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July 17, 2009

Judge Bright urges SCOTUS attention to acquitted conduct enhancement

In US v. Papakee, No. 08-2032 (8th Cir. July 17, 2009) (available here), Judge Bright writes separately to a panel opinion affirming a long sentence in a sex offense case in otder to reiterate forcefully his view that acquitted conduct enahncements are unconstitutional.  Here is part of his effort:

I concur, rather than dissent, because I am bound by prior decisions of this circuit that expressly permit a district court to use acquitted conduct at sentencing.... But I am aware of no post-Booker authority from the Supreme Court that authorizes the use of acquitted conduct.[FN3]

Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J., concurring) (noting the Supreme Court’s affirmation of the centrality of the jury in the criminal-justice system and that “[a] judge violates a defendant’s Sixth Amendment rights by making findings of fact that either ignore or countermand those made by the jury”).  I also believe that use of acquitted conduct to enhance a sentence violates the Due Process Clause of the Fifth Amendment. See id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ undermines the notice requirement that is at the heart of any criminal proceeding.”).

I will not repeat here my concurrence in Canania.  But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

[FN3] And in United States v. Booker, 543 U.S. 220, 240 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157 (1997) as holding only that “the [Fifth Amendment’s] Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.”  But our court has interpreted Watts’s narrow holding as applying to the use of acquitted conduct more broadly.  See, e.g., United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998).  It is clear to me that the myth of Watts has outgrown its actual holding.  Stated plainly, Watts does not immunize the use of acquitted conduct from a challenge under the Sixth Amendment or the Due Process Clause of the Fifth Amendment.

July 17, 2009 at 12:36 PM | Permalink

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Is there a good working definition of "acquitted conduct"?

Posted by: federalist | Jul 17, 2009 1:02:48 PM

Even more troubling than the aquitted conduct enhancement, at least to me, are these general verdicts you see in so many cases. A jury should have to state exactly what theory of offense they convict under when the statute admits of different readings. And they should have to be in agreement as to which of those elements they actually do agree on.

Plus, I really am not sure even Scalia would stay onboard for removing AC from sentencing, from what I can tell once guilt has been determined he really doesn't care where the sentence ends up so long as it is within the statutory range. I just don't see the formalists caring here.

Posted by: Soronel Haetir | Jul 17, 2009 1:23:20 PM

federalist, if I understand correctly, it means any "not guilty" verdict by the jury, but it should be expanded to mean anything other than conviction whether jury or plea deal.

It is inconsistent that non-convictions can be used for sentencing but only a conviction should be used to enhance a sentence, by, say, using the categorical approach. Either a conviction is a conviction or it isn't and any non-convictions no matter how transpired should not be presumed to be convictions for any purpose.

Posted by: George | Jul 17, 2009 2:02:52 PM

I have a feeling that the definition of acquitted conduct wouldn't be so easy because of the myriad factual permutations.

Posted by: federalist | Jul 17, 2009 2:17:29 PM

I think you a right, federalist, that "acquitted conduct" can be a difficult concept to define precisely. But so is loss and relevant conduct and so many other terms used in our modern sentencing universe. And the fact it is hard to tell what fits this label does not mean there isn't something worrisome about the fact that a person can be acquitted on certain charges and then sentenced by a judge without giving any respect to the jury's work.

Posted by: Doug B. | Jul 17, 2009 2:53:37 PM

Here is my understanding of it:

Let’s say you’ve been convicted of a crime for which the statutory punishment range is probation to 20 years behind bars. Somehow, the judge needs to decide where you belong on that continuum. In so doing, he is permitted to consider any available information about you or your offense (other than illegal factors, such as race). The standard of proof for the factors the judge may consider at sentencing is merely a preponderance of the evidence. It is therefore possible that an accusation that the government failed to prove by a reasonable doubt, is nevertheless admissible at sentencing, where a much lower standard of proof is required.

