United States Court of Appeals

For the First Circuit

No. 00-1740

UNITED STATES OF AMERICA,

Appellant,

v.

ALFRED CRAVEN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

Michael D. Ricciuti, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

appellant.

Stephen B. Hrones, with whom Hrones & Garrity was on brief,

for appellee.

February 6, 2001

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SELYA, Circuit Judge. In this sentencing appeal, the

government, qua appellant, protests the district court's

reliance, in granting a downward departure for extraordinary

presentence rehabilitation, on an ex parte conversation with a

court-appointed psychologist. The defendant, Alfred Craven,

resists the government's appeal and simultaneously attempts to

persuade us that the Supreme Court's recent decision in Apprendi

v. New Jersey, 120 S. Ct. 2348 (2000), demands further paring of

his sentence. Because Craven has not cross-appealed, his

Apprendi-based claim is not properly before us and we refrain

from burrowing into its merits. This leaves the government's

appeal — an appeal which requires us to consider the district

court's authority vel non to engage in ex parte discussions of

substantive matters with court-appointed experts. We conclude

that the sentencing court erred in undertaking, and then basing

its departure decision on, an ex parte communication. Hence, we

vacate Craven's sentence and remand for resentencing.

I. BACKGROUND

On June 23, 1999, Craven pleaded guilty to nine counts

arising from his involvement in a massive marijuana distribution

scheme. A series of sentencing hearings ensued. At the first

session, held on December 13, 1999, the district court

tentatively fixed the guideline sentencing range (GSR) at 235-
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293 months, based on an adjusted offense level of thirty-six

(including, inter alia, a three-level downward adjustment for

acceptance of responsibility under USSG §3E1.1) and a criminal

history category of III. Craven then lobbied for a downward

departure, asserting that he had turned his life around about a

year before his arrest (e.g., he had stopped drinking and using

drugs, obtained gainful employment, reconciled with his

girlfriend, and begun to act as a parent to his young son). In

support, he tendered letters from family and friends

corroborating this about-face.

The judge advised the parties that she intended to have

an expert "document" Craven's rehabilitation. To this end, she

entered an order directing Dr. Laurence Weisman, a psychologist,

to conduct a substance abuse evaluation and submit a report.

See 18 U.S.C. § 3552(b) (authorizing the sentencing court to

order a study of the defendant if additional information is

needed). Dr. Weisman interviewed Craven and prepared a report

concluding:

Alfred Craven is a man at a crossroads in

his life. From a chaotic and dysfunctional

background that lacked warmth, modelling and

supervision, he eased into a life of selfdestructive drug addiction and criminal

activity through which to support the

addiction. Through some innate resources

and strength, he appears to have made the

necessary commitment to self-rehabilitation,

sobriety and a productive lifestyle.
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Although he has had no formal treatment, his

claims to have lived for over a year as a

sober, contributing member of a community,

as well as his involvement in a nuclear

family as father and partner, bode well for

a successful adjustment back to society upon

his release from prison. As with any

individual attempting to overcome a

background of addiction and criminal

lifestyle, the prognosis remains guardedly

optimistic if the individual participates in

a comprehensive, longterm recovery program.

Mr. Craven appears to have demonstrated both

the willingness and capability which would

make him a good candidate to succeed.

Notwithstanding this optimistic prognosis, the

government remained skeptical about Craven's purported

rehabilitation. To help prove its point, the government

produced disciplinary records from the correctional facility in

which Craven had been detained pending disposition of the

charges against him. These records showed that during a period

of slightly less than two years, ending December 10, 1999,

Craven had committed no fewer than eighteen disciplinary

infractions. These included twice threatening correctional

officers, twice flooding his cell, fighting on four occasions,

possessing homemade alcohol, refusing to accept a housing

assignment, refusing to obey other orders, and causing various

disruptions. The records also showed that Craven had admitted

to at least eleven of the infractions, including fighting,

threatening an officer, and possessing homemade alcohol.
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The district court reconvened the disposition hearing

on March 10, 2000. At that time, it weighed Dr. Weisman's

opinions against Craven's sorry disciplinary record and

expressed concern about whether Craven's behavior while in

custody "undermine[d] Dr. Weisman's conclusions." Troubled by

that seeming paradox, the court gave Craven's lawyer additional

time to address the disciplinary violations. The court noted

that "in the absence of dealing with [those violations], I can't

depart downward."

