United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION FOR PRE-PLEA
PRESENTENCE INVESTIGATION REPORT
Frederick P. Stamp, Jr. United States District Judge.
October 2, 2019, the defendant, Martin Anderson
(“Anderson”) filed a motion seeking leave for the
preparation of a pre-plea presentence investigation report.
ECF No. 50. In his motion, the defendant states that he
requires a pre-plea presentence investigation report to aid
in his decision of whether to enter a plea of guilty in this
matter. Id. at 1. The defendant attached a Federal
Rule of Criminal Procedure 32(e)(1) Waiver to his motion.
See ECF No. 50-1.
reasons stated below, defendant Anderson's motion for a
pre-plea presentence investigation report (ECF No. 50) is
GRANTED IN PART and DENIED IN PART.
18, United States Code, Section 3552 and Rule 32 of the
Federal Rules of Criminal Procedure govern the preparation
and use of presentence reports. Title 18, United States Code,
Section 3552 states “[a] United States probation
officer shall make a presentence investigation of a defendant
that is required pursuant to the provisions of Rule 32(c) of
the Federal Rules of Criminal Procedure, and shall, before
the imposition of sentence, report the results of the
investigation to the court.” 18 U.S.C. § 3552(a).
Federal Rule of Criminal Procedure 32(e)(1) states
“[u]nless the defendant has consented in writing, the
probation officer must not submit a presentence report to the
court or disclose its contents to anyone until the defendant
has pleaded guilty or nolo contendere, or has been found
guilty.” Fed. R. Crim. P. 32(e)(1).
Advisory Committee Notes of Federal Rule of Criminal
Procedure 32(e)(1) indicate that “the language [of Rule
32] clearly permits the preparation of a presentence report
before guilty plea or conviction.” Fed. R. Crim. P.
32(e)(1), Advisory Committee Notes, 1989 Amendments
(quotation marks omitted); see also Gregg v. United
States, 394489, 491 (1969) (“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 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
Rule 32(e)(1) “permits, but does not require,
disclosure of the report with the written consent of the
defendant.” Fed. R. Crim. P. 32(e)(1) at Advisory
Committee Notes, 1989 Amendments. Further, Rule 32(e)(1)
“does not [ ] indicate why a presentence report might
be created prior to a plea of guilty, to what purposes such a
report might legitimately be put, or whether such a report
may be created and disclosed before a plea agreement is
reached.” United States v. Rodriguez, No.
06-40007-FDS, 2007 WL 2908640, at *1 (D. Mass. Oct. 3, 2007).
Court concludes that, to the extent it has authority to order
a pre-plea presentence report, it declines to exercise that
authority under the circumstances presented here.
a critical component of the presentence investigation is the
interview with the defendant. This interview may interfere
with the defendant's Fifth Amendment right against
self-incrimination, and may develop incomplete or inaccurate
information due to the defendant's uncertainty about full
a pre-plea presentence report may create expectations about a
tentative guideline sentencing range that could vary
considerably from the range ultimately used at sentencing.
Creation of a pre-plea presentence investigation report could
lead to claims that the defendant's plea was not knowing
and voluntary, or claims of government misconduct if the
defendant does not plead guilty and the government changes
any of its factual or legal positions. Therefore, there is
substantial potential for unfairness to the defendant and the
preparation of presentence reports is complex, time
consuming, and places an unnecessary burden on the United
States Probation Office's investigators.
the Probation Office's investigator may be placed in the
impermissible role of arbiter and fact finder for purposes
other than assisting the Court in determining an appropriate
sentence. Rule 11(c)(1) of the Federal Rules of Criminal
Procedure prohibits the Court from participating in plea
discussions. “The Probation Office is an arm of the
court, and as such must avoid involving itself in the
parties' plea negotiations.” United States v.
Sanchez, No. 1:15-CR-42-DN, 2016 WL 3920178, at *2 (D.
Utah July 18, 2016).
these concerns with the preparation of a pre-plea presentence
report, a full presentence report will not be ordered
pre-plea in this case. See Sanchez, 2016 WL 3920178,
at *2 (denying preparation of a full pre-plea presentence
investigation report after listing concerns similar to those
set forth above); Rodriguez, 2007 WL 2908640, at *1
(declining to use any discretion to direct the probation
officer to prepare a full pre-plea presentence investigation
report after listing concerns similar to those set forth
above); United States v. Kearns, 109 F.Supp. 1309,
1318 (D. Kansas 2000) (denying the defendant's motion for
an order directing that a ...