The National Pulse

Acquitting Time

  • Print

Douglas Berman.
Photo courtesy of Ohio
State University/Michael E.
Moritz College of Law

This time around, the U.S. Supreme Court took a pass when it was tossed the latest hot potato in federal sentencing cases. The court declined in March to take U.S. v. Hurn, in which the 7th U.S. Circuit Court of Appeals at Chicago upheld a lower court’s decision to add time to a defendant’s sentence for possessing crack cocaine—even though the jury acquitted him of the charge.

But as with almost all federal sentencing issues since Apprendi v. New Jersey, the watershed 2000 sentencing decision, it’s only a matter of time before the high court opts to take on the issue of sentences increased on the basis of acquitted conduct, experts say.

“Somehow, some way, the Supreme Court is going to have to deal with this issue,” says Ohio State University law professor Douglas Berman, an expert on sentencing law and policy. “It’s inevitable,” adds Berman, who helped to draft the cert petition in Hurn.

That an individual could be punished for a crime for which he or she was acquitted may surprise many. But it is an established practice codified into the miscellaneous sentencing provisions of the U.S. Code of Crim­inal Procedure that “no limitation” shall be placed on the information a judge may consider at sentencing.

In the case of Mark Hurn, police executed a search warrant at his Madison, Wis., home in June 2005, seizing 450 grams of crack cocaine, 50 grams of powdered cocaine and more than $38,000 in cash. At the time, Hurn admitted to being a drug dealer. He even showed police where some of the money and drugs were hidden.


At trial, however, Hurn told a different story. He said the drugs found at his home weren’t his; they belonged to others who lived there and used it to store their stash. He said he claimed ownership of the drugs at the search because he was afraid the real owners would hurt him if he didn’t.

The jury bought part of his story, but not all. Hurn was convicted of possessing with the intent to distrib­ute the powdered cocaine, the lesser of the two charges, punishable by a 27- to 33-month prison term under federal sentencing guidelines.

But he was acquitted of the far more serious charge of possessing crack cocaine with intent to distribute, which carries a guideline sentence of 16 to 20 years.

At sentencing, Hurn sought leniency but prosecutors asked for 20 years, citing, among other things, evidence in the trial suggesting he was probably guilty of crack possession, even though he was acquitted of it.

U.S. District Judge John C. Shabaz sided with the prosecution, saying that despite the jury’s verdict, the government had proved by “clear and convincing evidence” that Hurn was guilty of possessing crack cocaine. He sentenced Hurn to 17½ years in prison, just below the midpoint of the guidelines range for a conviction on both charges.

The 7th Circuit affirmed, even while acknowledging that the sentence was based “almost entirely” on acquitted conduct. It said the evidence “amply supported” the trial court’s finding that Hurn was guilty of the crack possession charge, even without Hurn’s acknowledgement that the drugs were his at the time of his arrest. It said Hurn’s admission that he allowed others to store drugs at his home was evidence enough to warrant a conviction on the acquitted charge.

Since 1949, in Williams v. New York, the Su­preme Court has consistently upheld sentencing based on uncharged or acquitted conduct. The court reiterated the principle in 1997, when it held in U.S. v. Watts that a convicted drug dealer could be subjected to an enhanced sentence for possessing a firearm in connection with the drug offense, even though the defendant had been acquitted on the weapons possession charge.

The court said a sentencing judge may consider conduct for which a defendant has been acquitted, so long as the conduct has been proved by a preponderance of the evidence.

It’s not known how often acquitted conduct is factored into a defendant’s sentence. But after Watts, some experts say, enhanced prison sentences based on acquitted conduct have become almost routine. Par­ticularly in high-profile cases, prosecutors will typically overcharge a defendant, knowing that a jury is likely to return a split verdict. Then, if the defendant is convicted on some of the charges, prosecutors will seek an enhanced sentence based on the acquitted conduct, and judges will often agree.

While a few trial judges have declined to include acquitted conduct in their sentencing decisions, experts say, no federal appeals court has affirmed a constitutional challenge to the practice in the 11 years since Watts.

In fact, one appeals court has recently gone so far as to hold that a judge may not categorically exclude consideration of acquitted conduct at sentencing. In an unpublished April 1 per curiam opinion, the Richmond, Va.-based 4th U.S. Cir­cuit Court of Appeals vacated the 4½-year sentence given a Virginia man convicted of conspiring to launder money. The court said in U.S. v. Ibanga that the sentence failed to reflect additional prison time for drug trafficking charges the jury had acquitted him of.

Some experts say the use of acquitted conduct to enhance a sentence violates the spirit—if not the letter—of the double jeopardy clause, which prohibits trying a defendant twice for the same crime.

“When someone is acquitted of an offense, for whatever reason, that offense ought not to be usable against that person to increase his or her sen­tence,” says Georgetown University law professor Paul Rothstein.

But others have no problem with the practice, as long as the crime for which a defendant has been convicted has been proved beyond a reasonable doubt and the sentence doesn’t exceed the statutory maximum for the convicted offense—which was the case in Hurn.

Judges should have broad discretion to consider a variety of factors at sentencing, including information about a defendant’s background, character and conduct—even criminal charges for which a defendant may have been acquitted, says Vanderbilt University law professor Nancy King, a former state prosecutor who specializes in sentencing issues.


If there’s a problem, she and other experts say, it rests with the preponderance of evidence standard governing the use of such conduct or the draconian penalties that accompany certain drug offenses under the federal sentencing guidelines.

University of Florida law professor Michael L. Seigel, a former federal prosecutor who specializes in criminal law and white-collar crime, says he’s not alone among academics and former prosecutors in thinking that the standard of proof for considering acquitted conduct at sentencing should be raised, the penalties for most drug-related offenses should be reduced, and all mandatory minimum sentences for nonviolent drug offenders should be eliminated.

Some experts, including Berman, say the constitutionality of the practice has been called into question by the court’s most recent pronouncements on the right to a trial by jury and the limits of the federal sentencing guidelines, beginning with Apprendi. The ruling held that a defendant’s sentence cannot ordinarily be increased beyond the statutory maximum without a finding of fact by a jury. In 2005, in U.S. v. Booker, the court held that the once rigid federal sentencing guidelines are only advisory.

That the practice continues despite these recent decisions regarding the importance of jury determinations in sentencing troubles Berman. And some appellate judges are showing signs of misgivings as well.

Last October, a three-judge panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals was about to reverse an enhanced sentence based on acquitted conduct in U.S. v. White, when another panel of the same court did just the opposite in a different case. The first panel then agreed to affirm the sentence it was about to reverse in White, but invited the defendant to seek en banc review on the question of acquitted conduct as a sentencing enhancement in view of Booker.

The defendant took the panel up on its invitation, and the full 6th Circuit agreed to rehear it. The case was argued in early June.

If the full 6th Circuit breaks with other circuits and finds constitutional problems with the practice, the Supreme Court will almost certainly have to settle the matter, once and for all.

Give us feedback, share a story tip or update, or report an error.