Those of us that handle federal criminal cases are closely watching a case that is currently before the Supreme Court concerning the use of acquitted conduct at sentencing. The case, Asaro v. United States, which the Court has not yet decided it will hear, provides the Court with an opportunity to revisit its holding in United States v. Watts.
The background in Watts is fairly straightforward. In Watts, the defendant was charged with a drug offense and a separate offense involving a firearm. At trial, the jury acquitted Watts of the firearm offense but convicted him of the drug offense. However, although Watts was found not guilty of the firearm related offense, the court that sentenced Watts concluded that it was permissible for courts to nonetheless hold defendants like Watts responsible for conduct for which they have been acquitted, as long as the government can establish the various factual prerequisites on the acquitted conduct by a preponderance of the evidence. Finding that the government had indeed satisfied that standard in Watts, the lower court applied a firearm enhancement against Watts and increased his sentence, despite the jury’s conclusion that Watts was not guilty of the firearm related conduct. Although the lower court’s decision was reversed on appeal, the Supreme Court, in a 7-2 ruling, reinstated the lower court’s decision in Watts.
Not surprisingly, the Court’s decision in Watts received a great deal of criticism on a number of grounds. On its face, the idea that one can be held accountable for conduct for which one has been acquitted not only appears to offend the basic and fundamental Sixth Amendment right to a jury trial, but it also seems to be plainly unfair. Significantly, though, over 15 years after the Court’s decision in Watts, Justice Scalia (joined by Justice Thomas and Justice Ginsburg) urged the Court to reconsider its decision in Watts. Unfortunately, however, on that particular occasion and others, the Court has been unable to gather the 4 votes that are needed in order for the Court to accept a case that would allow it to revisit this issue.
Although Justice Scalia is obviously no longer on the Court, Justices Brett Kavanaugh and Neil Gorsuch joined the Court in relatively recent years. In connection with the Watts issue, this is significant because both of these “new” Justices raised questions about the use of acquitted conduct at sentencing when they were on the court of appeals, on both the D.C. Circuit and the Tenth Circuit, respectively. For example, then-Judge Kavanaugh described the use of acquitted conduct at sentencing in federal court as an “oddity.” Similarly, although then-Judge Gorsuch’s criticism was less direct, he (along with two other judges) called into question the practice of allowing judges to make factual findings that are inconsistent with jury findings, citing as authority Justice Scalia’s criticism of the Watts rule noted above.
As of now, the Court has not yet decided whether it will take up this issue and hear Mr. Asaro’s case. It appears that the 4 necessary votes exist and we are hopeful that the Court will vote to hear the case and ultimately overturn its holding in Watts, because the holding in Watts has far reaching implications for nearly every type of case that exists in federal court, including the white collar matters that we regularly handle. We are following this case and many others and we will be sure to report on all future developments.