Supervised Offender’s Waiver of Legal Representation at Revocation Hearing Sufficient under Totality of the Circumstances Standard

In United States v. Manuel, No. 12-4258 (3d Cir., Oct. 17, 2013), Defendant pled guilty to conspiracy as well as the substantive offense of mail fraud, involving a scheme to defraud investors in Defendant’s non-existent financial assistance programs. He was sentenced to 71-months imprisonment and three years supervised release. While on supervised release, Defendant committed several infractions, including illegal drug use and unauthorized employment. During his second supervision revocation hearing, Defendant petitioned the court to allow him to represent himself. The court conducted a colloquy with Defendant and ultimately granted his request. The court also granted Defendant several continuances to allow him to obtain additional documents and witnesses. Defendant ultimately presented witness testimony from his substance abuse therapist and employees from a halfway house to which he had been sanctioned. Nonetheless, the court revoked his supervised release term and sentenced him to two, consecutive 16-month jail terms. Defendant appealed this revocation sentence, arguing that the court’s colloquy was insufficient under United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), and therefore his waiver of legal representation was ineffective.

The Third Circuit disagreed, interpreting Peppers to apply only to a defendant’s right to self-representation in a criminal prosecution, not a supervision revocation hearing. The court recognized that the case cited by Defendant, Morrissey v. Brewer, 408 U.S. 471 (1972), specifically states that the "full panoply of rights" afforded a defendant in a criminal prosecution do not apply to a supervision revocation proceeding. Therefore, as the Supreme Court ruled in Gagnon v. Scarpelli, 411 U.S. 778 (1973), there is not constitutional right to legal representation at a supervision revocation hearing. Instead, Federal Rule of Criminal Procedure 32.1 governs due process in the context of a supervision revocation hearing. Consequently, the court was not required to perform the 14-point inquiry enunciated in Peppers. The Third Circuit concluded that a defendant has been afforded due process in accordance with Rule 32.1 if his waiver of rights is knowing and voluntary under a totality of the circumstances standard. The Third Circuit interpreted this standard to require only that the court inform the defendant of the charges against him, the evidence supporting those charges, the penalties he faces, the rights he possesses and the consequences of relinquishing those rights. As the totality of the circumstances indicated that Defendant had knowingly and voluntarily waived legal representation, the district court did not err.

Sentencing Court May Require Defendant to Deliver Sworn Allocution

In United States v. Ward, No. 12-1511 (3d Cir., Oct. 15, 2013), Defendant was a professor emeritus at the University of Pennsylvania’s Wharton School of Business. In 2006, he allegedly traveled to Brazil in order to engage in sexual relations with two minors. Upon his return to Dulles International Airport, Defendant was found in possession of child pornography and charged in the Eastern District of Virginia. A search of his office at the University of Pennsylvania resulted in the discovery of more child pornography involving his Brazilian victims, as well as email communications with the children. Defendant also attempted to acquire a visa for one of his Brazilian minor victims by providing false information during the visa application process. Defendant subsequently was indicted in the Eastern District of Pennsylvania with shipping child pornography and lying to a federal official. This indictment was superseded to add two counts of sexual exploitation of minors under 18 U.S.C. § 2251(a). Defendant pled guilty to all charges. He received a sentence of 15 years imprisonment in the Eastern District of Virginia, and 300 months imprisonment, lifetime supervised release, and a $100,000 fine in the Eastern District of Pennsylvania. The fine was imposed instead of restitution apparently because the Brazilian victim who was still a minor could not be located. Defendant appealed his sentence from the Eastern District of Pennsylvania on several grounds, including the court’s imposition of a $100,000 fine instead of restitution, and the court’s failure to impose separate sentences for the counts in the superseding indictment. During the pendency of this appeal, Defendant continued to contact his Brazilian victims, one of whom had fathered children. Defendant attempted to contact those children as well. Defendant also committed several prison infractions.

At his resentencing in the Eastern District of Pennsylvania, the court allowed Defendant to make a statement, but insisted that Defendant do so under oath, despite defense counsel’s objection. Defendant expressed remorse for his actions and requested a shorter sentence, in light of his age and recent diagnosis of leukemia. The court ultimately resentenced Defendant to the same 300 months in prison, but increased the fine from $100,000 to $250,000, reasoning that Defendant’s continued unlawful behavior warranted the increase. Defendant raised several challenges in this second appeal, including what he believed to be the court’s denial of his right to deliver an unsworn allocution at sentencing. Defendant argued that Federal Rule of Criminal Procedure 32 afforded criminal defendants this right. The Third Circuit disagreed, interpreting Rule 32 to require only that the sentencing court personally address the defendant and also allow him to speak or provide mitigating evidence. The court concluded that the sentencing court’s decision to place Defendant under oath did not prohibit him from presenting information in accordance with Rule 32. The Third Circuit ultimately ruled that the decision to require a defendant to deliver a sworn allocution is within the district court’s discretion. The Third Circuit rejected Defendant’s remaining arguments on appeal and affirmed the second sentence.