In federal court, a defendant is entitled to pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure. This is an important due process protection that allows a defendant to know what he will be facing at trial. But what about at sentencing? Since most federal cases are resolved through guilty pleas, isn't it equally important to get copies of what the prosecutor provides to the probation officer to determine the Guidelines range? One would think so, but in most federal courts such disclosure during the sentencing phase is not required. Fortunately, a slow change seems to be underway, led by the Middle District of Pennsylvania.
Unlike Rule 16, Rule 32 of the Federal Rules, which governs the sentencing procedure, does not require the disclosure of any material to the defense. The rule merely states that the probation officer must conduct a pre-sentence investigation and prepare a pre-sentence report. Some districts' local rules provide further guidance. For instance, the Eastern District of Pennsylvania Local Criminal Rules require the government to make available to the probation officer "all investigative and file material relevant to the case," but do not require that the material be disclosed to the defendant or his attorney. In practice, the probation officer typically relies upon evidence collected by the prosecution in the investigation to provide the factual support for such critical determinations as drug quantity, loss amount, the defendant's role in the offense, etc. The probation officer's decision on such determinations can have a significant effect on the Guidelines calculation, and ultimately the sentence. It seems natural, then, that the defense should have access to the documents that support the factual basis for such determinations.
So far, in Pennsylvania at least, only the Middle District of Pennsylvania has decided to change the rules to require reciprocal discovery during the pre-sentence investigation phase of a case. As explained by former Eastern District U.S. Attorney Peter F. Vaira in a recent article, the Middle District has amended its Local Rules to require mutual discovery of all material supplied to the probation officer for use in the pre-sentence report. The new rule (LCrR 32.1) states that "[t]he government shall provide to the defendant's counsel a copy of any documentary information provided to the probation officer to be considered in the preparation of the pre-sentence report at the same time as it is provided to the probation officer." The rule is reciprocal: "[t]he defendant or the defendant's counsel may submit documentary information to the probation officer and shall provide a copy to the attorney for the government at the same time as it is provided to the probation officer."
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The new Middle District rule goes even further, providing that "[w]ithin seven (7) days after a verdict of guilty or the entry of a plea of guilty or nolo contendere, the attorney for the government shall provide to the probation officer and to the defendant's counsel a comprehensive Statement of Offense Conduct and supporting documentation," and requires the Statement to address all Chapter Two and Chapter Three adjustments necessary to calculate the Guidelines range. Often such adjustments can lead to a substantial increase in the Guidelines range.
As Vaira points out, neither the Eastern or Western Districts of Pennsylvania have, as of this date, followed the Middle District's lead. They should.
It is a matter of statistics that the overwhelming majority of defendants charged in federal court ends up pleading guilty pursuant to a plea agreement. Thus, the discovery provided by Rule 16, while helpful to the defendant in deciding whether or not to plead guilty, will not, in most cases, be used at a trial. What will be used in every case resulting in a pre-sentence report is the information and documentary material that the prosecutor provides to the probation officer, information that forms the basis for the Guidelines range. And although the Guidelines are no longer mandatory but merely advisory, statistics also show that judges still adhere to the Guidelines in most cases.
The Middle District rule change will not only benefit the defense, it will lead to a smoother and more efficient system. The more each party knows about the other's evidence on sentencing factors, the fewer disputes there will be at sentencing. It was my experience as a prosecutor in the Middle District that in most cases the defense attorney has already reviewed, in the course of preparing the case for trial or plea, the materials provided to the probation officer during the pre-sentence phase. Still, it makes sense to require such disclosure so that it happens in all cases. Just as with trials, transparency during the sentencing phase leads to fewer contested issues, and a fairer system.