think good morning your honor is made please the court twenty five years ago today federal rules of criminal procedure were amended to make the sentencing recommendation subject of disclosure to the parties in the case that twenty five years the government the u s attorney office in this district has supported the disclosure and for that twenty five years the district courts in this district with one exception have acted have acted as if that amendment never was made and never existed the report the problem is in this district the probation office will not disclose the report absent a specific order authorizing disclosure which has the rule exactly backwards the rule is subject to a recommendation is subject sense of the rule says a subject of disclosure got request is made to the probation office for disclosure and it's refused and that's just contrary to the rule so you think the rule is that they automatically disclose it without telling the judge that they're going to disclose every defense attorney can simply make a motion every case doesn't cost anything that's just printed out of the computer the real question here is what happens after you file a motion well i think i think it's i think i'm correct in that argument great understand what you're saying and so i'll move want to the discretion part which is clear that the district court said the word always i believe four times and said i always denied these motions i always refused to give it and that's contrary to this court's case recommendation is supposed to be disclosed unless there's a court order in those cases it was permissible disclosure with congress that period and they in those cases the judges two different judges said no i've never disclosed that i'm not going to disclose the exact same thing the court said here and so under brian a queen and the other cases i cited clearly that was an abuse of discretion there was no discretion when this where in those cases disclosure was in this case prohibition of disclosure is the permissive part in those cases disclosure itself was permissive and yet the judge said the essentially the exact same thing which is i never release the records of the report in those cases the pre sentence report i never released that in this court said that's not discretion and the that's just a blanket refusal to release it the notes the rules say under the new provision the court has the discretion in an individual case or in accordance with a roll call rule so they seem to say there's discretion even with a local rule to direct the probation office to withhold that recommendation otherwise the recommendation is subject to disclosure so i think a local rule obviously has to be voted on by the court and if they're cornered opposite i guess it's an internal matter for the court to decide whether judges need to comply with them or not and i don't see why a judge couldn't exercise their discretion even with a local rule to disclose it but since there is no local rule here we're in the opposite position sort of thing where it's supposed to be disclose it's it violates the rule not to do that but in any event in i understand you think that's the weaker argument they would judge in this case didn't exercise discretion at all a matter of fact the reasons you gave had nothing to wrote a letter to the court to the district court and said we support disclosure and there is no evidence that the probation probation officer said that he had worked in the district and i cannot after no evidence to support the business in the probation officer safety that was the other reason the district court gave in this case that it compromised the candor of the day and also there to be ready to disclose the recommendation being sort of speak an arm of the court and the confidentiality and in twenty years later in one nine hundred ninety four they rejected that reasoning and said that it should be disclosed so i would say that first of all the district court exercised no discretion and said the word always at least four times in a second all the reasoning he relied upon has been discredited both by the advisory committee on the federal rules of criminal procedure in by the probation office itself and by the choices you could have a flat local rule right or you could exercise discretion about things that matter in an individual case so if that's a correct reading that would suggest that a local you could just have a flat or i disagree with that idea only reason i hesitate is because in the notes when they adopted this rule it says under the new provision the court has the discretion and then it goes in parentheses in an individual case or in accordance with the local r you may decline and maybe it would be the discretion of the district court whether or not to do it but just the court could say i'm always going to not do it i know there's double locks here because other words if the local court issues the rules as we we authorize our judges always to not disclose in the district court could follow that rule disclose recommendations i mean he's made them the district court for example this district court this this district judge could say well i'm an exercise my discretion the fall the local role and have to say that it's not one hundred percent clear to me that's correct because of the by local rule big direct the probation officer it says by local rule or by ordering a case i guess there could be a local rule saying that i think you're honest questions saying that it should not be disclosed in any case but or at least by local rule may direct that this court it's not by local rule in the case now you're pushing me to even policy theory that the district court adopted here that is using the probation office as part of your chambers and it's not clear to me that it totally rejects this it just doesn't adopt that as a policy and it requires either a local rule to adopt that policy or it requires a district judge to make a decision about why the policy matters in a particular case and not across the board that would get to a win in this case on the way to get to the next case but well as long as there's no local rule i mean there's a local rule on the i guess we'll have to consider that i mean back in one nine hundred seventy four and ninety four the district court said it was considering a local rule and for twenty five years it hasn't done that for amendments disclosure would seriously compromise confidentiality create risk they that's why they had the recommendation not subjected to slove but twenty years later they changed that court has relied upon misinformation unless the information is disclosed to the defendant or is counsel i think what what you have here is who knows what was in that recommendation what it said about various things and why the district judge went to that rejected the arguments whether there was anything in there about those arguments or not so i thought i would just go on what this court said in bryant which is how do you know that if the it hasn't been disclosed to the defendant just so and the other did in the brown case the court said the judge has never actually exercise discretion on