In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2468

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DICK L. NOEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 06 CR 017—John Daniel Tinder, Judge.

ARGUED APRIL 8, 2009—DECIDED SEPTEMBER 4, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Dick Noel was charged with

producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury

found Noel guilty on all counts, and on June 1, 2007, the

district court sentenced Noel to eighty years’ imprisonment to be followed by a lifetime of supervised release.

Noel now appeals his conviction, arguing that (1) the
2 No. 07-2468

district court erred in allowing Indiana State Police Detective Jennifer Barnes to testify that certain images in evidence met the federal definition of child pornography,

and (2) the court’s jury instruction regarding the definition of a “lascivious exhibition of the genitals,” which

was derived from United States v. Dost, 636 F. Supp. 828,

832 (S.D. Cal. 1986), was confusing to the jury. Noel also

claims that his sentence was unreasonable and that the

district judge failed to personally address him and offer

him the opportunity to allocute. Although we find the

government’s approach in submitting certain evidence

at trial troubling, none of the errors below require

reversal of Noel’s conviction or sentence.

I. BACKGROUND

This case represents every parent’s worst nightmare.

Russell Beauchamp and his wife, Lori Beedi, consciously

decided to restrict the care of their young son, “H,” only

to family members. In keeping with that decision,

Beauchamp trusted his step-brother Dick Noel to care

for H periodically from the time H was two years old.

Noel often supervised H overnight, including every

Friday. As the years progressed, Beauchamp and Beedi

divorced, and Noel’s role in H’s life increased. For example, Noel would often care for H when Beauchamp

was working late, and he provided assistance as H

healed from a broken arm suffered in July 2005.

But a police investigation later revealed that Noel was

not worthy of the trust that Beauchamp had bestowed. On

July 31, 2005, Detective Brian Broughton of the Martin
No. 07-2468 3

These conversations were not published to the jury but were 1

referred to in the Presentence Investigation Report (PSR).

Because they are not essential to our analysis, we will spare

the reader the despicable details.

County, Florida, Sheriff’s Department began investigating

Philip Vanderhoff for crimes against children. A search

of Vanderhoff’s computer revealed logs from chat

sessions with a person with the screen name of

“dick_noel2003.” In those conversations, “dick_noel2003”

referred to a “BL,” meaning “boy lover,” and certain

“pics.” He also described his relationship with a boy

named H; this conversation included a description of

various sexual encounters.

1

The screen name was registered to a Dick Noel in

Middletown, Indiana, whose personal information

matched that of the appellant. Broughton referred this

information to the Indiana Internet Crimes Against Children Task Force. Authorities searched Noel’s house in

August 2005, and seized several pieces of computer

media. The hard drive of Noel’s computer and several

computer disks contained photographs organized into

many folders, including one labeled “H,” which held

photos that portrayed H nude and asleep. The computer

media also contained numerous photos of other minors

engaged in sexually explicit conduct.

A grand jury returned a four-count indictment against

Noel on January 25, 2006. Counts one through three

charged Noel with production of child pornography in

violation of 18 U.S.C. § 2251(a). These three counts were
4 No. 07-2468

based on ten allegedly pornographic photos of H that

investigators had found during the search of Noel’s home.

Count four charged Noel with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). This count

was based not only on the ten pornographic photos of H,

but also on numerous photos of other minors. A jury

trial commenced on March 12, 2007.

As one of its primary witnesses, the government

called Jennifer Barnes, a detective with the Indiana State

Police who had conducted the forensic examination on

the computer media seized from Noel’s residence. Barnes

explained that she found numerous images that met the

federal definition of child pornography organized in

multiple folders on Noel’s computer system. She then

described the government’s exhibits, explaining how

she compiled them and how they related to each of the

charged counts.

Barnes testified that the government’s Exhibit Nine

contained all 246 images of H that were found on

Noel’s computer. These included not only the ten

charged photos, but also numerous photos that were not

pornographic, such as clothed photos of H in outdoor

settings. These photos were all admitted into evidence

without objection.

Exhibits One, Two, and Three contained the photos

that formed the basis for counts one through three

against Noel, respectively. Barnes told the jury that these

were duplicates of certain photos that were also contained in Exhibit Nine. The prosecution asked Barnes:

“And these were, in your opinion, although the jury will
No. 07-2468 5

be making that determination, pictures that fit within

federal law?” Barnes responded affirmatively.

Barnes stated that the government’s Exhibit Four contained the photos on Noel’s computer that met the

federal definition of child pornography. She described

the folders on Noel’s computer from which the photos

came and informed the jury that those folders also contained photos of child pornography that were not

present in the exhibits. She later explained to the jury

that Exhibit Four contained all photos relevant to count

four, the possession charge, including copies of the

photos of H in Exhibits One through Three. All in all,

Barnes opined at least six times during her testimony

that the charged photos were pornographic.

At the close of evidence, the court instructed the jury

regarding the definition of “lascivious exhibition of the

genitals” in the context of child pornography, using the

factors articulated in Dost, 636 F. Supp. at 832. During

the government’s closing argument, the prosecution

described some of the photos and argued, using the Dost

factors, that they each fell within the definition of child

pornography. Defense counsel chose not to focus on the

photos, telling the jury:

I’m going to give you some good news. You are not

going to have to look at those pictures again in

order to make up your minds about this case,

because people, reasonable people, could probably

decide that those are minors and that that’s pornography. Probably could, and I’m not going to

argue that. That’s not our issue.
6 No. 07-2468

Instead, defense counsel, after acknowledging that the

photos were “horrible,” argued that there was not

enough evidence to find that Noel had produced or

knowingly possessed them. She then reiterated: “You

don’t need to look at these pictures again. I mean, you

certainly can if you want to, but from our perspective,

you don’t need to.”

Defense counsel also criticized the police investigation,

claiming that the detectives failed to inquire into who

owned and created the pornography. As a part of this

claim, counsel stated: “Where they were looking for

pornography, they found pornography and they were

done.”

The jury returned a guilty verdict on all counts. The

district court held a sentencing hearing on June 1, 2007.

At the outset of that hearing, the judge stated:

And I’ll now hear first from the government

with respect to its argument regarding sentencing, and then I’ll hear from the defense.

And of course, Ms. Jensen, as part of the defense

presentation, your client, Mr. Noel, has the right

to speak; that is, to say whatever he wants to say

to help me in determining what the sentence

should be.

After the government’s presentation, the district court

asked defense counsel, “Miss Jensen, do you have a

presentation you’d like to make regarding sentencing

and would your client like to address me?”

Defense counsel began by reading a letter that Noel had

prepared. She explained that Noel had provided her
No. 07-2468 7

Although Noel did not name this friend in the letter, defense 2

counsel argued during closing arguments that a man who

regularly fixed Noel’s computer was responsible for the photographs.

with the letter too late for the probation officer to include it in the PSR, but she nonetheless felt it might

be appropriate to share with the court. 

In the letter, Noel never admitted to his conduct. The

letter stated that Noel was not aware of the material on

his computer and described how his trust had been

betrayed by an unnamed friend. Noel wrote: “He had 2

my computer, as my mentor, set up the passwords, he

even chatted under my chat name. He had the run of the

house three to four days a week.” Noel explained that

other minors and Beauchamp himself had stayed at his

house and that “[t]hey also witnessed that nothing questionable ever happened.”

