Amicus Curiae Brief — Richard Langston, Petitioner v. Connecticut

Case No. 23-5968

In the Supreme Court of the United States

___________

RICHARD LANGSTON, Petitioner,

v.

STATE OF CONNECTICUT, Respondent.

_________

On Petition for a Writ of Certiorari to the

Connecticut Supreme Court

_________

BRIEF OF PROFESSOR DOUGLAS BERMAN AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

_________

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212 872 9800

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

December 20, 2023

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, Colorado 80202

303 830 1776

keith.bradley@squirepb.com

Counsel for Amicus

Professor Douglas

Berman

(i)

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 1

ARGUMENT ............................................................ 5

I.

As Members of this Court and

Lower Courts Recognize, the

Historic Rights and Protections of

Jury Trials are Gravely

Undermined by Heightened

Sentences Imposed Based on JuryRejected Facts. ........................................... 6

II.

By Empowering Prosecutors and

Influencing All Indictments and

Pleas, Acquitted Conduct

Sentencing Impacts the Operation

of the Entire Justice System. ................ 13

CONCLUSION ....................................................... 19

(ii)

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Alleyne v. United States,

570 U.S. 99 (2013)........................................... 3, 7

Apprendi v. New Jersey,

530 U.S. 466 (2000)............................... 1, 3, 7, 11

Batson v. Kentucky,

476 U.S. 79 (1986)............................................... 6

Blakely v. Washington,

542 U.S. 296 (2004).................................... passim

Booker v. United States,

543 U.S. 220 (2005)................................... 5, 7, 19

Duncan v. Louisiana,

391 U.S. 145 (1968)....................................... 7, 13

Jones v. United States,

526 U.S. 227 (1999)............................................. 7

Jones v. United States,

574 U.S. 948 (2014)....................................... 9, 19

McClinton v. United States,

143 S. Ct. 2400 (2023) (Alito, J.,

concurring in the denial of certiorari) ........ 2, 3, 4

Missouri v. Frye,

566 U.S. 134 (2012)........................................... 16

(iii)

Missouri v. Hunter,

459 U.S. 359 (1983) (Marshall, J.

dissenting) ......................................................... 16

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)......................................... 7

Singer v. United States,

380 U.S. 24 (1965)............................................... 6

Southern Union Co. v. United States,

567 U.S. 343 (2012)........................................... 13

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015)

(Kavanaugh, J. concurring) .................... 9, 10, 15

United States v. Brown,

892 F.3d 385 (D.C. Cir. 2018)

(Kavanaugh, J., dissenting in part) ................... 9

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) (Bright, J.,

concurring) .........................................8, 10, 17, 19

United States v. Carvajal,

2005 U.S. Dist. LEXIS 3076 (S.D.N.Y.

Feb. 17, 2005) (Hellerstein, J.) ......................... 11

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005)

(Marbley, J.) .................................................. 8, 10

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) (Barkett,

J., concurring) ............................................... 8, 10

(iv)

United States v. Gaudin,

515 U.S. 506 (1995)......................................... 1, 7

United States v. Haymond,

139 S. Ct. 2369 (2019)......................................... 3

United States v. Ibanga,

454 F. Supp. 2d 532 (E.D. Va. 2006)

(Kelley, J.) ..................................................... 8, 11

United States v. Jones,

744 F.3d 1362 (D.C. Cir. 2014) ......................... 18

United States v. Martinez,

769 Fed. App’x. 12 (2d Cir. 2019)

(Pooler, J., concurring)...................................... 10

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007) (Fletcher,

J., dissenting) ................................................ 8, 10

United States v. Papakee,

573 F.3d 569 (8th Cir. 2009) (Bright, J.,

concurring) .......................................................... 8

United States v. Pimental,

367 F. Supp. 2d 143 (D. Mass. 2005)

(Gertner, J.)................................................... 9, 10

United States v. Safavian,

461 F. Supp. 2d 76 (D.D.C. 2006)

(Friedman, J.) ..................................................... 8

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008)

(Kavanaugh, J.)................................................... 9

(v)

United States v. Tapia,

No. 21-1674, 2023 WL 2942922 (2d Cir.