As a matter of policy, I think it is morally repugnant that acquitted conduct is used in the Guidelines calculation. However, as a matter of Constitutional interpretation I can understand why it is permitted, because judges have never been required to find beyond a reasonable doubt the facts they rely on in fashioning a sentence.

Posted by: Marc Shepherd | Jul 17, 2009 2:54:57 PM

"We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit." Not to nitpick, but aren't we always taught that a jury does not determine that the crime was not committed, only that the government failed to prove that it was committed?

BTW, I largely agree that the use of acquitted conduct can and does raise serious concerns under both the 5th & 6th Amendments (and that in my experience, jurors are quite outraged when they learn about it).

Posted by: Clerky McClerk | Jul 17, 2009 3:00:28 PM

"Worrisome" is not a synonym for "unconstitutional" and isn't this issue really optics more than anything else? Would something in the guidelines that required a judge to explain in detail why he's using "acquitted conduct" get the job done from a fairness perspective?

Posted by: federalist | Jul 17, 2009 3:21:01 PM

The original statement is doubly wrong. As Clerky noted, juries don’t find defendants innocent, they merely find that the government failed to establish their guilt beyond a reasonable doubt. (The one time I served on a jury, we all believed that the Defendant was probably guilty; we just found the evidence shy of the reasonable doubt standard, and so we acquitted.)

The other point is that the Guidelines do not punish the defendant for acquitted conduct. If the convicted offense carries a max of 5, and the acquitted offense carries a max of 10, the judge still can’t give more than 5. However, he can give something nearer the top end for the crime(s) he was actually convicted of.

Posted by: Marc Shepherd | Jul 17, 2009 3:22:07 PM

Defendant A is clearly guilty of crime X and suspected of crime Y, but the prosecutor can't quite prove Y beyond a reasonable doubt, so he doesn't charge it. At sentencing, he presents clear and convincing evidence (but not BRD) that defendant committed crime Y. Can the judge consider Y to decide the sentence within the allowable range for X?

Defendant B is similar, but the prosecutor decides to go for it anyway. The jury, like Marc's jury, finds the evidence a tad shy of BRD and acquits. Can the judge consider Y in sentencing for X?

Unless we are prepared to impose the BRD standard on all facts used for sentencing (which seems to be George's proposal), acquitted conduct proven by a preponderance should be considered the same as never-charged conduct proven by a preponderance.

Posted by: Kent Scheidegger | Jul 17, 2009 4:35:56 PM

Marc, if the only reason for enhancement is the acquitted conduct, isn't the judge finding facts not found by the jury? And if that finding is based on jury-found acquitted conduct, isn't that a violation of the separation of powers in the sense that the jury (the People) acquitted? The notion that the jury did not find the defendant factually innocent seems to be a violation of that principle if the judge says the acquitted conduct is enough to enhance the sentence. It makes an assumption based on facts not found by the jury. Didn't Cunningham find the judge could not enhance the sentence even though the legislature allowed for enhanced sentences at the discretion of the judge? How is this any different?

Posted by: George | Jul 17, 2009 4:55:40 PM

Also, how would this entire system fare if instead of the judge using preponderance with substantial deference it were to use C&C coupled with de novo review when considering conduct the jury aquitted on?

I also think it would be interesting to see what kinds of sentences federal cases would result in if juries were given the power to set sentences within broad ranges as I believe Texas does in many cases.

Posted by: Soronel Haetir | Jul 17, 2009 5:25:05 PM

Playing devil's advocate here, Kent, shouldn't some deference be given to the jury's verdict, given the primacy of the jury trial right? I'm talking from a policy perspective, not a constitutional perspective.

Posted by: federalist | Jul 17, 2009 5:29:29 PM

A few points.

1. As Clerky McClerk notes, Judge Bright's statement that the jury found the defendant "did not commit" the crime for which he was acquitted is flat-out false. Either Bright knows this, in which case he's not being honest, or he doesn't, in which case he is unfit to be a judge (or a criminal lawyer for that matter). I mean, this is absolutely elementary stuff.

