United States Court of Appeals
For the First Circuit
No. 00-1740
UNITED STATES OF AMERICA,
Appellant,
v.
ALFRED CRAVEN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Michael D. Ricciuti, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
appellant.
Stephen B. Hrones, with whom Hrones & Garrity was on brief,
for appellee.
February 6, 2001
SELYA, Circuit Judge. In this sentencing appeal, the
government, qua appellant, protests the district court's
reliance, in granting a downward departure for extraordinary
presentence rehabilitation, on an ex parte conversation with a
court-appointed psychologist. The defendant, Alfred Craven,
resists the government's appeal and simultaneously attempts to
persuade us that the Supreme Court's recent decision in Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000), demands further paring of
his sentence. Because Craven has not cross-appealed, his
Apprendi-based claim is not properly before us and we refrain
from burrowing into its merits. This leaves the government's
appeal — an appeal which requires us to consider the district
court's authority vel non to engage in ex parte discussions of
substantive matters with court-appointed experts. We conclude
that the sentencing court erred in undertaking, and then basing
its departure decision on, an ex parte communication. Hence, we
vacate Craven's sentence and remand for resentencing.
I. BACKGROUND
On June 23, 1999, Craven pleaded guilty to nine counts
arising from his involvement in a massive marijuana distribution
scheme. A series of sentencing hearings ensued. At the first
session, held on December 13, 1999, the district court
tentatively fixed the guideline sentencing range (GSR) at 235-
-3-
293 months, based on an adjusted offense level of thirty-six
(including, inter alia, a three-level downward adjustment for
acceptance of responsibility under USSG §3E1.1) and a criminal
history category of III. Craven then lobbied for a downward
departure, asserting that he had turned his life around about a
year before his arrest (e.g., he had stopped drinking and using
drugs, obtained gainful employment, reconciled with his
girlfriend, and begun to act as a parent to his young son). In
support, he tendered letters from family and friends
corroborating this about-face.
The judge advised the parties that she intended to have
an expert "document" Craven's rehabilitation. To this end, she
entered an order directing Dr. Laurence Weisman, a psychologist,
to conduct a substance abuse evaluation and submit a report.
See 18 U.S.C. § 3552(b) (authorizing the sentencing court to
order a study of the defendant if additional information is
needed). Dr. Weisman interviewed Craven and prepared a report
concluding:
Alfred Craven is a man at a crossroads in
his life. From a chaotic and dysfunctional
background that lacked warmth, modelling and
supervision, he eased into a life of self-
destructive drug addiction and criminal
activity through which to support the
addiction. Through some innate resources
and strength, he appears to have made the
necessary commitment to self-rehabilitation,
sobriety and a productive lifestyle.
-4-
Although he has had no formal treatment, his
claims to have lived for over a year as a
sober, contributing member of a community,
as well as his involvement in a nuclear
family as father and partner, bode well for
a successful adjustment back to society upon
his release from prison. As with any
individual attempting to overcome a
background of addiction and criminal
lifestyle, the prognosis remains guardedly
optimistic if the individual participates in
a comprehensive, longterm recovery program.
Mr. Craven appears to have demonstrated both
the willingness and capability which would
make him a good candidate to succeed.
Notwithstanding this optimistic prognosis, the
government remained skeptical about Craven's purported
rehabilitation. To help prove its point, the government
produced disciplinary records from the correctional facility in
which Craven had been detained pending disposition of the
charges against him. These records showed that during a period
of slightly less than two years, ending December 10, 1999,
Craven had committed no fewer than eighteen disciplinary
infractions. These included twice threatening correctional
officers, twice flooding his cell, fighting on four occasions,
possessing homemade alcohol, refusing to accept a housing
assignment, refusing to obey other orders, and causing various
disruptions. The records also showed that Craven had admitted
to at least eleven of the infractions, including fighting,
threatening an officer, and possessing homemade alcohol.
-5-
The district court reconvened the disposition hearing
on March 10, 2000. At that time, it weighed Dr. Weisman's
opinions against Craven's sorry disciplinary record and
expressed concern about whether Craven's behavior while in
custody "undermine[d] Dr. Weisman's conclusions." Troubled by
that seeming paradox, the court gave Craven's lawyer additional
time to address the disciplinary violations. The court noted
that "in the absence of dealing with [those violations], I can't
depart downward."