Apr. 14, 2023) ...................................................... 9

United States v. Watts,

519 U.S. 148 (1997) (Stevens, J.,

dissenting) ........................................................... 8

Williams v. Florida,

399 U.S. 78 (1970)............................................... 6

State Cases

Nelson v. Colorado,

137 S. Ct. 1249 (2017)......................................... 8

People v. Beck,

939 N.W.2d 213 (Mich. 2019) ........................... 11

State v. Cote,

530 A.2d 775 (N.H. 1987) ................................. 11

State v. Langston,

346 Conn. 605, 294 A.3d 1002 (2023)............... 12

State v. Marley,

364 S.E.2d 133 (N.C. 1988) .............................. 11

State v. Melvin,

258 A.3d 1075 (N.J. 2021) ................................ 11

(vi)

Other Authorities

An Offer You Can’t Refuse: How US Federal

Prosecutors Force Drug Defendants to

Plead Guilty, Human Rights Watch 7890 (December 5, 2013)

(https://www.hrw.org/report/2013/12/05/

offer-you-cant-refuse/how-us-federalprosecutors-force-drug-defendantsplead#) ............................................................... 16

Barry L. Johnson, If at First You Don’t

Succeed—Abolishing the Use of

Acquitted Conduct in Guidelines

Sentencing, 75 N.C. L. Rev. 153, 180

(1996) ................................................................. 18

Clark Neily, A Distant Mirror: AmericanStyle Plea Bargaining Through the Eyes

of a Foreign Tribunal, 27 Geo. Mason L.

Rev. 719, 730 (2020).......................................... 15

Erik Lillquist, The Puzzling Return of Jury

Sentencing: Misgivings About Apprendi,

82 N.C. L. Rev. 621, 627–28 (2004) .................. 16

Federal Sentencing Reporter

(https://online.ucpress.edu/fsr) ........................... 1

Jim McElhatton, “Juror No. 6” stirs debate

on sentencing, The Washington Times

(May 3, 2009)

https://www.washingtontimes.com/news/

2009/may/3/juror-no-6-questions-rulesof-sentencing/ .................................................... 18

(vii)

Jim McElhatton, A $600 drug deal, 40 years

in prison, The Washington Times (Jun

29, 2008) ............................................................ 18

Letter from Juror No. 6.......................................... 19

Oral Argument Transcript, McElrath v.

Georgia,

Case No. 22-721, 37:11-19 ................................ 14

INTEREST OF AMICUS CURIAE1

Amicus is a legal scholar who teaches, conducts

research, and practices in the fields of criminal law

and sentencing in the United States.1 Professor

Berman is the co-author of the casebook Sentencing

Law and Policy: Cases, Statutes and Guidelines

(https://www.aspenpublishing.com/DemleitnerSentencingLawAndPolicy5) and has served as an

editor of the Federal Sentencing Reporter

(https://online.ucpress.edu/fsr) for more than a

decade. Professor Berman is also the sole creator and

author of the widely-read blog, Sentencing Law and

Policy, which this Court and numerous lower courts

have cited. He has a professional interest in ensuring

that federal sentencing law is interpreted and applied

in a manner that coherently advances its purposes

and is consistent with longstanding constitutional

principles and with contemporary function in the

criminal law.

SUMMARY OF ARGUMENT

Richard Langston, upon being accused of various

crimes, invoked “constitutional protections of

surpassing importance,” Apprendi v. New Jersey, 530

U.S. 466, 476 (2000), by exercising jury trial rights

“designed ‘to guard against a spirit of oppression and

tyranny on the part of the rulers.’” United States v.

Gaudin, 515 U.S. 506, 510–11 (1995) (citation

1 No counsel for a party authored this brief in whole or in

part. No person or entity, other than amicus curiae, its members,

or its counsel, made a monetary contribution to the preparation

or submission of this brief. The parties received timely notice of

this filing.

2

omitted). Specifically, Langston opted to proceed to

trial after having been charged in connection with a

robbery and shooting in March 1998. At trial, a jury

convicted Langston of robbery in the first degree and

criminal possession of a firearm, but acquitted him of

assault—the only charge based on the shooting.

During the sentencing proceedings, the state

prosecutor, eager to see Langston punished by the

state for an assault for which he was acquitted,

argued to the sentencing court that it should find, by

a preponderance of the evidence, that Langston

committed the assault and that his sentence be

enhanced based on the alleged assault that had

resulted in a jury acquittal.

Over Langston’s

objections, the sentencing court commented at length

on the assault for which Langston was acquitted. It

commented on the impact the shooting had on the

victim, and found that Langston committed the

shooting despite the jury’s contrary verdict. Based on

the court’s findings, including acquitted conduct, the

court imposed a combined twenty-year sentence.

