UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided*fn*: March 28, 1984.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
CHARLES BUNCH, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 82 C 30089 -- J. Waldo Ackerman, Judge.
Pell, Wood, and Cudahy, Circuit Judges.
PELL, Circuit Judge.
On October 19, 1982, defendant-appellant Charles Bunch was indicted for forcibly assaulting a federal employee in violation of 18 U.S.C. § 111 (1976). On March 6, 1983, the district court tentatively accepted defendant's negotiated plea pending the completion of a presentence report. After receiving and reviewing the report, the court rejected the plea agreement. Defendant then filed a motion for recusal, based on the fact that Judge Ackerman had read the presentence report. The court denied the motion and, following a jury trial, defendant was found guilty on May 23, 1983.
Defendant's principal argument on appeal, which presents a question of first impression in this circuit, is that a trial judge who reads a presentence report following a tentative plea agreement and subsequently rejects the plea agreement should recuse himself or herself from presiding at trial because of the possible prejudice that might result from premature disclosure of the report to the judge.*fn1 Defendant relies primarily on Gregg v. United States, 394 U.S. 489, 22 L. Ed. 2d 442, 89 S. Ct. 1134 (1969). In Gregg, the Court held that submission of a presentence report to the trial judge before the time specified in Rule 32(c)(1)*fn2 "constitutes error of the clearest kind." Id. at 492. The Court emphasized the rule's purpose and its importance in our criminal jurisprudence.
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 presentencing report. No trial judge, therefore, should examine the report while the jury is deliberating 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.
394 U.S. at 492. The Court, however, affirmed Gregg's conviction because it was not clear from the record that the trial judge violated Rule 32.
In the case before us, it is clear that the trial judge did not violate Rule 32: the presentence report was not submitted to the court until after defendant pled guilty. While a trial judge should give serious consideration to recusing himself or herself in this situation, United States v. Gallington, 488 F.2d 637, 639-40 (8th Cir. 1973), cert. denied, 416 U.S. 907, 40 L. Ed. 2d 112, 94 S. Ct. 1613 (1974), Rule 32 does not require that a judge do so. We conclude that in the absence of a violation of Rule 32, the decision to grant or deny a recusal motion is subject to limited review by this court and the judgment below may be set aside only for an abuse of discretion or a showing by the defendant of actual prejudice. United States v. Bourque, 541 F.2d 290, 296 (1st Cir. 1976); United States v. Gallington, 488 F.2d at 640.*fn3
Defendant here has not demonstrated that he was prejudiced by the district court's review of the presentence report. The case was a simple, one-day criminal trial in which only two witnesses were called, both by the prosecution. The jury, not the judge, was the fact-finder. No objections were made by either side in the jury's presence. The only dispute, and this occurred in the judge's chambers, was over the defendant's proposed instruction on intoxication. The court refused to give this instruction because there was no evidence presented that defendant was intoxicated at the time of the assault. Defendant does not argue on appeal that the court erred in refusing to give this instruction. In short, there is no evidence that Judge Ackerman's review of the presentence report affected the trial at all to the prejudice of the defendant.
In addition, we find no abuse of discretion by the district court, particularly in light of the fact that the nearest judge in this district was located in another city.
While it may be preferable for the same judge to avoid trying the defendant on his not guilty plea, following the rejection of a guilty plea, if another judge is readily available, we must take cognizance of the fact that in some areas of our country the luxury of another judge is unknown.
Webster v. United States, 330 F. Supp. 1080, 1087 (E.D. Va. 1971). See also United States v. Bourque, 541 F.2d at 296.
Our holding is consistent with the history of Rule 32(c)(1). The notes of the advisory committee from the 1974 amendment to Rule 321(c)(1) state that the recusal decision in the situation before us is left to the trial judge's discretion.*fn4 In addition, judges often learn information about a defendant before trial which does not require automatic disqualification of the judge. For example, evidence concerning a defendant's background may come out during pretrial motions and bond hearings, see United States v. Sonderup, 639 F.2d 294, 296-97 (5th Cir.), cert. denied, 452 U.S. 920, 69 L. Ed. 2d 426, 101 S. Ct. 3059 (1981), or a judge may have knowledge of a defendant's prior criminal record from other cases, see United States v. Harris, 542 F.2d at 1304; Mitchell v. Sirica, 163 U.S. App. D.C. 373, 502 F.2d 375 (D.C. Cir.), cert. denied, 418 U.S. 955, 41 L. Ed. 2d 1177, 94 S. Ct. 3232 (1974). There is no per se recusal requirement in either of these situations.
Accordingly, we hold that the district court did not err in denying defendant's recusal motion.
Defendant claims that the indictment should have been dismissed because it did not allege that defendant knew or had any reason to know that his victim was a federal employee performing his official duties. The statute, however, does not require defendant's knowledge of his victim's employer. "All the statute requires is an intent to assault, not an intent to assault a federal officer." United States v. Feola, 420 U.S. 671, 684, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975).
Defendant also contends that there was insufficient evidence that he was the person who committed the assault. Our review of the record indicates that there was uncontradicted identification testimony. Consequently, we cannot say that there was no substantial evidence supporting the jury verdict. See United States v. Jordan, 722 F.2d 353, 359 (7th Cir. 1983).
Defendant's remaining contentions are without merit. The judgment of the district court is affirmed.