- The Washington Times - Sunday, April 3, 2011

After he admitted shooting and killing a 24-year-old D.C. man, Dominic Samuels received a sentence of seven years in prison.

After his conviction for a $600, half-ounce cocaine deal, Antwaun Ball got a sentence of 18 years in prison.

Samuels and Ball were sentenced in the same federal courthouse in Washington. They stood before the same judge. They were co-defendants in the same trial.

But their vastly different punishments provide a stark reminder of just how much discretion federal judges have at sentencing. The outcomes also shed light on a controversial but perfectly legal practice that lets judges mete out tougher sentences based on conduct that jurors rejected at trial.

“There is absolutely no doubt that defendants who plead guilty get a benefit from prosecutors and the judge, but it does seem pretty dramatic here,” said Doug Berman, a sentencing analyst and law professor at Ohio State University.

Prosecutors charged Ball and Samuels in what they termed a violent conspiracy to deal crack cocaine in the Congress Park neighborhood of Southeast Washington. Ball and Samuels were among six defendants tried in 2007 before U.S. District Judge Richard W. Roberts.

But after two months of deliberation, the jury acquitted Ball — who had rejected a 25-year plea deal and, at one point, faced a possible death penalty prosecution — of murder, racketeering, conspiracy and other charges. The jury convicted Ball of a single hand-to-hand drug transaction with an undercover FBI informant in 2001.

The jury deadlocked — seven voting for acquittal, three for conviction and two undecided — on whether to convict Samuels in the 2002 murder of Jamel Sills, 24, in Congress Park. Prosecutors vowed to retry Samuels.

However, after the mistrial, Samuels had a change of heart. And so did prosecutors. Both sides agreed to a plea deal under which Samuels would receive seven years in prison if he pleaded guilty to manslaughter, including the years he had spent in the D.C. Jail before, during and after trial.

“Were his matter to be retried, both sides would be taking a great risk,” Samuels’ attorney, A. Eduardo Balezero, said in a sentencing memo. “For the government, it could mean a possible acquittal. … [F]or Mr. Samuels, it could mean a conviction and possible life sentence.”

Judge Roberts didn’t hesitate to approve the deal. After sentencing Samuels in April 2008, the judge also gave Samuels some parting advice.

“You’re going to have to learn how to respond to those temptations that gnaw at you, that eat at you, in ways that don’t bring you back into the criminal justice system,” the judge told Samuels, who is no longer in federal prison.

Ball would have to wait more than three years after his conviction before he was sentenced in the same case. Unlike Samuels, though, Judge Roberts ensured that Ball would not be getting out of prison anytime soon.

While Ball was convicted of a half-ounce drug transaction, prosecutors cited evidence that the jury rejected at trial in asking that he be sentenced to 40 years in prison. They said Ball was the leader of a long-running and violent conspiracy to deal drugs in Congress Park.

The prosecution also pointed to Samuels’ guilty plea to bolster testimony at trial from several cooperators who testified against Ball. Samuels’ attorney said in court papers that he didn’t want the plea to be used in sentencing his co-defendants.

Either way, Judge Roberts found that despite Ball’s acquittal on conspiracy charges at trial, that by “clear and convincing evidence” Ball sold drugs as part of the “Congress Park Crew” for more than a decade. For sentencing purposes, the judge’s finding added years to what Ball would have received under federal guidelines.

At sentencing, judges must find facts by a preponderance of the evidence, while jurors must convict based on findings beyond a reasonable doubt, a much higher standard.

Citing conduct that jurors rejected to give out tougher sentences is a point of contention in legal circles, but the practice has been upheld by the courts. While some judges won’t take acquitted conduct into account at sentencing, many do, including Judge Roberts.

The practice also loomed as an issue at the sentencing hearings for several of Ball’s co-defendants, who also were convicted of various drug transactions but acquitted of conspiracy charges.

Two men were sentenced to 16 years in prison, and another is serving a 15-year term. Another, David Wilson, was convicted of two murders and is serving 45 years.

After the trial, a juror wrote Judge Roberts a letter that Ball’s attorney noted at Ball’s sentencing last month. The juror, Jim Caron, a retired federal economist, was upset that the defendants were facing such long sentences.

“Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it,” wrote Mr. Caron, who died weeks after sending the letter.

Still, Judge Roberts said at Ball’s sentencing that he could not turn a blind eye to what he called clear evidence that Ball was the leader of a conspiracy to deal crack cocaine.

Analysts disagree on the use of acquitted conduct to sentence Ball, but those on both sides of the issue say the difference in punishments for Ball and Samuels appears stark.

“The public has a right to believe in the finality of verdicts,” said Jerilyn Merritt, a Denver-based criminal attorney who served on the defense for Oklahoma City bomber Timothy McVeigh. “This doesn’t promote respect for the law. If a judge can come along and substitute his finding of the facts for the jury’s, then what’s the point of having a jury?”

But William Otis, a former assistant U.S. attorney for the Eastern District of Virginia and former member of the Attorney General’s Advisory Committee on sentencing guidelines, said courts, including the Supreme Court, have long allowed acquitted conduct to count at sentencing.

He said judges are permitted to decide an appropriate sentence based on a variety of factors about the defendant that are never charged, much less proved beyond a reasonable doubt. He also said juries sometimes get the facts wrong, citing the O.J. Simpson murder case as a prime example.

“The miscarriage of justice to me is not that the one defendant got 18 years but that the government agreed, and probably had to agree, to seven years for Samuels,” Mr. Otis said. “The results don’t feel right.”

• Jim McElhatton can be reached at jmcelhatton@washingtontimes.com.

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