[00:00:04] Speaker ?:
said, United States of

[00:00:15] Speaker 02:
Good morning, Your Honors.

[00:00:16] Speaker 02:
May it please the Court.

[00:00:17] Speaker 02:
Twenty-five years ago, the federal rules of criminal procedure were amended to make the sentencing recommendation subject to disclosure to the parties in the case.

[00:00:27] Speaker 02:
For that twenty-five years, the government, the U.S.

[00:00:29] Speaker 02:
Attorney's Office in this district, has supported the disclosure.

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And for that twenty-five years, the district courts in this district, with one exception, have acted as if that amendment never was made and never existed.

[00:00:43] Speaker 02:
the report, the sentencing recommendation.

[00:00:46] Speaker 02:
But the rule does not make it mandatory to release the recommendation.

[00:00:49] Speaker 02:
The rule did not make it mandatory.

[00:00:50] Speaker 02:
It made it permissive for the district court either by local rule, which doesn't apply in this case, or by order in a specific case, not to disclose it.

[00:00:59] Speaker 02:
The problem is, in this district, the probation office will not disclose the report absent a specific order.

[00:01:06] Speaker 02:
authorizing disclosure, which has the rule exactly backwards.

[00:01:11] Speaker 02:
The rule is subject, the recommendation is subject to disclosure.

[00:01:14] Speaker 01:
Does it make any difference in this case?

[00:01:17] Speaker 01:
You made a point in your brief that you had to move to get it, but there's lots of things you're entitled to in the law that you have to move to get them.

[00:01:26] Speaker 01:
That doesn't really mean anything, does it?

[00:01:28] Speaker 02:
It does in the sense of the rule says it's subject to disclosure, a request is made to the probation office for disclosure, and it's refused.

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And that's just contrary to the rule.

[00:01:38] Speaker 04:
So you think the rule is that they automatically disclose it without telling the judge that they're going to disclose it?

[00:01:44] Speaker 02:
No, they could, there's many ways it could be done.

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They could say to the judge, the report is ready.

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Is there a reason in this case why you do not want it disclosed?

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I think that's the procedure the rule envisioned when it was enacted.

[00:01:58] Speaker 02:
It's not for you to think that.

[00:02:00] Speaker 02:
Pardon me?

[00:02:00] Speaker 02:
It's not for you to think that, but the rule doesn't say that.

[00:02:03] Speaker 02:
Well, the rule says that

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By local rule, the court may direct the probation officer not to disclose the report.

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Otherwise, in the... Read the rest of it.

[00:02:13] Speaker 02:
Pardon me?

[00:02:14] Speaker 02:
Read the rest of it.

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To anyone other than the court, the officer's recommendation on the sense, by local rule or by order in a case, the court... By order in a case.

[00:02:24] Speaker 01:
Right, but the... But when you once you made your motion, Judge said what he did on the record, is that not the equivalent of an order?

[00:02:32] Speaker 02:
Well, it was in order, but they never should have to be in motion.

[00:02:36] Speaker 04:
I understand why you would emphasize this part of your argument.

[00:02:40] Speaker 04:
It seems like the absolute weakest part and sort of irrelevant because every defense attorney can simply make a motion in every case.

[00:02:48] Speaker 04:
It doesn't cost anything to just print it out of the computer.

[00:02:51] Speaker 04:
The real question here is what happens after you file the motion?

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I'm correct in that argument, but I understand what you're saying.

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And so I'll move on to the discretion part, which is clear that the district court said the word always, I believe, four times and said, I always deny these motions.

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I always refuse to give it.

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And that's contrary to this court's case law and Brian and Queen.

[00:03:16] Speaker 01:
But they were not dealing with the recommendation.

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Brian and Queen were not, were they?

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No, they were dealing with different sections of Rule 32.

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But the same thing, the same sense of was pro.

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The recommendation is supposed to be disclosed unless there's a court order.

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In those cases, it was permissive.

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Disclosure was permissive, period.

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And in those cases, two different judges said, no, I never disclose it.

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I'm not going to disclose it.

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The exact same thing the court said here.

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So under Brian and Queen and the other cases I've cited, clearly that was an abuse of discretion.

[00:03:57] Speaker 01:
There was no discretion.

[00:04:08] Speaker 01:
never disclosed them, right?

[00:04:11] Speaker 01:
Right?

[00:04:12] Speaker 02:
I think it's unclear how far that rule can go.

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But in any event, there is not a local rule in this case.

[00:04:18] Speaker 01:
There's not a local rule.

