I-SEARCH (tm) V1.89P Retrieved Documents Listing on 10/25/93 at 02:32:09. Database: USCODE Search: (32:CITE) ------DocID 39611 Document 1 of 127------ -CITE- 32 USC TITLE 32 -EXPCITE- TITLE 32 -HEAD- TITLE 32 - NATIONAL GUARD -MISC1- THIS TITLE WAS ENACTED BY ACT AUG. 10, 1956, CH. 1041, SEC. 2, 70A STAT. 596 Chap. Sec. 1. Organization 101 3. Personnel 301 5. Training 501 7. Service, Supply, and Procurement 701 Table Showing Disposition of All Sections of Former Title 32 --------------------------------------------------------------------- Title 32 Former Sections Title 32 New Sections --------------------------------------------------------------------- 1 T. 10 Sec. 311 2 101; T. 10 Sec. 101 3 T. 10 Sec. 312 4 305, 313 4a Rep. 4b 101; T. 10 Sec. 101 4c (1st 33 words) 101; T. 10 Sec. 101 4c (less 1st 33 words) Rep. 5, 6 104 7 Rep. 8 104 9 103 10 (proviso) 104 10 (less proviso) T. 10 Sec. 3542, 8542 11-14 314 15 105 16 104 17 110 18-20 Rep. 21 106 22 107 23 Rep. 24 108 25 Rep. 26 Elim. 31 701 32 Rep. 33 702 34 Rep. 35 702 36 Rep. 37 Elim. 38 Rep. 39, 39a 703 40 Rep. 42, 42a 709 43 Rep. 44 Elim. 45 712 46 711 47 710 47-1, 47a Elim. 47b, 48 Rep. 49, 50 708 51 Elim. 61 501 62 502 63 503 64 504 65 505 66, 67 506 68, 69 315 70 Rep. 71 507 72 317 73 Rep. 74 707 75 Rep. See T. 5 Sec. 502, 3551, 5534, 6323(a), (b) 76 Rep. See T. 5 Sec. 6323(a), (b) 81 Rep. 81a T. 10 Sec. 3500, 8500 81b T. 10 Sec. 3501, 8501 81c Rep. 82 T. 10 Sec. 3499, 8499 83 T. 10 Sec. 3502, 8502 84 Rep. 85, 86 Elim. 91 326 92 327 93 328 94 329 95 330 96 331 97 332, 333 111 305, 307 112 312 113 307 113a Rep. 114 324 115 323; T. 10 Sec. 3820, 8820 121, 122 Rep. 123 304 124 302 125 322 131 Rep. 132, 133 303 134 Rep. 141, 142 Elim. 142a-143a Rep. 144-148 Rep. 149-152 Elim. 153 Rep. 154 (last proviso of 2d par.) 710 154 (2d par., less last proviso) T. 31 Sec. 698a 154 (last par.) 303, 322, 323 154 (less 2d and last pars.) Rep. See T. 37 Sec. 206(a), (b), 402(b) 155 Rep. 156 705; T. 10 Sec. 4621, 9621 157 Rep. 158 503 159, 160 Rep. 160a 318, 321; T. 10 Sec. 3687, 3688, 3721, 8687, 8688, 8721 160b 3687 nt. 160c-164 Rep. 164a, 164b 319 164c Rep. 164d 320; T. 10 Sec. 3723, 8723 164e Rep. 171 Rep. 172, 173 T. 10 Sec. 3015 174 T. 10 Sec. 3541, 8541 175 T. 10 Sec. 3496, 8496 176 T. 31 Sec. 698 181 T. 10 Sec. 4308 181a T. 10 Sec. 4312 181b T. 10 Sec. 4312, 4313 181c T. 10 Sec. 4308 181d, 181e Elim. 182 T. 10 Sec. 4307 183 316; T. 10 Sec. 4310 184 T. 10 Sec. 4310 185 Rep. 186 T. 10 Sec. 4309 191 Rep. 192, 193 104 nt. 194(b) 109. Rep. in part 194 (less (b)) 109 195 Rep. 196 713 ------------------------------- POSITIVE LAW; CITATION This title has been made positive law by section 2 of act Aug. 10, 1956, ch. 1041, 70A Stat. 596, which provided in part that: 'Title 32 of the United States Code, entitled 'National Guard', is revised, codified, and enacted into law, and may be cited as 'Title 32, United States Code, Sec. - .' ' REPEALS Section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat. 641, repealed the sections or parts of sections of the Revised Statutes or Statutes at Large covering provisions codified in this act, 'except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this act (Aug. 10, 1956) and except as provided in section 49'. SAVINGS AND SEVERABILITY PROVISIONS Section 49 of act Aug. 10, 1956, ch. 1041, 70A Stat. 640, provided that: '(a) In sections 1-48 of this Act, it is the legislative purpose to restate, without substantive change, the law replaced by those sections on the effective date of this Act. However, laws effective after March 31, 1955, that are inconsistent with this Act shall be considered as superseding it to the extent of the inconsistency. '(b) References that other laws, regulations, and orders make to the replaced law shall be considered to be made to the corresponding provisions of sections 1-48. '(c) Actions taken and offenses committed under the replaced law shall be considered to have been taken or committed under the corresponding provisions of sections 1-48. '(d) If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. '(e) In chapter 47 of title 10, United States Code, enacted by section 1 of this Act, no inference of a legislative construction is to be drawn from the part in which any article is placed nor from the catchlines of the part or the article as set out in that chapter. '(f) The enactment of this Act does not increase or decrease the pay or allowances, including retired pay and retainer pay, of any person. '(g) The enactment of this Act does not affect the status of persons who, on the effective date of this Act, have the status of warrant officer, of the Army Mine Planter Service.' RESTATEMENT OF SUSPENDED OR TEMPORARILY SUPERSEDED PROVISIONS Section 50 of act Aug. 10, 1956, ch. 1041, 70A Stat. 640, provided that: 'If on the effective date of this Act a provision of law that is restated in this Act and repealed by section 53 would have been in a suspended or temporarily superseded status but for its repeal, the provisions of this Act that restate that provision have the same suspended or temporarily superseded status.' IMPROVEMENT OF UNITED STATES CODE BY PUB. L. 85-861; LEGISLATIVE PURPOSE; REPEAL OF INCONSISTENT PROVISIONS; CORRESPONDING PROVISIONS; SAVINGS AND SEVERABILITY PROVISIONS; STATUS; REPEALS Section 34 of Pub. L. 85-861 provided that: '(a) In sections 1-32 of this Act, it is the legislative purpose to restate, without substantive change, the law replaced by those sections on the effective date of this Act. However, laws effective after December 31, 1957, that are inconsistent with this Act shall be considered as superseding it to the extent of the inconsistency. '(b) References that other laws, regulations, and orders make to the replaced law shall be considered to be made to the corresponding provisions of sections 1-32. '(c) Actions taken under the replaced law shall be considered to have been taken under the corresponding provisions of sections 1-32. '(d) If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. '(e) The enactment of this Act does not increase or decrease the pay or allowances, including retired and retainer pay, of any person.' Section 35 of Pub. L. 85-861 provided that: 'If on the effective date of this Act (Sept. 2, 1958) a provision of law that is restated in this Act and repealed by section 36 would have been in a suspended or temporarily superseded status but for its repeal, the provisions of this Act that restate that provision have the same suspended or temporarily superseded status.' Section 36 of Pub. L. 85-861 repealed certain laws except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before Sept. 2, 1958. ------DocID 9850 Document 2 of 127------ -CITE- 7 USC CHAPTER 32 -EXPCITE- TITLE 7 CHAPTER 32 -HEAD- CHAPTER 32 - PEANUT STATISTICS -MISC1- Sec. 951. Collection and publication; facts required; submission of report. 952. Repealed. 953. Reports; by whom made; penalties. 954. Grades and standards for classification. 955. Limitation on use of statistical information. 956. Rules and regulations; cooperation with departments, etc.; officers and employees; expenses of administration; authorization of appropriations. 957. Definitions. 958. Report on origin of exports of peanuts. (a) Exporters of peanuts. (b) Collection of information. (c) Confidentiality of information. ------DocID 11476 Document 3 of 127------ -CITE- 8 USC Sec. 31, 32 -EXPCITE- TITLE 8 CHAPTER 2 -HEAD- Sec. 31, 32. Transferred -COD- CODIFICATION Sections 31 and 32 transferred to sections 1971 and 1972, respectively, of Title 42, The Public Health and Welfare. ------DocID 11964 Document 4 of 127------ -CITE- 10 USC CHAPTER 32 -EXPCITE- TITLE 10 Subtitle A PART II CHAPTER 32 -HEAD- CHAPTER 32 - OFFICER STRENGTH AND DISTRIBUTION IN GRADE -MISC1- Sec. 521. Authority to prescribe total strengths of officers on active duty and officer strengths in various categories. 522. Authorized total strengths: regular commissioned officers on active duty. 523. Authorized strengths: commissioned officers on active duty in grades of major, lieutenant colonel, and colonel and Navy grades of lieutenant commander, commander, and captain. 524. Authorized strengths: reserve officers on active duty or on full-time National Guard duty for administration of the reserves or the National Guard in grades of major, lieutenant colonel, and colonel and Navy grades of lieutenant commander, commander, and captain. 525. Distribution of commissioned officers on active duty in general officer and flag officer grades. 526. Authorized strength: general and flag officers on active duty. 527. Authority to suspend sections 523, 524, 525, and 526. AMENDMENTS 1988 - Pub. L. 100-370, Sec. 1(b)(3), July 19, 1988, 102 Stat. 840, struck out former item 526 'Authority to suspend sections 523, 524, and 525', and added items 526 and 527. 1984 - Pub. L. 98-525, title IV, Sec. 414(a)(4)(B)(ii), inserted references to the National Guard and to full-time National Guard duty in item 524. ------DocID 14621 Document 5 of 127------ -CITE- 10 USC APPENDIX - RULES OF COURT OF MILITARY APPEALS Rule 32 -EXPCITE- TITLE 10 APPENDIX UNITED STATES COURT OF MILITARY APPEALS RECONSIDERATION -HEAD- Rule 32. Form of Petition for Reconsideration -STATUTE- A petition for reconsideration, will be filed in substantially the following form: -MISC1- IN THE UNITED STATES COURT OF MILITARY APPEALS XXXXXXX, (Appellee) (Appellant) (Respondent) PETITION FOR (Petitioner) RECONSIDERATION v. CMR DKT. NO.XX XXXXXXX, USCMA DKT. NO.X (Appellant) (Appellee) (Petitioner) (Respondent) TO THE JUDGES OF THE UNITED STATES COURT OF MILITARY APPEALS: The Court is requested to reconsider its (opinion) (order) (decision) in this case for the following reason(s): (The petition shall state with particularity the points of law or fact which, in the opinion of the party seeking reconsideration, the Court has overlooked or misapprehended and shall contain such argument in support of the petition as the party desires to present. Petitions are not to contain merely a restatement of arguments already presented.) XXXXXXXXXXXXXXXXXXXXXXXX (Counsel's typed name and signature) XXXXXXXXXXXXXXXXXXXXXXXX (Counsel's address and telephone no.) CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was (mailed) (delivered) to the Court and (mailed) (delivered) to the (appellant) (appellee) (petitioner) (respondent) on XXXX. (Date) XXXXXXXXXXXXXXXXXXX (Typed name and signature) XXXXXXXXXXXXXXXXXXX (Address and telephone no.) ------DocID 15164 Document 6 of 127------ -CITE- 11 USC APPENDIX - BANKRUPTCY RULES Form 32 -EXPCITE- TITLE 11 APPENDIX BANKRUPTCY RULES AND OFFICIAL FORMS OFFICIAL FORMS -HEAD- Form 32. - Notice of Filing Final Account -STATUTE- (CAPTION AS IN FORM NO. 1) NOTICE OF FILING FINAL ACCOUNT(S) OF TRUSTEE, OF HEARING ON APPLICATIONS FOR COMPENSATION (AND OF HEARING ON ABANDONMENT OF PROPERTY BY THE TRUSTEE) To the creditors: The final report(s) and account(s) of the trustee in this case having been filed, Notice is hereby given, that there will be a hearing held at XXXX, XXXXXX, on XXXXXX, at XXXXXX, o'clock XXm., for the purpose (as appropriate) of examining and passing on the report(s) and account(s), acting on applications for compensation, and transacting such other business as may properly come before the court. Attendance by creditors is welcomed but not required. The following applications for compensation have been filed: --------------------------------------------------------------------- --------------------------------------------------------------------- Commission Applicants or Fees Expenses XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Interim Trustee XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Trustee XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Attorney for debtor XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Attorney for interim trustee XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Attorney for trustee XXXXXXXXXXXXXXXXX $XXXXX $XXXXX Attorney for petitioning creditors XXXXXXXXXXXXXXXXX $XXXXX $XXXXX ------------------------------- Creditors may be heard before the applications are determined. The account of the trustee shows total receipts of $XXXX and total disbursements of $XXXX. The balance on hand is $XXXX. In addition to expenses of administration as may be allowed by the court, liens and priority claims totalling $XXXX, must be paid in advance of any dividend to general creditors. Claims of general creditors totalling $XXXX have been allowed. (If appropriate) The trustee's application to abandon the following property will be heard and acted on: XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX The debtor has (not) been discharged. Dated: XXXXXX BY THE COURT XXXXXXXXXXXXXX, Bankruptcy Judge. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This form is adapted from former Official Form No. 29 which is an adaptation of a form which has been made available to bankruptcy judges by the Administrative Office of the United States Courts and used for a number of years. ------DocID 15201 Document 7 of 127------ -CITE- 12 USC Sec. 32 -EXPCITE- TITLE 12 CHAPTER 2 SUBCHAPTER I -HEAD- Sec. 32. Liabilities and suits as affected by change of name or location -STATUTE- Nothing contained in sections 30 and 31 of this title shall be so construed as in any manner to release any national banking association under its old name or at its old location from any liability, or affect any action or proceeding in law in which said association may be or become a party or interested. -SOURCE- (May 1, 1886, ch. 73, Sec. 4, 24 Stat. 19.) ------DocID 16759 Document 8 of 127------ -CITE- 12 USC CHAPTER 32 -EXPCITE- TITLE 12 CHAPTER 32 -HEAD- CHAPTER 32 - FOREIGN BANK PARTICIPATION IN DOMESTIC MARKETS -MISC1- Sec. 3101. Definitions. 3102. Establishment of Federal branches and agencies by foreign bank. (a) Approval of Comptroller. (b) Rules and regulations; rights and privileges; duties and liabilities; exceptions. (c) Application to establish Federal branch or agency; matters considered. (d) Receipt of deposits and exercising of fiduciary powers at Federal agency prohibited. (e) Maintenance of Federal branch and Federal agency in same State prohibited. (f) Conversion of foreign bank branch, agency or commercial lending company into Federal branch or agency; approval of Comptroller. (g) Deposit requirements; asset requirements. (h) Establishment of additional branches or agencies; approval of Comptroller. (i) Termination of authority to operate Federal branch or agency. (j) Receivership over assets of foreign bank in United States. 3103. Interstate banking by foreign banks. (a) Limitations. (b) Continuance of lawful interstate banking operations previously commenced. (c) Determination of home State of foreign bank. 3104. Insurance of deposits. 3105. Authority of Federal Reserve System. (a) Bank reserves. (b) Examination of branches and agencies by Board. (c) Reports to committees of Congress. 3106. Nonbanking activities of foreign banks. (a) Applicability of Bank Holding Company Acts. (b) Ownership or control of shares of nonbanking companies for certain period. (c) Engagement in nonbanking activities after certain period. (d) Construction of terms. 3106a. Compliance with State and Federal laws. 3107. Maintenance of office other than branch or agency by foreign bank; registration with Secretary of Treasury; application of State law. 3108. Regulation and enforcement. (a) Rules, regulations and orders. (b) Enforcement under Federal Deposit Insurance Act provisions. (c) Powers of Federal Reserve Board and Federal Deposit Insurance Corporation. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 619, 1813, 3902 of this title; title 15 section 78c; title 31 sections 3121, 9110. ------DocID 17475 Document 9 of 127------ -CITE- 15 USC Sec. 32, 33 -EXPCITE- TITLE 15 CHAPTER 1 -HEAD- Sec. 32, 33. Repealed. Pub. L. 91-452, title II, Sec. 209, 210, Oct. 15, 1970, 84 Stat. 929 -MISC1- Section 32, act Feb. 25, 1903, ch. 755, Sec. 1, 32 Stat. 904, granted immunity from prosecution to witnesses testifying or producing evidence, documentary or otherwise, in any proceeding, suit, or prosecution under section 1 to 11 of this title. See section 6001 et seq. of Title 18, Crimes and Criminal Procedure. Section 33, act June 30, 1906, ch. 3920, 34 Stat. 798, provided that, under the immunity provisions of former section 32 of this title, immunity was to extend only to a natural person who, in obedience to a subpoena, testified or produced evidence. EFFECTIVE DATE OF REPEAL Repeal effective on sixtieth day following Oct. 15, 1970, see section 260 of Pub. L. 91-452, set out as an Effective Date; Savings Provision note under section 6001 of Title 18, Crimes and Criminal Procedure. SAVINGS PROVISION Repeal of sections by Pub. L. 91-452 not to affect any immunity to which any individual was entitled under sections by reason of any testimony given before the sixtieth day following Oct. 15, 1970, see section 260 of Pub. L. 91-452, set out as an Effective Date; Savings Provision note under section 6001 of Title 18, Crimes and Criminal Procedure. ------DocID 17774 Document 10 of 127------ -CITE- 15 USC Sec. 80a-32 -EXPCITE- TITLE 15 CHAPTER 2D SUBCHAPTER I -HEAD- Sec. 80a-32. Filing of documents with Commission in civil actions -STATUTE- Every registered investment company which is a party and every affiliated person of such company who is a party defendant to any action or claim by a registered investment company or a security holder thereof in a derivative or representative capacity against an officer, director, investment adviser, trustee, or depositor of such company, shall file with the Commission, unless already so filed, (1) a copy of all pleadings, verdicts, or judgments filed with the court or served in connection with such action or claim, (2) a copy of any proposed settlement, compromise, or discontinuance of such action, and (3) a copy of such motions, transcripts, or other documents filed in or issued by the court or served in connection with such action or claim as may be requested in writing by the Commission. If any document referred to in clause (1) or (2) - (A) is delivered to such company or party defendant, such document shall be filed with the Commission not later than ten days after the receipt thereof; or (B) is filed in such court or delivered by such company or party defendant, such documents shall be filed with the Commission not later than five days after such filing or delivery. -SOURCE- (Aug. 22, 1940, ch. 686, title I, Sec. 33, 54 Stat. 839; Dec. 14, 1970, Pub. L. 91-547, Sec. 19, 84 Stat. 1428.) -MISC1- AMENDMENTS 1970 - Pub. L. 91-547 inserted provision for party acting in representative capacity and substituted provisions for prompt filing with the Commission of copies of all pleadings, verdicts, judgments, settlements, compromises, or discontinuances served or filed in suits by a registered investment company or a security holder thereof against an officer, director, investment adviser, trustee, or depositor of such company and of copies of motions, transcripts, or other documents if the Commission requests them for prior requirement that registered companies and their affiliated persons who are defendants in derivative suits involving an alleged breach of official duty transmit to the Commission copies of the pleadings and the record in such actions after a settlement or compromise of the action has been approved by a court of competent jurisdiction or a verdict or final judgment on the merits has been rendered, Commission use of information, and nondisclosure of identity of persons. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-547 effective Dec. 14, 1970, see section 30 of Pub. L. 91-547, set out as a note under section 80a-52 of this title. -TRANS- TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 80a-6, 80a-58 of this title. ------DocID 18489 Document 11 of 127------ -CITE- 15 USC CHAPTER 32 -EXPCITE- TITLE 15 CHAPTER 32 -HEAD- CHAPTER 32 - TELECASTING OF PROFESSIONAL SPORTS CONTESTS -MISC1- Sec. 1291. Exemption from antitrust laws of agreements covering the telecasting of sports contests and the combining of professional football leagues. 1292. Area telecasting restriction limitation. 1293. Intercollegiate and interscholastic football contest limitations. 1294. Antitrust laws unaffected as regards to other activities of professional sports contests. 1295. 'Persons' defined. ------DocID 19657 Document 12 of 127------ -CITE- 16 USC Sec. 32 -EXPCITE- TITLE 16 CHAPTER 1 SUBCHAPTER V -HEAD- Sec. 32. Lease of lands within park -STATUTE- The Secretary of the Interior is authorized and empowered to lease for a period not exceeding twenty years, at an annual rental to be determined by him, to any person, corporation, or company he may authorize to transact business in the Yellowstone National Park, separate tracts of land, not exceeding twenty acres each, at such places not to exceed ten in number to any one person, corporation, or company, in said park as the comfort and convenience of visitors may require for the construction and maintenance of substantial hotel buildings and buildings for the protection of stage, stock, and equipment. Such lease or leases shall not include any of the geysers or any objects of curiosity or interest in said park, or exclude the public from free and convenient approach thereto, or include any ground within one-eighth of a mile of any of the geysers of the Yellowstone Falls, the Grand Canyon, or the Yellowstone River, Mammoth Hot Springs, or any object of curiosity in the park; nor shall such lease convey either expressly or by implication any exclusive privilege within the park, except on the premises held thereunder and for the time therein granted. Every lease made for any property of said park shall require the lessee to observe and obey each and every provision in any Act of Congress, every rule, order, or regulation made or which shall hereafter be made and published by the Secretary of the Interior concerning the use, care, management, or government of the park, or any object or property therein under penalty of forfeiture of such lease, and shall be subject to the right of revocation and forfeiture, which shall therein be reserved by the Secretary of the Interior. The provisions of this section are not to be construed as mandatory upon the Secretary of the Interior, but the authority herein given is to be exercised in his sound discretion. -SOURCE- (Aug. 3, 1894, ch. 198, 28 Stat. 222; June 4, 1906, ch. 2570, 34 Stat. 207; Mar. 2, 1907, ch. 2518, 34 Stat. 1219.) -COD- CODIFICATION The first paragraph of this section is from act June 4, 1906, as amended by act Mar. 2, 1907, which changed the authorized term of leasing from ten years to twenty years as set out above. It superseded earlier provisions covering similar matter contained in the first sentence of act Aug. 3, 1894. The second paragraph of the section is from act Aug. 3, 1894, which contained a further proviso that 'persons or corporations now holding leases of ground in the park may, upon the surrender thereof, be granted new leases hereunder, and upon the terms and stipulations contained in their present leases, with such modifications, restrictions, and reservations as the Secretary of the Interior may prescribe' which has been omitted as temporary and executed. A further provision that 'so much of that portion of the act of March third, eighteen hundred and eighty-three, relating to the Yellowstone Park as conflict with the act, be