Ghost Dope in Federal Sentencing: Every criminal punishment is the result of two stages of fact finding.
In Texas, Phase One can be decided in one of five ways. One, a prosecutor can elect to dismiss a charge (relatively rare). Two, a grand jury can elect to ‘No Bill’ a case—in other words, the grand jury can elect to decline to indict. Options One and Two effectively kill a criminal prosecution. Third, an accused defendant may plead guilty. Four, an accused can demand a trial before the court (otherwise known as a court trial) where a judge decides whether the law has been broken and that the crime has been proven beyond a reasonable doubt. Five, an accused can demand a trial before a jury, otherwise known as a jury trial, where a group of citizens decides whether the law has been broken and that the crime has been proven beyond a reasonable doubt.
In federal courts, the same five options are available. However, it is important to recognize that federal prosecutors have certain practical limitations. It used to be the case that prosecutors were required to proceed on the highest provable charge. This is known as the Ashcroft Sentencing Directive. In the last several years this has been modified by Attorney General Eric Holder. Be that as it may, prosecutors feel a tremendous amount of pressure to avoid dismissing charges once an indictment has been returned. In fact, prosecutors rarely ever lower charges after indictment, let alone dismiss them.
This means that prosecutors, and people facing federal charges, are almost always at a point of no return once a case has been indicted. This is much less the case in state courts, including Texas. However, defendants in federal cases have pretty much the same other four options as defendants facing charges in Texas.
When it comes to punishment and sentencing, however, the differences between the state and federal criminal systems reveal a far weaker commitment to fairness and proof in U.S. courts.
To arrive at a sentence, judges and in Texas many times jurors, are to consider the circumstances of an offense and the history and characteristics of an offender. For federal criminal cases, this is codified under 18 USC 3553(a). This means that a defendant’s entire life may be put on display including evidence showing the defendant’s good and bad acts. To illustrate this point, anything from a defendant’s singing in the church choir, subscribing to Ashley Madison, or being convicted of theft 25 years ago may be presented in support of a harsher or lighter sentence. Pretty much any act can be presented at sentencing.
The difference between a state criminal charge and federal criminal charge in the how much proof is necessary to prove punishment evidence.
While this seems straightforward, it raises many questions. Who is allowed to sponsor such evidence? Can a disgruntled ex-boyfriend allege infidelities? Can town gossips talk about a defendant’s drinking habits? If a prior conviction is described, do accompanying court papers have to be presented? Punishments are supposed to be based upon competent evidence by persons or records with firsthand knowledge of the actions purported to be true, but how well proven do these good and bad acts have to be established? Well… the answer depends on the jurisdiction.
For example, many states, including Texas, specifically require evidence presented during a punishment phase to be proven beyond a reasonable doubt. Proof beyond a reasonable doubt is the highest standard of proof under the law. It requires not only evidence of the commission of an act, but that such evidence eliminates the existence of ‘reasonable doubts.’ For example, if the Washington Post reports that the New York Mets beat the L.A. Dodgers last night most people would trust that that is true. However, it’s possible that reporters make mistakes or that misprints sometimes happen. Many people would demand more than the newspaper to find the game’s result has been established beyond a reasonable doubt—perhaps a second newspaper or an eye witness who saw the game or a Vegas payout ledger.
In contrast, in the federal system, bad acts at sentencing need only be proved by a preponderance of the evidence, which means proof by the greater weight of the evidence. In other words, if something is 51% proven, or simply more likely than not, than the fact can be established. Most people would certainly think the Washington Post could prove the game result by a preponderance of the evidence.
This may seem like a lot of esoteric legal-ese, but it’s not. The consequences are enormous, particularly in drug cases.
The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43 (2005).
This means that any enhancement under the guidelines, for example, a level increase for importation of drugs within a conspiracy under 2D1.1(b)(5), need only be proven by a 51% margin. What is the practical effect of this relaxed burden? Simple, the Government can rely on circumstantial insinuations to heap levels on defendants once they have either pled guilty or have been found guilty.
A federal drug case will most likely be alleged as a conspiracy, or agreement, to distribute drugs under 21 USC §§ 841 and 846. Understand that conspiracies do not necessarily penalize drug dealing but instead proscribe agreeing to deal drugs. This means that many cases are established without any necessity that law enforcement personnel actually recover dope.
In Texas, that person will not likely be accused of conspiring to distribute drugs. Rather, a case would only proceed if police officers recovered the methamphetamine. In the state system, a defendant would most likely be charged with possession of a controlled substance with intent to deliver. Thus, the possession is the operative element that establishes guilt, not the agreement.
This distinction is massive because many statements would come into the trial as evidence of guilt in a conspiracy case that would not necessarily be admissible in a typical state possession case.
