necessary to determine whether every item of
information to be relied on by the sentencing judge had a lawful origin. The
same considerations apply to post-sentencing administrative hearings.

22

This court has been made aware of only one circuit court decision in which
evidence obtained in violation of the fourth amendment was excluded from
consideration at sentencing. That decision is Verdugo v. United States, 402
F.2d 599 (9th Cir.1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d
105 (1970). In Verdugo, the government, knowing that it already possessed
sufficient evidence to convict the defendant of selling heroin, illegally searched
his home in the hope of locating a larger supply of heroin because "the length
of Verdugo's sentence would be quite different if it could be shown that
Verdugo was involved in the narcotics traffic on a large scale rather than
merely as the seller in a single small transaction." 402 F.2d at 612. The court
concluded that, under these circumstances, exclusion at trial would be of little
significance and exclusion at sentencing would be the only meaningful
deterrent. 402 F.2d at 612-13.

23

In two subsequent decisions, the Ninth Circuit appears to have disavowed a

broad reading of Verdugo. In United States v. Vandemark, 522 F.2d 1019 (9th
Cir.1975), the court upheld the district judge's right to revoke probation on the
basis of illegally seized evidence when, at the time of the illegal search, the law
enforcement officers had neither known nor had reason to believe that the
suspect was on probation. 522 F.2d at 1020-21. The court additionally held that
the district judge could consider the illegally obtained evidence in imposing

sentence after revocation of probation. 522 F.2d at 1021. The court noted that
Calandra provided the analytical framework for determining whether the
exclusionary rule should apply to sentencing after revocation of probation. 522
F.2d at 1021. In Calandra the Supreme Court, holding that the exclusionary
rule did not apply in grand jury proceedings, weighed "the potential injury to
the historic role and functions of the grand jury against the potential benefits of
the rule as applied in this context." 414 U.S. at 349, 94 S.Ct. at 620. Using the
Calandra balancing approach, the Ninth Circuit held that "extension of the
exclusionary rule to sentencing subsequent to revocation of probation would
have a disruptive effect far out of proportion to any incremental deterrence of
police misconduct." 552 F.2d at 1021.
24

The court further explained that "[t]he detrimental effect of the exclusionary
rule upon sentencing is apparent. It deprives the district judge of information
necessary to effectuate the federal policy of individualized sentencing." 522
F.2d at 1021 (citing Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079,
1083, 93 L.Ed. 1337 (1949) (dictum)). The court supported its conclusion that "
[a] sentence can be properly tailored to fit an individual defendant only to the
extent that the judge is aware of the major facts relevant to needed correction,"
522 F.2d at 1021, by quoting Williams:

25sentencing judge ... is not confined to the narrow issue of guilt. His task within
A
fixed statutory or constitutional limits is to determine the type and extent of
punishment after the issue of guilt has been determined. Highly relevant--if not
essential--to his selection of an appropriate sentence is the possession of the fullest
information possible concerning the defendant's life and characteristics. And modern
concepts individualizing punishment have made it all the more necessary that a
sentencing judge not be denied an opportunity to obtain pertinent information by a
requirement of rigid adherence to restrictive rules of evidence properly applicable to
the trial.
26

522 F.2d at 1021 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct.
1079, 1083, 93 L.Ed. 1337 (1949)).

27

The second case in which the Ninth Circuit rejected a broad reading of Verdugo
was United States v. Larios, 640 F.2d 938 (9th Cir.1981). In Larios the court
considered "whether it was reversible error for the sentencing judge to consider
evidence found through an illegal search and seizure when deciding the
appropriate sentence for the appellant." 640 F.2d at 941. The court held that,
under the facts of that case, the trial court acted properly in considering such
evidence. 640 F.2d at 942. The court noted that the police had obtained a
search warrant and that there was no indication that the search was

overextensive or inappropriately conducted. 640 F.2d at 942. The court further

explained that the illegality was caused by a technical error in the affidavit
supporting the warrant and that any police misconduct that may have been
involved was not sufficient to justify interfering with individualized sentencing.
640 F.2d at 942. In support of its decision, the Ninth Circuit cited its
Vandemark opinion, 522 F.2d at 1021-22, and noted that in Verdugo, the
evidence had been excluded from sentencing because the search was conducted
without a warrant, was "blatantly illegal," and the Verdugo court had found that
deterrence against illegal searches was required under the circumstances there
involved. 640 F.2d 942.
28

Other circuit courts have also applied the Calandra balancing approach. In
United States v. Schipani, 435 F.2d 26 (2nd Cir.1970), cert. denied, 401 U.S.
983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971), the Second Circuit concluded that
certain evidence obtained in violation of the fourth amendment should not be
excluded from the consideration of the sentencing judge. 435 F.2d at 27. In
Schipani, the illegal wiretap evidence which the defendant sought to have
excluded at sentencing had been gathered in the course of an investigation
which led to the defendant's conviction. 435 F.2d at 28. The court reasoned that
the government's principal objective in gathering the evidence had been to
convict the defendant, so the fear of exclusion at trial would have been a
significant deterrent, but any further deterrence achieved by exclusion at
sentencing would have been minimal. 435 F.2d at 28.

