United States v. Lawrence Ward

Citations: 732 F.3d 175; 2013 WL 5614213; 2013 U.S. App. LEXIS 20782Docket: 12-1511

Court: Court of Appeals for the Third Circuit; October 15, 2013; Federal Appellate Court

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Lawrence Scott Ward appeals his sentencing decision from the United States District Court for the Eastern District of Pennsylvania, asserting multiple errors, including a violation of Federal Rule of Criminal Procedure 32 regarding his allocution. The background details reveal that Ward was arrested at Dulles International Airport in 2006 for possession of child pornography following a trip to Brazil. Subsequent searches of his office and email uncovered explicit materials involving minors and communications soliciting sexual acts. Evidence indicated Ward financially supported one of the minors and made false statements to obtain a visa for him. After initially pleading guilty to related charges in the Eastern District of Virginia, Ward faced further indictments in Pennsylvania, culminating in a guilty plea to five counts, including shipping child pornography and inducing minors for sexual conduct. At sentencing, the court imposed a 300-month prison term, lifetime supervised release, a $100,000 fine, and a $500 assessment, while applying a two-level enhancement for multiple victims. The court did not assign specific sentences per charge. The appellate court affirmed the District Court's judgment.

Ward appealed his sentence on three grounds: challenging a two-level enhancement, contesting the flawed rationale for a fine imposed by the District Court, and arguing that his sentence was a general sentence. The court found no error regarding the determination that Ward's crime involved two victims. While it agreed that the District Court failed to provide sufficient reasons for switching a $100,000 restitution to a fine, it ruled this error was not plain since Ward did not object at sentencing. The court noted that the District Court erred by not imposing separate sentences for each count, an error deemed reversible, leading to a remand for resentencing.

During the appeal, Ward maintained contact with his victims and violated prison rules. At his resentencing on February 9, 2012, the District Court required him to deliver his allocution under oath, contrary to defense counsel's objection. Ward expressed remorse, spoke about his struggles, including a leukemia diagnosis, and his desire to avoid dying in prison. The District Court reimposed a 300-month sentence but raised the fine to $250,000, justifying the increase as reasonable and within the advisory range rather than a punishment for the appeal. The court also prohibited Ward from contacting individuals under 18, specifically the children of his victims.

Ward challenged his sentence on seven grounds, including the right to an unsworn allocution, the impermissible fine increase, insufficient evidence for a sentencing enhancement, inadequate explanation for the 300-month term, unreasonable denial of a downward variance, substantive unreasonableness of the sentence, and failure to order restitution. The court found all of Ward’s arguments unpersuasive. It addressed the issue of unsworn allocution, determining there is no right to deliver an unsworn allocution under Federal Rule of Criminal Procedure 32, marking this as a novel question of federal law.

District courts have the discretion to determine if a defendant will be placed under oath during allocution. The right of allocution, which allows defendants to present mitigating arguments before sentencing, has historical roots dating back to the fifteenth century, although it is not explicitly guaranteed by the Constitution. Early legal traditions deemed defendants incompetent to testify on their behalf, limiting their ability to present legal defenses. Allocution became the sole opportunity for defendants to advocate for leniency in their sentences.

In 1944, Congress codified this right through Federal Rule of Criminal Procedure 32, which mandates that sentencing courts must address defendants personally and allow them to speak for mitigation. The rule does not specify whether this allocution should be sworn or unsworn. The Supreme Court's decision in 1961 emphasized the importance of this opportunity for defendants to articulate their circumstances, underscoring that even effective legal counsel may not fully convey a defendant's personal narrative.

The primary purposes of Rule 32 include enabling defendants to present mitigating circumstances, facilitating individualized sentencing, and promoting fairness in the justice system. Allocution serves to balance punishment with mercy and enhances the perceived equity of the sentencing process. Practices regarding whether defendants are sworn during allocution vary by district and judge, and while federal courts have not definitively ruled on the necessity of unsworn allocution, some circuit courts have referenced both sworn and unsworn practices.

No court has recognized an affirmative right for criminal defendants to deliver unsworn allocutions under Rule 32. The Sentencing Guidelines do not differentiate between sworn and unsworn statements, allowing for sentence enhancements for any false statements made during allocution. While allocution is often unsworn, neither the Constitution nor Rule 32 mandates this. The purpose of allocution is to enable defendants to present mitigating circumstances, not to contest guilt or innocence. Sentencing judges have discretion to impose procedural limitations on allocution, provided they offer defendants the opportunity to address the court before sentencing.