2. If Bright's continuous harping on this had merit, you would think his argument would have prevailed in some federal court, somewhere. To my knowledge, it never has. Why does this judge think of himself as so much superior to his colleagues?

3. As Kent points out, the prosecutor has an easy route to avoid any bar that might be placed on the use of acquitted conduct at sentencing: Don't charge the close-to-the-line offenses, and then bring them in under the relevant conduct rule.

4. For those who don't like the relevant conduct rule either, all I can say is that sentencing would be unrecognizable without it. If sentencing should reflect the entirety of the facts about the defendant and his behavior (as most defense lawyers want it to), relevant conduct has to part of the mix. Congress, in adoptng the SRA, wanted to preserve a real offense system, and the relevant conduct rule is key to doing that.

5. There was a choice to be made in Booker as to the remedy. The Court could have required sentencing facts to be proved BRD, or it could make the Guidelines advisory. Unwisely in my view, it chose the latter. But that's it. The defense doesn't get two remedies.

Of course, under Apprendi, if the government wants to push the sentence above the statutory maximum, it certainly IS required to prove the enhancing factor or factors BRD. But if the question is where, within the statutory limits, the sentence should fall, Booker's refusal to require proof BRD constitutes a forceful, albeit implicit, rejection of Bright's idea that proof BRD is required.

Posted by: Bill Otis | Jul 17, 2009 5:32:32 PM

I neglected to note one point on which I agree with Bright. Like him, I hope the Supreme Court takes up this issue. Right now, I count six votes on the government's side: Roberts, Scalia, Kennedy, Thomas, Breyer and Alito. (Breyer has been a big real offense supporter for at least 25 years). Sotomayor is 50-50. Ginsburg and Stevens are probably voting for the defense.

Posted by: Bill Otis | Jul 17, 2009 5:45:10 PM

At the end of the day Bill, an opinion has to be written. It's hard to come up with a rationale that "acquitted conduct" (whatever that is) being used in sentencing against the defendant is unconstitutional. "It's not fair" is not much of an argument.

Posted by: federalist | Jul 17, 2009 5:48:20 PM

I think Marc has it right. I am deeply troubled by the use of acquitted conduct at sentencing, if for no other reason than because I find it inevitably diminishes respect for the criminal judicial process in the lay public when they discover that it hardly matters what counts a defendant is convicted of, so long as he is convicted of one. And yet, despite my distaste for it, I do not think it is unconstitutional.

But federalist also makes a good point about deference to the jury from a policy perspective even if there are no constitutional infirmities in the current system. What is really bothering us here, I think, is a constitutional _value_, not a constitutional _rule_. And so the best approach might be to incorporate into sentencing procedure (possibly by amendment to the section 3553(a) factors) a requirement that the sentencing judge consider "the weight to be accorded to the jury's verdict with respect to any counts on which the defendant was found not guilty." Procedural reasonableness would then require some effect to be given to the jury's verdict, but a judge would remain able to conclude that the evidence was sufficient to hold the defendant accountable for the acquitted conduct.

Posted by: Matthew G. | Jul 17, 2009 5:53:18 PM

amend the beginning of that last sentence to say "Procedural reasonableness would then require some _consideration_ to be given..."

Posted by: Matthew G. | Jul 17, 2009 5:54:43 PM

federalist --

I don't even think it's unfair. This is where it's crucial to bear in mind that a verdict of not guilty does NOT mean the jury has concluded that the defendant didn't do it. It could just as easily be a result of sympathy, compromise, haste, dislike of the prosecutor, soft-core nullification, and a bunch of other things.

