“Justice” on the Cheap

As John Adams wrote, “trial by jury is the heart and lungs of liberty. Without it we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

Moreover, the Framers found the jury right so important it is mentioned in no fewer than three places in the Constitution. In fact, the fight for the right to jury trial was a factor leading to the American revolution.

In short, in our country if the U.S. government wants to strip a citizen of their life and liberty and cage them for many years, decades, or the rest of their life, they must first give them notice through indictment-by-grand jury. After that, it must prove beyond a reasonable doubt to 12 jurors every element of each offense. During the trial, there are additional constitutional procedural protections such as the right to face one's accuser—through rigorous adversarial testing.

And let's not forget about the Rules of Evidence, which keep out inadmissible hearsay. 

Simply put, there are vitally important constitutional procedural safeguards that stand between the mighty U.S. government and citizens. Our jury system is the greatest bulwark against injustice and tyranny.

Hogwash. 

Tell that to the men and women who have served years and even decades in federal prison for crimes they were never charged with much less convicted of.  And tell that to people who served years in prison for crimes they were tried for and acquitted of!

No—I’m not talking about the prisoners at Guantanamo Bay. I'm referring to people who have been sentenced in federal courtrooms across the country.

With that in mind…

The presumption of innocence.

The right to a jury trial.

The United States of America touts these bedrock principles of the American system of justice.

But in the real world of federal criminal sentencing proceedings, this is a joke.

At the root of the problem is a legal loophole called “uncharged relevant conduct.”  

In particular, at the sentencing phase in federal court, the Bill of Rights is no more than a mere prop used to create the illusion of justice and fairness.  Under the thin veneer of due process and justice is a "shadow system of justice" in which the criminally accused have little to no substantive constitutional procedural safeguards standing in the way of them and the mighty U.S. government.

Just so there's no confusion, I'll say this. About 15 years ago, I made misrepresentations to 3 high-net-worth investor/victims who lost a combined $106,000. I deserved prison time. I also took full responsibility for my crimes by pleading guilty. But that doesn't change the systemic defects that are the hallmarks of the ruthless federal brand of "justice," which routinely produces overinflated, excessive sentences. I received much more time than most cold-blooded murderers receive.

That brings me to my point. The cornerstone of the federal sentencing paradigm is something called "uncharged relevant conduct." What is so-called uncharged relevant conduct? At the sentencing phase, after a defendant is convicted of one crime, to arrive at an appropriate prison sentence that captures the factual nuances of the crime of conviction, the court is allowed to consider entirely separate crimes that were not charged in the indictment or even mentioned, much less proved to 12 jurors beyond a reasonable doubt at trial or in the guilty plea paperwork—entirely separate crimes the defendant was never charged with, tried for, nor convicted of. Under this loophole, the judge can even add years to a defendant's sentence for the very crimes of which the jury acquitted the accused. 

The concept of  uncharged relevant conduct is supposed to be part of a "smart" or “real” sentencing scheme that allows courts to consider all of the circumstances surrounding the crime of conviction in fashioning a sentence that reflects its true seriousness, but has been skillfully exploited and perverted by calculating prosecutors, looking to get prison time on the cheap, devolving into what the late-Justice Scalia called a "sinister" type of so-called justice and a "nightmare scenario."

It was Plato who said, "The worst form of injustice is pretend justice.”  He was spot on. 

Assuring citizens that they have the presumption of innocence and the right to indictment and a jury trial where the government will have to prove every element of each crime, while a routine practice in the federal system of justice is using entirely separate uncharged, untried crimes and, even more egregiously, crimes for which the accused has been acquitted to cage them for many years or decades, are empty promises—they mean nothing in the real world. 

As I said—a prop.

In truth, you kind of have a right to a jury trial and are kind of afforded the presumption of innocence, but not really. It's more of a half-truth than a reality.  

Under this punishment paradigm, a person can be convicted of a relatively minor crime that merits a few years in federal prison but is sentenced to an additional decade or decades based on entirely separate uncharged, untried crimes—all under the guise of so-called uncharged relevant conduct. Plainly, the relatively minor crime is no more than a vehicle—or an empty vessel—to punish people for much more serious crimes the government does not think it can convict them of. 

Put differently, the much more serious uncharged crime(s) get a free ride, piggybacking on the crime of conviction. This allows savvy prosecutors to hitch the uncharged crimes to the crime of conviction to indirectly accomplish what it could not accomplish directly, resulting in a transparent end-run around the U.S. Constitution's guarantees as they apply to the criminally accused in federal court. 

So, sticking with that hypothetical example, the defendant was given due process and a fair trial regarding the crime of conviction. Still, it wasn't the crime of conviction that drove his sentence—it was the uncharged, untried crime(s) snuck in at the lax sentencing phase, cleverly disguised as mere "sentence enhancements" or "aggravating factors," when in actuality, the uncharged crimes are the gravamen of the case. 

