- The Washington Times - Thursday, March 17, 2011

More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.

But at Ball’s long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction.

The judge’s ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.

Arguing Ball was the ringleader of a gang called the Congress Park Crew, prosecutors pointed to, among other things, testimony from cooperating witnesses in the federal drug case as well as guilty pleas by people who said they saw Ball dealing drugs and carrying guns.

Assistant U.S. Attorney Gilberto Guerrero Jr. argued that Ball caused “havoc” in Congress Park that “destroyed people’s lives.”

Meanwhile, Ball’s defense attorney, John Carney, cited testimony of people who worked with Ball on various community projects in Congress Park, including a former U.S. Parole Board commissioner, Janie Jeffers, who called Ball “a catalyst” for improving the neighborhood.

Mostly, Mr. Carney pointed to the words of a juror in the case, Jim Caron, who died not long after writing a letter to the judge after the trial. “Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly,” Mr. Caron wrote.

“This is one of the few times we know exactly what the jury was thinking,” Mr. Carney argued.

Prosecutors disagreed: “That’s one person’s perspective,” said Mr. Guerrero.

Defense lawyers also argued in court memos that if the judge relies on acquitted conduct, Ball unfairly would get a prison term far longer than what he’d receive under the federal sentencing guidelines.

But prosecutors pointed out that those guidelines are advisory, not mandatory, and that selling five or more grams of crack cocaine by law carries a sentence anywhere from five to 40 years in prison.

Judge Roberts said the “stark duality” of Ball’s persona was “confounding and tragic.” And he said while he respected the jury’s verdict, he couldn’t turn a blind eye to what he called “clear and convincing” evidence that Ball was part of a long-running conspiracy to deal crack cocaine in Congress Park.

The judge did not otherwise address Mr. Caron’s letter, which was later cited by Gilbert S. Merritt Jr., senior judge on the 6th U.S. Circuit Court of Appeals, in an unrelated case in Kentucky involving acquitted conduct issues.

Judge Roberts said his reliance on acquitted conduct in determining a sentence for Ball was proper. He also gave Ball credit for the time he’s served since being locked up in April 2004, and he reduced his sentence by 15 months because of delays in carrying it out.

Ball was the final defendant sentenced in the March 2005 case, which at one point seemed likely to be a death-penalty prosecution before Judge Roberts tossed out capital punishment on a missed filing deadline.

A co-defendant in the case, David Wilson, was sentenced to 45 years in prison last week. He was convicted in two murders and on drug charges.

Ball was one of six defendants prosecuted in the case. Prosecutors say 18 people were indicted in all, many pleading guilty.

Ball’s young children were escorted out of the courtroom before Judge Roberts issued the sentence. Ball, who was acquitted of murder charges in the case, admitted selling drugs but said he wasn’t the person prosecutors portrayed during trial and at his sentencing.

Wearing a black and white striped jail suit with more than a dozen family members looking on, Ball said moments before his sentencing, “It may look like a conspiracy to some, but it’s not a conspiracy.”

In a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, “ample evidence” that Ball was the leader of a criminal conspiracy.

Other “acts of violence, witness intimidation and other obstructive acts,” prosecutors argued, “show what a true danger Ball is.” The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct — or actions the jurors were never asked to consider.

By contrast, defense attorneys called the jury verdict a “virtually total rejection” of the government’s case against Ball.

Ball’s sentence is likely to be appealed.

In 2008, the D.C. Circuit affirmed an acquitted conduct sentence in another case where the defendant, Tarik Settles, was convicted on a count of possession of a firearm by a convicted felon. He was acquitted of possession with intent to distribute cocaine and of using a firearm during a drug-trafficking offense.

Settles appealed his 57-month sentence, arguing the judge relied on conduct of which had been acquitted in enhancing his sentence.

The appeals court upheld the sentence, ruling that the long-standing precedent of the appeals court and of the Supreme Court “establish that a sentencing judge may consider uncharged or even acquitted conduct in calculating an appropriate sentence.”

The ruling also noted, however, many judges and commentators have argued that acquitted conduct sentencing to increase a defendant’s sentencing “undermines respect for the law and the jury system.”