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Media Alerts - United States of America v. Lawrence Scott Ward - Third Circuit
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November 1, 2013
  United States of America v. Lawrence Scott Ward - Third Circuit
Headline: Third Circuit Upholds Use of Sworn Allocution During Sentencing

Area of Law: Criminal Procedure

Issues Presented: Whether the defendant's criminal sentence for child pornography should be vacated because, among other claims of error, the District Court erroneously required him to make a sworn allocution and also increased his monetary fines for vindictive reasons?

Brief Summary: Ward pleaded guilty to shipping child pornography in interstate commerce and giving false statements to a federal official. Ward received a 300-month term of incarceration and was ordered to pay a $100,000 fine. Ward successfully appealed that sentence, and the matter was remanded for a new sentencing hearing. At the second sentencing hearing, the District Court offered Ward an opportunity to make a statement under Federal Rule of Criminal Procedure 32 for purposes of mitigating his sentence. Following that statement, Ward was sentenced to the same 300-month term of incarceration, but his fine was increased from $100,000 to $250,000. The Court explained that the fine was increased because it was in the advisory range and Ward had the means to pay it. Ward then appealed the new sentence, and the Third Circuit affirmed the decision of the District Court on resentencing.

Extended Summary: This case centers on the sentencing of Lawrence Scott Ward who was convicted of two counts of shipping child pornography in interstate commerce and one count of false statements to a federal official. On appeal, Ward first argued that the District Court erred by requiring his allocution to be sworn. Federal Rule of Criminal Procedure 32 provides that the sentencing court must address the defendant personally and must permit the defendant to speak or present any information to mitigate his sentence. This process is known as an allocution, but the Court found no legislative history and no committee notes to address the question of whether it had to be unsworn. The current practice of sworn allocution varies by judge and district, and no federal court has squarely addressed the question of whether a criminal defendant has the right to deliver an unsworn allocution. However, other circuits have made notice of both sworn and unsworn allocutions. The Third Circuit reasoned that judges retain discretion to place certain restrictions on what may be presented during an allocution. The Court determined that because a sworn allocution does not interfere with the defendant's right to be heard under Rule 32, does not conflict with the Constitution, and may actually lend more credibility to the statements, the trial judge has discretion to require that the allocution be sworn.

Ward also argued that the District Court's imposition of an increased monetary fine was in violation of his Fifth Amendment Right to Due Process and was imposed vindictively by the District Court because Ward had succeeded on the first appeal. The District Court was required to provide sufficient reasons for imposing the fine. After examining the Guidelines range, Ward's ability to pay, and the crimes for which he pled guilty, the District Court determined that $250,000 was an appropriate fine. At the second sentencing hearing, the District Court expressly noted on the record that it had not considered those factors during the first sentencing hearing and was imposing an increased fine based on that new information and not for any vindictive reason. The Third Circuit concluded that the District Court increased the amount of the fine based on new information it received as a result of considering the various factors, and its decision was not the product of vindictiveness. Finally, the Third Circuit rejected Ward's remaining claims of error and affirmed the sentence imposed by the District Court at resentencing.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/121511p.pdf

Panel (if known): Scirica, Jordan, and Roth, Circuit Judges

Argument Date: March 5, 2013

Argument Location:

Date of Issued Opinion: Oct. 16, 2013

Docket Number: No. 12-1511

Decided: Affirmed

Case Alert Author: Cheri Snook

Counsel: Peter Goldberger, Esq., for Appellant; Sonja M. Ralston, Esq., Bea L. Witzleben, Esq., for Appellee

Author of Opinion: Judge Roth

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/01/2013 10:45 AM     3rd Circuit  

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