The American Justice System's Dirty Little Secret: How The Federal Government Uses Crimes People Are Never Charged With, Tried For, or Convicted of to Imprison Them For Many Years or Decades

Did you know? A dirty little secret is part of the federal brand of "justice." 

There is a dangerous loophole in federal criminal court—after a defendant is convicted of one relatively minor crime, the judge can actually add many years or decades of prison time using much more serious, entirely separate crimes the defendant was never charged with, tried for, or convicted of. 

The trick is for the government to convict the defendant of anything—no matter how petty or relatively minor. Why? Because at sentencing for the relatively minor crime, in adding additional prison time based on separate uncharged, untried crimes, the rules are different; that is, the same constitutional safeguards that protect the criminally accused do not apply at the sentencing phase. 

That means, regarding the uncharged crimes, there is no indictment, no trial by jury, no beyond-a-reasonable-doubt standard, and no right to confront your accuser. And since the Rules of Evidence don't apply at the sentencing phase, even flimsy uncorroborated, untested out-of-court hearsay can be used as "evidence" of the uncharged crimes.

With these constitutional firewalls down, it's open season on the accused. Still confused. Think of it like this. Ernest is convicted of having someone sell $150 of marijuana over 3 days. He's looking at probation to 12 months in prison, a relatively minor crime. At sentencing, however, the prosecutors told the judge that Ernest was responsible for an uncharged, untried murder that took place where the marijuana was sold. Instead of the expected sentence ranging from probation to 12 months in prison, Ernest was given a 35-year federal sentence for the murder.

Did I lose you?

The vehicle for the 35-year sentence was the petty marijuana conviction, but the 35-year sentence was based on the murder—for which Ernest was never even charged! The petty marijuana conviction is nothing more than a shell, an empty vessel. By using the crime of conviction (the marijuana crime) as a shell, at sentencing, the government disguised the core of criminality punished (the uncharged murder) as a mere "sentence factor" in relation to the marijuana conviction, and just like that, the safeguards the U.S. Constitution promises the criminally accused in this country are worthless in practice. Thus, by disguising the uncharged murder as a mere sentence enhancement for the marijuana offense, the government doesn't have to bother with a murder indictment or murder trial or real evidence, or actual witness testimony subject to cross-examination and adversarial testing. Instead, the government used the petty marijuana conviction to indirectly accomplish what it couldn't accomplish at a murder trial. 

In discussing this dubious practice, the late Justice Antonin Scalia made a powerful statement: "If the protections extended to the criminal defendants by the Bill of Rights can so easily be circumvented, most of them would be...vain and idle enactments, which accomplish nothing." Justice Scalia called the practice "sinister." If the government can sidestep the greatest bulwark against injustice—proving beyond a reasonable doubt the crimes to all 12 jurors—by simply hitching the uncharged crimes to a separate crime that a defendant was convicted of, to indirectly punish the defendant for the uncharged crimes the government can't prove because of the constitutional hurdles, what good are the protections promised by our Bill of Rights in the first place? 

Yet this is still perfectly legal in federal court. In fact, this practice flourishes in the federal system of "justice."

This is a real case, by the way: https://www.thejusticeprojecttexas.com/cases/ernesthoward

And it's just one example of a very long list of similar cases.

In my 2011 securities fraud case, when I was 30 years old, I made misrepresentations to 3 high-net-worth investor/victims, causing them to lose a combined $106,000. In a world of securities frauds that involve tens of millions or hundreds of millions or billions in losses, affecting hundreds or thousands of investor/victims, my crime was a relatively minor, low-level offense. Thus, my sentencing range was about 3 to 5 years in prison.

But the Probation Department (which prepares the sentencing report for the judge, which calculates an offender's sentencing range) had a little surprise for me at my sentencing hearing. Thus, the government maintained at my sentencing that about seven or eight years before my crime of conviction, when I was twenty-two years old, I worked at a company called The Pointer Group. According to the government, in 2004, The Pointer Group raised $2.7 million from 62 investor/victims. I was never arrested, charged, or convicted for these separate, uncharged crimes. I was never even questioned about them. The judge reasoned that since I worked at The Pointer Group, I am responsible for the $2.7 million raised and the 62 investor/victims.  

But what does the $2.7 million from 2004 involving an entirely unrelated company that I worked for over 3 months have to do with my 2011 crime of conviction? Nothing. But by hitching the uncharged 2004 crimes ($2.7 million in losses + 63 investor/victims) to my 2011 crime of conviction ($106,000 in losses + 3 investor/victims), it inflated the size of my present 2011 case and increased by decades the number of years I must spend in a cage. 

There are a few interesting facts about this. First, in 2004 I worked, as a low-level salesman, at The Pointer Group for 3 months—3 months. I had no managerial duties nor controlled anything. This was undisputed. Second, most of the $2.7 million raised was raised when I didn't even work at the company. This was undisputed. Third, my take of the $2.7 million was less than 1 percent of the $2.7 million—less than 1 percent. 

Fourth, even though the government swears up and down that the owners (Bill and Roy) of The Pointer Group committed fraud in raising the $2.7 million, that they enriched themselves and pocketed more than $1 million, the government never charged them with a crime. No, they did not cooperate with the government; they vehemently maintained their innocence. 

