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September 4, 2008

Second Circuit affirms sentence increased over 16 years based on acquitted conduct

Though obscured by other issues (including mob-related facts) and a complicated discussion of the conspiracy guidelines, it appears that the Second Circuit's decision today in US v. Yannotti, No. 06-5571 (2d Cir. Sept. 4, 2008) (available here), is another case in which a circuit has found reasonable a large sentence increase based on acquitted conduct.  Here are key details from the opinion (set forth here a bit out of sequence for clarity):

The Probation Officer calculated his Guidelines range as 37-46 months’ imprisonment and recommended a sentence of 41 months....

The district court sentenced Yannotti in November 2006 and concluded that conduct which the jury had not found proven by the government should, nevertheless, be considered in calculating his applicable Guidelines range.... Based on this finding, the court calculated Yannotti’s offense level at 36 and his Criminal History Category at Level II, resulting in a Guidelines range of 210 to 262 months. It then sentenced him to the statutory maximum of 240 months’ imprisonment, noting that Yannotti had been a long-time associate of the Gambino Family and had engaged in extensive illegal and violent conduct in furtherance of that enterprise.

We have consistently emphasized that a district court may consider all information adduced during trial, including acquitted conduct, when sentencing a defendant....

The district court was in the unique position to consider the credibility of the witnesses and to conclude, as it did, that two of the government’s witnesses had been particularly credible in their testimony about Yannotti’s participation in the Sliwa kidnaping.  The court appropriately considered the Guidelines and the factors specified under 18 U.S.C. § 3553(a) and sentenced Yannotti within the Guidelines range.  We conclude that Yannotti’s sentence was both procedurally and substantively reasonable.

September 4, 2008 at 11:57 AM | Permalink

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It then sentenced him to the statutory maximum of 240 months’ imprisonment, noting that Yannotti had been a long-time associate of the Gambino Family and had engaged in extensive illegal and violent conduct in furtherance of that enterprise.

Then prove it, you lazy @#$%^.

The district court was in the unique position to consider the credibility of the witnesses

And the jury wasn't? I think I'm going to be physically ill.

Again, just for fun, ask 10 people (including random law students, Doug) if they know they can be sentenced for something the jury unanimously declared they were innocent of. And ALL 10 will call you a liar. All 10. This line of caselaw is a disgrace to our country and an insult to all of those who died to protect our way of life. Thank you Justice Dept. It's time to change your name.

Posted by: babalu | Sep 4, 2008 3:39:22 PM

I guess some would have judicial discretion available only to be used to go below the guidelines.

Posted by: mjs | Sep 4, 2008 4:48:51 PM

I just don't see the problem here. The sentence was within the statutory maximum for the crime. How is that bad?

Posted by: Daniel | Sep 4, 2008 5:05:12 PM

Its not like there isn't a long history of the government taking anything they could get to put Mafia types away - how many people convicted of tax evasion in the 1920s and 1930s got put away for 10 years like Al Capone? How many people got effective life sentences for "compulsory prostitution" like Lucky Luciano got?

I agree that sentences based on acquitted conduct are generally bad but in this case, it looks more like the federal statute of limitations had run (why wasn't he charged under state law with the murders?) than there was a lack of evidence to convict. It seems to be a bit of a misleading statement to call this an acquitted conduct case (while he was acquitted under the substantive RICO claim, it seems that the government did prove beyond a reasonable doubt that he was a ganster involved in loan sharking they just couldn't prove when he was a gangster involved in loan sharking). Not that I think that is a good policy for the government to pursue (and acknowleging that Mafia prosecutions have long featured some of the most questionable government activities including some of the most questionable practices involving snitches) but it seems much more defensible in this case.

Still, I'd rather see the government do a more honest thing such as expanding the statute of limitations on RICO crimes which people could debate publically rather than effectively doing that on a piecemeal basis.

Posted by: Zack | Sep 4, 2008 5:22:00 PM

I guess some would have judicial discretion available only to be used to go below the guidelines.

Guidelines Schmidelines. They are just a jumping of point. Do your analysis and if the recommended sentence doesn't fit the crime then increase it. The Judge has authority to do that, for any number of legitimate reasons. I have no problem with that. But he increased the sentence baed on acquitted conduct. That's not a legitimate reason. The man was acquitted of those charges. And to increase the sentence based on these reasons, even if the current caselaw supports that, is intellectually dishonest and produces nothing but contempt for the court from the general public.

