UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 30, 1982
UNITED STATES OF AMERICA
HERBERT BAYLIN, PETITIONER-APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
Adams, Hunter and Becker, Circuit Judges. Adams, Circuit Judge, concurring.
Opinion OF THE COURT
BECKER, Circuit Judge.
In May, 1981, appellant Herbert Baylin pled guilty to a one-count income tax violation. He entered the plea pursuant to a plea agreement in which the Government promised, inter alia : (1) not to prosecute Baylin, his corporation, or any of its employees, for any of several enumerated offenses; and (2) to "remain silent" in connection with sentence. In July, 1981, Baylin was sentenced to three years in prison.
Baylin then moved, pursuant to 28 U.S.C. § 2255 (1976) and Fed. R. Crim. P. 35, to correct or reduce his sentence. The district court denied his motion. Baylin has appealed,*fn1 renewing the three principal contentions he advanced in the district court in support of his motion. First, Baylin asserts a breach of the substantive terms of the plea bargain, contending: (a) that his plea agreement required that if a sentence of over one year was imposed, he would serve no more than one-third of the sentence; (b) that the application of the U.S. Parole Commission Guidelines, 28 C.F.R. § 2.20 (1982), frustrated the agreement because neither party considered the effect the Guidelines might have had on the agreement; and (c) that, under Fed. R. Crim. P. 11(c), the judge who received the plea should have informed Baylin of the potential impact of the Guidelines on the duration of his incarceration. Second, he asserts that the district court improperly enhanced his sentence on the basis of the United States Attorney's bare promise not to prosecute certain charges, even though: (a) the Government had already abjured possible prosecution of those charges and had claimed not to have any evidence to support them, and (b) the promise not to prosecute was included in the plea agreement at Baylin's own request, and solely for his protection. Third, Baylin contends that the Government breached its promise to "remain silent" when it allowed the probation officer preparing the presentence investigation ("PSI") report to have access to certain Internal Revenue Service ("IRS") investigative reports located in the United States Attorney's files and pertaining to Baylin's involvement in other tax violations. In addition, Baylin has asked that on remand his case be assigned to a different judge, arguing that the original sentencing judge would be unable to escape the influence of his allegedly improper decisions on resentencing. The Government disputes these contentions and argues that Baylin's failure to raise a contemporaneous objection to the claim that the Government breached its promise to remain silent to the contents of the PSI report constituted a waiver of that objection.
For reasons that appear below, we conclude that the substantive terms of Baylin's plea agreement were satisfied; that Rule 11 does not require the court to outline for a defendant the consequences of the Parole Commission Guidelines before accepting his plea; that the district court, in determining Baylin's sentence, drew an impermissible inference from the Government's agreement not to prosecute; and that while Baylin's failure to raise a contemporaneous objection to the contents of the PSI report did not constitute a waiver of that objection, the objection is without merit because the agreement to "remain silent" did not imply that the Government would close its files to the probation office. In light of these conclusions we remand for resentencing, but we reject Baylin's request that we order his case to be assigned to a different district judge on remand.
I. The Proceedings in the District Court
On May 20, 1981, Baylin concluded a plea agreement with the United States Attorney for the District of Delaware. In return for Baylin's plea and his promise to assist the Government in investigating certain diversions of foreign shipments, the Government agreed: (1) not to prosecute Baylin for tax violations other than the one to which he pled; (2) not to prosecute him for any involvement in diverting foreign shipments or receiving stolen goods; (3) to incorporate certain provisions regarding parole into Baylin's sentence;*fn2 and (4) "to remain silent and to make no recommendation . . . as to the nature and length of sentence, if any, to be imposed by the Court upon the Defendant, and . . . not to oppose, or to take any position with respect to, any request which the Defendant may make for a particular sentence." (App. 34). Pursuant to that agreement, the Government filed a one-count information charging Baylin with a violation of 26 U.S.C. § 7206(2) (1976) (assisting a corporation in filing a false tax return) for the fiscal year ending April 30, 1976. Following a hearing on May 20, 1981, the district court approved the plea agreement and accepted Baylin's plea of guilty.
