UNITED STATES of America, Plaintiff-Appellee, v. Dick L. NOEL, Defendant-Appellant.
No. 07-2468.
United States Court of Appeals, Seventh Circuit.
Argued April 8, 2009. Decided Sept. 4, 2009.
581 F.3d 490
Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.
Michael B. Nash (argued), Chicago, IL, for Defendant-Appellant.
KANNE, Circuit Judge.
Dick Noel was charged with producing and possessing child pornography in violation of
I. BACKGROUND
This case represents every parent‘s worst nightmare. Russell Beauchamp and his wife, Lori Beedi, consciously decided to restrict the care of their young son, “H,” only to family members. In keeping with that decision, Beauchamp trusted his stepbrother Dick Noel to care for H periodically from the time H was two years old. Noel often supervised H overnight, including every Friday. As the years progressed, Beauchamp and Beedi divorced, and Noel‘s role in H‘s life increased. For example, Noel would often care for H when Beauchamp was working late, and he provided assistance as H healed from a broken arm suffered in July 2005.
But a police investigation later revealed that Noel was not worthy of the trust that Beauchamp had bestowed. On July 31, 2005, Detective Brian Broughton of the Martin County, Florida, Sheriff‘s Depart
The screen name was registered to a Dick Noel in Middletown, Indiana, whose personal information matched that of the appellant. Broughton referred this information to the Indiana Internet Crimes Against Children Task Force. Authorities searched Noel‘s house in August 2005, and seized several pieces of computer media. The hard drive of Noel‘s computer and several computer disks contained photographs organized into many folders, including one labeled “H,” which held photos that portrayed H nude and asleep. The computer media also contained numerous photos of other minors engaged in sexually explicit conduct.
A grand jury returned a four-count indictment against Noel on January 25, 2006. Counts one through three charged Noel with production of child pornography in violation of
As one of its primary witnesses, the government called Jennifer Barnes, a detective with the Indiana State Police who had conducted the forensic examination on the computer media seized from Noel‘s residence. Barnes explained that she found numerous images that met the federal definition of child pornography organized in multiple folders on Noel‘s computer system. She then described the government‘s exhibits, explaining how she compiled them and how they related to each of the charged counts.
Barnes testified that the government‘s Exhibit Nine contained all 246 images of H that were found on Noel‘s computer. These included not only the ten charged photos, but also numerous photos that were not pornographic, such as clothed photos of H in outdoor settings. These photos were all admitted into evidence without objection.
Exhibits One, Two, and Three contained the photos that formed the basis for counts one through three against Noel, respectively. Barnes told the jury that these were duplicates of certain photos that were also contained in Exhibit Nine. The prosecution asked Barnes: “And these were, in your opinion, although the jury will be making that determination, pictures that fit within federal law?” Barnes responded affirmatively.
Barnes stated that the government‘s Exhibit Four contained the photos on Noel‘s computer that met the federal definition of child pornography. She described the folders on Noel‘s computer from which the photos came and informed the jury that those folders also contained photos of child pornography that were not present in the exhibits. She later explained to the jury that Exhibit Four contained all photos relevant to count four, the possession charge, including copies of the photos of H in Exhibits One through Three. All in all, Barnes opined at least six times during her testimony that the charged photos were pornographic.
At the close of evidence, the court instructed the jury regarding the definition of “lascivious exhibition of the genitals” in the context of child pornography, using the factors articulated in Dost, 636 F.Supp. at 832. During the government‘s closing argument, the prosecution described some of the photos and argued, using the Dost factors, that they each fell within the definition of child pornography. Defense counsel chose not to focus on the photos, telling the jury:
I‘m going to give you some good news. You are not going to have to look at those pictures again in order to make up your minds about this case, because people, reasonable people, could probably decide that those are minors and that that‘s pornography. Probably could, and I‘m not going to argue that. That‘s not our issue.
Instead, defense counsel, after acknowledging that the photos were “horrible,” argued that there was not enough evidence to find that Noel had produced or knowingly possessed them. She then reiterated: “You don‘t need to look at these pictures again. I mean, you certainly can if you want to, but from our perspective, you don‘t need to.”