Ward contends that the District Court's requirement for a sworn allocution violated his fundamental right to present a personal statement. This argument is unfounded; Rule 32 aims to allow defendants to discuss mitigating factors and does not restrict the topics they can address. Defendants may choose to remain silent instead of delivering an allocution, and any statement made, whether sworn or unsworn, may be used in future prosecutions. Ward's assertion that an unsworn allocution would have enabled a more candid statement is unconvincing. The District Court was within its rights to require a sworn allocution, and this did not infringe upon Ward’s right to speak or present mitigating arguments.

Regarding the appeal’s remaining grounds, Ward claims the District Court unjustly increased his fine from $100,000 to $250,000 upon resentencing, alleging a violation of the Fifth Amendment due to vindictiveness. The Due Process clause prohibits judges from retaliating against defendants for successful appeals by imposing harsher sentences. Generally, a presumption of vindictiveness applies, though the government can rebut this by providing legitimate, objective reasons. The Supreme Court has limited this presumption to situations where there is a reasonable likelihood that the increased sentence is influenced by actual vindictiveness.

The District Court imposed a new fine of $250,000 to rectify an earlier error regarding insufficient justification for the fine's initial amount. In determining this new figure, the court evaluated the Guidelines range, Ward’s financial capacity, and his criminal conduct. It emphasized that the increased fine was not vindictive, countering Ward’s claims of entitlement to a presumption of vindictiveness due to the fine increase. The court clarified that the revised fine was based on new information and a proper consideration of relevant factors, distinguishing it from the prior sentencing. The government supported this view by stating that the fine increase was rooted in new evidence rather than Ward’s appeal. Additionally, Ward contested a five-level sentence enhancement under U.S.S.G. 4B1.5(b)(1) for engaging in a pattern of prohibited sexual conduct, arguing insufficient evidence. However, the District Court reaffirmed that the evidence, including prior findings and new information regarding Ward's production of child pornography, supported the enhancement. Consequently, the court did not err in its decisions regarding both the fine and the enhancement.

Ward's appeal for vacating his sentence centers on several claims regarding procedural compliance and the reasonableness of his 300-month sentence. He argues that the District Court did not adequately explain why it imposed a specific sentence within the Guidelines range of 292 to 365 months, as required by 18 U.S.C. § 3553(c)(1). However, the court provided sufficient justification, citing the seriousness of Ward's crimes, his disrespect for the law, high risk of reoffending, and the need for deterrence. It was determined that the court was not obligated to justify why 300 months was preferable over other sentences within the range, only that it was sufficient.

Additionally, Ward contends he deserved a downward variance due to his age, physical and psychological health, and harsh confinement conditions. The District Court addressed and dismissed these claims, demonstrating that it considered Ward's arguments in line with legal standards, leading to the conclusion that the sentence was not procedurally unreasonable.

Ward also argues the sentence is substantively unreasonable as it exceeds his life expectancy. The appellate court holds that unless no reasonable court would impose such a sentence, it will be upheld. The District Court deemed Ward a significant danger to society, justifying the lengthy sentence, which aligns with the advisory Guidelines range.

Lastly, regarding restitution under 18 U.S.C. § 2259, Ward claims the court failed to order it. However, since he did not object to this during resentencing, the appellate court reviews for plain error and finds that Ward lacks standing to challenge the restitution issue, which is reserved for the victim or their representatives. Thus, all claims by Ward are rejected.

Ward's argument regarding standing is dismissed as meritless. He claims that a fine imposed was directly related to the District Court's failure to order restitution; however, this misinterprets the appeal record. In his first appeal, it was established that the imposition of a fine instead of restitution was improper, as the Court merely converted intended restitution into a fine without adequate justification. At resentencing, the District Court appropriately evaluated relevant factors for imposing a fine under 18 U.S.C. 3572, without translating restitution into a fine. Consequently, the decision to impose a fine was not linked to the lack of restitution. Therefore, Ward's assertion that the relationship between the fine and restitution grants him standing is not considered. The judgment of the District Court is affirmed.