Earlier this year, five members of this Court

engaged in a robust discussion of various “arguments”

and “countervailing arguments” concerning the

consideration of acquitted conduct at sentencing. See

McClinton v. United States, 143 S. Ct. 2400, 2406

(2023) (Alito, J., concurring in the denial of certiorari).

Those statements rightly noted that the use of

acquitted conduct to increase a sentence “raises

important questions that go to the fairness and

perceived fairness of the criminal justice system.” Id.

at 2401 (Sotomayor, J., statement respecting the

denial of certiorari); see also id. at 2403 (Kavanaugh

J., joined by Justices Gorsuch and Barrett, statement

3

respecting the denial of certiorari) (stressing that “use

of acquitted conduct [at sentencing] raises important

questions”). These statements also noted that “better

arguments on both sides of the issues may be

presented” if and when this Court takes up the

constitutionality of the use of acquitted conduct to

increase a sentence. Id. at 2406 (Alito, J., concurring

in the denial of certiorari). This case presents a fitting

and timely vehicle for this Court to grant certiorari,

receive full briefing, and hear all the arguments on

both sides of this important and persistent question

regarding the meaning and application of the jury

trial right in the Sixth Amendment and the due

process right in the Fourteenth Amendment.

This Court, of course, has repeatedly extolled and

stressed the importance of a defendant’s right to have

a jury decide facts essential to punishment: “Only a

jury, acting on proof beyond a reasonable doubt, may

take a person’s liberty. That promise stands as one of

the Constitution’s most vital protections against

arbitrary government.” United States v. Haymond,

139 S. Ct. 2369, 2373 (2019) (plurality op.); accord

Alleyne v. United States, 570 U.S. 99, 114 (2013);

Blakely v. Washington, 542 U.S. 296, 306 (2004);

Apprendi, 530 U.S. at 477. But when a judge relies

on jury-rejected facts to significantly increase a

sentence, the jury trial “promise” becomes empty and

this “vital” protection against the government

becomes illusory.

When this Court denied certiorari in McClinton v.

United States, No. 21-1557, earlier this year, Justices

Sotomayor, Kavanaugh, Gorsuch, and Barrett, noted

that the U.S. Sentencing Commission has been

considering possible amendments to the U.S.

4

Sentencing Guidelines regarding the considering of

acquitted conduct in federal sentencing. But, of

course, action by the Sentencing Commission can

impact only federal sentencing practices and it cannot

and will not provide any constitutional guidance to

state courts that must still regularly address the role

of acquitted conduct sentencing in their criminal

justice systems—wherein the vast majority of

criminal convictions occur. See McClinton, 143 S. Ct.

at 2404 (Alito, J., concurring in the denial of

certiorari) (noting that any action by the Commission

“will not affect state courts, and therefore the

constitutional issue will remain”).

Problematically, many state courts and lower

federal courts continue to read this Court’s

jurisprudence to call for treating acquitted-conduct

fact-finding at sentencing as indistinguishable from

any other form of fact-finding at sentencing. But if oftrepeated statements about the importance of jury

trial rights as a limit on government power are to

have any real purchase and enduring meaning, the

Court should grant review in this case to articulate

limits on judicial authority to dramatically increase a

sentence based on jury-rejected facts.

This case provides a particularly stark example of

how sentence enhancements based on jury-rejected

facts undermine the jury’s constitutionally-defined

role in our criminal system. After a trial resulted in

jury acquittals on the most serious charge against

Langston, prosecutors urged and the judge embraced

factual determinations that directly contradicted

those of the jury, resulting in a higher sentence. It is

time for this Court to clarify that the Constitution

limits judicial reliance on jury-rejected facts. For

5

these reasons, the Court should grant Petitioner’s

petition for a writ of certiorari.

ARGUMENT

After a full and fair trial, the people exercised

suffrage in this case by unanimously voting to acquit

Richard Langston of the most serious charges brought

against him by state officials.

But, perhaps

displeased that the citizenry here functioned “as [a]

circuitbreaker in the State’s machinery of justice,”

Blakely, 542 U.S. at 306, state prosecutors at

sentencing asserted that the sentence could and

should be based on a judicial factual inquisition with

no regard given to the jury’s verdict. Such disregard

of the jury’s findings suggests prosecutorial and

judicial views of the Sixth Amendment as a mere

procedural formality, even though this Court has

repeatedly emphasized that the reach and application

of jury trial rights should not be driven by “Sixth

Amendment formalism, but by the need to preserve

Sixth Amendment substance.” Booker v. United

States, 543 U.S. 220, 237 (2005).