Nonetheless, Noel apologized in the letter, stating,

“I do want to apologize for all the pain this has caused.

I grieve for all of my family who felt this trust was betrayed by me. I feel their pain very deeply.” He explained that words failed to express his “deep love” for H,

and he said that “when I think that our wonderful relationship has now had the shadow cast on it, it causes

my very soul to hurt. He alone, other than myself, knows

the purity of our ten-year relationship.” The letter concluded by requesting a merciful sentence.

After defense counsel’s presentation, the district court

considered the letter but ultimately concluded that an
8 No. 07-2468

An acceptance of responsibility adjustment would have 3

resulted in a two-point decrease in the total offense level. See

U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1. Because

Noel was five levels above the highest offense level, this

would not have had an impact on his guidelines sentence.

The guidelines range for offense levels 43 and higher is life 4

in prison. Where, as here, the guidelines range exceeds

the statutory maximum, the statutory maximum becomes

the guidelines sentence. U.S.S.G. § 5G1.1(a).

acceptance of responsibility adjustment was inappropriate. The district court determined that the letter was 3

inconsistent with statements Noel made to law enforcement and was “a denial of the very things that would

constitute acceptance of responsibility.”

The district court applied a base offense level of 48, with

a criminal history level of I. This resulted in a recommended guidelines sentence of the statutory maximum—one hundred years’ imprisonment. After con- 4

sidering the sentencing factors enumerated in 18 U.S.C.

§ 3553(a), the district court imposed a below-guidelines

sentence of eighty years’ imprisonment—twenty-five

years for each of counts one through three, and five

years for count four, to be served consecutively.

II. ANALYSIS

Noel challenges his conviction on appeal, claiming that

the district court erred in allowing certain aspects of

Barnes’s testimony and in instructing the jury based on
No. 07-2468 9

the Dost factors. He also appeals his sentence as unreasonable and argues that he was not given the opportunity to allocute. We discuss each issue in turn.

A. Noel’s Challenges to His Conviction

Noel claims that Detective Barnes rendered an impermissible legal conclusion that the government’s exhibits

met the federal definition of child pornography. He also

argues that this error was exacerbated by the district

court’s purportedly “muddled and confusing” jury instruction defining “lascivious exhibition of the genitals”

using the factors described in Dost, 636 F. Supp. at 832.

We find error in Barnes’s testimony but not the

jury instructions. Because the error did not affect

Noel’s substantial rights, however, his conviction will be

affirmed.

1. Testimony of Detective Barnes

At Noel’s trial, Barnes testified repeatedly that the

images on Noel’s computer met the federal definition

of child pornography. She provided no explanation for

this opinion, but instead offered only conclusory statements. We find the government’s explanation for this

testimony troubling and agree with Noel that it was

improper.

Under the Federal Rules of Evidence, testimony is not

objectionable solely “because it embraces an ultimate

issue to be decided by the trier of fact.” Fed. R. Evid.
10 No. 07-2468

704(a); see also United States v. Wantuch, 525 F.3d 505, 513

(7th Cir. 2008). But this rule “does not lower the bars so

as to admit all opinions.” Fed. R. Evid. 704 advisory

committee’s note. The evidence must be otherwise admissible as lay testimony under Rule 701, United States v.

Baskes, 649 F.2d 471, 478-79 (7th Cir. 1980), or expert

testimony under Rule 702, United States v. Scavo, 593

F.2d 837, 844 (8th Cir. 1979). Most importantly for our

purposes, the testimony must be helpful to the trier of

fact under either rule. Fed. R. Evid. 704 advisory committee’s note; see also Fed. R. Evid. 701(b), 702.

We have held repeatedly that lay testimony offering

a legal conclusion is inadmissible because it is not

helpful to the jury, as required by Rule 701(b). See, e.g.,

Wantuch, 525 F.3d at 514 (holding that the question of

whether the defendant knew his actions were legal

“demanded a conclusion as to the legality of [the defendant’s] conduct, which is unhelpful to the jury under

Rule 701”); United States v. Espino, 32 F.3d 253, 257 (7th

Cir. 1994) (“[T]he question posed to Espino, ‘[Y]ou’re

admitting the conspiracy, aren’t you,’ required a conclusion regarding the legal implications of his conduct.

Espino’s lay answer to this question was therefore objectionable as being unhelpful opinion testimony and

should have been excluded.” (second alteration in original)). This is because a lay witness’s purpose is to

inform the jury what is in the evidence, not to tell it

what inferences to draw from that evidence. See United

States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004). Once

the evidence is presented, the jury is capable of examining

it and determining whether it supports a conviction; it
No. 07-2468 11

The record reveals that Barnes was offered in part as a fact 5

witness to explain the course of the police investigation and

in part as an expert witness. The breadth of her expertise is

disputed, however. Noel claims that she was only offered as an

expert in computer forensics. The government, on the other

hand, claims that she was also an expert in child pornography,

pointing to her extensive experience in these investigations

and her testimony that she was familiar with the federal and

Indiana definitions of child pornography. We need not

resolve this conflict because of our finding that, in any event,

Barnes’s testimony was unhelpful to the jury.

does not need lay testimony to assist in making that

determination. Cf. Wantuch, 525 F.3d at 514 (“The jury

was just as capable as [the witness] of inferring that

Wantuch knew he was committing a crime, without [the

witness opining] as to whether Wantuch was aware

that his conduct was illegal.”).

Barnes’s testimony that the photos found in Noel’s

home met the federal definition of child pornography

amounted to nothing more than a statement that the

photos were illegal. Given proper instructions, the jury

was capable of making this determination on its own.

This testimony was unhelpful to the jury as lay testimony and inadmissible under Rule 701(b).

The government claims that this rule is irrelevant

because Barnes was presented as an expert and her testimony was admissible under Rule 702. But even if Barnes

was properly qualified as an expert, her testimony does 5

not pass muster under Rule 702 because it was no
12 No. 07-2468

Noel cites United States v. Thoma, 726 F.2d 1191 (7th Cir. 1984), 6

for the proposition that whether photos are child pornography

is an inappropriate topic for expert testimony altogether.

We need not reach this issue, and we express no opinion

regarding whether Barnes’s testimony would have been

objectionable if otherwise properly substantiated.

more helpful as expert testimony than it would have

been as lay testimony.

In her testimony, Barnes gave no basis whatsoever

for her conclusion that the images on Noel’s computer

were child pornography under the federal definition.

“An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.” Mid-State

Fertilizer Co. v. Exch. Nat’l Bank of Chi., 877 F.2d 1333,

1339 (7th Cir. 1989). We have therefore described an

expert’s opinion that lacks proper substantiation as

“worthless.” Minasian v. Standard Chartered Bank, 109

F.3d 1212, 1216 (7th Cir. 1997). Thus, even though

expert witnesses may opine on ultimate issues of the

case, under Rule 702 their opinions may not be divorced

from the expert bases that qualified them as witnesses

in the first place. United States v. Hall, 93 F.3d 1337,

1344 (7th Cir. 1996).

