Could you use that in a sentence, please? The intersection of prosecutorial ethics, relevant conduct sentencing, and criminal RICO indictments.

AuthorMcClintock, William S.

INTRODUCTION

In the last fifty years, two developments transformed federal criminal law. First, Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) (1) in 1970, allowing federal prosecutors to convict those who use enterprises to conduct patterns of racketeering activity. (2) Second, the United States Sentencing Commission promulgated the federal Sentencing Guidelines in 1987, (3) providing a complex sentencing framework intended to create uniformity while still preserving judges' power to consider the unique characteristics of each crime and defendant.

Both developments have enhanced the power of federal prosecutors. RICO allows prosecutors to achieve elevated sentences for convicted racketeers and to seize the proceeds of racketeering activity. (4) Because the Sentencing Guidelines reduce the sentencing discretion of the judge and place increased weight on the charges that the prosecutor brings, they give the prosecutor greater influence over a defendant's final sentence. (5) Although scholars have studied both RICO and the Sentencing Guidelines in depth, very little has been written about the ways in which the two frameworks interact.

This Note highlights a potential prosecutorial abuse at the intersection of RICO and the Sentencing Guidelines; specifically, how a weak RICO charge can create an unfair sentencing advantage over a defendant who is acquitted of that charge but is still convicted of at least one other count. Because this sentencing strategy involves two complex statutory frameworks, this Note requires a detailed overview of both the RICO Act and the current sentencing regime; this is necessary to clearly demonstrate how a faulty RICO indictment can be used to conceptually tie together otherwise unrelated acts and achieve an increased sentence under "relevant conduct" sentencing.

Part I will describe the United States Sentencing Guidelines, focusing on the concept of "relevant conduct" sentencing. Part II will discuss the key concepts of RICO, looking closely at the "relatedness" requirement for a RICO "pattern of racketeering activity." Part III will demonstrate how a prosecutor could use a weak RICO charge and allege a "pattern of racketeering activity" to connect two unrelated acts to one another, in order to argue later that these unrelated acts were part of the "same course of conduct or common scheme" for the purposes of relevant conduct sentencing. This Part will examine the corruption trial of former Alabama Governor Don Siegelman to illustrate how RICO's "pattern" concept can lead to post-trial confusion when evaluating a defendant's "common scheme of conduct" at sentencing. Part IV will argue that a prosecutor who intentionally confuses these concepts to gain sentencing leverage behaves both unethically and in a manner contrary to the purposes of the United States Sentencing Guidelines. As a result, this Note will recommend that judges be informed of this problem and that the Department of Justice prohibit this use of RICO indictments as part of its already-established RICO oversight process.

  1. THE FEDERAL SENTENCING GUIDELINES AND "RELEVANT CONDUCT"

    1. Historical Overview

      In 1984, Congress passed the Sentencing Reform Act of 1984. (6) The Sentencing Reform Act established a seven-member Sentencing Commission to draft Sentencing Guidelines that would take effect in late 1987. (7) The Sentencing Reform Act had as its twin goals achieving "honesty in sentencing" and eliminating unjustifiably "wide sentencing disparity." (8) Tasked with these goals, the Commission set out to transform a byzantine and chaotic array of federal criminal statutes into a transparent, consistent, and equitable sentencing system.

      At their core, the Sentencing Guidelines are a struggle between a "real-offense" sentencing regime and a "charge-offense" system. (9) In a real-offense system, the prosecutor brings charges under a particular federal criminal statute. Once a defendant is convicted, however, that statute serves no other purpose than to provide the mandatory, but often wide range within which a judge must sentence the defendant. (10) When sentencing, the judge is able to consider factors that were not proven beyond a reasonable doubt at trial. (11) The goal is to sentence a person for the "real" crime that he or she committed, with all of the unique circumstances that aggravate or mitigate the seriousness of the offense. The consequence, however, is that two defendants who are convicted of the exact same code violation can receive widely disparate sentences merely because they appear before different judges who happen to prioritize their sentencing factors differently. At its worst, a real-offense system can lead to a situation where a defendant's sentence is determined more by the courtroom he is assigned to than the crime he commits. The federal sentencing regime prior to the promulgation of the Guidelines was a real-offense system, (12) and these are some of the very concerns that helped spur the passage of the Sentencing Reform Act.

