Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jury Nullification | 20 Mar 2014

-Judges Circumvent Jury Verdicts with Sentencing for Acquitted Conduct


Did you know that even if a jury finds a defendant outright Not Guilty on some charges, a judge may still be able to increase the defendant’s sentence for Guilty verdicts based on the conduct of which the jury explicitly acquitted him?

Consider the case of Antwuan Ball, acquitted of every single one of the prosecution’s laundry list of charges against him, with the sole exception of a single count of a victimless offense regarding an alleged $600 crack transaction. Law professor Douglas Bergman explains:

Fence_of_Prison-BPODC Circuit gives disconcertingly short-shrift to Antwuan Ball’s many significant sentencing claims

[Antwuan] Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Relying on the prosecution’s allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball’s guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011). This NACDL amicus brief filed in January 2013 indicates that Ball’s guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he “saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction.” At the time of Ball’s 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested “some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct.”

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).

What was the result of this appeal?

Appeals court upholds D.C. man’s 18-year sentence for $600 drug deal

A D.C. man sentenced to nearly two decades in prison after his conviction on a $600 drug deal saw his closely-watched appeal rejected Friday, as defense attorneys prepare to take the case to the Supreme Court.

Antwuan Ball and two other D.C. men in the same case were convicted of dealing small amounts of crack cocaine and were later sentenced from 15 to nearly 19 years in prison.

While the jury acquitted the men — Ball, Joseph Jones and Desmond Thurston — of conspiracy charges, U.S. District Judge Richard W. Roberts nonetheless ruled they had taken part in a conspiracy at their sentencing hearings. The judge’s findings led to far tougher sentences for each defendant compared to the prison terms they would have faced on the basis of their convictions alone.

Unbeknownst to many (probably most) jurors, sentencing guidelines often allow a single judge (frequently an ex-prosecutor) to circumvent the unanimous Not Guilty verdict of a jury of as many as twelve people through sentence enhancements based on unconvicted or outright acquitted conduct. Unconvicted conduct is conduct for which a defendant has not been convicted, including offenses for which the defendant has not been charged and charges on which the jury cannot come to a unanimous verdict. Acquitted conduct is conduct of which the defendant has been found explicitly Not Guilty, which requires a unanimous verdict when determined by a jury. It is even possible for judges to increase sentences for convicted conduct so much based on acquitted conduct as to render the jury’s role in the matter completely irrelevant.

In his 2009 opinion in the case of U.S. v. Papakee, Judge Bright had damning words for this practice and its implications with respect to the Fifth and Sixth Amendments:

Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J., concurring) (noting the Supreme Court’s affirmation of the centrality of the jury in the criminal-justice system and that “[a] judge violates a defendant’s Sixth Amendment rights by making findings of fact that either ignore or countermand those made by the jury”). I also believe that use of acquitted conduct to enhance a sentence violates the Due Process Clause of the Fifth Amendment. See id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ undermines the notice requirement that is at the heart of any criminal proceeding.”).

I will not repeat here my concurrence in Canania. But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

Whether they are voting Not Guilty because they believe the offense has not been committed or because they believe the law is unjust in the case at hand, jurors often feel compelled to throw the prosecutor a bone just for having done something, no matter how unconvincing or shoddy, or they may feel peer pressure during deliberations to compromise with jurors insisting on some punishment for something. As a result, they may give in despite their own judgement and agree to convict on what seems to them a minor charge, unaware of circumstances that may allow severe punishment for that single, minor offense, such as mandatory minimum sentencing schemes or sentencing based on acquitted or uncharged conduct.

It is important for jurors to understand that a trial is not a “partial credit” type situation. The prosecution does not get points just for showing up. If a juror believes that the defendant has not committed the offense of which he is accused, the juror should vote Not Guilty and stick to that vote. If a juror believes that the defendant has technically broken the law, but has not harmed anyone or their property, the juror should vote Not Guilty and stick to that vote. If a juror conscientiously believes for other reasons, such as punishment being disproportionately severe compared to the offense committed, the law being unjustly applied in the case at hand, and so on, the juror should vote Not Guilty and stick to that vote.

Jurors can close the door on sentencing for acquitted conduct by voting Not Guilty on ALL charges before them. This is particularly important to do in cases where jurors are only considering conviction on victimless charges. When there is no victim, there is no crime. When there is no crime, there is no reason to open the door for the judge to impose any punishment, let alone enhance punishment based on charges for which the jury has explicitly found the defendant Not Guilty.