Barnes’s “expert” testimony that the photos met the

definition of child pornography was a bare conclusion

that provided nothing but the bottom line, i.e., that

Noel possessed illegal photos. Had Barnes provided

some basis for this explanation, perhaps her testimony

would have been of some use for the jury. But she did not 6

do so. She, in essence, told the jury nothing more than,
No. 07-2468 13

This begs the question of why the legal photos were presented 7

to the jury in the first place. Noel has not appealed this issue,

so we need not decide whether the admission of this evidence

was proper, but we see no reason why the government could

not have simply presented the ten illegal photos to establish

Noel’s motive.

“I am familiar with the definition of child pornography,

and this meets that definition because I said so.” Regardless of whether Barnes was an expert, she could not

“merely tell the jury what result to reach.” Fed. R. Evid. 704

advisory committee’s note; see also United States v.

Garcia, 413 F.3d 201, 210 (2d Cir. 2005).

At oral argument, the government’s only justification

for this testimony was that it wanted to inform the jury

that the government knew the difference between the

illegal and legal photos. According to the prosecutor, in

addition to the ten photos for which Noel was charged

in counts one through three, the remaining 236 photos of

H presented to the jury were legal and did not meet

the definition of child pornography. Counsel explained

that these photos were offered to show how much Noel

loved H and to provide a motive for the crime. She surmised that juries often do not understand why certain

photos are not illegal; as a result, the government was

attempting to show that it knew the difference between

legal and illegal and that it was not attempting to

convict Noel based on the legal photos.7

But even if we accept the government’s rationale,

Barnes’s testimony did nothing to help the jury under-
14 No. 07-2468

stand why certain photos were illegal. With such

damning evidence against Noel, the government would

have been well served to simply stick to the facts: present

the charged photos to the jury and allow it to reach its

own conclusions based on the court’s instructions. Prosecutors were certainly free to argue that the photos were

pornographic, but the proper forum was in the opening

or closing arguments, not during the presentation of

evidence. Cf. Garcia, 413 F.3d at 214 (explaining that the

opening statement is the proper vehicle for the government to help the jury gain an overview of the evidence

and theories of the case).

Moreover, to the extent that the government felt compelled to explain its subjective motivations or the

thought processes of its investigators, these considerations are irrelevant to Noel’s guilt or innocence. Indeed,

the government’s focus on the investigators’ subjective

views to justify this line of questioning is troubling. In

United States v. Cunningham, we held that detailed questioning regarding the procedures used to obtain court

authorization for wiretaps was inadmissible because it was

irrelevant to the defendants’ guilt or innocence. 462 F.3d

708, 712 (7th Cir. 2006). Instead, we opined that the explanation of why the government did what it did was

simply a back-door way to show that numerous government agents believed the defendants were committing crimes, which was impermissible. Id. at 713.

Although the facts in this case are different from those

in Cunningham, we suspect that the government’s motivation was similar. The only plausible reason the govern-
No. 07-2468 15

The only objections were to any description of the photos. 8

Defense counsel argued the photos spoke for themselves,

and the district court agreed.

ment would want to show that its investigators believed

the photos were illegal was to persuade the jury to

agree. But without a proper explanation to help the jury

form that conclusion on its own, this type of testimony

is not allowed.

That Barnes’s testimony was improper is not dispositive of this case, however. Because Noel did not object

to Barnes’s comments at trial, our review is for plain 8

error, “and we will reverse only if the errors resulted in

an actual miscarriage of justice such that the defendant

probably would have been acquitted but for the erroneously admitted evidence.” United States v. Avila, 557 F.3d

809, 819-20 (7th Cir. 2009) (quotations omitted). We are

convinced that Noel would have been convicted even

if Barnes had not been allowed to testify improperly,

and, therefore, reversal is not warranted.

Fortunately, we are able to spare the reader the

photos’ stomach-turning details to reach our conclusion, because we need not go beyond defense counsel’s

words at Noel’s trial to determine that the result would

have been the same without Barnes’s testimony. During

her closing argument, defense counsel explicitly told

the jury twice that there was no need to review the

photos in making its determination. She said that

whether the photos were pornographic was “not our

issue” and instead argued that the government had
16 No. 07-2468

failed to prove that it was Noel who had produced the

photos. She even commented that “[w]here [the government was] looking for pornography, they found pornography.”

Given the focus of Noel’s closing argument and the

concessions by his counsel, he cannot now argue that he

was prejudiced by Barnes’s comments. Not only did his

attorney concede that the photos were pornographic,

but she did so in what was likely a deliberate trial

strategy to shift the jury’s attention away from their

content. Noel’s sole focus at trial was knowledge, i.e., he

claimed that someone else had produced the photos and

that he did not know they were on his computer.

Barnes’s improper opinion that the photos were pornographic therefore did not result in a manifest miscarriage of justice such that reversal is warranted.

2. The Dost Jury Instruction

Noel claims that the harm resulting from Barnes’s

improper testimony was exacerbated by a confusing jury

instruction defining child pornography. The district

court provided the jury with the following instruction

based on the language in Dost, 636 F. Supp. at 832:

In determining whether a visual depiction is a

“lascivious exhibition of the genitals or pubic area

of any person,” there are a number of factors for

you to consider. Those factors include but are

not limited to:

(1) whether the focal point of the picture is

the minor’s genitalia or pubic area;
No. 07-2468 17

(2) whether the visual setting or pose is

sexually suggestive, that is, in a place or a

pose generally associated with sexual

activity;

(3) whether the minor’s pose is unnatural

or whether the minor is dressed in inappropriate attire given his/her age;

(4) whether the minor is partially or

fully . . . nude;

(5) whether sexual coyness or willingness

to engage in sexual activity is suggested;

and

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

The government is not required to prove each of

these factors is present for a visual depiction [to] be

a “lascivious exhibition of the genitals or pubic

area.” The determination will have to be made

based on the overall content of the visual depiction, taking into account the age of the minor.

Noel claims that this instruction was “confusing and

muddled.” He argues that “lascivious” is a “commonsensical term [that] needs no adornment.”

We typically review jury instructions de novo, but give

the district court substantial discretion to formulate the

instructions “so long as [they] represent[] a complete

and correct statement of the law.” United States v.
18 No. 07-2468

Matthews, 505 F.3d 698, 704 (7th Cir. 2007). Our review in

this case is more deferential, however. Noel did not

object to this jury instruction at trial, so we review for

plain error, United States v. Jackson, 479 F.3d 485, 491 (7th

Cir. 2007), a standard that is particularly limited in the

context of jury instructions, United States v. Peters, 435

F.3d 746, 754 (7th Cir. 2006). To warrant reversal, “ ‘[t]he

error [must] be of such a great magnitude that it

probably changed the outcome of the trial.’ ” Id. (second

alteration in original) (quoting United States v. Moore, 115

F.3d 1348, 1362 (7th Cir. 1997)). As we have noted, where

there is no objection at trial, “[i]t is the rare case in

which an improper instruction will justify reversal of

a criminal conviction.” Id. (quotations omitted).