At the third and final sentencing hearing, held five

days later, Craven's counsel did not deal with the paradox. The

district court nonetheless made two downward departures. First,

it reduced Craven's criminal history category from III to I on

the ground that the higher category overstated his criminal

past. See USSG §4A1.3, p.s. (authorizing such departures).

This step shrank Craven's GSR to 188-235 months. The government

has not inveighed against this aspect of Craven's sentence, and

we do not discuss it further.

The judge then turned to the issue of extraordinary

rehabilitation. She began her explanation by attempting to

reconcile Craven's disciplinary infractions with a finding of

rehabilitation:

I had about an hour conversation with

Dr. Weisman. First, this case began with
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the representations made both to [the

Probation Department] and to various members

of Alfred Craven's family that he had

voluntarily and successfully discontinued

his use of all alcohol and illicit

substances in August of '96. . . .

[S]uccessfully discontinuing all

alcohol and illicit substances without any

counseling, without any drug treatment,

without any efforts to get at the underlying

cause, is a very difficult thing and is

particularly difficult for someone with the

background of Mr. Craven. He had been

involved in substance abuse and addictions

since age 14, which is a very long time, and

. . . his family was, as Dr. Weisman

describes, dysfunctional, chaotic. . . .

. . . .

I faxed to [Dr. Weisman] the

disciplinary records. I was concerned the

last time, because there were extraordinary

disciplinary records for pretrial detention.

. . .

I asked him if that suggests, then,

that this rehabilitation wasn't in good

faith. And he said no. He said judges are

wrong in believing that . . . rehabilitation

. . . is a continuous unilinear,

uninterrupted pattern, and that the

observations that he had made of Mr. Alfred

Craven still are true . . . .

So, he is not at all concerned that

these would be problems of accommodation in

a prison, that are still consistent with

someone who is struggling with a very

difficult and very extensive drug addiction.

And, in fact, he said to me, it comes from

having dealt with drug addiction on your own

rather than in a structured situation with

counseling, where you're dealing with what

the causes are.
-8-

Then, invoking USSG §5K2.0, the judge departed downward on the

basis of extraordinary rehabilitation. This departure,

equivalent to two offense levels, lowered the GSR to 151-188

months. The judge thereupon imposed a sentence at the bottom of

the newly-calculated range. The government appeals the sentence

pursuant to 18 U.S.C. § 3742(b)(3).

In our ensuing discussion, we first dispose of Craven's

Apprendi-based claim. We then address the government's appeal.

II. THE DEFENDANT'S NON-APPEAL

Blithely overlooking his failure to cross-appeal,

Craven asseverates that the Supreme Court's recent Apprendi

decision calls into question the constitutionality of his

sentence. His argument goes this way: 21 U.S.C. § 841(b)(1)(D)

sets a maximum sentence of five years for controlled substance

violations involving marijuana; longer sentences can be imposed

only for specific drug quantities; and since the indictment

returned against him did not state any specific drug quantity

(although he signed a plea agreement that did), no sentence

longer than five years is permissible under Apprendi. To rub

salt in the resultant wound, Craven further argues that he must

be sentenced based on the minimum amount of marijuana

contemplated by the statute (250 grams), which, with a criminal

history category of I, would yield a maximum sentence of no
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longer than six months. See USSG §2D1.1(c)(17); USSG Ch.5, Pt.

A (sentencing table).

Craven's argument has some problematic aspects. In the

first place, Apprendi requires that "any fact (other than prior

conviction) that increases the maximum penalty for a crime must

be charged in an indictment . . . ." 120 S. Ct. at 2355. At

first blush, it is unclear whether drug quantity in this

instance increases the "maximum penalty" permitted by the

statute. Cf. United States v. Baltas, ___ F.3d ___, ___ (1st

Cir. 2001) [No. 99-1547, slip op. at 26-30] (holding Apprendi

inapplicable in heroin trafficking prosecution, even though drug

quantity not determined by the jury, because district court

sentenced defendant within the statutory maximum); United States

v. Lafreniere, ___ F.3d ___, ___ (1st Cir. 2001) [No. 99-1318,

slip op. at 14-19] (same). In the second place, an omitted

element of an offense, if not seasonably called to the attention

of the trial court, may well engender plain error review and,

therefore, not automatically require reversal. E.g., United

States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st Cir. 2000).

The problematic aspects of Craven's thesis would appear to be

particularly acute because he admitted in the plea agreement to

responsibility for 1,000 to 3,000 kilograms of marijuana and the
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statutory maximum for distributing 1,000 kilograms or more of

marijuana is life imprisonment. See 21 U.S.C. § 841(b)(1)(A).

In all events, we leave these arguments for another day

since we lack jurisdiction to decide the merits of Craven's

plaint. The district court entered judgment in this case on

April 13, 2000. The government filed its appeal on May 8, 2000.

 Craven had ten days thereafter within which to file notice of

a cross-appeal. See Fed. R. App. P. 4(b)(1)(A) (explaining that

a defendant's notice of appeal must be filed within ten days of

the entry of judgment or the filing of a government notice of

appeal, whichever last occurs). Craven did not avail himself of

this opportunity. That omission forecloses his Apprendi claim.

To be sure, an appellee may defend the judgment below

on any ground made manifest by the record. See Mass. Mut. Life

Ins. Co. v. Ludwig, 426 U.S. 479, 481 (1976) ("[I]t is . . .

settled that the appellee may, without taking a cross-appeal,

urge in support of a decree any matter appearing in the record,

although his argument may involve an attack upon the reasoning

of the lower court or an insistence upon matter overlooked or

ignored by it.") (citation omitted); Olsen v. Correiro, 189 F.3d

52, 58 n.3 (1st Cir. 1999) (indicating that a cross-appeal is

not needed "unless a party is trying to expand its rights by

modifying the judgment in some fashion"). This paradigm applies
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in criminal cases. See United States v. Lieberman, 971 F.2d

989, 996 n.5 (3d Cir. 1992). Nevertheless, a party may not seek

to revise the trial court's judgment without first filing a

timely notice of appeal.

The Supreme Court limned the basic rule three-quarters

of a century ago:

It is true that a party who does not appeal

from a final decree of the trial court

cannot be heard in opposition thereto when

the case is brought here by the appeal of

the adverse party. In other words, the

appellee may not attack the decree with a

view either to enlarging his own rights

thereunder or of lessening the rights of his

adversary, whether what he seeks is to

correct an error or to supplement the decree

with respect to a matter not dealt with

below.

United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435 (1924).

The Court reaffirmed the rule in Ludwig, 426 U.S. at 480-81. It

is fully applicable in criminal cases. E.g., United States v.

Neal, 93 F.3d 219, 224 (6th Cir. 1996) (applying the rule to bar

non-appealing criminal defendant's effort to seek judgment of

acquittal). Thus, a criminal defendant, qua appellee, may not

seek a reduction in his sentence without having filed a crossappeal.

Craven has two responses to this jurisdictional bar.

First, he makes a plea for us to hear his claim based on

judicial economy (the fact that the case is already before us on
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the government's appeal). Second, he points to cases that treat

failure to charge elements of a crime in the indictment as

jurisdictional defects that can be raised at any time.

As to Craven's first contention, any appellee could

trumpet judicial economy as a reason for allowing him or her to

attack a judgment without having filed a notice of appeal. To

accept this contention would therefore require us to turn a deaf

ear to the Court's unambiguous teachings. We are unwilling to

follow this renegade course.

Like a seldom-used ketchup bottle, Craven's second

asseveration looks full at a glance, but it is almost impossible

to get anything out of it. Craven grounds this asseveration

upon statements that, devoid of context, might appear to support

his position. E.g., United States v. Foley, 73 F.3d 484, 488

(2d Cir. 1996) ("In a criminal case, a failure of the indictment

to charge an offense may be treated as [a] jurisdictional

defect, and an appellate court must notice such a flaw even if

the issue was raised neither in the district court nor on

appeal.") (internal citations and quotation marks omitted),

abrogated on other grounds by Salinas v. United States, 522 U.S.

