Can a sentencing court rely on evidence from a separate trial for sentencing purposes?

The Government cites to Serapo v. United States, 595 F.2d 3 (9th Cir.1979), where we found a defendant's due process rights were not violated by the sentencing court's reliance on evidence in the trials of two codefendants. Serapo, however, is not directly controlling because the information which was challenged was presented in both the presentence report and the separate trial testimony. Id. at 4. Under governing pre-Sentencing Guidelines law, we therefore hold there is no bar to the sentencing court consideration of hearsay testimony from a separate trial as long as this information is not shown to be materially false or unreliable under the standard pronounced in Messer, 785 F.2d at 834. ³

2. Discussion