United States v. Noel

WILLIAMS, Circuit Judge,

dissenting.

I join my colleagues wholeheartedly in affirming Noel’s conviction and agree that any errors that may have occurred during trial were harmless due to the overwhelming evidence of his egregious conduct. I write separately, however, because I disagree with the panel’s conclusion that the denial of his right to allocute did not undermine the fairness of the judicial proceedings. Instead, I would remand for resentencing. In light of Chief Judge Easterbrook’s concurrence, I also write to stress the importance of the presumption of prejudice afforded to a defendant who has been denied the opportunity to allocute, and to reiterate why the standard adopted in United States v. Luepke, 495 F.3d 443 (7th Cir.2007), should remain the law of this circuit.

I.

In Luepke , we held that “in the vast majority of cases, the denial of the right to allocut[e] is the kind of error that undermines the fairness of the judicial process,” based, in part, on the right’s practical role and its effect on the “perceived equity of the [sentencing] process.” Luepke, 495 F.3d at 451 (quoting United States v. Barnes, 948 F.2d 325, 328 (7th Cir.1991)). We also stated that “[a]bsent some rare indication from the face of the record that the denial of this right did not implicate these core values, resentencing is the appropriate judicial response.” Id. at 452 . In this case, the district judge mentioned Noel’s right to allocute in open court (albeit to his lawyer); Noel’s lawyer read aloud, during the sentencing hearing, a letter Noel had written previously; and the judge issued a sentence twenty years below the 100-year guideline sentence. For these reasons, the panel concludes that the error did not “implicate [the] core values in our sentencing process.” Op. at *507 504. I find each of these points unpersuasive, and I am not convinced that they bring this case within the narrow category of cases that do not require resentencing.

The Supreme Court recognized, in Green v. United States, that Rule 32, as then written, contained an “inflexible requirement” that the district judge address the defendant to allow him the opportunity to allocute. 365 U.S. 301, 303 , 81 S.Ct. 653 , 5 L.Ed.2d 670 (1961). And, as the panel notes, Rule 32(i)(4)(A)(ii) codified this holding by explicitly requiring the judge to personally offer the defendant the opportunity to alloeute. This amendment clarified what the Supreme Court had intimated: that ambiguous references or invitations not directed to the defendant fail to protect the right to alloeute, and, by extension, cast doubt over the fairness of the proceedings. See Green, 365 U.S. at 304 , 81 S.Ct. 653 ; see also id. at 307-08 , 81 S.Ct. 653 (Black, J., dissenting) (“[i]t would be wholly artificial to regard this opportunity as having been afforded in the absence of a specific and personal invitation to speak ... [t]he very essence of the ancient common-law right ... has always been the putting of the question to the defendant....”); United States v. Adams, 252 F.3d 276 (3d Cir.2001) (remanding for resentencing after district judge asked defense counsel if defendant wanted to exercise his right to alloeute but did not ask defendant personally). Although, some may believe that “violations of the Rule usually are inconsequential,” Cone. Op. at 506, an acknowledgment of the defendant’s right to speak, posed to his lawyer, cannot be equated with a personal invitation to the defendant to address the court. Relying on the former would require the defendant to interject in an ongoing conversation between the lawyers and the judge that has taken place throughout the proceedings — an unrealistic expectation in an environment where the lawyer is assumed to speak for the client. Indeed, Rule 32 places an affirmative duty on the court to invite allocution, avoiding the need for defendants to attempt, on their own, to ask for an opportunity to speak. To now claim that “putting the question” to defense counsel somehow preserves the fairness of the proceedings is at odds with the purpose of the rule and the Court’s pronouncement in Green .

Nor do I believe that Noel’s letter should alleviate our concerns regarding the denial of the right to alloeute. In fact, it should do just the opposite. The record does not clearly indicate the letter’s purpose, and it even suggests that the choice to read the letter during the sentencing hearing was' not Noel’s. At the hearing, the district court judge stated:

All right. And Miss Jensen [Noel’s lawyer], do you have a presentation you’d like to make regarding sentencing and would your client like to address me?

To which Noel’s lawyer responded:

I’m sorry, Judge. Mr. Noel provided me with a letter much too late for the Probation Department to include it in the presentence report, but based on what Miss Helart [the prosecutor] has said, I thought it might be appropriate to share with you today.

(emphasis added). From both the panel’s analysis and Chief Judge Easterbrook’s concurrence, one would think that Noel wrote this letter specifically for the sentencing hearing. But his lawyer’s statements to the court indicate otherwise. Noel’s counsel said that she chose to read the letter in response to the prosecutor’s comments.

