Not only does [the Probation Department's decision make Mr. Ball responsible for a quantity of crack cocaine 150 times the quantity supported by the jury verdict with respect to Count 22; but acquitted conduct also becomes the foundation upon which the Probation Office bootstraps enhancements for Mr. Ball’s supposed managerial role, his supposed use of a weapon, and his commission of a crime while on release -- all of which the Probation Office predicates on his involvement in conspiracies of which he was acquitted.

To endorse sentencing on this logic is to completely wipe out a defendant’s constitutional right to a jury trial; all the Prosecution need do is structure a sufficiently broad indictment that includes no more than one count on which they can confidently predict a conviction, present lots of witnesses without regard to their veracity and reliability, and, after the jury has predictably rejected virtually all of its evidence, obtain a sentence based on the crimes that were charged in the indictment without regard to the result at trial. It is a sentencing scheme straight from the mind of Lewis Carroll.

This was a trial that lasted months. The jury heard all the Government's witnesses and rejected their testimony on every count but one as to Mr. Ball.

On November 28, 2007, a jury acquitted Antwuan Ball of all but one of the counts with which he was charged in the indictment. Specifically, the jury found him guilty of Count 22, in which he was charged with the sale of 11 grams of cocaine base. On the other hand, the jury acquitted Mr. Ball of the far more serious charges in the indictment: Two homicides in which, but for the Court’s ruling that the Government’s notice was untimely, the Government would have been seeking the death penalty in the event of conviction; two conspiracies, one brought under the RICO Statute, in which the Government alleged that Mr. Ball had been the leader of a racketeering organization for 13 years and had committed numerous criminal offenses that were presented as acts of racketeering. (My emphasis.)

All it takes is conviction on any one count, and the Judge can for all practical purposes wipe out the jury's not-guilty verdicts, and sentence the defendant as if the verdicts had been guilty. Proof beyond a reasonable doubt and the right to be a trial by jury are thrown out the window.

To assist in sentencing, federal judges order the Probation Department to complete a pre-sentence report. For the facts, they typically rely on police reports and witness statements provided by prosecutors (a few federal judges won't allow this, but most do.)

So what does the Government do? It resubmits the witness testimony that the jury rejected to the Probation Department so it can find, by a lesser standard than that required at trial, that the Defendant committed the acts for which he was acquitted. As Ball's lawyer writes:

But as is now clear, the Government sees no difference between sentencing a person after conviction versus after acquittal: all it need do is present a series of charges (which in itself increases the likelihood of scoring at least one conviction) and for those charges on which the defendant is acquitted, select the best parts of the direct examination and send it over to the Probation Office who will dutifully read the one-sided account and, in the absence of any contrary evidence, determine that there is a “preponderance of evidence” to support the charge (a self-fulfilling prophecy if there ever were one since only one side of the story is presented), and like clockwork the defendant’s offense level has just been increased.

...The enormity of the Government’s arrogance in seeking such a sentence in the face of jury verdict that reflects its virtually total rejection of the Government’s case against Mr. Ball can best be appreciated if one considers the following fact: the Government was willing to accept a sentence of no more than 25 years pursuant to a plea bargain that would have required Mr. Ball to admit crimes that he did not commit and of which he has now been acquitted.

In addition to those being sentenced after trial, think how this affects a defendant deciding whether to go to trial or take a plea bargain. He may believe he's not guilty of all the charged crimes, but has to weigh the risk that if the jury finds he's guilty even of just one count, the Judge can sentence him to the same amount of time as if he'd been convicted on all counts. No wonder so few defendants in federal court go to trial. The penalty for going to trial and not getting an acquittal across the board, make trial far too risky an option.

If the judge just sentenced Ball on the count the jury convicted him on, the 11 grams of crack, his Guideline level would be 24 and, depending upon his criminal history category, his sentencing range would be between 51 and 71 months. (4.9 to 6 years.) Instead, by sentencing him on the counts he was acquitted of, the judge held him liable for 1.5 kilograms, 150 times more than he was found guilty of. Ball's lawyer wrote the guidelines for 1.5 kilos start at 188 months and go up, depending on criminal history.

The probation department and government also sought role in offense increases based on Ball having a supervisory role in the conspiracy. Even though he was acquitted of the conspiracy. Another Alice in Wonderland concept.

As Ball's lawyer argued:

The Government was given a full opportunity to prove the charges that it brought against Mr. Ball; it failed utterly. Accordingly, the Court should reject the Government’s effort, endorsed by the Probation Office, to have the Court impose a sentence based upon the charges that were brought rather than those that were proven.

The Judge, when sentencing Ball to 18 years this week, said he thought, based on the lesser preponderance of the evidence standard, that Ball had some role in the conspiracies he was acquitted of. What is the point of having a jury trial with a standard of proof of beyond a reasonable doubt if after the jury returns it's verdict, the judge can substitute his own opinion based on a lesser standard? Should Ball just be happy the Judge didn't agree entirely with the Government and Probation Department and whack him with 40 years?

This is an issue ripe for review. In Gall, Justice Scalia in his concurring opinion practically sent out invitations:

The door … remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury. 128 S. Ct. at 602-603 (Scalia, J., concurring).

Gall flows from Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). In a nutshell, in Apprendi, the Supreme Court held that a defendant’s right to a jury trial under the Sixth Amendment mandated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt.

In Blakely, the Court made clear that “the relevant statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but “the maximum [the Judge] may impose without any additional findings.” Id.

As Ball's lawyer explains,

In other words, the term “statutory maximum” in Apprendi did not mean the maximum sentence in a statute, but rather the top end of a Guideline range in a mandatory guideline sentence. This, of course, led directly to the result in Booker that resulted in the transformation of the mandatory guidelines into the advisory guidelines. More recently, the Supreme Court flatly stated that “if the jury’s verdict alone does not authorize the sentence … the Sixth Amendment requirement is not satisfied.” Cunningham v. California, 127 S. Ct. 856, 869 (2007).

Whether the Supreme Court will end the the unfairness is not known. In United States v. Watts, 519 U.S. 148 (1997) (per curiam), the Court held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”

It seems like in the wake of Gall, Kimbrough, and Cunningham, the Court should reconsider and reverse Watts, ending the incredibly unfair practice of sentencing defendants based on conduct which a jury found they did not commit.

Added: Another irony: The sale Ball was convicted of occurred in 2001. He was charged in 2004 and has been held since without bond. He wasn't tried until 2007, and wasn't sentenced until this week, in 2011. Instead of getting released with a sentence of time served, which is what would have happened if he'd been sentenced on the 11 grams, he'll be doing many more years. The judge gave him credit for the time since 2004, and an additional 15 months for "delays." There is no parole in the federal system, you do 85% of the sentence. Unless he wins on appeal, he'll be doing another 8 years or so -- on top of the 7 he's already served.