There has been some debate among courts regarding

the propriety of jury instructions based on the Dost

factors. Compare United States v. Rivera, 546 F.3d 245, 250-

53 (2d Cir. 2008) (holding that the Dost factors, although

imperfect, are an accurate statement of the law and that

jurors “need neutral references and considerations”

when interpreting the word “lascivious”), and United

States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989) (“[T]he

Dost factors provide specific, sensible meaning to the

term ‘lascivious,’ a term which is less than crystal clear.”),

with United States. v. Frabizio, 459 F.3d 80, 88 (1st Cir.

2006) (noting that the Dost factors have resulted in “disputes that have led courts far afield from the statutory

language” and that “the Dost test has produced a profoundly incoherent body of case law” (quotations omitted)), and United States v. Hill, 332 F. Supp. 2d 1081, 1085
No. 07-2468 19

(C.D. Cal. 2004) (“While the Dost factors attempt to

bring order and predictability to the lasciviousness

inquiry, they are highly malleable and subjective in their

application.”). Much of the debate over Dost involves a

concern that is of no help to Noel—that the factors listed

may be too generous to the defendant. Rivera, 546 F.3d at

251; see also, e.g., Frabizio, 459 F.3d at 88 (“[T]here is a risk

that the Dost factors will be used to inappropriately limit

the scope of the statutory definition.”); United States v.

Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). Still other

commentary has suggested, however, that in certain

cases, some Dost factors may be over-inclusive. See, e.g.,

Rivera, 546 F.3d at 252 (“[I]f the sixth factor were to

focus on the defendant’s subjective reaction to the photograph, as opposed to the photograph’s intended effect,

a sexual deviant’s quirks could turn a Sears catalog

into pornography.” (quotations omitted)).

We have not yet taken a position on whether the Dost

factors represent a permissible instruction, and we need

not do so today. Even if improper, the instruction does not

rise to the level of plain error because it was unlikely

to have influenced the jury’s verdict. As described above,

defense counsel admitted that the outcome of the case

did not turn on the issue of whether the photos were

pornographic; it turned on Noel’s knowledge. Noel

conceded that the photos were pornographic and told

the jury it did not need to look at them. For the same

reason that Barnes’s improper testimony does not merit

reversal, nor does the Dost instruction: the outcome of

the trial would not have been different without it.
20 No. 07-2468

B. Noel’s Challenges to his Sentence

Noel also challenges his sentence, claiming that (1) it

was excessive and unreasonable; and (2) the district court

erred in failing to personally address him and give him

the opportunity to allocute.

1. Reasonableness

We can quickly dismiss Noel’s argument that his sentence was unreasonable. A sentence that falls within a

properly calculated guidelines range is presumptively

reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). Not only is Noel’s sentence presumptively

reasonable under that rule, but it was actually twenty

years below the guidelines sentence of one hundred years’

imprisonment. In order to rebut the presumption of

reasonableness, Noel must demonstrate that this belowguidelines sentence was unreasonable in light of the

factors set forth in § 3553(a). See id. He has failed to do so.

First, Noel claims that the most appropriate sentence

is a structured treatment program including psychotherapy and medications. He claims that the imposed

prison sentence does not meet his needs and notes that

an eighty-year sentence amounts to life in prison for a

man of his age. But the district court considered these

arguments in its § 3553(a) analysis, and none of them are

sufficient to override its well-reasoned sentence. Noel’s

acts were unspeakable. He betrayed Beauchamp’s trust by

producing pornography while caring for Beauchamp’s

young son. He amassed a tremendous amount of child
No. 07-2468 21

In his reply brief, Noel objects to the government’s reliance on 9

this change because he claims he was sentenced to almost

three times the statutory maximum. He correctly notes that the

statutory maximum for production of child pornography is

thirty years, while he was sentenced to eighty. But the statutory

maximum is thirty years for each count. Noel was convicted of

three counts of producing child pornography and was sentenced to twenty-five years per count. He was also convicted

of possessing child pornography and sentenced to five years

for that charge. His sentence is therefore almost three times

the statutory maximum for producing child pornography

because he was convicted of three counts of that offense. Noel

(continued...)

pornography throughout his life. Considering these

troubling facts, we find no error in the district court’s

determination that Noel’s conduct warranted a lengthy

prison sentence.

Noel also argues that his sentence was unreasonably

disproportionate to that of other defendants convicted

of the same offense, but we find this argument unconvincing. We have held that “[w]hile comparisons are

appropriate, . . . [i]t is not enough for a defendant to argue

that a few cases . . . seem to cast doubt on his sentence.”

United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005).

Instead, “we have a system of individualized sentencing

[that] takes into account factors other than the type of

crime.” United States v. Cavender, 228 F.3d 792, 803 (7th

Cir. 2000). Furthermore, the statutory penalties and

guidelines sentences for producing child pornography

have recently increased. Compare 18 U.S.C. § 2251(e) (2007)

9
22 No. 07-2468

(...continued) 9

does not argue that consecutive sentences were inappropriate.

If anything, this detracts from his argument that his sentence was disproportionate because the statistics upon which

he relies likely include defendants serving sentences for a

single offense.

(imposing a maximum sentence of thirty years in prison

for production of child pornography), and U.S.S.G

§ 2G2.1(a) (2007) (imposing a base offense level of thirtytwo for violations of 18 U.S.C. § 2251), with 18 U.S.C.

§ 2251(d) (2002) (imposing a maximum sentence of

twenty years in prison for production of child pornography), and U.S.S.G § 2G2.1(a) (2002) (imposing a base

offense level of twenty-seven for violations of 18 U.S.C.

§ 2251). Sentencing statistics that include defendants

sentenced prior to these changes therefore have little

probative value. With all these considerations in mind,

we conclude that Noel’s sentence was reasonable.

2. Allocution

We next turn to Noel’s argument that the district court

erred in denying him the right to a meaningful allocution.

Because Noel did not object at sentencing, our review is

again for plain error. United States v. Luepke, 495 F.3d 443,

446 (7th Cir. 2007). To prevail, Noel must demonstrate

that a plain error occurred that affected his substantial

rights. Id. at 448. If he makes this showing, “we may

reverse, in an exercise of discretion, if we determine

that the error seriously affect[ed] the fairness, integrity, or
No. 07-2468 23

As Barnes recognized, the holding in Green was originally 10

codified at Rule 32(a)(1). See Fed. R. Crim. P. 32 advisory

committee’s note (1966 Amendments). Although the Rule

has subsequently been reorganized, its application for our

purposes remains unchanged. See Fed. R. Crim. P. 32 advisory

committee’s note (2002 Amendments) (stating that, unless

otherwise noted, changes were intended to be stylistic only).

public reputation of the judicial proceedings.” Id. (quotations omitted).

a. Whether Plain Error Occurred

In Green v. United States, 365 U.S. 301, 304 (1961), the

Supreme Court rejected the view that inviting defense

counsel to speak at sentencing satisfied the defendant’s

right to address the court and allocute. Instead, the Court

held that before imposing a sentence, a trial judge must

address the defendant personally and offer him the opportunity to speak. Id. This holding was later codified

in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).

See United States v. Barnes, 948 F.2d 325, 328 (7th Cir.

