3603 directs the probation officer to report any violation "to the court and the Attorney General or his designee." There would be little need for a report to the court if a probation revocation proceeding could only be initiated by the United States Attorney. Rule 32.1 states that the court has a duty to notify the United States Attorney and provide an opportunity to object before modifying a defendant's sentence in a manner favorable to the defendant. This rule would be meaningless unless a probation revocation proceeding could be initiated by the court.
Nor is Berger's contention constitutionally sound. To accept it would be tantamount to abdicating the Judiciary's sentencing responsibility to the Executive. No good reason exists for such an abdication and substantial mischief could flow from it. See Young v. U.S. ex rel. Vuitton et Fils S. A., 481 U.S. 787, 801, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) ("If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority, it would be powerless to protect itself if that Branch declined prosecution").
See also United States v. Feinberg, 631 F.2d 388 (5th Cir. 1980) (discussing the possibility that the United States Attorney might have an ulterior motive not to file a probation revocation proceeding).
Neither of the reasons advanced by Berger in support of such a result withstand scrutiny. First, Berger claims that absent the involvement of the United States Attorney, he will not receive favorable information from the prosecutor's file, as required by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Berger has cited no authority for applying Brady to a probation revocation proceeding and there is law to the contrary. United States v. Donaghe, 924 F.2d 940, 944 (9th Cir. 1991). Nor has Berger explained why his rights to receive a copy of the probation officer's report and to examine her at the revocation hearing are not adequate.
Second, Berger complains that the probation officer met with me ex parte prior to his initial appearance to discuss her report. Berger concedes that "the Ninth Circuit has held that under Fed.R.Crim.P. 32 a probation officer may meet ex parte with a court to discuss 'the presentence report and sentence outside defendant's presence.'" United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir. 1985). In the context of a revocation proceeding, he argues, the "accuser" should not be permitted to discuss the "factual basis" of the alleged violation with the court ex parte. While I have doubts about the soundness of that argument given my views about the nature of a revocation proceeding, I need not decide this issue. As I explained during the hearing, the ex parte discussion I had with the probation officer was to advise her that I had reservations about her recommendation that Berger be confined in a community corrections center and to ask her to investigate several custodial options I was considering. The factual basis of the violation was not discussed.
The Form 12 procedure by which the probation officer notifies the court of a possible violation of probation is consistent with statutory authority and sound policy.
There is no basis for dismissing the probation revocation proceeding in this case. Berger's motion is DENIED and it is ORDERED that a hearing on whether Berger's probation will be revoked will be held on Wednesday, September 24, 1997 at 1:30 p.m. in Courtroom G.
Dated: September 9, 1997
United States Magistrate Judge