This guest post was authored by our colleague Michael C. Witsch, an associate in the firm’s Litigation Department in Philadelphia. Michael can be reached at mwitsch@mmwr.com or 215.772.7592. 

On Tuesday, January 5, the Third Circuit ordered resentencing in the case of a Pittsburgh-area appraiser who the Court found had been improperly cross-examined by the prosecutor at his sentencing hearing. In doing so, not only did the court find plain error in permitting cross-examination during the defendant’s allocution, but it specifically invoked its supervisory authority to permit a defendant to address the sentencing court - sworn or unsworn - without being subject to cross-examination.

Jason Moreno was convicted of five counts of wire fraud and two counts of conspiracy growing out of a mortgage-fraud scheme in which he was found to have, among other things, provided inflated appraisals to other members of the scheme in exchange for money. At sentencing, Moreno took the stand and provided the court with a summary of his personal characteristics and explained at length that he was prepared to accept responsibility for his actions. In response to this testimony, the prosecutor questioned Moreno at length about his criminal behavior, including actions that were not even raised at trial, and later argued that the “seriousness of the offense [had been] ratcheted up” by Moreno’s responses to that cross-examination. The district court relied on the contents of the cross-examination in imposing sentence, denying Moreno a sentencing variance based, at least in part, on his responses to the prosecutor’s questions.

In the Court’s precedential opinion granting Moreno resentencing, authored by Judge D. Michael Fisher, the Third Circuit held that the district court erred by permitting the prosecutor to examine Moreno in response to what even the government conceded was a “classic allocution.” Despite Moreno’s failure to preserve his claim at sentencing with an objection, the Court held that this error was plain in light of its prior decision in United States v. Ward, 732 F.3d 175 (3d Cir. 2013).

The Third Circuit had previously explained in Ward that allocution - an ancient right afforded to criminal defendants that dates back at least six centuries - is intended to allow persons convicted of crimes to present mitigating factors and personal circumstances to the trial court before their sentences are imposed, and to preserve the appearance of fairness in the criminal justice system. In reliance on Ward, the Moreno Court explained that the cross-examination after Moreno’s allocution was contrary to these objectives, since it bolstered the factual case against Moreno by drawing out admissions about the scope of the conspiracy—facts that the prosecutor then used in his sentencing argument, and upon which the district court relied.

The district court’s error in permitting cross-examination was plain in light of Ward, the Court reasoned, because: (i) such cross-examination subverts the policy goals of allocution; (ii) Moreno was prejudiced by the prosecutor’s questioning and the district court’s reliance on the results of that questioning in determining his sentence; and (iii) a trial court’s violation of the right of allocution clearly affects the fairness, integrity, or public reputation of the judicial proceedings.

While the Court could have stopped there, it went on to conclude that, even had it not found the error plain, it would nonetheless “not hesitate to invoke [its] supervisory authority” over the district courts to hold that the right of allocution is so fundamental, and the potential for cross-examination to subvert the goals of allocution so severe, that a criminal defendant may never be cross-examined during allocution. Moreno thus provides a criminal defendant with an absolute right to provide a statement of mitigating factors and personal characteristics to the court at allocution without fear that the government may attempt to cross-examine him about that statement to bolster its case against him and argue for a sentencing enhancement.

The decision does, however, leave open some interesting questions. We know from Moreno that the prosecutor may not cross-examine a defendant about his allocution, but is there any limitation on the trial judge’s discretion to ask questions of the defendant about that statement? An even closer question raised by a member of the panel at the September oral argument: What if the prosecutor, rather than asking questions himself, proposes that the judge ask the defendant certain questions? Moreno suggests in a closing footnote that it is not to be read as constraining the district courts’ discretion in determining what may or may not be presented at allocution. Nevertheless, whether the Third Circuit would countenance such closer cases, especially given the concern at argument about where the line should be drawn in this context, will remain a question for another day.