« Four Former National Century Financial Enterprises Executives Sentenced | Main | Goodbye from the Guest Bloggers »

August 8, 2008

Practitioner’s Note: Acquitted Conduct in the News (Again)

The use of acquitted conduct as a basis for enhancing punishments remains the sentencing issue that won’t go away.  A spate of recent decisions and articles once again brings to the fore the controversy over a practice that already once reached the Supreme Court – where, in United States v. Watts, it was approved – at a time when the guidelines were still mandatory.  The August edition of the ABA Journal, here, prominently features Doug Berman, who is quoted as stating that the constitutionality of the practice has been called into question anew by the Court’s more recent sentencing decisions.  The article discusses United States v. Hurn, a case in which a drug defendant’s guideline exposure was raised from 27-33 months to 16-20 years on the basis of distribution counts of which he was acquitted.  The Supreme Court denied the cert petition, which Doug helped draft.

An article in The Washington Times, here, highlighted another recent decision on acquitted conduct, this one before the Eighth Circuit.  In United States v. Canania, the defendants were convicted of methamphetamine-related offenses and acquitted of possessing a firearm in furtherance of a drug-trafficking crime.  The district court, nevertheless, enhanced their sentences for the gun possession.  Judge Myron H. Bright wrote a separate concurring opinion in order to express his “strongly held view that consideration of ‘acquitted conduct’ to enhance a defendant’s sentence is unconstitutional,” and to urge the Supreme Court to promptly re-examine its continued use.  Judge Bright asked, rhetorically, “what might the man on the street think” of such a practice?  In a footnote, he answered his own question with the remarkable story of a recent trial in Washington, D.C., in which federal prosecutors sought a 40-year sentence against a drug defendant despite the fact that he was acquitted on every charge except a single $600 half-ounce sale of crack cocaine that occurred seven years earlier.  When one of the former jurors on the case learned of the prosecutors’ request, he wrote a letter to the judge, asking: “What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the [U.S. Attorney’s Office] would have liked them to have been found guilty.”

The question of what the man on the street would think raises the possibility of a different kind of challenge to the use of acquitted conduct, one that focuses not on the Constitution, but on Section 3553.  That provision, among other things, requires all sentences to be judged against the enumerated statutory purposes of punishment, which expressly include promoting respect for the law and providing just punishment for the offense.  In certain cases, as the Washington, D.C. juror story demonstrates, a sentence based substantially on acquitted conduct may well promote disrespect for the law, and thereby violate Section 3553.  Doug and a group of Proskauer lawyers (including myself) made exactly this argument in an amicus brief filed with the Sixth Circuit in the case of United States v. White.  The Circuit heard argument en banc on June 4, and a decision is pending.

As the ABA article mentions, if the Sixth Circuit finds that the district court erred in the use of acquitted conduct, it is likely the Supreme Court will have to review the issue again.  Either way, the controversy will likely continue.

Download Canania.pdf

Mark Harris

Proskauer Rose

August 8, 2008 at 07:11 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Practitioner’s Note: Acquitted Conduct in the News (Again):

» Soma. from Soma to florida.
Aura soma bottles. Cheap soma. Soma. Suicide with soma how many does it take. [Read More]

Tracked on Sep 21, 2009 1:42:49 PM


"Either way, the controversy will likely continue." Sadly, I think you are correct in this assessment. My own opinion is that it is a lot of hot air over nothing (welcome to the law!) The fundamental fact that those opposed to acquitted conduct can't get around is the fact that if the judge can't use acquitted conduct to increase the sentence, he/she will find some other excuse (oh, I mean "reason,"). I do concur rationales based upon acquitted conduct can leave the appearance of injustice. But Doug's efforts aside, I frankly think there are much more important legal issues to focus energy on.

Posted by: Daniel | Aug 8, 2008 10:10:38 PM

I tell me friends about sentencing on acquitted conduct and no one knows about it and even more, don't believe me.

If you polled the american public about this issue, 10 out of 10 would say that even the notion of being sentenced based on acquitted conduct is ridiculous and would never happen in this country.

Posted by: babalu2u | Aug 9, 2008 11:36:21 PM

The problem is that the courts have not yet finished working out the architecture of crimes and offenses. Acquitted conduct will continue to be a problem until they complete this task.

Posted by: Tom McGee | Aug 10, 2008 2:46:43 PM

Daniel wrote: "My own opinion is that it is a lot of hot air over nothing (welcome to the law!)" and "if the judge can't use acquitted conduct to increase the sentence, he/she will find some other excuse (oh, I mean "reason,")"

I assume Daniel is a lawyer?