Failing to recognize the constitutional problems

resulting from sentences based on alleged offense

“facts” which were expressly rejected by the jury

verdict, the sentencing court embraced the juryrejected allegations that Langston was involved in

greater criminality. In so doing, the sentencing judge

imposed on Langston a sentence as though he had

been convicted of all charges. The people’s role in

determining the truth and significance of the

prosecutors’ accusations was ignored; Langston’s jury

acquittal on assault was rendered entirely irrelevant

to the lengthy prison sentence he received.

6

When acquittals carry no real sentencing

consequences, prosecutors have nothing to lose (and

much to gain) from bringing multiple charges even

when they might expect the jury to ultimately reject

many such charges. The trial, after all, functions then

merely as just a first bite at the apple, offering

prosecutors a chance to present their case to the jury

and then, even if unsuccessful, present it again to the

sentencing judge so long as the jury finds the

defendant guilty of at least one charge.

This Court has stressed the need “to give

intelligible content to the right of [a] jury trial,”

Blakely, 542 U.S. at 305, and that demands

differentiating between cases in which sentences are

imposed based on facts never contested by a jury and

cases such as the one here in which higher sentences

are imposed based on facts expressly rejected by a

jury.

I.

As Members of this Court and Lower

Courts Recognize, the Historic Rights and

Protections of Jury Trials are Gravely

Undermined by Heightened Sentences

Imposed Based on Jury-Rejected Facts.

This Court has repeatedly emphasized that the

jury-trial right is “clearly intended to protect the

accused from oppression by the Government.” Singer

v. United States, 380 U.S. 24, 31 (1965); see also

Williams v. Florida, 399 U.S. 78, 100 (1970); Batson

v. Kentucky, 476 U.S. 79, 86 (1986) (the jury-trial

right “safeguard[s] a person accused of crime against

the arbitrary exercise of power by prosecutor or

judge”); Gaudin, 515 U.S. at 510; Jones v. United

States, 526 U.S. 227, 244–48 (1999); Apprendi, 530

7

U.S. at 477 (the jury “guard[s] against a spirit of

oppression and tyranny on the part of rulers,” and

acts “as the great bulwark of our civil and political

liberties” (citation omitted)); Blakely, 542 U.S. at 305–

06; Booker, 543 U.S. at 237–39; Alleyne, 570 U.S. at

114 (noting “the historic role of the jury as an

intermediary between the State and criminal

defendants”). This Court has long regarded the jurytrial right as an “inestimable safeguard” protecting a

defendant “against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge.” Duncan v. Louisiana, 391 U.S. 145,

156 (1968). As stressed quite recently, jury trials are

“fundamental to the American scheme of justice.”

Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020)

(quoting Duncan, 391 U.S. at 148–50).

Yet these oft-repeated proclamations ring

disturbingly hollow for Langston and other

defendants if and whenever, after being vindicated by

jury verdicts of not guilty, prosecutors will still be

permitted to seek, and judges will still be permitted

to impose, heightened sentences based on the exact

same criminal allegations the jury expressly rejected.

Acquittals, if given no significance whatsoever at

sentencing, are mere formal matters; acquittals in

name only with no meaningful consequence or limit

on the state’s effort to punish based on the very

allegations the jury unanimously disavowed.

Langston and other defendants subject to sentences

enhanced on the basis of acquitted conduct are left to

wonder just what kind of “bulwark” or “safeguard” the

Sixth Amendments truly provide when prosecutors

and judges can effectively disregard jury findings at

sentencing. Indeed, Langston and other like

8

defendants must find jarring that this Court in

Nelson v. Colorado ruled that after a jury acquittal

“Colorado may not presume a person . . . nonetheless

guilty enough for monetary exactions,” 137 S. Ct.

1249, 1256 (2017) (emphasis in original), and yet

judges, after jury acquittals, may still find defendants

“guilty enough” for liberty deprivation in the form of

prison time. Cf. id. at 1256 n.9 (explaining that the

“presumption

of

innocence

unquestionably”

constitutes a “principle of justice so rooted in the

traditions and conscience of our people as to be ranked

as fundamental”).

