Roy Eugene Clark, Mount Vernon, Ill., for defendant-appellant.

Henry A. Schwarz, U.S. Atty., Clifford J. Proud, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before SWYGERT and WOOD, Circuit Judges, and CHRISTENSEN, Senior District Judge.1

CHRISTENSEN, Senior District Judge.

The appellant, Yates, was indicted on two counts of knowingly and intentionally possessing and distributing cocaine. He pleaded guilty to one count. After presentence investigation, probation officer's report, and hearing, the court sentenced him to imprisonment for a term of four years with a special parole term of three years to follow that confinement. The second count was dismissed. The single claim pressed on this appeal is that the sentencing judge improperly considered prejudicial hearsay evidence in determining the sentence.2 The record does not substantiate this claim.

The court had requested counsel for the defendant and the government to furnish information to the probation officer for the purposes of the presentence report. Both parties reserved the right to present directly to the court additional evidence in support or opposition to the defendant's motion for probation. At the sentencing hearing, defendant's counsel made a statement but objected to claims made by government counsel that defendant had been reported to have sold marijuana after released on bond, and that he had sold drugs to high school students. The court permitted the government to attempt to prove these assertions, but it developed that the statements were based on hearsay to the extent the proffered evidence purported to cover them.

We need not nicely weigh in this case the extent and under which circumstances hearsay evidence may be considered in the sentencing process. See, e. g., Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949); Williams v. Oklahoma, 358 U.S. 576, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959); United States v. Collins, 432 F.2d 1136 (7th Cir. 1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 625 (1971); United States v. Chewning, 458 F.2d 381 (9th Cir. 1972). Cf. United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1198, 28 L. Ed. 2d 334 (1971); United States v. Weston, 448 F.2d 626 (9th Cir. 1971). Nor is it necessary to evaluate defendant's argument that, in light of Rule 32(c)(1), (c)(3)(A), Fed.R.Crim.P., the presentence report prepared by the probation officer is to be the primary source of information on which the sentence is to be based and that there must be opportunity for a defendant to rebut claimed inaccuracies. Defendant was permitted to deny the accuracy of the hearsay statements and did not question the accuracy of the presentence report. The record indicates that in imposing sentence the court disregarded any hearsay statements or claims and acted upon the basis of the presentence report.

Although the defendant claims that the judge displayed a change of attitude toward him after hearing the hearsay testimony, the record does not bear this out. On the contrary, before the hearsay was ever mentioned, the judge had pointed out that the favorable impression he had received at the time of the initial appearance of the defendant before him had been dispelled by the presentence report.3

The record also demonstrates that any reference to the hearsay objected to by defendant was disregarded by the sentencing judge and that in arriving at the sentence he placed primary reliance upon the presentence report.4

Being well within the limits provided by law,5 based upon due consideration, and not vulnerable to the question raised,6 the sentence and judgment are AFFIRMED.

SWYGERT, Circuit Judge, dissenting.

Although prior decisions, cited by the majority, may have foreclosed defendant's arguments that his constitutional rights were violated because the information received was hearsay, the majority has misapprehended the point of Yates' argument based on Fed.R.Crim.P. 32. Rule 32(c)(1)1 directs the United States Probation Office to make a presentence investigation and to prepare a report based upon this investigation. The defendant may waive this procedure or the court may find the record sufficient in itself as a basis for sentencing. Rule 32(c)(3)(A)2 requires the judge to permit the defendant the opportunity to comment upon it and, within the court's discretion, to introduce testimony concerning factual inaccuracies.

These two sections, taken together, demonstrate a policy clearly intended by Congress, to channel all factual data considered by the judge in sentencing through the probation office and its report. There is good reason for such a policy. The probation office, which routinely handles such investigations has the expertise and disinterest necessary to evaluate information and its sources, especially hearsay. Probation officers, who regularly come into contact with such information, are in the best position to determine its value and credibility in reporting it. Further, the probation office is a much more objective filter for such information than the federal prosecutor, who presented the hearsay in this case. In fact, the district court had indicated to both parties that they should present any relevant information to the probation office. Congress, in providing this screening procedure which can be waived only by the defendant or the judge if there is sufficient information already in the record, was expressing a policy that any additional information pass through it.

Moreover, Rules 32(c)(1) and (c)(3)(A) indicate that Congress intended that a defendant have an opportunity to meaningfully challenge information received by the sentencing judge. Such a challenge can be made when the material is contained in a presentence report. It may, however, be impossible to do anything but deny a factual inaccuracy with which the defendant is confronted for the first time immediately prior to sentencing. This is especially true of hearsay where, as in the instant case, the original declarant was not even identified.

I am not persuaded that the judge here did not permit this information to influence his decision. The Government was asked at oral argument whether a sentence of four years was a normal one in the Eastern District of Illinois for such an offense. It stated that a normal sentence in the district for an offense of this type is more than four years because the offender generally has a prior criminal record. The Government never stated what a usual sentence for a person with no prior record would be in the district. At oral argument, however, it implied that this four year sentence was not usual; this implication can be found in its speculation, in response to the question, that the sentence was the result of the judge's examination of the presentence report. Before he pronounced sentence, however, the judge had also heard the damaging hearsay-on-hearsay testimony. Despite the trial judge's disavowment that he was influenced by the hearsay testimony, we are ignoring the facts as well as human nature to say that this testimony might not have had an influence perhaps a subconscious one on the sentence.

Because the procedure taken by the sentencing judge was contrary to the policy expressed by Congress in Fed.R.Crim.P. 32, I would vacate the sentence and remand the case to another judge for resentencing. In urging this disposition of the case I do not wish to indicate any reflection on the fairness of the trial judge.