Practitioner’s Note: Acquitted Conduct in the News (Again)
The use of acquitted conduct as a basis for enhancing punishments remains the sentencing issue that won’t go away. A spate of recent decisions and articles once again brings to the fore the controversy over a practice that already once reached the Supreme Court – where, in United States v. Watts, it was approved – at a time when the guidelines were still mandatory. The August edition of the ABA Journal, here, prominently features Doug Berman, who is quoted as stating that the constitutionality of the practice has been called into question anew by the Court’s more recent sentencing decisions. The article discusses United States v. Hurn, a case in which a drug defendant’s guideline exposure was raised from 27-33 months to 16-20 years on the basis of distribution counts of which he was acquitted. The Supreme Court denied the cert petition, which Doug helped draft.
An article in The Washington Times, here, highlighted another recent decision on acquitted conduct, this one before the Eighth Circuit. In United States v. Canania, the defendants were convicted of methamphetamine-related offenses and acquitted of possessing a firearm in furtherance of a drug-trafficking crime. The district court, nevertheless, enhanced their sentences for the gun possession. Judge Myron H. Bright wrote a separate concurring opinion in order to express his “strongly held view that consideration of ‘acquitted conduct’ to enhance a defendant’s sentence is unconstitutional,” and to urge the Supreme Court to promptly re-examine its continued use. Judge Bright asked, rhetorically, “what might the man on the street think” of such a practice? In a footnote, he answered his own question with the remarkable story of a recent trial in Washington, D.C., in which federal prosecutors sought a 40-year sentence against a drug defendant despite the fact that he was acquitted on every charge except a single $600 half-ounce sale of crack cocaine that occurred seven years earlier. When one of the former jurors on the case learned of the prosecutors’ request, he wrote a letter to the judge, asking: “What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the [U.S. Attorney’s Office] would have liked them to have been found guilty.”
The question of what the man on the street would think raises the possibility of a different kind of challenge to the use of acquitted conduct, one that focuses not on the Constitution, but on Section 3553. That provision, among other things, requires all sentences to be judged against the enumerated statutory purposes of punishment, which expressly include promoting respect for the law and providing just punishment for the offense. In certain cases, as the Washington, D.C. juror story demonstrates, a sentence based substantially on acquitted conduct may well promote disrespect for the law, and thereby violate Section 3553. Doug and a group of Proskauer lawyers (including myself) made exactly this argument in an amicus brief filed with the Sixth Circuit in the case of United States v. White. The Circuit heard argument en banc on June 4, and a decision is pending.
As the ABA article mentions, if the Sixth Circuit finds that the district court erred in the use of acquitted conduct, it is likely the Supreme Court will have to review the issue again. Either way, the controversy will likely continue.
Proskauer Rose