52 (1997). But we have warned before of the perils of wrenching

statements in judicial opinions free of their contextual

moorings and then attempting to rely on them. E.g., Liberty
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Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 752

(1st Cir. 1992).

So it is here: in each and every case that Craven

cites, the defendant was appealing his sentence. Thus, the

appellate court had jurisdiction to consider the effect of the

government's failure to include an element of the offense of

conviction in the indictment. Craven does not proffer a single

case, nor do we know of one, in which a court of appeals decided

the issue of whether elements were missing from an indictment

when the defendant had entered a guilty plea and elected not to

appeal his sentence.

To say more on this point would serve no useful

purpose. We hold, without serious question, that we lack

jurisdiction to entertain Craven's Apprendi-based claim in this

proceeding.

III. THE GOVERNMENT'S APPEAL

Because the federal sentencing guidelines are designed

to reduce the incidence of disparities, departures are the

exception, not the rule. United States v. Jackson, 30 F.3d 199,

201 (1st Cir. 1994). But that does not mean that a rote

application of the guidelines always must dictate the dimensions

of a defendant's sentence. A court may impose a sentence

outside the GSR whenever the court supportably determines "that
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there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission . . . ." 18 U.S.C. § 3553(b); see

also USSG §5K2.0 (implementing statute). 

Departure decisions are reviewed for abuse of

discretion. Koon v. United States, 518 U.S. 81, 96-100 (1996);

United States v. Martin, 221 F.3d 52, 55 (1st Cir. 2000). As

Koon explains, in deciding whether or not to depart “the

district court must make a refined assessment of the many facts

bearing on the outcome, informed by its vantage point and dayto-day experience in criminal sentencing.” 518 U.S. at 98. In

turn, the court of appeals must respect the district court's

special competence in sentencing matters. Consequently, we

afford substantial deference to most departure decisions. E.g.,

United States v. Bradstreet, 207 F.3d 76, 83-84 (1st Cir. 2000)

(deferring to district court’s determination that defendant’s

extraordinary post-sentence rehabilitation warranted a downward

departure); United States v. Amirault, 224 F.3d 9, 11-14 (1st

Cir. 2000) (affirming upward departure premised on defendant's

sexual abuse of sisters-in-law). Respect, however, does not

compel blind allegiance. Koon, 518 U.S. at 98; see also United

States v. Snyder, 136 F.3d 65, 67-70 (1st Cir. 1998) (vacating

downward departure grounded on federal/state sentencing
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disparity). Were the law otherwise, appellate review of

departure decisions would be an empty exercise.

In this instance, the government argues that the lower

court abused its discretion when it departed downward on the

basis of what it described as Craven's extraordinary presentence

rehabilitation. The government offers two main theories in

support of this argument. First, it maintains that the district

court improperly included in the sentencing calculus knowledge

gleaned during its ex parte discussion with Dr. Weisman.

Second, the government maintains that the record in this case,

with or without the fruits of the forbidden ex parte

communication, fails to sustain a reasoned conclusion that

Craven achieved the extraordinary level of rehabilitation

necessary to justify a downward departure. Craven responds that

the ex parte discourse was entirely proper, and that the record

supplies an adequate factual foundation for a finding of

extraordinary presentence rehabilitation.

Some prefatory comments are useful to place these

arguments into perspective. Ordinarily, presentence

rehabilitation is not a permissible ground for departure because

it can be factored adequately into the sentencing equation by an
1In this case, the district court gave Craven the maximum

three-level credit for acceptance of responsibility (in addition

to the downward departure for extraordinary presentence

rehabilitation).

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acceptance-of-responsibility credit.1 See USSG §3E1.1, comment.

(n.1(g)) (listing "post-offense rehabilitative efforts (e.g.,

counseling or drug treatment)" as considerations in granting an

acceptance-of-responsibility credit); see also United States v.