At the third and final sentencing hearing, held five
days later, Craven's counsel did not deal with the paradox. The
district court nonetheless made two downward departures. First,
it reduced Craven's criminal history category from III to I on
the ground that the higher category overstated his criminal
past. See USSG §4A1.3, p.s. (authorizing such departures).
This step shrank Craven's GSR to 188-235 months. The government
has not inveighed against this aspect of Craven's sentence, and
we do not discuss it further.
The judge then turned to the issue of extraordinary
rehabilitation. She began her explanation by attempting to
reconcile Craven's disciplinary infractions with a finding of
rehabilitation:
I had about an hour conversation with
Dr. Weisman. First, this case began with
-6-
the representations made both to [the
Probation Department] and to various members
of Alfred Craven's family that he had
voluntarily and successfully discontinued
his use of all alcohol and illicit
substances in August of '96. . . .
[S]uccessfully discontinuing all
alcohol and illicit substances without any
counseling, without any drug treatment,
without any efforts to get at the underlying
cause, is a very difficult thing and is
particularly difficult for someone with the
background of Mr. Craven. He had been
involved in substance abuse and addictions
since age 14, which is a very long time, and
. . . his family was, as Dr. Weisman
describes, dysfunctional, chaotic. . . .
. . . .
I faxed to [Dr. Weisman] the
disciplinary records. I was concerned the
last time, because there were extraordinary
disciplinary records for pretrial detention.
. . .
I asked him if that suggests, then,
that this rehabilitation wasn't in good
faith. And he said no. He said judges are
wrong in believing that . . . rehabilitation
. . . is a continuous unilinear,
uninterrupted pattern, and that the
observations that he had made of Mr. Alfred
Craven still are true . . . .
So, he is not at all concerned that
these would be problems of accommodation in
a prison, that are still consistent with
someone who is struggling with a very
difficult and very extensive drug addiction.
And, in fact, he said to me, it comes from
having dealt with drug addiction on your own
rather than in a structured situation with
counseling, where you're dealing with what
the causes are.
-7-
Then, invoking USSG §5K2.0, the judge departed downward on the
basis of extraordinary rehabilitation. This departure,
equivalent to two offense levels, lowered the GSR to 151-188
months. The judge thereupon imposed a sentence at the bottom of
the newly-calculated range. The government appeals the sentence
pursuant to 18 U.S.C. § 3742(b)(3).
In our ensuing discussion, we first dispose of Craven's
Apprendi-based claim. We then address the government's appeal.
II. THE DEFENDANT'S NON-APPEAL
Blithely overlooking his failure to cross-appeal,
Craven asseverates that the Supreme Court's recent Apprendi
decision calls into question the constitutionality of his
sentence. His argument goes this way: 21 U.S.C. § 841(b)(1)(D)
sets a maximum sentence of five years for controlled substance
violations involving marijuana; longer sentences can be imposed
only for specific drug quantities; and since the indictment
returned against him did not state any specific drug quantity
(although he signed a plea agreement that did), no sentence
longer than five years is permissible under Apprendi. To rub
salt in the resultant wound, Craven further argues that he must
be sentenced based on the minimum amount of marijuana
contemplated by the statute (250 grams), which, with a criminal
history category of I, would yield a maximum sentence of no
-8-
longer than six months. See USSG §2D1.1(c)(17); USSG Ch.5, Pt.
A (sentencing table).
Craven's argument has some problematic aspects. In the
first place, Apprendi requires that "any fact (other than prior
conviction) that increases the maximum penalty for a crime must
be charged in an indictment . . . ." 120 S. Ct. at 2355. At
first blush, it is unclear whether drug quantity in this
instance increases the "maximum penalty" permitted by the
statute. Cf. United States v. Baltas, ___ F.3d ___, ___ (1st
Cir. 2001) [No. 99-1547, slip op. at 26-30] (holding Apprendi
inapplicable in heroin trafficking prosecution, even though drug
quantity not determined by the jury, because district court
sentenced defendant within the statutory maximum); United States
v. Lafreniere, ___ F.3d ___, ___ (1st Cir. 2001) [No. 99-1318,
slip op. at 14-19] (same). In the second place, an omitted
element of an offense, if not seasonably called to the attention
of the trial court, may well engender plain error review and,
therefore, not automatically require reversal. E.g., United
States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st Cir. 2000).
