Petitioner argues that his conviction for jeopardizing the lives
of postal custodians while robbing them should be reversed because
the trial judge read the presentence report before the jury
returned its verdict, in violation of Fed.Rule Crim.Proc. 32. This
contention is rejected. There is no direct evidence in the record
that the trial judge read the report before the jury's verdict was
delivered. Moreover, there was no prejudice to petitioner's rights,
since even if the judge read the report after the jury retired and
before it returned the verdict, he could not have affected the jury
prior to the verdict; the 25-year sentence was mandated by the
statute, and the information in the presentence report had been
revealed to the judge in an earlier psychiatric report. Pp.
394 U. S.
MR. JUSTICE WHITE delivered the opinion of the Court.
One afternoon, petitioner and another man robbed the post office
at Louisville, Kentucky, at gunpoint. Two women were in charge of
the post office, which had just closed, and petitioner warned them:
"One false move out of you, I'll blow your brains out." They were
then tied and gagged. A week later, a bank in Indiana was robbed.
Petitioner, found hiding in a motel closet with a pistol, and money
orders stolen from the post office, was arrested for the bank
robbery. After a one-day
Page 394 U. S. 490
trial and 18 minutes of jury deliberation, petitioner was
convicted of jeopardizing the lives of the postal custodians while
robbing them. [Footnote 1
offense carries a mandatory sentence of 25 years.
Immediately after the jury returned its verdict, the jurors were
polled and the judge, noting the mandatory 25-year sentence,
invited petitioner and his lawyer to exercise the right of
allocution. Both asked that petitioner be allowed to spend a few
days with his family before commencing to serve the sentence. The
judge refused, and counsel for petitioner asked that a presentence
investigation be made. The judge interrupted:
"A pre-sentence investigation has been made. It is before me
now, and I have read it. It shows a juvenile record. It shows in
1960 this defendant stole an automobile in violation of the Dyer
Act and was given an indeterminate youth commitment sentence. He
was paroled in 1965. He was returned -- no, he was paroled in '62,
returned as a parole violator in '65, and was not released full
time until May of last year."
"I am also informed that he was convicted of armed robbery in
Yuma, Arizona, and given from seven to ten years. Several warrants
are now pending against him for robbery with which he is charged.
Page 394 U. S. 491
Petitioner seeks a reversal of his conviction, asserting as his
sole substantial argument that this record reveals that the trial
judge had read the presentence report before the jury returned its
verdict, in violation of Rule 32 of the Federal Rules of Criminal
Procedure. [Footnote 2
Rule 32 is explicit. It asserts that the "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 [Footnote 3
] but it
Page 394 U. S. 492
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.
Moreover, the rule must not be taken lightly. Presentence
reports are documents which the rule does not make available to the
defendant as a matter of right. There are no formal limitations on
their contents, and they may rest on hearsay and contain
information bearing no relation whatever to the crime with which
the defendant is charged. To permit the ex parte
introduction of this sort of material to the judge who will
pronounce the defendant's guilt or innocence or who will preside
over a jury trial would seriously contravene the rule's purpose of
preventing possible prejudice from premature submission of the
presentence report. No trial judge, therefore, should examine the
report while the jury is deliberating, since he may be called upon
to give further instructions or answer inquiries from the jury, in
which event there would be the possibility of prejudice which Rule
32 intended to avoid. Although the judge may have that information
at his disposal in order to give a defendant a sentence suited to
his particular character and potential for rehabilitation, there is
no reason for him to see the document until the occasion to
sentence arises, and, under the rule, he must not do so.
However, on the facts of this case, it does not emerge with
sufficient clarity that Rule 32 was violated, and
Page 394 U. S. 493
we therefore affirm the judgment below. The trial judge did not
state that he read the presentence report before the jury verdict
was delivered, nor is there any direct evidence in this record that
he did. Only a few minutes had elapsed between the delivery of the
jury verdict and his statement that he had the report before him
and had read it. But only a very short time was needed to read the
well organized five-page report, which was largely in widely spaced
tabular form. It is entirely possible that the practice was
followed of handing the report from the probation officer to the
court just as the jury's verdict was delivered.