Worse still, as "evidence" to "prove" those uncharged crimes at the sentencing phase, the government can use uncorroborated, unsworn, untested out-of-court hearsay accusations from a highly incentivized "witness" because, again, the same constitutional procedural protections afforded to the criminally accused during a trial do not apply during the flimsy sentencing phase. Your accuser does not have to step foot in the courtroom—you are not allowed to question your accuser; there is no adversarial testing. And beyond the uncorroborated, untested, unsworn out-of-court hearsay, there doesn't have to be a shred of actual evidence. 

It's sentencing—not a trial. 

A person on the TV show Judge Judy in a small claims court has more procedural fairness. 

Thus, by expediently slapping the "sentence factor" label on what is the crux of the case, it allows the government to sneak in the back door what it could not bring through the front door.

In a shaky case, why would the government risk a trial regarding serious crimes when it can find a relatively minor crime that it can easily prove to 12 jurors, then tack on the uncharged, untried crimes at sentencing—when the accused is stripped of the constitutional procedural protections afforded in this country? 

This reduces the proceedings to a hollow, one-sided event where the result is all but baked into the process—pseudo-due process and procedural fairness.

Remember O.J. Simpson? Under this loophole, the government could have convicted him of fleeing in the white Bronco but used the uncharged murder of his ex-wife to imprison him. That is, on paper, O.J. would be convicted of the relatively minor crime of fleeing in the white Bronco, but for all practical purposes, his long sentence would be based on the uncharged, untried murder—no indictment, no jury trial, no beyond-a-reasonable-doubt standard, no right to face his accusers.

Why? Because it would have been easy to prove to 12 jurors the relatively minor fleeing crime but much more difficult and time-consuming to prove the much more serious murder. 

I don't care how you might feel about the O.J. Simpson case, but I'm sure we all want procedural fairness and due—it's universal when it comes to our life and liberty and our loved ones.

In my 2011 case, I was convicted of making misrepresentations to 3 high-net-worth investor/victims, causing a total loss of $106,000. At sentencing, however, the court used entirely separate uncharged, untried crimes from 2004 to add decades to my prison sentence. Thus, my 2011 conviction for my relatively minor 2011 conviction was really a vehicle to punish me for much more serious crimes dating back to 2004 that I was never charged with, tried for, or convicted of.

The "evidence" to support the uncharged 2004 crimes that disproportionately affected my prison sentence in my present 2011 case? Vague, uncorroborated, and untested out-of-court hearsay from a "cooperator" who was never indicted and who was caught lying to the FBI as well as committing additional crimes under their nose while he was "cooperating," that is, helping the government prosecute others so he could avoid prison time.

In my good buddy Ernest Howard's case, he was convicted of a $150 marijuana crime, only to be sentenced to a mandatory pre-Booker 35-year sentence for an uncharged murder. I've heard people say, "But there was a murder in that case!" Then it should be charged in an indictment and proved to 12 jurors beyond a reasonable doubt, not slipped in at sentencing regarding a petty marijuana crime, so as to ratchet up his prison sentence by decades. The murder accusation so blinds people that they miss entirely that this man was sentenced to decades for a crime he was never charged with, much less convicted of.

Similarly, in U.S. v. Fitch, the defendant was convicted of relatively minor white-collar crimes that merited a few years in prison, only to be sentenced to nearly 25 years in prison for the murder of his missing wife—a murder for which he was never charged with, nor convicted of. (There was no body.) That is, the convictions for the relatively minor, nonviolent, white-collar crimes were really a clever way to punish Fitch for an uncharged murder. Since no body was ever recovered, the government didn't want to risk a pesky murder trial, so it used minor, nonviolent crimes to punish Fitch for the murder.

In Randy Bookout's case, he waived indictment by pleading to buying $250 of methamphetamine with the intent to sell it. Then came the bait and switch. He was blind-sided at sentencing. At sentencing, using untested, uncorroborated out-of-court hearsay from a co-defendant who was caught by the prosecutor fabricating stories about other people to reduce his sentence, the court pinned additional uncharged criminal conduct on Randy, causing his sentencing range to leap from 12 - 18 months in prison to nearly 20 years in prison. The high-level players in the case have been home with their families for years because they helped the government prosecute others. Meanwhile, Randy, who is nearly 60 and has never been to prison until now, has been warehoused for almost 2 decades for a low-level, nonviolent drug offense. (Randy's case is a little different because the uncharged relevant conduct didn't constitute separate crimes but additional uncharged criminal conduct.)

