Sentenced For Uncharged Crimes

Constitutional violations in Ross’s sentencing is a primary argument in the Supreme Court petition.[1]

The Sixth Amendment

Americans are guaranteed a trial by jury by the Sixth Amendment which states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

The Sixth Amendment guarantees a trial by jury (not “fact” finding by a judge) to protect the accused from a judge or prosecutor exercising unauthorized power.

Judge-found “facts”

  • Murder-for-hire allegations

The murder-for-hire allegations were not part of Ross’s New York indictment, the government did not bring the accusations to trial, and therefore the jury did not rule on them.[2] Yet at sentencing, Judge Forrest used these uncharged, unproven allegations to justify her sentence.

“The sentence was based on judicial findings related to allegations of serious crimes that not only were never found by a jury but were not even among the charges leveled at trial.”

– National Lawyers Guild, and seven other signers, in a brief in support of the Supreme Court petition.[3]

  • Overdose allegations

During the sentencing hearing, Judge Forrest also relied on unsubstantiated, unproven allegations of overdose deaths allegedly connected to Silk Road, stating that “in some way, [they] related to Silk Road.”[4] Like the murder-for-hire allegations, these were never prosecuted, charged or even mentioned at trial, and were based on what the appeal calls an “entirely subjective, undefined and unprecedented standard.”[5]

Judge Forrest rejected, and deemed irrelevant, a detailed 11-page forensic pathology report that concluded the cause of death could neither be scientifically determined nor linked to Silk Road.[6] The defense called the accusations “incomplete, unreliable and inaccurate”[7] The judge did not cite a single case–despite the defense’s objections–where even those who manage large, tangible drug organizations are sentenced based on overdose deaths that are not part of the charges, much less any as weak and unproven as these.

Even the Court of Appeals found some impact statements at sentencing inappropriate. Judge Gerald Lynch was concerned that parents’ testimony related to these deaths “put an extraordinary thumb on the scale that shouldn’t be there” and created “an enormous emotional overload for something that’s effectively present in every heroin case.”[8] He asked “Why does this guy get a life sentence?” and went on to call the sentence “quite a leap”.[9]

“Given the nature and complexity of those issues – allegations including overdose deaths and drug quantities – it is far from clear that petitioner should be held responsible for the deaths at all. He has the right to have a jury of his peers decide.”
– Drug Policy Alliance & Law Enforcement Action Partnership in a brief in support of the Supreme Court petition.[10]

This fact-finding by Judge Forrest, and not the jury, violated Ross’s constitutional rights. This type of  judicial overreach has been debated over decades in the courts, and there is a long string of cases in which judges have violated the Sixth Amendment in this way. If allowed to stand, Judge Forrest’s sentence will bolster a destructive, unconstitutional precedent.

“In this extreme case, the system was gamed by the government, and the sentence imposed by the district court usurped and undermined the jury’s fact-finding prerogatives”.
– Downsize DC Foundation, and five other signers, in a brief in support of the Supreme Court petition.[11]

Read also: Making A Murderer