Sklar, 920 F.2d 107, 115-16 (1st Cir. 1990). But a datum that

is taken into account by a guideline nonetheless can form the

basis for a departure if it is "present to an exceptional

degree" or "makes the case different from the ordinary case

where the factor is present." Koon, 518 U.S. at 96. In an

appropriate case, therefore, extraordinary presentence

rehabilitation can ground a downward departure. United States

v. Whitaker, 152 F.3d 1238, 1240 (10th Cir. 1998); United States

v. Kapitzke, 130 F.3d 820, 823 (8th Cir. 1997); United States v.

Sally, 116 F.3d 76, 80 (3d Cir. 1997); United States v. Brock,

108 F.3d 31, 35 (4th Cir. 1997); Sklar, 920 F.2d at 116.

Withal, downward departures for presentence rehabilitation are

hen's-teeth rare, and our precedent makes clear that such

departures are to be granted sparingly. See Sklar, 920 F.2d at

116. "It is only the occasional instance, where time and

circumstances permit and the accused takes full advantage of
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both, that will produce rehabilitation so dramatic as to cross

the boundary." Id. at 117.

Against this backdrop, we turn to the question, broadly

stated, of whether the facts pertaining to Craven's claimed

rehabilitation, as supportably found by the district court,

qualify under this rubric. In conducting such an inquiry, we

use a three-part test. First, we evaluate whether the

circumstances cited by the sentencing court are sufficiently

unusual to justify the departure. If so, we next inquire into

whether those circumstances are adequately documented in the

record. If the departure clears these two hurdles, we then

measure its reasonableness. See United States v. Dethlefs, 123

F.3d 39, 43-44 (1st Cir. 1997); Sklar, 920 F.2d at 114.

The first two inquiries sometimes overlap and the lines

that separate them sometimes blur. This case is a paradigmatic

example of that phenomenon: because of the doubts surrounding

the propriety of the ex parte communication, the question of

whether the set of circumstances relied upon by the district

court was legally sufficient to justify a downward departure

cannot easily be separated from the question of whether the

court's findings rest upon an acceptable evidentiary foundation.

Hence, we consider the first two branches of the test in the

ensemble.
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Precedent provides some guideposts. We have twice

before been called upon to assess a defendant's efforts to purge

himself of addiction as a ground for a rehabilitation-based

departure. On both occasions, we found that the efforts fell

short. In Sklar, the defendant, after his arrest, attempted to

vanquish his drug addiction by admitting himself to a halfway

house and undertaking other rehabilitative measures. 920 F.2d

at 114. We nevertheless set aside the sentencing court's

downward departure, finding that the defendant's

accomplishments, though laudable, were not exceptional enough to

support such a hard-to-achieve departure. Id. at 117.

Similarly, in United States v. Rushby, 936 F.2d 41 (1st Cir.

1991), we concluded that the defendant's endeavors, including

his post-arrest abstinence and his enrollment in a treatment

program for substance abuse, did not warrant a rehabilitationbased downward departure. Id. at 42-43. This was so

notwithstanding other exemplary behavior on the defendant's

part, e.g., attending to family responsibilities and holding

gainful employment. See id.

Craven argues here, as he did below, that his case

differs materially from our earlier precedents because both

Sklar's and Rushby's rehabilitative efforts began post-arrest,

whereas he disavowed drugs and alcohol approximately a year
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before federal authorities apprehended him. To drive home the

significance of this distinction, Craven notes that other courts

have given this sort of sequencing weight in assessing whether

a defendant's presentence rehabilitation merits a downward

departure. E.g., United States v. DeShon, 183 F.3d 888, 889

(8th Cir. 1999) (affirming downward departure where defendant

had made radical lifestyle changes a year before his

indictment); United States v. Workman, 80 F.3d 688, 701 (2d Cir.

1996) (affirming downward departure where defendant had

completed military service honorably before his arrest).

