United States v. Park

521 F.2d 1381 (9th Cir. 1975)



Fed. R. Crim. P. 32 asserts that the presentence report shall not be submitted to the court unless the defendant has pleaded guilty or has been found guilty. This language clearly permits the preparation of a presentence report before guilty plea or conviction, but it is equally clear that the report must not, under any circumstances, be submitted to the court before the defendant pleads guilty or is convicted. Submission of the report to the court before that point constitutes error of the clearest kind.


Defendant was convicted of attempting to bring valium tablets that were concealed in a vaseline-coated balloon into a federal prison in violation of 18 U.S.C.S. § 1791. On review, defendant argued that § 1791 was unconstitutional and that Fed. R. Crim. P. 32 was violated because the trial judge read the presentence report before announcing his verdict.


Did the trial judge commit an error by reviewing the presentence report before announcing a verdict?




The court held that reversal was mandated by the clear Rule 32 violation and ordered a new trial. To guide the district court on remand, the court also held that § 1791 was not unconstitutional. Defendant's conviction for attempting to bring valium onto the grounds of a federal prison was reversed as the trial judge's premature review of the presentence report was clear error. The statute defendant violated was not unconstitutional because it specifically notified prison visitors of conduct that was required and prohibited and served the legitimate government interest of prohibiting drugs from being brought onto prison grounds.

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