Recognizing the fundamental tension between

sentence enhancements based on acquitted conduct

and giving real meaning to jury trial rights, Justices

of this Court and lower court judges have described

the practice of increasing sentences based on juryrejected facts as, among other things, “repugnant,”

“Kafka-esque,”

“uniquely

malevolent,”

and

“pernicious.” See United States v. Watts, 519 U.S. 148,

169–70 (1997) (Stevens, J., dissenting); United States

v. Ibanga, 454 F. Supp. 2d 532, 536 (E.D. Va. 2006)

(Kelley, J.); United States v. Canania, 532 F.3d 764,

776–77 (8th Cir. 2008) (Bright, J., concurring); United

States v. Papakee, 573 F.3d 569, 578 (8th Cir. 2009)

(Bright, J., concurring); see also United States v.

Mercado, 474 F.3d 654, 663 (9th Cir. 2007) (Fletcher,

J., dissenting); United States v. Faust, 456 F.3d 1342,

1349 (11th Cir. 2006) (Barkett, J., concurring); United

States v. Safavian, 461 F. Supp. 2d 76, 83 (D.D.C.

2006) (Friedman, J.); United States v. Coleman, 370

F. Supp. 2d 661, 671 (S.D. Ohio 2005) (Marbley, J.);

United States v. Pimental, 367 F. Supp. 2d 143, 152

(D. Mass. 2005) (Gertner, J.).

9

Notably,

Justice

Kavanaugh

repeatedly

recognized problems with acquitted conduct

enhancements while serving as a Circuit Judge.

Then-Judge Kavanaugh rightly described reliance on

acquitted conduct as “unfair,” United States v. Settles,

530 F.3d 920, 923–24 (D.C. Cir. 2008) (Kavanaugh,

J.); “a dubious infringement of the rights to due

process and to a jury trial.” United States v. Bell, 808

F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J.

concurring); and suggested the Supreme Court might

see fit to “fix” this problem. United States v. Brown,

892 F.3d 385, 415 (D.C. Cir. 2018) (Kavanaugh, J.,

dissenting in part).

The late-Justice Scalia, joined by Justices

Thomas and Ginsburg, dissented from a denial of

certiorari in a case raising this issue in Jones v.

United States, 574 U.S. 948, 948–49 (2014). Justice

Scalia stressed that he found a judge’s fact-finding

which significantly increased a drug defendant’s

sentence to be especially concerning “because not only

did no jury convict these defendants of the offense the

sentencing judge thought them guilty of, but a jury

acquitted them of that offense.” Id. (emphasis in

original).

And, even in the courts of appeals that have read

this Court’s precedents to allow use of acquitted

conduct to enhance sentences, judges continue to

criticize the practice as unconstitutional and unjust.

See e.g., United States v. Tapia, No. 21-1674, 2023 WL

2942922, at *2 (2d Cir. Apr. 14, 2023) (noting that

there exists “a strong case for reconsidering the use of

acquitted conduct to determine sentencing”); United

States v. Martinez, 769 Fed. App’x. 12, 17 (2d Cir.

2019) (Pooler, J., concurring) (stating that the use of

10

acquitted conduct to enhance a defendant’s sentence

is “fundamentally unfair” and runs afoul of the Sixth

Amendment); Canania, 532 F.3d at 776 (Bright, J.,

concurring) (“[T]he consideration of ‘acquitted

conduct’ to enhance a defendant’s sentence is

unconstitutional.”); Faust, 456 F.3d at 1349 (Barkett,

J., specially concurring) (“I strongly believe . . . that

sentence enhancements based on acquitted conduct

are unconstitutional”); Mercado, 474 F.3d at 658

(Fletcher, J., dissenting) (“Reliance on acquitted

conduct in sentencing diminishes the jury’s role and

dramatically undermines the protections enshrined

in the Sixth Amendment.”). As aptly noted by Judge

Millett of the D.C. Circuit in describing the

evisceration of the jury bulwark, “when the central

justification the government offers for such an

extraordinary increase in the length of imprisonment

is the very conduct for which the jury acquitted the

defendant, that liberty-protecting bulwark becomes

little more than a speed bump at sentencing.” Bell,

808 F.3d at 929 (Millett, J., concurring); see also id. at

927 (Kavanaugh, J., concurring) (“I share Judge

Millett’s overarching concern about the use of

acquitted conduct at sentencing”).

