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Business Crimes BulletinFeaturesCriminal LawWhite Collar Crime

Unchargeable Conduct

By Saverio S. Romeo and Matthew D. Lee
November 01, 2024

In April 2024, the U.S. Sentencing Commission took action to end a controversial practice known as "acquitted conduct" sentencing. Under the previous rule, a defendant who was convicted of one charge but acquitted of another could still face punishment for the acquitted conduct, so long as the government could convince the judge at sentencing that it was more likely than not that the defendant did in fact commit the crime. You read that right — the old rule meant that "not guilty" at trial did not always mean "not guilty" when it came time for sentencing. The commission has rightfully done away with this practice, at least at the federal level.

But what about a case in which a defendant is facing increased punishment at sentencing for a crime he was never charged with? What about a situation where the defendant legally could not even be charged with that crime in the first place? It happens more than you might think. Take for instance the following scenario. A defendant pleads guilty to a fraud crime. The plea agreement contains numerous stipulations but leaves space for the government to argue about the defendant's "relevant conduct" at sentencing. As sentencing approaches, the government informs the parties that it has conducted an investigation and unearthed new evidence that the defendant not only committed fraud, but also intimidated a witness a number of years prior in an attempt to conceal the fraud. The defendant was not charged with witness intimidation, nor could he be given that the statute of limitations ran out long ago. Common sense might dictate that the defendant should not be subject to punishment for that unadjudicated conduct. But in reality, the prosecution may have lucked out. The government faces a much lower burden of proof and virtually no evidentiary hurdles at sentencing.

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