« Yet another federal sentence prompting Second Amendment questions | Main | Intriguing new paper on plea bargaining »

May 16, 2008

Another federal effort to sentence for an uncharged murder

This new Baltimore Sun article spotlights another case in which federal prosecutors are looking to use the guidelines relevant conduct rules to obtain a higher federal sentence based on a murder charge that was never formally brought against the defendant:

A federal jury decided last year that Gary "Fat Boy" Williams Jr. was a drug dealer. But when his sentencing hearing resumes today in a Baltimore court room, he will face accusations that he was involved in the shooting death of an informant though he has never been charged with murder.

Federal prosecutors are mounting what is essentially a trial within a trial in hopes of winning a stiffer sentence. Federal sentencing law allows a judge to consider alleged crimes that have been refuted at trial or which a defendant has never been charged with, a provision that critics say flouts the constitutional protections of the trial-by-jury system. "It's a practice that is obviously ripe for abuse," said Jonathan Turley, a law professor at George Washington University. "The prosecutors can use this technique to punish someone for a murder that they're not willing to formally charge and prosecute, and the result is that the defendant receives the penalty but none of the due process protections."

Williams' lawyer, Christine Needleman, said, "It's supposed to be a sentencing for my client's first [federal] drug conviction. ... Instead, they're trying to tack on a murder that can't be proven to send him to prison for life without parole, without any of the procedures."

Rod J. Rosenstein, the U.S. attorney for Maryland, said Williams is accused of ordering the killing of a 35-year-old Harford County woman in February 2006 to obstruct the drug investigation, making it "relevant conduct" to the drug dealing. Prosecutors must prove his involvement by only a "preponderance of evidence." In a criminal trial, a defendant must be proven guilty "beyond a reasonable doubt," a higher threshold.

Sentencing guidelines call for Williams, 28, of Abingdon, to receive 14 to 17 years on the drug charges, but the murder accusations could stretch it to life. "The issue today is that he has been convicted, and we have an obligation to bring to the judge's attention all the relevant conduct," Rosenstein said. "You don't want a judge to flip a coin. You want a defendant who murdered a witness getting a sentence in the high end."

Related posts on uncharged murder sentencing enhancements:

UPDATE:  This Baltimore Sun article, headlined "Drug dealer gets life in prison: Judge says evidence shows that Harford man caused death of DEA informant," details the sentencing outcome in this case

May 16, 2008 at 08:49 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e5522a78aa8833

Listed below are links to weblogs that reference Another federal effort to sentence for an uncharged murder:

» Getting Away With Murder from Simple Justice
Via Doug Berman, this story of how Baltimore federal prosecutors are trying to bootstrap a first offender drug conviction into a murder sentence. [Read More]

Tracked on May 17, 2008 7:57:32 AM

Comments

Doug:

You're too modest. You don't mention that the article, a bit farther down the page, quotes you (apparently in response to the reporter's call).

The article fails to mention that in US v. Watts, 519 U.S. 148 (1997), the Supreme Court held that uncharged crimes may properly count as relevant conduct for sentencing purposes -- as may indeed behavior that WAS charged and for which the defendant was affirmatively ACQUITTED. So far as I know, Watts has not been overruled. That being the state of play, the district court in this case is free to entertain the government's argument.

All this could have been averted if the Booker Court had adopted a different remedy. Its remedy for the Apprendi/Blakely problem was to make the guidelines advisory. As Justice Stevens pointed out in his scorching and thoroughly convincing dissent on that question, the better course was to keep the guidelines as mandatory, which is how Congress quite designedly wrote them, and require the government to prove beyond a reasonable doubt the facts it wanted to use to increase the defendant's sentence beyond the maximum point of the lowest range.

In my view, Justice Stevens had it right -- a point I will be making in an article I have coming out next month in "Engage" (the magazine of the Federalist Society). But I didn't have a vote in Booker, and district courts remain free to find relevant conduct by a preponderance of the evidence so long as they apply the guidelines as advisory.

As I say, this would not be my choice. I agree with much, though not all, of Justice Thomas's view, in Apprendi and elsewhere, that, if the government wants to add to a defendant's sentence, it should go prove its case the old fashioned way. But I don't get a say.

Posted by: Bill Otis | May 16, 2008 10:05:08 AM

Ditto Richard Bailey enhanced in his fraud of ole ladies' conviction, by Judge Milton Shadur (he of the beneficent sentencing of sexual predators and/or aldermen), for murder of deceased/disappeared Helen Brach.

Posted by: Fluffy | May 16, 2008 2:21:13 PM

"sentencing law allows a judge to consider alleged crimes that have been refuted at trial"

That was a reference to acquitted conduct, although the article could have made it much more evident that even charges of which a jury found the defendant "not guilty" can be used at sentencing to increase a defendant's sentence. Acquitted conduct is the most egregiously unconstitutional aspect of federal sentencing. I don't care what the SCOTUS said in Watts, any prosecutor who seeks to have a sentence increased based on an acquitted charge should be disbarred. Lawyers take an oath to uphold and defend the Constitution. While Watts may negate a claim that the use of acquitted conduct by a prosecutor actually violates the Constitution, using acquitted conduct is a direct affront to the principles of double jeopardy and due process, and amounts to a constitutional abortion. It's incompatable with the notion of defending the Constitution. Thus, it should subject a prosecutor to disbarrment.

Bill: Watts is the problem, not the Booker remedial opinion.

Posted by: bruce | May 19, 2008 4:06:27 AM

Bruce:

"I don't care what the SCOTUS said in Watts, any prosecutor who seeks to have a sentence increased based on an acquitted charge should be disbarred."

The notion that a prosecutor should be disbarred for doing that which the Supreme Court has expressly allowed is astounding. Can you cite any authority at all -- any case, any law review article, ever -- that joins you in this view?

Would you say that defense counsel should likewise be disbarred for doing something the Supreme Court has allowed? If not, why should Supreme Court approval be available as a shield for defense counsel but not for his opponent?

You say that "using acquitted conduct is a direct affront to the principles of double jeopardy and due process, and amounts to a constitutional abortion. It's incompatable with the notion of defending the Constitution." But you simply present these statements as conclusions, without offering any exposition of the Court's reasons for holding otherwise, much less any analysis of those reasons.

Is just the fact that you're angry supposed to have persuasive force?

Posted by: Bill Otis | May 19, 2008 10:57:58 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB