United States District Court, D. Nebraska
MEMORANDUM AND ORDER
E. STROM, Senior Judge United States District Court
matter is before the Court on two motions filed by the
defendant, Donald A. Harvey (“defendant” or
“Harvey”). Defendant has moved the Court to
reconsider the Court's denial for leave to subpoena
presentence reports (“PSRs”) (Filing No.
120). Defendant also asks the Court to take judicial
notice of the PSRs, sentencing orders, and statements of
reasons for nineteen cases pursuant to Fed.R.Evid. 201
(Filing No. 124). After review of the filings and
the applicable law, the Court finds as follows.
September 17, 2014, Harvey was indicted on a two-count
indictment charging receipt and possession of child
pornography in violation of 18 U.S.C. §§
2252A(a)(2) and 2252(a)(4)(B) (Filing No. 1). On
April 10, 2015, defendant entered a plea of Nolo Contendere
to Counts I and II (Filing No. 41), which the Court accepted
over an objection by the government.
days later, on April 16, 2015, defendant moved to withdraw
his plea of Nolo Contendere (Filing No. 48). On
April 22, 2015, the Court held a hearing and denied
defendant's motion to withdraw his plea. See
Filing Nos. 45, 46, and 49.
16, 2015, the Court overruled defendant's objections to
the presentence report, granted defendant's motion for
downward departure, and sentenced defendant to a term of 74
months on each count, to run concurrently. Defendant was also
sentenced to a five-year term of supervised release on each
count, to also run concurrently (Filing No. 59). In
addition, the Court imposed a special assessment in the
amount of $200 (Id.)
27, 2015, defendant appealed the Court's judgment.
See Filing No. 66. On July 13, 2016, the
United States Court of Appeals for the Eighth Circuit
affirmed in part and reversed in part and remanded with
instructions to vacate one of Harvey's convictions and
resentence him (Filing No. 92). The Eighth
Circuit also concluded that the Court “did not abuse
its discretion when it denied Harvey's motion to withdraw
his plea.” (Id. at 2). However, the Circuit
reasoned that “Harvey's two convictions violate the
Double Jeopardy Clause because they arise out of the same act
or transaction.” (Id.)
October 14, 2016, defendant filed an amended motion for leave
to subpoena his employment records and PSRs for all cases
similar to defendant's (Filing No. 117). On
November 3, 2016, the Court denied these motions (Filing No.
119). On November 4, 2016, defendant moved for
reconsideration of the Court's denial to subpoena PSRs
(Filing No. 120). However, defendant “has
removed any claim that he [sic] allowed to subpoena work
records . . . .” Filing No. 121 at 1. On
November 22, 2016, defendant asked the Court to take judicial
notice of nineteen cases that Harvey asserts are similarly
situated to this case (Filing No. 124 at 1).
Motion to Reconsider
district court has broad discretion in determining whether to
grant or deny a [motion to reconsider]” regardless of
whether the party moves under Rule 60(b) or Rule 59(e).
United States v. Metro. St. Louis Sewer Dist., 440
F.3d 930, 933 (8th Cir. 2006). In civil cases, a
“motion for reconsideration serves the limited function
of correcting manifest errors of law or presenting newly
discovered evidence.” United States v. Luger,
837 F.3d 870, 875 (8th Cir. 2016) (internal quotation and
citation omitted). The Eighth Circuit declined to decide
whether to impute the civil standard into the criminal
context. Luger, 837 F.3d at 876. At a minimum, the
cases the Eighth Circuit cited in Luger imputing the
civil standard into the criminal context provide additional
support for a district court's discretion in deciding
whether to grant a motion for reconsideration. See
id. at 875-76; See also, Id. at 878
(Colloton, J. concurring in judgment).
of the Federal Rules of Criminal Procedure does not
specifically address disclosure of PSRs to third parties.
See Fed. R. Crim. P. 32. “The consensus of the
reported cases appears to be that the interest of the
criminal justice system in the confidentiality of presentence
reports either precludes third-party disclosure altogether or
requires a strong showing that disclosure is necessary in the
interest of justice.” Tim A. Thomas, J.D.,
Disclosure to third party of presentence report under
Rule 32(c), Federal Rules of Criminal Procedure, 91
A.L.R. Fed. 816 (Originally published in 1989). The Eighth
Circuit is among the jurisdictions holding that
confidentiality should not be “lifted” unless it
is “required to meet the ends of justice.”
United States v. Shafer, 608 F.3d 1056, 1066 (8th
Cir. 2010); see also United States v.
Figurski, 545 F.2d 389, 391 (4th Cir. 1976).
Court finds that disclosure of other defendants' PSRs for
Harvey's stated purpose does not meet the standard
adopted by the Eighth Circuit. See Shafer, 608 F.3d
at 1066. Accordingly, defendant's motion to reconsider
will be denied.
Motion to ...