The problematic aspects of Craven's thesis would appear to be
particularly acute because he admitted in the plea agreement to
responsibility for 1,000 to 3,000 kilograms of marijuana and the
-9-
statutory maximum for distributing 1,000 kilograms or more of
marijuana is life imprisonment. See 21 U.S.C. § 841(b)(1)(A).
In all events, we leave these arguments for another day
since we lack jurisdiction to decide the merits of Craven's
plaint. The district court entered judgment in this case on
April 13, 2000. The government filed its appeal on May 8, 2000.
Craven had ten days thereafter within which to file notice of
a cross-appeal. See Fed. R. App. P. 4(b)(1)(A) (explaining that
a defendant's notice of appeal must be filed within ten days of
the entry of judgment or the filing of a government notice of
appeal, whichever last occurs). Craven did not avail himself of
this opportunity. That omission forecloses his Apprendi claim.
To be sure, an appellee may defend the judgment below
on any ground made manifest by the record. See Mass. Mut. Life
Ins. Co. v. Ludwig, 426 U.S. 479, 481 (1976) ("[I]t is . . .
settled that the appellee may, without taking a cross-appeal,
urge in support of a decree any matter appearing in the record,
although his argument may involve an attack upon the reasoning
of the lower court or an insistence upon matter overlooked or
ignored by it.") (citation omitted); Olsen v. Correiro, 189 F.3d
52, 58 n.3 (1st Cir. 1999) (indicating that a cross-appeal is
not needed "unless a party is trying to expand its rights by
modifying the judgment in some fashion"). This paradigm applies
-10-
in criminal cases. See United States v. Lieberman, 971 F.2d
989, 996 n.5 (3d Cir. 1992). Nevertheless, a party may not seek
to revise the trial court's judgment without first filing a
timely notice of appeal.
The Supreme Court limned the basic rule three-quarters
of a century ago:
It is true that a party who does not appeal
from a final decree of the trial court
cannot be heard in opposition thereto when
the case is brought here by the appeal of
the adverse party. In other words, the
appellee may not attack the decree with a
view either to enlarging his own rights
thereunder or of lessening the rights of his
adversary, whether what he seeks is to
correct an error or to supplement the decree
with respect to a matter not dealt with
below.
United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435 (1924).
The Court reaffirmed the rule in Ludwig, 426 U.S. at 480-81. It
is fully applicable in criminal cases. E.g., United States v.
Neal, 93 F.3d 219, 224 (6th Cir. 1996) (applying the rule to bar
non-appealing criminal defendant's effort to seek judgment of
acquittal). Thus, a criminal defendant, qua appellee, may not
seek a reduction in his sentence without having filed a cross-
appeal.
Craven has two responses to this jurisdictional bar.
First, he makes a plea for us to hear his claim based on
judicial economy (the fact that the case is already before us on
-11-
the government's appeal). Second, he points to cases that treat
failure to charge elements of a crime in the indictment as
jurisdictional defects that can be raised at any time.
As to Craven's first contention, any appellee could
trumpet judicial economy as a reason for allowing him or her to
attack a judgment without having filed a notice of appeal. To
accept this contention would therefore require us to turn a deaf
ear to the Court's unambiguous teachings. We are unwilling to
follow this renegade course.
Like a seldom-used ketchup bottle, Craven's second
asseveration looks full at a glance, but it is almost impossible
to get anything out of it. Craven grounds this asseveration
upon statements that, devoid of context, might appear to support
his position. E.g., United States v. Foley, 73 F.3d 484, 488
(2d Cir. 1996) ("In a criminal case, a failure of the indictment
to charge an offense may be treated as [a] jurisdictional
defect, and an appellate court must notice such a flaw even if
the issue was raised neither in the district court nor on
appeal.") (internal citations and quotation marks omitted),
abrogated on other grounds by Salinas v. United States, 522 U.S.
