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October 5, 2014

Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'"

An otherwise unremarkable federal drug sentence appeal in the US v. St. Hill, No. 13-2097 (1st Cir. Oct. 1, 2014) (available here)  took on some blogworthy character because of a lengthy concurrence by Judge Torruella. Here is the start, heart and close of Judge Torruella's opinion in St. Hill:

I join the court's opinion but write separately to note a disturbing trend in criminal prosecutions.  All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) of the Sentencing Guidelines ("Guidelines") to argue for significantly enhanced terms of imprisonment under the guise of "relevant conduct" — other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt....

St. Hill was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pleaded guilty to, and never convicted of by a jury beyond a reasonable doubt.  This is a prime example of the tail wagging the dog.  Even more disturbing: the government could, if it so chooses, still charge St. Hill for these uncharged crimes in a separate proceeding, and he could be convicted and sentenced again without protection from the Double Jeopardy Clause.  See Witte v. United States, 515 U.S. 389, 406 (1995)....

[I]f the government intends to seek an increase in a criminal defendant's sentence for conduct that independently may be subject to criminal liability, the government should charge that conduct in the indictment.  The Fifth Amendment requires that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V, while the Sixth Amendment provides an accused with the right to a trial "by an impartial jury," id. amend. VI.  The practice of arguing for higher sentences based on uncharged and untried "relevant conduct" for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants.  Cf. Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.").  The government's role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence.  And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless....

Nevertheless, as a judge, it is my responsibility to faithfully apply the law as articulated by both the Supreme Court and this court, and I do not dispute that both the Guidelines and our interpretation of them currently condone this questionable process.  See Witte, 515 U.S. at 396, 406 (finding no constitutional violation where the sentence was based in part on a cocaine offense that defendant "clearly was neither prosecuted for nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) (finding no constitutional violation where the district court "choose[s] to give weight to the uncharged offenses in fixing the sentence within the statutory range if it finds by a preponderance of evidence that they occurred").  I nonetheless question whether this interpretation should be revisited — either by the courts or by revisions to the Guidelines.

October 5, 2014 at 11:13 AM | Permalink


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I appreciate Judge Torruella's sentiments, but he's been on the federal bench since the guidelines were first adopted. Surely it didn't take him 25+ years to realize this has been going on?

Posted by: C.E. | Oct 6, 2014 12:31:59 AM

That's a good point about uncharged conduct still being chargeable in the future. Before, I had at least tried to distinguish between acquitted conduct and uncharged conduct, but I really think the best option is to not factor in either (or, at least, calculate the guidelines based on the convicted conduct and then deviate upwards but nowhere to the degree the guidelines would call for if a Judge considered that conduct as if it were a conviction).

As time goes on, I think more and more that Al Capone's sentence for tax evasion was a great national mistake. Even if there were exceptional circumstances through witness intimidation, it fosters the acceptance that one doesn't need to prove the crime we suspect him of, just so long as we prove some crime. Then we can make the possible sentence range large enough to punish for whatever we want.

Posted by: Erik M | Oct 6, 2014 6:37:53 AM

Face it. Occasional fair-minded, Constitution-friendly opinions by maverick, even-handed judges aside, the justice system has degenerated into a turkey-shoot for prosecutors and their mostly hack-Republican enablers on the bench.

Posted by: John K | Oct 6, 2014 10:01:47 AM

Relevant Conduct is not a choice subject to discretion. It is a required component of complying with Booker.
It's become quite fashionable to attack prosecutors, and sometimes their behavior is repulsive. Here, however, the fault is more with the Sentencing Commission for their approach to the guidelines, and the Supreme Court, for violating the separation of powers by rewriting statute to save the guidelines after finding them otherwise unconstitutional.

Posted by: Wayne-O | Oct 6, 2014 2:36:59 PM

I think prosecutors should be required to state on the record what it is they are trying to accomplish when they decide how to proceed. Is it workable, coherent, parsimonious, proportional, fair and cost-effective?

Posted by: Tom McGee | Oct 6, 2014 3:57:51 PM

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