We agree that the distinction advocated by Craven may,

on occasion, be salient. Here, however, the circumstances

effectively nullify its potential importance. The reason that

timing matters in rehabilitation cases is that a defendant who

decides independently to turn his life around likely deserves

higher marks than one who undertakes rehabilitation mainly (or

at least partially) to gain advantage in imminent criminal

proceedings. See Workman, 80 F.3d at 701 (emphasizing that

"rehabilitation was not undertaken at the spur of impending

prosecution"). But that rationale is inapplicable here: the

district court warrantably found that Craven knew the government

was "at the door" early in 1996, well before he ceased using

illicit substances and set out along the path of rehabilitation.
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Since Craven knew that he was the target of an investigation

prior to commencing his efforts at rehabilitation, the fact that

he renounced drugs and alcohol before he was actually arrested

does not serve to distinguish his situation from Sklar and

Rushby in any meaningful way.

In this case, moreover, Craven's disciplinary record

while in pretrial detention casts significant doubt over the

advisability of the downward departure. After all, overcoming

drug addiction is neither the equivalent of extraordinary

rehabilitation nor a guaranteed ticket to a downward departure

on that basis. See United States v. Herman, 172 F.3d 205, 209

(2d Cir. 1999) (finding defendant "merely a rehabilitated drug

addict, not a rehabilitated criminal"). The touchstone of

extraordinary rehabilitation is a fundamental change in

attitude. See, e.g., Bradstreet, 207 F.3d at 78-79, 83-84

(affirming downward departure for extraordinary post-sentence

rehabilitation on basis of defendant's tutoring other prisoners,

teaching adult education classes in prison, serving as prison

chaplain's assistant and clerk of prison parenting program, and

lecturing in the community on ethical perils in the business

world); DeShon, 183 F.3d at 890-92 (affirming downward departure

for extraordinary presentence rehabilitation on the basis of

defendant's genuine acknowledgment of responsibility for his
2The only reported case in which an appellate court has

affirmed a downward departure for presentence rehabilitation

based solely on overcoming addiction is United States v. Newlon,

212 F.3d 423 (8th Cir. 2000). The Newlon panel authorized a

departure where the defendant, prior to his arrest, had spent

approximately eighty-five hours in a structured treatment

program, his counselor attested to his sincere desire for a

cure, and his family noticed a marked improvement in his

demeanor. Id. at 424. Newlon is readily distinguishable from

the instant case for at least two reasons. First, Newlon's

rehabilitation occurred before the authorities zeroed in on him.

Second, no factors were present there that belied the claimed

existence of a fundamental change in attitude.

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crimes and radical alteration of his lifestyle to include

attending church four times a week, receiving continuous

counseling, and working over seventy hours a week to catch up on

bills). Craven's prison record seems inconsistent with a

fundamental change in attitude (and, thus, with the high level

of rehabilitation essential for a downward departure).2

We nevertheless hesitate to say, as a matter of law,

that Craven does not qualify for a downward departure. Both

Sklar and Rushby predate the Court's decision in Koon, and Koon

highlights the desirability of deference to the sentencing court

in such fact-sensitive judgments. Thus, although Koon may not

have changed the mode of analysis that previously prevailed in

departure cases in this circuit, e.g., United States v. Rivera,

994 F.2d 942, 950-52 (1st Cir. 1993); United States v. DiazVillafane, 874 F.2d 43, 49-52 (1st Cir. 1989), it added a gloss

that gives us pause.
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This is a highly ramified question — and one which

ought not be addressed on an uncertain record. We think that

the course of prudence is for us to leave open the question of

whether the circumstances justify a departure until we first

answer the closely related question of whether the sentencing

court acted on the basis of information that was properly before

it. We turn, then, to that inquiry.

The court below departed downward based on two key

findings. First, it concluded that Craven, on his own, gave up

drugs prior to his arrest and conquered a long-term addiction.

Second, it solicited Dr. Weisman's opinion ex parte and, based

on that opinion, found that the proliferation of disciplinary

violations did not undercut this supposed rehabilitation. The

nub of the question, then, is whether the sentencing court erred

in undertaking this ex parte contact and premising a critical

finding on information received during the ensuing conversation.

What transpired below is not disputed. At the second

of Craven’s three sentencing hearings, the district judge

struggled with the conflicting evidence on rehabilitation. She

determined that she could not grant a downward departure without

some cogent rationalization of Craven's disciplinary violations:

[Y]ou have to deal with the record in

prison, because . . . I actually haven’t

seen this in other defendants. . . . 
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If there’s an explanation, I want to

hear it. But you have to deal with this.

This is not – having surfaced this, it can’t

be ignored. . . . 

I have to deal with this and you have

to deal with it. And in the absence of

dealing with it, I can’t depart downward. .

. .

The judge gave defense counsel time to investigate the

infractions and to reconcile them, if possible, with the claim

of rehabilitation.

At the final sentencing hearing, Craven’s lawyer

provided no further explanation for the parlous disciplinary

record. The district court nonetheless departed downward for

extraordinary presentence rehabilitation based on a one-hour ex

parte conversation with Dr. Weisman. The government made a

proper contemporaneous objection to the court’s reliance on this

ex parte conversation.

On appeal, the government notes that the lawyers were

not privy to the court's conversation with the expert; that the

substance of the discussion was not placed in the record; and

that the government had no opportunity either to cross-examine

the expert or to respond to his opinions. We agree with the

government that a sentencing court may not utilize an ex parte

conversation with a court-appointed expert as a means to acquire

information critical to a sentencing determination and then rely

on that information in fashioning the defendant's sentence. We
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conclude, moreover, that the district court's violation of this

principle taints the factual basis for the departure decision

and leaves us unable to determine whether Craven’s efforts to

overcome his addiction qualify him for a downward departure.

See Martin, 221 F.3d at 58 (ending analysis upon determining

that sentencing court relied on forbidden information in

departing). We explain our thinking below.

In general, the law frowns upon ex parte communications

between judges and court-appointed experts. See Bradley v.

Milliken, 620 F.2d 1143, 1158 (6th Cir. 1980) (expressing

concern that reports of court-appointed experts were not placed

in record or made available to parties); United States v. Green,

544 F.2d 138, 146 n.16 (3d Cir. 1976) ("Generally . . . the

court should avoid ex parte communications with anyone

associated with the trial, even its own appointed expert."); see

generally 29 Charles Alan Wright et al., Federal Practice and

Procedure § 6305 (1997 & Supp. 2000) ("[E]x parte communications

between the judge and the expert . . . are discouraged."). The

reason is obvious: most ex parte contacts between a trial judge

and another participant in the proceedings risk harm, and ex

parte communications with key witnesses (such as court-appointed

experts) are no exception. To the contrary, such ex parte
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contacts can create situations pregnant with problematic

possibilities.

Nor is there any convincing reason for exempting

communications undertaken in the course of sentencing from this

general prohibition. In point of fact, the statutory provision

under which the district court recruited Dr. Weisman does not

contemplate substantive ex parte communications between the

appointer and the appointee. Rather, it requires that the

expert file with the court "a written report of the pertinent

results of the study," 18 U.S.C. § 3552(b), and the court must

ensure that the report is disclosed to the defendant, his

counsel, and the prosecutor prior to the disposition hearing,

id. § 3552(d). While the statute does not deal explicitly with

the procedure to be followed if the court requires information

over and above that contained in the original report, it follows

logically that the same or equivalent safeguards (i.e., a

written response delivered to all parties in advance of

sentencing) should obtain. Accord United States v. Blythe, 944

F.2d 356, 360 (7th Cir. 1991) (determining that section

3552(d)'s framework for review by all interested parties applies

to an addendum to the presentence report).

We hold, therefore, that if a sentencing court desires

additional information from a court-appointed expert, it must
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either (1) make a written request for a supplemental report and

provide that supplemental report to the parties in accordance

with the procedure described in 18 U.S.C. § 3552(d), or (2)

bring the expert into court to be questioned in the presence of

the parties. Such an even-handed approach not only honors what

we believe to be the intent of the drafters of section 3552, but

also fits neatly with the prevailing view as to how courts

should communicate with court-appointed experts on matters of

substance. E.g., Bradley, 620 F.2d at 1158 (opining that "if

any experts are employed to advise the district court . . . they

shall prepare written reports, copies of which shall become part

of the record and shall be made available to all parties or

their attorneys"); Green, 544 F.2d at 146 n.16 (observing that

the most appropriate way for a court to talk with its appointed

expert would be through "an on-the-record conference in chambers

or an on-the-record conference call so that counsel for all

parties may participate"); Joe S. Cecil & Thomas E. Willging,

Court-Appointed Experts: Defining the Role of Experts Appointed

Under Federal Rule of Evidence 706, at 91-92 (1993) ("If the

judge and the expert expect to confer in person . . .

