Sentenced For Uncharged Crimes

This is one of the primary arguments in the Supreme Court petition [PDF].

The Sixth Amendment

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

The reason the Sixth Amendment guarantees a trial by jury (not judge) is to protect citizens accused of a crime against a judge or prosecutor exercising power they have no authority to use.

Judge-Found Facts

The murder-for-hire allegations were not part of Ross’s indictment [PDF], the government did not bring those allegations to trial, so of course the jury did not rule on them. 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 [PDF] in support of the Supreme Court petition, page 16.

In addition, the judge heavily relied on unsubstantiated, unproven allegations of overdose deaths connected to Silk Road, stating that “the deaths, in some way, related to Silk Road.” Like the murder-for-hire allegations, these were never prosecuted, charged or even mentioned at trial and were based on what the appeal [PDF] calls an “entirely subjective, undefined and unprecedented standard.”

Even the Court of Appeals found certain testimony related to uncharged crimes inappropriate. Judge Gerald Lynch was concerned that testimony from parents of alleged Silk Road customers who died “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”. He asked Why does this guy get a life sentence?, and went on to call the sentence “quite a leap”.

Judge Forrest called irrelevant a detailed, 11-page forensic pathology report [PDF] that said the accusations were “incomplete, unreliable and inaccurate” and cause of death could not be scientifically determined. She did not cite a single case – despite the defense’s challenge to the government – 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.

“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 [PDF] in support of the Supreme Court petition, page 4.

This fact finding by the judge, and not the jury, violated Ross’s constitutional rights. Whether a judge has authority to do this is a long-unsettled question in the courts and there is a long string of cases where judges have disregarded the Sixth Amendment in this way. If allowed to stand, what Judge Forrest did to Ross 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 [PDF] in support of the Supreme Court petition, page 3.

Read also: Making A Murderer