Likewise, more than a few district courts have

concluded that sentencing based upon conduct for

which

the

defendant

was

acquitted

is

unconstitutional. See, e.g., Coleman, 370 F. Supp. 2d

at 671 (Marbley, J.) (“[T]he jury’s central role in the

criminal justice system is better served by respecting

the jury’s findings.” (emphasis in original)); Pimental,

367 F. Supp. 2d at 152 (Gertner, J.) (“To consider

acquitted conduct trivializes ‘legal guilt’ or ‘legal

innocence’—which is what a jury decides”); Ibanga,

11

454 F. Supp. 2d at 539 (Kelley, J.) (“Punishing

defendant Ibanga for his acquitted conduct would

have . . . resulted in unjust punishment”); United

States v. Carvajal, 2005 U.S. Dist. LEXIS 3076, at

*10–11 (S.D.N.Y. Feb. 17, 2005) (Hellerstein, J.)

(declining to consider acquitted conduct at

sentencing).

Notably, a number of state supreme courts have

recognized, both recently and even before this Court’s

modern Apprendi jurisprudence, the serious

constitutional problems with enhancing a sentence

based on acquitted conduct. See, e.g., People v. Beck,

939 N.W.2d 213, 226 (Mich. 2019); State v. Cote, 530

A.2d 775 (N.H. 1987) (“We think it disingenuous at

best to uphold the presumption of innocence until

proven guilty. . . while at the same time punishing a

defendant based upon charges in which that

presumption has not been overcome.”); State v.

Marley, 364 S.E.2d 133 (N.C. 1988) (concluding that

“due process and fundamental fairness precluded the

trial court from aggravating defendant’s” sentence

with acquitted conduct); see also State v. Melvin, 258

A.3d 1075, 1078 (N.J. 2021) (“fundamental fairness

prohibits courts from subjecting a defendant to

enhanced sentencing for conduct as to which a jury

found that defendant not guilty”). These rulings,

often grounded in rights safeguarded by the Fifth and

Fourteenth Amendments’ guarantee of due process

and the Sixth Amendment’s jury trial right, recognize

and confront the fundamental problems with allowing

prosecutors and judges to nullify jury findings at

sentencing.

In this case, the Connecticut Supreme Court

noted that many courts have “expressed displeasure

12

with the practice” of acquitted-conduct sentencing

and noted a “push to prohibit the practice.” State v.

Langston, 346 Conn. 605, 630, 636, 294 A.3d 1002,

1017, 1020 (2023). The Connecticut Supreme Court

urged “extreme[] caution” in trial courts relying on

acquitted conduct during sentencing. See id. at 609.

Although the court did not “endorse the practice,” it

rejected Mr. Langston’s constitutional challenge

based in part on the Supreme Court’s historical

jurisprudence in the sentencing context. See id. at

609; see generally id. at 614-23. The Connecticut

Supreme Court also observed the “very broad

discretion” of its state courts “in imposing any

sentence within the statutory limits.” See id. at 627.

But, in practice, this “very broad discretion” to impose

any sentence within statutory limits that is common

in many state justice systems can serve to make the

express use of acquitted conduct to increase a

sentence even more constitutionally problematic than

in federal sentencing. Under federal sentencing law

and practice, the use of Guidelines as a benchmark

and the review of sentences for reasonableness can,

both formally and practically, sometimes constrain

the impact of acquitted conduct at sentencing in many

cases. But, because many state systems do not tether

the exercise of sentencing discretion within broad

statutory ranges to any guidelines or provide a

meaningful mechanism for appellate review, decades

of imprisonment might often turn on the

consideration of acquitted conduct in state

sentencing.

The circumstances of this case highlight just one

of many situations in which sentencing consideration

of acquitted conduct dramatically impacts individual

13

rights and liberties. And it is time for this Court to

directly address and clearly explain that, for the

judicial system to demonstrate genuine respect for

the “jury’s historic role as a bulwark between the

State and the accused,” Southern Union Co. v. United

States, 567 U.S. 343, 350 (2012), the Constitution

places some limits on judicial reliance on jury-rejected

facts in sentencings.

II.

By

Empowering

Prosecutors

and

Influencing All Indictments and Pleas,

Acquitted Conduct Sentencing Impacts

the Operation of the Entire Justice

System.

Allowing the consideration of jury-rejected facts

at sentencing undermines our criminal justice system

by taking liberty-protecting authority away from the

people and giving it back to the state and its agents.

From

Langston’s

and

similar

defendants’

perspectives, their jury trials served not as a

mechanism to “prevent oppression by the

Government,” Duncan, 391 U.S. at 155, but rather as

prosecutors’ means to enjoy the first of two distinct

chances to convince either of two courtroom decisionmakers that a defendant should be punished based on

questionable accusations.

Not only does this

approach degrade a fundamental constitutional right,

it also undermines confidence in the entire criminal

justice system.