Sentencing all the time depends on elements that not only are not proven BRD, but aren't "facts" at all, as that word is commonly understood. The most striking example of this is the sentencing court's consideration of the defendant's attitude. This does, and should, play a major role in what the sentence turns out to be, but it is necessarily more an impression than a fact, and in no event can it be "proved" (whatever that would be) BRD. Notwithstanding this, no serious person thinks that a defendant's attitude should have no role in determining his sentence, and many, me included, think it should have a major role.

Posted by: Bill Otis | Jul 17, 2009 6:08:21 PM

I would also add that I do have problems with the whole line that "not guilty" means just that. Since jurors must be unanimous in order to end jeopardy I beleive their finding should be given more weight than the words alone would indicate.

Now, if the system were set up such that a non-unanimous verdict still ended jeopardy on a particular count I might find the argument about "not guilty" more persuasive. I find that even more troubling since some states allow non-unanimous convictions, but none so far as I know end all jeopardy on less than unanimous finding of not guilty. (Regardless of whether prosecutors are likely or not to retry a case where a first jury came out heavy against them.)

Posted by: Soronel Haetir | Jul 17, 2009 6:09:06 PM

Bill, given a regime of multiple counts etc., in some cases it could be seen as "unfair" as it has a practical effect of undermining a BRD standard in a case where the prosecution throws the kitchen sink at a defendant. Like I said, no constitutional issue.

Posted by: federalist | Jul 17, 2009 6:20:46 PM

All you fans of acquitted conduct miss the import and significance of a prosecutor's decision to formally charge, seek to try, and then fail to convict on certain counts. The prosecutor's decision to charge additional counts gives him lots of extra power throughout the criminal process --- more leverage for plea bargaining, more basis for admission of additional aggravating evidence at trial, and more of a likelihood for getting some kind of guilty verdict because even a jury eager to acquit will want to give the prosecutor something. The curse of "acquitted" conduct (as opposed to just "uncharged" conduct) is that the prosecutor gets all these benefits from the additional charged counts and then faces NO real sentencing consequence when a jury rejects these added charges as long as he gets a conviction on some count with a decent statutory max.

In other words, the REAL problem with acquitted conduct sentencing rules is that it gives prosecutors an extra incentive (and no disincentive) to overcharge. Especially in a federal system in which so many crimes can be charged in so many ways, this is a BIG problem in my view. I think this problem is of constitutional significance (especially if one is an originalist and realize the Framers generally were accustomed to fixed sentences for particular crimes), though I know well the standard arguments the other way. Even if it is not constitutionally problematic, I think a fair reading of the provisions of 3553(a) should make the practice at least suspect to a true textualist.

Of course, in this arena as in many others, many folks who claim to be committed to originalism and textualism conveniently do not worry too much about these matters if they serve a criminal defendant's interests. To their credit, Justice Scalia and Thomas often stick with these principles in this context, though far too many of their fans do not.

Posted by: Doug B. | Jul 17, 2009 10:25:29 PM

Doug --

1. What words in the Constitution prohibit, or imply prohibition, of the use of acquitted conduct at sentencing?

One would think that, if there were any such words, they would be found in the Double Jeopardy Clause. But in Watts, the Court held otherwise. Justice Thomas was with the majority, as was Justice Scalia, who also concurred in an opinion that was more pointed than the Court's.

2. It's a novel theory that sentencing should address, not the behavior and circumstances of the defendant, but the balance of tactical advantage in the stages of the legal process leading up to sentencing. If, as is commonly believed, the purposes of sentencing are just punishment, deterrence, incapacitation and (if possible) rehabilitation, how the lawyers battle it out could hardly be less relevant.

3. I'll bet you $100 right now that, if and when an acquitted conduct challenge comes before the Supreme Court, both Thomas and Scalia will vote with the government.

Posted by: Bill Otis | Jul 17, 2009 11:54:10 PM

Article Three, Section 2:

"Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Since Article Three established the judicial branch, the jury is an independent member of the judicial branch. There is, it could be argued, a separation of powers within the judicial branch itself.