[00:04:20] Speaker 01:
But if there were a local rule, you wouldn't have a requirement for a statement of reasons in the rule that doesn't say that in the criminal rule.

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That is true.

[00:04:30] Speaker 01:
Yeah.

[00:04:30] Speaker 01:
That is true.

[00:04:31] Speaker 01:
But there is.

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So why can you say that it is clear that there has to be a statement of reasons, as it were,

[00:04:38] Speaker 01:
in the case of an order that stops the closing of the secret case?

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Well, I think it's really indistinguishable from Brian and Queen, where

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In those cases, disclosure was, in this case, prohibition of disclosure is the permissive part.

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In those cases, disclosure itself was permissive, and yet the judge said essentially the exact same thing, which is I never released the record, the report in those cases, the pre-sentence report.

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I never released that, and this court said that's not discretion, and that's just a blanket refusal to release it.

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And so,

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And the court could pass a local rule like you talked about, Judge Sintel, but they haven't for whatever reason.

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If two of them decided we shall not disclose the reason anymore, they could adopt the rule and none of them would be disclosed for that given reason.

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But if they didn't coalesce in two, each one of them individually could not, the third judge there, he could not exercise his discretion to not disclose in any case.

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Is that how you read the rule?

[00:06:03] Speaker 02:
I'm not sure.

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There were a lot of negatives, so I'm not sure where I'm at on the answer.

[00:06:08] Speaker 01:
Why is there any difference in the sense of the rule as to whether there has to be a disclosure of reasons if it's done by rule or done by order?

[00:06:18] Speaker 02:
Well, for whatever reason, the notes to the rules say under the new provision, the court has the discretion in an individual case or in accordance with a local rule.

[00:06:28] Speaker 02:
So they seem to say there's discretion even with a local rule to direct the probation office to withhold the recommendation.

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Otherwise, the recommendation is subject to disclosure.

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So I think a local rule obviously has to be voted on by the court.

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And if the court adopts it, I guess it's an internal matter for the court to decide whether judges need to comply with that or not.

[00:06:51] Speaker 02:
And I don't see why a judge couldn't exercise their discretion even with a local rule to disclose it.

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But since there is no local rule here, we're in the opposite position, so to speak, where it's supposed to be disclosed.

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It violates the rule not to do that.

[00:07:07] Speaker 02:
But in any event – and I understand you think that's the weaker argument – the judge in this case didn't exercise discretion at all.

[00:07:16] Speaker 02:
As a matter of fact, the reasons he gave had nothing to do with Mr. McElwain's case, with the individual.

[00:07:25] Speaker 01:
probation office as part of chambers for that, for the purpose of the recommendation, and he no more was willing to disclose that that part of chambers advice than he would have been if he'd been a law clerk, giving him the same advice.

[00:07:40] Speaker 02:
Right, and that's, those have been, that reasoning has been discredited on two fronts.

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First of all, by the probation office itself, which in 2017 wrote a letter

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to the court to the district court and said we support disclosure and there is no evidence that the probation chief probation officer said that

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He had worked in a district, and I can offer no evidence to support the position of probation officer safety.

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That was the other reason that district court gave in this case, that it compromised the candor of the, and also to disclose the recommendation of the probation officer.

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The other thing, in 1974,

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The reason they held that the Sentencing Recommend, the Advisory Committee said the Sentencing Recommendation should not be disclosed was again because of probation officer being, so to speak, an arm of the court and the confidentiality

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And 20 years later in 1994, they rejected that reasoning and said that it should be disclosed.

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So I would say that, first of all, the district court exercised no discretion.

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He said the word always at least four times, I think.

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Second of all, the reasoning he relied upon has been discredited both by the advisory committee

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on the federal rules of criminal procedure and by the probation office itself and by the U.S.

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Attorney's Office, in a sense, who has for 25 years said that they think it should be disclosed also.

[00:09:09] Speaker 04:
So... Just to be clear, you think that if the court adopted a local rule that said we'll never disclose it, that would be not okay?

[00:09:19] Speaker 02:
I think there could be arguments made.

[00:09:21] Speaker 04:
Could be arguments made as a certain kind of phrase.

[00:09:27] Speaker 04:
Since it's nuts.

[00:09:28] Speaker 04:
I guess I was reading this rule as giving two choices.

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You could have a flat local rule, or you could exercise discretion about things that matter in an individual case.

[00:09:41] Speaker 04:
So if that's a correct reading, that would suggest that a local rule, you could just have a flat order.

[00:09:48] Speaker 02:
I disagree with that.