and the same is hereby, repealed' and the portion of the act March 3, 1883, referred to in such provision, have been omitted from the Code, the last named portion having been superseded by the Acts cited to text. -CROSS- CROSS REFERENCES Leases of land in national parks generally, see section 3 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 33 of this title. ------DocID 20435 Document 13 of 127------ -CITE- 16 USC Sec. 410cc-32 -EXPCITE- TITLE 16 CHAPTER 1 SUBCHAPTER LIX-A Part C -HEAD- Sec. 410cc-32. Park preservation plan and index -STATUTE- (a) Submission by Commission and approval or disapproval by Secretary of draft and final plans; procedures applicable; revisions in approved plan (1) Within one year after the date on which the Commission conducts its first meeting, the Commission shall submit to the Secretary a draft park preservation plan meeting the requirements of subsection (c) of this section. The Secretary shall review the draft park preservation plan and, within ninety days after the date on which such plan is submitted to the Secretary, suggest appropriate changes in such plan to the Commission. (2) Within eighteen months after the date on which the Commission conducts its first meeting, the Commission shall submit to the Secretary a park preservation plan which meets the requirements of subsection (c) of this section. The Secretary shall, within ninety days after the date on which such plan is submitted to the Secretary, approve or disapprove such plan. The Secretary may not approve such plan unless the Secretary determines that such plan would adequately carry out the purpose of this subchapter. (3) If the Secretary disapproves a park preservation plan, the Secretary shall advise the Commission of the reasons for such disapproval together with the recommendations of the Secretary for revision of such plan. Within such period as the Secretary may designate, the Commission shall submit a revised park preservation plan to the Secretary. The Secretary shall approve or disapprove any revised park preservation plan in the same manner as required in paragraph (2) of this subsection for the approval or disapproval of the original park preservation plan. (4) If the Secretary approves a park preservation plan, the Secretary shall publish notice of such approval in the Federal Register and shall forward copies of the approved plan to the Congress. (5) Any park preservation plan or draft plan submitted to the Secretary under this subsection shall, upon request, be available to the public. (6) No changes other than minor revisions may be made in the approved park preservation plan without the approval of the Secretary. The Secretary shall approve or disapprove any proposed change in the approved park preservation plan, except minor revisions in the same manner as required in paragraph (2) of this subsection for the approval or disapproval of the original park preservation plan. (b) Funding availability and requirements for plan implementation, activities, etc. (1) Except as provided in paragraph (2) of this subsection, the Secretary shall not make any funds available to the Commission to carry out section 410cc-33 or 410cc-34 of this title until a park preservation plan has been approved under subsection (a) of this section. (2) Before a park preservation plan is approved under subsection (a) of this section, the Secretary may make available to the Commission such funds as the Commission may request to carry out any activity specified in paragraph (3) of this section. However, no funds shall be made available under this paragraph unless a proposal describing such activity is reviewed and approved by the Secretary. (3) The Commission may request funds from the Secretary to - (A) carry out activities to preserve, restore, manage, develop, or maintain any property identified in subsection (c)(1) of this section; (B) take any action the Commission considers necessary to provide owners of property with national historical or cultural significance within the park or preservation district with emergency assistance for the purpose of preserving and protecting their property in a manner consistent with the purpose of this subchapter; or (C) acquire in accordance with section 410cc-34 of this title, any property within the park which - (i) is identified in the report of the Lowell Historic Canal District Commission as a property which should be preserved, restored, managed, developed, or maintained in a manner consistent with the purpose of this subchapter; (ii) is listed in the National Register of Historic Places, as maintained by the Secretary pursuant to section 470a(a) of this title, and section 462(b) of this title; or (iii) is determined by the Secretary to be of national significance; and would be subject to demolition or major alteration in a manner inconsistent with the purpose of this subchapter unless acquired by the Commission. (c) Requirements for plan Any plan submitted to the Secretary under subsection (a) of this section shall - (1) describe the manner in which the Commission, to the extent practicable in accordance with the recommendations in the report of the Lowell Historic Canal District Commission, proposes to provide for the preservation, restoration, management, development, or maintenance of - (A) the Welles Block, 169 Merrimack Street; (B) the Jordan Marsh Company Building, 153 Merrimack Street and 15 Kirk Street; (C) the Yorick Club, 91 Dutton Street; (D) the Lowell Gas Light Company, 22 Shattuck Street; (E) St. Anne's Church and Rectory, 237 Merrimack Street; (F) Lowell Institution for Savings, 18 Shattuck Street; (G) the Ahepa Building, 31 Kirk Street; (H) Boott Mill, Foot of John Street; (I) Lowell Manufacturing Company on Market Street; and (J) the structure commonly referred to as the Early Residence, 45, 47, and 49 Kirk Street; (2) identify the properties included in the index established pursuant to subsection (d) of this section; (3) identify the properties which the Commission intends to acquire under section 410cc-34 of this title and specify how such properties shall be used; (4) include the standards and criteria established pursuant to subsection (e) of this section; (5) provide a detailed description of the manner in which the Commission intends to implement the grant and loan programs under section 410cc-33 of this title, including information relating to the estimated amount of such grants and the manner in which such grants shall be awarded by the Commission; (6) provide for a transportation program by which the Commission shall provide, directly or by agreement with any person or any public or private entity, transportation services and facilities for park and preservation district visitors, including barge equipment, docking facilities, and local rail facilities; (7) provide for educational and cultural programs to encourage appreciation of the resources of the park and preservation district; and (8) include a tentative budget for the subsequent five fiscal years. (d) Establishment and contents of index; modification of index The Commission shall establish, within one year after the date on which the Commission conducts its first meeting, an index which includes - (1) any property in the park or preservation district (except for any property identified in section 410cc-21(a)(2) of this title) which should be preserved, restored, managed, developed, maintained, or acquired by the Commission because of its national historic or cultural significance; and (2) any property which should be preserved, restored, managed, developed, or maintained in a manner compatible with the purpose of this subchapter because of its proximity to (A) any property referred to in paragraph (1) of this subsection, or (B) any property designated in section 410cc-21(a)(2) of this title. The index may be modified only by a majority vote of the members of the Commission, taken when a quorum is present. (e) Standards and criteria for construction, preservation, etc., of properties within preservation district and park; authorization; establishment; revisions; publication in Federal Register (1) The Commission shall establish standards and criteria applicable to the construction, preservation, restoration, alteration, and use of all properties within the preservation district with the advice of the Commonwealth of Massachusetts and of the Secretary, and the consent of the city manager of Lowell. (2) The Commission shall establish the standards and criteria described in paragraph (1) of this subsection for any property within the park with the advice of the Commonwealth of Massachusetts and the city manager of Lowell and subject to the review and approval of the Secretary. (3) The Commission shall establish standards and criteria under paragraphs (1) and (2) of this subsection within one year after the date on which the Commission conducts its first meeting. Such standards and criteria may be revised in the same manner in which they were originally established. (4) The Secretary shall publish the standards and criteria established under paragraphs (1) and (2) of this subsection, and any revisions thereof, in the Federal Register. -SOURCE- (Pub. L. 95-290, title III, Sec. 302, June 5, 1978, 92 Stat. 297.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 410cc-12, 410cc-13, 410cc-23, 410cc-24, 410cc-25, 410cc-33, 410cc-34 of this title. ------DocID 21421 Document 14 of 127------ -CITE- 16 USC Sec. 460uu-32 -EXPCITE- TITLE 16 CHAPTER 1 SUBCHAPTER CVI Part D -HEAD- Sec. 460uu-32. Management; provisions applicable -STATUTE- (a) Subject to valid existing rights, each wilderness area designated under this subchapter shall be administered by the Secretary, through the Director of the Bureau of Land Management, in accordance with the provisions of the Wilderness Act (16 U.S.C. 1131 et seq.) governing areas designated by that Act as wilderness, except that any reference in such provisions to the effective date of the Wilderness Act shall be deemed to be a reference to December 31, 1987. (b) Within the wilderness areas designated by this subchapter, the grazing of livestock, where established prior to December 31, 1987, shall be permitted to continue subject to such reasonable regulations, policies, and practices as the Secretary deems necessary, as long as such regulations, policies, and practices fully conform with and implement the intent of Congress regarding grazing in such areas as such intent is expressed in the Wilderness Act (16 U.S.C. 1131 et seq.) and section 108 of Public Law 96-560 (16 U.S.C. 1133 note). -SOURCE- (Pub. L. 100-225, title IV, Sec. 402, Dec. 31, 1987, 101 Stat. 1542.) -REFTEXT- REFERENCES IN TEXT The Wilderness Act, referred to in text, is Pub. L. 88-577, Sept. 3, 1964, 78 Stat. 890, as amended, which is classified generally to chapter 23 (Sec. 1131 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1131 of this title and Tables. The effective date of the Wilderness Act, referred to in subsec. (a), means Sept. 3, 1964, the date of enactment of Pub. L. 88-577, which enacted chapter 23 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460uu-22 of this title. ------DocID 22968 Document 15 of 127------ -CITE- 16 USC CHAPTER 32 -EXPCITE- TITLE 16 CHAPTER 32 -HEAD- CHAPTER 32 - MARINE SANCTUARIES -MISC1- Sec. 1431. Findings, purposes, and policies. (a) Findings. (b) Purposes and policies. 1432. Definitions. 1433. Sanctuary designation standards. (a) Standards. (b) Factors and consultations required in making determinations and findings. 1434. Procedures for designation and implementation. (a) Sanctuary proposal. (b) Taking effect of designations. (c) Access and valid rights. 1435. Application of regulations and international negotiations. (a) Regulations. (b) Negotiations. 1436. Research and education. 1437. Enforcement. (a) In general. (b) Powers of authorized officers. (c) Civil penalties. (d) Forfeiture. (e) Payment of storage, care, and other costs. (f) Subpoenas. (g) Use of resources of State and other Federal agencies. (h) Coast Guard authority not limited. (i) Injunctive relief. 1438. Repealed. 1439. Severability. 1440. Promotion and coordination of research. 1441. Special use permits. (a) Issuance of permits. (b) Permit terms. (c) Fees. (d) Violations. (e) Reports. (f) Fishing. 1442. Cooperative agreements and donations. (a) Cooperative agreements. (b) Donations. 1443. Destruction or loss of, or injury to, sanctuary resources. (a) Liability. (b) Response actions and damage assessment. (c) Civil actions for response costs and damages. (d) Use of recovered amounts. 1444. Authorization of appropriations. 1445. U.S.S. Monitor artifacts and materials. (a) Congressional policy. (b) Interpretation and display of artifacts. (c) Disclaimer. ------DocID 23808 Document 16 of 127------ -CITE- 18 USC Sec. 32 -EXPCITE- TITLE 18 PART I CHAPTER 2 -HEAD- Sec. 32. Destruction of aircraft or aircraft facilities -STATUTE- (a) Whoever willfully - (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; (2) places or causes to be placed a destructive device or substance in, upon, or in proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any such aircraft, or any part or other materials used or intended to be used in connection with the operation of such aircraft, if such placing or causing to be placed or such making or causing to be made is likely to endanger the safety of any such aircraft; (3) sets fire to, damages, destroys, or disables any air navigation facility, or interferes by force or violence with the operation of such facility, if such fire, damaging, destroying, disabling, or interfering is likely to endanger the safety of any such aircraft in flight; (4) with the intent to damage, destroy, or disable any such aircraft, sets fire to, damages, destroys, or disables or places a destructive device or substance in, upon, or in proximity to, any appliance or structure, ramp, landing area, property, machine, or apparatus, or any facility or other material used, or intended to be used, in connection with the operation, maintenance, loading, unloading or storage of any such aircraft or any cargo carried or intended to be carried on any such aircraft; (5) performs an act of violence against or incapacitates any individual on any such aircraft, if such act of violence or incapacitation is likely to endanger the safety of such aircraft; (6) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight; or (7) attempts to do anything prohibited under paragraphs (1) through (6) of this subsection; shall be fined not more than $100,000 or imprisoned not more than twenty years or both. (b) Whoever willfully - (1) performs an act of violence against any individual on board any civil aircraft registered in a country other than the United States while such aircraft is in flight, if such act is likely to endanger the safety of that aircraft; (2) destroys a civil aircraft registered in a country other than the United States while such aircraft is in service or causes damage to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft's safety in flight; (3) places or causes to be placed on a civil aircraft registered in a country other than the United States while such aircraft is in service, a device or substance which is likely to destroy that aircraft, or to cause damage to that aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft's safety in flight; or (4) attempts to commit an offense described in paragraphs (1) through (3) of this subsection; shall, if the offender is later found in the United States, be fined not more than $100,000 or imprisoned not more than twenty years, or both. (c) Whoever willfully imparts or conveys any threat to do an act which would violate any of paragraphs (1) through (5) of subsection (a) or any of paragraphs (1) through (3) of subsection (b) of this section, with an apparent determination and will to carry the threat into execution shall be fined not more than $25,000 or imprisoned not more than five years, or both. -SOURCE- (Added July 14, 1956, ch. 595, Sec. 1, 70 Stat. 539, and amended Oct. 12. 1984, Pub. L. 98-473, title II, Sec. 2013(b), 98 Stat. 2187; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7016, 102 Stat. 4395.) -MISC1- AMENDMENTS 1988 - Subsec. (a)(3). Pub. L. 100-690 substituted 'interfering' for 'intefering'. 1984 - Pub. L. 98-473 amended section generally. Prior to amendment section read as follows: 'Whoever willfully sets fire to, damages, destroys, disables, or wrecks any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; or 'Whoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft engine, propeller, appliance, or spare part with intent to damage, destroy, disable, or wreck any such aircraft; or 'Whoever, with like intent, willfully places or causes to be placed any destructive substance in, upon, or in proximity to any such aircraft, or any aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material used or intended to be used in connection with the operation of any such aircraft, or any cargo carried or intended to be carried on any such aircraft, or otherwise makes or causes to be made any such aircraft, aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material unworkable or unusable or hazardous to work or use; or 'Whoever, with like intent, willfully sets fire to, damages, destroys, disables, or wrecks, or places or causes to be placed any destructive substance in, upon, or in proximity to any shop, supply, structure, station, depot, terminal, hanger, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or apparatus used or intended to be used in connection with the operation, loading, or unloading of any such aircraft or making any such aircraft ready for flight, or otherwise makes or causes to be made any such shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or apparatus unworkable or unusable or hazardous to work or use; or 'Whoever, with like intent, willfully incapacitates any member of the crew of any such aircraft; or 'Whoever willfully attempts to do any of the aforesaid acts or things - 'shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.' EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-473 effective Oct. 12, 1984, see section 2015 of Pub. L. 98-473, set out as a note under section 31 of this title. -CROSS- CROSS REFERENCES Destruction of property moving in commerce, see sections 1281 and 1282 of Title 15, Commerce and Trade. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2516, 5032 of this title; title 49 App. section 1357. ------DocID 25119 Document 17 of 127------ -CITE- 18 USC APPENDIX - RULES OF CRIMINAL PROCEDURE Rule 32 -EXPCITE- TITLE 18 RULES OF CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS VII -HEAD- Rule 32. Sentence and Judgment -STATUTE- (a) Sentence. (1) Imposition of Sentence. Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved. Prior to the sentencing hearing, the court shall provide the counsel for the defendant and the attorney for the Government with notice of the probation officer's determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case. At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also - (A) determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B); (B) afford counsel for the defendant an opportunity to speak on behalf of the defendant; and (C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence. The attorney for the Government shall have an equivalent opportunity to speak to the court. Upon a motion that is jointly filed by the defendant and by the attorney for the Government, the court may hear in camera such a statement by the defendant, counsel for the defendant, or the attorney for the Government. (2) Notification of Right To Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant. (b) Judgment. (1) In General. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk. (2) Criminal Forfeiture. When a verdict contains a finding of property subject to a criminal forfeiture, the judgment of criminal forfeiture shall authorize the Attorney General to seize the interest or property subject to forfeiture, fixing such terms and conditions as the court shall deem proper. (c) Presentence Investigation. (1) When Made. A probation officer shall make a presentence investigation and report to the court before the imposition of sentence unless the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. 3553, and the court explains this finding on the record. Except with the written consent of the defendant, the report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty. (2) Report. The report of the presentence investigation shall contain - (A) information about the history and characteristics of the defendant, including prior criminal record, if any, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant. (FOOTNOTE 1) (FOOTNOTE 1) So in original. The period probably should be a semicolon. (B) the classification of the offense and of the defendant under the categories established by the Sentencing Commission pursuant to section 994(a) of title 28, that the probation officer believes to be applicable to the defendant's case; the kinds of sentence and the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1); and an explanation by the probation officer of any factors that may indicate that a sentence of a different kind or of a different length from one within the applicable guideline would be more appropriate under all the circumstances; (C) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2); (D) verified information stated in a nonargumentative style containing an assessment of the financial, social, psychological, and medical impact upon, and cost to, any individual against whom the offense has been committed; (E) unless the court orders otherwise, information concerning the nature and extent of nonprison programs and resources available for the defendant; and (F) such other information as may be required by the court. (3) Disclosure. (A) At least 10 days before imposing sentence, unless this minimum period is waived by the defendant, the court shall provide the defendant and the defendant's counsel with a copy of the report of the presentence investigation, including the information required by subdivision (c)(2) but not including any final recommendation as to sentence, and not to the extent that in the opinion of the court the report contains diagnostic opinions, (FOOTNOTE 2) which if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant and the defendant's counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it. (FOOTNOTE 2) So in original. The comma probably should follow the word 'which'. (B) If the court is of the view that there is information in the presentence report which should not be disclosed under subdivision (c)(3)(A) of this rule, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant and the defendant's counsel an opportunity to comment thereon. The statement may be made to the parties in camera. (C) Any material which may be disclosed to the defendant and the defendant's counsel shall be disclosed to the attorney for the government. (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. (E) The reports of studies and recommendations contained therein made by the Director of the Bureau of Prisons pursuant to 18 U.S.C. Sec. 3552(b) shall be considered a presentence investigation within the meaning of subdivision (c)(3) of this rule. (d) Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255. (e) Probation. After conviction of an offense not punishable by death or by life imprisonment, the defendant may be placed on probation if permitted by law. ((f) Revocation of Probation.) (Abrogated Apr. 30, 1979, eff. Dec. 1, 1980) -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, Pub. L. 94-64, Sec. 3(31)-(34), 89 Stat. 376; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1, 1980; Oct. 12, 1982, Pub. L. 97-291, Sec. 3, 96 Stat. 1249; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, Pub. L. 98-473, title II, Sec. 215(a), 98 Stat. 2014; Nov. 10, 1986, Pub. L. 99-646, Sec. 25(a), 100 Stat. 3597; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This rule is substantially a restatement of existing procedure. Rule I of the Criminal Appeals Rules of 1933, 292 U.S. 661. See Rule 43 relating to the presence of the defendant. Note to Subdivision (b). This rule is substantially a restatement of existing procedure. Rule I of the Criminal Appeals Rules of 1933, 292 U.S. 661. Note to Subdivision (c). The purpose of this provision is to encourage and broaden the use of presentence investigations, which are now being utilized to good advantage in many cases. See, 'The Presentence Investigation' published by Administrative Office of the United States Courts, Division of Probation. Note to Subdivision (d). This rule modifies existing practice by abrogating the ten-day limitation on a motion for leave to withdraw a plea of guilty. See Rule II (4) of the Criminal Appeals Rules of 1933, 292 U.S. 661. Note to Subdivision (e). See 18 U.S.C. 724 et seq. (now 3651 et seq.). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Subdivision (a)(1). - The amendment writes into the rule the holding of the Supreme Court that the court before imposing sentence must afford an opportunity to the defendant personally to speak in his own behalf. See Green v. United States, 365 U.S. 301 (1961); Hill v. United States, 368 U.S. 424 (1962). The amendment also provides an opportunity for counsel to speak on behalf of the defendant. Subdivision (a)(2). - This amendment is a substantial revision and a relocation of the provision originally found in Rule 37(a)(2): 'When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.' The court is required to advise the defendant of his right to appeal in all cases which have gone to trial after plea of not guilty because situations arise in which a defendant represented by counsel at the trial is not adequately advised by such counsel of his right to appeal. Trial counsel may not regard his responsibility as extending beyond the time of imposition of sentence. The defendant may be removed from the courtroom immediately upon sentence and held in custody under circumstances which make it difficult for counsel to advise him. See, e.g., Hodges v. United States, 368 U.S. 139 (1961). Because indigent defendants are most likely to be without effective assistance of counsel at this point in the proceedings, it is also provided that defendants be notified of the right of a person without funds to apply for leave to appeal in forma pauperis. The provision is added here because this rule seems the most appropriate place to set forth a procedure to be followed by the court at the time of sentencing. Subdivision (c)(2). - It is not a denial of due process of law for a court in sentencing to rely on a report of a presentence investigation without disclosing such report to the defendant or giving him an opportunity to rebut it. Williams v. New York, 337 U.S. 241 (1949); Williams v. Oklahoma, 358 U.S. 576 (1959). However, the question whether as a matter of policy the defendant should be accorded some opportunity to see and refute allegations made in such reports has been the subject of heated controversy. For arguments favoring disclosure, see Tappan. Crime, Justice, and Correction, 558 (1960); Model Penal Code, 54-55 (Tent. Draft No. 2, 1954); Thomsen, Confidentiality of the Presentence Report: A Middle Position, 28 Fed.Prob., March 1964, p. 8; Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1291-2 (1952); Note, Employment of Social Investigation Reports in Criminal and Juvenile Proceedings, 58 Colum.L.Rev. 702 (1958); cf. Kadish, The Advocate and the Expert: Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 806, (1961). For arguments opposing disclosure, see Barnett and Gronewold, Confidentiality of the Presentence Report, 26 Fed.Prob. March 1962, p. 26; Judicial Conference Committee on Administration of the Probation System, Judicial Opinion on Proposed Change in Rule 32(c) of the Federal Rules of Criminal Procedure - a Survey (1964); Keve, The Probation Officer Investigates, 6-15 (1960); Parsons, The Presentence Investigation Report Must be Preserved as a Confidential Document, 28 Fed.Prob. March 1964, p. 3; Sharp, The Confidential Nature of Presentence Reports, 5 Cath.U.L.Rev. 127 (1955); Wilson, A New Arena is Emerging to Test the Confidentiality of Presentence Reports, 25 Fed.Prob. Dec. 1961, p. 6; Federal Judge's Views on Probation Practices, 24 Fed.Prob. March 1960, p. 10. In a few jurisdictions the defendant is given a right of access to the presentence report. In England and California a copy of the report is given to the defendant in every case. English Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, Sec. 43; Cal.Pen.C. Sec. 1203. In Alabama the defendant has a right to inspect the report. Ala. Code, Title 42, Sec. 23. In Ohio and Virginia the probation officer reports in open court and the defendant is given the right to examine him on his report. Ohio Rev. Code, Sec. 2947.06; Va. Code, Sec. 53-278.1. The Minnesota Criminal Code of 1963, Sec. 609.115(4), provides that any presentence report 'shall be open for inspection by the prosecuting attorney and the defendant's attorney prior to sentence and on the request of either of them a summary hearing in chambers shall be held on any matter brought in issue, but confidential sources of information shall not be disclosed unless the court otherwise directs.' Cf. Model Penal Code Sec. 7.07(5) (P.O.D. 1962): 'Before imposing sentence, the Court shall advise the defendant or his counsel of the factual contents and the conclusions of any presentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.' Practice in the federal courts is mixed, with a substantial minority of judges permitting disclosure while most deny it. See the recent survey prepared for the Judicial Conference of the District of Columbia by the Junior Bar Section of the Bar Association of the District of Columbia, reported in Conference Papers on Discovery in Federal Criminal Cases, 33 F.R.D. 101, 125-127 (1963). See also Gronewold, Presentence Investigation Practices in the Federal Probation System, Fed.Prob. Sept. 1958, pp. 27, 31. For divergent judicial opinions see Smith v. United States, 223 F.2d 750, 754 (5th Cir. 1955) (supporting disclosure); United States v. Durham, 181 F.Supp. 503 (D.D.C. 1960) (supporting secrecy). Substantial objections to compelling disclosure in every case have been advanced by federal judges, including many who in practice often disclose all or parts of presentence reports. See Judicial Conference Committee on the Administration of the Probation System, Judicial Opinion on Proposed Change in Rule 32(c) of the Federal Rules of Criminal Procedure - A Survey (1964). Hence, the amendment goes no further than to make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences. For a description of such a practice in one district, see Thomsen, Confidentiality of the Presentence Report: A Middle Position, 28 Fed.Prob., March 1964, p. 8. It is also provided that any material disclosed to the defendant or his counsel shall be disclosed to the attorney for the government. Such disclosure will permit the government to participate in the resolution of any factual questions raised by the defendant. Subdivision (f). - This new subdivision writes into the rule the procedure which the cases have derived from the provision in 18 U.S.C. Sec. 3653 that a person arrested for violation of probation 'shall be taken before the court' and that thereupon the court may revoke the probation. See Escoe v. Zerbst, 295 U.S. 490 (1935); Brown v. United States, 236 F.2d 253 (9th Cir. 1956) certiorari denied 356 U.S. 922 (1958). Compare Model Penal Code Sec. 301.4 (P.O.D. 1962); Hink, The Application of Constitutional Standards of Protection to Probation, 29 U.Chi.L.Rev. 483 (1962). NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Subdivision (b)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provisions of the Organized Crime Control Act of 1970, Title IX, Sec. 1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, Sec. 408(a)(2). 18 U.S.C. Sec. 1963(c) provides for property seizure and disposition. In part it states: (c) Upon conviction of a person under this section, the court shall authorize the Attorney General to seize all property or other interest declared forfeited under this section upon such terms and conditions as the court shall deem proper. Although not specifically provided for in the Comprehensive Drug Abuse Prevention and Control Act of 1970, the provision of Title II, Sec. 408(a)(2) forfeiting 'profits' or 'interest' will need to be implemented procedurally, and therefore new rule 32(b)(2) will be applicable also to that legislation. For a brief discussion of the procedural implications of a criminal forfeiture, see Advisory Committee Note to rule 7(c)(2). NOTES OF ADVISORY COMMITTEE ON RULES - 1974 AMENDMENT Subdivision (a)(1) is amended by deleting the reference to commitment or release pending sentencing. This issue is dealt with explicitly in the proposed revision of rule 46(c). Subdivision (a)(2) is amended to make clear that there is no duty on the court to advise the defendant of the right to appeal after sentence is imposed following a plea of guilty or nolo contendere. To require the court to advise the defendant of a right to appeal after a plea of guilty, accepted pursuant to the increasingly stringent requirements of rule 11, is likely to be confusing to the defendant. See American Bar Association Standards Relating to Criminal Appeals Sec. 2.1(b) (Approved Draft, 1970), limiting the court's duty to advice to 'contested cases.' The Advisory Committee is of the opinion that such advice, following a sentence imposed after a plea of guilty, will merely tend to build false hopes and encourage frivolous appeals, with the attendant expense to the defendant or the taxpayers. Former rule 32(a)(2) imposes a duty only upon conviction after 'trial on a plea of not guilty.' The few federal cases dealing with the question have interpreted rule 32(a)(2) to say that the court has no duty to advise defendant of his right to appeal after conviction following a guilty plea. Burton v. United States, 307 F.Supp. 448, 450 (D.Ariz. 1970); Alaway v. United States, 280 F.Supp. 326, 336 (C.D.Calif. 1968); Crow v. United States, 397 F.2d 284, 285 (10th Cir. 1968). Prior to the 1966 amendment of rule 32, the court's duty was even more limited. At that time (rule 37(a)(2)) the court's duty to advise was limited to those situations in which sentence was imposed after trial upon a not guilty plea of a defendant not represented by counsel. 