- The Washington Times - Wednesday, July 30, 2008

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.”

Judge Bright also quoted a letter from a juror in the Ball case. In the letter, Jim Caron, a retired federal economist, questioned prosecutors’ decision to seek a 40-year sentence for Ball. Referring to Ball and co-defendants, Mr. Caron wrote, “It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty.”

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 have upheld the use of acquitted conduct.

In the case of U.S. v. Watts more than a decade ago, Mr. Otis said, the Supreme Court said it was “fully proper” for a sentencing judge to take acquitted conduct into account.

“The Supreme Court has already taken up this issue,” he said. “It’s not a new issue.”

Mr. Otis said that in 2005, the Supreme Court ruled in U.S. v. Booker that “the sentencing facts did not have to be proved beyond a reasonable doubt, and that, in line with longstanding practice, judges can take into account facts shown by a preponderance of the evidence when sentencing a defendant.”

Legal analyst and defense lawyer Scott H. Greenfield said he disagrees with the practice of acquitted-conduct sentencing, but, like Mr. Otis, he questioned whether the Supreme Court would revisit the issue.

“It’s one of those little spots in the law where you’ve got a bad answer, but you’ve got your answer,” Mr. Greenfield said. “You can’t keep coming back.

“God bless our court, they say it’s fine.”

Meanwhile, legal observers are awaiting a decision by the 6th U.S. Circuit Court of Appeals in Cincinnati in the case of U.S. v. White, a case that raises acquitted conduct questions.

“It’s a bad policy,” said Amy Baron-Evans, National Sentencing Resource Counsel for the Federal Public and Community Defenders, a branch of the federal court system that represents indigent defendants.

Ms. Baron-Evans said it’s not clear whether the Supreme Court will revisit the issue. But she said she and other critics of acquitted conduct sentencing have asked the U.S. Sentencing Commission to eliminate the practice. The commission establishes sentencing policies for the federal courts.

“Most judges have lost faith in the commission to do anything, and so they see the Supreme Court as the only way to bring about change. … But it’s the commission that ought to make the change.”

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