      A charge-offense system, in contrast, restrains the judge's discretion and affords more weight to the prosecutor's formal charges. If a defendant is convicted in a pure charge-offense system, he receives the exact sentence prescribed for that code violation. Sentence disparities are nonexistent, and defendants' punishments are not determined by a particular judge's individual priorities. Unfortunately, a charge-offense system provides uniformity at the expense of carefully tailored sentences. (13)

    2. Applying the Guidelines

      The finalized Sentencing Guidelines are a blend of real-offense and charge-offense considerations, and they are often referred to as a "modified real-offense" system. (14) Charge-offense rules set a common foundation for all sentences, but real-offense considerations trigger structured changes to the baseline sentence. In this way, violations of the same code provision begin at the same starting point but are altered to result in an individually tailored sentence.

      At the most general level, a defendant's sentence is determined by the interaction between his "offense level" and his "criminal history." Under the Guidelines Manual, the sentencing judge (15) calculates a numerical "score" for both the crime's offense level and the defendant's criminal history. The judge then applies these "scores" to the Sentencing Table in Chapter Five of the Sentencing Guidelines. The offense level forms the vertical axis of the sentencing grid, and the criminal history level is the horizontal axis. (16) The defendant's sentence, stated in months, is provided at the intersection of the two axes. The Sentencing Table reduces the complex considerations that govern criminal sentencing into a calculation of stark simplicity.

      A defendant's overall offense level, which forms the Sentencing Table's vertical axis, consists of three distinct components added together: the "base offense level," the "specific offense characteristics," and any "applicable general adjustments." (17) The base offense level, which forms the foundation for the overall offense level, (18) is determined solely by looking at the "offense of conviction." (19)

      After determining the base offense level, the court determines whether any "specific offense characteristics" apply to elevate or reduce the offense level. (20) Specific offense characteristics take into consideration factors that aggravate or mitigate the seriousness of the crime. (21) Each offense of conviction has special offense characteristics that are unique to that particular type of offense, and they often deal with the quantifiable aspects of a crime. For example, the specific offense characteristics for larceny and theft offenses include the amount of money lost in the offense; the greater the loss, the greater the increase in the offense level. (22)

      Once the specific offense characteristics are added to the offense level, the sentencing judge then determines whether any "applicable general adjustments" apply. (23) These general adjustments, which are located in Chapter Three of the Guidelines, are, somewhat obviously, less specific than Chapter Two's specific offense characteristics. Rather than accounting for the crime's quantitative variables, they account for the qualitative and contextual aspects of the crime. For example, general adjustments include factors like whether the defendant has shown remorse, (24) whether he acted from a position of power, (25) or whether he obstructed justice. (26) General adjustments are real-offense considerations, (27) and they are truly "general"; they apply to all offenses and are not different for different crimes. (28)

      After applying any general adjustments, the sentencing judge has the defendant's overall offense level and has therefore located the vertical coordinate on the Sentencing Table. The court must then use the Guidelines Manual to ascertain the defendant's "criminal history," which provides the Table's horizontal coordinate. Chapter Four of the Guidelines Manual explains how to calculate criminal history, which is determined by the number and nature of a defendant's prior criminal offenses. (29) Once the criminal history category is compiled, the sentencing judge has both of the Sentencing Table coordinates and can determine the sentence range.

      (30)

      The Sentencing Guidelines are a complicated system with a number of "moving parts"; perhaps a simple example will provide clarity. (31) Imagine that John Doe is a defendant who was convicted under the federal kidnapping statute. (32) Mr. Doe, who previously served a full eighteen-month sentence for an unrelated offense, led a gang of seven people who assisted in the kidnapping. During the kidnapping, both of the victim's legs were broken.

      When preparing a presentencing report, the court must first determine John Doe's overall offense level. The judge (or probation officer) looks to Chapter Two of the...

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