D.C. case cited in sentencing challenge

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By Jim McElhatton

A senior federal appeals court judge is citing the case of a D.C. man awaiting sentencing on a drug charge in asking the U.S. Supreme Court to revisit whether judges should give defendants tougher sentences based on conduct that jurors rejected as a basis for conviction.

"I wonder what the man on the street might say about this practice of allowing a prosecutor and judge to say that a jury verdict of 'not guilty' for practical purposes may not mean a thing," Judge Myron H. Bright, senior judge for the 8th U.S. Circuit Court of Appeals based in St. Louis, wrote in a recent opinion in an unrelated methamphetamine case.

Judge Bright's opinion cited an article in The Washington Times last month on the case of Antwuan Ball, a D.C. man convicted of a drug charge in a $600 cocaine deal last year but acquitted after an eight-month trial on murder, conspiracy, racketeering and other felony charges.

Defense attorneys say Ball's conviction alone on a half-ounce drug deal, under sentencing guidelines, would mean he could be released within a few years. Prosecutors are seeking 40 years in prison instead. Their request cites, among other things, conduct that jurors either rejected or were never asked to consider during Ball's trial in federal court in the District last year.

In court memos, prosecutors say Ball, 37, has spent much of the past 15 years dealing large amounts of crack cocaine, lying under oath, committing murder and leading a "violent crew of fellow criminals."

They also say that courts have held sentencing guidelines to be advisory, not mandatory, and that Ball's crime of selling 5 or more grams of crack cocaine carries by law a sentence from five to 40 years. In addition, prosecutors say, their request cites not acquitted conduct, but rather "uncharged conduct or conduct upon which the jury never voted."

Defense attorney Steve Tabackman countered in recent court pleadings that Ball was found guilty of only one hand-to-hand drug transaction. If given the sentence prosecutors seek, Mr. Tabackman argued, Ball "will serve that sentence based upon the government's decision to charge him with crimes that it knew or should have known could not be proved."

Ball's sentencing is pending in federal court in the District.

On July 14, Judge Bright cited Ball's case in a concurring opinion concerning an unrelated drug case appeal in federal court in Missouri. Judge Bright wrote that he was "bound by Supreme Court and Circuit precedent" to agree to uphold the sentence in the Missouri drug case, in which a judge reportedly gave a tougher sentence on the basis of a gun charge on which the jury voted to acquit.

Still, "the state of affairs is unfair, unjust and I believe plain unconstitutional," Judge Bright wrote in his opinion. "Because I believe the inclusion of 'acquitted conduct' to fashion a sentence is unconstitutional, I urge the Supreme Court to re-examine its continued use forthwith."