1991).10

At the outset of Noel’s sentencing, the district judge

addressed Noel’s counsel and stated, “[Y]our client,

Mr. Noel, has the right to speak.” After the government

made its presentation, the court asked defense counsel,

“Miss Jensen, do you have a presentation you’d like to

make regarding sentencing and would your client like to

address me?” Noel’s counsel responded by reading
24 No. 07-2468

aloud a letter that Noel had addressed to the court. The

government claims that this was a sufficient opportunity

to allocute under Rule 32. We cannot agree. The record

is clear that the district court addressed defense counsel

and asked “would your client like to address me?” but

the court did not directly address the defendant himself. This is contrary to the language of Rule 32 and constitutes plain error.

In arguing that the district court’s comments satisfied

Rule 32, the government relies on United States v. Williams,

258 F.3d 669 (7th Cir. 2001), and United States v. Franklin,

902 F.2d 501 (7th Cir. 1990). However, neither case is

supportive. In Williams, the district court said at sentencing, “Mr. Williams, is there anything that you would

like to say?” 258 F.3d at 674. We held that this satisfied

Rule 32’s requirement that the court address the

defendant personally because “it [was] clear that the court

addressed Williams himself, not his lawyer or any

other representative.” Id. at 674-75 (emphasis added). Similarly, in Franklin, the district judge asked both defense

counsel and the defendant if either or both of

them had a statement they wished to make. 902 F.2d at

507. We held that this was sufficient because the

record indicated that the district court judge explicitly

addressed the defendant. Id.

Unlike in Williams and Franklin, the record in this case

makes clear that the district court was addressing

Noel’s counsel only. He began each statement by referring to “Miss Jensen,” and then advised what her client

had the right to do. In all of these addresses, the court
No. 07-2468 25

referred to Noel only in the third person. In response to

the district court, Jensen made her presentation (which

was constructed much as an allocution), but the district

court never returned to Noel to ask him directly whether

he would like to speak. Although the mistake is understandable given the reading of Noel’s letter, this is not

the type of personal address the rule unequivocally

requires.

The Supreme Court’s own language in Green is instructive: “Trial judges before sentencing should, as a matter

of good judicial administration, unambiguously address

themselves to the defendant. Hereafter trial judges

should leave no room for doubt that the defendant has

been issued a personal invitation to speak prior to sentencing.” 365 U.S. at 305. Such a “personal invitation”

was lacking here, an omission that constituted plain error.

b. Whether the Error Affected Noel’s Substantial Rights

We now turn to the question of whether this plain error

affected Noel’s substantial rights. In the ordinary case, the

defendant’s burden of showing that an error affected

his substantial rights requires a demonstration of prejudice. Luepke, 495 F.3d at 450-51. But when, as here, the

error violated the right to allocute, we “presume prejudice

when there is any possibility that the defendant

would have received a lesser sentence had the district

court heard from him before imposing sentence.” Id. at 451.

In Luepke, we emphasized the discretionary nature of

sentencing when explaining the reasoning behind this
26 No. 07-2468

presumption. Id. We noted that “[i]n a post-Booker

world . . . [i]t would be almost impossible to determine

whether, in the context of the advisory guidelines and

the court’s balancing of the statutory sentencing factors,

a defendant’s statement, that was never made, would

have altered the conclusions of the sentencing court.” Id.

Thus, when determining whether Noel’s substantial

rights were affected, we do not speculate as to what he

may have said, nor do we try to determine whether it

would have been persuasive. See United States v.

O’Hallaren, 505 F.3d 633, 636 (7th Cir. 2007) (“[W]e cannot

speculate as to the persuasive ability of anything

O’Hallaren may have said in his statement to the court.”);

Luepke, 495 F.3d at 451 (explaining that a presumption of

prejudice “avoids our speculation about what the defendant might have said had the right been properly

afforded him”).

With these considerations in mind, we cannot conclude

that Noel would have received the same sentence had he

been afforded the opportunity to allocute. Although Noel

has not submitted that he would have said anything

different than what he wrote in his letter, allowing counsel

to speak in Noel’s stead does not cure the prejudice

stemming from the violation of his rights. See Green, 365

U.S. at 304. As the Supreme Court has suggested, “[t]he

most persuasive counsel may not be able to speak for a

defendant as the defendant might, with halting

eloquence, speak for himself.” Id. In other words, it is not

only the content of the defendant’s words that can influence a court, but also the way he says them. Noel has

therefore established that the court’s failure to address
No. 07-2468 27

him personally was plain error that affected his substantial rights.

c. The Fairness, Integrity, and Public Reputation of Judicial

Proceedings

That Noel has established plain error does not end our

inquiry, for our decision of whether to correct that error

is discretionary. We exercise that discretion and remand

only if the error seriously affected the fairness, integrity,

or public reputation of judicial proceedings. Luepke,

495 F.3d at 451.

Although we have ordinarily remanded in circumstances where a defendant has been denied the right to

allocute, United States v. Pitre, 504 F.3d 657, 663 (7th Cir.

2007), the Supreme Court has stated that an error such

as this “is not a fundamental defect which inherently

results in a complete miscarriage of justice, nor an

omission inconsistent with the rudimentary demands of

fair procedure,” Hill v. United States, 368 U.S. 424, 428

(1962). “Thus, the general rule does not foreclose the

possibility that the facts of a particular case may compel

a conclusion that any violation of the defendant’s right

to allocut[e] did not affect seriously the fairness of the

judicial proceedings.” Pitre, 504 F.3d at 663.

This case compels such a conclusion. Although the

district judge did not address the defendant personally, he

mentioned Noel’s right to allocute twice in open court.

Moreover, this is the only case we have encountered

where the defendant’s own words were read aloud at
28 No. 07-2468

a sentencing hearing. Noel’s letter was structured much

as an allocution would have been, and everyone at the

hearing overlooked that he had not personally been

afforded the opportunity to speak. The error was therefore understandable, and it is difficult to fault the

district judge for not recognizing that a proper allocution

had not occurred. Furthermore, Noel’s sentence was

twenty years below the applicable guidelines sentence,

which is presumptively reasonable and perhaps even low

given the egregious nature of Noel’s conduct. Under the

facts of this case, we conclude that the district court’s error

“did not implicate [the] core values in our sentencing

process,” and that the equity of that process, both perceived and applied, remains intact. Luepke, 495 F.3d at

452; see also id. at 451 (noting the value of allocution in

the perceived equity of the sentencing process). We

therefore decline to exercise our discretion to remand

for resentencing, and Noel’s sentence will be affirmed.

III. CONCLUSION

In cases involving such reprehensible conduct, the

government’s tenacity in pursuing a conviction is understandable. But cases such as these require even more

caution to ensure that the fairness of the judicial proceedings remains intact so that the resulting convictions

and sentences are sound. It is up to the government to

present the facts and allow the jury to do its job, without

resorting to testimony that usurps the jury’s function.

Although Barnes’s testimony was improper, we are
No. 07-2468 29

convinced that the outcome would have been the same had

it been excluded. We therefore AFFIRM Noel’s conviction.

We also find that although the district court committed

plain error during Noel’s sentencing, that error did not

affect the fairness, integrity, or public reputation of the

judicial proceedings, and we AFFIRM Noel’s sentence.

