     Case: 10-51200   Document: 00511886876    Page: 1   Date Filed: 06/14/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 June 14, 2012

                                  No. 10-51200                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

SHAHID IQBAL, also known as Shawn,

                                            Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas




Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
EDITH H. JONES, Chief Judge:
        Appellant Shahid Iqbal (“Iqbal”) pled guilty to one count of structuring
financial transactions to evade federal reporting requirements. The Department
of Homeland Security (“DHS”) subsequently attempted to introduce Iqbal’s
Presentence Investigation Report (“PSR”) in a removal proceeding; the
immigration court refused to admit the PSR without the district court’s
approval, which DHS then sought. Iqbal in turn requested criminal contempt
sanctions against the DHS attorneys who pursued disclosure of his PSR. The
district court granted DHS’s motion after redacting much of Iqbal’s personal
information and denied Iqbal’s sanctions request. We AFFIRM.
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                                  No. 10-51200

                                BACKGROUND
      Iqbal and his brother, Tariq Majeed (“Tariq”), are Pakistani natives. Tariq
came to the United States and set up an illegal gambling operation in Austin,
Texas, some of the proceeds of which he laundered through structured
transactions wired to Iqbal in Pakistan. Iqbal, unaware that Tariq’s funds came
from an illegal source, believed Tariq structured these transfers to evade U.S.
income taxes. Iqbal later immigrated to the United States in August 2004.
      Federal agents discovered Tariq’s gambling operation.                 Agents
subsequently arrested Iqbal, charging him with structuring and aiding in the
structuring of a financial transaction to evade reporting requirements in
violation of 31 U.S.C. § 5324(a)(3) and (d), 31 C.F.R. § 103.11, and 18 U.S.C. § 2.
Iqbal pled guilty to one count of structuring transactions to evade reporting
requirements in April 2007 and was sentenced, inter alia, to twelve months’
imprisonment. While Iqbal’s PSR both detailed Tariq’s gambling operations and
implicated Iqbal as a participant, the district court specifically found at the time
of sentencing that Iqbal did not knowingly involve himself in Tariq’s enterprise
until after he immigrated to the U.S. Iqbal was neither charged with nor
convicted of involvement in Tariq’s gambling operation.
      DHS initiated removal proceedings against Iqbal in October 2008 on the
theory Iqbal immigrated to engage in unlawful commercialized vice through
Tariq’s illegal gambling enterprise. DHS attempted to introduce Iqbal’s PSR to
demonstrate that Iqbal immigrated to the U.S. to assist in Tariq’s gambling
operations notwithstanding the district court’s contrary finding.           Iqbal’s
immigration counsel objected to the immigration court’s consideration of the PSR
without the district court’s consent. The immigration court ultimately sustained
Iqbal’s objection, requiring that DHS seek permission from the district court to
unseal Iqbal’s PSR before admitting it into evidence.



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       DHS subsequently filed a motion before the district court to release Iqbal’s
PSR, including the portions referencing Tariq’s gambling operations, after
redacting a section including personal information on Iqbal and his family. DHS
relied on the balancing framework for determining a “compelling, particularized
need for disclosure” that was articulated by this court in United States v.
Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). The government, having agreed to
redact Iqbal’s personal information, contended that the public’s interest in
preventing an ongoing fraud on the immigration laws outweighed Iqbal’s
remaining privacy interests. Iqbal argued that DHS should instead establish its
immigration case against Iqbal through various witnesses, including the
investigating officer and Iqbal’s co-defendants. When combined with Iqbal’s
substantial privacy interests, this alternate avenue to make its case, Iqbal
urged, defeated DHS’s claim of a particularized need to disclose Iqbal’s PSR.
Iqbal further requested the district court to sanction DHS attorneys for filing
Iqbal’s sealed PSR with the immigration court without the district court’s
permission. The district court found our Huckaby framework instructive and,
balancing the Huckaby interests, released the redacted PSR to the immigration
court.1 The court summarily denied Iqbal’s sanctions request.
       Iqbal appeals, contending that Huckaby is the proper framework for
evaluating release of Iqbal’s PSR, but the district court abused its discretion in
concluding DHS demonstrated a particularized need in light of its other means
to establish Iqbal’s immigration violation. Iqbal further presses his sanctions
argument against DHS attorneys.