Justice Gorsuch recently provided an effective

primer on how our Nation views jury decision-making

during oral argument in a case involving one state’s

efforts to skirt Double Jeopardy issues in the face of a

jury acquittal: for “230 years in this . . . country’s

14

history, we have respected acquittals without looking

into their substance and without looking into how

they fit with other counts and said a jury is a check

on judges, it’s a check on prosecutors, it’s a check on

overreach, it’s part of our democratic system, and we

do not ever talk about whether they make sense to

us.” Oral Argument Transcript, McElrath v. Georgia,

Case No. 22-721, 37:11–19. As Justice Gorsuch

further put it, “for 230 years . . . a verdict on a count

is sacrosanct.” Id. at 39:16–18. “An acquittal is an

acquittal is an acquittal.” Id. at 40:9–10. But for

criminal defendants sentenced on the basis of

acquitted conduct, an acquittal is neither “sacrosanct”

nor serves as an effective check on judges or

prosecutors. Rather, when a sentence can be based

on acquitted conduct, a jury trial regarding disputed

allegations by the state serves just as a useful dress

rehearsal for a prosecutor to seek to show to a judge

why the defendant should be punished regardless of

the jury verdict on various counts.

Indeed, acquitted-conduct sentencing provides

prosecutors with significant benefits (and no obvious

costs) from always alleging and pursuing any and

every charge at their disposal among “the sprawling

scope of most criminal codes.” Blakely, 542 U.S. at

311. This circumvention of the jury’s work enables

overzealous prosecutors to run roughshod over the

traditional democratic checks of the adversarial

criminal process the Framers built into the U.S.

Constitution. Prosecutors can brazenly charge any

and all offenses for which there is a sliver of evidence,

safe in the belief they can renew their allegations for

judicial reconsideration as long as the jury finds that

the defendant did something wrong. This enhances

15

prosecutorial power at each major stage of a criminal

prosecution.

First, at the outset of criminal cases, prosecutors

can pursue every possible charge in order to increase

plea bargaining leverage because they know there

will be no real sentencing consequences even upon a

jury acquittal on most charges. See Clark Neily, A

Distant Mirror: American-Style Plea Bargaining

Through the Eyes of a Foreign Tribunal, 27 Geo.

Mason L. Rev. 719, 730 (2020) (“American prosecutors

possess a wide array of levers that they can—and

routinely do—bring to bear on defendants to persuade

them to waive their right to trial and simply plead

guilty instead[,] . . . [including] threatening to use

uncharged or even acquitted conduct to enhance a

defendant’s sentence”). Prosecutors are functionally

encouraged to over-charge defendants, knowing that

if they obtain a conviction on at least one count, they

can “ask[] the judge to multiply a defendant’s

sentence many times over based on conduct for which

the defendant was just acquitted.” Bell, 808 F.3d at

932 (Millett. J, concurring).

Indeed, the prospect of future acquitted-conductbased sentences requires competent defense

attorneys in multi-count cases to inform their clients

that securing a jury acquittal on many charges at trial

may produce little or no practical sentencing benefit

but likely still will preclude the defendant from

receiving any sentencing credit for accepting

responsibility. It is little wonder plea bargaining now

“is the criminal justice system,” Missouri v. Frye, 566

U.S. 134, 144 (2012), when sentencing rules require

defense attorneys to advise clients that pleading

guilty even to the most questionable of government

16

charges may result in a better sentencing outcome

than if a jury were to reject those charges at a trial.

See generally An Offer You Can’t Refuse: How US

Federal Prosecutors Force Drug Defendants to Plead

Guilty, Human Rights Watch 78-90 (December 5,

2013) (https://www.hrw.org/report/2013/12/05/offeryou-cant-refuse/how-us-federal-prosecutors-forcedrug-defendants-plead#).

Second, as criminal cases proceed to trial,

prosecutors can continue to pursue any and every

possible charge, knowing there will be no real

sentencing consequences after any jury acquittal.

Doing so, even if the evidence supporting many

charges may be weak or becomes suspect, enables

prosecutors to increase the chances that a jury will be

drawn into “making a determination that the

defendant at some point did something wrong.”

