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UNITED STATES v. PREATE

May 20, 1996

UNITED STATES OF AMERICA
v.
ERNEST D. PREATE, JR.



The opinion of the court was delivered by: RAMBO

 Before the court is PG Publishing's motion to unseal the transcript of an in-chambers conference held on October 16, 1995, and a document filed by the United States in camera on November 6, 1995. Defendant Ernest D. Preate, Jr. ("Preate") opposes the motion and the United States supports it. All three parties have filed briefs and the motion is ripe for disposition.

 I. Background

 From 1977 to 1988, Defendant Preate was District Attorney of Lackawanna County, and in January 1989 he became Attorney General of the Commonwealth of Pennsylvania. On June 13, 1995, Preate pled guilty to a one count Information which charged that he committed mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. The Information stated that while District Attorney and a candidate for Attorney General, Preate solicited illegal campaign contributions from the operators of unlawful videopoker gambling machines and failed to properly report the contributions in disclosure forms mailed to the State Board of Elections. The plea agreement required that Preate resign from his position as Attorney General.

 On October 16, 1995, the court held an in-chambers presentence conference to discuss objections by both parties to the presentence report. A court reporter transcribed the conference and inadvertently filed the transcript on the open docket. When the court learned of the inadvertent filing it ordered that the transcript be sealed.

 On November 13, 1995, PG Publishing filed the instant motion to unseal the conference transcript and the United States' in camera proffer. PG Publishing concurrently moved, without explanation, for a highly expedited briefing schedule under which the opposition brief was to be filed on November 15, 1995. The court denied the motion to expedite the briefing schedule.

 On November 17, 1995, four days after PG Publishing filed its motion to unseal, it filed an emergency petition for a writ of mandamus before the Third Circuit seeking an order unsealing the conference transcript and the United States' in camera proffer. The Third Circuit denied PG Publishing's mandamus petition on January 17, 1996. This court subsequently directed PG Publishing, Preate and the United States to brief PG Publishing's November 13, 1995 motion to unseal. *fn2" The court now turns, for the first time, to the merits of that motion. *fn3"

 II. Discussion

 On November 17, 1995, in response to PG Publishing's petition for a writ of mandamus, this court issued a memorandum which explained that the documents at issue are fundamentally interconnected with the presentence report, which is a confidential document, and as such they are also confidential. In support of disclosure, PG Publishing argues that: (1) the section of the presentence report pertinent to this case, which addresses offense conduct, is not entitled to a presumption of confidentiality; and (2) even if the entire report is confidential, that confidentiality should not be extend to the October 16 conference and the United States' November 6 proffer.

 A. Confidentiality Of Presentence Reports

 It is established beyond reasonable argument that presentence reports, in their entirety, are confidential documents and that there is a strong presumption against disclosing such reports to third-parties. See United States Dept. of Justice v. Julian, 486 U.S. 1, 12, 100 L. Ed. 2d 1, 108 S. Ct. 1606 (1987) ("Courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals.") (emphasis in original) (citing United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985); United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1173-76 (2d Cir. 1983)); United States v. Cianscewski, 894 F.2d 74, 79 n.17 (3d Cir. 1990) ("The presentence report has always been considered a confidential document."); United States v. Huckaby, 43 F.3d 135, 137-38 (5th Cir. 1995); United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989); United States v. Schlette, 842 F.2d 1574, 1578-79 (9th Cir. 1988); United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976). The court's research has disclosed no cases holding otherwise. In view of the breadth and unanimity of the forgoing authority, the court summarily rejects PG Publishing's contention that the offense conduct section of the presentence report is not confidential. *fn4"

 B. Confidentiality Of In-Chambers Conference And In Camera Proffer

 The court must now decide whether the in-chambers conference and the United States' in camera proffer fall within the scope of the presentence report's confidentiality. PG Publishing argues that to answer this question in the affirmative "would improperly extend and apply the rule of confidentiality to information disclosed through non-confidential means merely because that information is similar to information contained in a separate document that is entitled to confidentiality." (Petitioner's Supplemental Petition for Writ of Mandamus at 4.) In support of this position PG Publishing relies upon an analogy to the attorney-client privilege, noting that "while a client may not be compelled to relate his communications to ...


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