United States v. Danny John Montecalvo

533 F.2d 1110 UNITED STATES of America, Plaintiff-Appellee, v. Danny John MONTECALVO, Defendant-Appellant. No. 75-1125. United States Court of Appeals, Ninth Circuit. March 15, 1976. Lawrence R. Horn, San Francisco, Cal., for defendant-appellant. J. S. Obenour, Asst. U. S. Atty., Tacoma, Wash., for plaintiff-appellee. OPINION Before HUFSTEDLER and CHOY, Circuit Judges, and REAL, * District Judge. HUFSTEDLER, Circuit Judge: 1 Montecalvo appeals from his conviction for bank robbery. Only one of the three issues on appeal requires discussion: Did the district court violate Rule 32(c)(1) of the Federal Rules of Criminal Procedure by reading, prior to Montecalvo's conviction, material presented by the probation service to assist the court in sentencing? 2 On the afternoon of Montecalvo's arrest, he appeared before a federal magistrate and indicated that he wanted to waive indictment and enter a guilty plea. His lawyer promptly asked the probation and parole office to collect any material that it had about Montecalvo and to present the file to the district judge. The office complied, and, on the same afternoon gave the court a file containing records of Montecalvo's prior convictions,…

Montecalvo appeals from his conviction for bank robbery. Only one of the three issues on appeal requires discussion: Did the district court violate Rule 32(c)(1) of the Federal Rules of Criminal Procedure by reading, prior to Montecalvo’s conviction, material presented by the probation service to assist the court in sentencing?

On the afternoon of Montecalvo’s arrest, he appeared before a federal magistrate and indicated that he wanted to waive indictment and enter a guilty plea. His lawyer promptly asked the probation and parole office to collect any material that it had about Montecalvo and to present the file to the district judge. The office complied, and, on the same afternoon gave the court a file containing records of Montecalvo’s prior convictions, his prison records, *1111 and some information relating to the offense with which he was charged. The file was not formally denominated a presentence report.

When Montecalvo appeared before the district court the following morning, he entered a guilty plea, but during his Rule 11 interrogation, he withdrew his plea, and the court vacated it. The district judge to whom the file had been delivered and who conducted the…

(dissenting):

I dissent.

I do not read Gregg v. United States, 394 U.S. 489 , 89 S.Ct. 1134 , 22 L.Ed.2d 442 (1969), as creating or requiring a per se rule of reversal.

Assuming that the majority’s analysis of the facts is correct, the reasoning fails. The trial judge was not the trier of fact in this case. That was left to a jury determination, so we need not address the majority’s concern that there might be occasion for “injection into the guilt or innocence phase of the trial various kinds of information that would not be admissible as evidence to determine innocence or guilt.” Nor are we concerned that the facts of this case present a concern “to try to avoid convicting or appearing to convict a defendant for being a bad person instead of convicting him solely for committing the crime with which he [is being] charged.” The record discloses nothing that could support these concerns.

The reasoning behind the use of a per se rule in this instance involving former Rule 32(c)(1) bears no relation to the reality of the criminal trial process. There are numerous instances in which a district judge will be informed of the past deeds of a *1114 defendant before trial. Facts can…