Adopted December 23, 2002
Amended October 26, 2005.
LCrR32.1. Presentence Investigations
(a) Application of Rule. This rule shall apply in those instances where the offense for which the defendant is to be sentenced was committed on and after 1 November 1987. For offenses committed prior to that date, the court may adhere to these provisions or amend them as permitted by law.
(b) Definitions. The following definitions shall apply to this rule:
(1) "business day" shall include any day other than a Saturday, a Sunday, or a legal holiday as defined by Fed.R.Crim.P. 45(a);
(2) "day" (except where used in the term "business day") shall refer to all days, including Saturdays, Sundays, and legal holidays as defined by Fed.R.Crim.P. 45(a);
(3) "determination of guilt" shall mean the entry of a judgment of conviction whether by plea or after trial;
(4) "Guidelines" shall mean the United States Sentencing Guidelines and Policy Statements promulgated pursuant to 28 U.S.C. §§944;
(5) "probation officer" shall mean the probation officer assigned to prepare the presentence investigation report; and
(6) "report" shall mean the presentence investigation report.
(c) Scheduling of Hearing. Upon the determination of guilt, the court shall set a date for the sentencing hearing. The hearing shall be set 63 days after the determination of guilt. Any motion to modify the time limits in this Rule must be made at the time the sentencing hearing date is set.
(d) Notifying Probation Department. Following determination of guilt, the attorney for the defendant and the defendant, unless in custody, shall report immediately to the probation department to begin the presentence investigation.
If the defendant is incarcerated, the attorney for the defendant shall report to the probation department and provide the information needed to begin the presentence investigation.
Within 2 business days following determination of guilt, the court's courtroom deputy shall forward a presentence referral form to the probation department.
(e) Submission of Versions. Not more than 10 business days after the determination of guilt, the attorney for the government shall submit to the probation officer its version of the offense conduct. Not more than 5 business days after submission of the government's version of the offense conduct, the attorney for each defendant shall submit a version of the offense conduct to the probation officer. The attorneys shall serve copies of their versions upon opposing counsel and upon the attorney for any co-defendant as to whom a determination of guilt has been made. Within 5 business days after the receipt of the co-defendants' versions, each co-defendant's attorney shall submit to the probation officer and serve upon all counsel that defendant's version of the offense conduct as it relates to the defendants' respective roles in the offense. Failure to submit a version of the offense conduct within 5 business days after the government's submission of its version of the offense conduct may constitute waiver of the right to have such material considered within the PSR, and the probation officer will have the right to make determinations without regard to a defendant's version of the offense conduct submitted after that date.
(f) Presentence Investigation Report. Not later than 10 business days prior to sentencing, the probation officer shall complete and issue the presentence investigation report to the Court, the defendant and defense counsel, and counsel for the government . The recommendation of the presentence report shall be submitted only to the Court. The recommendation section shall not include any factual information not already contained in the other sections of the report.
(g) Position Paper. Not later than 5 business days prior to sentencing, counsel for the defendant and counsel for the government shall each file with the Court and the probation officer a pleading entitled "[Defendant's or Government's] Position Paper as to Sentencing Factors." The paper shall specify--
(1) any factor important to the sentencing determination that is reasonably in dispute,
(2) any additional material information affecting the sentencing ranges established by the Guidelines, and
(3) any other objections or corrections to the report.
Any objection or correction not filed at that time shall be deemed waived, unless for good cause shown the court permits it to be raised at the sentencing hearing. The attorneys shall serve copies of the position papers upon opposing counsel and upon the attorney for any co-defendant as to whom a determination of guilt has been made.
(h) Responsibility of Attorneys to Review Presentence Investigation Report. Counsel for the defendant shall meet with the defendant to read and discuss the report at a reasonable time prior to the date set for sentencing. Counsel for the government shall examine the final report not less than 2 business days prior to the date set for sentencing.
(i) Report and Letters. Letters to the court regarding the case or defendant shall be disclosed promptly to the probation department and all counsel.
(j) Availability of Report. Neither the report nor its contents shall be disclosed to any person or agency without the written permission of the sentencing judge. Upon notice of appeal, the probation department shall, with notification to the sentencing judge, forward under seal and apart from the appellate public file, a copy of the report to the clerk of the appellate court where it shall be held in that clerk's vault and available upon request for review by attorneys for the defendant and the government. Upon completion of all appellate matters, the report and the recommendation shall be returned to the probation department. Unauthorized copying, dissemination, or disclosure of the contents of the report in violation of these rules may be treated as contempt of court and punished accordingly.
Committee Comment: Prior to its most recent amendment, the rule had required the probation officer to “mail a preliminary report, without the recommendation to the defendant, the defendant’s attorney and the attorney for the government.” The above-quoted language did not expressly require that the recommendation be kept confidential. It merely prevented its early disclosure. We believe that the phrase “without the recommendation” was included in the prior rule because it reflected the long-standing
practice of confidentiality. This commonly accepted practice had existed for decades. All district courts in this Circuit treat the recommendations as confidential. Nevertheless, elimination of the phrase has led to uncertainty over the continuing confidentiality of the recommendations.
The Proposed Rule removes whatever doubt about confidentiality that may have arisen from our
2002 amendment.