8A J. Moore, Federal Practice 32.01(3) (2d ed. Cipes 1969); C. Wright, Federal Practice and Procedure: Criminal Sec. 528 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules Sec. 32:11 (1967). With respect to appeals in forma pauperis, see appellate rule 24. Subdivision (c)(1) makes clear that a presentence report is required except when the court otherwise directs for reasons stated of record. The requirement of reasons on the record for not having a presentence report is intended to make clear that such a report ought to be routinely required except in cases where there is a reason for not doing so. The presentence report is of great value for correctional purposes and will serve as a valuable aid in reviewing sentences to the extent that sentence review may be authorized by future rule change. For an analysis of the current rule as it relates to the situation in which a presentence investigation is required, see C. Wright, Federal Practice and Procedure: Criminal Sec. 522 (1969); 8A J. Moore, Federal Practice 32.03(1) (2d ed. Cipes 1969). Subdivision (c)(1) is also changed to permit the judge, after obtaining defendant's consent, to see the presentence report in order to decide whether to accept a plea agreement, and also to expedite the imposition of sentence in a case in which the defendant has indicated that he may plead guilty or nolo contendere. Former subdivision (c)(1) provides that 'The report shall not be submitted to the court * * * unless the defendant has pleaded guilty * * *.' This precludes a judge from seeing a presentence report prior to the acceptance of the plea of guilty. L. Orfield, Criminal Procedure Under the Federal Rules Sec. 32:35 (1967); 8A J. Moore, Federal Practice 32.03(2), p. 32-22 (2d ed. Cipes 1969); C. Wright, Federal Practice and Procedure: Criminal Sec. 523, p. 392 (1969); Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). Because many plea agreements will deal with the sentence to be imposed, it will be important, under rule 11, for the judge to have access to sentencing information as a basis for deciding whether the plea agreement is an appropriate one. It has been suggested that the problem be dealt with by allowing the judge to indicate approval of the plea agreement subject to the condition that the information in the presentence report is consistent with what he has been told about the case by counsel. See American Bar Association, Standards Relating to Pleas of Guilty Sec. 3.3 (Approved Draft, 1963); President's Commission on Law Enforcement and Administration of Justice. The Challenge of Crime in a Free Society 136 (1967). Allowing the judge to see the presentence report prior to his decision as to whether to accept the plea agreement is, in the view of the Advisory Committee, preferable to a conditional acceptance of the plea. See Enker, Perspectives on Plea Bargaining, Appendix A of President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts at 117 (1967). It enables the judge to have all of the information available to him at the time he is called upon to decide whether or not to accept the plea of guilty and thus avoids the necessity of a subsequent appearance whenever the information is such that the judge decides to reject the plea agreement. There is presently authority to have a presentence report prepared prior to the acceptance of the plea of guilty. In Gregg v. United States, 394 U.S. 489, 491, 89 S.Ct. 1134 22 L.Ed.2d 442 (1969), the court said that the 'language (of rule 32) clearly permits the preparation of a presentence report before guilty plea or conviction * * *.' In footnote 3 the court said: The history of the rule confirms this interpretation. The first Preliminary Draft of the rule would have required the consent of the defendant or his attorney to commence the investigation before the determination of guilt. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc., Preliminary Draft 130, 133 (1943). The Second Preliminary Draft omitted this requirement and imposed no limitation on the time when the report could be made and submitted to the court. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc. Second Preliminary Draft 126-128 (1944). The third and final draft, which was adopted as Rule 32, was evidently a compromise between those who opposed any time limitation, and those who preferred that the entire investigation be conducted after determination of guilt. See 5 L. Orfield, Criminal Procedure Under the Federal Rules Sec. 32.2 (1967). Where the judge rejects the plea agreement after seeing the presentence report, he should be free to recuse himself from later presiding over the trial of the case. This is left to the discretion of the judge. There are instances involving prior convictions where a judge may have seen a presentence report, yet can properly try a case on a plea of not guilty. Webster v. United States, 330 F.Supp. 1080 (D.C., 1971). Unlike the situation in Gregg v. United States, subdivision (e)(3) provides for disclosure of the presentence report to the defendant, and this will enable counsel to know whether the information thus made available to the judge is likely to be prejudicial. Presently trial judges who decide pretrial motions to suppress illegally obtained evidence are not, for that reason alone, precluded from presiding at a later trial. Subdivision (c)(3)(A) requires disclosure of presentence information to the defense, exclusive of any recommendation of sentence. The court is required to disclose the report to defendant or his counsel unless the court is of the opinion that disclosure would seriously interfere with rehabilitation, compromise confidentiality, or create risk of harm to the defendant or others. Any recommendation as to sentence should not be disclosed as it may impair the effectiveness of the probation officer if the defendant is under supervision on probation or parole. The issue of disclosure of presentence information to the defense has been the subject of recommendations from the Advisory Committee in 1944, 1962, 1964, and 1966. The history is dealt with in considerable detail in C. Wright, Federal Practice and Procedure: Criminal Sec. 524 (1969), and 8A J. Moore, Federal Practice 32.03(4) (2d ed. Cipes 1969). In recent years, three prestigious organizations have recommended that the report be disclosed to the defense. See American Bar Association, Standards Relating to Sentencing Alternatives and Procedures Sec. 4.4 (Approved Draft, 1968); American Law Institute Model Penal Code Sec. 7.07(5) (P.O.D. 1962); National Council on Crime and Delinquency, Model Sentencing Act Sec. 4 (1963). This is also the recommendation of the President's Commission on Law Enforcement and Administration of Justice. The Challenge of Crime in a Free Society (1967) at p. 145. In the absence of compelling reasons for nondisclosure of special information, the defendant and his counsel should be permitted to examine the entire presentence report. The arguments for and against disclosure are well known and are effectively set forth in American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Sec. 4.4 Commentary at pp. 214-225 (Approved Draft, 1968). See also Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225 (1969). A careful account of existing practices in Detroit, Michigan and Milwaukee, Wisconsin is found in R. Dawson, Sentencing (1969). Most members of the federal judiciary have, in the past, opposed compulsory disclosure. See the view of District Judge Edwin M. Stanley, American Bar Association Standards Relating to Sentencing Alternatives and Procedures. Appendix A. (Appendix A also contains the results of a survey of all federal judges showing that the clear majority opposed disclosure.) The Advisory Committee is of the view that accuracy of sentencing information is important not only to the defendant but also to effective correctional treatment of a convicted offender. The best way of insuring accuracy is disclosure with an opportunity for the defendant and counsel to point out to the court information thought by the defense to be inaccurate, incomplete, or otherwise misleading. Experience in jurisdictions which require disclosure does not lend support to the argument that disclosure will result in less complete presentence reports or the argument that sentencing procedures will become unnecessarily protracted. It is not intended that the probation officer would be subjected to any rigorous examination by defense counsel, or that he will even be sworn to testify. The proceedings may be very informal in nature unless the court orders a full hearing. Subdivision (c)(3)(B) provides for situations in which the sentencing judge believes that disclosure should not be made under the criteria set forth in subdivision (c)(3)(A). He may disclose only a summary of that factual information 'to be relied on in determining sentence.' This is similar to the proposal of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures Sec. 4.4(b) and Commentary at pp. 216-224. Subdivision (c)(3)(D) provides for the return of disclosed presentence reports to insure that they do not become available to unauthorized persons. See National Council on Crime and Delinquency, Model Sentencing Act Sec. 4 (1963): 'Such reports shall be part of the record but shall be sealed and opened only on order of the court.' Subdivision (c)(3)(E) makes clear that diagnostic studies under 18 U.S.C. Sec. 4208(b), 5010(c), or 5034 are covered by this rule and also that 18 U.S.C. Sec. 4252 is included within the disclosure provisions of subdivision (c). Section 4252 provides for the presentence examination of an 'eligible offender' who is believed to be an addict to determine whether 'he is an addict and is likely to be rehabilitated through treatment.' Both the Organized Crime Control Act of 1970 (Sec. 3775(b)) and the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Sec. 409(b)) have special provisions for presentence investigation in the implementation of the dangerous special offender provision. It is however, unnecessary to incorporate them by reference in rule 32 because each contains a specific provision requiring disclosure of the presentence report. The judge does have authority to withhold some information 'in extraordinary cases' provided notice is given the parties and the court's reasons for withholding information are made part of the record. Subdivision (e) is amended to clarify the meaning. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 94-247; 1975 AMENDMENT A. Amendments Proposed by the Supreme Court Rule 32 of the Federal Rules of Criminal Procedure deals with sentencing matters. Proposed subdivision (a)(2) provides that the court is not dutybound to advise the defendant of a right to appeal when the sentence is imposed following a plea of guilty or nolo contendere. Proposed subdivision (e) provides that the probation service must make a presentence investigation and report unless the court orders otherwise 'for reasons stated on the record.' The presentence report will not be submitted to the court until after the defendant pleads nolo contendere or guilty, or is found guilty, unless the defendant consents in writing. Upon the defendant's request, the court must permit the defendant to read the presentence report, except for the recommendation as to sentence. However, the court may decline to let the defendant read the report if it contains (a) diagnostic opinion that might seriously disrupt a rehabilitation program, (b) sources of information obtained upon a promise of confidentiality, or (c) any other information that, if disclosed, might result in harm to the defendant or other persons. The court must give the defendant an opportunity to comment upon the presentence report. If the court decides that the defendant should not see the report, then it must provide the defendant, orally or in writing, a summary of the factual information in the report upon which it is relying in determining sentence. No party may keep the report or make copies of it. B. Committee Action. The Committee added language to subdivision (a)(1) to provide that the attorney for the government may speak to the court at the time of sentencing. The language does not require that the attorney for the government speak but permits him to do so if he wishes. The Committee recast the language of subdivision (c)(1), which defines when presentence reports must be obtained. The