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April 21, 2016

Federal district court declines to consider acquitted conduct at sentencing "based on the implication of Sixth Amendment guarantees"

A helpful reader alerted me to a notable new federal district court opinion handed down yesterday by Judge Mark Mastroianni in US v. Buffis, No. 13-30028-MGM (D. Mass. April 20, 2016) (available for download below).  The full opinion runs only eight pages and federal sentencing fans will want to read it in full. These snippets should highlight why:

The government has filed a motion requesting the court sentence the defendant based on the totality of his misconduct. Specifically, the government is requesting the court sentence the defendant based on charged conduct for which he was acquitted by the jury, several incidents of uncharged behavior, and conduct initially charged but dismissed before trial. The superseding indictment against the defendant charged twelve counts; defendant was convicted of the first count, the twelfth was dismissed, and defendant was acquitted of counts two through eleven. The general nature of the Government’s case against the defendant involves his extortion and theft of funds, while in his role as Chief of Police for the Town of Lee....

The government advocates for legally appropriate sentencing considerations to affect the defendant’s sentence on the one convicted charge. The government’s motive, however, is to sentence the defendant based generally on its belief, after a largely unsuccessful prosecution, that the defendant is a “longtime thief and a brazen liar.”...

[B]road recognition of a sentencing court’s authority to consider acquitted conduct comes from the holding in United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).... The wisdom of interpreting Watts, under Sixth Amendment scrutiny, as even creating an available option for considering acquitted conduct at sentencing has been often questioned....

In Watts, the Court explained that consideration of acquitted conduct is not punishment for that conduct, noting the acquittal did not technically prove innocence, but, rather, is the causal increase of sentence based on the manner of commission of the crime convicted. Watts, 519 U.S. at 154-55. Established law under Watts allows a judge to decline to consider acquitted conduct at sentencing. This court has difficulty reconciling Watts with the burden of proof and presumption of innocence standards, which align an acquittal more naturally with factual innocence than with a guileful avoidance of justice deserving of a penalty. This court, therefore, declines to consider acquitted conduct in this case based on the implication of Sixth Amendment guarantees.

Additionally, under the facts here, I am not satisfied the acquitted conduct has useful relevance to the consideration of the manner in which the defendant committed the crime for which he was convicted. This relevance of the crimes to the manner of commission is the connection emphasized by the court in Watts. 519 U.S. at 154-55. In this case the jury, by special verdict form, indicated the manner it found the defendant to have committed a single act of extortion.

Based on the jury's verdict form, the court knows the manner of commission found by the jury for the only convicted charge. None of the acquitted charges speak to the manner of commission of the extortion. Rather, the acquitted conduct would describe a motive and pattern of scheming and dishonesty to accomplish theft generally. This is unlike relying on acquitted conduct at sentencing to find that a firearm was possessed at the time of a drug crime and connected to its commission. See Watts, 519 U.S. at 154-55; Gobi, 471 F.3d at 313-14. Nor is this a situation like that of a drug case where acquitted conduct could be relevant to the manner of commission by showing the total weight of drugs involved. United States v. Putra, 78 F.3d 1386, 1388-89 (9th Cir. 1996), reversed by 117 S. Ct. 633 (1997).

Download Buffis - Court's sentencing decision

April 21, 2016 at 03:29 PM | Permalink


Finally, a sentencing Judge with heart and common sense! When I was in prison, I saw people with life sentences, based upon the use of acquitted conduct (particularly drug quantities). Without the acquitted conduct, the sentences might have been only 10 years.

Posted by: Jim Gormley | Apr 21, 2016 3:34:27 PM

Watts has to be one of the most infamously wrong cases decided by SCOTUS in modern times. Unlike cases like Citizens United that had been telegraphed by prior precedents for years, this one is squarely at odds with a whole body of jurisprudence on related issues.

Posted by: ohwilleke | Apr 21, 2016 5:50:49 PM

Why is Watts wrong? Seems like an easy case to me--that conduct wasn't proven BRD doesn't mean a judge, when considering a sentence, cannot make a finding that it did, in fact, happen and hence increase the sentence. I agree that a judge can, and should, take into consideration the fact that a jury didn't see things the prosecution's way.

It's real easy to complain about "acquitted conduct"--but the complaint really doesn't translate well into legal rules. What is the scope of the conduct that is "acquitted"--just the elements of the crime, the facts alleged to prove up the elements? What about inconsistent verdicts? And, are judges really supposed to ignore evidence put directly in front of them? That seems completely at odds with reality. And, are we going to then have legal rules on sentencing statements/judicial discretion--remember, if this is a Sixth Amendment right, then it would apply to all methods of sentencing.

The objection to acquitted conduct being used seems to me to be more of an "it's not fair" foot-stomp than anything else.

Posted by: federalist | Apr 21, 2016 6:00:04 PM

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