[00:09:50] Speaker 02:
The 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 a local rule to direct the probation office to withhold it.

[00:10:05] Speaker 02:
So it seemed to say they have the discretion, even if there was a local rule prohibited.

[00:10:12] Speaker 04:
Maybe I didn't phrase it right.

[00:10:13] Speaker 04:
I understand what you're saying.

[00:10:14] Speaker 04:
But if there were a flat rule, local rule that says, in every case you may decline, then maybe it would be the discretion of the district court whether or not to do it.

[00:10:26] Speaker 04:
But the district court could say, I'm always going to not do it.

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I know there's double knots here.

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In other words, if the local court issues a rule that says, we authorize our judges always to not disclose.

[00:10:42] Speaker 04:
then the district court could follow that rule.

[00:10:49] Speaker 02:
Local rule was the district court cannot exercise discretion.

[00:10:53] Speaker 02:
No.

[00:10:54] Speaker 04:
The local rule was in this district, district courts may always decline to disclose recommendations.

[00:11:07] Speaker 04:
I'm going to use may.

[00:11:08] Speaker 04:
Then the district court

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For example, this district court, this district judge could say, well, I'm going to exercise my discretion to follow the local rule and always decline.

[00:11:20] Speaker 04:
Do you agree with that?

[00:11:23] Speaker 02:
It could raise due process problems.

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And I recognize due process has been rejected.

[00:11:28] Speaker 04:
I'm only interested in textual reading.

[00:11:30] Speaker 02:
Under the text, I'm sorry.

[00:11:31] Speaker 02:
Under the text, I have to say that it's not 100% clear to me that's correct because of the

[00:11:40] Speaker 02:
by local rule may direct the probation officer.

[00:11:44] Speaker 02:
It says by local rule or by order in a case.

[00:11:46] Speaker 02:
I guess there could be a local rule saying that, I think Your Honor's question, saying that it should not be disclosed in any case.

[00:11:53] Speaker 04:
By local rule may direct the district court.

[00:11:59] Speaker 04:
It's not by local rule in a case.

[00:12:01] Speaker 04:
Now you're pushing me to even

[00:12:04] Speaker 04:
press further against your theory.

[00:12:06] Speaker 04:
But the text of the actual rule as compared to the notes is by local rule or by order in a case.

[00:12:15] Speaker 04:
You agree by order in a case is one phrase?

[00:12:19] Speaker 04:
Yes.

[00:12:20] Speaker 04:
So by local rule may direct the probation office not to disclose to anyone.

[00:12:25] Speaker 04:
That is the way it's worded.

[00:12:27] Speaker 02:
It seems inconsistent with the notes and the reasoning.

[00:12:30] Speaker 01:
Which wins if the rule and the notes are inconsistent?

[00:12:34] Speaker 02:
You can't say the notes override the rule.

[00:12:36] Speaker 02:
The text wins.

[00:12:37] Speaker 02:
I understand that.

[00:12:39] Speaker 02:
But in this case, it doesn't matter in the sense that there is no legal.

[00:12:42] Speaker 02:
Right.

[00:12:43] Speaker 04:
I'm only raising this because you're arguing that the rule totally rejects the policy theory that the district court adopted here.

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using the probation office as part of your chambers.

[00:12:57] Speaker 04:
And it's not clear to me that it totally rejects this.

[00:13:01] Speaker 04:
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.

[00:13:16] Speaker 04:
That would get you a win in this case.

[00:13:18] Speaker 04:
I don't know what it'll get you in the next case.

[00:13:20] Speaker 02:
Well, as long as there's no local rule, I mean.

[00:13:23] Speaker 04:
Yeah, well, until there's a local rule, then I guess we'll have to consider that.

[00:13:26] Speaker 02:
I mean, back in 1974, 1994, the district court said it was considering a local rule.

[00:13:33] Speaker 02:
And for 25 years, it hasn't done that for whatever reason, possibly because the government objects and believes that it should be disclosed, too.

[00:13:43] Speaker 02:
I'm not sure why.

[00:13:44] Speaker 02:
Obviously, I have no idea.

[00:13:46] Speaker 02:
Maybe it's because some judges favor it and some don't.

[00:13:50] Speaker 02:
Simplest explanation.

[00:13:52] Speaker 02:
No, it could be they don't have a... I mean, one judge discloses it in every case.

[00:13:57] Speaker 02:
Other judges disclose it when there's a motion in every case.