Defense counsel also criticized the police investigation, claiming that the detectives failed to inquire into who owned and created the pornography. As a part of this claim, counsel stated: “Where they were looking for pornography, they found pornography and they were done.”
The jury returned a guilty verdict on all counts. The district court held a sentencing hearing on June 1, 2007. At the outset of that hearing, the judge stated:
And I‘ll now hear first from the government with respect to its argument regarding sentencing, and then I‘ll hear from the defense. And of course, Ms. Jensen, as part of the defense presentation, your client, Mr. Noel, has the right to speak; that is, to say whatever he wants to say to help me in determining what the sentence should be.
After the government‘s presentation, the district court asked defense counsel, “Miss Jensen, do you have a presentation you‘d like to make regarding sentencing and would your client like to address me?”
Defense counsel began by reading a letter that Noel had prepared. She explained that Noel had provided her with the letter too late for the probation officer to include it in the PSR, but she nonetheless felt it might be appropriate to share with the court.
In the letter, Noel never admitted to his conduct. The letter stated that Noel was not aware of the material on his computer and described how his trust had been betrayed by an unnamed friend.2 Noel wrote: “He had my computer, as my mentor, set up the passwords, he even chatted under my chat name. He had the run of the house three to four days a week.” Noel explained that other minors and Beauchamp himself had stayed at his house and that “[t]hey also witnessed that nothing questionable ever happened.”
Nonetheless, Noel apologized in the letter, stating, “I do want to apologize for all the pain this has caused. I grieve for all of my family who felt this trust was betrayed by me. I feel their pain very deeply.” He explained that words failed to express his “deep love” for H, and he said that “when I think that our wonderful relationship has now had the shadow cast on it, it causes my very soul to hurt. He alone, other than myself, knows the purity of our ten-year relationship.” The letter concluded by requesting a merciful sentence.
After defense counsel‘s presentation, the district court considered the letter but ultimately concluded that an acceptance of responsibility adjustment was inappropriate.3 The district court determined that the letter was inconsistent with statements Noel made to law enforcement and was “a denial of the very things that would constitute acceptance of responsibility.”
The district court applied a base offense level of 48, with a criminal history level of I. This resulted in a recommended guidelines sentence of the statutory maximum—one hundred years’ imprisonment.4 After considering the sentencing factors enumerated in
II. ANALYSIS
Noel challenges his conviction on appeal, claiming that the district court erred in allowing certain aspects of Barnes‘s testi
A. Noel‘s Challenges to His Conviction
Noel claims that Detective Barnes rendered an impermissible legal conclusion that the government‘s exhibits met the federal definition of child pornography. He also argues that this error was exacerbated by the district court‘s purportedly “muddled and confusing” jury instruction defining “lascivious exhibition of the genitals” using the factors described in Dost, 636 F.Supp. at 832. We find error in Barnes‘s testimony but not the jury instructions. Because the error did not affect Noel‘s substantial rights, however, his conviction will be affirmed.
1. Testimony of Detective Barnes
At Noel‘s trial, Barnes testified repeatedly that the images on Noel‘s computer met the federal definition of child pornography. She provided no explanation for this opinion, but instead offered only conclusory statements. We find the government‘s explanation for this testimony troubling and agree with Noel that it was improper.
Under the Federal Rules of Evidence, testimony is not objectionable solely “because it embraces an ultimate issue to be decided by the trier of fact.”
