United States v. Ward

• Decision Date: 15 October 2013
• Docket Number: No. 12–1511.,12–1511.
• Citation: 732 F.3d 175
• Parties: UNITED STATES of America v. Lawrence Scott WARD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

732 F.3d 175

UNITED STATES of America

v.Lawrence Scott WARD, Appellant.

No. 12–1511.

United States Court of Appeals, Third Circuit.

Argued March 5, 2013.

Opinion filed: Oct. 15, 2013.

Peter Goldberger, Esq., (Argued), Ardmore, PA, for Appellant.

Sonja M. Ralston, Esq., United States Department of Justice, Criminal Division, Washington, DC, Bea L. Witzleben, Esq., (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: SCIRICA, JORDAN and ROTH, Circuit Judges.

OPINION

ROTH, Circuit Judge:

Lawrence Scott Ward appeals the District Court's judgment of sentence. Ward alleges several sources of error in the proceedings below, including a violation of Federal Rule of Criminal Procedure 32 on the theory that the District Court improperly required that he deliver his allocution under oath. For the reasons that follow, we will affirm the District Court's judgment of sentence.

I. Background

On August 27, 2006, Ward arrived at Dulles International Airport after a trip to Brazil. A search of Ward's possessions revealed that he was in possession of child pornography. Ward was arrested and indicted in the Eastern District of Virginia for that offense.

After Ward's arrest in Virginia, federal agents searched his office at the Wharton Graduate School of Business, in Philadelphia, Pennsylvania, where he served as an Emeritus Professor. The search revealed numerous photographs and videos of Ward engaged in sex acts with minors later identified as J.D. and R.D. The pictures and videos were taken in Brazil, where J.D. and R.D. lived. A search of Ward's email showed communications between Ward and J.D. and R.D. in which Ward requested that the boys engage in various sex acts, including having sex with other men chosen by Ward. The investigation also exposed evidence that Ward had paid for J.D.'s housing and provided J.D.'s family with money.

Between March and August 2006, Ward attempted to acquire a visa for J.D. to visit the United States. During the visa application process, Ward made several false statements to State Department personnel, including misrepresentations that J.D.'s family was affluent when in fact it was destitute. Ward allegedly did this to show that there was little risk that J.D. would overstay his visa.

On May 17, 2007, after unsuccessfully attempting to consolidate the cases pending in the Eastern District of Pennsylvania and the Eastern District of Virginia, Ward pleaded guilty in the Eastern District of Virginia case and received a sentence of 15 years of imprisonment. On March 13, 2008, Ward was indicted in the Eastern District of Pennsylvania on two counts of shipping child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and one count of false statements to a federal official, in violation of 18 U.S.C. § 1001. On August 21, 2008, the grand jury returned a superseding indictment charging Ward with an additional two counts of inducing a minor to engage in sexually explicit conduct, in violation of 18 U.S.C. § 2251(a).

On November 17, 2008, Ward pleaded guilty in the Eastern District of Pennsylvania case to all five counts of the superseding indictment. At the sentencing hearing, the government requested and received a two-level sentencing enhancement because Ward's conduct involved two victims. The District Court sentenced Ward to 300 months of incarceration, lifetime supervised release, a $100,000 fine, and a $500 special assessment.¹ However, the District Court did not specify a particular sentence for each charge to which Ward pleaded guilty.

Ward appealed the sentence to this Court on three grounds: (1) challenging the two-level enhancement, (2) asserting that the District Court's rationale for imposing a fine was flawed, and (3) arguing that his sentence was an impermissible general sentence. We found no error in the District Court's conclusion that Ward's crime involved two victims. United States v. Ward, 626 F.3d 179, 183–84 (3d Cir.2010). We also held that the District Court, in switching the $100,000 from restitution to a fine, stated insufficient reasons for imposing that fine, but, because Ward did not object to the fine at sentencing, we concluded that this error was not plain. Id. at 185–86. Finally, we held that the District Court erred by failing to impose a separate sentence for each count of the superseding indictment. Id. at 184. This error was reversible; thus, we remanded the case to the District Court for resentencing. Id. at 186.

While his appeal was pending, Ward maintained contact with J.D. and R.D., who at this point had fathered children. Ward attempted to establish a relationship with those children. Additionally, Ward violated prison rules by spending money on other inmates and attempting to use his attorneys to make contact with his victims for non-legal reasons.

