Gary Stewart Boardman v. Wayne Estelle, Warden

957 F.2d 1523, 92 Cal. Daily Op. Serv. 2079, 1992 U.S. App. LEXIS 3811

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 1992
• Docket: 90-55238
• Status: Published

Opinions

TROTT, Circuit Judge:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.

Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961) (Frankfurter, J., writing for the plurality).

Gary Boardman asserts he was denied due process of law because the state trial court refused to allow him to speak at his sentencing hearing after he affirmatively requested to do so. We agree that due process requires criminal defendants be permitted to allocute before sentencing if they so request, and we remand for consideration of whether the error in this case was harmless.

I

Boardman pleaded guilty to four counts of oral copulation and seven counts of lewd conduct, each involving children under 14 years of age. During the sentencing hearing, the judge specifically mentioned a letter received from Conrad N. Perle, the father of one of the victims, noting:

It was an illuminating letter that I read that shows the type of damage that [Boardman has] done in matters of this nature. It creates ongoing problems for so many people. And, so, I guess I would say that ... it was a letter that did have its effect upon me and that it would be a letter that’s expressed the problems created by what went on between the defendant and young Mr. Perle.

Before making these comments, the judge stated that he did not know whether Board-man’s defense counsel had seen the letter. Later in the hearing, Boardman asked through his counsel to address the court. The court denied the request, stating “I’d just as soon not, if you don’t mind. Any remarks should come from you (Board-man’s attorney).... Just in general, I find it’s better not to have the defendants ... make comments_ And this is from experience, believe me.” ■

Boardman appealed his sentence, arguing he was denied due process because he was not permitted to respond personally to Mr. Perle’s letter. The California Court of Appeal rejected this argument in an unpublished opinion, holding that Boardman’s inability to address the court was “inconsequential” in light of other, mitigating evidence and argument presented to the sentencing judge by Boardman’s counsel. Relying on California case law, the court held that a trial court has discretion to decide whether a criminal defendant represented by counsel should be allowed to speak prior to sentencing.¹ The court further held that, in this instance, the trial court’s failure to allow Boardman to speak did not constitute a due process deprivation. The California Supreme Court affirmed without opinion.

Boardman then filed a petition for habe-as corpus in the district court, asserting again he was denied due process when the trial court refused his request to speak. In his traverse to the court, filed as a supplement to his habeas corpus petition, Board-man asserted that he was harmed by the court’s refusal because he had intended to rebut information offered by parents of the victims. He stated in the traverse:

One very important consideration is that the parents of the victims were expressly invited to address the court and several individuals availed themselves of this opportunity. Consequently, by silencing this petitioner, the Court deprived him of the opportunity to have his voice heard, either in answer to any accusations or to personally plead for leniency.

(emphasis in original).

Although the magistrate properly framed the issue as whether a defendant who is represented by counsel in a state court proceeding has a fundamental right to speak in mitigation of his sentence, he found no such right. The magistrate con-eluded that Boardman was asking for an extension of Fed.R.Crim.P. 32(a)(1)(C), which requires federal judges to ask criminal defendants if they wish to address the court. He held there was no basis for extending the federal rule to state court proceedings. He also found no prejudice to Boardman, holding that in light of the “seriousness of the offenses, the harm to the victims, the danger to the community, the facts offered to the trial judge in mitigation of sentence, and the effectiveness of Petitioner’s attorney, nothing suggests that anything Petitioner could have personally said would have prodqced a lesser sentence.”

The district court adopted the magistrate’s findings and recommendations and dismissed Boardman’s habeas corpus petition. The court also denied his subsequent request for a certificate of probable cause, in which Boardman again argued he had been denied due process through denial of allocution. The court refused to consider Boardman’s argument that he had been prejudiced by his inability to respond to damaging letters from victims’ family members. The court found this argument not properly presented because it had not been raised in the habeas corpus petition or in the traverse. Boardman filed this timely appeal.

II

As a preliminary matter, we must determine whether the district court erred in finding that Boardman did not properly raise the issue of his inability to respond to the Perle letter. California asserts that Boardman now raises “[f]or the first time in . these proceedings” the claim that “he could have refuted a damaging letter presented to the state sentencing court.” We are at a loss to understand California’s argument as well as the district court’s ruling. In his traverse, Boardman clearly stated that because he was not permitted to speak at sentencing, he could not rebut information presented to the court by the victims’ parents. In his request for probable cause certification, Boardman again raised the issue. Because Boardman did timely and repeatedly raise this issue, we conclude the district court erred in refusing to consider his claim.

