concurring in part and dissenting in part.
I concur in the results reached in that part of the Court’s decision which affirms the appellant’s conviction in the District Court, but I respectfully dissent from that part of the decision wherein the Court vacates the sentence imposed on appellant and remands the case for resentencing.
The appellant contends that in fixing his sentence the District Court improperly relied on hearsay statements in the presen-tence report concerning misconduct by the appellant, which statements the appellant had no opportunity to challenge. The Court here decides that “justice would not be disserved if defendant is simply afforded the opportunity to deny and rebut the allegations of serious criminal misconduct in the presentence report” and remands the case to the District Court for resentencing. Because the record shows that appellant has had ample opportunity to challenge those statements, the truth of which at no time has he denied on the record, I dissent from that part of the Court’s decision.
Reliance upon hearsay in assessing punishment is not per se improper, Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Indeed, because modern concepts of individualized sentencing require that the sentencing judge have before him and consider complete information regarding the offense, the defendant, his life, his past, and his characteristics, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), it is imperative that the sentencing judge consider hearsay lest the sentencing hearing become an endless parade of witnesses testifying as to every trait of the defendant, as well as his personal history, his involvement in the offense of which he has been convicted, his past record, and every other conceivable aspect of his life. As long as the defendant is afforded the opportunity to challenge and rebut the hearsay and thereby, if the hearsay is denied, require the government to prove the challenged hearsay, any danger of the Court’s relying on untrue hearsay representations is avoided. Therefore, assuming, as it appears on this record we must, that the sentencing judge did rely at least in part on the hearsay allegations in the presentence report, in doing so he committed no error if appellant was given the opportunity to challenge those allegations. The reliability of the hearsay here was enhanced by the presentence report citing the source, an investigating agent of the United States of America.
Appellant makes no allegation that either he or his counsel was denied access to the presentence report, or to that part of that report containing the allegations here at issue. Appellant makes no allegation that either he or his counsel was denied by the *378sentencing judge the opportunity to speak freely or present any evidence at the sentencing hearing. In this sense, then, appellant clearly had the opportunity to challenge those allegations had he or his counsel chosen to do so. An opportunity to challenge is no less an opportunity merely because it is, by choice, unexercised.
Appellant contends that he was not given effective opportunity to challenge because his counsel “apparently” failed to examine the presentence report prior to the sentencing hearing. But, appellant has produced absolutely no factual support for this contention. Appellant seems to concede this lack of factual support by asserting that his counsel “apparently” failed to read the pre-sentence report rather than asserting that his counsel did “in fact” fail to read the presentence report. Appellant produced no affidavit from his trial counsel as to whether or not he read the presentence report prior to the sentencing hearing.
Instead, appellant invites us to speculate that his counsel, who we already have found to have been competent, failed to read the presentence report prior to the sentencing hearing on the basis of counsel’s failure to object to the allegations at the sentencing hearing. In support of this position, appellant asserts that the allegations, if considered by the Court, were so damaging to his position that had counsel read and been aware of them, he surely would have objected to the Court’s consideration of them. Concededly, the allegations are damaging to appellant’s position. Nonetheless, counsel’s failure to object to them is as easily reconcilable with a desire not to emphasize them if he felt they could be proven as it is with the theory that he failed to read them. Appellant also suggests that the hearsay allegations are in such conflict with other information in the presentence report that had counsel read the report, he surely would have challenged the truth of the -allegations here in question. However, I am able to detect no conflict whatsoever in the presentence report. The evaluation by the investigating probation officer stated that appellant was considered by his employer to be a good employee and dealt with his activities at his job. The statement appended to the report in no way dealt with appellant’s employment, but rather it suggested his involvement in illegal drug traffic. Appellant suggests that such assertions are so inherently contradictory that had his counsel read both, he could not possibly have believed the latter. As I find both of these asserted bases to be without foundation, I decline appellant’s invitation to speculate that his .competent counsel failed to read the presentence report prior to the sentencing hearing.
Additionally, appellant has shown no prejudice by the Court’s consideration of these hearsay allegations, and I feel that remand of this case to give appellant another opportunity to challenge these statements will be pointless, in that appellant has at no time, even on this appeal, denied the allegations here at issue. He did not deny them at the sentencing hearing, even though he, as well as his counsel, had access to the report and the opportunity to speak regarding that report. The record reveals no statement by defendant denying the allegations in conjunction with his petition to reduce bond. He has not denied them by any other actions or procedures before the trial judge. No affidavit appears in the record on this appeal denying those allegations. As earlier stated, no contradiction within the presentence report suggests that the statements are not true. Appellant’s counsel on appeal suggests in her brief that the Court considered “erroneous and irrelevant” information, but she gives no intimation as to in what respect it was erroneous. Indeed, it is not clear whether by her comments appellant’s counsel meant to say that the information itself was erroneous, or that the Court was in error in considering it. Absent such a denial, even if the Court committed error in considering the hearsay, which I am not willing to concede, such error was harmless because appellant has shown no prejudice requiring that his sentence be vacated.
Finally, appellant asserts that the sentencing judge gave great weight to the hearsay allegations in fixing appellant’s *379sentence. The sentencing judge in this case is an experienced judge who has been on the bench for some fifteen (15) years. He is no doubt familiar with the concept of hearsay evidence and any credibility deficiencies it may suffer vis-a-vis other types of evidence. There has been no showing that he failed to attribute proper weight to that evidence in fixing the sentence. Indeed, his order denying the motion to reduce bond in this case1 reveals that he was primarily concerned with the appellant’s conduct on which the indictment was based, and not with the hearsay statements in the presentence report. There has been no showing that the sentencing judge gave improper weight to the hearsay statements.
Clearly, the remedy of appellant was not by way of appeal requesting that there be a finding that the trial judge erred on the record presented. Appellant should have utilized Rule 35, Federal Rules of Criminal Procedure, to Correct or Reduce the Sentence by direct petition to the trial judge with affirmative representations of the falsity of the hearsay material.
For the foregoing reasons, I would affirm the sentence as well as the conviction in this cause.
. That order, dated September 1, 1976, stated:
The defendant herein was indicted and convicted after trial by jury of violating Title 18, United States Code Section 1503 (intimidation of Government witness). His conviction is now on appeal to the United States Court of Appeals for the Seventh Circuit. While the defendant was represented in the trial court by counsel and is apparently represented by counsel on appeal, he filed on August 25, 1976 a pro se motion seeking a reduction of his appeal bond. Trial evidence indicated that during the trial of a narcotics conspiracy case before Judge Allen Sharp and a jury in Lafayette, Indiana, the defendant threatened a prosecution witness while the witness was testifying. The threat was so emotionally disturbing to the witness that a recess of some time was required before the trial could resume. The threat occurred in a defiant manner before numerous witnesses in the courtroom, which witnesses included the trial judge. The conduct in which the defendant indulged and his defiant attitude throughout as well as the presentence report indicate that the defendant constitutes a substantial threat to the community. This defendant is no longer presumed to be innocent but has been convicted after a jury trial. He was convicted of openly, arrogantly, and defiantly threatening a prosecution witness in open court. The appeal bond as presently set by this court is the least restrictive condition this court believes appropriate not only to assure his presence after appeal but to protect the public interests.
Accordingly, the motion to reduce the defendant’s appeal bond is denied.