Fifth, there was a civil case. The investors who lost the $2.7 million sued Tracy Pool, the man who owned Reunion Resources and controlled everything. I wasn't involved, and I wasn't deposed nor questioned. After investors sued Pool, sworn depositions ensued. During sworn depositions, Pool maintained that after The Pointer Group used its salesforce to raise the $2.7 million in 2004, rather than invest it, he pocketed it. But Pool openly testified that he carried out the fraud alone and that The Pointer Group had no knowledge of his fraud. I worked for The Pointer Group in 2004, and I did not know Pool at that point. Importantly, Pool was a star government witness who helped the government prosecute many people associated with his frauds. Yet government witness Pool said that I wasn't involved in the fraud.

Sixth, if a star government witness who was the architect of the fraud provided sworn testimony that I wasn't in on his fraud, What was the  "evidence" that I am responsible for the $2.7 million tied to the uncharged crimes? 

No problem. In an unsworn, out-of-court interview, someone told an FBI agent that after The Pointer Group raised most of the $2.7 million in 2004, he told me that he thought it was all a scam and that I shrugged it off by saying, "I don't care. I just want to make money." A person said that, after The Pointer Group raised the $2.7 million, he told me that he thought it was all a scam is evidence that I'm responsible for those uncharged crimes? This person was a salesman for Tracy Poole, who stole Pool's company credit card, fraudulently billed tens of thousands of dollars due to a crack binge, and was caught lying to federal agents and committing felonies while "cooperating" with federal agents.

In other words, to support uncharged crimes that were primarily used to imprison me for decades, the government used unsworn, uncorroborated, untested out-of-court hearsay from a known liar. Yeah, that sounds about right. Of course, since these are uncharged 2004 crimes used to increase my sentence for an entirely and wholly unrelated different 2011 charged crime, I didn't have a right to face my accuser, which, even if true, doesn't even support the accusations, so there's that.

And none of the details really matter because I don't get a jury trial regarding these uncharged crimes. Why? Because they are disguised as mere "sentence factors" in relation to my 2011 crime of conviction: making misrepresentations to 3 investors, causing a $106,000 loss. 

In this country, I have a right to an indictment by a grand jury and a right to a jury trial, yet I can be caged for decades in large part of crimes I was never charged with, much less convicted of. Likewise, the presumption of innocence is supposed to lie at the core of the American justice system, yet without an indictment or trial, I'm imprisoned for decades largely for uncharged, untried crimes. With that, these rights don't really mean much—it's a counterfeit brand of justice.

To really appreciate just how the federal government can exploit this dangerous loophole, take O.J. Simpson. Let's say his crimes were federal rather than state. In federal court, the government could have convicted him of fleeing in a vehicle, then at sentencing for that relatively minor crime, the judge could have sentenced him for the uncharged murder of his ex-wife Nicole. How? By calling the uncharged murder a sentence factor related to the fleeing charge. This is how the loophole is exploited. It would allow the government to indirectly punish O.J. Simpson for the murder by disguising it as a mere "sentence factor" related to the fleeing charge—no pesky trial, no pesky cross-examination or live witness testimony, and certainly no pesky jury.

In its simplest terms, my 2011 $106,000 securities fraud conviction was just a vehicle to punish the uncharged crimes in the form of $2.7 million in losses dating to 2004. 

We denounce countries like Russia for their unfair system of justice. Sure, the American federal justice system masks the realities in ways that obscure injustice with a veneer of pseudo-process and procedure, putting a phony gloss of reliability on the proceedings. But the proceedings are one-sided, superficial, hollow proceedings in which the result is baked into the process. And that's the beauty of it. 

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 as unconstitutional the practice. 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 factfinding, so long as they were within the statutory range." "This has gone on long enough." (Emphasis added.)

The majority in the high court, however, 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.

And 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, 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, much too lengthy to note here.

I wonder what the founding fathers would have to say about an American system of justice that allows the federal government to imprison men and women for many years or even decades for crimes they were never charged with, much less convicted of. 
Despite all the patter, this practice is alive and well—so much so it's woven into the fabric of the federal sentencing scheme and is a vital part of the federal brand of "justice." In other words, it's a systemic issue that routinely leads to excessive sentences that are unrelated to the actual crime of conviction. But all the outrage against this practice is cold comfort for people like Ernest and me who continue to languish in prison in large part for entirely separate crimes that we were never charged with, tried for, or convicted of. 

Make no mistake; I deserved prison time. But 30 years without parole for making misrepresentations to 3 high-net-worth investor/victims who lost a combined $106,000 is overkill. Ernest's case as well as my case exemplifily the harm that impacts real human beings when these legal loopholes are exploited, abused, and taken to the extreme.

In all the talk about reform, you'll never hear about the real absuses that yield these outrageously long prison sentences, because they are subtle. Instead, Congress finally tweaks the most outdated, draconian laws that are grotesquely unfair and then touts those charges are sweeping criminal justice reform.  In reality, it's just superficial tweaks designed to create the illusion of substantive change. But make no mistake—the mass federal caging apparatus is humming along.