It is up to the sentencing judge whether a criminal defendant’s allocution is sworn or not, the U.S. Court of Appeals for the Third Circuit ruled on an issue of first impression.

Faced with the second appeal from his sentence for charges related to child pornography, the Third Circuit was asked to weigh in on several claims made by a former Wharton School of the University of Pennsylvania professor, including this novel question of federal law.

Writing for the unanimous three-judge panel, Senior Judge Jane Roth explored the roots that have led to the tradition of allocution before concluding that it is not a right guaranteed by the Constitution, but is, nonetheless, an important right bestowed by Congress through Rule 32.

That rule, however, is silent as to whether the allocution is to be sworn or unsworn.

Lawrence Scott Ward, who pleaded guilty to charges stemming from his trips to Brazil for sex with boys, had argued that it was improper for the district court sentencing judge to require him to deliver his allocution under oath.

The appeals court disagreed.

“We conclude that there is no right to deliver an unsworn allocution,” Roth said. “We leave it to the unfettered discretion of the district courts to decide whether the defendant will be placed under oath during allocution.”

U.S. District Judge Petrese B. Tucker, now chief judge of the Eastern District of Pennsylvania, had required Ward to give his allocution under oath, over the objection of his lawyers, because it was her standard practice, according to the opinion.

He spoke “about his contrition for violating societal norms, his interest in rehabilitation, his personal struggle in coming to terms with the fact that he is a homosexual, his recent diagnosis of leukemia, and his hope that he would have a sentence short enough that he would not die in prison because he wanted to maintain his ties with family and friends,” Roth said.

This took place at Ward’s resentencing in early 2012, after he had appealed his first sentence to the Third Circuit. On that appeal, he had been successful in arguing that the district court had erred by not imposing a separate sentence for each count, but, rather, giving him a lump sum of 300 months in prison with a $100,000 fine. The appeals court remanded for resentencing.

While that appeal was pending, Ward kept in touch with the two boys he had seen in Brazil, who had fathered their own children by that point, and he had tried to build a relationship with their children, according to the opinion.

Tucker then sentenced him to the same prison term, increased his fine to $250,000, and ordered him to abstain from contact with anyone under the age of 18, especially the children in Brazil, Roth said.

Ward then brought seven challenges to the second sentence, on which the appeals court ruled this week. It upheld the whole sentence.

It also took the opportunity to rule decisively on the issue of unsworn versus sworn allocutions.

“Although no federal court has addressed the question of whether a Rule 32 allocution must be unsworn, our sister circuits have made passing references to both sworn and unsworn allocutions. … However, under Rule 32, no court has ever held that a criminal defendant has an affirmative right to deliver an unsworn allocution,” Roth said.

Although allocutions are often unsworn, Roth explained, there is nothing in the law specifically requiring that they be so.

“Whether an allocution is sworn or unsworn does not affect a defendant’s right to make a statement to the sentencing court, nor does it subvert the policy goals of Rule 32,” Roth said.

“The reason for allocution is not to permit the defendant to re-contest the factual issues of innocence and guilt. Rather, the purpose of allocution is to afford the defendant an opportunity to raise mitigating circumstances and to present his individualized situation to the sentencing court,” she said.

The court rejected Ward’s argument that having to offer his remarks as a sworn statement undercut his right to freely express his remorse to the court without fear of cross-examination.

Similarly, the court also rejected his argument that the increased fine was vindictive.

Since the appeals court had sent the case back to Tucker for resentencing, she had the opportunity to re-examine the “relevant factors: the guidelines range, Ward’s ability to pay and Ward’s crimes,” Roth said. “At the second sentencing, with this information at hand, the district court arrived at the figure of $250,000 as an appropriate fine. Additionally, the district court explicitly stated that the increased sentence was not vindictive. … Ward offers no evidence of vindictiveness other than stating that he is entitled to a presumption of vindictiveness based on the increased fine.”

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 23-page opinion in United States v. Ward, PICS No. 13-2986, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)