Baranski v. United States of America

Filing 103

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner Baranskis Motion to Release Pre-Trial Services and U.S. Probation Office Records of James M. Carmi is GRANTED as set forth herein. [Doc. 94]IT IS FURTHER ORDERED that the U.S. Pretrial Servic es Office and U.S. Probation Office for the Eastern District of Missouri shall, by March 6, 2013, produce and deliver to thechambers of the undersigned all records in their possession related to James M. Carmi that concern, or arguably or potentially may concern: 1) an agreement by James M. Carmi to cooperate with the government; 2) a reduction in sentence for Carmi pursuant to U.S.S.G. § 5K1.1 or Rule 35; 3) perjury by Carmi; 4) suborning of perjury by Carmi; or 5) employment, potential em ployment, or attempted employment of Carmi by the United States as a confidential informant.The foregoing includes documents prepared by, and sent to, Susan McGuire, William Brown, or any other therapist who has treated Carmi. IT IS FURTHER ORDERED t hat the Clerk of the Court shall transmit a copy of this Memorandum and Order to the Chief Pretrial Services Officer and the Chief Probation Officer of this Court. IT IS FURTHER ORDERED that the U.S. Pretrial Services Office and U.S. Probation Office may each provide the Court, along with the requested documents, an ex parte written statement detailing any information they believe should be redacted from specific documents if the Court determines, following in camera review, that the documents should be produced. Any such written statement shall include the reasons underlying each proposed redaction. ( Response to Court due by 3/6/2013.) Signed by District Judge Charles A. Shaw on 2/27/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEITH BYRON BARANSKI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11-CV-123 CAS

MEMORANDUM AND ORDER
This coram nobis matter is before the Court on petitioner Keith Byron Baranski’s Motion
to Release Pre-Trial Services and U.S. Probation Office Records of James M. Carmi. Baranski seeks
the limited, non-public release of:
any document in the custody of Pretrial Services and the United States Probation
Office located in St. Louis, Missouri concerning: 1) an agreement by James M.
Carmi to cooperate with the government; 2) a reduction in sentence for Carmi
pursuant to U.S.S.G. § 5K1.1 or Rule 35; 3) perjury by Carmi; 4) suborning of
perjury by Carmi; and 5) employment, potential employment, or attempted
employment of Carmi by the United States as a confidential informant. This motion
includes documents prepared by, and sent to, Susan McGuire, William Brown, or
any other therapist. Carmi has signed DOJ Form 361 (Certification of Identity)
authorizing the release to Baranski and [his] counsel of Carmi’s Pre-Trial Services
and U.S. Probation Offices records.
Mot. to Release at 1.
Background
Baranski was convicted of conspiracy to defraud the United States in connection with false
statements made on Bureau of Alcohol, Tobacco and Firearms (“ATF”) forms related to imported
machine guns. United States v. Baranski, 4:02-CR-361 CAS (E.D. Mo.). Baranski was sentenced
to 60 months, and has served his time and is no longer on supervised release.

James Carmi was the government’s key witness against Baranski at trial. In Carmi’s
criminal case based on the same conduct, the government filed a United States Sentencing
Guidelines § 5K1.1 motion in return for Carmi providing information against Baranski, and Carmi
received a substantial sentence reduction. United States v. Carmi, 4:01-CR-91 ERW (E.D. Mo.).
At Baranski’s trial, Carmi was asked on cross-examination if he expected that he was going to get
“another deal for actually testifying” against Baranski. Carmi responded, “I never said that, and I
never expected it. I’ve never been promised anything. And as a matter of fact, I’ve never asked for
anything except to be moved from Ste. Genevieve to St. Louis County so I could be closer for the
phone bills. It would be $3 instead of $10. And that’s all I’ve ever asked for this whole time.”
(Trial Tr., Vol. II at 91).
Baranski asserts that Carmi’s above-quoted testimony was perjury, because the government
had promised Carmi a further sentence reduction under Federal Rule of Criminal Procedure 35 in
return for his testimony. The basis of Baranski’s petition for writ of coram nobis is that the
government failed to correct Carmi’s perjury when it did not disclose to the Court that his testimony
about the Rule 35 motion was false, and as a result Baranski’s conviction and the judgment of
forfeiture must be vacated under Napue v. Illinois, 360 U.S. 264, 269 (1959), and Giglio v. United
States, 405 U.S. 150, 153-54 (1972).
Evidentiary Basis for Motion
Baranski’s motion states that in the discovery completed thus far, he has obtained from
Carmi’s former counsel, the firm of Rosenblum, Schwartz, Rogers & Glass, P. C., copies of letters
from Carmi to attorneys John Rogers and Scott Rosenblum, and from John Rogers and Scott
Rosenblum to Carmi. Baranski has also obtained the transcript of Carmi’s sentencing on November

