Eleventh Circuit Court of Appeals - Published Opinions

Thursday, October 27, 2011

Perez: Counsel can't substitute for defendant's allocution

In U.S. v. Perez, No. 09-13409 (Oct. 26, 2011), the Court affirmed Hobbs Act and firearm possession convictions of several defendants arising out of plans to rob a check-cashing store and a fictional cocaine stash house, but, on plain error review, reversed one defendant’s sentence because the district court failed to afford him his right of allocution as required by Federal Rule of Criminal Procedure 32.

The Court rejected one defendant’s argument that the evidence was insufficient to support “constructive possession” of a firearm. The Court found sufficient evidence that the defendant knew of the presence of firearms, based on conversations that predicted the need for guns, and his direct involvement in the crime, including his possession of five stocking caps for use in an attempted robbery.

The Court rejected the argument that a prosecution witness, who invoked his Fifth Amendment right to silence at a pre-trial deposition, should have been compelled to answer defense questions. The Court noted that because the witness’ answers could plausibly contradict the statements he made in a signed affidavit, he would risk prosecution for perjury, and the district court therefore correctly did not compel answers in derogation of the witness’ right to silence.

The Court also rejected the argument that evidence obtained through wiretaps should have been suppressed that the government, because the government failed to demonstrate that it needed to conduct wiretap surveillance, as required by 18 U.S.C. § 2518(1)(c). The Court noted that without a wiretap the government “had only limited knowledge of the full extent” of the criminal activities of the defendants. The government had sufficiently described the limitations of alternative surveillance methods to justify use of a wiretap.

Turning to sentencing, the Court ruled that even though at sentencing defense counsel answered the district court on behalf of the defendant that the defendant “doesn’t wish to address the Court,” this did not satisfy Fed. R. Crim. P. 32. This rule requires the defendant to be aware of his right to allocute. Here, there was no evidence of such knowledge. Because it is presumed that a denial of the defendant’s right to allocute is prejudicial whenever the possibility of a lower sentence exists, the error affected the defendant’s substantial rights. The Court therefore vacated the sentence and remanded for resentencing.