52 (1997). But we have warned before of the perils of wrenching
statements in judicial opinions free of their contextual
moorings and then attempting to rely on them. E.g., Liberty
-12-
Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 752
(1st Cir. 1992).
So it is here: in each and every case that Craven
cites, the defendant was appealing his sentence. Thus, the
appellate court had jurisdiction to consider the effect of the
government's failure to include an element of the offense of
conviction in the indictment. Craven does not proffer a single
case, nor do we know of one, in which a court of appeals decided
the issue of whether elements were missing from an indictment
when the defendant had entered a guilty plea and elected not to
appeal his sentence.
To say more on this point would serve no useful
purpose. We hold, without serious question, that we lack
jurisdiction to entertain Craven's Apprendi-based claim in this
proceeding.
III. THE GOVERNMENT'S APPEAL
Because the federal sentencing guidelines are designed
to reduce the incidence of disparities, departures are the
exception, not the rule. United States v. Jackson, 30 F.3d 199,
201 (1st Cir. 1994). But that does not mean that a rote
application of the guidelines always must dictate the dimensions
of a defendant's sentence. A court may impose a sentence
outside the GSR whenever the court supportably determines "that
-13-
there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission . . . ." 18 U.S.C. § 3553(b); see
also USSG §5K2.0 (implementing statute).
Departure decisions are reviewed for abuse of
discretion. Koon v. United States, 518 U.S. 81, 96-100 (1996);
United States v. Martin, 221 F.3d 52, 55 (1st Cir. 2000). As
Koon explains, in deciding whether or not to depart “the
district court must make a refined assessment of the many facts
bearing on the outcome, informed by its vantage point and day-
to-day experience in criminal sentencing.” 518 U.S. at 98. In
turn, the court of appeals must respect the district court's
special competence in sentencing matters. Consequently, we
afford substantial deference to most departure decisions. E.g.,
United States v. Bradstreet, 207 F.3d 76, 83-84 (1st Cir. 2000)
(deferring to district court’s determination that defendant’s
extraordinary post-sentence rehabilitation warranted a downward
departure); United States v. Amirault, 224 F.3d 9, 11-14 (1st
Cir. 2000) (affirming upward departure premised on defendant's
sexual abuse of sisters-in-law). Respect, however, does not
compel blind allegiance. Koon, 518 U.S. at 98; see also United
States v. Snyder, 136 F.3d 65, 67-70 (1st Cir. 1998) (vacating
downward departure grounded on federal/state sentencing
-14-
disparity). Were the law otherwise, appellate review of
departure decisions would be an empty exercise.
In this instance, the government argues that the lower
court abused its discretion when it departed downward on the
basis of what it described as Craven's extraordinary presentence
rehabilitation. The government offers two main theories in
support of this argument. First, it maintains that the district
court improperly included in the sentencing calculus knowledge
gleaned during its ex parte discussion with Dr. Weisman.
Second, the government maintains that the record in this case,
with or without the fruits of the forbidden ex parte
communication, fails to sustain a reasoned conclusion that
Craven achieved the extraordinary level of rehabilitation
necessary to justify a downward departure. Craven responds that
the ex parte discourse was entirely proper, and that the record
supplies an adequate factual foundation for a finding of
extraordinary presentence rehabilitation.
Some prefatory comments are useful to place these
arguments into perspective. Ordinarily, presentence
rehabilitation is not a permissible ground for departure because
it can be factored adequately into the sentencing equation by an
-15-
acceptance-of-responsibility credit.1 See USSG §3E1.1, comment.
(n.1(g)) (listing "post-offense rehabilitative efforts (e.g.,
counseling or drug treatment)" as considerations in granting an
acceptance-of-responsibility credit); see also United States v.
Sklar, 920 F.2d 107, 115-16 (1st Cir. 1990). But a datum that
is taken into account by a guideline nonetheless can form the
basis for a departure if it is "present to an exceptional
degree" or "makes the case different from the ordinary case
where the factor is present." Koon, 518 U.S. at 96. In an
appropriate case, therefore, extraordinary presentence
rehabilitation can ground a downward departure. United States
v. Whitaker, 152 F.3d 1238, 1240 (10th Cir. 1998); United States
v. Kapitzke, 130 F.3d 820, 823 (8th Cir. 1997); United States v.