We also take note of the very special circumstances appearing in
this case. Even if this record revealed that the judge had read the
presentence report after the jury retired and before the return of
the verdict, the judge could not have infected the jury with
anything he learned from the report, since there was no necessity
or occasion for communicating with the jury once it began its
deliberations, and the jury delivered its verdict immediately upon
emerging from seclusion. Moreover, the judge had no discretion
whatever in sentencing, since the statute prescribed a 20-year
sentence, and the only question before him was whether petitioner
should be put on probation. Aside from the information about this
particular crime which was developed at trial, the judge had had
occasion to study a comprehensive psychiatric report on petitioner
in determining his competence to stand trial. Every item of
information to which the trial judge adverted in sentencing had
been revealed to him in the psychiatric report. Moreover, the
psychiatric report was three times as long as the presentence
report, which was in every material respect a condensation of the
psychiatric report. It must have been apparent at a glance to the
trial judge that the presentence report contained no new
Page 394 U. S. 494
his decision to refuse probation was amply supported by what he
had heard at trial and read in the psychiatric report alone. Since
the brief presentence report came to the same conclusion on the
basis of far less detailed information than the judge already had
at his disposal, there was no occasion to study it.
We are unable to conclude from this record either that the
presentence report was submitted to the court before the verdict
was delivered, thus violating the letter of the rule, or that the
handling of the presentence report raised any possibility of
prejudice to petitioner's rights under Rule 32.
For these reasons, the judgment is
"Whoever assaults any person having lawful charge, control, or
custody of any mail matter or of any money or other property of the
United States, with intent to rob, steal, or purloin such mail
matter, money, or other property of the United States, or robs any
such person of mail matter, or of any money, or other property of
the United States, shall, for the first offense, be imprisoned not
more than ten years, and if in effecting or attempting to effect
such robbery he wounds the person having custody of such mail,
money, or other property of the United States, or puts his life in
jeopardy by the use of a dangerous weapon, or for a subsequent
offense, shall be imprisoned twenty-five years."
18 U.S.C. § 2114.
"(1) Imposition of Sentence.
Sentence shall be imposed
without unreasonable delay. . . ."
"* * * *"
"(c) Presentence Investigation.
"(1) When Made.
The probation service of the court
shall make a presentence investigation and report to the court
before the imposition of sentence or the granting of probation
unless the court otherwise directs. The report shall not be
submitted to the court or its contents disclosed to anyone unless
the defendant has pleaded guilty or has been found guilty."
The report of the presentence
investigation shall contain any prior criminal record of the
defendant and such information about his characteristics, his
financial condition and the circumstances affecting his behavior as
may be helpful in imposing sentence or in granting probation or in
the correctional treatment of the defendant, and such other
information as may be required by the court. The court before
imposing sentence may disclose to the defendant or his counsel all
or part of the material contained in the report of the presentence
investigation and afford an opportunity to the defendant or his
counsel to comment thereon. Any material disclosed to the defendant
or his counsel shall also be disclosed to the attorney for the
"* * * *"
The history of the rule confirms this interpretation. The first
Preliminary Draft of the rule would have required the consent of
the defendant or his attorney to commence the investigation before
the determination of guilt. Advisory Committee on Rules of Criminal
Procedure, Fed.Rules Crim.Proc., Preliminary Draft 130, 133 (1943).
The Second Preliminary Draft omitted this requirement and imposed
no limitation on the time when the report could be made and
submitted to the court. Advisory Committee on Rules of Criminal
Procedure, Fed.Rules Crim.Proc., Second Preliminary Draft 126-128
(1944). The third and final draft, which was adopted as Rule 32,
was evidently a compromise between those who opposed any time
limitation and those who preferred that the entire investigation be
conducted after determination of guilt. See
5 L. Orfield,
Criminal Procedure Under the Federal Rules § 32.2 (1967).