At the resentencing hearing on February 9, 2012, the District Court personally addressed Ward, asking if he wished to speak on his own behalf. When Ward indicated that he wished to make a statement, the District Court, over defense counsel's objection, insisted that his allocution be delivered under oath, pursuant to that judge's individual practice. Ward was placed under oath and proceeded to speak about his contrition for violating societal norms, his interest in rehabilitation, his personal struggle in coming to terms with the fact that he is a homosexual, his recent diagnosis of leukemia, and his hope that he would have a sentence short enough that he would not die in prison because he wanted to maintain his ties with family and friends.

After Ward allocuted, the District Court sentenced him to the same prison term of 300 months of incarceration, but increased the fine from $100,000 to $250,000. The District Court explained that the increased fine was not meant as punishment for Ward's successful appeal of his sentence; rather, the court stated that the $250,000 fine was within the advisory range and that the amount was a reasonable figure which Ward had the means to pay. The District Court also ordered that Ward have no contact with any person under 18 years of age, especially his victims' children in Brazil.

II. Discussion²

Ward challenges his sentence on seven independent grounds, arguing that his sentence should be vacated because (1) he had the right to deliver an unsworn allocution, (2) the District Court impermissibly increased his fine, (3) the government presented insufficient evidence to warrant a sentencing enhancement for Ward's involvement in a pattern of prohibited sexual conduct, (4) the District Court did not adequately explain the reasons for choosing a 300 month sentence, (5) the District Court's refusal to grant Ward's request for a downward variance was procedurally unreasonable; (6) a 300 month sentence was substantively unreasonable, and (7) the District Court impermissibly failed to order restitution. All of Ward's arguments are unavailing.

A. May the Court Require that Allocution be Sworn.³

Ward argues that Federal Rule of Criminal Procedure 32 affords all criminal defendants the right to deliver an unsworn allocution.⁴ The issue of whether a criminal defendant has the right to an unsworn allocution is a matter of first impression in this Court and appears to be a novel question of federal law. As with any analysis of the Federal Rules of Criminal Procedure, our inquiry is guided by the text of the rule as well as its history and purpose. See United States v. Higgs, 504 F.3d 456, 459 (3d Cir.2007). For the reasons that follow, we conclude that there is no right to deliver an unsworn allocution. We leave it to the unfettered discretion of the district courts to decide whether the defendant will be placed under oath during allocution.

1. Legal Framework

“[T]he right of allocution is deeply rooted in our legal tradition” and dates back to at least the fifteenth century. U.S. v. Adams, 252 F.3d 276, 282 (3d Cir.2001). The rules of evidence in early English and American common law deemed criminal defendants “incompetent as witnesses.” Ferguson v. Georgia, 365 U.S. 570, 574 & n. 3, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (citing 3 Blackstone, Commentaries on the Laws of England, 369 (1769)). As a result, they could not testify on their own behalf at trial or plead legal defenses like insanity or justification. Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75 Fordham L.Rev. 2641, 2646–47 (2007). Thus, allocution, before sentencing, was the defendant's one chance to argue for mitigation. Adams, 252 F.3d at 282; Paul W. Barrett, Allocution, 9 Mo. L.Rev. 115, 120–21 (1944). Although the right of allocution predates the founding of the Republic, it is not a right guaranteed by the Constitution.⁵Adams, 252 F.3d at 282.

However, acknowledging the historical and common law roots of the right of allocution, Congress codified the right in 1944 by promulgating Federal Rule of Criminal Procedure 32. Id. at 280 (citing Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion)). The text of Rule 32 sets forth only two requirements: the sentencing court must address the defendant personally and must permit the defendant to speak or present any information to mitigate the sentence. Fed.R.Crim.P. 32(i)(4)(A)(ii). The rule is silent as to whether the allocution should be sworn or unsworn. There is no legislative history discussing whether a defendant should be allowed to deliver an unsworn allocution, nor do the committee notes address the question.

The Supreme Court's 1961 decision in Green recognized the historical roots of the common law right of allocution, highlighting the equitable concern that a criminal defendant must always be asked if he has anything to say before sentence is imposed so that he has “the opportunity to present to the court his plea in mitigation.” 365 U.S. at 304, 81 S.Ct. 653. The rationale supporting this procedural requirement is that even “[t]he most...