Gregg v. United States

• Citation: 394 U.S. 489,22 L.Ed.2d 442,89 S.Ct. 1134
• Decision Date: 02 April 1969
• Docket Number: No. 453,453
• Parties: John McMillan GREGG, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

394 U.S. 489

89 S.Ct. 1134

22 L.Ed.2d 442

John McMillan GREGG, Petitioner,

v UNITED STATES.

No. 453.

Argued Feb. 25, 1969.

Decided April 2, 1969.

Rehearing Denied May 19, 1969.

See 395 U.S. 917, 89 S.Ct. 1738.

Dean E. Richards, Indianapolis, Ind., for petitioner.

Sidney M. Glazer, Washington, D.C., for respondent.

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 flase 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 trial and 18 minutes of jury deliberation, petitioner was convicted of jeopardizing the lives of the postal custodians while robbing them.¹ The 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 paro ed in 1964. 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.'

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.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 conviction³ 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.

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 delibe ating 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 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...