EASTERBROOK, Chief Judge, concurring. Although the

court holds that the district judge committed plain error

by failing to “address the defendant personally” about

allocution, as Fed. R. Crim. P. 32(i)(4)(A)(ii) requires, it

also declines to reverse, because it is very unlikely that

the gaffe affected the outcome. The judge twice invited

allocution (though when speaking to counsel rather than

Noel), and in response counsel read aloud a letter that

Noel had written to the judge. Noel evidently thought

that something composed in advance would present his

position better than extemporaneous oral remarks. He

has never contended that he did not know of his right

to speak on his own behalf, and he has never asserted

that he would have spoken if only the judge had raised

the subject with him rather than counsel. Even the

plainest of errors justifies reversal only if allowing the

decision to stand would impair “the fairness, integrity or

public reputation of judicial proceedings” (United States
30 No. 07-2468

v. Atkinson, 297 U.S. 157, 160 (1936), quoted in United

States v. Olano, 507 U.S. 725, 736 (1993)). The integrity

and public reputation of judicial proceedings would be

undermined, rather than reinforced, if this court reversed

on account of the district judge’s inconsequential misstep.

I write separately to question the conclusion of

United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007),

that, when conducting plain-error review of a contention that the district judge violated Rule 32(i)(4)(A)(ii),

the court of appeals must “presume prejudice when

there is any possibility that the defendant would have

received a lesser sentence had the district court heard

from him before imposing sentence.” There are two

problems with this standard: first the presumption in

defendant’s favor, and second the proposition that

“any possibility” of prejudice suffices to establish plain

error.

Even on harmless-error review, the burden of showing

prejudice rests on the defendant, not the prosecutor. See

Kotteakos v. United States, 328 U.S. 750 (1946); cf. O’Neal v.

McAninch, 513 U.S. 432 (1995). It is supposed to be

harder to show plain error (when the defendant forfeited the issue by failing to raise it in the district court)

than to show harmless error (when the defendant did

raise the issue, and the judge wrongly rejected the argument). Yet Luepke makes it easier to reverse on plainerror review than on harmless-error review.

Only grave and prejudicial errors justify reversal when

the defendant did not alert the district judge to the problem. See, e.g., United States v. Young, 470 U.S. 1 (1985);
No. 07-2468 31

Atkinson; Olano. During the last 20 years, courts of appeals

have occasionally declared that one or another kind of

error warrants a modified rule, in which prejudice is

presumed—and sometimes in which reversal follows if

there is “any possibility” that the defendant was adversely affected. The Supreme Court has disapproved

that approach. For example, when a court of appeals

declared that prejudice would be presumed if alternate

jurors are present during deliberations, the Supreme Court

reversed in Olano and held that the defendant bears

the burden of establishing prejudice. When a court of

appeals concluded that prejudice is presumed if a

district court fails to provide the defendant with all of

the information required by Fed. R. Crim. P. 11, the

Supreme Court reversed and held that the defendant

bears the burden of showing prejudice, United States v.

Vonn, 535 U.S. 55 (2002), meaning that he would not have

pleaded guilty had he received the information. United

States v. Dominguez Benitez, 542 U.S. 74 (2004).

And when some courts of appeals concluded that a

prosecutor’s failure to keep a promise in a plea agreement leads to reversal unless the prosecutor shows that

there is “no possibility” of an adverse effect, the Supreme

Court replied that the defendant bears the burden of

showing prejudice. Puckett v. United States, 129 S. Ct. 1423

(2009). See also United States v. Marcus, 538 F.3d 97, 102–05

(2d Cir. 2008) (Sotomayor, J., concurring) (questioning

the second circuit’s doctrine that prejudice is presumed

for ex post facto issues, and that reversal is required if

there is “any possibility” that pre-enactment conduct

affected the verdict), petition for cert. filed, No. 08-1341.
32 No. 07-2468

Now it is true that Olano and its successors state that

the defendant “ordinarily” bears the burden of establishing prejudice. This leaves open the possibility of

presuming prejudice for some kinds of error. Yet it is

also true that the Supreme Court has never found it appropriate to place the burden on the prosecutor when

reviewing under Fed. R. Crim. P. 52(b). And the Justices

have never so much as hinted that a “no possibility of

harm” standard would be appropriate for any kind of

error. A small category of “structural errors” justifies

reversal without inquiry into prejudice—for example,

the participation by a judge who does not hold office

under Article III, see Nguyen v. United States, 539 U.S. 69

(2003), or deprivation of the right to counsel of one’s

choice, see United States v. Gonzalez-Lopez, 548 U.S. 140

(2006)—but no one thinks that a violation of Rule

32(i)(4)(A)(ii) is in the structural-error category. When

the standard of review is plain error, reversal is “difficult,

‘as it should be.’ ” Puckett, 129 S. Ct. 1429, quoting from

Dominguez Benitez, 542 U.S. at 83 n.9.

Luepke justified transferring the burden to the

prosecutor, and adopting the “no possibility” standard,

because it is hard to show an adverse effect from a

judge’s failure to address the defendant personally—

rather than, say, addressing counsel in the defendant’s

presence, which conveys the same information but does

not satisfy Rule 32(i)(4)(A)(ii). But the reason it is hard

to show injury is that violations of the Rule usually are

inconsequential. That a violation did not affect anyone’s

behavior—which may explain why no one objected—ought

not make reversal the norm. It is instead why a court
No. 07-2468 33

of appeals should allow the judgment to stand. It cannot

be sound to say that the more technical the violation,

and the less likely any adverse consequence, the more

readily a court of appeals must reverse. Everything

Luepke said about violations of Rule 32(i)(4)(A)(ii) could

have been said—and was said, by the ninth circuit—in

Vonn and Dominguez Benitez. But the Supreme Court

held that the defendant must show prejudice when the

district judge fails to supply the information required

by Rule 11. If, for example, the defendant knew (perhaps

having been told by counsel) the information on the

Rule 11 list, there is no point in taking the plea anew.

Just so with a violation of Rule 32(i)(4)(A)(ii). Luepke

should be overruled.

WILLIAMS, Circuit Judge, dissenting. I join my colleagues

wholeheartedly in affirming Noel’s conviction and

agree that any errors that may have occurred during

trial were harmless due to the overwhelming evidence

of his egregious conduct. I write separately, however,

because I disagree with the panel’s conclusion that the

denial of his right to allocute did not undermine the

fairness of the judicial proceedings. Instead, I would

remand for resentencing. In light of Chief Judge

Easterbrook’s concurrence, I also write to stress the importance of the presumption of prejudice afforded to a
34 No. 07-2468

defendant who has been denied the opportunity to

allocute, and to reiterate why the standard adopted in

United States v. Luepke, 495 F.3d 443 (7th Cir. 2007),

should remain the law of this circuit.

I.