Sally, 116 F.3d 76, 80 (3d Cir. 1997); United States v. Brock,
108 F.3d 31, 35 (4th Cir. 1997); Sklar, 920 F.2d at 116.
Withal, downward departures for presentence rehabilitation are
hen's-teeth rare, and our precedent makes clear that such
departures are to be granted sparingly. See Sklar, 920 F.2d at
116. "It is only the occasional instance, where time and
circumstances permit and the accused takes full advantage of
1
In this case, the district court gave Craven the maximum
three-level credit for acceptance of responsibility (in addition
to the downward departure for extraordinary presentence
rehabilitation).
-16-
both, that will produce rehabilitation so dramatic as to cross
the boundary." Id. at 117.
Against this backdrop, we turn to the question, broadly
stated, of whether the facts pertaining to Craven's claimed
rehabilitation, as supportably found by the district court,
qualify under this rubric. In conducting such an inquiry, we
use a three-part test. First, we evaluate whether the
circumstances cited by the sentencing court are sufficiently
unusual to justify the departure. If so, we next inquire into
whether those circumstances are adequately documented in the
record. If the departure clears these two hurdles, we then
measure its reasonableness. See United States v. Dethlefs, 123
F.3d 39, 43-44 (1st Cir. 1997); Sklar, 920 F.2d at 114.
The first two inquiries sometimes overlap and the lines
that separate them sometimes blur. This case is a paradigmatic
example of that phenomenon: because of the doubts surrounding
the propriety of the ex parte communication, the question of
whether the set of circumstances relied upon by the district
court was legally sufficient to justify a downward departure
cannot easily be separated from the question of whether the
court's findings rest upon an acceptable evidentiary foundation.
Hence, we consider the first two branches of the test in the
ensemble.
-17-
Precedent provides some guideposts. We have twice
before been called upon to assess a defendant's efforts to purge
himself of addiction as a ground for a rehabilitation-based
departure. On both occasions, we found that the efforts fell
short. In Sklar, the defendant, after his arrest, attempted to
vanquish his drug addiction by admitting himself to a halfway
house and undertaking other rehabilitative measures. 920 F.2d
at 114. We nevertheless set aside the sentencing court's
downward departure, finding that the defendant's
accomplishments, though laudable, were not exceptional enough to
support such a hard-to-achieve departure. Id. at 117.
Similarly, in United States v. Rushby, 936 F.2d 41 (1st Cir.
1991), we concluded that the defendant's endeavors, including
his post-arrest abstinence and his enrollment in a treatment
program for substance abuse, did not warrant a rehabilitation-
based downward departure. Id. at 42-43. This was so
notwithstanding other exemplary behavior on the defendant's
part, e.g., attending to family responsibilities and holding
gainful employment. See id.
Craven argues here, as he did below, that his case
differs materially from our earlier precedents because both
Sklar's and Rushby's rehabilitative efforts began post-arrest,
whereas he disavowed drugs and alcohol approximately a year
-18-
before federal authorities apprehended him. To drive home the
significance of this distinction, Craven notes that other courts
have given this sort of sequencing weight in assessing whether
a defendant's presentence rehabilitation merits a downward
departure. E.g., United States v. DeShon, 183 F.3d 888, 889
(8th Cir. 1999) (affirming downward departure where defendant
had made radical lifestyle changes a year before his
indictment); United States v. Workman, 80 F.3d 688, 701 (2d Cir.
1996) (affirming downward departure where defendant had
completed military service honorably before his arrest).
We agree that the distinction advocated by Craven may,
on occasion, be salient. Here, however, the circumstances
effectively nullify its potential importance. The reason that
timing matters in rehabilitation cases is that a defendant who
decides independently to turn his life around likely deserves
higher marks than one who undertakes rehabilitation mainly (or
at least partially) to gain advantage in imminent criminal
proceedings. See Workman, 80 F.3d at 701 (emphasizing that
"rehabilitation was not undertaken at the spur of impending
prosecution"). But that rationale is inapplicable here: the
district court warrantably found that Craven knew the government
was "at the door" early in 1996, well before he ceased using
illicit substances and set out along the path of rehabilitation.
