the statute and crime in question, and considering the purposes of the statute as discussed in Feola, the application of the specific intent requirement would defeat the dual purpose of the statute. If a person acts in a manner which is assaultive toward a federal official, without specifically intending harm or the apprehension of imminent harm, the official still would be impeded in the performance of his official duties; rejection of criminal culpability in this instance due to the heightened intent element defeats the other purpose underpinning the statute.
More importantly, a holding that assault under § 111 is a specific intent crime is inconsistent with the Supreme Court's holding in Feola. Specific intent to violate § 111 would mean the intent to prevent the harms prohibited: (1) impeding performance of official duties or (2) harm, attempted harm, or apprehension of imminent harm in the performance of official duties. The Supreme Court held in Feola that knowledge of official status is not required under § 111. If a person does not know of a victim's official status, the person cannot be attempting to bring about the result (harm in the performance of official duties) which is proscribed. Yet they are still criminally culpable, meaning that it must be the intent to commit the proscribed act which forms the criminal intent.
Finally, and perhaps most importantly of all, a complete absurdity would result from defendant's interpretation of the statute. The defense of voluntary intoxication applies to specific intent crimes because the intoxication negates the mens rea. If the level of intent for a § 111 violation is specific intent, then the defense would apply to assaults by prisoners on corrections officers. It is incomprehensible that inmates could attack guards and be within the bounds of the law so long as they (the inmates) are drunk at the time of the attack. Yet defendant's interpretation would countenance such an absurd result.
In short, we hold that assault on a federal official in violation of 18 U.S.C. § 111 is a general intent crime to which the defense of voluntary intoxication is inapplicable. Defendant's proffered evidence was neither material nor favorable to a valid defense, and the petition for a writ of habeas corpus ad testificandum was denied.
V. WAIVER OF THE RIGHT TO THE APPOINTMENT OF COUNSEL
As discussed above, jury selection was scheduled originally for May 31, 1994. The court scheduled a hearing on Jennings' motion for the appointment of new counsel, a motion made on the eve of jury selection. After the court ruled that Jennings had failed to state a valid reason for the substitution of counsel, but before the court could begin a colloquy on Jennings' desire to proceed pro se,8 Jennings turned on his court-appointed counsel. The punch delivered to counsel sent him to the floor and caused minor physical injury.
Jennings then was removed from the courtroom.
While counsel offered to wait upon the court's ruling on his motion to withdraw, the court deferred ruling on the motion while counsel sought a medical examination and treatment. Counsel later was informed that the motion would be granted, and counsel was not required to appear further. On June 1, 1994, the court put on the record our ruling that counsel's motion to withdraw was granted, and that Jennings had waived the right to the appointment of new counsel by his conduct. It was then that Jennings began his threatening conduct and was removed from the courtroom for selection of the jury.
A. The Right to Appointed Counsel
It is axiomatic that an indigent defendant has the right to appointed counsel and to be informed of that right. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1965). The right of an accused to effective assistance of counsel, however, does not extend to the appointment of counsel of choice, or to special rapport, confidence, or even a meaningful relationship with appointed counsel. Morris v. Slappy, 461 U.S. 1, 13-14, 75 L. Ed. 2d 610, 103 S. Ct. 1610 (1983); Siers v. Ryan, 773 F.2d 37, 44 (3d Cir. 1985) (citing Davis v. Stamler, 650 F.2d 477, 479-480 (3d Cir. 1981)), cert. denied, 490 U.S. 1025 (1989). There is no right to counsel who will blindly follow the defendant's instructions. United States v. Dawes, 874 F.2d 746, 748 (10th Cir.), reh'g denied, cert. denied, 493 U.S. 920, 107 L. Ed. 2d 264, 110 S. Ct. 284 (1989), coram nobis granted on other grounds, 895 F.2d 1581 (10th Cir. 1990). Moreover, a defendant may not manipulate the right to counsel, or the right to self-representation, in order to delay or disrupt a trial. Berry v. Lockhart, 873 F.2d 1168, 1171 (8th Cir. 1989); United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989); United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487 U.S. 1211, 101 L. Ed. 2d 895, 108 S. Ct. 2858 (1988); United States v. Thier, 801 F.2d 1463, 1471 (5th Cir. 1986), modified on denial of reh'g, 809 F.2d 249 (1987). In a slightly different context, the Supreme Court noted, "The right of self-representation is not a license to abuse the dignity of the courtroom." Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 581 n. 46, 95 S. Ct. 2525 (1975) (referring more specifically to a disruptive or obstructionist defendant).