Committee's provision makes it more difficult to dispense with a presentence report. It requires that a presentence report be made unless (a) the defendant waives it, or (b) the court finds that the record contains sufficient information to enable the meaningful exercise of sentencing discretion and explains this finding on the record. The Committee believes that presentence reports are important aids to sentencing and should not be dispensed with easily. The Committee added language to subdivision (c)(3)(A) that permits a defendant to offer testimony or information to rebut alleged factual inaccuracies in the presentence report. Since the presentence report is to be used by the court in imposing sentence and since the consequence of any significant inaccuracy can be very serious to the defendant, the Committee believes that it is essential that the presentence report be completely accurate in every material respect. The Committee's addition to subdivision (c)(3)(A) will help insure the accuracy of the presentence report. The Committee added language to subdivision (c)(3)(D) that gives the court the discretion to permit either the prosecutor or the defense counsel to retain a copy of the presentence report. There may be situations when it would be appropriate for either or both of the parties to retain the presentence report. The Committee believes that the rule should give the court the discretion in such situations to permit the parties to retain their copies. NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT Note to Subdivision (c)(3)(E). The amendment to rule 32(c)(3)(E) is necessary in light of recent changes in the applicable statutes. Note to Subdivision (f). This subdivision is abrogated. The subject matter is now dealt with in greater detail in proposed new rule 32.1. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Note to Subdivision (a)(1). Subdivision (a)(1) has been amended so as to impose upon the sentencing court the additional obligation of determining that the defendant and his counsel have had an opportunity to read the presentence investigation report or summary thereof. This change is consistent with the amendment of subdivision (c)(3), discussed below, providing for disclosure of the report (or, in the circumstances indicated, a summary thereof) to both defendant and his counsel without request. This amendment is also consistent with the findings of a recent empirical study that under present rule 32 meaningful disclosure is often lacking and 'that some form of judicial prodding is necessary to achieve full disclosure.' Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1651 (1980): The defendant's interest in an accurate and reliable presentence report does not cease with the imposition of sentence. Rather, these interests are implicated at later stages in the correctional process by the continued use of the presentence report as a basic source of information in the handling of the defendant. If the defendant is incarcerated, the presentence report accompanies him to the correctional institution and provides background information for the Bureau of Prisons' classification summary, which, in turn, determines the defendant's classification within the facility, his ability to obtain furloughs, and the choice of treatment programs. The presentence report also plays a crucial role during parole determination. Section 4207 of the Parole Commission and Reorganization Act directs the parole hearing examiner to consider, if available, the presentence report as well as other records concerning the prisoner. In addition to its general use as background at the parole hearing, the presentence report serves as the primary source of information for calculating the inmate's parole guideline score. Though it is thus important that the defendant be aware now of all these potential uses, the Advisory Committee has considered but not adopted a requirement that the trial judge specifically advise the defendant of these matters. The Committee believes that this additional burden should not be placed upon the trial judge, and that the problem is best dealt with by a form attached to the presentence report, to be signed by the defendant, advising of these potential uses of the report. This suggestion has been forwarded to the Probation Committee of the Judicial Conference. Note to Subdivision (c)(3)(A), (B) & (C). Three important changes are made in subdivision (c)(3): disclosure of the presentence report is no longer limited to those situations in which a request is made; disclosure is now provided to both defendant and his counsel; and disclosure is now required a reasonable time before sentencing. These changes have been prompted by findings in a recent empirical study that the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information. In 14 districts, disclosure is made only on request, and such requests are received in fewer than 50% of the cases. Forty-two of 92 probation offices do not provide automatic notice to defendant or counsel of the availability of the report; in 18 districts, a majority of the judges do not provide any notice of the availability of the report, and in 20 districts such notice is given only on the day of sentencing. In 28 districts, the report itself is not disclosed until the day of sentencing in a majority of cases. Thirty-one courts generally disclose the report only to counsel and not to the defendant, unless the defendant makes a specific request. Only 13 districts disclose the presentence report to both defendant and counsel prior to the day of sentencing in 90% or more of the cases. Fennell & Hall, supra, at 1640-49. These findings make it clear that rule 32 in its present form is failing to fulfill its purpose. Unless disclosure is made sufficiently in advance of sentencing to permit the assertion and resolution of claims of inaccuracy prior to the sentencing hearing, the submission of additional information by the defendant when appropriate, and informed comment on the presentence report, the purpose of promoting accuracy by permitting the defendant to contest erroneous information is defeated. Similarly, if the report is not made available to the defendant and his counsel in a timely fashion, and if disclosure is only made on request, their opportunity to review the report may be inadequate. Finally, the failure to disclose the report to the defendant, or to require counsel to review the report with the defendant, significantly reduces the likelihood that false statements will be discovered, as much of the content of the presentence report will ordinarily be outside the knowledge of counsel. The additional change to subdivision (c)(3)(C) is intended to make it clear that the government's right to disclosure does not depend upon whether the defendant elects to exercise his right to disclosure. Note to Subdivision (c)(3)(D). Subdivision (c)(3)(D) is entirely new. It requires the sentencing court, as to each matter controverted, either to make a finding as to the accuracy of the challanged factual proposition or to determine that no reliance will be placed on that proposition at the time of sentencing. This new provision also requires that a record of this action accompany any copy of the report later made available to the Bureau of Prisons or Parole Commission. As noted above, the Bureau of Prisons and the Parole Commission make substantial use of the presentence investigation report. Under current practice, this can result in reliance upon assertions of fact in the report in the making of critical determinations relating to custody or parole. For example, it is possible that the Bureau or Commission, in the course of reaching a decision on such matters as institution assignment, eligibility for programs, or computation of salient factors, will place great reliance upon factual assertions in the report which are in fact untrue and which remained unchallenged at the time of the sentencing because defendant or his counsel deemed the error unimportant in the sentencing context (e.g., where the sentence was expected to conform to an earlier plea agreement, or where the judge said he would disregard certain controverted matter in setting the sentence). The first sentence of new subdivision (c)(3)(D) is intended to ensure that a record is made as to exactly what resolution occurred as to controverted matter. The second sentence is intended to ensure that this record comes to the attention of the Bureau or Commission when these agencies utilize the presentence investigation report. In current practice, 'less than one-fourth of the district courts (twenty of ninety-two) communicate to the correctional agencies the defendant's challenges to information in the presentence report and the resolution of these challenges.' Fennell & Hall, supra, at 1680. New subdivision (c)(3)(D) does not impose an onerous burden. It does not even require the preparation of a transcript. As is now the practice in some courts, these findings and determinations can be simply entered onto a form which is then appended to the report. Note to Subdivision (c)(3)(E) & (F). Former subdivisions (c)(3)(D) and (E) have been renumbered as (c)(3)(E) and (F). The only change is in the former, necessitated because disclosure is now to defendant and his counsel. The issue of access to the presentence report at the institution was discussed by the Advisory Committee, but no action was taken on that matter because it was believed to be beyond the scope of the rule-making power. Rule 32 in its present form does not speak to this issue, and thus the Bureau of Prisons and the Parole Commission are free to make provision for disclosure to inmates and their counsel. Note to Subdivision (d). The amendment to Rule 32(d) is intended to clarify (i) the standard applicable to plea withdrawal under this rule, and (ii) the circumstances under which the appropriate avenue of relief is other than a withdrawal motion under this rule. Both of these matters have been the source of considerable confusion under the present rule. In its present form, the rule declares that a motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed, but then states the standard for permitting withdrawal after sentence. In fact, 'there is no limitation upon the time within which relief thereunder may, after sentencing, be sought.' United States v. Watson, 548 F.2d 1058 (D.C.Cir. 1977). It has been critically stated that 'the Rule offers little guidance as to the applicable standard for a pre-sentence withdrawal of plea,' United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), and that as a result 'the contours of (the presentence) standard are not easily defined.' Bruce v. United States, 379 F.2d 113 (D.C.Cir. 1967). By replacing the 'manifest injustice' standard with a requirement that, in cases to which it applied, the defendant must (unless taking a direct appeal) proceed under 28 U.S.C. Sec. 2255, the amendment avoids language which has been a cause of unnecessary confusion. Under the amendment, a defendant who proceeds too late to come under the more generous 'fair and just reason' standard must seek relief under Sec. 2255, meaning the applicable standard is that stated in Hill v. United States, 368 U.S. 424 (1962): 'a fundamental defect which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.' Some authority is to be found to the effect that the rule 32(d) 'manifest injustice' standard is indistinguishable from the Sec. 2255 standard. In United States v. Hamilton, 553 F.2d 63 (10th Cir. 1977), for example, the court, after first concluding defendant was not entitled to relief under the Sec. 2255 'miscarriage of justice' test, then held that '(n)othing is to be gained by the invocation of Rule 32(d)' and its manifest