Tuesday, December 16, 2008

The Right to Allocution

In United States v. Haygood, Case No. 07-1771, decided December 15, 2008, the Sixth Circuit affirmed a district court's denial of a defendant's Motion to Withdraw Guilty Plea, but found that the district court had violated the defendant's right to allocution at sentencing.

As to the Motion to Withdraw Plea, the defendant argued at district court that "the charges should not have been brought because there was a deficient original warrant that was the basis of the execution that gave rise to the evidence in this particular case." However, the Sixth Circuit found that the district court did not abuse its discretion in denying Mr. Haygood's Motion to Withdraw his plea because his plea did not come until the close of the prosecution's case-in-chief at trial. Because he failed to make any motion to suppress prior to trial, any objection to his arrest or search had been waived by the time he had entered his plea.

More interestingly, the Sixth Circuit did find that the district court violated Fed.R.Crim.P. 32(i)(4)(A)(ii), the defendant's right to allocution at sentencing. The district court judge in Mr. Haygood's case reminded the defendant that he was under oath and regarding his 5th Amendment right to remain silent prior to answering the judge's questions. The defendant elected t0 exercise his 5th Amendment right, and not answer any questions. The Sixth Circuit found that the court to satisfy Rule 32, requiring the court to "permit the defendant to speak or present any information to mitigate the sentence." The Sixth found that "we are unaware of any case that excuses the sentencing judge from providing an allocution opportunity because the judge instead advised the defendant about his or her Fifth Amendment right to remain silent." Noting that the district court sentenced the defendant to only 6 months above the Section 924(c) mandatory minimum on the other charges in his indictment, the Sixth also stated that they had their "doubts that Haygood could have said anything to inspire the court to be even more generous in sentencing him." Nonetheless, the Sixth reiterated that in cases regarding a defendant's right to allocution, "prejudice is effectively presumed when allocution is overlooked because of the 'difficulty in establishing that the allocution error affected the outcome of the district court proceedings.'" Therefore, the Sixth Circuit remanded the case for resentencing.