- The Washington Times - Sunday, June 29, 2008

Nearly a year to the day before he resigned, Attorney General Alberto R. Gonzales told his prosecutors to pursue the death penalty against a D.C. man accused of running a violent drug gang in Washington known as the “Congress Park Crew.”

But after at least four years of investigation, eight months of testimony and eight weeks of deliberations, a federal jury ruled the government couldn’t prove there was a criminal conspiracy called the Congress Park Crew, let alone that its purported leader, Antwuan Ball, 37, had committed any murders.

Jurors acquitted Ball in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment except a $600, half-ounce, hand-to-hand crack-cocaine deal in Southeast Washington seven years ago.

Perhaps thinking his freedom was at hand, Ball cried when the verdicts were read. Indeed, under federal guidelines, he could expect to be released within a few years.

However, federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?

  • THE LEGAL DOCUMENTS: Read the defense’s sentencing memo (download pdf), the prosecution’s sentencing memo (download pdf), and the prosecution’s reply to the defense memo (download pdf). Click here to read the letter from Juror #6.
  • Related to this story:‘Relevant conduct’ can add to sentence, by Jim McElhatton

  • “The rules encourage prosecutors to lack humility,” said Douglas Berman, an expert on criminal sentencing and a law professor at Ohio State University. “An acquittal should be a humbling experience. My sense is they sometimes view acquittal as an annoyance they have to work around.”

    Ball’s attorney, Steve Tabackman, in a recent memo to Judge Roberts, wrote, “It is a sentencing scheme straight from the mind of Lewis Carroll,” referring to the 19th-century author of “Alice’s Adventures in Wonderland.”

    Prosecutors say the practice is perfectly legal and point out that federal sentencing guidelines are advisory, not mandatory. And regardless of the guidelines, Ball’s crime of selling five or more grams of crack cocaine carries by law a sentence anywhere from five to 40 years. They also say Ball remains a danger to the community, which the defense sharply denies.

    Legal experts expect the U.S. Supreme Court to one day take up the issue of acquitted and uncharged conduct sentencing, perhaps as early as next year.

    Secret location

    The case of U.S. v. Antwuan Ball began a 10-minute drive away from the Supreme Court in the Congress Park housing complex, one of the most violent neighborhoods in the nation’s capital.

    Story Continues →