Since the trial of "all crimes...shall be by Jury" the judge is not the jury and cannot usurp the power of the jury without the defendant's waiver of a jury trial. It would follow the judge cannot find other facts, other than the fact of prior conviction, that would be under the jury's finding of guilt powers. But even the fact of a prior conviction must be proved BRD. It makes no sense that acquitted conduct need not be.

Posted by: George | Jul 18, 2009 1:55:11 AM

Bill Otis wrote: "1. As Clerky McClerk notes, Judge Bright's statement that the jury found the defendant "did not commit" the crime for which he was acquitted is flat-out false. Either Bright knows this, in which case he's not being honest, or he doesn't, in which case he is unfit to be a judge (or a criminal lawyer for that matter). I mean, this is absolutely elementary stuff."

Actually, if we're speaking legally (and I hope we are here), if a jury acquits, it means exactly that the person "did not commit" the crime. That person is legally innocent, which means, to any judge (a legal professional acting in a legal capacity), he didn't do it.

Bill Otis wrote: "2. If Bright's continuous harping on this had merit, you would think his argument would have prevailed in some federal court, somewhere. To my knowledge, it never has. Why does this judge think of himself as so much superior to his colleagues?"

I wouldn't think that. As Judge Bright stated, most appellate courts have completely misinterpreted Watts to preclude constitutional challenges to sentencing enhancements based on acquitted conduct, even though Watts plainly only dealt with a specific constitutional provision. The real problem here is that must judges are inclined to vote against criminal defendants, and to find legally dubious ways of doing it.

Bill Otis wrote: "3. As Kent points out, the prosecutor has an easy route to avoid any bar that might be placed on the use of acquitted conduct at sentencing: Don't charge the close-to-the-line offenses, and then bring them in under the relevant conduct rule."

That rule will have to go likewise. Defendants should be punished based upon criminal conduct proved to a jury, not non-criminal conduct (which, by definition, is any conduct not proved to a jury beyond a reasonable doubt), in conjunction with their background and other mitigating circumstances.

Bill Otis wrote: "4. For those who don't like the relevant conduct rule either, all I can say is that sentencing would be unrecognizable without it. If sentencing should reflect the entirety of the facts about the defendant and his behavior (as most defense lawyers want it to), relevant conduct has to part of the mix. Congress, in adoptng the SRA, wanted to preserve a real offense system, and the relevant conduct rule is key to doing that."

I don't think so. Criminal offense + mitigating circumstances is all that is constitutionally permissible. A judge can ratchet down, he/she cannot ratchet up. If the government wants to use facts to punish somebody, it should prove those facts to a jury beyond a reasonable doubt.

Bill Otis wrote: "5. There was a choice to be made in Booker as to the remedy. The Court could have required sentencing facts to be proved BRD, or it could make the Guidelines advisory. Unwisely in my view, it chose the latter. But that's it. The defense doesn't get two remedies.

"Of course, under Apprendi, if the government wants to push the sentence above the statutory maximum, it certainly IS required to prove the enhancing factor or factors BRD. But if the question is where, within the statutory limits, the sentence should fall, Booker's refusal to require proof BRD constitutes a forceful, albeit implicit, rejection of Bright's idea that proof BRD is required."

The problem here is that we're obviously not done, as far as the Sixth Amendment goes. I agree that Booker is wrongly decided in this respect, and it will have to be reversed in that respect. Particularly this statement, which is plainly wrong: "For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." If Congress were to make theft of a popsicle punishable between 1 month and 1,000 years in prison, and a judge were to consider whether Defendant X, accused and convicted of stealing a popsicle, had murdered somebody by a preponderance of the evidence as a basis for imposing a 999 year sentence rather than a one month sentence, nobody would dispute that this constitutes a Sixth Amendment violation.