For example, if Johnny and Jenny are distributors of methamphetamine that is supplied by Mike, all three are conspirators regardless of whether Johnny and Jenny work together. Since Johnny has an agreement with Mike and Jenny has an agreement with Mike all 3 are guilty of conspiracy. Imagine now that one time Jenny got 4 ounces of methamphetamine from Mike and gave it to Johnny who then deals it to several others. In this situation, all 3 have dealt more than 50 grams of meth which makes them all subject to prosecution. In Texas, they would be guilty of possession of between 4–200 grams of methamphetamine with intent to deliver which is a second-degree felony subject to imprisonment of 2–20 years. In the federal system they would be guilty of a Possession offense but would more likely be charged with Conspiracy to Possess more than 50 grams of a substance with a detectable amount of methamphetamine under 21 USC §§ 841(b)(1)(B) and 846 which carries a penalty range of 5–40 years.
Seems pretty similar, right? Wrong. In Texas people with a relatively small amount of criminal history would likely receive a probation sentence whereas in the federal sentencing system the guidelines and statute would prohibit probation.
In the state criminal system, drug charges revolve around actual possession. In the federal criminal system, possession is not necessary for the most common drug offense: conspiracy to distribute drugs. For example, imagine that law enforcement heard Jenny setting up this drug deal with Johnny on a Title III (also known as a T-3) wiretap and the deal occurs in the next 20 minutes after the conversation. Unless authorities are able to catch either one of them with the drugs, there is almost no chance that a state possession charge would commence because the act of possession cannot be exclusively established. In other words, if Johnny and Jenny get rid of the drugs (or leave) before the police get on the scene, then the possession case would be impossible.
On the other hand, in federal court the intercepted conversation establishes an agreement to distribute drugs. Whether or not police officers or federal agents capture the dope, the federal government would still be able to prosecute both Johnny and Jenny for conspiracy. Oftentimes, federal authorities allow drug dealers to conduct their business for months or even years before making an arrest. The drugs that are never recovered, but is attributed to a defendant is affectionately called “ghost dope” by federal defense attorneys.
Ghost dope has massive consequences. Understand that words are just as good as powder in a federal conspiracy case. That is because in federal court hearsay statements of co-conspirators are allowed as admissible evidence. Imagine that Jenny tells Johnny in the same conversation that Mike gave her the drugs in the first place. This would be an out of court statement of a coconspirator and would be admissible under Rule 801(d)(2)(E).
In Texas, under Article 38.14 of the Texas Code of Criminal Procedure, there exists an accomplice witness rule that prohibits convictions based solely upon the word of a co-defendant. An accomplice witness has been described as a discredited witness. Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269 (1956); Odom v. State, 438 S.W.2d 912 (Tex.Cr.App.1969) It has been frequently said that the testimony of an accomplice witness is untrustworthy and that it should be received and viewed and acted on with caution.
In the federal system jurors can be instructed to apply more scrutiny to accomplice testimony but there is not a formal rule of criminal procedure codifying that such testimony must be corroborated to support a conviction. In fact, such uncorroborated testimony can support a verdict if the jury believes it beyond a reasonable doubt. See the 5th Circuit Court of Appeals pattern criminal jury charges:
Accomplice Informer Immunity
The testimony of an alleged accomplice, and/or the testimony of one who provides evidence against a defendant as an informer for pay, for immunity from punishment, or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness’s testimony has been affected by these circumstances, by the witness’s interest in the outcome of the case, by prejudice against the defendant, or by the benefits that the witness has received either financially or as a result of being immunized from prosecution. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.
While the differences between state and federal prosecutions are substantial, the differences between state and federal sentencing standards are even more pronounced. In Texas, punishment evidence must be proven beyond a reasonable doubt—the same level of scrutiny as guilt/innocence evidence.
The plain language of the statutory provision governing the admission of extraneous crimes or bad acts in punishment phase requires that such evidence may not be considered in assessing punishment until the fact finder is satisfied beyond a reasonable doubt that the extraneous bad acts and offenses are attributable to the defendant.
With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook. USSG 1B1.3, application note 2.
Revisiting the hypothetical, remember, the Government only has Jenny’s word, and Jenny spoke to agents seeking a downward departure under USSG 5k1. Nonetheless, the Government has no problem multiplying 700X4 on the basis that 2 years involves around 700 days, and Jenny says she and Johnny dealt 4 ounces every day. Also, understand that Jenny is likely to get a much lower sentence because her proffer agreement (cooperation agreement) includes a provision that her words cannot be used against her.
Now look at the effect under the guidelines. 4 ounces of methamphetamine causes a base offense level of 24 under 2D1.1(c)(8). 2801 ounces, on the other hand, results in an offense level of 38 under 2D1.1(c)(1). Level 24 will get Johnny between 51–63 months jail where level 38 will get him 235–293 months. In other words, Jenny’s uncorroborated word can be used to turn 5 years into 20 years.
Understand that there are multiple enhancements possible under the guidelines for a variety of circumstances such as having a leadership role, using premises to distribute, or usage of a gun to name a few. While these are all legitimate reasons to punish someone more harshly than otherwise, be advised that these enhancements can be based upon the uncorroborated word of a co-defendant in the federal system.
The bottom line is that federal constructs pertaining to hearsay, ghost dope, the preponderance of evidence standard and relevant conduct combine to create a free for all where codefendants gun each other down often times without corroboration.
Click here to learn about the fundamentals of federal sentencing in criminal cases.