Opinion
Criminal No. 03-35-01.
July 25, 2005
ORDER
AND NOW, this 25th day of July, 2005, upon consideration of defendant Steven Schwartz's pro se motion for production of rough notes (docket entry # 368), the Government's response thereto, and Schwartz's third pro se motion for recusal (docket entry # 369), and the Court finding that:
(a) More than three months after a jury convicted him, and only two business days before his sentencing, Schwartz requested that we require the Government to produce copies of its "rough notes" of witnesses' statements;
(b) Though whatever rough notes still exist might have helped Schwartz cross-examine the witnesses who testified against him at trial, we suspect that almost none of those witnesses will testify again at his sentencing;
Schwartz does not need rough notes of conversations with witnesses who testified at trial, but who will not testify at the sentencing hearing, because it is too late for him to impeach those witnesses.
(c) Since most of the trial witnesses will not testify at the sentencing, Schwartz does not need most of the rough notes;
(d) Only the rough notes of conversations with witnesses who will testify at the sentencing conceivably could assist Schwartz, so we shall require the Government to produce only rough notes of conversations with witnesses that it intends to call at the sentencing hearing;
(e) Schwartz also demands, for the third time, that we recuse ourselves from this matter, see also Order of April 7, 2004 (docket entry # 70); Order of April 1, 2004 (docket entry # 65);
(f) Like his previous attempts at recusal, Schwartz's present motion asserts only frivolous arguments that do not suggest that our impartiality might reasonably be questioned, see Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987);
We note that the presentence investigation report in places uses locutions such as "the Court has made the following determinations of loss," PSI ¶ 59. The Court has done no such thing, or made any "findings" pertinent to either "amount of loss" or restitution amounts, the latter of which being subject to dispute to be resolved at sentencing tomorrow.
Schwartz's latest recusal motion seems to be predicated on the presumption of some impropriety in the interaction between the Court and the probation officer who works for it. Schwartz is doubtless unaware that, as has been the case for quite some time, "[t]he presentence investigation report is a basic working document in judicial and correctional administration. Its primary purpose is to aid the court in determining the appropriate sentence." 3 Charles Alan Wright et al., Federal Practice and Procedure § 522 n. 1 (3d ed. 2004) (quoting Administrative Office of the United States Courts, The Presentence Investigation Report 1 (1978)). As Wright and Miller note, the cited monograph was revised and "published in 1992", i.e., after the Sentencing Reform Act of 1984 became effective. Id. Thus, only the Court, and never the probation officer, "find" anything before imposing sentence.
Since most of the trial record remains untranscribed, but the Court having presided over the fifteen days of Schwartz's trial and having made extensive notes thereon, this would be an appropriate case to invoke Fed.R.Crim.P. 32(c)(1)(A)(ii) (no presentence investigation needed if "the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553"). Here, what the probation officer has drafted is subject in its entirety — at least as far as offense conduct and Guidelines calculus — to the Court's recollection of the facts developed in this lengthy trial. Indeed, even the important aspects of Schwartz's criminal history are readily available in the record of this Court. In any event, the Court, and not the probation officer, is the only finder of fact as far as sentencing is concerned under both the Sentencing Reform Act of 1984, 18 U.S.C. § 3553, and the Supreme Court's recent gloss on that sentencing polestar in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2004).
As the defendant was present for each minute of the proceedings that will form the predicates of the findings the Court will make at the sentencing, he cannot have been prejudiced by any delay that the probation officer may have experienced in delivering the presentence investigation report to him last month. Indeed, Schwartz has twice effectively acknowledged such a lack of prejudice given his request in May "that the sentencing be held at the earliest possible date" (emphasis in original) in an epistolary request, and given his more recent motion for change in sentence date (docket entry no. 358). We denied both requests for an earlier sentencing date. See Orders of May 23, 2005 and Jul. 6, 2005 (docket nos. 354 and 359, respectively).
(g) Thus, we shall deny his third motion for recusal;
It is hereby ORDERED that:
1. Schwartz's motion for production of rough notes is GRANTED IN PART;
2. By 9:00 a.m. on July 26, 2005, the Government shall PROVIDE Schwartz with rough notes of any conversations that its agents had with witnesses whom it will call to testify at Schwartz's sentencing (to the extent that any such notes still exist); and
3. Schwartz's third motion for recusal is DENIED.