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QUESTION AUTHORITY

Anyone looking to take up writing fiction for a living could do worse than to become a presentence report writer for the US Probation Office. More than one defendant has found his or her PSR describing an offense so nasty and a person so rotten that you’d never want to associate with such a person.

Background: Every federal criminal defendant who either pleads guilty or is found guilty has a presentence report prepared by the U.S. Probation Office. The Report, required by Federal Rule of Criminal Procedure 32(c)(1), is supposed to set out in neutral terms information about the offense and the defendant’s background, and propose a calculation of how the Sentencing Guidelines should apply to the crime. In fact, the PSR usually reads like it was dictated by a drunken Nancy Grace, describing the offense conduct based solely on what the U.S. Attorney and law enforcement agents have provided and painting the defendant as something you’d grimace at while you scraped it off your shoe.

The worst departures from reality one finds in PSRs usually come in drug cases, where “ghost dope” can send the Guidelines into low earth orbit. Any drug defendant can tell you about “ghost dope.” “Ghost dope” is the amount of controlled substance a defendant was not caught with, but which existed or did not exist according to the say-so of law enforcement.

Anyone who has seen the system knows the deal. The most pernicious example is the stash-house sting, where an agent provocateur working for the ATF convinces some down-on-their luck boyz in the ‘hood (and yes, virtually all stash-house sting defendants are black) that there is a drug stash house where drugs and money are stored. The guys are recruited to help rob the stash house. When they arrive at the staging area, preferably with guns (if they can locate them to bring), the hapless defendants are arrested. These cases are legion for “ghost dope:” because the stash house does not exist, the ATF can make up as much crack cocaine is purportedly stored at the stash house. Why rob a drug dealer of five kilos when you can rob him of 20 kilos? And since sentence length is driven by the amount of drugs at issue, a “pretend” 20 kilos locks people up a lot longer than five kilos.

A much more common application of “ghost dope” comes in cases where the defendant is charged with and pleads to, say, 1.44 kilos of cocaine powder, only to discover at sentencing that “two CIs [confidential informants] reported that defendant sold 10 kilos of meth a day for three years.” Attacking such fanciful PSR claims is like shadow boxing, and too often, the district court finds the claim is proven by a preponderance of the evidence because, after all, the PSR says so.

Joe Helding found himself in that position. He pled to possession of 100 kilos of marijuana, but the PSR cited five confidential informants who had told law enforcement Joel had also possessed “over a pound” of methamphetamine on one particular date, had fronted one of them a couple ounces of meth every day or two for two months, and had been seen by another selling “multiple ounces” of meth on three occasions for $500 per ounce. The PSR, converting the supposed meth weight to pot, set Joel’s drug amount at 4,680 kilos, 32 times what he pled to.

Joel objected to the PSR’s meth findings, arguing that nothing corroborated what the CIs reportedly told law enforcement. Nor, he added, did the PSR include any explanation of why law enforcement found the CI information credible. The district court overruled Nick’s objection, finding that the government had shown his possession of the 4,680 kilos of meth by a preponderance of the evidence. The court reasoned the reports were reliable, because the “confidential informants were able to provide specific information related to the defendant’s involvement in sales of drugs, including dates and quantities.” Thus, the district court said, “[a]bsent contrary evidence, therefore, I overrule that objection. “

Last week, the 7th Circuit reversed. The Circuit said, “Our reading of the sentencing transcript leaves us with the impression that the district court overruled Helding’s objection because the information supplied by the CIs was detailed. While the observation appears accurate, the reasoning came very close to the district court saying it credited the CI information because of its inclusion in the PSR. What concerns us is that this reasoning prevailed over Helding’s objection, with no step being taken to find some modicum of reliability of the CI information…”

“A criminal defendant has a due process right to be sentenced based on accurate information,” the 7th said. “Reliability is a central ingredient of the due process analysis: where the district court sentences a defendant based on the drug-quantity guidelines, it must find the government’s information sufficiently reliable to determine drug quantity by a preponderance of the evidence…” Though the threshold for a sufficient reliability finding may be low, it is not so low as to be met in the face of a defendant’s objection by a confidential informant’s out-of-court statement unaccompanied by any additional support.”

Here, Joel had never admitted to any meth trafficking, and “the district court saw no affidavits, reviewed no reports from the case agent, and heard no testimony from law enforcement handlers or other witnesses corroborating the drug quantity information. The court relied solely on CI-1 and CI-2’s statements as they were recounted in the PSR, which accounted for over 96% of Helding’s drug quantity.” While how it determines reliability is up to the district court’s discretion, nevertheless, “facing an objection like Helding’s, the district court must take some step to ensure that the CI-provided information has a modicum of reliability.”

United States v. Helding, 2020 U.S.App. LEXIS 2655 (7th Cir Jan 28, 2020)

– Thomas L. Root