In United States v. Bowyer, No. 23-3169 (7th Cir. Sept. 18, 2024), a 2-1 panel upheld a conviction over an argument that a district court judge effectively deprived the defendant of his right to allocution, dominating the procedure by his own bench comments. Judge Jackson-Akiwumi files a dissent.
“Andre Bowyer, a national of Jamaica, pleaded guilty to the crime of re-entering the United States without permission after previously being removed. 8 U.S.C. § 1326(a).” At sentencing, in mitigation, the defendant “sought to stress the ties he had formed to a family here during the year or so between his unlawful reentry and his arrest on new criminal charges.”
Yet, by the panel majority’s account, “[t]he judge’s comments dominated Bowyer’s allocution. As soon as Bowyer began speaking the judge started talking and made lengthy comments for most of the allocution. Measured by pages and lines in the transcript, the judge spoke for more than 80% of the allocution portion of the sentencing hearing. As a result, Bowyer argues, he was never able to expand on his argument for very long.”
The Seventh Circuit affirms the sentence. Because the defendant made no objection to the constant interruptions, the panel applies plain-error analysis to the issue. And without deciding whether error was committed, the panel majority holds that the judge’s conduct did not violate unambiguous, controlling case law sufficient to support plain error. The panel majority observes, among other things, that the defendant submitted a four-page letter making his argument before sentencing and that the defendant declined a prompt from the bench to continue his remarks, though “[w]hether this is a result of Bowyer’s feeling cowed or of his having nothing more to say is not plain.”
Nevertheless, even the panel majority appears shaken by the district court’s conduct. “Here, some of the district court’s interruptions were to tell Bowyer why the relationship with Diaz and her children was not relevant . . . . And some of the district judge’s remarks here were more than friendly questions to keep him on-topic. They veered into a running commentary during Bowyer’s time to allocute. A de novo review of Bowyer’s sentencing, then, might pose difficult questions.”
The majority closes with an admonition. “This opinion, constrained by the plain-error standard, should not be read as accepting frequent and lengthy interruptions of a defendant during allocution. Without being present at the sentencing, we cannot assess the ‘mood in the room.’ Just so, district judges should hesitate to leave an impression, even in a transcript, of impatience or discouragement during the important moment the defendant addresses the judge. Defendants must be shown that they are free to speak to the court whose sentence will determine their liberty . . . . District judges may certainly ask questions . . . . and sometimes they may feel obligated to do so, including to ensure the topics in an allocution remain relevant. But care should be taken to ensure that judicial comments do not dominate the time for allocution or repeatedly criticize an argument that a defendant has offered, especially after the judge’s point has been well established.”
Judge Jackson-Akiwumi dissents, holding that she would find plain error and prejudice on this record. “Even if Bowyer’s letter and his stymied efforts at allocution mentioned all the topics he wished to cover—he was not obliged to tell us if that is so—the plain error prejudiced him. ‘[I]t is not only the content of the defendant’s words that can influence a court, but also the way he says them’ . . . . But before Bowyer even began speaking, the judge remarked, ‘I did read your letter with some care, and I don’t—I don’t know if you’re lying to yourself or to me.’ Bowyer thus faced hostility ahead of, and during, his allocution; was prevented from speaking at any length; and ultimately gave up. In my view, this is ‘hard evidence of prejudice,’ . . . . even though in this situation, prejudice ought to be presumed.”
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