We have held repeatedly that lay testimony offering a legal conclusion is inadmissible because it is not helpful to the jury, as required by
Barnes‘s testimony that the photos found in Noel‘s home met the federal definition of child pornography amounted to nothing more than a statement that the photos were illegal. Given proper instructions, the jury was capable of making this determination on its own. This testimony
The government claims that this rule is irrelevant because Barnes was presented as an expert and her testimony was admissible under
In her testimony, Barnes gave no basis whatsoever for her conclusion that the images on Noel‘s computer were child pornography under the federal definition. “An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.” Mid-State Fertilizer Co. v. Exch. Nat‘l Bank of Chi., 877 F.2d 1333, 1339 (7th Cir.1989). We have therefore described an expert‘s opinion that lacks proper substantiation as “worthless.” Minasian v. Standard Chartered Bank, 109 F.3d 1212, 1216 (7th Cir.1997). Thus, even though expert witnesses may opine on ultimate issues of the case, under
Barnes‘s “expert” testimony that the photos met the definition of child pornography was a bare conclusion that provided nothing but the bottom line, i.e., that Noel possessed illegal photos. Had Barnes provided some basis for this explanation, perhaps her testimony would have been of some use for the jury.6 But she did not do so. She, in essence, told the jury nothing more than, “I am familiar with the definition of child pornography, and this meets that definition because I said so.” Regardless of whether Barnes was an expert, she could not “merely tell the jury what result to reach.”
At oral argument, the government‘s only justification for this testimony was that it wanted to inform the jury that the government knew the difference between the illegal and legal photos. According to the prosecutor, in addition to the ten photos for which Noel was charged in counts one through three, the remaining 236 photos of H presented to the jury were legal and did not meet the definition of child pornography. Counsel explained that these photos were offered to show how much Noel loved H and to provide a motive for the crime. She surmised that juries often do not understand why certain photos are not illegal; as a result, the government was attempting to show that it knew the difference between legal and illegal and that it was not attempting to convict Noel based on the legal photos.7
But even if we accept the government‘s rationale, Barnes‘s testimony did nothing to help the jury understand why certain photos were illegal. With such damning evidence against Noel, the government would have been well served to simply stick to the facts: present the charged photos to the jury and allow it to reach its own conclusions based on the court‘s instructions. Prosecutors were certainly free to argue that the photos were pornographic, but the proper forum was in the opening or closing arguments, not during the presentation of evidence. Cf. Garcia, 413 F.3d at 214 (explaining that the opening statement is the proper vehicle for the government to help the jury gain an overview of the evidence and theories of the case).
Moreover, to the extent that the government felt compelled to explain its subjective motivations or the thought processes of its investigators, these considerations are irrelevant to Noel‘s guilt or innocence. Indeed, the government‘s focus on the investigators’ subjective views to justify this line of questioning is troubling. In United States v. Cunningham, 462 F.3d 708, 712 (7th Cir.2006), we held that detailed questioning regarding the procedures used to obtain court authorization for wiretaps was inadmissible because it was irrelevant to the defendants’ guilt or innocence. Instead, we opined that the explanation of why the government did what it did was simply a back-door way to show that numerous government agents believed the defendants were committing crimes, which was impermissible. Id. at 713.
Although the facts in this case are different from those in Cunningham, we suspect that the government‘s motivation was similar. The only plausible reason the government would want to show that its investigators believed the photos were illegal was to persuade the jury to agree. But without a proper explanation to help the jury form that conclusion on its own, this type of testimony is not allowed.
That Barnes‘s testimony was improper is not dispositive of this case, however. Because Noel did not object to Barnes‘s comments at trial,8 our review is for plain error, “and we will reverse only if the errors resulted in an actual miscarriage of justice such that the defendant probably would have been acquitted but for the erroneously admitted evidence.” United States v. Avila, 557 F.3d 809, 819-20 (7th Cir.2009) (quotations omitted). We are convinced that Noel would have been convicted even if Barnes had not been allowed to testify improperly, and, therefore, reversal is not warranted.
Fortunately, we are able to spare the reader the photos’ stomach-turning details to reach our conclusion, because we need not go beyond defense counsel‘s words at Noel‘s trial to determine that the result would have been the same without Barnes‘s testimony. During her closing argument, defense counsel explicitly told the jury twice that there was no need to review the photos in making its determination. She said that whether the photos were pornographic was “not our issue” and instead argued that the government had failed to prove that it was Noel who had produced the photos. She even commented that “[w]here [the government
Given the focus of Noel‘s closing argument and the concessions by his counsel, he cannot now argue that he was prejudiced by Barnes‘s comments. Not only did his attorney concede that the photos were pornographic, but she did so in what was likely a deliberate trial strategy to shift the jury‘s attention away from their content. Noel‘s sole focus at trial was knowledge, i.e., he claimed that someone else had produced the photos and that he did not know they were on his computer. Barnes‘s improper opinion that the photos were pornographic therefore did not result in a manifest miscarriage of justice such that reversal is warranted.
