Unchargeable Conduct

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.

The situation leaves defendants with a bit of a Hobson's choice. The defendant can choose to fight the allegations at sentencing, which will likely lead to a mini-trial that ultimately may give the prosecution what it wanted in the first place. Once the judge hears the evidence, it will be hard to unring the bell. And given that sentencing is a holistic consideration, the judge may be swayed toward increased punishment even if the prosecution has not met its technical burden.