injustice' standard. Some courts, however, have indicated that the rule 32(d) standard provides a somewhat broader basis for relief than Sec. 2255. United States v. Dabdoub-Diaz, 599 F.2d 96 (5th Cir. 1979); United States v. Watson, 548 F.2d 1058 (D.C.Cir. 1977): Meyer v. United States, 424 F.2d 1181 (8th Cir.1970); United States v. Kent, 397 F.2d 446 (7th Cir. 1968). It is noteworthy, however, that in Dabdoub-Diaz, Meyer and Kent the defendant did not prevail under either Sec. 2255 or Rule 32(d), and that in Watson, though the Sec. 2255 case was remanded for consideration as a 32(d) motion, defendant's complaint (that he was not advised of the special parole term, though the sentence he received did not exceed that he was warned about by the court) was one as to which relief had been denied even upon direct appeal from the conviction. United States v. Peters, No. 77-1700 (4th Cir. Dec. 22, 1978). Indeed, it may more generally be said that the results in Sec. 2255 and 32(d) guilty plea cases have been for the most part the same. Relief has often been granted or recognized as available via either of these routes for essentially the same reasons: that there exists a complete constitutional bar to conviction on the offense charged, Brooks v. United States, 424 F.2d 425 (5th Cir. 1970) (Sec. 2255), United States v. Bluso, 519 F.2d 473 (4th Cir. 1975) (Rule 32); that the defendant was incompetent at the time of his plea, United States v. Masthers, 539 F.2d 721 (D.C.Cir. 1976) (Sec. 2255), Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967) (Rule 32); and that the bargain the prosecutor made with defendant was not kept, Walters v. Harris, 460 F.2d 988 (4th Cir. 1972) (Sec. 2255), United States v. Hawthorne, 502 F.2d 1183 (3rd Cir. 1974) (Rule 32). Perhaps even more significant is the fact that relief has often been denied under like circumstances whichever of the two procedures was used: a mere technical violation of Rule 11, United States v. Timmreck, 441 U.S. 780 (1979) (Sec. 2255), United States v. Saft, 558 F.2d 1073 (2d Cir. 1977) (Rule 32); the mere fact defendants expected a lower sentence, United States v. White, 572 F.2d 1007 (4th Cir. 1978) (Sec. 2255), Masciola v. United States, 469 F.2d 1057 (3rd Cir. 1972) (Rule 32); or mere familial coercion, Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1977) (Sec. 2255), United States v. Bartoli, 572 F.2d 188 (8th Cir. 1978) (Rule 32). The one clear instance in which a Rule 32(d) attack might prevail when a Sec. 2255 challenge would not is present in those circuits which have reached the questionable result that post-sentence relief under 32(d) is available not merely upon a showing of a 'manifest injustice' but also for any deviation from literal compliance with Rule 11. United States v. Cantor, 469 F.2d 435 (3d Cir. 1972). See Advisory Committee Note to Rule 11(h), noting the unsoundness of that position. The change in Rule 32(d), therefore, is at best a minor one in terms of how post-sentence motions to withdraw pleas will be decided. It avoids the confusion which now obtains as to whether a Sec. 2255 petition must be assumed to also be a 32(d) motion and, if so, whether this bears significantly upon how the matter should be decided. See, e.g., United States v. Watson, supra. It also avoids the present undesirable situation in which the mere selection of one of two highly similar avenues of relief, rule 32(d) or Sec. 2255, may have significant procedural consequences, such as whether the government can take an appeal from the district court's adverse ruling (possible under Sec. 2255 only). Moreover, because Sec. 2255 and Rule 32(d) are properly characterized as the 'two principal procedures for collateral attack of a federal plea conviction,' Borman, The Hidden Right to Direct Appeal From a Federal Conviction, 64 Cornell L.Rev. 319, 327 (1979), this amendment is also in keeping with the proposition underlying the Supreme Court's decision in United States v. Timmreck, supra, namely, that 'the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.' The amendment is likewise consistent with ALI Code of Pre-Arraignment Procedure Sec. 350.9 (1975) ('Allegations of noncompliance with the procedures provided in Article 350 shall not be a basis for review of a conviction after the appeal period for such conviction has expired, unless such review is required by the Constitution of the United States or of this State or otherwise by the law of this State other than Article 350'); ABA Standards Relating to the Administration of Criminal Justice Sec. 14-2.1 (2d ed. 1978) (using 'manifest injustice' standard, but listing six specific illustrations each of which would be basis for relief under Sec. 2255); Unif.R.Crim.P. 444(e) (Approved Draft, 1974) (using 'interest of justice' test, but listing five specific illustrations each of which would be basis for relief under Sec. 2255). The first sentence of the amended rule incorporates the 'fair and just' standard which the federal courts, relying upon dictum in Kercheval v. United States, 274 U.S. 220 (1927), have consistently applied to presentence motions. See, e.g., United States v. Strauss, 563 F.2d 127 (4th Cir. 1977); United States v. Bradin, 535 F.2d 1039 (8th Cir. 1976); United States v. Barker, 514 F.2d 208 (D.C.Cir. 1975). Under the rule as amended, it is made clear that the defendant has the burden of showing a 'fair and just' reason for withdrawal of the plea. This is consistent with the prevailing view, which is that 'the defendant has the burden of satisfying the trial judge that there are valid grounds for withdrawal,' see United States v. Michaelson, supra, and cases cited therein. (Illustrative of a reason which would meet this test but would likely fall short of the Sec. 2255 test is where the defendant now wants to pursue a certain defense which he for good reason did not put forward earlier, United States v. Barker, supra.) Although 'the terms 'fair and just' lack any pretense of scientific exactness,' United States v. Barker, supra, guidelines have emerged in the appellate cases for applying this standard. Whether the movant has asserted his legal innocence is an important factor to be weighed, United States v. Joslin, 434 F.2d 526 (D.C.Cir. 1970), as is the reason why the defenses were not put forward at the time of original pleading. United Statess v. Needles, 472 F.2d 652 (2d Cir. 1973). The amount of time which has passed between the plea and the motion must also be taken into account. A swift change of heart is itself strong indication that the plea was entered in haste and confusion * * *. By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force. United States v. Barker, supra. If the defendant establishes such a reason, it is then appropriate to consider whether the government would be prejudiced by withdrawal of the plea. Substantial prejudice may be present for a variety of reasons. See United States v. Jerry, 487 F.2d 600 (3d Cir. 1973) (physical evidence had been discarded); United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir. 1973) (death of chief government witness); United States v. Lombardozzi, 436 F.2d 878 (2d Cir. 1971) (other defendants with whom defendant had been joined for trial had already been tried in a lengthy trial); Farnsworth v. Sanfor, 115 F.2d 375 (5th Cir. 1940) (prosecution had dismissed 52 witnesses who had come from all over the country and from overseas bases). There is currently some disparity in the manner in which presentence motions to withdraw a guilty plea are dealt with. Some courts proceed as if any desire to withdraw the plea before sentence is 'fair and just' so long as the government fails to establish that it would be prejudiced by the withdrawal. Illustrative is United States v. Savage, 561 F.2d 554 (4th Cir. 1977), where the defendant pleaded guilty pursuant to a plea agreement that the government would recommend a sentence of 5 years. At the sentencing hearing, the trial judge indicated his unwillingness to follow the government's recommendation, so the defendant moved to withdraw his plea. That motion was denied. On appeal, the court held that there had been no violation of Rule 11, in that refusal to accept the government's recommendation does not constitute a rejection of the plea agreement. But the court then proceeded to hold that absent any showing of prejudice by the government, 'the defendant should be allowed to withdraw his plea'; only upon such a showing by the government must the court 'weigh the defendant's reasons for seeking to withdraw his plea against the prejudice which the government will suffer.' The other view is that there is no occasion to inquire into the matter of prejudice unless the defendant first shows a good reason for being allowed to withdraw his plea. As stated in United States v. Saft, 558 F.2d 1073 (2d Cir. 1977): 'The Government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of a guilty plea, although such prejudice may be considered by the district court in exercising its discretion.' The second sentence of the amended rule, by requiring that the defendant show a 'fair and just' reason, adopts the Saft position and rejects that taken in Savage. The Savage position, as later articulated in United States v. Strauss, supra, is that the 'sounder view, supported by both the language of the rule and by the reasons for it, would be to allow withdrawal of the plea prior to sentencing unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.' (Quoting 2 C. Wright, Federal Practice and Procedure Sec. 538, at 474-75 (1969). Although that position may once have been sound, this is no longer the case in light of the recent revisions of Rule 11. Rule 11 now provides for the placing of plea agreements on the record, for full inquiry into the voluntariness of the plea, for detailed advice to the defendant concerning his rights and the consequences of his plea and a determination that the defendant understands these matters, and for a determination of the accuracy of the plea. Given the great care with which pleas are taken under this revised Rule 11, there is no reason to view pleas so taken as merely 'tentative,' subject to withdrawal before sentence whenever the government cannot establish prejudice. Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but 'a grave and solemn act,' which is 'accepted only with care and discernment.' United States v. Barker, supra, quoting from Brady v. United States, 397 U.S. 742 (1970). The facts of the Savage case reflect the wisdom of this position. In Savage, the defendant had entered into a plea agreement whereby he agreed to plead guilty in exchange for the government's promise to recommend a sentence of 5 years, which the defendant knew was not binding on the court. Yet, under the approach taken in Savage, the defendant remains free to renege on his plea bargain, notwithstanding full compliance therewith by the attorney for the government, if it later appears to him from the presentence report or the comments of the trial judge or any other source that the court will not follow the government's recommendation. Having bargained for a recommendation pursuant to Rule 11(e)(1)(B), the defendant should not be entitled, in effect, to unilaterally convert the plea agreement into a Rule 11(e)(1)(C) type of agreement (i.e., one with a guarantee of a specific sentence which, if not given, permits withdrawal of the plea). The first sentence of subdivision (d) provides that the motion, to be judged under the more liberal 'fair and just reason' test, must have been made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. Sec. 4205(c). The latter of these has been added to the rule to make it clear that the lesser standard also governs prior to the second stage of sentencing wh