[r]epresentatives of the parties can be invited to attend the

conference or . . . a record of the discussion can be forwarded

to the parties.").
3We hasten to add that not every ex parte contact between a

judge and a court-appointed expert automatically will result in

reversal. E.g., Green, 544 F.2d at 146. Here, however, the

risk of taint runs high: the court relied heavily on its ex

parte communication with Dr. Weisman to ground the downward

departure.

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The court below acted in a manner inconsistent with

this prudential rule and therefore erred. On the record before

us, we conclude that the error cannot be deemed harmless.3 We

base this determination on several factors.

First, the ex parte conversation dealt with a

substantive sentencing matter (whether Craven's rehabilitation

could be considered extraordinary given his prison disciplinary

record). Second, the conversation was plainly determinative of

the court's decision to depart. Indeed, like a pearl around a

grain of sand, the decision anent the proper sentence to be

imposed was formed around the impermissible ex parte

conversation. Third, since the court sentenced Craven

immediately after it revealed that it had spoken with Dr.

Weisman ex parte, the government had no realistic opportunity to

challenge the expert's conclusions by cross-examination or

otherwise. Fourth, and finally, there is no contemporaneous

record of the conversation — only the district court's oral

summary of its contents — thereby complicating harmless-error

review.
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Let us be perfectly clear. We do not doubt the trial

judge's good intentions — but in her zeal to collect all

possible information without further delaying the disposition

hearing, she went too far. Under the circumstances that obtain

here, we cannot permit the tainted departure to stand. The

sentence must be vacated and the case remanded for resentencing.

This determination does not end our odyssey. The

question remains whether the remand should be to the same or a

different judge. Engaging in ex parte communications with

court-appointed experts need not inevitably require a judge's

disqualification, but such conduct sometimes can lead to that

result. See Edgar v. K.L., 93 F.3d 256, 262 (7th Cir. 1996)

(per curiam) (ordering disqualification where the ex parte

discussions with court-appointed experts touched on the merits

of the dispute and were not justified by any exigent

circumstances). The Seventh Circuit's rationale applies here.

When a judge receives information that does not enter the

record, the reliability of that information may not be tested

through the adversary process. Id. at 259 (noting that "[o]ffthe-record briefings . . . leave no trace in the record" and

"[w]hat information passed to the judge, and how reliable it may

have been, are now unknowable"). Moreover, it is difficult, if

not impossible, for a judge, no matter how sincere, to purge
-29-

that information from her mind — and, equally, to maintain the

perception of impartiality.

These concerns crest in the criminal sentencing

context. See generally United States v. Tavano, 12 F.3d 301,

305 (1st Cir. 1993) (remarking that "a court must take pains to

base sentencing judgments upon reliable and accurate

information"). The level of concern is heightened even further

where, as in this case, the information gleaned ex parte was

incontrovertibly the basis for the sentencing decision.

Finally, were we to remand this case for resentencing by the

same judge, we believe that it would be surpassingly difficult

for her to disregard the guidance that she previously received

from Dr. Weisman. For these reasons, we direct that the case be

reassigned to a new trier. See United States v. Curran, 926

F.2d 59, 64 (1st Cir. 1991) (remanding to a different judge for

resentencing where the sentencing judge considered victim

letters that were neither included in record nor made available

to the defense); cf. United States v. Berzon, 941 F.2d 8, 20

(1st Cir. 1991) (directing sentencing judge to step aside on

remand for resentencing if he had relied on improperly obtained

information during original sentencing hearing).

IV. CONCLUSION
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We need go no further. Since Craven did not file a

cross-appeal, we lack jurisdiction over his attempted attack on

his sentence and do not pass upon its merits. We do have

jurisdiction, however, over the government's appeal. In that

regard, we annul the downward departure for extraordinary

presentence rehabilitation, vacate the sentence, and remand for

resentencing before a different judge.

Vacated and remanded.