The jury system is such a pain isn't it? I'm sure people like Daniel and all the judges who ignore or manipulate juries (while telling the jurors how important they are) will succeed in eliminating this Constitutional inconvenience. Arbitrary imprisonment, torture and absolute totalitarianism is so much easier -- for those in power, at least.

Are we there yet?

Posted by: gail | Aug 10, 2008 2:53:45 PM

Are we there yet?

Not yet, but whether or not we make it there really depends on who you're going to vote for, doesn't it?

Posted by: babalu | Aug 10, 2008 4:43:24 PM


Canania was discussed last month on this blog...

Posted by: | Aug 11, 2008 5:01:34 PM

"If you polled the american public about this issue, 10 out of 10 would say that even the notion of being sentenced based on acquitted conduct is ridiculous and would never happen in this country."

And you are right. I blogged about it and the response was that of decent folks who refuse to believe that to be the policy. There response reminded me of the part in the "conservatives'' Bible of Babes...and all that jazz.

Posted by: | Aug 11, 2008 8:50:36 PM

If you polled the American public it would not matter. Americans are generally not lawyers. They don't understand the issues. They are generally more comfortable repeating the slogans we dream up for them.

Posted by: s.cute.us | Aug 12, 2008 10:21:30 AM

Americans are generally not lawyers. They don't understand the issues.

They understood issues well enough to write a Constitution. But no need to bother those good people anymore. Lawyers have it all under control.

Posted by: babalu | Aug 12, 2008 4:19:50 PM

I ask people about this all the time. I have never met anyone who was not astounded that acquitted conduct could be considered.

Posted by: CJA | Aug 16, 2008 4:07:20 PM


I am just another veteran trench dweller (criminal defense lawyer for 32 years) who just cannot get over the use of acquitted conduct by the federal district court and fourth circuit judges. But I have an acquitted conduct case which beats all. My client was not guilty of first degree murder in state in Onslow County, No. Car. in 2006. In 2007, my client is indicted for firearms violations in the EDNC. The DAs in state court got angry about losing the murder case and refer the case to ATF and the feds. The defendant pled in EDNC before Judge Dever with a cap of 15 years on the two firearm offenses, Dever gave notice of the intent to depart upward two days before the sentencing hearing. He then cross examined the defendant for over four hours from the table and used his "admissions" as part of his findings of fact to enhance his sentence. Judge Dever departed and varied the sentence upward to a total of 168 months--the advisory guideline range minimum was 70 months. The defendant has no record, a Bronze star and you name it from the Marine Corps. The defendant did not do the shooting in the murder case. He drove the shooter and made a silencer for a .22 pistol which the shooter use to kill the husband of his "paramour", as he slept.

A state jury said no way--this guy is not doing life without parole. The DAs rolled the dice and did not charge him with accessory after the fact when there was undisputed evidence that my client drove the shooter away from the crime scene. In state court my client would had maxed out at 84 months on the accessory after the fact conviction under the North Carolina Structured Sentencing Law of 1994.

So the pain here is self-evident. The constitutional violation is incredible and the Opening Brief is due finally on October 6, 2008 The client is at Fort Dix in New Jersey in federal custody praying for a new sentencing hearing and another judge.

So acquitted conduct is still on the forefront. The rumor mill is that Tin Noell, a great criminal lawyer in Charlotte, NC has a similar issue and the petition for cert has resulted in the Supremes directing the AG to answer. I do not know the name of that case yet.

Your are one of my six heroes. I wish I could type like you, read like you, think like you---but I am first class sob at times, nonetheless I bet that you are like me and will fight to the bitter end in the court room.

Wally Paramore

Posted by: Wally Paramore | Sep 29, 2008 6:37:20 PM


The 4th Circuit dispatched with my appeal of the upward departure in a footnote where acquitted conduct in a state court trial presented to a jury was used as the basis for the upward departure by a federal district court judge. Of course, the cert petition was denied in October of this year.

What happened to double jeopardy? What happened to a broad reading of North Carolina v. Pearce (cannot get more time if you win on appeal and are retried and convicted? What happened to due process? A jury found there was not sufficient evidence for a first degree murder charge with the reasonable doubt standard in state court. Should this not bind and restrict the federal judge when sentencing on a new crime on his turf?

Thanks for listening to me whine.

Wally Paramore

Posted by: Wally Paramore | Nov 28, 2009 10:40:20 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB