Cannot Cross-Examine Defendant During Allocution

Resentencing is required for convicted fraudster because the trial court judge allowed him to be aggressively cross-examined when he exercised his right to allocate prior to being sentenced.

 

United States v. Moreno, 2016 BL 824, 3d Cir., No. 14-1568, 1/5/16

     A former real estate developer, serving time for being part of a mortgage-fraud scheme, was cross-examined aggressively while he exercised his right to allocute prior to being sentenced. Allocution is designed to give the defendant an opportunity to raise personal and mitigating circumstances in order to inform the judge and give the judge an opportunity to temper punishment with mercy when appropriate.

    The court indicated that adversarial cross-examination is contrary to the purpose of allocution. The court stated that "[e]ven if we were to conclude that the error in this case was not plain (and we do not so hold), we would nevertheless exercise our supervisory power and hold that a defendant may not be cross-examined during allocution."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Moreno_No_141568_2016_BL_824_3d_Cir_Jan_05_2016_C?1453401207

State v. Taylor - Is Securities Fraud a Continuing Offense?

The crime of securities fraud is complete when an "offer, sale, or purchase is made...."

State v. Taylor

      Roger Taylor was charged with multiple counts of securities fraud and theft on the basis of his alleged operation of a Ponzi scheme. The district court concluded that securities fraud and theft are continuing offenses and evaluated the timeliness of the charges with regard to the statute of limitations of that offense.

I. THE TEST FOR CONTINUING OFFENSES

      The time limit for prosecuting a crime starts the moment that "every element of the offense is met." The legislature has created some crimes in such a way that a perpetrator continues to commit the offense for as long as the elements are satisfied.

     

     The first step to see if a crime can be offended continuously is to look to the congressional intent. Criminal statutes should not be interpreted to create a continuing offense “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397 U.S. 112, at 115 (1970).

   

II. SECURITIES FRAUD IS NOT A CONTINUING OFFENSE

     The Court held that securities fraud, in violation of Utah Code section 61-1-1, is not a continuing offense. Instead, the crime of securities fraud is complete and the statute of limitations begins to run when an “offer, sale, or purchase” is made “in connection with” an activity specified in subsections (1) through (3).

     The Court looked to the text of the statute, and they determine that the offense is "anchored in the discrete events of an 'offer, sale, or purchase of any security." The Court looks at US Supreme Court decisions on similar statutes holding that they were not continuing violations. The Court also looks to similar Utah statutes that have been determined to not be continuing offenses as well as the fact that a defendant may be charged with a "pattern of criminal activity" lessening the need for this crime to be a continuing violation.

http://www.utcourts.gov/opinions/supopin/State%20v.%20Taylor20150331.pdf