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8, 2001 in Case No. 4:01-CR-91 ERW before U.S. District Judge E. Richard Webber. On the
record, in the presence of former Assistant United States Attorney (“AUSA”) Richard Poehling and
attorney John Rogers, Judge Webber stated to Mr. Carmi,
THE COURT: Mr. Poehling has filed, with your attorney’s knowledge, a
5K1.1 motion, which will permit me to sentence you at something less than the
United States sentencing guidelines.
We have conducted a rather intensive conference in chambers and I’m
convinced that based upon your unusual efforts in this case, that I should sentence
you at substantially less under the 5K1.1 motion than I customarily would do. In this
case, it’s my intention to sentence you at 42 months.
I have – it’s been represented to me that depending on certain circumstances
that happen hereafter, which you and counsel can discuss, that there’s a likelihood
that a further reduction at some time in the future, depending upon your continued
cooperation, may occur.
Do we need to say anything else about that at this time?”
MR. ROGERS: No, sir.
MR. POEHLING: No, Your Honor.
Sent. Tr. at 7 (Case No. 4:01-CR-91 ERW).
Baranski asserts that the letters from Carmi to his counsel remind them that he was informed
on the day of his sentencing (November 8, 2001) that if he continued to cooperate and assist the
government, he would receive a significant reduction in his 42-month sentence pursuant to a Rule
35 motion. Baranski asserts that the letters to Carmi show that Carmi was informed he had been
promised a sentence reduction, via a Rule 35 motion, from then-AUSA Poehling, by and through
both Scott Rosenblum and John Rogers, beginning at least in November 2001, prior to testifying
before the grand jury against Baranski. Baranski also states that Carmi has admitted that he lied at
Baranski’s trial regarding a Rule 35 motion.

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Baranski states that Scott Rosenblum, former co-counsel for Carmi, testified at deposition
on December 6, 2012 that he had discussions with former AUSA Poehling concerning Carmi and
a Rule 35 motion and that Poehling was going to recommend a Rule 35 motion for Carmi.
Rosenblum also testified that Carmi was untruthful in his testimony pertaining to additional facts
at Baranski’s trial. John Rogers, also former co-counsel for Carmi, testified at deposition on
December 6, 2012 that as early as November 2001, Poehling had promised that the government
would file a Rule 35 motion for Carmi, conditioned on Carmi’s continued cooperation against
Baranski.
Baranski’s motion also states that former AUSA Poehling testified at deposition on
December 6, 2012 that he never offered to Scott Rosenblum, John Rogers or James Carmi, either
expressly or impliedly, a Rule 35 reduction in Carmi’s sentence in exchange for his ongoing
cooperation. Poehling also testified that between October 17, 2000, the day Carmi was arrested, and
November 18, 2002, the final day of Baranski’s trial, he had no discussions with anyone regarding
the possibility of James Carmi receiving a Rule 35 motion, and that Carmi was never offered a Rule
35.
Discussion
Baranski acknowledges that the records he seeks are the property of the Court, that the
release of such records is disfavored, and that non-disclosure of such records to third parties is
favored in the absence of a compelling demonstration that their disclosure is required to meet the
ends of justice. Baranski argues that there exists a compelling justification for the release of the
records in this case, and that the ends of justice will be met by the release.