Regardless of how it was structured, the letter was not Mr. Noel’s allocution, and, in fact, the district judge said that it “underline[d] the determination [he had] made that [an] acceptance of responsibility [sen *508 tencing reduction] was inappropriate.” The letter, which Noel’s lawyer probably should have kept to herself, denied guilt, shifted blame to others, and offered an apology all at the same time. Noel did not receive an opportunity to retract or even mitigate some of the letter’s statements; yet the panel suggests that because his words were read aloud in court, the perceived fairness of the process remains intact. For a right rooted in English common law, which affords a defendant a final opportunity to present information in mitigation of his sentence, Green, 365 U.S. at 304 , 81 S.Ct. 653 , a letter read by defense counsel in reaction to the prosecutor’s comments is a poor substitute. It may have caused even more harm, and since Noel did not receive the opportunity to allocute, I do not believe that the letter contributed to preserve the perceived or applied fairness of the sentencing process.

Furthermore, I cannot agree that Noel’s eighty-year sentence, which was twenty years below the advisory guideline sentence, somehow renders the proceedings fair. The distinction between an eighty and 100-year sentence is a superficial one. For Noel, both are functionally life sentences (Noel was fifty-three years old at the time). He argued that the eighty-year sentence was still too high and asked for a reduction, which the district court denied based, in part, on his letter. In this particular case, a sentence below the guideline range says little about fairness. Noel could have received a lower sentence if he accepted responsibility or could have had his sentences on each count run concurrently. Cf. Adams, 252 F.3d at 287 (presuming prejudice in cases where, based on the facts at issue and the arguments raised, the district court retained discretion to grant a lower sentence).

The right to allocute belongs to the defendant, and the duty is placed squarely on the court to ensure he has the opportunity to exercise it. That everyone overlooked this step does not mean we must do the same. I do not believe any of the factors to which the majority points instill confidence that the core values of our sentencing process are not implicated. Luepke contemplated some rare instances where the denial of the right does not require a judicial remedy, and I see no reason why this case falls into that narrow category.

II.

That brings me to the issue raised in Chief Judge Easterbrook’s concurrence: the continuing viability of Luepke’s presumption of prejudice in reviewing Rule 32(i)(4)(A)(iii) violations. As I stated earlier, the importance of the right to allocute cannot be minimized. It has been recognized, in common law, as early as 1689, that “the court’s failure to ask the defendant if he had anything to say before sentencing was imposed required reversal.” Green, 365 U.S. at 304 , 81 S.Ct. 653 . And despite the vast improvement in procedural protections afforded to defendants, the right remains an important aspect of our sentencing proceedings, providing defendants with a final opportunity “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii).

A number of circuits, including ours, have recognized the implausibility of proving prejudice from a Rule 32 violation, see, e.g., United States v. Haygood, 549 F.3d 1049, 1055 (6th Cir.2008); United States v. Carruth, 528 F.3d 845, 847 (11th Cir.2008); United States v. Reyna, 358 F.3d 344, 352 (5th Cir.2004) (en banc); Adams, 252 F.3d at 287-88 , and without a presumption in favor of the defendant we run the risk of reducing the rule and the right it protects to a meaningless formality. See United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991) (“[T]he defendant’s right to be *509 heard must never be reduced to a formality.”). It is our duty to ensure that the right is afforded to all defendants, while maintaining a careful balance between judicial efficiency and the redress of injustice. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429 , 173 L.Ed.2d 266 (2009).

Plain error review, outlined in Federal Rule of Criminal Procedure 52(b), maintains the appropriate balance in most cases; however, as the Supreme Court recognized in Olano, there are some instances where errors may be presumed prejudicial. United States v. Olano, 507 U.S. 725, 735 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). In that case, the Court found that a violation of Rule 24(c), which, at the time, required the district judge to discharge alternate jurors after the jury began deliberations, was not the type of error that “affect[s] substantial rights independent of its prejudicial impact,” and the Court declined to presume prejudice. Id. at 737 , 113 S.Ct. 1770 (internal quotation marks omitted). In United States v. Vonn, the Court held that violations of Rule 11 of the Federal Rules of Criminal Procedure (requiring the district court to ensure that a plea is knowing and voluntary) were still subject to plain error. 535 U.S. 55 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002). One can certainly argue that the right to allocute is not more important than the right to a jury free from improper influence, or the right to enter a knowing and voluntary guilty plea. And the Supreme Court’s insistence on the plain error standard of review (without a presumption of prejudice) for those violations may suggest that the same should apply here. See Reyna, 358 F.3d at 354-55 (Jones, J., concurring). However, I do not believe these cases compel us to abandon our approach in Luepke . Our decision to apply a presumption of prejudice is based not just on the importance of the right, but also because the burden would be almost insurmountable for defendants.

Assessing the prejudice caused by the presence of alternate jurors during deliberations was a much more manageable task in Olano . The Court considered the fact that the alternate jurors were instructed not to participate in the deliberations and that the mere presence of the jurors did not create a “sufficient risk of a chill” to warrant a presumption of prejudice. Olano, 507 U.S. at 740-41 , 113 S.Ct. 1770 . A defendant denied the right to allocute, on the other hand, would have to tell us, after the fact, what he might have said months earlier, and he would also have to convince us that the judge could have responded favorably. Whatever statement he may have made, whether it be a heartfelt plea for mercy or a full-fledged admission and acceptance of responsibility, is of a different character when reduced to an appellate brief. It is highly speculative — who really knows what would have happened at that moment — as is any attempt to assess its impact on a judge who has significant discretion in making sentencing decisions.