[00:14:00] Speaker 02:
And some disclose it in... But I think in the 1974 amendments, disclosure would seriously compromise confidentiality, create risk.

[00:14:13] Speaker 02:
That's why they...

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had the recommendation not subject to disclosure, but 20 years later, they changed that recommendation 180 degrees.

[00:14:22] Speaker 02:
So I think they've rejected, the advisory committee rejected that reasoning.

[00:14:29] Speaker 02:
Judge Taylor.

[00:14:30] Speaker 03:
So even if you're right in this case, what's your response to the government's argument that the error here was harmless, if it even was?

[00:14:39] Speaker 03:
So in that argument,

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When the district court explained why he found no basis for downward departure, he only relied on facts, factors that were listed in the PSR that you had.

[00:14:55] Speaker 03:
So what's the argument for it not being harmless?

[00:14:57] Speaker 02:
So in Bryant, this court said at page 778, it is difficult to see how it can be known whether a court has relied upon misinformation unless the information is disclosed to the defendant or his counsel.

[00:15:10] Speaker 02:
I think what you have here is who knows what was in that

[00:15:15] Speaker 02:
recommendation, what it said about various things, and why the district judge rejected the arguments, whether there was anything in there about those arguments or not.

[00:15:27] Speaker 02:
So I would just go upon what this court said in Bryant, which is how do you know that if it hasn't been disclosed to the defendant?

[00:15:37] Speaker 02:
So in the Brown case, the court said the judge never actually exercised his discretion on the pre-sentencing report disclosure.

[00:15:48] Speaker 02:
We remand for reconsideration and re-sentencing.

[00:15:51] Speaker 02:
So I think when there's been a complete denial of information to a defendant, courts have remanded it for re-sentencing because they say, how can the defendant possibly show that?

[00:16:04] Speaker 02:
Can I just mention we don't have a timer?

[00:16:07] Speaker 04:
So Mr. Kramer, we're not going to listen to anything you said in the last 10 minutes.

[00:16:13] Speaker 04:
It's not stricken, I hope.

[00:16:16] Speaker 01:
OK.

[00:16:17] Speaker 01:
But nobody will know whether we're relying on it.

[00:16:27] Speaker ?:
Sure.

[00:16:36] Speaker 04:
Aha.

[00:16:43] Speaker 00:
OK, now it's working.

[00:16:45] Speaker 00:
Good morning.

[00:16:46] Speaker 00:
We're going to be really strict about you.

[00:16:49] Speaker 00:
It's fine with me, Your Honor.

[00:16:50] Speaker 00:
Good morning, and may I please record Dan Lenners for the United States.

[00:16:54] Speaker 00:
We broadly agree with much of what the defendant has asserted here.

[00:16:59] Speaker 00:
We agree that it's good policy for judges to disclose the probation officer's recommended sentences.

[00:17:05] Speaker 00:
We agree that the district court as a whole applies the wrong presumption.

[00:17:11] Speaker 00:
The default rule should be one of disclosure that can only be overcome in the absence of a local rule by order in a specific case.

[00:17:20] Speaker 00:
And we agree, Judge Sentel, that the district court's order in this case is reviewed for an abuse of discretion.

[00:17:26] Speaker 00:
The federal rules make it clear that it's a discretionary decision, and the case law evaluating these sort of decisions have applied an abuse of discretion standard.

[00:17:39] Speaker 00:
Where we disagree is whether

[00:17:40] Speaker 03:
Can I just add another question about areas where at least I thought you agreed from reading your brief, and that is that our case law, cases like Dockery, Queen, Bryant, that these cases, that I read your brief as accepting the idea that a district court that does this himself has to at least give a case-specific reason for doing so, correct?

[00:18:05] Speaker 00:
That's right, Your Honor.

[00:18:06] Speaker 03:
But you think that's happened here?

[00:18:08] Speaker 03:
Correct.

[00:18:09] Speaker 03:
Would you agree that a district court could not have a blanket policy that the district judge applies in all cases, flat out, no disclosure?

[00:18:21] Speaker 00:
Correct.

[00:18:22] Speaker 00:
For example, if the district court had a standing order,

[00:18:26] Speaker 00:
prohibiting the disclosure of the sentencing recommendation in any case, irregardless of circumstances.

[00:18:32] Speaker 03:
How about the issuance of the identical order in every case?

[00:18:35] Speaker 03:
Not a standing order, but an issue, an order in every case which says, you know, I have a policy against disclosure, period.

[00:18:44] Speaker 00:
I think under Queen, that would be inappropriate.

