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When Acquitted Conduct Becomes Untouchable

When Acquitted Conduct Becomes Untouchable

July 27, 2023

When Acquitted Conduct Becomes Untouchable

By: James Trusty

Alphonse Gabriel Capone was never prosecuted for murder, so there was never a jury determining whether Al was responsible for the infamous St. Valentine’s Day Massacre in which seven gang rivals were executed by Capone’s underlings. Instead, “Scarface” Capone was prosecuted and convicted for felony tax evasion offenses, for which he received 11 years in prison. Since that conviction in 1931, the concept of “getting Capone for tax evasion” has been a metaphorical justification for endless federal prosecutions where the heart of the community’s concern– for example, murder– is a conspicuous backdrop for lesser charges until a sentencing judge considers the “whole picture” in meting out a heavy sentence.

There is no mistaking the fact that some of these prosecutions appear clever navigations of a federal criminal justice system, and ones where few tears are shed for the culprits who apparently evaded justice for their most serious transgressions. In Baltimore, federal prosecutors have regularly built drug trafficking cases around men and women suspected of murdering rivals or informants, and seemingly doing so with impunity for many years. At sentencing, the Assistant U.S. Attorneys present evidence of complicity in murder, and the drug trafficking defendant’s already heavy exposure then skyrockets towards maximum penalties like Life or 30 years in prison.

Whether a historic gangster or a modern-day character out of “The Wire,” the notion of providing powerful, and damning, information to a sentencing judge to support a stiffer sentence is a safely established component of the individualized treatment we see in sentencings every day. Indeed, while all of us profess to support equal treatment for equally situated defendants, it is an undeniable counterweight to the principle of uniformity that a judge should view each defendant as having their own story—good or bad—that pushes against the notion of perfectly equal and predictable sentences.

Enter the more challenging philosophical moment: what about a defendant who is convicted of less serious charges but who is specifically acquitted on the Capone-like greater offenses? Can a federal judge, in relying upon his or her Constitutional ability to make factual findings by only a preponderance of the evidence, hold a defendant accountable for conduct which the jury could not accept beyond a reasonable doubt? For the moment, the answer is largely yes – federal judges can and do consider acquitted conduct all the time. There is, however, an underlying concern to this approach that may be getting more general traction – what if federal prosecutors wielding the “Al Capone and Tax Evasion” mentality are targeting people who, well, are not Al Capone? The white hat worn by Elliot Ness in pursuing Al Capone may have gotten a little dusty and dirty over the years.

And then came the case of Dayonta McClinton v. United States, in which young Dayonta was accused of killing his friend in a spat over robbery proceeds. At trial, the jury acquitted Dayonta of murder but convicted him of the robbery. The sentencing guidelines, which provide an advisory starting point for judges looking for consistency, called for roughly five to six years of imprisonment for robbery. But when the sentencing judge deemed the acquitted murder to be fair game, the higher guidelines justified imposition of a 19-year prison sentence.

The case wound its way to the Supreme Court, where the petition for certiorari was denied a few weeks ago. The interesting aspect of what is typically a very terse denial, is that the Justices took the time to issue statements about this acquitted-conduct debate. Justice Sotomayor’s statement clearly took the concept to task, pointing out that, “With an acquittal, the jury as representative of the community has been asked by the State to authorized punishment for an alleged crime and has refused to do so.”[1] Justice Alito appeared to view Justice Sotomayor’s statement as unnecessary and one-sided, concluding his opinion with “because my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.”[2] However, all of the Justices appeared to agree on one important fact – the U.S. Sentencing Commission is studying the acquitted-conduct sentencing issue and is expected to issue guidance in the near future. The very fact that the Commission is even addressing the issue makes me think change is coming. Although any change would be much too late and too limited to help Alphonse, it may come in time to protect the next Dayonta McClinton from the Pyrrhic victory he “won” at trial and lost at sentencing.


[1] McClinton v. United States, 600 U.S. ___, 143 S. Ct. 2400, 2402 (2023).

[2] Id. at 2406.

Related: White Collar Defense Lawyers

James Trusty

James Trusty

After 27 years as a prosecutor, James (“Jim”) Trusty brings to Ifrah Law extensive experience in complex, multi-district white collar litigation, especially in matters involving RICO, The Computer Fraud and Abuse Act, and The Money Laundering Control Act of 1986.

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