I just don't see the problem here. The sentence was within the statutory maximum for the crime. How is that bad?

So anyone who committed any violation and was sentenced to less than the max has no complaint and should count themselves lucky not to die in a cage?

By the courts' own rules and calculations this guy didn't deserve the max. The Judge used acquitted conduct to increase the sentence. And if you can't see the fallacy of that (whether the end result was under the max or not) then there's nothing I can say to enlighten you. It vitiates the role of the jury completely. What's the point of having a jury system when the Judge (with the DOJ's urging) will just act like the previous trial never even happened and everybody is guilty guilty guilty regardless of jury verdicts.

Posted by: babalu | Sep 4, 2008 6:01:27 PM

Maybe I just don't understand but I don't believe that the judge is finding him guilty. Are you saying the the acquitted conduct which the judge used to enhance his sentence goes on his record like the crime he was convicted of by the jury? That's not my understanding. My understanding is he is not being found guilty of acquitted conduct for any purpose other than sentencing. If that is true, then it's nonsense to say that this corrupts the jury system. The jury found him not guilty and he is not guilty. That the judge found him guilty for sentencing (which is the judge's purview) has no impact on the jury system at all; the jury's duty is over and has been faithfully discharged.

Again, maybe I just don't understand what you mean when you say he is being found guilty.

Posted by: Daniel | Sep 4, 2008 10:51:49 PM

Daniel,

To get it, ask the jurors what they think of a sentence enhancement based on charges they found the defendant innocent of. No guilty means not guilty and there should be no punishment when someone is not guilty. What the sentence really means is that the government didn't have the evidence it needed to get the sentence it wanted. How can that possibly be a reasonable sentence under due process, fair trial and trial by jury constitutional principles?

Posted by: George | Sep 4, 2008 11:06:49 PM

Daniel wrote, apparently seriously, "My understanding is he is not being found guilty of acquitted conduct for any purpose other than sentencing." You make it sound as if sentencing is some collateral, unimportant proceeding which will have no effect on the accused's life. Most of us think that may be more than a little off base.

Posted by: D | Sep 5, 2008 8:56:05 AM

D. Here's my confusion. Let's assume that two crimes have been committed. The both crimes carry a 5-10 year sentence if the defendant is found guilty. After a trial, the jury find him guilty on count one but not count two. The judge then has to sentence between 5-10 years for the count on which he was found guilty.

The judge then looks at the facts of the trial. He thinks to himself, "Hmmm. I have to sentence him between 5-10 years. That's all of got. But I really don't agree with the jury's acquittal on count two. I think he's guilty. Now, normally I would sentence him to five years for each count, but since I have only one count to work with I'm going to sentence him to 10 years."

In the scenario, he's still only been found guilty by the jury once. If someone pulls up his felony record it is still going to show only one conviction. I honestly find it puzzling how babalu can say that the judge's sentencing "vitiates" the jury's role. If I said to the jury, "you convicted him on one count and the sentence was 5-10 years. The judge now sentenced him to ten years," I can't imagine a rational jury having a problem with that and I utterly fail to see how they would think their role had been invalidated.

Posted by: Daniel | Sep 5, 2008 2:57:36 PM

Daniel wrote: "In the scenario, he's still only been found guilty by the jury once. If someone pulls up his felony record it is still going to show only one conviction."

Sure. But he's being punished for two, despite having been convicted of only one. This blatantly contravenes the Sixth Amendment right to have a jury find guilt beyond a reasonable doubt before punishment may be imposed. What you are failing to understand is that the acquitted conduct is being affirmatively used to increase punishment beyond what it would have been but for consideration of that acquitted conduct. That's all that matters for the Sixth Amendment.

Posted by: DK | Sep 5, 2008 9:56:01 PM

DK

Such a scenario falls implicitly within the judicial discretion liberals so desperately desire.

Posted by: MJS | Sep 6, 2008 11:55:14 AM

It falls implicitly within judicial discretion to violate the Sixth Amendment? I don't think these so-called desperate liberals desire that at all.

Posted by: babalu | Sep 7, 2008 1:18:53 AM

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