2. The Dost Jury Instruction
Noel claims that the harm resulting from Barnes‘s improper testimony was exacerbated by a confusing jury instruction defining child pornography. The district court provided the jury with the following instruction based on the language in Dost, 636 F.Supp. at 832:
In determining whether a visual depiction is a “lascivious exhibition of the genitals or pubic area of any person,” there are a number of factors for you to consider. Those factors include but are not limited to:
- whether the focal point of the picture is the minor‘s genitalia or pubic area;
- whether the visual setting or pose is sexually suggestive, that is, in a place or a pose generally associated with sexual activity;
- whether the minor‘s pose is unnatural or whether the minor is dressed in inappropriate attire given his/her age;
- whether the minor is partially or fully... nude;
- whether sexual coyness or willingness to engage in sexual activity is suggested; and
- whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
The government is not required to prove each of these factors is present for a visual depiction [to] be a “lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.
Noel claims that this instruction was “confusing and muddled.” He argues that “lascivious” is a “commonsensical term [that] needs no adornment.”
We typically review jury instructions de novo, but give the district court substantial discretion to formulate the instructions “so long as [they] represent[] a complete and correct statement of the law.” United States v. Matthews, 505 F.3d 698, 704 (7th Cir.2007). Our review in this case is more deferential, however. Noel did not object to this jury instruction at trial, so we review for plain error, United States v. Jackson, 479 F.3d 485, 491 (7th Cir.2007), a standard that is particularly limited in the context of jury instructions, United States v. Peters, 435 F.3d 746, 754 (7th Cir.2006). To warrant reversal, “[t]he error [must] be of such a great magnitude that it probably changed the outcome of the trial.” Id. (second alteration in original) (quoting United States v. Moore, 115 F.3d 1348, 1362 (7th Cir.1997)). As we have noted, where there is no objection at trial, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction.” Id. (quotations omitted).
There has been some debate among courts regarding the propriety of jury in
We have not yet taken a position on whether the Dost factors represent a permissible instruction, and we need not do so today. Even if improper, the instruction does not rise to the level of plain error because it was unlikely to have influenced the jury‘s verdict. As described above, defense counsel admitted that the outcome of the case did not turn on the issue of whether the photos were pornographic; it turned on Noel‘s knowledge. Noel conceded that the photos were pornographic and told the jury it did not need to look at them. For the same reason that Barnes‘s improper testimony does not merit reversal, nor does the Dost instruction: the outcome of the trial would not have been different without it.
B. Noel‘s Challenges to his Sentence
Noel also challenges his sentence, claiming that (1) it was excessive and unreasonable; and (2) the district court erred in failing to personally address him and give him the opportunity to allocute.
1. Reasonableness
We can quickly dismiss Noel‘s argument that his sentence was unreasonable. A sentence that falls within a properly calculated guidelines range is presumptively reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Not only is Noel‘s sentence presumptively reasonable under that rule, but it was actually twenty years below the guidelines sentence of one hundred years’ imprisonment. In order to rebut the presumption of reasonableness, Noel must demonstrate that this below-guidelines sentence was unreasonable in light of the factors set forth in
First, Noel claims that the most appropriate sentence is a structured treatment program including psychotherapy and medications. He claims that the imposed prison sentence does not meet his needs and notes that an eighty-year sentence
Noel also argues that his sentence was unreasonably disproportionate to that of other defendants convicted of the same offense, but we find this argument unconvincing. We have held that “[w]hile comparisons are appropriate, ... [i]t is not enough for a defendant to argue that a few cases ... seem to cast doubt on his sentence.” United States v. Newsom, 428 F.3d 685, 689 (7th Cir.2005). Instead, “we have a system of individualized sentencing [that] takes into account factors other than the type of crime.” United States v. Cavender, 228 F.3d 792, 803 (7th Cir.2000). Furthermore, the statutory penalties and guidelines sentences for producing child pornography have recently increased.9 Compare
2. Allocution
We next turn to Noel‘s argument that the district court erred in denying him the right to a meaningful allocution. Because Noel did not object at sentencing, our review is again for plain error. United States v. Luepke, 495 F.3d 443, 446 (7th Cir.2007). To prevail, Noel must demonstrate that a plain error occurred that affected his substantial rights. Id. at 448. If he makes this showing, “we may reverse, in an exercise of discretion, if we determine that the error seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations omitted).