The Third Circuit Court of Appeals has reviewed cases in which a criminal defendant's attempt to substitute counsel or proceed pro se would delay the trial. In one case, the Court held,
Where, on the eve of trial, a defendant seeks new counsel, or, in the alternative, opts to represent himself, the district court must engage in two lines of inquiry. First, the court must decide if the reasons for the defendant's request for substitute counsel constitute good cause and are thus sufficiently substantial to justify a continuance of the trial in order to allow new counsel to be obtained. If the district court determines that the defendant is not entitled to a continuance in order to engage new counsel, the defendant is then left with a choice between continuing with his existing counsel or proceeding to trial pro se, thus bringing into play the court's second stage of inquiry. Since the decision to proceed pro se involves a waiver of the defendant's sixth amendment right to counsel, the district court then has the responsibility of ensuring that any decision by the defendant to represent himself is intelligently and competently made. . . .
United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982) (citation omitted). Reasons which may constitute "good cause" for the substitution of counsel which delays trial may include a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with his attorney which leads to an apparently unjust verdict, as well as the timeliness of the motion. Welty, 674 F.2d at 188; see also United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992) (citing, inter alia, McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 72 L. Ed. 2d 177, 102 S. Ct. 1773) (1982)).
The Third Circuit reaffirmed its holding in Welty in McMahon v. Fulcomer, 821 F.2d 934 (3d Cir. 1987), and added, "Certainly 'there is no absolute right to a particular counsel,' . . . and the right to chose [sic] a particular lawyer 'must be balanced against the requirements of the fair and proper administration of justice.'" McMahon, 821 F.2d at 942 (citation omitted).
Finally, the Third Circuit has held that there was no good cause shown for the substitution of counsel where the reasons expressed by the defendant, without further substantiation, were that counsel had exhibited a lack of enthusiasm for the case and was inadequate in dealing with the issues of the case. Govt. of the Virgin Islands v. James, 934 F.2d 468, 470-471 (3d Cir. 1991) (relying upon Welty).
The general proposition we apply to Jennings' conduct was stated eloquently yet concisely by the Court of Appeals for the Fifth Circuit: "The right to assistance of counsel, cherished and fundamental though it be, may not be put to service as a means of delaying or trifling with the court." United States v. Fowler, 605 F.2d 181, 183 (5th Cir.), reh'g denied, 608 F.2d 1373 (5th Cir. 1979) (table), cert. denied, 445 U.S. 950, 63 L. Ed. 2d 785, 100 S. Ct. 1599 (1980).
B. Substitution of Counsel
In seeking the removal of counsel, Jennings represented to the court that he and counsel disagreed over the defense to be presented. In particular, Jennings objected to the fact that there had not been a notice of insanity defense filed pursuant to Fed. R. Crim. P. 12.2(a), the defense of insanity thereby being waived. For his part, counsel informed the court that Jennings had not told him to file a notice of insanity defense, nor did he believe that a defense of insanity would have any merit. Jennings' basis for presentation of an insanity defense was the stress he claimed to feel from the alleged threats from corrections officers.
The court agreed with counsel that Jennings' claim, even if the facts underlying it were true, did not constitute a meritorious defense of insanity. A criminal defendant asserting insanity as a defense has the burden of proving that "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17. Jennings proffered no basis for believing that he suffers from a severe mental disease Or defect, nor that he was unable to appreciate the nature and quality or the wrongfulness of his conduct on February 18, 1993.
Counsel did represent to the court, however, that Jennings had discussed with him the stress and tension he allegedly had felt. It was based upon these discussions that counsel had pursued the self-defense claim, reasoning that the threats constituted sufficient duress to make Jennings feel the need to protect himself. Indeed, had Jennings produced some evidence of the imminence of an attack on himself, the duress evidence would have been material to make his belief in the need for physical resistance reasonable.
