The U.S. District Court for the Middle District of Pennsylvania has amended its local Criminal Rule 32.7 to require mutual discovery of all material supplied to the probation officer by the prosecutor and defense counsel for use in preparation of the presentence report, which the court relies upon in determining the sentence. This means whatever information the prosecutor provides the probation officer about the defendant’s conduct must be disclosed to the defense attorney at the same time, and likewise the defendant’s attorney must disclose to the prosecutor what the defense attorney discloses to the probation officer. Civil practitioners who read this will most likely ask, “What is the big deal? If you file something the judge will see and use, opposing counsel should see it.”

The big deal is that in many jurisdictions, including the Eastern and Western districts of Pennsylvania, the prosecutor is not required to copy the defense counsel on what the prosecutor files with or makes available to the probation officer. The defense counsel may eventually see it reflected in the probation officer’s report. At that point, the defense counsel is swimming upstream late in the process to rebut information or a witness statement he or she has not seen. The Middle District amended rule solves many problems.

Some background is necessary here. Rule 32 of the Federal Rules of Criminal Procedure, adopted by the Supreme Court, requires that the probation officer is to conduct a presentence investigation and make a report to the court. Rule 32 also sets forth the information that the report must contain. The district courts are free to adopt local criminal rules describing how that investigation is to be conducted. The local criminal rules are numbered 32 to be consistent with the Federal Rules.

The importance of mutual discovery at sentencing is obvious. In federal court, over 85 percent of the criminal charges filed result in guilty pleas. Of those that go to trial, over 90 percent result in convictions. Thus, the sentencing hearing on a purely numerical basis is the most important facet of the criminal justice system. While there is a formal discovery process for trial preparation contained in the federal criminal rules, there are no formal rules of discovery for sentencing. Thus, for over 85 percent of the defendants (especially those who plead guilty before trial) the sentencing process is the first time there is any formal glimpse of much of the government’s evidence, and then it is usually only through the written summary report of the probation officer.

The sentencing hearing takes on an even greater importance because the federal sentencing guidelines require a complex compilation of factors affecting the sentence that the federal judge, with the aid of the probation officer, must decide. While the guidelines are advisory, all federal judges must first make a guideline determination of the sentence before deciding on the punishment. A majority of the sentences still approximate the guideline determination. Despite the importance of the sentencing process, the defense counsel gets little notice or discovery of what the prosecutor presents to the probation officer. From this information, the probation officer drafts the statement of the offense, describing the criminal actions of the defendant that the judge relies upon for sentencing. In many districts, including the Eastern and Western districts of Pennsylvania, crucial information is supplied ex parte to the probation officer by the prosecutor. This is not the result of some conspiratorial motive; it is the way the local rules are drafted. Eastern District Local Criminal Rule 32.3 requires the attorney for the government “to make available to the probation officer all investigative and file material relevant to the case.” Western District Local Criminal Rule 32 makes no mention of the procedure to be followed, and simply refers to Federal Criminal Rule 32, which states that the probation officer must conduct a presentence investigation and submit a report to the court. Thus, the prosecutor may give the probation officer access to material the defense counsel may not even know exists. The prosecutor may supply witness statements or investigative reports regarding upward adjustments to the sentence, such as describing the defendant as being a leader of a criminal group, or that the defendant engaged in a breach of trust, or used sophisticated means to carry out the offense. If accepted by the court, this evidence enhances the severity of the sentence. The information is usually supplied by the prosecutor to the probation officer by memo, reports of federal agents, witness statements and accounting reports. In the Eastern and Western districts, the prosecutor is under no obligation to provide this material to the defendant and upon a request from defendant for disclosure may legally refuse to do so.

The Middle District’s changes are reflected in a new Local Rule of Criminal Procedure 32.1, which will become effective December 1. The new rule requires much more than mutual discovery. Rule 32.1 requires the prosecutor, within seven days of a guilty verdict or guilty plea, to provide the probation officer and defense counsel with a comprehensive statement of offense conduct and supporting documentation. The rule also requires the statement of offense conduct to include all Chapter Two and Three adjustments required by the sentencing guidelines. This is important as the statement of offense conduct required by the guidelines contains what the prosecution contends is the entire criminal conduct of the defendant, which often includes conduct far more extensive than that charged in the indictment. The required statement of the adjustments to the basic guideline offense puts the defense counsel on notice of what conduct the government believes further enhances the sentence. Although the probation officer may recommend changes in the government’s calculations to the judge, at least the defense counsel knows what is on the table, and what he or she must confront.

What is equally significant is that Rule 32.1 requires the prosecutor to serve the defense counsel with any documentary evidence he or she provides to the probation officer. The same requirement is placed on the defense counsel. This is important as quite often the prosecutor supplies incriminating statements of witnesses or accomplices that are only known to the investigating agency.

An unstated benefit to the requirements of this new rule is that once the prosecutor designates the adjustments to the basic guideline offense, the defense counsel may (I suggest should) file a specific Brady request for all favorable material in the possession of the prosecutor and investigative agencies relating to those adjustments. There may be favorable information in witness interviews in the possession of the investigative agency that the defense would not know exist. Failure to file a specific Brady request prior to sentencing is a neglected practice among defense counsel.

The Eastern and Western districts of Pennsylvania should follow the Middle District’s lead and amend their local criminal rules on this subject. The Pennsylvania Association of Criminal Defense Lawyers, the Federal Bar Association and the local bar associations in those districts should propose draft amendments to the local rules reflecting a practice similar to that adopted by the Middle District. I proposed such an amendment for the Eastern District in this column in May 2010 but the court took no formal action. Two Eastern District judges, Judge Timothy Savage and Judge Berle M. Schiller, on their own motion now require the prosecution and defense counsel to provide each other with copies of all documents the same time each provides them to the probation officer. What I propose is not breaking new ground. The Northern District of Illinois has had such a provision for over 10 years. •

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at p.vaira@vairariley.com. Vaira has a blog devoted entirelyto Eastern District practice at http://petervaira.wordpress.com.