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October 6, 2006

A terrific district court opinion on acquitted conduct

Regular readers know that I find puzzling — and especially troubling after Blakely and Booker — federal approval of sentence enhancements based on acquitted conduct.  (Consider, for example, my sincere questions about acquitted conduct.)  Thus, I am pleased to enter a long weekend by spotlighting a wonderful new district court opinion that thoughtfully explains why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decison-making.

The opinion comes from District Judge Walter Kelley in US v Ibanga, No. No. 2:04cr227 (E.D. Va. Oct. 5, 2006) (available for download below).  There are so many great passages in Ibagna it deserves repeated readings.  Here are just a few highlights:

Sentencing a defendant to time in prison for a crime that the jury found he did not commit is a Kafka-esque result.... [But rather than reach a definitive constitutional ruling on this practice after Booker, the] Court instead concluded that basing defendant Ibanga's sentence on the crimes for which he was acquitted would contravene the statutory factors set forth in 18 U.S.C. § 3553(a)....

Punishing defendant Ibanga for his acquitted conduct would have contravened the statutory goal of furthering respect for the law and would have resulted in unjust punishment for the offense for which he was convicted (i.e., money laundering). 18. U.S.C. § 3553(a)(2)(A). From defendant Ibanga's perspective, a Guidelines sentence would certainly have resulted in confusion as to the law, and confusion breeds contempt.  Defendant Ibanga is an immigrant to this country who has not had the benefit of extensive education, much less an intensive law school seminar on post-Booker sentencing practices.  What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted?  The law would have gone from something venerable and respected to a farce and a sham....

The jury as an institution not only guards against judicial despotism, but also provides an opportunity for lay citizens to become both pupils of and participants in our legal and political system....  A sentence that repudiates the jury's verdict undermines the juror's role as both a pupil and participant in civic affairs. The juror as pupil learns that the law does not value the results of his or her participation in the judicial process and may reject it at will.

Download ibanga_acquitted_conduct.pdf

October 6, 2006 at 04:49 PM | Permalink


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I am a federal district clerk currently working on a case presenting the same issue. Although our circuit caselaw and guidance is obviously different than the Fourth's, the ideas are generally the same. Judge Kelley appears to have done a good job of putting the Fourth Circuit in a tough position, "damned if you do and damned if you don't" as Judge Kelley puts it.

Is this a cert worthy issue? I ask because we are wondering how much to put into our opinion.

Posted by: Michael | Oct 7, 2006 6:36:17 PM

If every district judge thoughtfully explains why he/she won't rely on acquitted conduct, this becomes cert. worthy only if/when the circuits disagree. To date, circuits have merely said the consideration of acquitted conduct is not unconstitutional; they have not said it is unreasonable to refuse to consider acquitted conduct.

In short, put it all in the opinion!

Posted by: Doug B. | Oct 7, 2006 8:13:59 PM

Fundamental Fairness has many masks. It has been supposedly the goal of all Higher Court Judges to overturn convictions and sentences based on the unfair and sometimes unjust decisions made by lower Courts. At the level of the Federal Courts and the State Supreme Courts, the question of using acquitted conduct to enhance a sentence should be a non issue. There are Double Jeopardy issues and Collateral Estoppel. A person should not be subject to punishment on an acquitted charge as that would be putting the person in jeopardy for the prior offense after it reached a final judgement. At which point is a person considered to not have committed the prior crime. The acquittal is a decision reached by 12 people that had the opportunity to view most of the evidence and analyze it yet some years later an individual or another Jury should not be asked to once again judge this person on the prior offenses unless there is a second trial presenting all of the evidence presented at the trial where the defendant was acquitted and that would constitute double jeopardy. There are many innocent people being sent to prison due to the unfairness being excercised by the Prosecutors and the Superior Courts. A past crime should be just that, a past crime, a crime which has reached final judgement and for which the person has been either punished or relieved of punishment. A new crime should be punished according to what its Penal Code dictates. Each crime should have in it its levels of puchishment and other laws adding punishment to all crimes in general should no be enforceable. The levels of each crime should be written in each section where the crime is described along with its punishment.
Some Cases to support ths are: Ashe vs. Swenson 297 US 436; Green VS. US 355,184; US vs. Kessler 530 F.2d 1246; Abney vs. US 431, 651. The cases on this issue are many, however, the consistency in the different Court rulings cannot be ignored. A person acquitted should not be subjected to punichment for the acquitted charges.

Posted by: Peter Navarro | Oct 13, 2008 10:51:08 AM

Why don’t the U.S government do testing on criminals who are going to get electrocuted or sent to death. Instead of testing on animals like monkeys, scientist can test on prisoners. Although monkeys are close to human in DNA, they are not exact with human. Also, human can be more easy control then monkeys.
Is this inhumane you say? Yes, but isn’t it inhumane to put someone in the electrical chair too?

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Posted by: מוסך מאזדה | Jan 6, 2011 6:19:37 AM

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