[00:18:47] Speaker 03:
So your case then turns on your argument that the district court here actually did give a case-specific reason, right?

[00:18:54] Speaker 00:
Yes, Your Honor.

[00:18:55] Speaker 00:
And I understand it's a case-specific reason that would apply in all cases.

[00:19:00] Speaker 00:
But the district court recognized discretion in this case.

[00:19:04] Speaker 03:
He said that... I think you and I just didn't make any progress.

[00:19:10] Speaker 03:
It could be a case-specific reason that applies in every case.

[00:19:13] Speaker 03:
So district court says,

[00:19:16] Speaker 03:
It enters the same order in every case, and the reason he gives is he thinks that this is necessary to protect the relationship between the candor of the probation office.

[00:19:29] Speaker 03:
Is that okay?

[00:19:30] Speaker 00:
I think that the district court needs to recognize that he has case-specific discretion, which the district court did here.

[00:19:38] Speaker 00:
He said he understands that it's a discretionary decision that

[00:19:42] Speaker 00:
goes to each judge, and the district court said that although disclosure in any particular case may not be problematic, it would be repeat disclosure that would undermine his relationship with the probation office, and thus he was declining to do it here.

[00:19:57] Speaker 00:
I understand that's very close to the line of a standing order.

[00:20:01] Speaker 00:
But our office is defending the district court judge's reasoning on the grounds that even though we did not oppose the defendant's motion for disclosure, that we think the district court adequately recognized he had discretion and exercised it here.

[00:20:17] Speaker 00:
He didn't point to anything particular about Michael Wayne's case that made it different from other cases.

[00:20:25] Speaker 00:
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, would undermine his relationship.

[00:20:40] Speaker 00:
And, Judge Garland, I don't think the

[00:20:42] Speaker 00:
the rules prohibit reliance on that policy rationale by a particular district court or by the district court as a whole, if it found as a whole that disclosure would undermine... I understand the argument about the latter.

[00:20:54] Speaker 04:
I appreciate your effort to defend the district court, but I don't understand the argument about the former.

[00:21:02] Speaker 04:
That is, I don't understand how somebody exercises discretion in an individual case when they say,

[00:21:10] Speaker 04:
My policy is that in every case, I will not turn over the information, allow the information to be turned over.

[00:21:20] Speaker 00:
I guess the way I'm defending the district court is by saying he recognized that that policy also applies to this particular case.

[00:21:29] Speaker 04:
But it applies to every case.

[00:21:30] Speaker 04:
It doesn't just also apply to this case.

[00:21:32] Speaker 04:
He can't imagine a case in which it doesn't apply.

[00:21:36] Speaker 04:
So it's an across the board case.

[00:21:38] Speaker 04:
without any discretion applied in an individual case other than to say I'm applying my policy here.

[00:21:46] Speaker 00:
I don't have a lot more to say on this issue.

[00:21:51] Speaker 03:
Well, do you think one way to read the rule might be that, and I understand your argument, but one way to read the rule would be that if there's going to be an overall policy,

[00:22:09] Speaker 03:
that has to be adopted by the district court itself, whereas case-specific reasons can be done by each district judge.

[00:22:15] Speaker 03:
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 authority to have a blanket policy at all.

[00:22:32] Speaker 03:
What do you think of that?

[00:22:39] Speaker 00:
I suppose that's one way to read the rule, Your Honor.

[00:22:42] Speaker 00:
It's the first time I've thought about that, so I don't have an answer as to whether it's the best way to read the rule.

[00:22:47] Speaker 03:
Well, it's actually the only way that makes sense, isn't it?

[00:22:50] Speaker 03:
It says – it says – well, I'll never say it's the only way it makes sense.

[00:22:57] Speaker 03:
We can't say that.

[00:22:58] Speaker 03:
But it says – it says my local rule

[00:23:10] Speaker 03:
I mean, you wouldn't need the rule, 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.

[00:23:27] Speaker 03:
Your view basically is it doesn't make any difference.

[00:23:30] Speaker 03:
Your view is that, I think this is right, is that any blanket order that the district court as a group decides

[00:23:39] Speaker 03:
to issue or not to be issued could also be done by an individual district judge, right?

[00:23:46] Speaker 00:
I think that's effectively.

[00:23:47] Speaker 03:
Yeah, that's your position.

[00:23:48] Speaker 03:
Yes.

[00:23:48] Speaker 03:
Okay.

[00:23:49] Speaker 00:
All right.

[00:23:50] Speaker 00:
In any event, even if the district court did abuse its discretion in this case, that error was harmless.