On July 8, 1981, Baylin's counsel received a copy of the PSI report. Included in that report was information that the probation officer had obtained from the United States Attorney's files, including information from an IRS investigation concerning Baylin's involvement in tax violations for years other than 1976. Nonetheless, Baylin raised no objection to the contents of the report at that time or when he appeared for sentencing on July 22, 1981.*fn3
At the sentencing hearing, Baylin sought a lenient sentence, relying primarily upon his extraordinarily fine reputation in the Wilmington community and his impressive record of community service. The court, however, rejected Baylin's request for leniency and imposed the maximum available sanction -- three years in prison and a $5,000 fine. In its statement prior to sentencing, the district court observed that the case was "the worst [tax evasion] case that I have seen." The court acknowledged its reliance upon the information in the PSI report concerning other tax violations.*fn4 Finally, the court took "judicial notice" that the agreement not to prosecute Baylin for receiving stolen goods or for diverting foreign shipments "reflect[ed] adversely" on Baylin's character.*fn5 In accordance with the plea agreement, the court made Baylin immediately eligible for parole under the terms of 18 U.S.C. § 4205(b) (2) (1976).*fn6
Baylin began serving his sentence on August 8, 1981. In September, 1981, the Parole Commission reviewed his sentence and determined that he should not be paroled outside his guideline range (24-36 months). This decision effectively insured that Baylin would serve most of his three-year term.*fn7
On November 13, 1981, represented by new counsel, Baylin filed the first of his two post-sentence motions. This initial motion urged two related grounds for relief. First, Baylin asserted that both he and the Government had intended that he should serve no more than one-third of any sentence imposed in excess of one year, and that this intention had been embodied in the plea agreement. Second, Baylin urged that the judge who had accepted his plea at his Rule 11 hearing had violated Rule 11(c) (1)*fn8 by failing to inform him that the Parole Commission Guidelines would most likely determine how long he would be incarcerated.
The district court rejected both contentions. United States v. Baylin, 531 F. Supp. 741 (D. Del. 1982) (" Baylin I "). The court first noted that by sentencing Baylin under section 4205(b) (2), thereby making him immediately eligible for parole, it had fulfilled the written plea agreement. Because Baylin had admitted at his Rule 11 hearing that the written agreement (quoted supra at note 2) embodied the entire agreement between him and the Government, the court concluded that its sentence satisfied the terms of the agreement. The district court rejected Baylin's second claim on the ground that Rule 11 requires the court to inform the defendant only of the maximum possible and mandatory minimum terms of years associated with his plea.*fn9
Baylin then filed an amended motion raising two additional claims. First he argued that the Government, by giving the probation officer access to its files for compiling a PSI report, had violated its agreement to "remain silent." Second, he contended that the sentencing judge improperly inferred from the mere agreement by the Government not to prosecute that Baylin was involved in receiving stolen goods and diverting foreign shipments. Baylin again asked for resentencing, and requested that he be resentenced by a different judge.*fn10
The district court did not decide whether the Government's agreement "to remain silent" required it to prevent any information in its files from reaching the sentencing judge by way of the PSI report. Instead the court concluded that the public policy expressed in 18 U.S.C. § 3577 (1976) (quoted infra at p. 1040) imposes a duty on the United States Attorney to make all information about a defendant available to a sentencing judge, and that any agreement by the Government to withhold the IRS material would therefore be void and unenforceable. United States v. Baylin, 535 F. Supp. 1145 (D. Del. 1982) (" Baylin II ").
To justify its consideration of the Government's agreement not to prosecute as a factor in determining Baylin's sentence, the court relied upon the case law affording broad discretion to a sentencing judge to consider all information it deems appropriate short of misinformation or unreliable data. The court stated that the agreement "certainly gives rise to a permissible inference that Baylin may have participated in certain of these illicit activities," and that its conclusion that this was "a negative reflection on Baylin's character . . . is not so inconceivable as to constitute 'misinformation of constitutional magnitude. ' . . ." Baylin II, at 1153-1154 (quoting United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972)). The court therefore denied Baylin's motion to correct sentence. A final order of dismissal was entered on April 7, 1982, and this appeal followed.*fn11
II. Baylin's Failure to Raise a Contemporaneous Objection to the PSI Report
The Government makes a threshold argument that Baylin waived his right to object to the presence of information from the United States Attorney's files in the PSI report when he failed to object prior to sentencing.*fn12 The Government notes that the PSI report was delivered to Baylin's counsel two weeks before sentencing, yet Baylin did not object to the contents of the report either in his Memorandum on Sentencing or at the sentencing hearing.*fn13
Rule 9(a) of the rules governing section 2255 proceedings*fn14 gives the district court discretion to dismiss a delayed motion for relief "if it appears that the government has been prejudiced in its ability to respond. . . ." Since the district court considered Baylin's claim on the merits, it apparently did not find a waiver of the claim. We cannot say that the court abused its discretion in so deciding.*fn15
Nor does the Supreme Court's recent decision in United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982), extending its holding in Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), to section 2255 motions, pose a jurisdictional bar. Frady requires that a defendant attacking a jury instruction for the first time on a section 2255 motion show both cause for his failure to object at trial and actual prejudice deriving from the error alleged. The Court's concern in Frady was to assure that criminal judgments would not be perpetually open to revision by collateral attack; the Court therefore mandated a more stringent standard for section 2255 motions than is necessary to raise a challenge on direct appeal. We think the Frady rationale is inapplicable to this case for two reasons. First, Baylin here challenges the imposition of a sentence after a guilty plea -- a challenge for which a section 2255 proceeding is analogous to a direct appeal. This was not Baylin's "second appeal," but his first, and the finality considerations motivating Frady and its predecessors do not apply. United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982). Second, sentencing procedures, and especially sentencing hearings, need not conform to the procedural requirements that apply during a trial. During trial, the court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived. The rules are certainly not so well marked at the sentencing stage of criminal proceedings. For both of the above reasons, we conclude that there was no jurisdictional bar to the district court's having entertained Baylin's claim.
III. The Alleged Departure from the Parties' Understandings Regarding Parole
Baylin has advanced a variety of contentions in support of his claim that the terms of his incarceration represented a "radical departure" from the parties' mutual understandings regarding parole and thus violated the plea bargain. He contends that both he and the Government "totally overlooked" the Parole Guidelines in the course of their negotiations; that the Government led him to believe that his parole determination would be "individualized," which he takes to mean that the Parole Commission would be directed to disregard its own Guidelines; and that he was advised by his counsel that he would serve no more than one-third of any term in excess of one year actually imposed. The district court rejected these contentions, see Baylin I, supra, 531 F. Supp. at 747-53, and we adopt its reasoning as our own.*fn16 Baylin further asserts that Rule 11 obliged the district judge, before accepting the plea, to explain the consequences of the Parole Guidelines. The district court correctly rejected this contention. Because of the importance of that issue to the trial judges in this Circuit, we summarize briefly why Rule 11 does not require a judge accepting a plea agreement to explain to the defendant his parole prospects under the Parole Commission Guidelines.*fn17
Rule 11(c) (1) requires the court to advise a defendant of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." This language generally has been held not to require an explanation of parole consequences.*fn18 As this court has expressly stated, "under ordinary circumstances, it should not become necessary for a trial court to include an explanation of probation or parole in its inquiry into the defendant's understanding of his plea." Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969); accord Roberts v. United States, 491 F.2d 1236, 1238 (3d Cir. 1974) (per curiam); United States v. Garcia, 636 F.2d 122, 123 (5th Cir. 1981) (per curiam); Hunter v. Fogg, 616 F.2d 55, 61 (2d Cir. 1980); Strader v. Garrison, 611 F.2d 61, 63 (4th Cir. 1979); Bell v. North Carolina, 576 F.2d 564, 565 (4th Cir.), cert. denied, 439 U.S. 956, 58 L. Ed. 2d 348, 99 S. Ct. 356 (1978); Bunker v. Wise, 550 F.2d 1155, 1158 (9th Cir. 1977). This conclusion tracks the intent of the advisory committee that a judge need not inform a defendant of parole eligibility:
Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant. Currently, certain consequences of a plea of guilty, such as parole eligibility, may be so complicated that it is not feasible to expect a judge to clearly advise the defendant. . . . Similar complications exist with regard to other, particularly collateral, consequences of a plea of guilty in a given case.