29

In United States v. Lee, 540 F.2d 1205 (4th Cir.1976), cert. denied, 429 U.S.
894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976), the Fourth Circuit concluded that
"reliable but illegally obtained evidence may generally be considered by the
sentencing judge." 540 F.2d at 1207. The court based its conclusion on the
finding that "the disadvantages of applying the exclusionary rule at sentencing
are large, the benefits small or non-existent, and that the rule should therefore
not be extended." 540 F.2d at 1212. That court noted that the facts in Lee were
not those presented in Verdugo where it appeared that the government had
illegally seized additional evidence for the purpose of enhancing the
defendant's sentence, and that in such circumstances the rationale of the
exclusionary rule can be served only by excluding illegally seized evidence
from consideration at sentencing. 540 F.2d at 1212.

30

Although this court has not previously decided the precise issue presented in
this case, the holding in United States v. Majors, 490 F.2d 1321 (10th
Cir.1974), cert. denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975),
foreshadowed our present decision. The Majors court affirmed the sentencing
judge's right to consider a charge that had been dismissed when the defendant

pled guilty to the charge for which he was being sentenced. 490 F.2d 1324.
Several principles applicable to this case underly the Majors decision. The
court there stated that "[i]n the exercise of the difficult discretionary function of
imposing sentence upon a convicted ... criminal, the sentencing judge is entitled
to all the help he can get." 490 F.2d at 1322. Such help includes knowledge of
the history, background, character and criminal activities of the defendant as
well as aggravating and mitigating circumstances. 490 F.2d at 1322. Finally,
the court relied on the principle that "[p]ertinent information is not generally to
be disregarded because of exclusionary rules of evidence." 490 F.2d at 1322
(citations omitted).
31

The principal function of the presentence report is to give the sentencing judge
the assistance described in Majors, 490 F.2d at 1322. The report also serves
other vital functions. It aids the probation officer in supervision efforts during
probation and parole. It assists the Federal Bureau of Prisons in classification,
institutional programs and release planning. It furnishes the United States
Parole Commission with information pertinent to consideration of parole and,
finally, it serves as a source of information for research. See Administrative
Office of the United States Courts, Guide to Judiciary Policies and Procedures,
(Probation Manual) Vol. X, p. 2-3, Sec. 2002; United States v. Charmer
Industries, 711 F.2d 1164, 1170 (2nd Cir.1983). When the sentencing court has
authorized its use, as it did here, the information contained in the presentence
report unquestionably serves to aid in crucial determinations made by the
Parole Commission, the Bureau of Prisons and the Probation Department.

32

In this case the trial judge ruled that, in imposing sentence, he would not
consider the matters requested to be stricken. He did, however, decline to strike
those matters from the report that would be provided to the various agencies for
post-sentencing adjudication. It is the opinion of this court that, in ruling as he
did, the trial judge went beyond what he was required to do in not considering
these alleged offenses. He did correctly rule that the matters should not be
stricken from the report provided to the agencies.

33

There is no suggestion in this case that the two alleged offenses which were the
subject of the motion to strike resulted from any attempt on the part of the
arresting officers to enhance the sentence imposed in this case. The arrest for
possession of marijuana occurred in 1974, nine years before this sentence was
imposed. The information contained in the presentence report concerning that
arrest is straightforward and relatively innocuous. It simply indicates that
appellant was arrested but exonerated the same day because of the illegal
search and seizure of the vehicle in which the marijuana was found. It is
difficult to see how the inclusion of this information in the presentence report

could unfairly prejudice the sentencing judge or federal agencies to whom such
information might thereafter be transmitted.
34

The information contained in the presentence report concerning the 1982 arrest
for conspiracy and possession with intent to distribute heroin and cocaine is
more extensive, but also appears to be accurate and untainted by any relation to
the present offense, and would be highly relevant to the sentencing judge and to
the federal agencies to which such information might later be transmitted.
Appellant has not denied the accuracy of this information or, for that matter,
the accuracy of the information concerning the 1974 arrest for possession of
marijuana. Appellant simply claims that, because the evidence of both alleged
offenses was obtained in violation of the fourth amendment, neither the
sentencing court nor federal agencies to which the presentence report is later
transmitted, may be allowed to see or consider information concerning those
alleged offenses.

35

This court rejects that argument. The purpose of the exclusionary rule is to
protect, by means of deterrence, fourth amendment rights generally, rather than
the personal constitutional rights of the aggrieved party. United States v.
Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). The
principal, if not sole, reason for excluding evidence obtained in violation of the
fourth amendment at trial is to deter illegal law enforcement conduct. 414 U.S.
at 347, 94 S.Ct. at 619. The degree of deterrence achieved by excluding
illegally obtained evidence from the presentence report must be weighed
against the concomitant limitation of the right of the trial judge and the postsentencing administrative tribunals to make their decisions in light of all
relevant facts. See 414 U.S. at 349, 94 S.Ct. at 620.

36

As the court recognized in United States v. Lee, 540 F.2d 1205 (4th Cir.1976),
cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976), the additional
deterrent effect of extending application of the exclusionary rule to sentencing
procedures, in the ordinary case, would be so minimal as to be insignificant.
540 F.2d at 1211. This court believes that this is the ordinary case given the
length of time between the arrests complained of and the sentencing date of this
case. Both the sentencing court and the post-sentencing administrative agencies
are entitled to know all of the facts, including prior alleged offenses that did not
result in a conviction. They are, of course, limited to a consideration of
information that is accurate, but they are not precluded from considering prior
charges that were dismissed or alleged offenses for which charges were not
filed because of illegally obtained evidence.

37

The ruling of the district court is, therefore, AFFIRMED.

Honorable David K. Winder, United States District Judge for the District of
Utah, sitting by designation