2011 U.S. Dist. LEXIS 32522

Decided March 28, 2011

Opinion by Chief District Judge John Woodcock, Jr.:

On November 10, 2010, Brandon Caparotta pleaded guilty to theft of firearms from a licensed dealer, a violation of 18 U.S.C. § 922(u), and possession of stolen firearms, a violation of 18 U.S.C. § 924(a)(2). At the guilty plea, the Court ordered the preparation of a presentence report (PSR).

and quoted from paragraph 7 of the PSR:

While at the residence, Caparotta gave Cory Damon the mini-bike, which Caparotta reported stealing, and asked Damon to sell it for him, so they could split the money. They were in the process of stealing a Ninja 1000 motorcycle when the pickup truck got stuck in a ditch and the police came.

The issue:

She explained that she was not objecting because the PSR inaccurately reported what Corey Damon had said; rather, she was objecting because what Corey Damon had said was false and should not be considered by the Court.


Defense counsel contended that under Rule 32(i)(3)(B), the Court had an obligation to strike the portion of the PSR to which she had objected. Fed. R. Crim. P. 32(i)(3)(B).


The Court therefore ORDERS Brandon Caparotta within seven days of the date of this Order to set forth in detail precisely what statements he contends are erroneous on a line by line basis

Presumably that hearing in Maine District Court went forward – but later, this same defendant’s case on subsequent appeal, the First Circuit affirmed the conviction, USA v Caparotta, 676 F.3d 213 (April 5, 2012, 1st Cir.) – This case decided before Chief Circuit Judge Lynch, Retired Associate Justice of the Supreme Court David Souter sitting by designation and Associate Circuit Justice Stahl, who wrote the opinion:

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months’ imprisonment. That sentence was based, in part, on the district court’s finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta’s due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

Petition for writ of certiorari to the Supreme Court was denied, Caparotta v US, No. 11-10207, 132 S. Ct. 2754 (June 11, 2012); JUDGES: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.