Ill

We now turn to the primary issue in this case: whether a criminal defendant is denied due process if the trial court denies his request to address the court prior to sentencing.² Finding no such right, the magistrate below could identify no basis for a right of allocution other than the Federal Rules _ of Criminal Procedure, which do not apply to state court proceedings. We believe the lower court erred both in overlooking the ancient origins of this common-law right and in failing to recognize the continuing importance of the interests protected by affording the defen-dánt the opportunity to speak on his own behalf.³ Accordingly, we reverse.

Sentencing is a critical stage of the criminal process, Mempa v. Rhay, 389 U.S. 128, 133-34, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967), to which Constitutional due process guarantees apply. United States v. Lundien, 769 F.2d 981, 986 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986). The requirements of due process “cannot be ascertained through mechanical application of a formula,” but are determined by “ ‘history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.’ ” Groppi v. Leslie, 404 U.S. 496, 500, 92 S.Ct. 582, 585, 30 L.Ed.2d 632 (1972) (quoting Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643-44, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). In the context of criminal law, the backbone of that democratic faith is the right of a criminal defendant to defend himself against his accusers; and it has long been recognized that allocution, the right of the defendant to personally address the court,⁴ is an essential element of a criminal defense. Specifically, the right of allocution “contemplates an opportunity for the defendant to bring mitigating circumstances to the attention of the court.” Sherman v. United States, 383 F.2d 837, 839 (9th Cir.1967).

Denial of the “traditional right of a criminal defendant to allocution prior to the imposition of sentence,” Groppi, 404 U.S. at 501, 92 S.Ct. at 586, was recognized as requiring reversal as early as 1689. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961); Del Piano v. United States, 575 F.2d 1066, 1069 (3rd Cir.1978). When the right of allocution matured under English common law, however, a criminal defendant was not permitted counsel and could not testify on his own behalf. State v. Carr, 172 Conn. 458, 473, 374 A.2d 1107, 1115 (1977). The defendant’s allocution before sentencing was his only opportunity to address the court. Even though the form of criminal trials has changed significantly over time, the interests supporting the right of a defendant personally to address his sentencer have remained constant. In this regard, the Supreme Court found in 1961 that allo-cution is still a vital part of the sentencing process.

We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century — the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern ■ innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation.

Green, 365 U.S. at 304, 81 S.Ct. at 655.⁵

After recognizing the importance of the right of allocution in Green, the Supreme Court concluded the following year in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), that a sentencing judge’s failure to ask a defendant if he had anything to say, although a violation of Fed.R.Crim.P. 32(a)(1)(C),⁶ was not an error of Constitutional dimension and could not support a writ of habeas corpus. The Court noted, however, that it was not presented with a defendant who was

affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed. Nor is it suggested that in imposing the sentence the [judge] was either misinformed or uninformed as to any relevant circumstances. Indeed there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak. Whether [habeas corpus] relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider.

Id. at 429, 82 S.Ct. at 472 (emphasis added). Hill therefore left open the question of whether a defendant who asks the court to speak has a Constitutionally guaranteed right to do so.

The next term, the Court hinted at how this open question should be answered. In United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), the Court again affirmed the importance of a federal defendant’s personal right to speak before sentencing, holding that the district court erred in modifying the defendant’s sentence in his absence. Justice Black, writing for the Court, described allocution as a right “ancient in the law,” which the defendant must be allowed to invoke just prior to sentencing. Id. at 165, 84 S.Ct. at 297. “It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance.” Id. In his concurring opinion, Justice Harlan described allocution as an “elementary right.” Id. at 167, 84 S.Ct. at 298. He observed: “Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant’s words in his absence and give them due weight.” Id. at 168, 84 S.Ct. at 298. Justice Black noted that the right of allocution is “recognized” in Fed. R.Crim.P. 32(a). Id. at 165, 84 S.Ct. at 296. Justice Harlan described this “elementary right” as “embodied” in Rule 32(a). Id. at 167, 84 S.Ct. at 298. See also McGautha v. California, 402 U.S. 183, 217, 91 S.Ct. 1454, 1472, 28 L.Ed.2d 711 (1971) (allocution is a right of “immemorial origin”). We read this to express the Justices’ view that there is a long-standing basis for the right of allocution, separate and independent of the entitlement created by Rule 32(a).

Most recently, the Court explicitly recognized in McGautha that it had not yet confirmed the Constitutional basis for the right of allocution: “This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so.” Id. at 218 n. 22, 91 S.Ct. at 1473 n. 22 (rejecting defendant’s claim that he was denied the right of allocution because guilt and penalty were determined in one proceeding, and his statements in asking for leniency in sentencing could be considered in determining guilt). The Court assumed without deciding that the Constitution does require that the trial court permit a defendant to speak at sentencing if he so requests. Id. at 218-19, 91 S.Ct. at 1472-73. It is precisely this lingering question that we must decide today.