Regardless, feeling frightened by threats does not make a person insane (actually, the reaction is completely rational), and counsel was correct that the defense had no merit without a considerably more substantial basis. Cf. McQueen v. Blackburn, 755 F.2d 1174, 1178-1179 (5th Cir.)(defendant's insistence on dismissing appointed counsel unreasonable when defendant wanted counsel to follow defendant's instructions blindly, rather than proceed in counsel's own well-considered manner, and attorney defended client "ably and tenaciously"), cert. denied sub nom. McQueen v. Maggio, 474 U.S. 852, 88 L. Ed. 2d 125, 106 S. Ct. 152 (1985).
To all of the foregoing, it should be added that Jennings' attempt to substitute counsel was a transparent attempt to use the right to counsel to manipulate the judicial system and delay trial. It is part of a pattern of attempts at manipulation by inmates of USP-Lewisburg appearing before the court.
In United States v. Ron Moore and Carlos Johnson, 4:CR-92-0322, the defendants attempted an attack on their court-appointed counsel in the marshals' holding cell. The attempted attack followed an unjustified motion for the removal of Ron Moore's appointed counsel. Unable to reach counsel through the restraining barriers in the holding cell, those defendants spat upon and threatened the life of counsel. The court thereafter allowed counsel to withdraw, but only after Moore waived the right to counsel and asserted his right to proceed pro se, an election he was entitled to make without taking the described action against counsel.
This pattern of attempted manipulation by USP-Lewisburg inmates has continued. In fact, three USP-Lewisburg inmates were scheduled to select juries on May 31, 1994. All three moved, on the eve of jury selection, for substitution of counsel and for the filing of notices of insanity defenses. United States v. Eddie Jennings, No. 4:CR-94-0018 (the instant case); United States v. Stephen G. Rollins, No. 4:CR-94-037 (possession of prohibited objects); United States v. Goldberg, 855 F. Supp 725 (forging the signature of a magistrate judge and making a false statement). None of these inmates had a substantial basis to move to substitute counsel.
Certainly, the fact that one or more inmates has filed a frivolous motion for the substitution of counsel does not indicate that no inmate from the same institution is entitled to new counsel. We cite these numerous cases of identical, frivolous motions which, if granted, would delay and disrupt the efficient administration of justice, only to underline the rationale for careful scrutiny of these motions to ensure that good cause exists for the substitution of counsel and ensuing delay of trial.
C. Waiver of Counsel
We have noted that a court has the responsibility to ensure that a waiver of counsel is intelligently and competently made. Welty, supra. This fundamental rule applies when the defendant asserts the right to proceed pro se, since exercise of this right necessarily entails a waiver of the right to appointed counsel.
There are, however, instances in which an accused waives by implication the right to be represented by counsel. Deleterious or manipulative conduct on the part of an accused also may amount to a waiver of the right to be represented by counsel. See, e.g. United States v. Fazzini, 871 F.2d 635 (7th Cir.) (defendant's failure to cooperate with four successive attorneys appointed to represent him constituted waiver of right to counsel), cert. denied, 493 U.S. 982, 107 L. Ed. 2d 518, 110 S. Ct. 517 (1989); United States v. Mitchell, 777 F.2d 248 (5th Cir. 1985) (defendant waived his right to counsel when, in bad faith and for purpose of delay, defendant retained counsel known to have a conflict of interest and failed to retain other counsel), cert. denied, 476 U.S. 1184, 91 L. Ed. 2d 549, 106 S. Ct. 2921 (1986); Richardson v. Lucas, 741 F.2d 753 (5th Cir. 1984) (refusal of defendant to allow any public defender, regardless of competence, to represent him was waiver of right to counsel); United States v. McFadden, 630 F.2d 963 (3d Cir. 1980) (defendant waived right to counsel by attempting to direct, rather than cooperate with, two attorneys appointed to represent him, by firing those attorneys, by indicating an intent to proceed pro se, and by failing to join in a continuance, required due to operation of the Speedy Trial Act, for the appointment of new counsel), cert. denied, 450 U.S. 1043, 68 L. Ed. 2d 241, 101 S. Ct. 1763 (1981).