Perhaps more shocking is the Mark Hebert case. Mark, a former Louisiana sheriff's deputy, pleaded guilty in 2013 to relatively minor federal crimes for stealing a man's identity in order to drain his bank accounts. But at his sentencing, prosecutors maintained that he murdered the 61-year-old victim, resulting in a de facto life sentence (of 92 years in prison). 

What drove Mark’s 92-year sentence was hardly the relatively minor identity theft crime of conviction. Rather, it was the murder—a murder he was never charged with much less convicted of. The actual crimes of conviction were simply a vehicle to punish Mark for an uncharged, untried murder.

Are you starting to see how this works? It's a plain end-run around the jury system. 

There are thousands of other cases, as this practice is not aberrational but is an integral part of the federal sentencing paradigm.

If someone needs to go to prison for a crime, they must go to prison. Prison is a good place for some people, but the crimes need to be charged in an indictment, then using actual evidence as well as live witness testimony subject to cross-examination (i.e., adversarial testing), the government needs to prove to 12 jurors beyond a reasonable doubt every element of each offense. Instead, we have a shadow system of justice where uncorroborated, untested, out-of-court hearsay is being used as "evidence" to imprison people for uncharged, untried crimes—all under the absurd guise of a "smart" or "real offense" sentencing scheme.

True, some abuses of this loophole are worse than others. The cases in which the uncharged crimes disproportionately increase the sentence are especially unfair, as the core of criminality punished is masquerading as a mere “sentence factor.”

In sum, what was meant to be a tool to help judges tailor a sentence to the factual nuances of the crime of conviction so that the sentence reflects the seriousness of the crime has been perverted and turned into a weapon to cleverly cheat the criminally accused out of their constitutional rights as it relates to their life and liberty. 

Speaking out against this practice, Judge Lay for the Eighth Circuit Court of Appeals pointed out, "If the former Soviet Union or a third world country had permitted [sentencing based on uncharged crimes], human rights observers would condemn those countries." More recently, then-U.S. Court of Appeals judge, now Supreme Court Justice Kavanaugh echoed that sentiment: "Allowing judges to rely on...uncharged conduct to impose a higher sentence than they otherwise would impose seems a dubious infringement of the rights of due process and jury trial." Kavanaugh added, "If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don't you have a right to have a jury find a beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence." U.S. v. Bell, 803 F.3d 926, 928 (D.C. Circuit 2015).

Similarly, when now U.S. Supreme Court Justice Gorsuch was an Appeals Court Judge for the Tenth Circuit, he questioned the constitutionality of this practice, pointing out, "Known as relevant conduct, judge-found facts which often include uncharged and even acquitted conduct driving federal sentences, often increasing terms of imprisonment by years and even decades." 

In 2007, in Jones v. United States, four U.S. Supreme Court Justices were fed up with the practice of allowing the government to convict a defendant of one relatively minor crime only to base his punishment primarily on entirely separate uncharged crimes or other uncharged criminal conduct—and so they wanted to outlaw the practice as unconstitutional. There, they made this emphatic statement: "The Court of Appeals have uniformly taken our [The Supreme Court] continuing silence to suggest that the Constitution does permit unreasonable sentences supported by judicial fact-finding, so long as they were within the statutory range." The court added, "This has gone on long enough." (Emphasis added.)

However, the majority in the high court refused to take on the issue. But that was quite a while ago. With three new Supreme Court Justices—Kavanaugh, Gorsuch, and Jackson—having been appointed since then who have spoken out against the practice, the Supreme Court might have the votes if the issue is revisited.

In a 2017 Supreme Court case, Nelson v. Colorado, the court emphasized the paramount importance of the presumption of innocence in the American justice system. There, the Court asked how the government can use separate uncharged crimes as a vehicle to add additional punishment to the crime of conviction if, in this country, our system of justice says the criminally accused are presumed innocent until proven guilty. The court there issued a ruling that some scholars say actually stands for the proposition that entirely separate uncharged, untried crimes cannot be used to enhance the sentence of a separate crime of conviction. 

The nation's most highly regarded legal scholars have also weighed in on the issue. Allan Ellis, a national expert on federal sentencing law, and Mark Allenbaugh, former sentencing commission lawyer, explained, in an interview with The News, that the relevant conduct loophole is "an end run around the Constitution." "Defendants don't realize this when they go to trial or plead guilty." He added, "If the evidence is strong enough, the government should charge the defendant with a crime and let the jury decide rather than slip it in during sentencing." 

When Ohio State Law Professor/legal scholar Douglas Berman explained this concept to his class, he said that his students thought he was playing a joke on them. I think that says it all. Berman himself has shed light on this unfair practice in detailed studies. The list of highly regarded people in the legal community who denounce this practice goes on and on; there are far too many to note here. 

I could keep going, but you get the point—this is a dangerous legal loophole that undermines the integrity of the federal system of justice, producing a cheap, counterfeit brand of “justice.”