IV

California first argues that a defendant who elects to be represented by counsel has no right to speak in his own behalf. The California courts have adopted this view, finding no right of allocution for a represented defendant. “The [defendant] was represented by counsel and it was the function of that counsel, rather than of the defendant himself, to address the court on the defendant’s behalf.” People v. Cross, 213 Cal.App.2d 678, 682, 28 Cal.Rptr. 918 (1963).

We reject this argument. A defendant who chooses to be represented by counsel does not waive his right to allocution.⁷ “That a defendant is entitled to representation of counsel at all stages of the proceedings, including sentencing, does not necessarily mean he cannot speak ‘in his own behalf’ ... in mitigation of punishment.” Taylor v. United States, 285 F.2d 703, 705 (9th Cir.1960) (permitting counsel to speak does not satisfy Rule 32(a)’s requirement that the defendant personally be offered the opportunity to speak). A defendant’s choice to be represented by counsel is not a complete surrender of his right to direct his defense,⁸ and does not permit a court forcibly to interpose that counsel between the defendant and the exercise of his personal rights.

When the administration of the criminal law ... is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards ... is to imprison a man in his privileges and call it the Constitution.

Adams v. United States ex rel. McCann, 317 U.S. 269, 279-80, 63 S.Ct. 236, 241-42, 87 L.Ed. 268 (1942), quoted in Faretta v. California, 422 U.S. 806, 815, 95 S.Ct. 2525, 2531, 45 L.Ed.2d 562 (1975). The Sixth Amendment “does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta, 422 U.S. at 819, 95 S.Ct. at 2533 (emphasis added) (holding that a defendant has a right of self-representation guaranteed by the Sixth Amendment). Because we find the right to allocute at sentencing to have the same personal quality as the right to make a defense, we reject California’s argument that Boardman abandoned his right of allocution when he retained counsel.

V

Boardman was affirmatively denied an opportunity to speak. Furthermore, he asserts that he would have responded to the victim’s parent’s letter, unlike the Hill defendant who did not claim he “would have had anything at all to say.” Hill, 368 U.S. at 429, 82 S.Ct. at 472. Although we have not yet decided this issue,⁹ our sister circuits have reached conflicting results.

The Fourth Circuit, confronted with facts very similar to those presented here, found that the right of allocution was Constitutionally guaranteed. In Ashe v. North Carolina, 586 F.2d 334 (4th Cir.1978), cert. denied 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979), two state court defendants sought to address the court prior to sentencing. The judge denied their request. The defendants filed a habeas corpus petition in federal court, asserting they were denied due process because they were not afforded the right of allocution. The Fourth Circuit agreed, noting that the Supreme Court had left this issue open in Hill. “We think that when a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant the defendant’s request.” Id. at 336; see also United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988) (citing Ashe for proposition that defendant must be permitted to speak for reasonable amount of time).

Other circuits have also found the right of allocution to be Constitutionally guaranteed, although none has engaged in even the brief analysis of Ashe. The Fifth and Eleventh Circuits have held that a defendant’s rights to be present and to allocate at sentencing are of Constitutional dimension. United States v. Moree, 928 F.2d 654, 656 (5th Cir.1991) (citing United States v. Huff, 512 F.2d 66, 71 (5th Cir.1975)¹⁰); United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir.1991) (also relying on Huff). But see United States v. Fleming, 849 F.2d 568, 569 (11th Cir.1988) (right to allocution not Constitutional, citing Hill).

Some circuits, on the other hand, have concluded that the right of allocution is not Constitutionally secured. These circuits rely primarily on Hill’s statement that a trial judge’s failure “to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed” is not a Constitutional error. Hill, 368 U.S. at 428, 82 S.Ct. at 471; United States v. Coffey, 871 F.2d 39, 40 (6th Cir.1989) (no constitutional basis for allocution, citing Hill); Fleming, 849 F.2d at 569 (same). In Coffey, the Sixth Circuit relied on Hill to find no Constitutional violation. The Coffey defendant, howeVer, did not ask to address the court, and hence there was no affirmative denial as there was in the present case. See United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989) (no Constitutional violation where defendant did not ask to address the court); United States v. De La Paz, 698 F.2d 695, 697 (5th Cir.1983) (citing Hill for the proposition that failure to offer the defendant the opportunity to speak is “not a fundamental defect.”)