[00:23:57] Speaker 03:
And what about Mr. Kramer's argument that, you know, how can that be if the defendant can't see what the district court relied on?

[00:24:06] Speaker 00:
It can be because when you look at the 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

[00:24:22] Speaker 00:
conditions of release previously, which were two issues that, the only two issues that were contested at the sentencing hearing.

[00:24:30] Speaker 00:
So there was no indication given by the district court that he was relying on anything other.

[00:24:35] Speaker 03:
But the district judge said here these recommendations are important to him.

[00:24:40] Speaker 03:
He did say that.

[00:24:41] Speaker 00:
He did say that, Your Honor, although in the context of this case where the party's 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 officer's recommendation played any effect in the judge's

[00:25:01] Speaker 00:
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 pleaded guilty to not going to a halfway house when he was ordered to do so was not entitled to a time-served sentence.

[00:25:23] Speaker 04:
That's a good argument for why it's a reasonable sentence.

[00:25:27] Speaker 04:
But that remains the question of whether he was influenced

[00:25:30] Speaker 04:
I thought there were some examples in previous correspondence between the U.S.

[00:25:37] Speaker 04:
Attorney's Office, I think, and the Federal Public Defender of examples where the recommendation had wrong facts, which would not have been known except for the judge disclosed the facts.

[00:25:52] Speaker 04:
So we just don't know, I take it, whether there are

[00:25:58] Speaker 04:
things said in the recommendation that are different from ones in the PSR or highlight things or that are subjective.

[00:26:07] Speaker 00:
There's no way to know that.

[00:26:09] Speaker 00:
Your Honor, it's true that there's no way to know what was in the recommendation.

[00:26:12] Speaker 00:
I think the examples that Mr. Kramer put in his letter actually support a finding of harmlessness here, because in those instances, the district courts made clear that they 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 criminal history

[00:26:33] Speaker 00:
and his failure to abide by conditions of release, which were in the PSR, which were contested by the parties.

[00:26:39] Speaker 00:
The district court said nothing indicating that he was relying on anything outside of that.

[00:26:44] Speaker 00:
And I think this... The district court didn't say I'm not relying on this recommendation.

[00:26:47] Speaker 00:
That's correct, Your Honor.

[00:26:48] Speaker 00:
Okay.

[00:26:48] Speaker 00:
Any questions?

[00:26:52] Speaker 04:
Thank you.

[00:26:53] Speaker 04:
Mr. Rebuttal, you're already way over time.

[00:26:57] Speaker 01:
We have no idea how much time you have left.

[00:27:01] Speaker 02:
Thank you.

[00:27:02] Speaker 02:
So I would just say a couple of things.

[00:27:05] Speaker 02:
Those two examples given in the letters, those were reports that were disclosed.

[00:27:09] Speaker 02:
So there's no way to know how many other examples there might be.

[00:27:12] Speaker 02:
In one of those, there was a fact in the recommendation that both – that was disclosed and both parties recognized that it was wrong and it was a crucial fact.

[00:27:21] Speaker 02:
and called it to the attention of the district court.

[00:27:23] Speaker 02:
And the other one, the district court actually mentioned something during the sentencing that the parties realized, wait a minute, where did that come from?

[00:27:32] Speaker 02:
And the district court eventually disclosed the recommendation and that's where it had come from.

[00:27:38] Speaker 02:
The other thing I wanted to say is not only did the district court in this case not give any reasons why disclosure in this individual case would harm the relationship,

[00:27:48] Speaker 02:
or would be contrary, would be in accordance with discretion or with the rule.

[00:27:54] Speaker 02:
He said the exact opposite.

[00:27:55] Speaker 02:
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.

[00:28:03] Speaker 02:
So he not only didn't point to any case-specific reasons, he said there are no case-specific reasons,

[00:28:09] Speaker 02:
It's a cumulative matter.

[00:28:11] Speaker 02:
And the last thing I wanted to say is there is, in essence, a standing order here, because the probation office will not disclose the report upon request.

[00:28:20] Speaker 02:
It will only do that if there's a court order.

[00:28:24] Speaker 02:
And the only way to get that, of course, is with the exception of one judge who has it disclosed in every case, is to file a motion.

[00:28:30] Speaker 02:
And as I said, that has the rule backwards.

[00:28:33] Speaker 02:
Thank you very much.

[00:28:36] Speaker 04:
All right.

[00:28:36] Speaker 04:
We'll take the matter under submission.

[00:28:37] Speaker 04:
Thank you very much.