The Sixth Amendment requires that courts look at what judges are in fact punishing for. Regardless of whether it's acquitted conduct or merely uncharged conduct that constitutes a crime, a defendant cannot be made to serve an increase in punishment beyond what the judge would otherwise have imposed without the elements of that crime having been proved to a jury beyond a reasonable doubt. This usurps the jury's role and violates the Sixth Amendment, regardless of what Congress has said about the range of punishment.

Posted by: DK | Jul 18, 2009 2:47:34 AM

Judge Bright is one of the best appellate judges in America.

Posted by: mpb | Jul 18, 2009 5:20:00 AM

I agree with much of what Doug has to say--it is consistent with my earlier comment.

Where I part company is his constitutional issue. Yes, the Framers probably didn't anticipate the massive number of counts etc. or the complexity of many federal criminal statutes. But they probably didnt anticipate the modern administrative state either. Thus, Doug's hand-wringing over the constitutionality of this seems a wee bit misplaced, although with Stevens, Ginsburg and Breyer, hope springs eternal. After all, if it suits their fancy, they make something up. (I suspect Sotomayor will be the same. She's pretty dumb--as compared to your average Supreme Court Justice--so she may wait a while before she spreads her wings.)

Bill doesn't address the policy issues with acquitted conduct sentencing. I don't have a huge problem with it. But there is possibility for unfairness, and that may need some addressing.

Posted by: federalist | Jul 18, 2009 11:17:19 AM

Does anyone else think the other side of the acquitted conduct coin is ESTELLE v. McGUIRE, 502 U.S. 62 (1991)?

"McGuire first claims that the instruction directed the jury to find that he had caused the prior injuries, thereby effectively taking that question from the jury. One might argue that the "two offense[s]" referred to in the instruction were McGuire's pinching of the child's cheeks and the lifting of the child by her arm. When read in context, however, we conclude that the most likely interpretation is that the reference was to the rectal tearing and fractured ribs. McGuire argues that, despite the lack of any direct evidence linking him to those injuries, the instruction directed the jury to find that he had committed them. This claim is clearly foreclosed, however, by the language of the instruction. The challenged portion of the instruction included the words "if the Defendant committed other offenses." App. 41. By including this phrase, the trial court unquestionably left it to the jury to determine whether McGuire committed the prior acts; only if the jury believed he was the perpetrator could it use the evidence in deciding whether McGuire was guilty of the crime charged."

Given this opinion, including some hard to read facts, it does not seem likely the SCOTUS will change acquitted conduct rules any time soon. Congratulations to Mr. Scheidegger for the victory.

Posted by: George | Jul 19, 2009 1:33:06 AM

Doug,
There are problems with acquitted conduct. But I don't think it gives prosecutors an incentive to overcharge or undercharge because they may bring in the same conduct at sentencing as "unindicted conduct". The problem with Judge Bright's concurrence (though I am sypathetic to it) is that neither Williams nor McMillian have been overruled or limited post-Apprendi/Booker. And so to me it's a strawman's argument to say that there is "no post-Booker" cases that expressly permit the use of acquitted conduct. I believe the 5A "notice" aspect is stronger than the 6A argument because juries don't "expressly find facts." And so the judge is not necessarily ignoring factual findings of the jury. Moreover, there's the issue of evidentiary burden - juries need to find facts beyond a reasonable doubt whereas judges need not at sentencing. For those reasons, I find the "notice" argument more compelling because being acquitted of certain charges should tell the defendant "that conduct is off the table" for the purposes of sentencing. I acknowledge in the end the result would be same - but to me the 5A argument has greater intuitive and intellectual appeal.

Posted by: alex | Jul 20, 2009 9:56:30 AM

We've had this debate before.


See, e.g.,

http://sentencing.typepad.com/sentencing_law_and_policy/2008/12/sixth-circuit-finally-issue-en-banc-opinion-on-acquitted-conduct-enhancement.html

Posted by: anonymous | Jul 20, 2009 11:25:09 AM

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