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Third Circuit Says Government Can’t Infringe upon the Right of Allocution (U.S. v. Jason Moreno)

Posted On: August 18, 2016 by Marc Neff

From July 2005 to November 2007, the defendant (Moreno) was an appraiser in a mortgage fraud scheme who for payment provided inflated appraisals to other scheme members. He also acted as broker, buyer, or seller in other fraudulent transactions. A federal jury convicted him of multiple counts of wire fraud and conspiracy to commit wire fraud. After receiving a 96-month prison, he appealed to the U.S. Court of Appeals for the Third Circuit.

Two main issues: The Confrontation Clause and Moreno’s right of allocution

A co-conspirator became a government’s witness at trial after entering a plea agreement. On redirect and at the prosecutor’s request, the witness read into the record portions of memoranda, written by a U.S. Secret Service agent, that summarized the witness’s pretrial interviews. Moreno claimed the act violated the Confrontation Clause. The court found that a Confrontation Clause violation occurred because 1.) the memoranda were testimonial and 2.) the agent was in fact available to testify. But the court determined that the violation was harmless because, after reviewing a number of factors, the guilty verdict was not affected by the statements.

Regarding the right of allocution, however, the Court granted relief. Before imposing sentence, a district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence….” Fed. R. Crim. P. 32(i)(4)(A)(2). Moreno claims this right was violated when during sentencing allocution, the prosecutor cross-examined him vigorously, resulting in Moreno making several admissions about the conspiracy which the prosecutor then used in his sentencing argument. The court found the cross-examination to be contrary to Rule 32 and the purposes of allocution set forth in Ward. It vacated the sentence and remanded for resentencing.

To Summarize:

1. A violation of the Confrontation Clause is not fatal to the government’s case; it may be determined to be harmless. The court will consider factors like the importance of the testimony to the government’s case and the strength of the government’s case as a whole. U.S. v Jimenez, 513 F.3d 62 (3d Cir. 2008).

2. At a defendant’s allocution, a prosecutor may not cross-examine the defendant and re-contest the factual issues of innocence or guilt. The purpose of allocution is to permit the defendant to raise mitigating circumstances to the sentencing court. U.S. v. Ward, 732 F.3d 175 (3d Cir. 2013)(three purposes of Fed. R. Crim. P. 32).

For more than twenty-five years, the Law Offices of Marc Neff has been defending the rights of individuals and corporations facing serious criminal charges. Throughout Pennsylvania, New Jersey, and elsewhere, Mr. Neff has successfully defended clients charged with white-collar crimes such as mail fraud and bank fraud, RICO, drug distribution, money laundering, sex crimes and other serious offenses.

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