United States v. Danny John Montecalvo

545 F.2d 684 UNITED STATES of America, Plaintiff-Appellee, v. Danny John MONTECALVO, Defendant-Appellant. No. 75-1125. United States Court of Appeals, Ninth Circuit. Nov. 30, 1976. 1 Lawrence R. Horn, San Francisco, Cal., for defendant-appellant. 2 J. S. Obenour, Jr., Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee. ON REHEARING 3 Before HUFSTEDLER and CHOY, Circuit Judges, and REAL, * District Judge. 4 We granted the Government's petition for rehearing because we became convinced that the rule of United States v. Park (9th Cir. 1975) 521 F.2d 1381 , holding that a violation of Rule 32 of the Federal Rules of Criminal Procedure was per se reversible error, which we followed in our original opinion, 1 should not have been applied to this case. In Park, without the defendant's consent and in plain violation of Gregg v. United States (1969) 394 U.S. 489 , 89 S.Ct. 1134 , 22 L.Ed.2d 442 , the trial judge had read the presentence report before he announced his verdict. ( 521 F.2d at 1382 .) In this case, the trial judge read the presentence report after Montecalvo had entered a guilty plea, which later aborted during the Rule 11 hearing. Park should not apply to Montecalvo…

ON REHEARING

We granted the Government’s petition for rehearing because we became convinced that the rule of United States v. Park (9th Cir. 1975) 521 F.2d 1381 , holding that a violation of Rule 32 of the Federal Rules of Criminal Procedure was per se reversible error, which we followed in our original opinion, 1 should not have been applied to this case. In Park, without the defendant’s consent and in plain violation of Gregg v. United States (1969) 394 U.S. 489 , 89 S.Ct. 1134 , 22 L.Ed.2d 442 , the trial judge had read the presentence report before he announced his verdict. ( 521 F.2d at 1382 .) In this case, the trial judge read the presentence report after Montecalvo had entered a guilty plea, which later aborted during the Rule 11 hearing. Park should not apply to Montecalvo because the reading of the presentence report was induced by Montecalvo’s counsel, and the Rule 32 error, if any, was thus invited.

Because the Rule 32 issue vanishes, we turn to the only other contention that merits comment. Montecalvo claims that the district judge should have disqualified himself from trying the case after he filed an affidavit of bias against the judge pursuant to 28 U.S.C. § 144…

(concurring):

I concur in the result reached by the majority but adhere to the reasons set forth in my dissent. United States v. Montecalvo, 533 F.2d 1110 (9th Cir. 1976).