Advisory Committee Notes, 1974 Amendment, Fed. R. Crim. P. 11.*fn19 Indeed, as the district court noted, the Parole Guidelines present precisely the sorts of complications envisioned by the advisory committee:
Although the Court might be able to calculate the "severity rating" of a defendant's offense under the Guidelines at the time a plea is accepted, the "salient factor score" could not be computed because this figure is based on information compiled during the pre-sentence investigation and is not available until some time after the Rule 11 proceeding. Thus, the Court could only describe the Guidelines in the most general terms to the defendant and would be unable to supply the information which could prove most useful -- the likely range of incarceration that particular defendant could expect to serve if the Guidelines are mechanically applied. Because of this inability to predict a probable range of confinement and because of the discretion vested in the Commission to suspend the application of the Guidelines in any event, the usefulness of a detailed discussion of parole possibilities would be questionable.
Baylin II, supra, 531 F. Supp. at 749. See generally Project, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810 (1975).
To mandate that explanations be given concerning any and all possible parole consequences in a Rule 11 proceeding would subject this Court to appeals each time the district court's prediction or the defendant's expectation of parole was not realized. Such a result is unreasonable and unnecessary. We reject Baylin's contention that Rule 11 requires such explanations.
IV. The District Court's Consideration of the Agreement Not to Prosecute
A. The Applicable Law
We begin with the proposition that a sentencing judge must have "the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 247, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949) (footnote omitted), so that the punishment fits not only the crime, but the defendant as well.*fn20 Congress has codified this proposition in broad terms:
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.
18 U.S.C. § 3577 (1976 app.).
It is thus permissible for a sentencing judge to consider information that would be inadmissible for the purpose of determining guilt. See Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358, (1980) (permissible to enhance sentence on basis of defendant's failure to cooperate with authorities in ongoing criminal investigations); United States v. Grayson, 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1978) (permissible for court to enhance sentence based on observation of defendant's demeanor during testimony at trial and conclusion that defendant had lied); Williams v. Oklahoma, 358 U.S. 576, 3 L. Ed. 2d 516, 79 S. Ct. 421 (1959) (prosecutor's report may be considered although it is hearsay); Williams v. New York, supra (court may consider evidence that the defendant had committed other crimes of which he had not been convicted, as well as activities indicating " 'a morbid sexuality ' " id. at 244); United States v. Garcia, 544 F.2d 681 (3d Cir. 1978) (hearsay permissible).*fn21
While the case law reflects a belief that a sentencing judge must have access to a broad range of information, it also insists that such information be reliable. See, e.g., Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948) (reversing denial of habeas corpus where the sentencing court had assumed that defendant had been convicted for several crimes when in fact he had been acquitted);*fn22 Campbell v. United States, supra note 21, 684 F.2d at 154 (upholding district court only after "review[ing] the record to ensure that there [was] a persuasive basis for the conclusions reached by the sentencing court"). Indeed, the Supreme Court in Williams v. Oklahoma, supra, only sanctioned the use of " responsible unsworn or 'out-of-court ' information," 358 U.S. at 584 (emphasis added); cf. United States v. Grayson, supra, 438 U.S. at 51 (approving use of the sentencing judge's own observations of defendant during trial and quoting with approval United States v. Hendrix, 505 F.2d 1233, 1236 (2d Cir. 1974), cert. denied, 423 U.S. 897, 46 L. Ed. 2d 130, 96 S. Ct. 199 (1975), characterizing such observations as "among the more precise and concrete" pieces of evidence a judge could consider).*fn23