a. Whether Plain Error Occurred
In Green v. United States, 365 U.S. 301, 304 (1961), the Supreme Court rejected the view that inviting defense counsel to speak
At the outset of Noel‘s sentencing, the district judge addressed Noel‘s counsel and stated, “[Y]our client, Mr. Noel, has the right to speak.” After the government made its presentation, the court asked defense counsel, “Miss Jensen, do you have a presentation you‘d like to make regarding sentencing and would your client like to address me?” Noel‘s counsel responded by reading aloud a letter that Noel had addressed to the court. The government claims that this was a sufficient opportunity to allocute under
In arguing that the district court‘s comments satisfied
Unlike in Williams and Franklin, the record in this case makes clear that the district court was addressing Noel‘s counsel only. He began each statement by referring to “Miss Jensen,” and then advised what her client had the right to do. In all of these addresses, the court referred to Noel only in the third person. In response to the district court, Jensen made her presentation (which was constructed much as an allocution), but the district court never returned to Noel to ask him directly whether he would like to speak. Although the mistake is understandable given the reading of Noel‘s letter, this is not the type of personal address the rule unequivocally requires.
The Supreme Court‘s own language in Green is instructive: “Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.” 365 U.S. at 305. Such a “personal invitation” was lacking here, an omission that constituted plain error.
We now turn to the question of whether this plain error affected Noel‘s substantial rights. In the ordinary case, the defendant‘s burden of showing that an error affected his substantial rights requires a demonstration of prejudice. Luepke, 495 F.3d at 450-51. But when, as here, the error violated the right to allocute, we “presume prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.” Id. at 451.
In Luepke, we emphasized the discretionary nature of sentencing when explaining the reasoning behind this presumption. Id. We noted that “[i]n a post-Booker world ... [i]t would be almost impossible to determine whether, in the context of the advisory guidelines and the court‘s balancing of the statutory sentencing factors, a defendant‘s statement, that was never made, would have altered the conclusions of the sentencing court.” Id. Thus, when determining whether Noel‘s substantial rights were affected, we do not speculate as to what he may have said, nor do we try to determine whether it would have been persuasive. See United States v. O‘Hallaren, 505 F.3d 633, 636 (7th Cir.2007) (“[W]e cannot speculate as to the persuasive ability of anything O‘Hallaren may have said in his statement to the court.“); Luepke, 495 F.3d at 451 (explaining that a presumption of prejudice “avoids our speculation about what the defendant might have said had the right been properly afforded him“).
With these considerations in mind, we cannot conclude that Noel would have received the same sentence had he been afforded the opportunity to allocute. Although Noel has not submitted that he would have said anything different than what he wrote in his letter, allowing counsel to speak in Noel‘s stead does not cure the prejudice stemming from the violation of his rights. See Green, 365 U.S. at 304. As the Supreme Court has suggested, “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Id. In other words, it is not only the content of the defendant‘s words that can influence a court, but also the way he says them. Noel has therefore established that the court‘s failure to address him personally was plain error that affected his substantial rights.
c. The Fairness, Integrity, and Public Reputation of Judicial Proceedings
That Noel has established plain error does not end our inquiry, for our decision of whether to correct that error is discretionary. We exercise that discretion and remand only if the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Luepke, 495 F.3d at 451.