Similarly, in Vonn, a number of important considerations counseled against a presumption of prejudice or any other exception from plain error review. Although Rule 11 required the district court judge to address the defendant during the plea colloquy, the strong interest in concentrating pleas in trial courts and promoting finality in a system heavily dependent on guilty pleas added another dimension to the balance between judicial efficiency and the redress of injustice. See Vonn, 535 U.S. at 72-73 , 122 S.Ct. 1043 . Furthermore, the prejudice to a defendant who alleges a Rule 11 violation is the entry of a plea that wasn’t made knowingly or voluntarily. A traditional plain error analysis would place the burden of proving preju *510 dice on the defendant, who is in the best position to know if his plea was voluntary. Putting aside the importance of the rights, I see a significant difference between a rule that places the burden on a defendant who seeks to renege on an agreement he entered into, and one that requires him to tell us how a judge would have reacted to a plea for mercy. The rights invoked in Olano and Vonn are sufficiently distinguishable from the right to allocute that those cases should not call our holding in Luepke into question.

The presumption we adopted is not a direct route to automatic reversal and we have not proposed, at any point, that it be treated as a structural error that justifies reversal without inquiry into prejudice. We have simply applied a rebuttable presumption due to the practical difficulties defendants face in enforcing the right during sentencing and on appeal. Cf. United States v. Syme, 276 F.3d 131, 154-55 (3d Cir.2002) (applying a presumption of prejudice for constructive amendments and analyzing whether the government effectively rebutted the presumption). I am mindful of the Supreme Court’s reluctance to expand the list of structural errors and am aware that even constitutional errors are normally subject to a harmless error analysis. But placing the burden on the government to demonstrate the absence of prejudice is not inconsistent with this principle. If the defendant had objected in the district court, the government would bear the burden of proving that the error was harmless. See Fed.R.Crim.P. 52(a); see also Vonn, 535 U.S. at 62 , 122 S.Ct. 1043 (interpreting language in Rule 11(h) that tracked Rule 52(a) to provide for “consideration of error raised by a defendant’s timely objection, but subject to an opportunity on the Government’s part to carry the burden of showing that any error was harmless”); United States v. Williams, 559 F.3d 607, 611 (7th Cir. 2009). 1 Shifting burdens of proof alone does not disrupt the Supreme Court’s attempts to limit the expansion of structural errors.

We cannot deny the importance of the right to allocute and the steps the district court must take to enforce it. Green, 365 U.S. at 304 , 81 S.Ct. 653 . As a practical matter, defendants are less likely to object on their own when a judge fails to provide them with an opportunity to allocute, and if they do object, the judge will provide that opportunity in most cases. The majority of appeals we encounter — as has been the case thus far — will come from *511 proceedings in which the defendant made no objection. The nature of the inquiry, however, is so speculative that, in almost all cases, the defendant would not be able to prove prejudice, and the right would not be enforced. This is an unacceptable result for a right that implicates the fairness of sentencing proceedings. The state of the law has evolved to give judges significantly more discretion in making sentencing decisions. As a result, we should be more skeptical of imposing standards that require us to hypothesize what a sentencing judge would have done in a given situation. The presumption we adopted in Luepke does not make the denial of allocution a structural error, nor does it advocate for automatic reversal. It recognizes that the right is more than an “unenforced honor code” that judges may follow in their discretion. United States v. Leon, 468 U.S. 897, 928 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984) (Brennan, J., dissenting). The presumption of prejudice allows the right to be enforced and provides a remedy where our procedural rules may have rendered it effectively obsolete. Unless the Supreme Court says otherwise, I see no reason to revisit Luepke .

. Chief Judge Easterbrook maintains in his concurring opinion that the burden of showing prejudice on harmless error review rests on a defendant, and, therefore, Luepke makes it easier to reverse on plain error than on harmless error. I disagree. The Supreme Court, in Kotteakos v. United States, only placed the burden of proving harmless error on defendants complaining of "technical” errors. 328 U.S. 750, 760-61 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946); see also O’Neal v. McAninch, 513 U.S. 432, 439-40 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995); Brecht v. Abrahamson, 507 U.S. 619, 641 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (Stevens, J., concurring). Otherwise, it is clear that the government bears the burden of proving harmless error in criminal cases. Shinseki v. Sanders,-U.S. -, 129 S.Ct. 1696, 1706 , 173 L.Ed.2d 532 (2009). Although there is no formal definition of the term, the Supreme Court has referred to "technical errors” as "matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure----” Bruno v. United States, 308 U.S. 287, 294 , 60 S.Ct. 198 , 84 L.Ed. 257 (1939); see also United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.1994) (referring to technical errors as "errors for which there is no reasonable possibility that the verdict could have been affected”). I do not consider a Rule 32 violation minor or inconsequential; therefore, I would also place the burden on the government to prove the absence of prejudice on harmless error review. The way I see it, plain error remains the more difficult standard.