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June 13, 2006

Former Atlanta mayor sentence increased on acquitted conduct

As noted here, in March former Atlanta Mayor Bill Campbell was convicted on three counts of tax evasion, but acquitted on four corruption charges.  At the time, I suggested prosecutors might not be too disappointed by the split verdict because federal law suggests Campbell could still be sentenced, notwithstanding the acquittals, for his alleged corruption.

Today, Campbell was sentenced to 30 months imprisonment, and this CNN.com story indicates that his sentence was based in part on acquitted conduct:

U.S. District Judge Richard Story praised Campbell, 53, for two decades of public service but said he could not ignore his crimes....  Story also cited $45,000 in kickbacks he said Campbell received from a city contractor, even though the jury found that Campbell had not taken the money. "Within my heart, I am not sure you have accepted responsibility for what happened," the judge said Tuesday.

Campbell, dressed in a dark suit and tie, his wife seated behind him, had no immediate response. Later, he said he "disagrees vehemently" with the sentence.  "This is not justice.  We will appeal," he said.  "We are very confident that we will prevail on appeal." "I've never betrayed the public trust and the jury found that way," Campbell added.  He described the sentence as "an attempt to undo the jury's verdict."

David Nahmias, U.S. attorney for the Northern District of Georgia, disagreed. "We respect the jury's verdict." he said. "The jury found him guilty of three serious tax felonies." He called the sentence "a fair result" and added, "I'll tell you today that his appeal will ultimately be denied."

Within my heart, I am sure this case shows that some judges are not eager to accept responsibility for jury determinations.  Indeed, whenever federal sentencing courts rely on acquitted conduct to enhance sentences, I always wonder (1) whether the Framers would have been proud of, or could have even imagined, federal judges increasing sentences based on conduct underlying jury acquittals, and (2) whether the majority of Americans now would be proud of, or even know about, federal judges increasing sentences based on conduct underlying jury acquittals.

Some posts on acquitted conduct and related issues:

June 13, 2006 at 08:46 PM | Permalink


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Tracked on Jun 13, 2006 11:02:57 PM


I see that Campbell explained his feeling of injustice in his sentence, and that this was "an attempt to undo the jury's verdict."

His and your remarks remind me of Chief Justice Hug's concurring opinion in United States v. Putra, 110 F.3d 705, 706 (9th Cir. 1997) (Hug, C.J., concurring). Chief Judge Hug wrote:

"One wonders what the reaction of the jury would be if the jurors were told at the outset, 'If you convict the defendant on one charge, but acquit her on the other, the judge, utilizing a different burden of proof, can sentence the defendant as though you had convicted her on both.' Would this resonate with the jury as being fair to the defendant, worthwhile of their time and effort, and instill respect and admiration for our system of justice? I seriously doubt it. The man on the street would be quite surprised to learn that our present guideline approach to sentencing permits a person to be charged with two offenses, convicted of one, acquitted of the other, and yet be sentenced as though he had been convicted of both. Sentencing on the basis of acquitted conduct gives the impression of a judge being able to second-guess a jury that has acquitted a defendant, despite our explanations about burdens of proof."

One current federal prisoner described his sentencing enhancement for acquitted conduct by stating: "No other word suffices for it, than ambushed.” See http://sentencing.typepad.com/sentencing_law_and_policy/files/prisoner_retroactivity_plea.doc

While I do not know the facts of Campbell's case and therefore express no opinion on how "just" the sentence is, I think we should all question the legitimacy of using acquitted conduct at sentencing. Such a practice only serves to erode respect for the criminal justice system among citizens and - possibly even more importantly – prisoners.

Posted by: | Jun 13, 2006 9:52:36 PM

In federal court, after trial a defendant may be sentenced to uncharged conduct, non-criminal conduct and even acquitted conduct. Former Mayor Campbell was convicted on three counts of tax evasion and acquitted on four, what if he had been acquitted on six and convicted of one count, would the sentence have been different? What if Campbell were acquitted on all seven counts could the judge say “Hold’em up here, we got sentencing to do now” and take Campbell’s PSI and determine on a preponderance of the evidence that Campbell was not found innocent, thereby sentencing him on all conduct in the PSI, relevant or otherwise. If a judge cannot pass judgment and punishment on a man acquitted of all counts, how then can he imprison a man acquitted on a majority of the counts. The United States Supreme Court must not allow “a defendant’s only constitutional right concerning the method of trial … an impartial trial by jury” to become nothing more than the opening ceremony to the main event; the sentencing hearing, id. Singer @ 36, where, with the absence of the jury and its corresponding finding beyond a reasonable doubt, the courtroom integrity as the showplace of fairness will deteriorate to a circus sideshow of the Sentencing Hearing.

Posted by: Barry Ward | Jun 14, 2006 7:50:05 AM

I am no apologist for the Federal Sentencing Guidelines -- I think they're horrible -- but these posts on acquitted conduct totally miss the point.

In a traditional sentencing system, the statute would provide a very wide range of possible sentences. The sentencing judge would inquire into the whole range of the defendant's conduct to decide whether to impose the minimum, the maximum, or something in between. There was no formal burden of proof, as such, but the judge was clearly permitted to conclude that a defendant had done certain things on a "preponderance of evidence," and on that basis, to impose a harsher sentence for the crime(s) of conviction. The sentence was virtually unreviewable.

