Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal. Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”? In other words, says the government, “it’s not okay just because no one told you it isn’t.”
The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016). A prosecutor in the Western District of Pennsylvania had a bright new idea: use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify. The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence. Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.
On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.” The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below). Continue reading →