-19-
Since Craven knew that he was the target of an investigation
prior to commencing his efforts at rehabilitation, the fact that
he renounced drugs and alcohol before he was actually arrested
does not serve to distinguish his situation from Sklar and
Rushby in any meaningful way.
In this case, moreover, Craven's disciplinary record
while in pretrial detention casts significant doubt over the
advisability of the downward departure. After all, overcoming
drug addiction is neither the equivalent of extraordinary
rehabilitation nor a guaranteed ticket to a downward departure
on that basis. See United States v. Herman, 172 F.3d 205, 209
(2d Cir. 1999) (finding defendant "merely a rehabilitated drug
addict, not a rehabilitated criminal"). The touchstone of
extraordinary rehabilitation is a fundamental change in
attitude. See, e.g., Bradstreet, 207 F.3d at 78-79, 83-84
(affirming downward departure for extraordinary post-sentence
rehabilitation on basis of defendant's tutoring other prisoners,
teaching adult education classes in prison, serving as prison
chaplain's assistant and clerk of prison parenting program, and
lecturing in the community on ethical perils in the business
world); DeShon, 183 F.3d at 890-92 (affirming downward departure
for extraordinary presentence rehabilitation on the basis of
defendant's genuine acknowledgment of responsibility for his
-20-
crimes and radical alteration of his lifestyle to include
attending church four times a week, receiving continuous
counseling, and working over seventy hours a week to catch up on
bills). Craven's prison record seems inconsistent with a
fundamental change in attitude (and, thus, with the high level
of rehabilitation essential for a downward departure).2
We nevertheless hesitate to say, as a matter of law,
that Craven does not qualify for a downward departure. Both
Sklar and Rushby predate the Court's decision in Koon, and Koon
highlights the desirability of deference to the sentencing court
in such fact-sensitive judgments. Thus, although Koon may not
have changed the mode of analysis that previously prevailed in
departure cases in this circuit, e.g., United States v. Rivera,
994 F.2d 942, 950-52 (1st Cir. 1993); United States v. Diaz-
Villafane, 874 F.2d 43, 49-52 (1st Cir. 1989), it added a gloss
that gives us pause.
2The only reported case in which an appellate court has
affirmed a downward departure for presentence rehabilitation
based solely on overcoming addiction is United States v. Newlon,
212 F.3d 423 (8th Cir. 2000). The Newlon panel authorized a
departure where the defendant, prior to his arrest, had spent
approximately eighty-five hours in a structured treatment
program, his counselor attested to his sincere desire for a
cure, and his family noticed a marked improvement in his
demeanor. Id. at 424. Newlon is readily distinguishable from
the instant case for at least two reasons. First, Newlon's
rehabilitation occurred before the authorities zeroed in on him.
Second, no factors were present there that belied the claimed
existence of a fundamental change in attitude.
-21-
This is a highly ramified question — and one which
ought not be addressed on an uncertain record. We think that
the course of prudence is for us to leave open the question of
whether the circumstances justify a departure until we first
answer the closely related question of whether the sentencing
court acted on the basis of information that was properly before
it. We turn, then, to that inquiry.
The court below departed downward based on two key
findings. First, it concluded that Craven, on his own, gave up
drugs prior to his arrest and conquered a long-term addiction.
Second, it solicited Dr. Weisman's opinion ex parte and, based
on that opinion, found that the proliferation of disciplinary
violations did not undercut this supposed rehabilitation. The
nub of the question, then, is whether the sentencing court erred
in undertaking this ex parte contact and premising a critical
finding on information received during the ensuing conversation.
What transpired below is not disputed. At the second
of Craven’s three sentencing hearings, the district judge
struggled with the conflicting evidence on rehabilitation. She
determined that she could not grant a downward departure without
some cogent rationalization of Craven's disciplinary violations:
[Y]ou have to deal with the record in
prison, because . . . I actually haven’t
seen this in other defendants. . . .
-22-
If there’s an explanation, I want to
hear it. But you have to deal with this.