       1
         The court ordered redaction of the PSR’s Part C, “Offender Characteristics,” and
Iqbal’s objections thereto, and confined disclosure to confidential disclosure only in the San
Antonio immigration court.

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                                   No. 10-51200
                           STANDARD OF REVIEW
      We review the district court’s disclosure of a presentence report for abuse
of discretion. Huckaby, 43 F.3d at 138. We similarly review a district court’s
decision whether to impose sanctions for abuse of discretion, reviewing the
district court’s underlying factual findings for clear error. Brown v. Oil States
Skagit Smatco, 664 F.3d 71, 76-77 (5th Cir. 2011).
                                  DISCUSSION
      The question in this case is under what circumstances government lawyers
may release a convicted defendant’s PSR to immigration authorities for use in
subsequent immigration proceedings. Federal Rule of Criminal Procedure 32
requires preparation of a PSR in most circumstances, but, except for
(a) requiring confidentiality until the defendant has been convicted or pled guilty
and (b) entitling the defendant to the report before sentencing, provides no
guidelines for either the confidentiality or disclosure of the PSR. FED. R. CRIM.
P. 32(c), (e). PSR confidentiality instead derives from judicial practice, reflecting
“powerful policy considerations” supporting a presumption against disclosure.
Huckaby, 43 F.3d at 138.
      This court examined the three policy considerations underpinning PSR
confidentiality in Huckaby. “First, the defendant has a privacy interest in the
[PSR] because it reveals not only details of the offense but, in the broadest
terms, ‘any other information that may aid the court in sentencing[.]’” Id. This
can include the defendant’s physical, mental, and emotional condition, prior
criminal history (including uncharged crimes), personal financial information,
educational status, and more. Id. “That the defendant has . . . been convicted
of a crime does not require the dissemination of his entire personal background
in the public domain.” Id. Further, PSRs, not subject to judicial rules of
evidence, may contain errors; while Rule 32 provides a defendant an opportunity
to correct these errors, a PSR is rarely revised to remove misinformation. Id.

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Second, PSRs often rely on confidential sources in gathering information about
the defendant’s involvement in criminal activity; regularly breaching the PSR’s
confidentiality could severely compromise the government’s access to
information. Id. Finally, the court relies heavily on the PSR to impose a just
sentence. If the defendant or cooperating third parties could reasonably fear the
regular release of PSR-gathered information, it could “stifle or discourage that
vital transmission of information by defendants” and third parties, thereby
hampering the court’s ability to impose a sentence consistent with the
Sentencing Guidelines. Id.
      But as this court explained in Huckaby, neither the policy of
confidentiality nor its underlying considerations are absolute. The release of a
PSR is permitted in whole or part when the moving party can show a
“compelling, particularized need for disclosure” to meet the ends of justice. Id.;
see also United States v. Charmer Indus., Inc., 711 F.2d 1164, 1174-75 (2d Cir.
1983). When a party shows a compelling need for disclosure in pursuit of justice,
the district court may disclose those portions of the report “directly relevant to
the demonstrated need.” Huckaby, 43 F.3d at 138.
      Although not directly on point, Huckaby supplies a reasonable framework
for analyzing PSR releases to immigration authorities. Iqbal attacks the district
court’s order from both sides of Huckaby — arguing that DHS failed to
demonstrate a compelling, particularized need as well as that the Huckaby
factors required maintaining the PSR’s confidentiality.            DHS’s proffered
justification of preventing fraud on U.S. immigration laws is clearly a compelling
need toward the ends of justice. Indeed, PSR’s generally contain language
indicating that “[d]isclosure of this [PSR] to the Federal Bureau of Prisons and
re-disclosure . . . is authorized by the United States District Court solely to assist
administering the offender’s prison sentence . . . and other limited purposes,
including deportation proceedings.” This standard advisory, which was present