Of course, in none of the cases cited above did the circumstances of the waiver reach the egregious level attained by Jennings. Viewed literally, Jennings struck a blow at his attorney; figuratively, he struck a blow at the orderly and efficient administration of justice, and at the heart of justice itself. No court can carry on its business in an atmosphere of violence, fear and intimidation. As defense counsel aptly stated, if he were to continue to represent Jennings, he would be left with the constant fear of saying the wrong thing or taking the wrong action.
Even more, the threat of violence would affect decisions made by the prosecuting attorney and could reach the bench itself. Witnesses and jurors could be intimidated. Even more, the public perception of the courts would be irrevocably altered, no longer as a place where fairness and justice govern and individual liberties are protected, but to a place where might makes right.
Federal courts are isolated from political influence by the separation of powers doctrine and the appointment, rather than election, of judicial representatives. Just as the courts must be free from the influence of political might, so too they must be isolated from physical might and the threats which that might represents. No civilized society can accept the threatened or actual use of force within its courts and expect those courts to operate effectively or fairly for all parties involved.
Having decided that the use of physical force within the walls of the courthouse simply is unacceptable, the question remains how to react to the use of violence as a means for gaining a favorable ruling or other advantage in the course of litigation.
As reflected in the opinions cited above concerning the manipulation of the right to counsel, the most appropriate response to this tactic is to refuse to allow the manipulation, in the sense that the defendant should not be provided with the advantage sought. In this case, this response clearly is the most appropriate, based upon the gravity of Jennings' conduct. Violence in the courtroom cannot be countenanced, and it is appropriate, when the violence is a part of a manipulation of the right to appointed counsel, simply to deprive the defendant of that right.
Even when the violence is not part of a manipulation, it is appropriate to remove from a defendant's reach that which he has sought to harm or that which he has misused or abused, i.e. his attorney. Since the defendant has demonstrated that he cannot be trusted to respect the physical well-being of an attorney, no substitute counsel should be appointed, even assuming that there would be an attorney willing to accept the appointment.
Of course, it can be argued that the court has not inquired, prior to deeming the right to counsel waived, whether the waiver is knowing and intelligent. The answer to this is that the court is unable to make a preliminary determination when the timing of the waiver is determined by the defendant.
We are aware that deeming the right to counsel as waived by the conduct of a defendant is an extreme sanction. However, the conduct of Jennings in this instance was extreme and outrageous. The sanction chosen is appropriate under the circumstances and is commensurate with both the nature and extent of Jennings' conduct. In this way, the sanction is analogous to other situations in which sanctions are imposed. See, e.g., Fed. R. Civ. P. 11(c)(2)(party who files a frivolous pleading or motion pays the cost of responding to the pleading or motion or amount sufficient to deter repetition of the conduct); Fed. R. Civ. P. 26(g)(3), 30(d)(2), 30(g)(2), 37(a)(2)(A), 37(a)(4) (party who abuses discovery process may be ordered to pay costs associated with the abuse); Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994) (sanctions may be imposed on a party responsible for the spoliation of evidence ranging from admission at trial of evidence of the "spoliation inference" to preclusion of key evidence, depending on the degree of fault of the responsible party).
We also recognize that other forms of sanction exist, such as the use of the contempt power. In Jennings' case, however, the use of the contempt power would be futile. Jennings is an indigent inmate, serving a life sentence, so that the threat of fines or incarceration would have no effect upon him. This point was brought home by Carlos Johnson who, during the trial with codefendant Ron Moore discussed above, was threatened with contempt due to misconduct before the court. The reaction of Johnson was, to paraphrase, "What are you going to do, throw me in jail?" These inmates already experience the most restrictive form of incarceration provided by the BOP, and an order directing further incarceration would be to no avail in deterring repetition of their misconduct.
