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June 3, 2008

Hoping to acquit myself well in big Sixth Circuit argument on acquitted conduct

As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Together with a terrific group of lawyers from Proskauer Rose working pro bono, I helped put together an amicus brief (discussed here) making mostly statutory arguments about guideline enhancements based on acquitted conduct.  And the Sixth Circuit kindly granted us time at the en banc oral argument scheduled for tomorrow.

Though I argued as an amicus before a Sixth Circuit panel last year, I have never argued before an en banc circuit court.  And, of course, this case raises an issue that I have worked on a lot (and blogged about a lot) both pre- and post-Booker.  Though I am gearing up for what should be an amazing proceeding, I would welcome in the comments or via e-mail any and all advice for arguing to en banc courts or arguing on this acquitted conduct issue.

June 3, 2008 at 08:28 AM | Permalink


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Keep it very simple for them take the approach by Jackie Childes in the last Seinfeld episode when they are charged for watching as someone gets mugged.
His claim was they are innocent bystander (innocent bystanders) how can you be guilty if you are an innocent bystander. The word innocent jumps out.

Acquitted conduct, how in the world can you get an enhancement if the jury finds you not guilty, acquitted? innocent?

see the match.

Posted by: | Jun 3, 2008 9:55:56 AM

I have argued en banc panel at the Sixth Circuit. Judge Boggs, while he may not buy your arguments, will be very gracious as the Chief and give you time to finish your answers even if you are out of time.

As it relates to the set up, you will be in the middle of a semi-circle with the least-senior judges seated closer to you i.e., on the fringes.

As it relates to argument--you are not there to argue--you are there to answer questions. Don't forget to answer the question itself. The art is making your points through the explanation of your answer.

Hopefully, you won't end up up a decision that is split straight down political party lines (unlike most Sixth Circuit en banc decisions of late).

Good luck!

Posted by: ky | Jun 3, 2008 10:19:56 AM

The problem is there is a big difference between "innocent" and "not guilty" and we don't give juries the opportunity to decide upon that distinction. I've long felt juries should be given three options - innocent, not guilty, and guilty. If the gov't doesn't meet its burden of proof, the default is not guilty. The jury can also decide the defendant either showed he was innocent, or the state utterly failed to put on evidence of one or more elements of the crime(s). I'm not in favor of the notion that a defendant should have to put on some evidence to be entitled to a finding of innocence, but it is debatable.

Anyway, the use of acquitted conduct would be much clearer (and much more prohibitive) if we adopted my 3 verdict system. It would also result in less convictions, as the jury would compromise on the "middle" position of not guilty. This would be good, though the gov't would whine.

Posted by: bruce | Jun 3, 2008 12:20:01 PM

As for your request for substantive comments: Off the top of my head quickly, I think you might face some variant of the following questions:
1) Why does it promote respect for the law when an individual is convicted of armed robbery, acquitted on the "gun charge" but the sentencing judge cannot take into account the fact that the accused used a gun during the commission of the robbery?

2) Explain why the Sixth Amendment distinguishes between unindicted conduct but not so-called acquitted conduct, i.e., as I follow your (and the petitioner's arguments) judges may consider the former but not the latter at sentencing.

3) Can you please define "acquitted conduct"?

4) How is this Court (the Sixth Circuit) suppose to deal with precedent like McMillian and Watts which affirmed that lower standards of proof apply during sentencing, i.e., foreclosing any collateral estoppel arguments?

5) How do you respond to Judge Wallace's statement in Putra (as quoted in Watts) that the jury's acquittal on any given charge is not the same as a finding of fact that the conduct underlying that charge did not occur?

6) If we buy your argument that there may be a due process or Sixth Amendment problem if "acquitted conduct" becomes the "driving force" (or major determinant) of a sentenec - how do we quantify that - 50% increase? 100% increase? Could we look to the civil due process cases regarding punitive damages to get a benchmark (e.g., BMW v. Gore)?

7) Your statutory argument at pg 3 of your brief all but concedes that the text of the SRA does not outright forbid judges from considering "acquitted conduct"? Yet you argue that the SRA's text really meant for judges to consider "acquitted conduct" on a case-by-case basis? Can you point to specific statutory language or legislative history that supports this reading of the SRA?

8) Why would conduct underlying an acquitted charge not necessarily be related to the "offense of conviction"? Can you provide examples?

9) I don't understand FN1 of your brief (at pg 4). This simply indicates that sentences for each offense, in the case of a defendant who is found guilty of multiple offenses should be calculated separately. For example, say a judge enhances the sentence of one offense based on "acquitted conduct" but not the other sentences of an offense? If the conviction for one of those otehr offense is later overturned on appeal, how does that affect the sentence for the offense that was affirmed? I don't see the relationship between the Senate Report's suggestion on how sentences should be calculated and considerations of "acquitted conduct"

10) Aside from "acquitted conduct", are there other considerations (race, gender, religion aside) that judges should not consider

11) Can you identify any historical evidence that suggests that at the time of the founding judges could not consider acquitted conduct during sentencing? And even if the sentencing regimes at that time were generally non-discretionary in nature, at the point that states and/or the federal government began employing discretionary systems were judges forbidden from considering "acquitted conduct" at sentencing?

12) Is Williams v. New York still good law - specifically in terms of its language suggesting that judges enjoy broad discretion at sentencing and may consider virtually anything at sentencing?

Hopefully you will find some of these helpful -- though I am sure you have considered all of this before. I think the bottom line is you need to give the judges (question 6) a rule on which they hang their hats. I don't think it's enough to say "it's unfair."

Posted by: Alex | Jun 3, 2008 1:09:27 PM


What a great opportunity, and I'm glad you are the one doing it. I suspect that many of the questions will focus on the basic point of real conduct sentencing-- wouldn't restricting consideration of acquitted conduct undermine the element of real conduct sentencing that is part of courts' discretion in both guideline and non-guideline systems? That is, they may construe it as an undue curtailment of judicial discretion by looking back to pre-guideline practices, where such conduct could be considered, a practice that was not changed by the imposition of the guidelines.

Posted by: Mark Osler | Jun 3, 2008 3:22:49 PM

Real conduct sentencing? Sounds like an excuse to be intellectually dishonest.

Thanks for doing this Doug. You're the perfect person to make the argument successful.

Posted by: babalu | Jun 3, 2008 3:37:52 PM

Is there or will there be an audio file of the oral arguments?

Posted by: George | Jun 3, 2008 11:54:27 PM

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