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Baranski asserts that based on discovery conducted thus far, it is clear there is conflicting
evidence concerning a promise made to Carmi by the government, and because the promise of a
Rule 35 motion would directly contradict Carmi’s trial testimony, documents in the U.S. Pretrial
Services Office and U.S. Probation Office records may assist in clarifying whether Carmi committed
perjury at Baranski’s trial concerning a Rule 35 motion. Baranski asserts that the records should
enable him to determine if and when Carmi had been promised a reduction in sentence through a
Rule 35 motion, and who knew about it. Baranski also asserts that the records should enable him
to confirm whether Carmi worked, or was soliciting to work, as a confidential informant for ATF
and received compensation from ATF, which may contradict his denial at trial that he ever asked
for anything from ATF.
Baranski contends that based on the foregoing, he satisfies the “compelling, particularized
need” requirement for disclosure articulated in cases such as United States v. Corbitt, 879 F.2d 224,
239 (7th Cir. 1989). Baranski states that he is unable to obtain the documents he seeks from the U.S.
Attorney’s Office, or from any source other than the U.S. Pretrial and Probation Offices, as the U.S.
Attorney’s Office has informed him it does not have the documents. Finally, Baranski notes that
Carmi has voluntarily waived any and all privacy rights and interests in these documents,
The government’s Response does not dispute that Baranski has made a showing of
compelling, particularized need for the records, or contest the evidentiary basis for the motion. The
government does note that James Carmi was convicted in this District on two separate, unrelated
criminal matters, No. 4:01-CR-91 ERW, and No. 4:09-CR-67 CAS, and as a result has been
supervised through the U.S. Probation Office on two separate cases which would have separate files.

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The government discusses the general rule that pretrial service materials and probation
documents are confidential and may not be disclosed except as specifically permitted by statutes,
regulations, or order of the court. After discussing the statutes and selected cases concerning the
release of information, the government concedes that the “Court clearly has the authority to order
the release of the records and materials sought by Petitioner,” Response at 9, but urges that any
disclosure be made in consideration of the general rules of confidentiality that attach to the materials
sought, which are designed to protect the “sanctity of the missions, programs, and information
gathered and retained by the Pretrial Services and U.S. Probation Offices,” id., as well as the
defendant’s privacy, the confidentiality of officers in performing their duties, and the confidentiality
of third parties who deal with and aid these officers.
The government suggests that the Court could order Pretrial Services and the Probation
Office to “conduct a review of records, materials, and files they may possess for information
responsive and relevant to the request made by Petitioner should such records exist,” id., and if
relevant information and records exist, the Court could conduct an in camera inspection to determine
relevancy and “aid in a determination about whether disclosure is warranted in light of balancing
other interests.” Id. Baranski did not file a reply memorandum in support of his motion and the time
to do so has passed.
Presentence investigation reports are generally considered to be confidential documents and
should be disclosed to third parties only under limited circumstances. See United States Dep’t of
Justice v. Julian, 486 U.S. 1, 12 (1988) (“the courts have typically required some showing of special
need before they will allow a third party to obtain a copy of a presentence report”); United States
v. McKnight, 771 F.2d 388, 391 (8th Cir. 1985) (“Generally, pre-sentence reports are considered

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as confidential reports to the court and are not considered public records, except to the extent that
they or portions of them are placed on the court record or authorized for disclosure to serve the
interests of justice.”). A district court has “supervisory powers over its own records and files,”
Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978), and as a result, the decision
whether to release otherwise confidential presentence reports is largely committed to the court’s
discretion. United States v. Gomez, 323 F.3d 1305, 1308 (11th Cir. 2003) (per curiam); see United
States v. Jewell, 614 F.3d 911, 921 (8th Cir. 2010) (district court’s decision to provide or deny a
criminal defendant access to another person’s presentence investigation report is reviewed for abuse
of discretion).
Several federal Courts of Appeals have adopted the “compelling need” test for disclosure
of presentence investigation reports to third persons, under which a presentence report should not
be released unless the third person has shown a “compelling need for disclosure to meet the ends
of justice.” United States v. Charmer Industries, Inc., 711 F.2d 1164, 1176 (2d Cir. 1983); accord
United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995); United States v. Corbitt, 879 F.2d 224,
239 (7th Cir. 1989). The Seventh Circuit has stated that even when this test is met, “the court should
limit disclosure to those portions of the report which are directly relevant to the demonstrated need.”
Corbitt, 879 F.2d at 239.
Neither party has cited any authority with respect to probation office records other than the
presentence investigation report. The government asserts, without citation to any authority, that
“disclosure has not been extended beyond the [presentence] report, to probation officers’ notes and
other background materials.” Response at 5. The Court finds this unsupported assertion less than
persuasive, and concludes that the compelling need test applicable to the presentence report should