Although we have ordinarily remanded in circumstances where a defendant has been denied the right to allocute, United States v. Pitre, 504 F.3d 657, 663 (7th Cir.2007), the Supreme Court has stated that an error such as this “is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure,” Hill v. United States, 368 U.S. 424, 428 (1962). “Thus, the general rule does not foreclose the possibility that the facts of a particular case may compel a conclusion that any violation of the defendant‘s right to allocut[e] did not affect seriously the fairness of the judicial proceedings.” Pitre, 504 F.3d at 663.
III. CONCLUSION
In cases involving such reprehensible conduct, the government‘s tenacity in pursuing a conviction is understandable. But cases such as these require even more caution to ensure that the fairness of the judicial proceedings remains intact so that the resulting convictions and sentences are sound. It is up to the government to present the facts and allow the jury to do its job, without resorting to testimony that usurps the jury‘s function. Although Barnes‘s testimony was improper, we are convinced that the outcome would have been the same had it been excluded. We therefore AFFIRM Noel‘s conviction. We also find that although the district court committed plain error during Noel‘s sentencing, that error did not affect the fairness, integrity, or public reputation of the judicial proceedings, and we AFFIRM Noel‘s sentence.
EASTERBROOK, Chief Judge, concurring.
Although the court holds that the district judge committed plain error by failing to “address the defendant personally” about allocution, as
I write separately to question the conclusion of United States v. Luepke, 495 F.3d 443, 451 (7th Cir.2007), that, when conducting plain-error review of a conten
Even on harmless-error review, the burden of showing prejudice rests on the defendant, not the prosecutor. See Kotteakos v. United States, 328 U.S. 750 (1946); cf. O‘Neal v. McAninch, 513 U.S. 432 (1995). It is supposed to be harder to show plain error (when the defendant forfeited the issue by failing to raise it in the district court) than to show harmless error (when the defendant did raise the issue, and the judge wrongly rejected the argument). Yet Luepke makes it easier to reverse on plain-error review than on harmless-error review.
Only grave and prejudicial errors justify reversal when the defendant did not alert the district judge to the problem. See, e.g., United States v. Young, 470 U.S. 1 (1985); Atkinson; Olano. During the last 20 years, courts of appeals have occasionally declared that one or another kind of error warrants a modified rule, in which prejudice is presumed—and sometimes in which reversal follows if there is “any possibility” that the defendant was adversely affected. The Supreme Court has disapproved that approach. For example, when a court of appeals declared that prejudice would be presumed if alternate jurors are present during deliberations, the Supreme Court reversed in Olano and held that the defendant bears the burden of establishing prejudice. When a court of appeals concluded that prejudice is presumed if a district court fails to provide the defendant with all of the information required by
And when some courts of appeals concluded that a prosecutor‘s failure to keep a promise in a plea agreement leads to reversal unless the prosecutor shows that there is “no possibility” of an adverse effect, the Supreme Court replied that the defendant bears the burden of showing prejudice. Puckett v. United States, — U.S. —, 129 S.Ct. 1423 (2009). See also United States v. Marcus, 538 F.3d 97, 102–05 (2d Cir.2008) (Sotomayor, J., concurring) (questioning the second circuit‘s doctrine that prejudice is presumed for ex post facto issues, and that reversal is required if there is “any possibility” that pre-enactment conduct affected the verdict), petition for cert. filed, No. 08-1341.
Now it is true that Olano and its successors state that the defendant “ordinarily” bears the burden of establishing prejudice. This leaves open the possibility of presuming prejudice for some kinds of error. Yet it is also true that the Supreme Court has never found it appropriate to place the burden on the prosecutor when reviewing under
Luepke justified transferring the burden to the prosecutor, and adopting the “no possibility” standard, because it is hard to show an adverse effect from a judge‘s failure to address the defendant personally—rather than, say, addressing counsel in the defendant‘s presence, which conveys the same information but does not satisfy
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
The Supreme Court recognized, in Green v. United States, that
Nor do I believe that Noel‘s letter should alleviate our concerns regarding the denial of the right to allocute. 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 “under-line[d] the determination [he had] made that [an] acceptance of responsibility [sen
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
A number of circuits, including ours, have recognized the implausibility of proving prejudice from a
Plain error review, outlined in
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. 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
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.1 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
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. 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