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United States v. Peasley

United States District Court, D. Montana, Missoula Division

August 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH MICHELE DERIUS PEASLEY, Defendant.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE.

         Before the Court is Defendant Joseph Michele Derius Peasley's ("Peasley") Motion to Quash Subpoena. (Doc. 75.) Peasley requests the Court quash the subpoena issued by Judge James Wheelis in the Fourth Judicial District of Montana, ordering the United States Probation Office to release Peasley's federal Presentence Investigation Report. For the reasons explained below, the Court grants the motion.

         BACKGROUND

         In April 2013, Peasley entered a guilty plea to a single-count Indictment charging felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and sentencing was set for November 8, 2013. On October 23, 2013, the United States Probation Office prepared a federal presentence investigation report for the Court's review prior to Peasley's sentencing hearing ("October 2013 PSR"). This Court sentenced Peasley to 40 months imprisonment. Peasley served his prison term and was released from custody and began serving his three-year term of supervised release on October 29, 2015.

         On October 10, 2017, Mr. Peasley requested appointed representation because the State of Montana had identified him as a witness in State of Montana v. Augustus Storm Standingrock. The Court appointed Federal Defender John Rhodes to represent Peasley.

         On November 1, 2017, Peasley was charged in Missoula County Justice Court with one count of misdemeanor Assault With Bodily Injury, in violation of Mont. Code Ann. § 45-5-201 (2017), and one count of Obstructing a Peace Officer or Other Public Servant, in violation of Mont. Code Ann. § 45-7-302(1). On November 2, 2017, a United States Federal Probation Officer filed a Petition for Warrant for Offender Under Supervision against Peasley. The petition alleged that Peasley had violated the terms of his federal supervision by being charged with misdemeanor assault and obstruction in state court. The petition also alleged that Peasley had associated with Augustus Standingrock, a convicted felon, a violation of Peasley's terms of supervised release. The petition remained sealed until Peasley appeared in federal court on November 22, 2017. While in state custody, a federal hold was placed on Peasley.

         On November 15, 2017, Peasley was released from state custody after a bail hearing. Pursuant to the federal hold, Peasley was transferred to federal custody. On December 20, 2017, Peasley appeared in federal court for the disposition of the revocation petition. The United States Probation Office updated Peasley's previous federal presentence investigation report to include information related to the revocation proceeding, and presented that PSR to the Court prior to disposition at the revocation hearing. Peasley was found to have violated the terms of his supervised release. The Court revoked Peasley's supervised release and sentenced Peasley to six months imprisonment in the United States Bureau of Prisons, to be followed by thirty months of further supervised release. Peasley's federal sentence was ordered to run three months consecutive and three months concurrent to any sentence imposed in his misdemeanor assault and obstruction case pending in state court.

         When Peasley was released from federal custody, he continued to be identified as a witness in the Standingrock case. Furthermore, the State of Montana continued to prosecute the state criminal allegations that were included in Peasley's federal revocation petition.

         On February 23, 2018, Mr. Standingrock filed a motion for issuance of subpoena duces tecum in the Fourth Judicial District Court of Montana, seeking a subpoena to obtain Peasley's October 2013 PSR. Through his state public defender, Peasley opposed the motion in state court. On May 9, 2018, upon his release from federal custody, pursuant to Peasley's request, the Court again appointed John Rhodes to represent Peasley. On June 15, 2018, Judge Wheelis held a hearing on Standingrock's motion for issuance of subpoena duces tecum. Judge Wheelis orally pronounced that he was granting the motion and would issue the subpoena. The subpoena directed the United States Probation Office to provide the October 2013 PSR to Judge Wheelis for in camera review; presumably, the review would be followed by potential disclosure of some or all of the PSR's contents to Standingrock, his co-conspirator Tiffanie Pierce, and county prosecutors.

         On June 15, 2018, Peasley filed a Motion to Quash Subpoena, and attached to his Brief in Support the State of Montana's Proposed Order for Subpoena. (Doc. 76-1.) On June 29, 2018, the Court advised the parties that the United States Probation Office had not yet been served with the subpoena at issue, and directed the parties to file a status report indicating whether the subpoena would still be served. On July 5, 2018, the parties filed a status report, indicating that the subpoena was served on Joseph McElroy at the USPO in Missoula on July 2, 2018, and submitted the subpoena as an exhibit. (Docs. 81-1, 81-2.)

         On July 27, 2018, the Court held a hearing on the Motion to Quash Subpoena. All parties were heard, including Peasley, the United States, and Colin M. Stephens and Nick Kirby Brooke appearing on behalf of intervenor Augustus Standingrock.

         LEGAL STANDARD

         Federal PSRs are prepared by federal probation officers and are required for all federal criminal cases. Fed. R. Crim. P. 32(c)-(d). "A presentence report is prepared primarily for court use, although an ancillary function is to aid agency decisionmaking." United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir. 1988), amended, 854 F.2d 359 (9th Cir. 1988). The Second Circuit found in United States v. Charmer Industries, 711 F.2d 1164, 1170 (2d Cir. 1983), that the United States Probation Service in preparing presentence investigation reports acts as an arm of the Court. While the principal function of the PSR is to assist the court in determining the appropriate sentence, a report may also be used by the Federal Bureau of Prisons and the United States Parole Commission. Id. However, "[notwithstanding these secondary uses, the presentence report is a court document and is to be used by nonjudicial federal agencies and others only with the permission of the court." Id.

         Because PSRs are not public records, but rather confidential reports, disclosure of PSRs are disfavored. U.S. Dep't of Justice v. Julian,486 U.S. 1, 12 (1988) ("[I]n both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals."); United States v. Sherlin, 67 F.3d 1208, 1218 (6th Cir. 1995) (finding that "[n]either Brady nor the Federal Rules of Criminal Procedure mandate that a trial court produce a copy of a presentence report concerning a government witness, prepared for the court, to the defense upon request."); United States v. Trevino,556 F.2d 1265, 1271 (4th Cir. 1977) (declining to extend Brady's reach to disclosure of a presentence report). Rule 32(c)(3)(A) does not address release of the report to third parties. Thus, courts have found that disclosure to a third party is appropriate if disclosure "is necessary to serve the ends of justice." Berry v. Department of Justice, 733 F.2d 1343, 1352 (9th Cir. 1984); Charmer, 711 F.2d at ...


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