Second Circuit Affirms Admission of Defendant's Redacted Confession and Use of Acquitted Conduct to Enhance Sentence

There is an ironic symmetry to United States v. Freeman, 2007WL 3356775 (2d Cir. November 14, 2007), decided yesterday.  The Court affirmed the admission of the inculpatory half of the defendant's confession, while the exculpatory half was excluded.  Simultaneously, the Court affirmed the use of the entirety of Mr. Freeman's conduct for sentencing purposes, even though he was acquitted of half (and the most serious half) of the charges against him.  While the district and circuit courts' conclusions were meticulous in their analysis of the dry legal issues, this is precisely the kind of case that makes non-lawyers think the law is the proverbial ass.

Freeman was a co-participant in a botched armed robbery of drug dealers that resulted in the deaths of his partner in crime and one of the victims, and the serious shooting of Freeman himself, all mysteriously by the same weapon.  The next day, police officers took a confession from Freeman as he lay recovering in his hospital bed, during which he admitted to participation in the robbery, providing details both of the planning of the crime and its execution - including several potentially exculpatory statements as to the latter.  He was charged with drug conspiracy, gun possession, Hobbs Act robbery and two counts of murder.  At trial, and over the defendant's objection, the district court granted the government's request to admit only the portion of Freeman's confession dealing with the planning of the robbery, while excluding his description of what actually happened.  Freeman was acquitted of murder, but convicted of everything else.  Cross-referencing with the murder guideline under the Sentencing Guidelines and finding that Freeman had committed the charged murders by "clear and convincing evidence," the district court imposed a life sentence.

Rejecting the defendant's claim on appeal that the rule of completeness required the admission of the entire hospital-bed confession, the Second Circuit held the district court's decision to admit only part of it was within its allowable discretion. "[T]he redacted portion did not explain the admitted portion or place the admitted portion in context." From both courts' perspectives, the confession was neatly divisible into two - the part dealing with planning and the part dealing with execution.

But confessions are rarely delivered in such a well-structured fashion, and surely not from someone seriously wounded in a hospital bed.  The interviewing officer's report may impose some structure, but it is a structure that occurs ex post facto.  The confession itself most likely meandered back and forth in time, amplifying, adding and correcting details along the way.  It's hard to imagine a real confession that can be carved up into neat packages.  The rule of completeness in the context of a confession taken at once rather than separated in time by different interrogation sessions surely favors admitting it in its entirety. 

As for the defendant's objection to the use of acquitted conduct to enhance his sentence, the Court reiterated its holding in United States v. Vaughan, 430 F.3d 518 (2d Cir. 2005), that courts may base a sentence on acquitted conduct as long as it is established by at least a preponderance of the evidence and the district court "consider[s] the jury's acquittal when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence" (quoting Vaughan). 

While some of us may have thought "consider" entailed an element of deference to the jury's verdict, the Court has put such hopes to rest here.  All that is required is that the sentencing court acknowledge the acquittal.  Here, the district court acknowledged the verdict of acquittal in the context of dismissing it as "anomalous."  This, the Second Circuit concluded, was sufficient consideration. 

What is truly anomalous for many, though, is that someone can be acquitted of murder but sentenced as though he was convicted of it.  As fellow-blogger Harlan Protass points out in his excellent comment on the use of acquitted conduct to enhance federal sentences, the issue is one that has wider ramifications beyond the individual case.  The defendant's family, friends and acquaintances may not understand or appreciate the legal theories that justify such a practice.  In their eyes, the jury system worked but was subverted.  The use of acquitted conduct thus erodes people's faith in the jury system, in the criminal justice system, and the law itself.  It is an issue that will no doubt be taken up by the Supreme Court again, which has not considered it since its landmark rulings in Apprendi, Blakely and Booker.