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also apply to other probation materials, as it properly balances the competing interests of
confidentiality and the moving party’s need to obtain the information to meet the ends of justice.
Pretrial services materials are treated as confidential pursuant to 18 U.S.C. § 3153(c)(1),
which states in pertinent part that “information obtained in the course of performing pretrial services
functions in relation to a particular accused shall be used only for the purposes of a bail
determination and shall otherwise be confidential.” This confidentiality is intended to “protect [ ]
the relationship between the pretrial services officer and the particular defendant. Defendants may
be reluctant to cooperate with pretrial services officers unless assured of the confidentiality of the
information they reveal to the officers. The courts, in turn, would receive only incomplete
information.” H.R. Conf. Rep. 97–792, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2393, 2394.
As a result, “a request by a third party for the pretrial services report of a government witness creates
a tension between this confidentiality and the government's discovery obligations.” United States
v. Pena, 227 F.3d 23, 26 (2d Cir. 2000) (Sotomayor, J.).
The parties have not cited and the Court has not found any Eighth Circuit cases discussing
the release of pretrial service materials. In Pena, the Second Circuit held that:
[A]s with presentence reports, when a defendant requests that the government
disclose pretrial services materials pursuant to its discovery obligations to provide
defense counsel with exculpatory and impeachment information in its possession,
district judges should review those materials in camera and determine whether they
contain such information. If so, and if there is a compelling need for its disclosure,
the district court should, to the extent possible, turn over only that portion of the
document containing such information.
Id. at 28 (emphasis added). The Court finds this directive to be reasonable and appropriate, and in
line with Eighth Circuit precedent in related situations. See, e.g., United States v. Garcia, 562 F.3d
947, 953 (8th Cir. 2009) (district court must conduct an in camera review of a coconspirator’s

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presentence report where the government recognizes the possibility that it contains material that is
exculpatory or affects the credibility of prosecution witnesses).
In this case, the Court finds that Baranski has made a showing of particularized, compelling
need for the records and documents he seeks under the circumstances of this case, based on the
evidence discussed above and as more fully set forth in Baranski’s motion and memorandum in
support.

The fact the government does not contest that Baranski has made a showing of

particularized, compelling need is significant. The Court also finds that the information Baranski
seeks is highly material to the ultimate resolution of this matter, and cannot be obtained from any
other source. Because Mr. Carmi has waived his privacy interests in the materials, his interest in
maintaining their confidentiality is not a factor in the Court’s analysis. For these reasons, the Court
concludes the ends of justice require that the records Baranski seeks be produced.
The Court will grant Baranski’s motion for release of records from the U.S. Pretrial Services
Office and U.S. Probation Office, in the following respects. The Court will order these offices to
review their files and provide the records requested by Baranski to the Court ex parte and on a
confidential basis, for in camera review. The Court will review the records to determine whether
they contain information responsive and relevant to Baranski’s request, and will then determine what
portions of the records, if any, should be disclosed. See Pena, 227 F.3d at 28. In addition, in order
to preserve a complete record, the Court will thereafter direct the Clerk to file the documents in their
entirety, under seal.
Accordingly,
IT IS HEREBY ORDERED that petitioner Baranski’s Motion to Release Pre-Trial Services
and U.S. Probation Office Records of James M. Carmi is GRANTED as set forth herein. [Doc. 94]

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IT IS FURTHER ORDERED that the U.S. Pretrial Services Office and U.S. Probation
Office for the Eastern District of Missouri shall, by March 6, 2013, produce and deliver to the
chambers of the undersigned all records in their possession related to James M. Carmi that concern,
or arguably or potentially may concern:
1) an agreement by James M. Carmi to cooperate with the government;
2) a reduction in sentence for Carmi pursuant to U.S.S.G. § 5K1.1 or Rule 35;
3) perjury by Carmi;
4) suborning of perjury by Carmi; or
5) employment, potential employment, or attempted employment of Carmi by the United
States as a confidential informant.
The foregoing includes documents prepared by, and sent to, Susan McGuire, William Brown, or any
other therapist who has treated Carmi.1
IT IS FURTHER ORDERED that the Clerk of the Court shall transmit a copy of this
Memorandum and Order to the Chief Pretrial Services Officer and the Chief Probation Officer of
this Court.
IT IS FURTHER ORDERED that the U.S. Pretrial Services Office and U.S. Probation
Office may each provide the Court, along with the requested documents, an ex parte written
statement detailing any information they believe should be redacted from specific documents if the

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Petitioner’s request does not include drafts of the Presentence Investigation Report or
the final PSR, sentencing transcripts, plea agreements or plea hearing transcripts.
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Court determines, following in camera review, that the documents should be produced. Any such
written statement shall include the reasons underlying each proposed redaction.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 27th day of February, 2013.

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