Cross-examination of Allocution is Plain Error

In United States v. Moreno, No. 14-1568,  2016 WL 53796 (3d Cir., Jan. 5, 2016), Defendant was charged with wire fraud conspiracy, in violation of 18 U.S.C. §§ 1343, 1349 and 2, for his participation in a mortgage fraud scheme. Specifically, Defendant, an unlicensed appraiser, provided inflated appraisals to his co-conspirators who used them to secure loans for unqualified buyers. The jury returned a guilty verdict for all of the counts in the indictment. Defendant challenged his conviction on three grounds: violation of his rights under the Sixth Amendment Confrontation Clause, violation of his right to allocution, and error in application of a sentencing enhancement.

At trial, defense counsel impeached a government cooperator as coloring his testimony in exchange for sentencing concessions.  The prosecutor rehabilitated the cooperator by having him read into the record portions of memoranda written by a federal agent, documenting the cooperator’s proffer sessions.  The Third Circuit held this to be a Confrontation Clause violation, as the memoranda were statements of the agent rather than the cooperator, even though the memoranda purported to document the cooperator’s statements.  The Circuit found the error harmless, however, under the specific circumstances of this case.

The Third Circuit also concluded that sufficient evidence was presented at trial to support the application of the four-level sentencing enhancement for more than 50 victims under U.S.S.G. § 2B1.1(b)(2)(B). Specifically, the court determined that the evidence supported a finding  that Defendant had provided more than 110 fraudulent appraisals during the course of the mortgage fraud conspiracy, and that unsophisticated buyers either purchased the fraudulent appraisals or were induced to purchase properties at prices that were well above their true value.

Defendant also claimed that his right to allocution had been violated when the sentencing court permitted the prosecutor to cross-examine him during his allocution. Citing Federal Rule of Criminal Procedure 32, as interpreted by United States v. Ward, 732 F.3d 175 (3d Cir. 2013), cert. denied, 134 S.Ct. 2684 (2014), the Third Circuit determined allowing cross-examination of allocution is plain error because it is contrary to the purpose of allocution, i.e., to allow a defendant to personally address the sentencing court and present mitigating evidence. The court concluded that Defendant did not attempt to testify or challenge the facts of the case, which may have warranted cross examination. To the contrary, Defendant merely presented information about himself and his acceptance of responsibility. Consequently, the sentencing court committed plain error in allowing to prosecutor to conduct the cross-examination during allocution in contradiction of clear authority, namely Rule 32 and Ward. Allocution error is presumed prejudicial on plain-error review, but the Court noted that there was evidence of actual prejudice here. Both the prosecutor and the sentencing court relied upon Defendant’s responses to the cross-examination during allocution in recommending and fashioning his sentence.

The Third Circuit also noted that even if the sentencing court had not committed plain error, the Court would have invoked its supervisory authority to prohibit cross-examination during allocution.