- The Washington Times - Sunday, June 29, 2008

Steven Kalar, senior litigator in the Northern District of California’s Office of Federal Public Defender, tells his clients facing big conspiracy cases to keep in mind the movie “Raiders of the Lost Ark.”

“If you get hit, and it doesn’t matter if it’s even with one little dart, you’re dead,” Mr. Kalar said. “They’re going to argue relevant conduct.”

The point, he said, is that a criminal defendant might not benefit greatly from acquittal of all the charges in a major conspiracy case except for a seemingly minor count.

Prosecutors still can point to “relevant conduct” - the acquitted charges that jurors rejected or other accusations the jury never heard - and ask a judge to mete out a tougher sentence.

Mr. Kalar said that while juries must make their findings based beyond a reasonable doubt, sentencing judges instead can base their findings on a preponderance of evidence.

“I do think the Supreme Court will be addressing the issue very soon,” he said.

James Bilsborrow, who recently published an article on acquitted conduct sentencing in the William & Mary Law Review, said the consideration of acquitted or uncharged conduct at sentencing is a recent phenomenon.

“In the past, you could get sentencing enhancements, but nothing that would take you up to 40 years,” said Mr. Bilsborrow, who reviewed the defense and prosecution memos in the D.C. federal court case of Antwuan Ball.

Ball was acquitted on murder and racketeering charges but convicted of one $600 drug deal. Defense attorneys say sentencing guidelines show Ball, who has a 1995 weapons conviction, should be released within a few years.

In memos, prosecutors say Ball deserves the 40 years, the maximum allowed by law for his drug charge, because he has intimidated witnesses, lied in court testimony and remains a danger to the community.

Defense attorneys balk at the description. They say it’s unfair to ask for 40 years when jurors only found Ball guilty of a single drug transaction, acquitting him of the more serious charges

On Friday, the U.S. Court of Appeals for the District of Columbia noted the debate over the sentencing issue in the case of Tarik Settles, who had appealed his 57-month sentence on a firearms conviction.

“To be sure, we understand why defendants find it unfair for district courts to rely on acquitted conduct when imposing a sentence,” the judges concluded in their opinion.

“For those reasons, Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.”