In a case similar to the one before us, the Ninth Circuit vacated a sentence and remanded for resentencing because the sentencing court had relied on an unsubstantiated charge, made to the probation officer by agents of the Federal Bureau of Narcotics and Dangerous Drugs and included in the PSI report, that the defendant was a large-scale heroin dealer. United States v. Weston, 448 F.2d 626 (9th Cir.), cert. denied, 404 U.S. 1061, 30 L. Ed. 2d 749, 92 S. Ct. 748 (1971). The Weston court assessed the probative value of this "unsworn evidence detailing otherwise unverified statements of a faceless informer that would not even support a search warrant or an arrest," id. at 631, and found it to be "almost nil," id. at 633. Although the court acknowledged that the allegations were not demonstrably false and that Townsend v. Burke thus did not preclude their use, it reasoned that some minimal indicium of reliability was necessary to preserve the defendant's right to due process.*fn24 This court has expressed a similar position in dictum in Moore v. United States, 571 F.2d 179 (3d Cir. 1978). In Moore the district court dismissed a habeas corpus petition without a hearing, although the petition alleged that petitioner's sentence had been enhanced on the basis of false information contained in the PSI report and that petitioner had not had an opportunity to challenge those statements before sentencing. We remanded for a hearing to determine the validity of these charges, remarking that, if they proved true, due process would require that petitioner be resentenced.
We find indisputable the proposition announced in Weston that, as a matter of due process, factual matters may be considered as a basis for sentence only if they have some minimal indicium of reliability beyond mere allegation. We also endorse the correlative notion that such information must, either alone or in the context of other available information, bear some rational relationship to the decision to impose a particular sentence.
B. The Facts in Baylin's Case
In imposing the maximum sentence, the district court explicitly stated that the "grant of immunity" from prosecution for diverting foreign shipments and receiving stolen goods "reflect[ed] adversely upon Baylin's character." The court reasoned that "such a provision would not have been incorporated into the plea agreement if there was absolutely no danger that Baylin would somehow be linked to these additional offenses."*fn25 Baylin II, supra, at 1153.
We note preliminarily that the court's conclusion ignores common plea bargaining practice. A prosecutor's commitment not to file charges is frequently based, as apparently it was in this case, on the insufficiency or absence of evidence to support the charges. Plea agreements may include broad non-prosecution promises that go well beyond the scope of any available evidence. Such promises are readily granted by the Government because they deprive the Government of nothing of substance -- particularly if the prosecutor himself believes that the suspect is not guilty of the other offenses.
Nor was the court's conclusion warranted by the plea agreement itself.*fn26 Nothing in the agreement suggests that the Government had any evidence to implicate Baylin in either of the schemes, to divert foreign shipments or to receive stolen goods. The Government made no representation to that effect, and the court never asked the Government if it had any such evidence.*fn27 It is not disputed that the provision was included in the plea agreement at Baylin's insistence and solely for his protection. Indeed, after Baylin's sentencing, the Government wrote a letter on his behalf to the Parole Commission in which it termed the district court's action "unfortunate" and urged that "no negative inferences be drawn by the Commission concerning these provisions of the plea agreement."*fn28
In short, the district court inferred Baylin's culpable involvement in illegal activities not from hearsay evidence, or from an indictment, but from a bare Government promise not to prosecute. It is impermissible in sentencing to rely upon such an inference, since it does not meet the minimum reliability standard we have enunciated. Correlatively there is no rational relationship between the information actually available to the court (the fact that the Government had promised to forego prosecution) and its decision to enhance Baylin's sentence. Since "we are not convinced that an increment of prison time was not added" to Baylin's sentence on the basis of this inference, we must remand for resentencing. See Poteet v. Fauver, 517 F.2d 393, 398 (3d Cir. 1975).*fn29
C. Baylin's Request for Resentencing Before a Different Judge
Baylin argues that we should remand this case to a different judge for resentencing because the judge who sentenced him is unlikely to be able to erase from his mind the inferences we have held to be impermissible.Although our concern in this case is to insure that Baylin receives an impartial sentencing hearing and that he is sentenced only on the basis of reliable evidence, we begin our analysis with a presumption that assignment of cases is primarily the province of the district court -- a province we will not invade without significant justification.*fn30
Baylin urges us to adopt a test promulgated by the Second Circuit in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc) (per curiam), to decide this question. The Robin factors are:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
We need not decide here to adopt or reject this standard,*fn31 for even assuming its applicability, we conclude that Baylin's arguments do not satisfy its requirements.
Turning to the first Robin criterion, we cannot accept Baylin's argument that the district court will be unable to put impermissible inferences out of its mind. It is not enough to say, as Baylin does, that a sentencing judge who commits legal error is likely to do so again on remand. To accept this proposition is to conclude that the task of judging is an impossible one. It is no more difficult for a judge to discount an impermissible factor in sentencing than to ignore evidence at trial that was heard and excluded on proper objection. The judge here sentenced Baylin and denied his section 2255 motion under a misapprehension of law. This misapprehension now stands corrected. The court on remand will be in no different position than it would have been had it originally decided correctly that it could not consider the plea agreement as a negative reflection on Baylin's character. It is reasonable to expect that in future cases it will eschew the inference we hold to be impermissible; we see no reason not to expect it to do so in this case as well.
Baylin's argument also falls short of satisfying the second Robin factor. He suggests that the court's imposition of the maximum sentence "gives at least the appearance of very strong hostility to the defendant." Appellant's Br. at 50. We do not agree. Bias is not shown by the mere fact of a maximum sentence. As for the third consideration, while there is little duplication of effort involved in remanding to a different judge in the context of a guilty plea (as opposed to a lengthy trial), this criterion alone is not enough to overcome the other factors favoring remand to the original judge. We therefore deny Baylin's request that we order reassignment to a different district judge on remand.
V. The Government's Obligation to Remain Silent
Baylin's final claim is that the Government breached its agreement "to remain silent" by allowing the probation officer to examine its investigative files in preparing the PSI report. He argues that any transmission of information from the United States Attorney's Office to the court, direct or indirect, violates the Government's pledge of neutrality. In support of this argument, Baylin points to the district court's acknowledgement that there would have been a clear violation of the plea agreement if the Government's lawyers had mentioned the disputed information at the sentencing hearing, Baylin II, supra, at 1149, and contends that the release of investigative files to the probation officer is indistinguishable from such an oral presentation.*fn32 Baylin relies principally upon United States v. Cook, 668 F.2d 317 (7th Cir. 1982), where the court held that a promise " 'not [to] offer anything at all in aggravation '" was violated when the Government allowed the probation officer routine access to its files. The court held that to accept the Government's position "would render [its] promise practically meaningless since it would allow the Government to accomplish indirectly what it had promised not to do directly." Id. at 321.
Baylin's contention requires us to balance countervailing policies. On the one hand, integrity in the plea bargaining process demands that the Government be scrupulous in honoring its agreements. On the other hand, integrity in the sentencing process demands that the fullest possible record concerning the defendant be made available to the sentencing judge. The task of resolving conflicting policies is perhaps the most difficult of judicial duties. We do not perform this task in a vacuum, however, but only against the background of the record. The Seventh Circuit found the first of these policies more compelling in the context of the record available in Cook ; on the present record, we accord these countervailing policies somewhat different weight than did the Seventh Circuit.
We note initially that Baylin's plea agreement seems to us to be narrower than the Government's promise in Cook. The plea agreement in this case required the Government "to remain silent and to make no recommendation . . . as to the nature and length of sentence, if any, to be imposed by the Court upon the Defendant, and . . . not to oppose, or to take any position with respect to, any request which the Defendant may make for a particular sentence." App. 34. In contrast to the language at issue in Cook, we think this promise focuses on the sentencing hearing and the Government's presentation at that hearing. Indeed the Seventh Circuit was at pains to distinguish United States v. Avery, 621 F.2d 214 (5th Cir. 1980), cert. denied, 450 U.S. 933, 67 L. Ed. 2d 367, 101 S. Ct. 1396 (1981), where the Fifth Circuit held that a Government promise "to 'make no recommendation and stand mute ' at sentencing," id. at 216, did not require the Government to close its files to the probation officer preparing a PSI report. The Cook court thought that the language construed in Avery was much narrower than the language with which it was faced. Since we think that the language in Baylin's plea agreement is closer to the Avery agreement, Cook provides confirmation for our interpretation of the Government's promise here.*fn33
Aside from the differences in language between the plea agreements at issue here and in Cook, we think that the manner in which information is presented to the court bears on the question whether the Government has maintained its neutrality. Here the information was gathered in the course of routine procedure; the probation officer invariably reviews the investigative files of the United States Attorney in preparing PSI reports.*fn34 Baylin does not contend that the communications between the United States Attorney's Office and the Probation Office in this case were other than routine, or that the Government manipulated its files to place certain information before the probation officer. Nor does he assert that any attempt was made to influence the probation officer's evaluation of the file. Under these circumstances we see a difference between the United States Attorney offering the information at the sentencing hearing, and the probation officer obtaining it from the investigative file: the former strongly suggests that the Government deems the information worthy of the court's consideration; the latter, and any consequent decision by the probation officer to include the information in the PSI report, does not reveal a Government position on its importance. The Government cannot be said to have violated its promise to remain neutral in acting as a mere conduit, complying with a routine request for access to its files. The choice of relevant information in this case was the probation officer's, not the Government's.
The district court concluded that the public policy embodied in 18 U.S.C. § 3577, supra at 20, completely precludes courts from enforcing a plea agreement if enforcement would require excising information from the PSI report. Since such excision was the only remedy Baylin was willing to accept,*fn35 the court concluded that it did not need to determine the agreement's scope. We agree that section 3577 imposes a duty on the United States Attorney, as an officer of the court, to provide the court with all available information that might assist in sentencing.*fn36 However, we need not decide whether the existence of such a duty ever permits an agreement by the Government that would in any way limit the flow of information to the sentencing judge. Where, as here, it is unclear that a plea agreement requires the Government to close its files to a probation officer compiling a PSI report, the policy subsumed in section 3577 deters us from concluding that it does.*fn37
We conclude that the Government had no obligation under the terms of the plea agreement to close its files to the probation officer, and that the Government's neutrality was not impaired by the manner in which the information from those files was presented to the court. The district court is free on remand to consider the entire PSI report. Under the circumstances, however, it is desirable that the Probation Officer prepare an updated PSI report containing information about Baylin's personal and family situation and his institutional record; sentence should always be imposed on the basis of current information.
The judgment of sentence of the district court will be vacated and the case remanded for resentencing. The mandate shall issue forthwith.
ADAMS, Circuit Judge, concurring.
Although I concur with the majority, I write separately to emphasize what I consider to be the central holding of the Court today: namely, that a district judge may not, when sentencing a defendant, rely on inferences of possible participation in other crimes based solely on the government's promise not to prosecute for such other crimes. Due process demands that there be something justifying dependence on a particular factor before a judge may make that factor a basis, even in part, of a sentence.*fn1 Because a promise not to prosecute, without more, is not a reliable indicator of criminal involvement, it cannot be used as the predicate for an adverse evaluation of the defendant's character. This seems particularly so here, since the letter from the prosecutor to the Parole Commission made this abundantly clear. Inasmuch as it appears from the record that the district court in this case based its sentencing decision partially on the government's promise not to prosecute for certain alleged crimes, I agree that the matter should be remanded so that the defendant may be resentenced.