pre sentence report disclosure we disclosure that can only be calm be overcome in the absence of a local rule by order in a specific case and we have agreed judge centile that the district court's order in this case is reviewed for an abuse of discretion local where at least i thought you agreed from reading your brief and that is our case law cases like dockery queen bride of these cases that i've read your brief this is accepting the idea that a district court that does is itself has to at least give the case specifically reason for doing so correct that's right you're on a ridge you think that's happened here correct right no do you agree that a district court could not disclosure here i think under queen that would be an appropriate so your case then turns on your argument that the district court here actually did give cases of these right yes sure and i can understand it's a case specific reason to have it apply in all cases but there's just a court recognized discretion in this case he said you know i think you and i just didn't make any progress it could be a case of a civic reason that applies in every case so district court says it is the same order in every case and the reason he gives is he thinks that this is necessary protect the relationship between the candor of the and the district court said that although disclosure in any particular case may not be problematic it would be a repeat disclosure that would undermine his relationship with the probation office and thus he was declining to do it here i understand  close to the line of a standing order but our office is defending the district court judge's reasoning to do so on the grounds that even though we did not oppose the defendant's motion for disclosure that we think that this report adequately recognized he had discretion and exercised it here he didn't point to anything particularly about michael lane's case that made it different from other cases but if he were required to do that that would effectively prevent him from relying on the policy rationale that he adopted which is that disclosure in some cases even if not in all that undermine his relationship and judge garland i don't think the rules efforts of the from the district court but i don't understand the argument about the form as i don't understand how somebody exercises discretion in the individual case they say my policy is that in every individual case other than to say i'm applying my policy here i don't have a lot more to say on this issue what do you think of one way to read the rule like the as i understand itself worst case specific reasons can be done but just which are so in other words under the rule the district judge doesn't have the authority to have a as sound as it might be or unsound doesn't have the authorit i suppose that's one way to read the rule you are now if the first time i thought about that so i don't have an answer as to whether it's the best way to read the rule that's actually the only way that makes sense isn't it  i'll never say it's the only way that makes sense we can't say that but it says  rule me you would need the rule that you wouldn't need this at all if there wasn't some difference between what the district court as a court was authorized to do as compared to what individual judges could do your view basically is it doesn't make any difference your view is that i think this is right is it any good order that the district court as a group decides judge's reasons the judge was very clear in saying that this defendant simply cannot and does not qualify for a time served sentence based on his criminal history and his failure to abide by conditions  previously which were two issues that the only two issues that were contested at the sentencing hearing so there was no indication given by the dish or court that he was relying on anything other this richard just said here these recommendations or importantly he did say that he did say that your honor although in the context of this case where the parties disagreement was between a bottom of the guidelines sentence of eight months and a time served sentence of four months it's sort of hard to imagine that the probation officers recommendation played any effect in the judge's decision on that very narrow disagreement particularly when he focused on the fact of the defendant's extensive criminal history and his failure to abide by conditions of release to say that a defendant who is just treated guilty to not going to a halfway house when he was ordered to do so is not entitled to a time office i think of that or a public defender of examples where the recommendation had wrong facts which would not have been known except for the judge disclosed the facts so so we just don't know i take it whether there are famous said in the recommendation that are different from ones in the d s r or highlight things or that are subjective  think there's no way to know that you aren't sure that there's no way to know what was in the recommendation and i think the examples that mr cramer play in his letter actually support a finding of harmlessness here because in those instances that this or courts have made clear that they had were relying on or had knowledge of these erroneous facts whereas here taking the district court at its word it was relying on the defendant's family history and his failure to abide by conditions of release which were in the p s r which were contested by the parties the district courts had nothing indicating that he was relying on anything outside of that and i think there's sort of the say i'm not relying on this record that's correct were reports that were disclosed so there's no way to know how many other examples might be in one of those that was a factor in the recommendation that both that wasn't disclosed and both parties recognize that it was wrong it was a crucial fact and call them to the attention of the district court in the other one of the district court actually mention something in the sentence during the sentencing that the parties realized wait a minute where did that come from and the district court eventually disclosed the recommendation and that's where it come from  the other thing i want to say is not only did the district court in this case not give any reasons why in disclosure in this individual case would harm the relationship or or would be contrary it would be in accordance with discretion or with the rule he said the exact opposite he said there's really no reason not to disclose it in this case other than there would be a cumulative effect if i disclosed it so he not only didn't point to any case specific reason that there are no case specific reasons it's a cumulative matter in the last thing i want to say is there is an essence a standing water here because the probation office will not disclose the report upon request it will only do that if the court if there is a court order and the only way to get that of course is with the exception of one judge who has a disclosed in every case is to file a motion and as i said that has the rule backwards thank you very much i will take the matter under submission thank you very much