In Luepke, we held that “in the vast majority of cases,

the denial of the right to allocut[e] is the kind of error that

undermines the fairness of the judicial process,” based,

in part, on the right’s practical role and its effect on the

“perceived equity of the [sentencing] process.” Luepke,

495 F.3d at 451 (quoting United States v. Barnes, 948 F.2d

325, 328 (7th Cir. 1991). We also stated that “[a]bsent

some rare indication from the face of the record that the

denial of this right did not implicate these core values,

resentencing is the appropriate judicial response.” Id. at

452. In this case, the district judge mentioned Noel’s

right to allocute in open court (albeit to his lawyer); Noel’s

lawyer read aloud, during the sentencing hearing, a letter

Noel had written previously; and the judge issued a

sentence twenty years below the 100-year guideline

sentence. For these reasons, the panel concludes that the

error did not “implicate [the] core values in our sentencing process.” Op. at 28. I find each of these points

unpersuasive, and I am not convinced that they bring

this case within the narrow category of cases that do not

require resentencing.

The Supreme Court recognized, in United States v. Green,

that Rule 32, as then written, contained an “inflexible

requirement” that the district judge address the
No. 07-2468 35

defendant to allow him the opportunity to allocute. 365

U.S. 301, 303 (1961). And, as the panel notes, Rule

32(i)(4)(A)(ii) codified this holding by explicitly

requiring the judge to personally offer the defendant the

opportunity to allocute. This amendment clarified

what the Supreme Court had intimated: that ambiguous

references or invitations not directed to the defendant

fail to protect the right to allocute, and, by extension, cast

doubt over the fairness of the proceedings. See Green, 365

U.S. at 304; see also id. at 307-08 (Black, J., dissenting) (“[i]t

would be wholly artificial to regard this opportunity as

having been afforded in the absence of a specific and

personal invitation to speak . . . [t]he very essence of the

ancient common-law right . . . has always been the putting

of the question to the defendant . . . .”); United States v.

Adams, 252 F.3d 276 (3d Cir. 2001) (remanding for

resentencing after district judge asked defense counsel

if defendant wanted to exercise his right to allocute but

did not ask defendant personally). Although, some may

believe that “violations of the Rule usually are inconsequential,” Conc. Op. at 32, an acknowledgment of the

defendant’s right to speak, posed to his lawyer, cannot be

equated with a personal invitation to the defendant to

address the court. Relying on the former would require

the defendant to interject in an ongoing conversation

between the lawyers and the judge that has taken place

throughout the proceedings—an unrealistic expectation

in an environment where the lawyer is assumed to speak

for the client. Indeed, Rule 32 places an affirmative duty

on the court to invite allocution, avoiding the need for

defendants to attempt, on their own, to ask for an oppor-
36 No. 07-2468

tunity to speak. To now claim that “putting the question”

to defense counsel somehow preserves the fairness of the

proceedings is at odds with the purpose of the rule

and the Court’s pronouncement in Green.

Nor do I believe that Noel’s letter should alleviate our

concerns regarding the denial of the right to allocute. In

fact, it should do just the opposite. The record does not

clearly indicate the letter’s purpose, and it even suggests

that the choice to read the letter during the sentencing

hearing was not Noel’s. At the hearing, the district

court judge stated:

All right. And Miss Jensen [Noel’s lawyer], do you

have a presentation you’d like to make regarding

sentencing and would your client like to address

me?

To which Noel’s lawyer responded:

I’m sorry, Judge. Mr. Noel provided me with a

letter much too late for the Probation Department

to include it in the presentence report, but based on

what Miss Helart [the prosecutor] has said, I thought

it might be appropriate to share with you today.

(emphasis added). From both the panel’s analysis and

Chief Judge Easterbrook’s concurrence, one would think

that Noel wrote this letter specifically for the sentencing

hearing. But his lawyer’s statements to the court

indicate otherwise. Noel’s counsel said that she chose to

read the letter in response to the prosecutor’s comments.

Regardless of how it was structured, the letter was not

Mr. Noel’s allocution, and, in fact, the district judge
No. 07-2468 37

said that it “underline[d] the determination [he had]

made that [an] acceptance of responsibility [sentencing

reduction] was inappropriate.” The letter, which Noel’s

lawyer probably should have kept to herself, denied guilt,

shifted blame to others, and offered an apology all at

the same time. Noel did not receive an opportunity to

retract or even mitigate some of the letter’s statements;

yet the panel suggests that because his words were read

aloud in court, the perceived fairness of the process

remains intact. For a right rooted in English common

law, which affords a defendant a final opportunity to

present information in mitigation of his sentence, Green,

365 U.S. at 304, a letter read by defense counsel in

reaction to the prosecutor’s comments is a poor substitute. It may have caused even more harm, and since

Noel did not receive the opportunity to allocute, I do not

believe that the letter contributed to preserve the perceived or applied fairness of the sentencing process.

Furthermore, I cannot agree that Noel’s eighty-year

sentence, which was twenty years below the advisory

guideline sentence, somehow renders the proceedings

fair. The distinction between an eighty and 100-year

sentence is a superficial one. For Noel, both are functionally life sentences (Noel was fifty-three years old at

the time). He argued that the eighty-year sentence was

still too high and asked for a reduction, which the

district court denied based, in part, on his letter. In

this particular case, a sentence below the guideline

range says little about fairness. Noel could have received

a lower sentence if he accepted responsibility or could

have had his sentences on each count run concurrently.
38 No. 07-2468

Cf. Adams, 252 F.3d at 287 (presuming prejudice in cases

where, based on the facts at issue and the arguments

raised, the district court retained discretion to grant a

lower sentence).

The right to allocute belongs to the defendant, and the

duty is placed squarely on the court to ensure he has

the opportunity to exercise it. That everyone overlooked

this step does not mean we must do the same. I do not

believe any of the factors to which the majority points

instill confidence that the core values of our sentencing

process are not implicated. Luepke contemplated some

rare instances where the denial of the right does not

require a judicial remedy, and I see no reason why this

case falls into that narrow category.

II.

That brings me to the issue raised in Chief Judge

Easterbrook’s concurrence: the continuing viability of

Luepke’s presumption of prejudice in reviewing Rule

32(i)(4)(A)(iii) violations. As I stated earlier, the importance of the right to allocute cannot be minimized. It

has been recognized, in common law, as early as 1689,

that “the court’s failure to ask the defendant if he had

anything to say before sentencing was imposed required

reversal.” Green, 365 U.S. at 304. And despite the vast

improvement in procedural protections afforded to

defendants, the right remains an important aspect of our

sentencing proceedings, providing defendants with a

final opportunity “to speak or present any information to

mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).
No. 07-2468 39

A number of circuits, including ours, have recognized

the implausibility of proving prejudice from a Rule 32

violation, see, e.g., United States v. Haygood, 549 F.3d 1049,

1055 (6th Cir. 2008); United States v. Carruth, 528 F.3d 845,

847 (11th Cir. 2008); United States v. Reyna, 358 F.3d 344, 352

(5th Cir. 2004) (en banc); Adams, 252 F.3d at 287-88, and

without a presumption in favor of the defendant we

run the risk of reducing the rule and the right it protects

to a meaningless formality. See United States v. Barnes, 948

F.2d 325, 331 (7th Cir. 1991) (“[T]he defendant’s right to

be heard must never be reduced to a formality.”). It is our

duty to ensure that the right is afforded to all defendants,

while maintaining a careful balance between judicial

efficiency and the redress of injustice. Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009).

