Lead Opinion
Dick Noel was charged with producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury found Noel guilty on all counts, and on June 1, 2007, the district court sentenced Noel to eighty years’ im
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, Sheriffs Department began investigating Philip Vanderhoff for crimes against children. A search of Vanderhoffs computer revealed logs from chat sessions with a person with the screen name of “dick_noel2003.” In those conversations, “dick_noel2003” referred to a “BL,” meaning “boy lover,” and certain “pics.” He also described his relationship with a boy named H; this conversation included a description of various sexual encounters.
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 18 U.S.C. § 2251(a). These three counts were based on ten allegedly pornographic photos of H that investigators had found during the search of Noel’s home. Count four charged Noel with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). This count was based not only on the ten pornographic photos of H, but also on numerous photos of other minors. A jury trial commenced on March 12, 2007.
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,
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:
*495 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.
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.
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.
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,
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 conelusory 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.” Fed.R.Evid. 704(a); see also United States v. Wantuch,
We have held repeatedly that lay testimony offering a legal conclusion is inadmissible because it is not helpful to the jury, as required by Rule 701(b). See, e.g., Wantuch,
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 Rule 702. But even if Barnes was properly qualified as an expert,
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.,
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.
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.
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, 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.
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,
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 “[wjhere [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,
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:
(1) whether the focal point of the picture is the minor’s genitalia or pubic area;
(2) whether the visual setting or pose is sexually suggestive, that is, in a place or a pose generally associated with sexual activity;
(3) whether the minor’s pose is unnatural or whether the minor is dressed in inappropriate attire given his/her age;
(4) whether the minor is partially or fully ... nude;
(5) whether sexual coyness or willingness to engage in sexual activity is suggested; and
(6) 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,
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,
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,
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,
a. Whether Plain Error Occurred
In Green v. United States,
At the outset of Noel’s sentencing, the district judge addressed Noel’s counsel and stated, “[Yjour 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 Rule 32. We cannot agree. The record is clear that the district court addressed defense counsel and asked “would your client like to address me?” but the court did not directly address the defendant himself. This is contrary to the language of Rule 32 and constitutes plain error.
In arguing that the district court’s comments satisfied Rule 32, the government relies on United States v. Williams,
Unlike in Williams and Franklin, the record in this ease 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.”
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,
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,
With these considerations in mind, we cannot conclude that Noel would have received the same sentence had he been afforded the opportunity to alloeute. 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,
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,
Although we have ordinarily remanded in circumstances where a defendant has been denied the right to alloeute, United States v. Pitre,
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.
Notes
. These conversations were not published to the jury but were referred to in the Presentence Investigation Report (PSR). Because they are not essential to our analysis, we will spare the reader the despicable details.
. Although Noel did not name this friend in the letter, defense counsel argued during closing arguments that a man who regularly fixed Noel’s computer was responsible for the photographs.
. An acceptance of responsibility adjustment would have resulted in a two-point decrease in the total offense level. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1. Because Noel was five levels above the highest offense level, this would not have had an impact on his guidelines sentence.
. The guidelines range for offense levels 43 and higher is life in prison. Where, as here, the guidelines range exceeds the statutory maximum, the statutory maximum becomes the guidelines sentence. U.S.S.G. § 5G1.1(a).
. The record reveals that Barnes was offered in part as a fact witness to explain the course of the police investigation and in part as an expert witness. The breadth of her expertise is disputed, however. Noel claims that she was only offered as an expert in computer forensics. The government, on the other hand, claims that she was also an expert in child pornography, pointing to her extensive experience in these investigations and her testimony that she was familiar with the federal and Indiana definitions of child pornography. We need not resolve this conflict because of our finding that, in any event, Barnes’s testimony was unhelpful to the jury.
. Noel cites United States v. Thoma,
. This begs the question of why the legal photos were presented to the jury in the first
. The only objections were to any description of the photos. Defense counsel argued the photos spoke for themselves, and the district court agreed.
. In his reply brief, Noel objects to the government’s reliance on this change because he claims he was sentenced to almost three times the statutory maximum. He correctly notes that the statutory maximum for production of child pornography is thirty years, while he was sentenced to eighty. But the statutory maximum is thirty years for each count. Noel was convicted of three counts of producing child pornography and was sentenced to twenty-five years per count. He was also convicted of possessing child pornography and sentenced to five years for that charge. His sentence is therefore almost three times the statutory maximum for producing child pornography because he was convicted of three counts of that offense. Noel does not argue that consecutive sentences were inappropriate. If anything, this detracts from his argument that his sentence was disproportionate because the statistics upon which he relies likely include defendants serving sentences for a single offense.
. As Bames recognized, the holding in Green was originally codified at Rule 32(a)(1). See Fed.R.Crim.P. 32 advisory committee's note (1966 Amendments). Although the Rule has subsequently been reorganized, its application for our purposes remains unchanged. See Fed.R.Crim.P. 32 advisory committee's note (2002 Amendments) (stating that, unless otherwise noted, changes were intended to be stylistic only).
Concurrence Opinion
concurring.
Although the court holds that the district judge committed plain error by failing to “address the defendant personally” about allocution, as Fed.R.Crim.P. 32(i)(4)(A)(ii) requires, it also declines to reverse, because it is very unlikely that the gaffe affected the outcome. The judge twice invited allocution (though when speaking to counsel rather than Noel), and in response counsel read aloud a letter that Noel had written to the judge. Noel evidently thought that something composed in advance would present his position better than extemporaneous oral remarks. He has never contended that he did not know of his right to speak on his own behalf, and he has never asserted that he would have spoken if only the judge had raised the subject with him rather than counsel. Even the plainest of errors justifies reversal only if allowing the decision to stand would impair “the fairness, integrity or public reputation of judicial proceedings” (United States v. Atkinson,
I write separately to question the conclusion of United States v. Luepke,
Even on harmless-error review, the burden of showing prejudice rests on the defendant, not the prosecutor. See Kotteakos v. United States,
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,
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. -,
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 Fed.R.Crim.P. 52(b). And the Justices have never so much as hinted that a “no possibility of harm” standard would be appropriate for any kind of error. A small category of “structural errors” justifies reversal without inquiry into prejudice — for example, the participation by a judge who does not hold office under Article III, see
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 Rule 32(i)(4)(A)(ii). But the reason it is hard to show injury is that violations of the Rule usually are inconsequential. That a violation did not affect anyone’s behavior— which may explain why no one objected' — • ought not make reversal the norm. It is instead why a court of appeals should allow the judgment to stand. It cannot be sound to say that the more technical the violation, and the less likely any adverse consequence, the more readily a court of appeals must reverse. Everything Luepke said about violations of Rule 32(i)(4)(A)(ii) could have been said — and was said, by the ninth circuit — in Vonn and Dominguez Benitez. But the Supreme Court held that the defendant must show prejudice when the district judge fails to supply the information required by Rule 11. If, for example, the defendant knew (perhaps having been told by counsel) the information on the Rule 11 list, there is no point in taking the plea anew. Just so with a violation of Rule 32(i)(4)(A)(ii). Luepke should be overruled.
Dissenting Opinion
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,
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,
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.
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
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,
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,
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,
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,
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,
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,
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,
We cannot deny the importance of the right to allocute and the steps the district court must take to enforce it. Green,
. 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.