In short, then, Jennings' conduct was, at an absolute minimum, unacceptable: it was a threat to the operation of the judicial system and the public confidence therein. The response taken by the court was a measured response to the conduct. It removed from Jennings' control that which he sought to abuse physically and misuse legally. And it is a means, perhaps the only means, of deterring repetition of the conduct by Jennings or others similarly situated. We hold that an indigent defendant who, without provocation or justification, physically assaults court-appointed counsel, thereby waives the right to appointed counsel. Counsel will be removed by the court, no substitute counsel will be appointed, and the defendant will proceed pro se.
VI. Absence from the courtroom during Jury Selection
On June 1, 1994, Jennings was informed of the ruling by the court that he had, by his conduct, waived the right to counsel, that no substitute counsel would be appointed, and that he would proceed pro se. As discussed at length above, Jennings' reaction was a tirade and threats against his former counsel, corrections staff, and the prosecutor. The jury panel was not present during this outburst. The court then asked Jennings if his conduct would continue in the presence of prospective jurors, and Jennings indicated that it would. Jennings therefore was removed from the courtroom.
Because Jennings was acting as his own attorney, however, his absence from the courtroom in effect would be a jury selection in absentia. Therefore, the court arranged for the wiring of the sound system in such a manner that Jennings could hear the proceedings from the holding cell in the marshal's office, to which he had been removed. Also, Deputy Marshal Montville was sworn to ensure that he would relay faithfully messages from the court to Jennings, and vice versa. Jennings also was provided with a list of the jury panel, and was offered paper and writing utensils. In this way, Jennings was provided with the ability to participate in the proceedings without his behavior affecting the safety and decorum of the courtroom.
Throughout the proceedings, the court sent messages to Jennings for the purpose of determining whether he wished to participate in the proceedings. Jennings' initial reaction was to throw water at the speakers through which the proceedings could be heard. He refused to take the list of names comprising the jury panel. Jennings also repeatedly indicated his refusal to participate further, and at one time threatened to throw a cup of urine at the marshal when he brought a message from the court. Jennings later simply refused to respond meaningfully to the inquiries of the marshal and to the court.
Based upon all of this unruly conduct, the court was unable to elicit from Jennings in any meaningful manner his desires regarding the selection of jurors. The court therefore struck jurors in place of Jennings, beginning with the last names drawn.
Under Fed. R. Crim. P. 43(a), the presence of a criminal defendant at the impaneling of the jury is required, subject to the other provisions of the rule. This provision of Rule 43(a) serves two major purposes: (1) it allows the defendant to give advice or suggestions to his lawyer concerning the jury panel; and (2) it allows the defendant to exercise effectively his peremptory challenges. United States v. Camacho, 955 F.2d 950, 953 (4th Cir. 1992) (citations omitted), cert. denied, 126 L. Ed. 2d 470, 114 S. Ct. 571 (1993). The defendant's absence from the impaneling of the jury frustrates the fairness of the trial. Id. Cf. United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir. 1980), cert. denied, 451 U.S. 949, 68 L. Ed. 2d 334, 101 S. Ct. 2031 (1981).
Rule 43, however, goes on to state an exception to this general rule, allowing the court to remove from the courtroom a defendant who persists in disruptive conduct. Rule 43(b)(2).
Jennings was disruptive at the time of the hearing on his motion for the substitution of counsel, continued his disruptive behavior, was warned that persistence in such conduct would warrant removal from the courtroom, and persisted in his unruly conduct. The removal from the courtroom therefore was consistent with Rule 43.
Jennings was not, however, barred from participating in the proceedings. His own conduct, not any limitation placed by the court, prevented his participation in the jury selection process. Jennings' absence from and failure to participate in jury selection on June 1, 1994, did not violate either Rule 43 or the Due Process Clause. Cf. Camacho, 955 F.2d at 952-953 (citing United States v. Gagnon, 470 U.S. 522, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985) (per curiam); Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975)).
VII. IMPOSITION OF SENTENCE
After the jury verdicts were returned, the court excused the jury and proceeded immediately to sentencing. Neither the government nor Jennings objected to this course of action, despite a specific inquiry from the court. This section of the instant memorandum is intended both to memorialize the rationale for immediate sentencing and to make the findings requisite for our chosen course of action.