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                                   No. 10-51200
in Iqbal’s PSR, attests to the government’s need to share uniquely available
criminal conviction information, when appropriate, with immigration officials.
Furthermore, in contrast to Huckaby and several other requests for public
release, DHS here requested the selective release of Iqbal’s PSR to the
immigration judge for the limited purpose of Iqbal’s removal proceedings — and
after a substantial redaction of Iqbal’s individual information. We can easily
conclude DHS’s request in these circumstances was in furtherance of a
compelling, particularized need.
      Two of the three Huckaby factors also prove unproblematic. Neither Iqbal
nor the government expresses concern that release of Iqbal’s report to an
immigration judge in removal proceedings will compromise confidential
informants or other governmental access to information. Iqbal contends the
third factor — free flow of information to the court in order to impose a just
sentence — weighs against disclosure.       Given the large number of aliens
annually placed into removal proceedings for federal criminal convictions,
release of PSR’s for immigration purposes will generally deter cooperation with
PSR-related inquiries and interviews. We cannot agree. The district court
restricted the PSR’s use to proceedings only against Iqbal and in confidence. In
Huckaby, in contrast, release was approved to the public at large. If deterrence
of cooperation with authorities was not considered sufficient to block public
release of a PSR, it cannot suffice under the limited disclosure ordered here.
      The first factor, Iqbal’s privacy concerns and the potential for misleading
or inaccurate information, is somewhat closer on the facts of this case. During
sentencing, Iqbal vigorously contested the inclusion of multiple statements in
the PSR, including his participation in Tariq’s gambling ring, his knowledge of
illegal activity prior to entering the U.S., and the PSR’s calculation of the
amount of laundered funds. The district court specifically found that Iqbal had
no knowledge of Tariq’s illegal enterprise before Iqbal entered the U.S. In

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Huckaby, the defendant did not challenge the accuracy of the PSR’s information,
as Iqbal clearly, and understandably, does. Huckaby, 43 F.3d at 139.
       But the inaccuracies are, in the end, not cause for concern. The sentencing
court’s rulings favoring Iqbal on PSR objections are matters of public record.
The court’s redactions eliminated the possibility that other embarrassing or
personal information would come to light.2 These circumstances lead us to
conclude the district court did not abuse its discretion in holding that the public
interest in disclosure of Iqbal’s redacted PSR to the immigration judge
outweighed his remaining privacy interest against the dissemination of
inaccurate information.
       Iqbal’s request for contempt proceedings against DHS’s attorneys,
however, is without merit. Federal courts may punish contemnors criminally,
through     fines    or    imprisonment,      for   breaking      their    lawful    orders.
18 U.S.C. § 401(3). But criminal contempt requires a reasonably specific order,
a contemptuous act violating that order, and a willful, contumacious, or reckless
state of mind. United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009); United
States v. Landerman, 109 F.3d 1053, 1068 (5th Cir. 1997). Notwithstanding the
traditional judicial rule mandating confidentiality except for a compelling,
particularized need in the ends of justice, Iqbal’s PSR, like many PSRs, contains
a disclaimer indicating that “re-disclosure [of the PSR] . . . is authorized by the
United States District Court solely to assist administering the offender’s prison
sentence . . . and other limited purposes, including deportation proceedings.”
Though the district court properly sealed the PSR, and the immigration court



       2
         District courts rarely disagree with or redact PSRs, often adopting their factual
findings in full. Further, defendants have an opportunity to challenge any factually incorrect
information contained in PSRs, and district courts must specifically resolve any disputed
portion of the PSR. FED. R. CRIM. P. 32(i)(3)(B). The circumstances under which a defendant
could validly object to court-approved release consistent with Huckaby of his PSR for use by
an immigration court against him would therefore be rare.

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correspondingly properly required district court approval to unseal the report,
DHS’s attorneys did not behave contumaciously in relying on this disclosure in
attempting to introduce the PSR to the immigration judge without the district
court’s permission. Without the willful violation of a clear order, the district
court properly declined to hold the DHS attorneys in contempt.
                                CONCLUSION
      The district court did not abuse its discretion in applying the Huckaby
factors, nor did it err in evaluating and balancing those factors. Further the
court did not abuse its discretion in declining to initiate contempt proceedings,
as DHS’s attorneys did not contumaciously violate a clear order. We therefore
AFFIRM the district court’s orders.
                                                                  AFFIRMED.




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