A Tiny Crack in the Wall?

By: James Trusty

Federal sentencing proceedings have a long and rich history of including every speck of good and bad that a defendant brings to the table. Unlike the trial itself, there are no Rules of Evidence that apply to keep the factfinder from considering unreliable or unproven information. The judge need only find facts by a preponderance of evidence, and those facts can be established by hearsay. As an example of that concept in practice, I remember various federal drug trafficking prosecutions in Baltimore where the prosecutor convicted the defendant of narcotics offenses but, at sentencing, presented information from detectives or federal agents that linked the defendant to murders. This put significant pressure on the judge – does he or she sentence this person as a drug trafficker or as a drug trafficker who murdered potential witnesses to his trade? There are lesser versions of that scenario where the government seeks to “prove up” other cases that might have led to dismissals or even acquittals, because they believe a sentencing judge might aggravate the current offense sentence due to those other crimes. It is not hard to articulate reasons to justify or to denigrate that model, which is largely contained within the federal system, rather than state courts.

Similarly, a federal pre-sentence investigation report will routinely provide the full criminal history of the defendant, with dispositions ranging from “dismissed” to “sentenced to x years of imprisonment.” Federal case law has long accepted the notion that a sentencing court can review that full record and even mention the fact of prior arrests (not leading to conviction) but what about equating those prior arrests with prior convictions so as to justify a harsher sentence? That is the question presented by career criminal Tyrone Mitchell, who was most recently convicted of 17 counts of drug and firearm offenses in the Eastern District of Pennsylvania.

Mr. Mitchell, at age 50, sported 7 juvenile adjudications and 6 prior adult convictions, including a prior robbery and felony drug trafficking charge. He also had 18 arrests that did not lead to convictions, so if criminal life used baseball batting averages to measure their personal conviction rates, Mr. Mitchell could make the all-star team. At sentencing, the prosecutor rattled off the convictions, only to be interrupted by the judge’s own enumeration of every arrest of Mitchell, and his conclusion that “[t]his is as long and serious of [a] criminal record as I’ve seen in twelve and a half years on the bench.”1 The judge said very little else about his sentencing decision before throwing the proverbial book at Mitchell with an 85-year sentence.

Mitchell’s appeal pointed out that even in the context of a federal sentencing’s relaxed evidentiary operations, the judge had gone beyond simple reference to the arrests and instead seemed to rely upon those arrests, as if they were the same as convictions. It will always be a little unclear how a judge can “reference” the arrests without risk of reversal—the smarter judicial practice is certainly to  simply focus on either convictions or newly-produced evidence of guilt at the sentencing proceeding. Justifying a sentence based on the bare arrest record was a reversible error by the sentencing judge. Mr. Mitchell, sadly, will have plenty of time to research “Pyrrhic victory,” after he is re-sentenced by the same judge. This time, the judge can come to the exact same result but he will have to better justify his conclusion that Mitchell is a scofflaw unworthy of mercy.  It won’t be hard.

The practical result for Tyrone Mitchell may be negligible or non-existent, but the appellate opinion is still noteworthy for the criminal justice community at large. If appellate courts begin to consider

1 United States v. Mitchell, 2019 WL 6604559 at *4 (3rd Cir. Dec. 5, 2019)

limits on the parameters of federal sentencing proceedings, then we may see moments where appellate courts question the philosophy held dearly by many federal prosecutors, that sometimes you have to put Al Capone away for tax evasion, rather than proving before a jury the gangland murders that helped earn him that taxable income. In succumbing to the easy allure of taking offense to a lengthy rap sheet, the judge may have inadvertently created a small opening for further challenges to the evidentiary shortcuts taken in federal sentencing hearings.