Blakely, 542 U.S. at 307. The more charges that

prosecutors pursue against a defendant at trial, the

more likely it becomes that the defendant will be

convicted on at least one. That is, “[t]he prosecution’s

ability to bring multiple charges increases the risk

that the defendant will be convicted on one or more of

those charges.” Missouri v. Hunter, 459 U.S. 359, 372

(1983) (Marshall, J. dissenting); see also Erik

Lillquist, The Puzzling Return of Jury Sentencing:

Misgivings About Apprendi, 82 N.C. L. Rev. 621, 627–

28 (2004) (“The ‘compromise’ and ‘decoy’ effects

predict that when the jury is presented with more

than one guilty option, the percentage of defendants

found not guilty of both offenses will be lower than the

percentage of defendants found not guilty when there

is just one charge.”). In this arrangement, thanks to

acquitted conduct sentencing, the prosecution need

17

not really prove, beyond a reasonable doubt, “the facts

of the crime the State actually seeks to punish.”

Blakely, 542 U.S. at 306–07. So long as it secures a

conviction on something—even if only a relatively

minor charge—the prosecution can achieve its

intended sentence simply by persuading the judge of

the defendant’s conduct by a preponderance of the

evidence.

Third, as criminal cases reach sentencing, and

after having enjoyed the benefit of the jury trial

serving as a dress rehearsal, prosecutors can and

often will become even more aggressive in the

presentation of offense allegations and related

accusations.

As in this case, prosecutors can

persistently tell judges that they should disregard

any and all jury acquittals, rather than reflect upon

and respect the democratic judgment represented by

a jury verdict. Judicial use of acquitted conduct thus

permits and prompts prosecutors to directly disregard

and immediately undermine the jurors’ efforts and to

minimize the meaning and value of the citizenry’s

deliberative process and perspective. See Canania,

532 F.3d at 776 (Bright, J., concurring) (“We have a

sentencing regime that allows the Government to try

its case not once but twice. The first time before a

jury; the second before a judge.”). This practice

“undermines the defendant’s fundamental interest in

verdict finality, exposing the defendant to a second

mini-trial on conduct underlying the count of

acquittal.” Barry L. Johnson, If at First You Don’t

Succeed—Abolishing the Use of Acquitted Conduct in

Guidelines Sentencing, 75 N.C. L. Rev. 153, 180

(1996).

18

Finally, the allowance of acquitted-conduct-based

sentences not only marginalizes the work of one of the

criminal justice system’s most critical participants—

jurors—but it also risks leading jurors to no longer

take their work seriously. Jurors are unlikely to be

dedicated to their task when observing that their

supposedly significant constitutional role in our

justice system is regularly undermined at sentencing

and their findings ignored without explanation.2

As this and similar cases demonstrate, the

practice of judges significantly enhancing sentences

based on jury-rejected facts “has gone on long

Take, for instance, the experience of a juror in the trial of

Antwaun Ball, who was sentenced to 225 months in prison based

on an acquitted-conduct Guidelines range after the jury

acquitted him of all but one charge, the Guidelines range for

which would have been 57-71 months. See United States v.

Jones, 744 F.3d 1362 (D.C. Cir. 2014). Upset to learn of the

heightened sentence, the juror wrote to the judge to comment

that it was a “tragedy that one is asked to serve on a jury, serves,

but then finds their work may not be given the credit it

deserves,” and lamented that the “defendants are being

sentenced not on the charges for which they have been found

guilty but on the charges for which the District Attorney’s office

would have liked them to have been found guilty.” See Jim

McElhatton, A $600 drug deal, 40 years in prison, The

Washington

Times

(Jun

29,

2008),

https://www.washingtontimes.com/news/2008/jun/29/a-600drug-deal-40-years-in-prison/; Jim McElhatton, “Juror No. 6”

stirs debate on sentencing, The Washington Times (May 3, 2009)

https://www.washingtontimes.com/news/2009/may/3/juror-no-6questions-rules-of-sentencing/. He detailed the toll of jury

service, and the disappointment when the result of that toll falls

on deaf ears: “What does it say to our contribution as jurors when

we see our verdicts, in my personal view, not given their proper

weight.” Canania, 532 F.3d at 778 n.4 (Bright, J., concurring)

(quoting Letter from Juror No. 6, citation omitted).

2

19

enough.” Jones, 574 U.S. at 949. This Court should

take up Petitioner’s case in order to again ensure that

the “right of jury trial [will] be preserved, in a

meaningful way guaranteeing that the jury [will] still

stand between the individual and the power of the

government.” Booker, 543 U.S. at 237.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

211 Avenue of the

Americas, 26th Floor

New York, NY 10036

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

December 20, 2023

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, Colorado 80202

303 830 1776

keith.bradley@squirepb.com