In the present cases, defendants are not being sentenced for acquitted conduct as if the jury had in fact returned convictions. Rather, judges are doing what they have always done: For the crimes of conviction, imposing a harsher or less-harsh sentence based on the full range of the defendant's conduct. The burden of proof for that inquiry is, as it has always been, less than required for conviction.

And remember, when a jury returns an acquittal, it is not saying that the defendant is innocent. It is saying that the evidence of his guilt is not beyond a reasonable doubt. In a proceeding with a lower standard of proof, the result of the inquiry may well be different. Just ask O. J. Simpson.

Posted by: Marc Shepherd | Jun 14, 2006 10:33:34 AM

I will bow to the great dissenter who recognize the unconstitutional nature of the Gudelines years ago to answer Mark;
DISSENT: GILBERT S. MERRITT, Chief Judge, dissenting. Our court treats the U.S. Sentencing Guidelines as the equivalent of a statute instead of the questionable rules of an administrative agency which has ignored many of the provisions of its governing statute. The Court holds that the "relevant conduct" provisions of the Guidelines are absolute sentencing "imperatives" to be applied automatically without deviation and that they treat "success and failure [in criminal activity], conviction and no conviction alike." n1 Although the Sentencing Commission and its chairman consistently refer to these "relevant conduct" provisions as the "cornerstone of the federal sentencing guidelines," n2 the Sentencing Reform Act of 1984, the Act which authorized the Guidelines, does not expressly mention or authorize any such [**31] provisions. n3 As I shall try to make clear below, I do not believe that Congress authorized the type of "relevant conduct" provisions adopted by the Commission and sweepingly applied by our Court here; and I further believe that these provisions have led to a system of criminal sentencing in the federal courts that offends due process and other constitutional provisions. Our Court's sweeping interpretation of § 1B1.3 n4 of the Guidelines respecting the so-called "relevant conduct" enhancement-of-sentence and upward adjustments provisions violates, in my opinion, the unambiguous language of key sections of the Sentencing Reform Act of 1984, 28 U.S.C. § 994(d), and 18 U.S.C. § 3553(a), and the Due Process Clause of the Fifth Amendment. U.S. V. Davern 970 F.2d 1490

Posted by: Barry Ward | Jun 14, 2006 11:10:30 AM

Judge Merritt's dissent is interesting, but surely the relevant point is that he did not persuade a majority of his colleagues that it was legally correct.

Posted by: Marc Shepherd | Jun 14, 2006 12:31:41 PM

In one sense, I certainly understand the truth of Mark's statement that "judges are doing what they have always done: For the crimes of conviction, imposing a harsher or less-harsh sentence based on the full range of the defendant's conduct."

But in another sense, I think there is something fundamentally different about a judge being REQUIRED to enhance for acquitted conduct based upon the lower standard of proof (as is the situation today), and a judge feeling like the full conduct was bad enough to warrant a harsher sentence and deciding at his own discretion to impose a longer sentence (as was the situation in the past, described by Mark above).

Booker could have helped this by eliminating the mandatory nature of the Guidelines. But judges are still required to calculate an accurate guideline range, which requires the inclusion of acquitted conduct. And as interpreted by Circuit Courts, the guidelines are not truly "advisory."

In essence, if the legislature wants to specify the amount of punishment for a crime, then I don't believe the legislature should require that punishment to increase based on acquitted conduct. However, if the legislature wants to leave it to the discretion of the judge on what the sentence for a crime should be, then the judge can consider whatever factors he/she wants (save suspect classes).

Posted by: | Jun 14, 2006 1:53:47 PM


What your comment about traditional discretionary sentencing completely misses was that it was developed with the express goal of crafting rehabilitation-oriented sentences (for the benefit of the defendant and society). When the avowed goal of the sentencing judge was to craft the best rehab sentence, considering acquitted conduct can perhaps be justified.

But our modern systems, even when retaining some discretion for judges, typically are not about rehab, but a range of other sentencing goals. The (policy and constitutional) justification for considering acquitted conduct in modern punitive sentencing systems is much, much weaker.

Moreover, beyond the change in sentencing philosophies, the fact that judges may have traditionally considered acquitted conduct does not mean they still should (or that it is constitutionally sound). Sentencing judges have also long considered (unconsciously if not consciously) the skin colors of the criminal and the victims. Would you make the same arguments for now regulating that traditional reality through formalized sentencing rules?

Posted by: Doug B. | Jun 14, 2006 2:15:23 PM


Even under a non-sentencing guidelines system, most appellate courts would have considered it an abuse of discretion to expressly base a sentencing within a permitted broad sentencing range based upon acquitted conduct.

Now, this, of course, permitted deceptive tactics by judges who could blame a defendant's bad attitude or the gravity of the crimes of conviction or what have you for a sentence. But, as difficult to police as it was, the black letter standard, at least, was that a judge was sentencing for the crime of conviction.

Allowing a judge to sentence for acquitted conduct undermines the integrety of the jury system in the tiny percentage of cases that even go to trial and is inherently biased in favor of the prosecution in a way that deeply chills the right to a jury trial at all.

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