The opinion of the court was delivered by: J. Waldo Ackerman, Chief Judge.
Defendant was charged with four violations of 18 U.S.C. § 871
which prohibits threatening the life of the President of
the United States. Pursuant to Fed.R.Crim.P. 11(e)(1)(A),
Defendant and the government submitted a negotiated plea of
guilty to one count of the four violations. The plea was taken
under advisement pending the examination of the presentence
report. After examining the presentence report, this Court
refused to accept the plea agreement. Defendant's plea of
guilty was then set aside and the case is set for jury trial.
The procedure for a plea agreement is governed by the
Fed.R.Crim.P. 11(e). The parties have three different
alternatives in seeking a plea agreement: (1) The government
can move for dismissal of some charges; (2) the government can
make a recommendation or agree not to oppose the defendant's
request for a sentence; and, (3) the government may agree that
a specific sentence is appropriate for the disposition of the
case. If the selected alternative is a recommendation or an
agreement not to oppose the defendant's request for a
particular sentence, the Court should advise the defendant
that the recommendation may not be accepted and he,
nevertheless, has no right to withdraw his plea. In type (1)
and (2) plea agreements, if the Court rejects the plea
agreement, the defendant should be afforded an opportunity to
then withdraw his plea. Fed.R.Crim.P. 11(e)(2). A judge may,
and should, defer a decision on a plea agreement until after
he has the presentence report. Fed.R.Crim.P. 11 advisory
A district court possesses broad discretion in deciding
whether to accept or reject a guilty plea. United States v.
Bettelyoun, 503 F.2d 1333, 1336 (8th Cir. 1974). That
discretion is limited only by the procedural requirements of
Rule 11. Id. Further, a Court's rejection of a plea agreement
does not necessitate a recusal by the judge refusing the
agreement. United States v. Petty, 600 F.2d 713 (8th Cir.
1979); United States v. Jackson, 563 F.2d 1145, 1145-46 (4th
Cir. 1977). See also Fed.R. Crim.P. 11(e)(1); ABA Standards
Relating to Pleas of Guilty § 3.3(a) (approved draft, 1968).
The ABA Standards make no provision for a defendant to have
a different trial judge if a proposed plea agreement is
rejected even though a presentence report concerning the
defendant has been examined by the court. The Standards note
that a judge is not normally held to be disqualified from
presiding at a defendant's trial because information
concerning the defendant's guilt has previously come to the
Judge's attention. ABA Standards for Criminal Justice, 14-81
n. 10 (1980).
The Federal Rules of Criminal Procedure are not in complete
agreement with the ABA Standards. Fed.R.Crim.P. 32(c)(1)
provides that the presentence "report shall not be submitted
to the court or its contents disclosed to anyone unless the
defendant has plead guilty or nolo contendere, or has been
found guilty, except that a judge may, with the consent of the
defendant, inspect a presentence report at that time." The
notes of the Advisory Committee on the Federal Rules of
Criminal Procedure state that a judge should be free to recuse
himself when he rejects the plea agreement after seeing the
presentence report. The Committee would leave the recusal
decision to the discretion of the judge. Fed.R. Crim.P. 32
advisory committee notes.
Several courts have concurred with the Committee's judgment
that a judge is not automatically disqualified from trying a
defendant because he has reviewed a presentence report.
See, e.g., United States v. Sonderup, 639 F.2d 294, 296 (5th
Cir. 1981); Webster v. United States, 330 F. Supp. 1080, 1087
(E.D.Va. 1971). These courts have held that a showing of actual
prejudice is required to mandate a finding of reversible error
because of a judge's refusal to recuse. See United States v.
Lyon, 588 F.2d 581, 583 (8th Cir. 1978); United States v.
Bourque, 541 F.2d 290, 296 (1st Cir. 1976). Even courts that do
not believe a recusal is mandatory have noted that a judge
should give serious consideration to recusing from further
involvement in a case where he has seen the presentence report.
Lyon, supra, 588 F.2d at 583. They have conceded that it is
"preferable" to avoid having the same judge try the case.*fn1
Webster v. United States, 330 F. Supp. 1080, 1087.
The Committee's opinion, that recusal is determined in the
judge's discretion, is contradicted by the United States
Supreme Court's decision in Gregg v. United States,
394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). There the Court
Rule 32 is explicit. [The] 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 convicted. . . .
394 U.S. at 491-92, 89 S.Ct. at 1136-37 (emphasis supplied).
The Supreme Court has changed Rule 32, in that a defendant
may now receive a copy of the presentence report, but this
change has not effected the vitality of the Gregg opinion. See,
e.g., United States v. Montecalvo, 533 F.2d 1110, vacated on
other grounds, 545 F.2d 684, 685 (9th Cir. 1976) (where the
reading of the presentence report was induced by the
defendant's counsel, the Rule 32 error was invited by counsel
and was not reversible). The reasoning in Gregg remains because
the presentence report still may contain information bearing no
relation to the crime with which the defendant is charged.
Thus, if a judge views the presentence report prior to the
trial, the Supreme Court feels that it may prejudice his
conduct of the trial. Further, Gregg has been interpreted as
mandating recusal to avoid the appearance of prejudice when a
judge has examined the presentence report. Montecalvo, supra,
at 1112; United ...