All of the cases denying Constitutional status to allocution are factually distinguishable because they do not involve the denial of an affirmative request to speak, as in the present case. More importantly, however, we find their reasoning unpersuasive because, in finding that allocution has no Constitutional basis, they overstate Hill’s carefully defined holding. These circuits ignore the Court’s limiting comment that it did not consider the impact of “aggravating circumstances” under which a denial of allocution might be a due process violation. Because we read Hill more narrowly, and with emphasis on the Court’s acknowledgment of the limits of its holding, we do not adopt the reasoning of these circuits.

Recognizing the personal nature of the Sixth Amendment’s guarantee of the right to make a defense, the unique ability of a defendant to plead on his own behalf, and the Supreme Court’s acknowledgment of the continuing vitality of the practice of permitting a defendant to alloeute before sentencing, we hold that allocution is a right guaranteed by the due process clause of the Constitution. Our holding is limited to circumstances in which a defendant, either unrepresented or represented by counsel, makes a request that he be permitted to speak to the trial court before sentencing. If the trial court denies that request, the defendant has not received due process.

VI

We next consider whether such a denial of due process can be held harmless. Because we find denial of allocution subject to harmless error analysis, we remand to the district court to determine whether it was harmless in this case.

Most errors of Constitutional magnitude are subject to harmless error analysis, except those “which are so basic to a fair trial that their infraction can never be treated as harmless error.” Arizona v. Fulminante, — U.S.-, 111 S.Ct. 1246, 1263-64, 113 L.Ed.2d 302 (1991) (Rehnquist, J., writing section II for the Court); see also Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 1450-51, 108 L.Ed.2d 725 (1990) (Constitutionally permissible to apply harmless error analysis to instructional error that affected sentencing). The Supreme Court has distinguished between errors which affect “the framework within which the trial proceeds,” which can never be harmless, and errors in the trial itself. Fulminante, 111 S.Ct. at 1265. The latter class of errors, even when they implicate significant Constitutional rights or involve serious police misconduct, are subject to harmless error analysis. Id. Denial of the right of allocution is an error in the conduct of the trial, not a structural defect in the trial process. As such, we find that it is not a fundamental defect and so may be treated as harmless. We agree with the Fourth Circuit’s approach in Ashe, in which the court remanded to the district court for a determination of whether the defendants actually asked to speak, and what they would have said if given the requested opportunity.

Should this information prove to be irrelevant or cumulative in view of statements by their attorney at sentencing, the denial of their right to speak may be found to be harmless error. Otherwise, if the request was made and denied, petitioners’ sentences must be vacated, and they should be resentenced in a proceeding which allows them the opportunity to speak in their own behalf.

Ashe, 586 F.2d at 337.

In the present case, the sentencing hearing transcript establishes that Boardman, through his counsel, made a request to address the court. Boardman asserts that he was prejudiced by his inability to respond to a letter from Mr. Perle, one of the victim’s parents. In discussing the impact of the letter at sentencing, the trial court judge said to Boardman’s attorney “I don’t know if you saw [the letter].” There has been no determination of whether either Boardman or his attorney saw the letter. Furthermore, we do not know what statements Boardman would have made to the court. Based on this record, we are unable to determine whether the error was harmless. We remand for a determination of whether Boardman did see the letter, and what he would have said in his defense if permitted to speak. If the district court determines that the denial of allocution was not harmless, the case should be returned to the state courts so Boardman can be resentenced after exercising his right of allocution.

REVERSED and REMANDED.

1 . See People v. Sanchez, 72 Cal.App.3d 356, 359, 140 Cal.Rptr. 110 (1977); see also People v. Wiley, 57 Cal.App.3d 149, 166, 129 Cal.Rptr. 13 (1976), disapproved on other grounds, People v. Wheeler, 22 Cal.3d 258, 286 n. 35, 287, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); People v. Cross, 213 Cal.App.2d 678, 681-82, 28 Cal.Rptr. 918 (1963).

2 . We reject California’s transparent attempt to focus our attention on Boardman’s crimes rather than on the significant Constitutional question he raises. California argues that Board-man was not harmed by denial of allocution because of the offensive nature of his crimes. "Whát justification would a child molester who furnishes children drugs offer in his behalf?” The repugnant nature of those crimes makes it all the more vital that he have the opportunity to explain his actions and plead for leniency from the court. See, e.g., In re Gustafson, 650 F.2d 1017, 1027 (9th Cir.1981) (“Even a defendant convicted of the most heinous crime has the right to address the court prior to sentencing and thus apologize for or explain his or her conduct.”) Because we conclude that the right to speak is of Constitutional dimension, see infra, California’s view would limit the Constitutional rights of those defendants who commit unusually distasteful crimes. We cannot accept such a result.