Plain error review, outlined in Federal Rule of Criminal

Procedure 52(b), maintains the appropriate balance in

most cases; however, as the Supreme Court recognized in

Olano, there are some instances where errors may be

presumed prejudicial. United States v. Olano, 507 U.S. 725,

735 (1993). In that case, the Court found that a violation

of Rule 24(c), which, at the time, required the district

judge to discharge alternate jurors after the jury began

deliberations, was not the type of error that “affect[s]

substantial rights independent of its prejudicial impact,”

and the Court declined to presume prejudice. Id. at 737

(internal quotation marks omitted). In United States v.

Vonn, the Court held that violations of Rule 11 of the

Federal Rules of Criminal Procedure (requiring the

district court to ensure that a plea is knowing and voluntary) were still subject to plain error. 535 U.S. 55 (2002).
40 No. 07-2468

One can certainly argue that the right to allocute is not

more important than the right to a jury free from

improper influence, or the right to enter a knowing and

voluntary guilty plea. And the Supreme Court’s insistence

on the plain error standard of review (without a presumption of prejudice) for those violations may suggest

that the same should apply here. See Reyna, 358 F.3d at 354-

55 (Jones, J., concurring). However, I do not believe

these cases compel us to abandon our approach in

Luepke. Our decision to apply a presumption of prejudice

is based not just on the importance of the right, but also

because the burden would be almost insurmountable

for defendants.

Assessing the prejudice caused by the presence of

alternate jurors during deliberations was a much more

manageable task in Olano. The Court considered the

fact that the alternate jurors were instructed not to participate in the deliberations and that the mere presence

of the jurors did not create a “sufficient risk of a chill” to

warrant a presumption of prejudice. Olano, 507 U.S. at 740-

41. A defendant denied the right to allocute, on the

other hand, would have to tell us, after the fact, what he

might have said months earlier, and he would also have

to convince us that the judge could have responded

favorably. Whatever statement he may have made,

whether it be a heartfelt plea for mercy or a full-fledged

admission and acceptance of responsibility, is of a different character when reduced to an appellate brief. It

is highly speculative—who really knows what would

have happened at that moment—as is any attempt to

assess its impact on a judge who has significant discretion in making sentencing decisions.
No. 07-2468 41

Similarly, in Vonn, a number of important considerations counseled against a presumption of prejudice or

any other exception from plain error review. Although

Rule 11 required the district court judge to address the

defendant during the plea colloquy, the strong interest

in concentrating pleas in trial courts and promoting

finality in a system heavily dependent on guilty pleas

added another dimension to the balance between

judicial efficiency and the redress of injustice. See Vonn,

535 U.S. at 72-73. Furthermore, the prejudice to a defendant who alleges a Rule 11 violation is the entry of a

plea that wasn’t made knowingly or voluntarily. A traditional plain error analysis would place the burden of

proving prejudice on the defendant, who is in the best

position to know if his plea was voluntary. Putting aside

the importance of the rights, I see a significant difference

between a rule that places the burden on a defendant

who seeks to renege on an agreement he entered into,

and one that requires him to tell us how a judge would

have reacted to a plea for mercy. The rights invoked in

Olano and Vonn are sufficiently distinguishable from

the right to allocute that those cases should not call

our holding in Luepke into question.

The presumption we adopted is not a direct route to

automatic reversal and we have not proposed, at any

point, that it be treated as a structural error that

justifies reversal without inquiry into prejudice. We have

simply applied a rebuttable presumption due to the practical difficulties defendants face in enforcing the right

during sentencing and on appeal. Cf. United States v.

Syme, 276 F.3d 131, 154-55 (3d Cir. 2002) (applying a
42 No. 07-2468

Chief Judge Easterbrook maintains in his concurring 1

opinion that the burden of showing prejudice on harmless

error review rests on a defendant, and, therefore, Luepke makes

it easier to reverse on plain error than on harmless error. I

disagree. The Supreme Court, in Kotteakos v. United States, only

placed the burden of proving harmless error on defendants

complaining of “technical” errors. 328 U.S. 750, 760-61 (1946);

see also O’Neal v. McAninch, 513 U.S. 432, 439-40 (1995); Brecht

v. Abrahamson, 507 U.S. 619, 641 (1993) (Stevens, J., concurring).

Otherwise, it is clear that the government bears the burden

of proving harmless error in criminal cases. Shinseki v. Sanders,

129 S. Ct. 1696, 1706 (2009). Although there is no formal definition of the term, the Supreme Court has referred to “technical

(continued...)

presumption of prejudice for constructive amendments

and analyzing whether the government effectively

rebutted the presumption). I am mindful of the Supreme

Court’s reluctance to expand the list of structural errors

and am aware that even constitutional errors are

normally subject to a harmless error analysis. But placing

the burden on the government to demonstrate the

absence of prejudice is not inconsistent with this principle. If the defendant had objected in the district court, the

government would bear the burden of proving that the

error was harmless. See Fed. R. Crim. P. 52(a); see also Vonn,

535 U.S. at 62 (interpreting language in Rule 11(h) that

tracked Rule 52(a) to provide for “consideration of error

raised by a defendant’s timely objection, but subject to an

opportunity on the Government’s part to carry the burden

of showing that any error was harmless”); United States v.

Williams, 559 F.3d 607, 611 (7th Cir. 2009). Shifting burdens

1
No. 07-2468 43

(...continued) 1

errors” as “matters concerned with the mere etiquette of

trials and with the formalities and minutiae of procedure . . . .”

Bruno v. United States, 308 U.S. 287, 294 (1939); see also United

States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994) (referring to

technical errors as “errors for which there is no reasonable

possibility that the verdict could have been affected”). I do not

consider a Rule 32 violation minor or inconsequential; therefore,

I would also place the burden on the government to prove

the absence of prejudice on harmless error review. The way I

see it, plain error remains the more difficult standard.

of proof alone does not disrupt the Supreme Court’s

attempts to limit the expansion of structural errors.

We cannot deny the importance of the right to allocute

and the steps the district court must take to enforce it.

Green, 365 U.S. at 304. As a practical matter, defendants

are less likely to object on their own when a judge fails

to provide them with an opportunity to allocute, and if

they do object, the judge will provide that opportunity

in most cases. The majority of appeals we encounter—as has been the case thus far—will come from proceedings in which the defendant made no objection.

The nature of the inquiry, however, is so speculative

that, in almost all cases, the defendant would not be able

to prove prejudice, and the right would not be enforced. This is an unacceptable result for a right that

implicates the fairness of sentencing proceedings. The

state of the law has evolved to give judges significantly

more discretion in making sentencing decisions. As a

result, we should be more skeptical of imposing
44 No. 07-2468

standards that require us to hypothesize what a sentencing

judge would have done in a given situation. The presumption we adopted in Luepke does not make the denial of

allocution a structural error, nor does it advocate for

automatic reversal. It recognizes that the right is more than

an “unenforced honor code” that judges may follow in

their discretion. United States v. Leon, 468 U.S. 897, 978

(1984) (Brennan, J., dissenting). The presumption of prejudice allows the right to be enforced and provides a

remedy where our procedural rules may have rendered

it effectively obsolete. Unless the Supreme Court says

otherwise, I see no reason to revisit Luepke.

9-4-09