In the Courts

'Unfettered Discretion' to Require Sworn Allocution

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On Oct. 15, in United States v. Ward, the United States Court of Appeals for the Third Circuit addressed whether requiring a sworn allocution violated Rule 32 of the Federal Rules of Criminal Procedure. Ward, –F.3d—, 2013 WL 5614213, *3 (3d. Cir. 2013). Rule 32(i)(4) provides that the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” While both sworn and unsworn allocutions have been referenced in prior precedent, no court had yet addressed whether requiring a defendant to take an oath prior to allocution would impinge on the defendant's rights under Rule 32. Id. at *4. After a lengthy discussion of the legal and historical underpinnings of the rule, the Third Circuit concluded that there is no right to deliver an unsworn allocution and that sentencing courts have “unfettered discretion” to decide whether unsworn allocutions will be permitted. Ward

The case involved a sordid fact pattern. Lawrence Ward was a Professor Emeritus at the University of Pennsylvania's Wharton Graduate School of Business. Id. at *1. In 2006, a search of his belongings at Dulles International Airport upon return from Brazil revealed that the Professor was in possession of child pornography. Id. He subsequently pled guilty and received a 15-year prison sentence in the Eastern District of Virginia for possession of child pornography. A search of his office at the University of Pennsylvania uncovered more photographs and videos of the Professor engaging in sex acts with two minors, as well as sexually explicit e-mails with these same young men. Id.

Ward pleaded guilty in the Eastern District of Pennsylvania to shipping child pornography, inducing a minor to engage in sexually explicit conduct, and false statements to a federal official, based on statements made to the U.S. Department of State in attempting to secure a visa for one of the young men to come to the United States from Brazil. Id.

After appeal and remand of the initial Pennsylvania sentence on procedural grounds, Ward was sentenced to 25 years' imprisonment, a lifetime of supervised release and a $250,000 fine. At sentencing, the district court required that Ward's allocution be delivered under oath, over defense objections. Id. at *2. Ward challenged his sentence based on the court's refusal to allow him to offer an unsworn statements as well as several other procedural grounds. The court found all of Ward's arguments “unavailing,” but provided a more thorough treatment of Ward's challenge based on violation of Rule 32 as “a matter of first impression” and ” a novel question of federal law.” Id. at 3.

According to the court, “the practice of swearing or not swearing defendants before a Rule 32 allocution varies by district and by judge.” Id. at *4. Acknowledging that the right of allocation is “deeply rooted in our legal system and dates back to at least the fifteenth century,” the court also emphasized that it is not a Constitutional right. Id. at *3 (internal citations omitted). Notably, there is no discussion in the rule or legislative history as to whether the statement must be sworn or unsworn. Id. Furthermore, none of the court's sister circuits appears to have addressed the issue, although the court notes that the Black's Law Dictionary definition defines allocution as an “unsworn statement.” Id. at *4 (internal citations omitted).

Nonetheless, the court concluded that, “although allocution may be frequently unsworn,” there is no right to offer an unsworn allocution because “whether an allocution is sworn or unsworn does not affect a defendant's right to make a statement to the sentencing court nor does it subvert the policy goals of Rule 32.” Id. The court cited existing jurisprudence confirming that a defendant's right to allocution is not unlimited, observing that sentencing judges are permitted to place procedural restrictions on both the time and content of allocution. Id. at *5.

The court was also not persuaded by Ward's argument that requiring a sworn allocution may impede a defendant's willingness to make a candid statement to the sentencing court, noting that a false statement may be used in subsequent criminal prosecution irrespective of whether it is sworn or unsworn and, furthermore, that the sentencing guidelines do not distinguish between sworn and unsworn allocations in providing for enhancements based on false statements made during an allocution. Id. at *4-6. Unmoved by Ward's arguments, the Third Circuit held that “while allocution may frequently be unsworn, neither the Constitution nor Rule 32 require that this be so.” Id. at 4.

In the Courts and Business Crimes Hotline were written by Associate Editors Jamie A. Schafer and Matthew J. Alexander, respectively. Both are Associates at Kirkland & Ellis LLP, Washington, DC.