Archive | acquitted conduct

Wednesday, July 11th, 2018

Judge Kavanaugh on Criminal Law: Bad News Except…

Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice Alito.”

There are, however, a few glimmers of hope:

  • Concurring in an opinion reversing a murder conviction for faulty jury instructions, Judge Kavanaugh explained that, notwithstanding the defendant’s “heinous crime,” he was “unwilling to sweep under the rug” that the instructions left the jury with an incorrect understanding of the mens rea requirements governing second-degree murder and manslaughter. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016).
  • In a concurring opinion affirming false statements conviction under 18 U.S.C. § 1001, Judge Kavanaugh cautioned that “§ 1001 prosecutions can pose a risk of

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Categories: 924(c), acquitted conduct, false statements, jury instructions

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Wednesday, May 4th, 2016

Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct

In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing.  The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the evidence and, therefore, not clear error.

The Circuit also rejected Guerra’s argument that the District Court’s reliance on acquitted conduct rendered his sentence unreasonable, holding that it is well-established that a court can rely sentence on the basis of acquitted conduct that is proven by a preponderance of the evidence.…


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Categories: acquitted conduct, drug quantity

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Sunday, November 18th, 2007

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held – again – that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions …


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Categories: acquitted conduct, life, Rule 106, rule of completeness, sentence, Uncategorized

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