finding that the production of a document in discovery is implicit authentication
How later courts described this case
- finding that the production of a document in discovery is implicit authentication
- "[A] sentencing court may consider uncorroborated hearsay that the defendant has had an opportunity to rebut, illegally obtained evidence, and evidence for which the defendant has not been prosecuted."
- “Even if, as here, the testimony of an immunized witness unexpectedly runs in favor of the defense, a trial court does not abuse its discretion by advising the jury to view it with caution and great care.” (internal quotation marks omitted)
- a sentencing court may consider uncorroborated hearsay so long as the defendant has had an opportunity to rebut it
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
concurring.
I join the principal opinion and the judgment of the court. The question of whether a sentencing judge may consider the *875 underlying facts of a charge which resulted in an acquittal of the defendant is a difficult and troublesome one. Although the case law is hardly a seamless garment, it does appear, as the principal opinion suggests, that this circuit has joined the majority of other circuits in holding that the sentencing judge may consider such information. As the principal opinion notes, we expressed approval of the majority position in United States v. Cardi, 519 F.2d 309 , 314 n. 3 (7th Cir.1975). Among our more recent reiterations of this principle, the language in United States v. Fanner, 920 F.2d 1330, 1332 (7th Cir.1990), is perhaps the most succinct:
Nothing in either the guidelines or the Constitution prevents a judge from taking account of conduct in which the defendant engaged, whether or not an acquittal prevents the imposition of criminal penalties directly on that conduct. A verdict of “not guilty” does not mean that the defendant didn’t do it; it means that the prosecution failed to establish culpability beyond a reasonable doubt.
On the other hand, in United States v. Perez, 858 F.2d 1272, 1277 (7th Cir.1988), this court appeared to limit the general rule when it wrote that “this court has upheld the trial court’s consideration of a prior acquittal as long as the acquittal is not relied upon to enhance the sentence.” Furthermore, as the principal opinion points out, in United States v. White, 888 F.2d 490, 499 (7th Cir.1989), a panel of this court suggested in dicta that “it might make sense to treat an acquittal as a bar in order to avoid both nice questions of proof and appearance of inconsistency.” Moreover, recently, in United States v. Brady, 928 F.2d 844, 851 (9th Cir.1991), a panel of the Ninth Circuit has held that “[w]e would pervert our system of justice if we allowed a defendant to suffer punishment for a criminal charge for which he or she was acquitted.”
While the holding of the Ninth Circuit and the dicta in some of the opinions in this circuit raise serious doubts, and might even carry the day if this were a matter of initial impression and a matter purely within the cognizance of the judiciary, I believe that Chief Judge Wallace was correct in his partial dissent in Brady when he noted that the statutory mandate of 18 U.S.C. § 3661 as well as the doctrines of stare decisis and precedent require affirmance here. See 928 F.2d at 854-57 (Wallace, C.J., concurring in part and dissenting in part). The Supreme Court has already granted certiorari in several cases raising analogous questions. See, e.g., United States v. Williams, 910 F.2d 1574 (7th Cir.1990), ce rt. granted, — U.S. -, 111 S.Ct. 1305 , 113 L.Ed.2d 240 (1991); United States v. Braxton, 903 F.2d 292 (4th Cir.), cert. granted, — U.S.-, 111 S.Ct. 426 , 112 L.Ed.2d 410 (1990). If Brady is the preferable view, the Supreme Court shall tell us in due course. In the meanwhile, we ought to follow, as the principal opinion does, the plain wording of the statute and the weight of authority.