This is not – having surfaced this, it can’t
be ignored. . . .
I have to deal with this and you have
to deal with it. And in the absence of
dealing with it, I can’t depart downward. .
. .
The judge gave defense counsel time to investigate the
infractions and to reconcile them, if possible, with the claim
of rehabilitation.
At the final sentencing hearing, Craven’s lawyer
provided no further explanation for the parlous disciplinary
record. The district court nonetheless departed downward for
extraordinary presentence rehabilitation based on a one-hour ex
parte conversation with Dr. Weisman. The government made a
proper contemporaneous objection to the court’s reliance on this
ex parte conversation.
On appeal, the government notes that the lawyers were
not privy to the court's conversation with the expert; that the
substance of the discussion was not placed in the record; and
that the government had no opportunity either to cross-examine
the expert or to respond to his opinions. We agree with the
government that a sentencing court may not utilize an ex parte
conversation with a court-appointed expert as a means to acquire
information critical to a sentencing determination and then rely
on that information in fashioning the defendant's sentence. We
-23-
conclude, moreover, that the district court's violation of this
principle taints the factual basis for the departure decision
and leaves us unable to determine whether Craven’s efforts to
overcome his addiction qualify him for a downward departure.
See Martin, 221 F.3d at 58 (ending analysis upon determining
that sentencing court relied on forbidden information in
departing). We explain our thinking below.
In general, the law frowns upon ex parte communications
between judges and court-appointed experts. See Bradley v.
Milliken, 620 F.2d 1143, 1158 (6th Cir. 1980) (expressing
concern that reports of court-appointed experts were not placed
in record or made available to parties); United States v. Green,
544 F.2d 138, 146 n.16 (3d Cir. 1976) ("Generally . . . the
court should avoid ex parte communications with anyone
associated with the trial, even its own appointed expert."); see
generally 29 Charles Alan Wright et al., Federal Practice and
Procedure § 6305 (1997 & Supp. 2000) ("[E]x parte communications
between the judge and the expert . . . are discouraged."). The
reason is obvious: most ex parte contacts between a trial judge
and another participant in the proceedings risk harm, and ex
parte communications with key witnesses (such as court-appointed
experts) are no exception. To the contrary, such ex parte
-24-
contacts can create situations pregnant with problematic
possibilities.
Nor is there any convincing reason for exempting
communications undertaken in the course of sentencing from this
general prohibition. In point of fact, the statutory provision
under which the district court recruited Dr. Weisman does not
contemplate substantive ex parte communications between the
appointer and the appointee. Rather, it requires that the
expert file with the court "a written report of the pertinent
results of the study," 18 U.S.C. § 3552(b), and the court must
ensure that the report is disclosed to the defendant, his
counsel, and the prosecutor prior to the disposition hearing,
id. § 3552(d). While the statute does not deal explicitly with
the procedure to be followed if the court requires information
over and above that contained in the original report, it follows
logically that the same or equivalent safeguards (i.e., a
written response delivered to all parties in advance of
sentencing) should obtain. Accord United States v. Blythe, 944
F.2d 356, 360 (7th Cir. 1991) (determining that section
3552(d)'s framework for review by all interested parties applies
to an addendum to the presentence report).
We hold, therefore, that if a sentencing court desires
additional information from a court-appointed expert, it must
-25-
either (1) make a written request for a supplemental report and
provide that supplemental report to the parties in accordance
with the procedure described in 18 U.S.C. § 3552(d), or (2)
bring the expert into court to be questioned in the presence of
the parties. Such an even-handed approach not only honors what
we believe to be the intent of the drafters of section 3552, but
also fits neatly with the prevailing view as to how courts
should communicate with court-appointed experts on matters of
substance. E.g., Bradley, 620 F.2d at 1158 (opining that "if
any experts are employed to advise the district court . . . they
shall prepare written reports, copies of which shall become part
of the record and shall be made available to all parties or
their attorneys"); Green, 544 F.2d at 146 n.16 (observing that
the most appropriate way for a court to talk with its appointed
expert would be through "an on-the-record conference in chambers
or an on-the-record conference call so that counsel for all
parties may participate"); Joe S. Cecil & Thomas E. Willging,
Court-Appointed Experts: Defining the Role of Experts Appointed
Under Federal Rule of Evidence 706, at 91-92 (1993) ("If the
judge and the expert expect to confer in person . . .