A. Time of Sentencing
Under the Federal Rules of Criminal Procedure, sentence is to be imposed by the court "without unnecessary delay." Fed. R. Crim. P. 32(a)(1). Delays are necessary "when there is a factor important to the sentencing determination that is not then capable of being resolved. . ." Id. Generally, before imposing sentence, the court is required to: (1) direct that a presentence investigation report be prepared, Rule 32(c)(1); (2) provide a copy of the presentence report to the defendant, counsel for the defendant and counsel for the government, Rule 32(c)(3)(A), 32(a)(1); (3) allow an opportunity to the defendant and defense counsel to review and discuss the report and respond thereto, Rule 32(a)(1)(A), (B); (4) allow counsel to speak on behalf of the defendant, Rule 32(a)(1)(B); permit the defendant his right of allocution, Rule 32(a)(1)(C); and allow counsel for the government an opportunity to address the court, Rule 32(a)(1).
There is an exception to the requirement that a presentence investigation report be prepared when "the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. [§ ] 3553, and the court explains this finding on the record." Rule 32(c)(1).
After the verdicts were returned and the jury excused, we indicated our intent to proceed immediately to sentencing and waive the preparation of a presentence investigation report because a report had been prepared approximately one year before, related to No. 4:CR-92-204-01. Jennings having been incarcerated in the interim, his circumstances, at least those material to the imposition of sentence, would not have changed substantially. Although some findings were placed on the record at that time, for the sake of clarity and completeness, we set forth the following findings in full.
B. Findings by the Court
THE COURT MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS:
1. Defendant Eddie Jennings is currently serving a life sentence, subject to parole, for the murder of a bank security guard in connection with a bank robbery.
At the time defendant pled guilty to the bank robbery with killing, he also pled guilty to kidnapping, robbery, rape, and oral copulation, and was sentenced to a concurrent fifteen-year sentence.
2. Defendant has continued in a pattern of violent behavior, including the charges for which defendant was sentenced on February 18, 1993,
the unprovoked attack against court-appointed counsel on May 31, 1994, and the charges of which defendant was found guilty on June 7, 1994.
3. On June 1, 1994, prior to jury selection in the above-captioned case, defendant threatened to do physical harm to the Assistant United States Attorney prosecuting the case, to corrections officers at the United States Penitentiary at Lewisburg, Pennsylvania, and to former defense counsel.
4. Due to defendant's unruly and disruptive behavior, he was removed from the courtroom and placed in a holding cell in the United States Marshal's office. See Fed. R. Crim. P. 43(b)(2).
5. Defendant was able to hear the jury selection proceedings in the holding cell, and was given an opportunity to participate by the court.
6. Defendant's reaction to the opportunity to participate was further unruly behavior, including throwing water at the speaker through which the courtroom proceedings could be heard, directing foul language at the marshal who relayed messages from the court to defendant, and threatening to throw a cup filled with urine at the marshal.
7. Defendant poses a serious physical danger to any person in close proximity to him, based upon his past assaultive behavior, his threatening demeanor, and a clear, present ability to carry out threats of harm.
8. Presentation of the case to the jury in the instant matter began and ended on June 7, 1994, in the Federal Building, Williamsport, Pennsylvania.
9. Defendant participated in the trial on June 7, 1994, acting as his own attorney, and was transported without incident to and from the courthouse.
10. A presentence investigation report was prepared prior to defendant's sentencing in No. 4:CR-92-204-01.
11. The factors underlying defendant's sentence in No. 4:CR-92-204-01 have not changed significantly due to defendant's intervening incarceration.
12. Due to defendant's waiver of the right to counsel, due to the serious physical threat presented by defendant, and due to the relatively recent preparation of a presentence investigation report, the preparation of a new presentence report would be a meaningless, unnecessary and risky exercise, in that:
(a) Defendant's aggressive demeanor and behavior, coupled with his ability to carry out previously-expressed threats, would place the probation officer conducting the interview at great personal risk, as well as creating risk for corrections officials at the time of the interview;
(b) The presentence report previously prepared may serve the same purpose as any newly-prepared report.