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US Court Of Appeals Upheld Federal Statute On Contraband

The US Court Of Appeals for the Ninth Circuit held that a District Court
did not err in convicting the visitor of a prisoner at the Terminal Island
Federal Correctional Institution in California, for attempting to
introduce contraband into the institution. Loretta Mae Parks the appellant
was convicted in 1975, for bringing a Vaseline coated balloon with 30
valium tablets inside, into the prison visiting room. On appeal she argued
that the drugs were her own prescription drugs and that the federal
statute: 18 U.S.C. §1971, on its face was unconstitutionally vague and
overbroad. The statute reads that traffic in contraband contrary to any
rule or regulation promulgated by the Attorney General, introduced into
any Federal penal or correctional institution is illegal. She also argued
that the trial judge read her pre-sentence report before determination of
guilt. The court of appeals held that the rule banning the introduction of
drugs into the visiting room, as evidenced in the "visitor's form," was
specific enough to give the defendant notice of what conduct was required
of her and what acts were prohibited, and the court of appeals held that
it would seem most doubtful that one would be likely to carry their
prescriptions in a well lubricated balloon. The court of appeals held that
the trial judge's reading of defendant's pre-sentence report before
determination of guilt was reversible error. The case was reversed and
remanded. See: United States v. Park, 521 F.2d 1381 (9th Cir. 1975)

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Related legal case

United States v. Park

United States v. Park, 521 F.2d 1381 (9th Cir. 09/15/1975)


[2] No. 75-1761

[3] 521 F.2d 1381, 1975

[4] September 15, 1975


[6] Appeal from the United States District Court for the Central District of California.

[7] Barnes and Ely, Circuit Judges, and Gus J. Solomon,*fn* District Judge.

[8] Author: Per Curiam

[9] Appellant was convicted on February 24, 1975 of attempting to introduce 30 valium tablets concealed in a vaseline coated balloon (i.e., one suitably prepared for body cavity concealment) onto the grounds of the Terminal Island Federal Correctional Institution in violation of 18 U.S.C. § 1791.

[10] Appellant on this appeal alleges six grounds for reversal: (1) that the trial court violated Rule 32 of the Federal Rules of Criminal Procedure, by reading appellant's pre-sentencing report prior to determining defendant's guilt; (2) that 18 U.S.C. § 1791 on its face is unconstitutionally vague and overbroad; (3) that § 1791 is unconstitutional as applied to appellant; (4) that the trial court prejudiced appellant's rights by allowing the government to reopen its case twice, and allegedly applying the wrong standard of proof; (5) that the government's proof was at variance with the indictment; and (6) that there was insufficient evidence to support appellant's conviction.

[11] I

[12] We find appellant's first argument to be well taken. Rule 32 states:

[13] "(c) Presentence Investigation

[14] (1) When made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty." (Emphasis added.)

[15] The United States Supreme Court interpreting Rule 32 in Gregg v. United States, 394 U.S. 489, 22 L. Ed. 2d 442, 89 S. Ct. 1134 (1969) stated:

[16] "Rule 32 is explicit. It asserts that the 'report shall not be submitted to the court . . . unless the defendant has pleaded guilty or has been found guilty.' This 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. Submission of the report to the court before that point constitutes error of the clearest kind.

[17] "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 presentence 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." (Id. at 491-92). (Footnotes omitted.)

[18] Unlike in Gregg where the Supreme Court ultimately decided that the record was insufficient to show a violation of Rule 32 (the Supreme Court posited that the judge had read the short, well organized report in the few moments that elapsed between the jury verdict and sentencing), the record in the instant case clearly indicates that the trial judge had read the presentence report before he announced his verdict. On Monday, February 24, 1975, the day the court found appellant guilty, a colloquy took place between court and counsel, in which the court stated the presentence report had been read by him previously ("I think Thursday or Friday"), which would have been February 20th or 21st, 1975 (R.T. 226-228).

[19] This violation of Rule 32, in light of the Supreme Court's strong language in Gregg, mandates reversal.*fn1

[20] II

[21] Since we reverse on the grounds of the Rule 32 violation we do not reach all of appellant's other issues. However, it is necessary for us to reach the issue as to the constitutionality of § 1791 in order to provide proper guidance to the District Court on remand.

[22] Appellant claims that 18 U.S.C. § 1791 is on its face unconstitutionally vague and overbroad. That statute reads:

[23] "§ 1791. Traffic in contraband articles.

[24] Whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom anything whatsoever, shall be imprisoned not more than ten years. June 25, 1948, c. 645, 62 Stat. 786." (Emphasis added.)

[25] The enabling regulation 28 C.F.R. § 6.1, promulgated thereunder reads:


[27] "6.1 Consent of warden or superintendent required.

[28] "The introduction or attempt to introduce into or upon the grounds of any Federal penal or correctional institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the warden or superintendent of such Federal penal or correctional institution is prohibited. (Pub. Law 772, 80th Cong.; 18 U.S.C. 1791) [13 F.R. 5660, Sept. 30, 1948]"