[r]epresentatives of the parties can be invited to attend the
conference or . . . a record of the discussion can be forwarded
to the parties.").
-26-
The court below acted in a manner inconsistent with
this prudential rule and therefore erred. On the record before
us, we conclude that the error cannot be deemed harmless.3 We
base this determination on several factors.
First, the ex parte conversation dealt with a
substantive sentencing matter (whether Craven's rehabilitation
could be considered extraordinary given his prison disciplinary
record). Second, the conversation was plainly determinative of
the court's decision to depart. Indeed, like a pearl around a
grain of sand, the decision anent the proper sentence to be
imposed was formed around the impermissible ex parte
conversation. Third, since the court sentenced Craven
immediately after it revealed that it had spoken with Dr.
Weisman ex parte, the government had no realistic opportunity to
challenge the expert's conclusions by cross-examination or
otherwise. Fourth, and finally, there is no contemporaneous
record of the conversation — only the district court's oral
summary of its contents — thereby complicating harmless-error
review.
3We hasten to add that not every ex parte contact between a
judge and a court-appointed expert automatically will result in
reversal. E.g., Green, 544 F.2d at 146. Here, however, the
risk of taint runs high: the court relied heavily on its ex
parte communication with Dr. Weisman to ground the downward
departure.
-27-
Let us be perfectly clear. We do not doubt the trial
judge's good intentions — but in her zeal to collect all
possible information without further delaying the disposition
hearing, she went too far. Under the circumstances that obtain
here, we cannot permit the tainted departure to stand. The
sentence must be vacated and the case remanded for resentencing.
This determination does not end our odyssey. The
question remains whether the remand should be to the same or a
different judge. Engaging in ex parte communications with
court-appointed experts need not inevitably require a judge's
disqualification, but such conduct sometimes can lead to that
result. See Edgar v. K.L., 93 F.3d 256, 262 (7th Cir. 1996)
(per curiam) (ordering disqualification where the ex parte
discussions with court-appointed experts touched on the merits
of the dispute and were not justified by any exigent
circumstances). The Seventh Circuit's rationale applies here.
When a judge receives information that does not enter the
record, the reliability of that information may not be tested
through the adversary process. Id. at 259 (noting that "[o]ff-
the-record briefings . . . leave no trace in the record" and
"[w]hat information passed to the judge, and how reliable it may
have been, are now unknowable"). Moreover, it is difficult, if
not impossible, for a judge, no matter how sincere, to purge
-28-
that information from her mind — and, equally, to maintain the
perception of impartiality.
These concerns crest in the criminal sentencing
context. See generally United States v. Tavano, 12 F.3d 301,
305 (1st Cir. 1993) (remarking that "a court must take pains to
base sentencing judgments upon reliable and accurate
information"). The level of concern is heightened even further
where, as in this case, the information gleaned ex parte was
incontrovertibly the basis for the sentencing decision.
Finally, were we to remand this case for resentencing by the
same judge, we believe that it would be surpassingly difficult
for her to disregard the guidance that she previously received
from Dr. Weisman. For these reasons, we direct that the case be
reassigned to a new trier. See United States v. Curran, 926
F.2d 59, 64 (1st Cir. 1991) (remanding to a different judge for
resentencing where the sentencing judge considered victim
letters that were neither included in record nor made available
to the defense); cf. United States v. Berzon, 941 F.2d 8, 20
(1st Cir. 1991) (directing sentencing judge to step aside on
remand for resentencing if he had relied on improperly obtained
information during original sentencing hearing).
IV. CONCLUSION
-29-
We need go no further. Since Craven did not file a
cross-appeal, we lack jurisdiction over his attempted attack on
his sentence and do not pass upon its merits. We do have
jurisdiction, however, over the government's appeal. In that
regard, we annul the downward departure for extraordinary
presentence rehabilitation, vacate the sentence, and remand for
resentencing before a different judge.
Vacated and remanded.
-30-