3 . We agree with the dissent that due process precludes a sentencing judge from relying on materially untrue information or assumptions. However, we believe that due process during a sentencing hearing affords the defendant rights beyond merely preventing the sentencing judge from considering untrue information.

4 . "Allocution: Formality of court’s inquiry of prisoner as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction.” Black’s Law Dictionary 70 (5th ed. 1979).

5 . The dissent summarily dismisses Green on the premise that it is inapplicable because the Court was construing Rule 32(a). However, the dissent does not account for the Court’s explicit discussion of the distinct rights underlying the "modern innovations" of procedural rules.

6 . The common-law right of allocution has been codified at Rule 32(a)(1)(C) of the Federal Rules of Criminal Procedure. United States v. Franklin, 902 F.2d 501, 507 (7th Cir.), cert. denied, — U.S.-, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). Failure to comply with Rule 32(a)(1)(C) requires remand for resentencing. United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980); see also United States v. Moree, 928 F.2d 654, 656 (5th Cir.1991); United States v. Walker, 896 F.2d 295, 301 (8th Cir.1990).

7 . The dissent worries about creating a right of "hybrid" representation. However, a defendant’s right of allocution is entirely separate from a defendant’s right to be represented by counsel. The right of allocution can be analogized to a defendant’s right to testify on his behalf. A defendant who elects representation by counsel does not simultaneously waive his right to testify at trial. Similarly, a defendant who presents his case through a surrogate, his attorney, does not forego the right to personally address a sentencing judge before imposition of sentence.

8 . The California Supreme Court recently reaffirmed a criminal defendant’s right to control certain areas of his defense in People v. Bloom, 48 Cal.3d 1194, 1221, 259 Cal.Rptr. 669, 774 P.2d 698 (1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1503, 108 L.Ed.2d 638 (1990).

On numerous occasions, we have "recognized the need to respect the defendant’s personal choice on the most ‘fundamental’ decisions in a criminal case.’’ (People v. Frierson (1985) 39 Cal.3d 803, 814, 218 Cal.Rptr. 73, 705 P.2d 396.) Thus even in a capital case defense counsel has no power to prevent the defendant from testifying at trial (People v. Lucky (1988) 45 Cal.3d 259, 282, 247 Cal.Rptr. 1, 753 P.2d 1052 [cert. denied, 488 U.S. 1034, 109 S.Ct. 848, 102 L.Ed.2d 980 (1989) ]) and the defendant may testify at the penalty phase to a preference for the death penalty (People v. Guzman (1988) 45 Cal.3d 915, 961-963, 248 Cal.Rptr. 467, 755 P.2d 917 [cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1005 (1989) ]; People v. Grant (1988) 45 Cal.3d 829, 849-850, 248 Cal.Rptr. 444, 755 P.2d 894 [cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1006 (1989) ]).

... This court endorse[s] the view that both court and counsel are obligated to respect a competent defendant’s considered and voluntary decisions on matters of fundamental importance affecting trial of the action....

(footnote omitted) (citations omitted).

9 . We have obliquely touched on the issue in two cases. Most recently, Judge Reinhardt relied on Ashe v. North Carolina, 586 F.2d 334 (4th Cir.1978), see discussion infra, in his dissent from the original panel opinion in Coleman v. Risley, 839 F.2d 434, 493 (9th Cir.1988), withdrawn, rev’d sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir.1989) (en banc), in which he pressed the importance of permitting a defendant to comment before sentencing. In Coleman, however, the issue was the trial judge's failure to consider statements by the defendant’s counsel prior to sentencing, not an affirmative denial of the defendant's personal right of allo-cution.

We also grazed this issue in Weiss v. Burr, 484 F.2d 973 (9th Cir.1973), cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 115 (1974), holding that a contemnor’s right to be heard in his own defense was “undoubtedly a ‘fundamental right.’ ’’ Weiss does not control the present case, however, because there neither the defendant nor his attorney were given the opportunity to be heard prior to sentencing. Furthermore, the Weiss defendant did not make a request to address the court, as did Boardman.

10 . The basis for the court’s reliance on Huff is not clear. Huff concerned a defendant who was denied the opportunity to respond to materials delivered ex parte to the sentencing judge. In remanding for resentencing, the court noted that the right to be present and to be represented at sentencing is Constitutionally based. The court stressed the importance of permitting a defendant to respond to all prejudicial pre-sen-tence material submitted by the prosecution. However, nowhere does the Huff court state that the right to allocute is Constitutionally based.