United States of America, Plaintiff, v. Kevin Fordham, Martin Murff, Eddie Reid, Defendants. (2024)

ORDER REGARDING APPLICABILITY OF U.S. SENTENCING COMMISSION'S AMENDMENT TO § 1B1.3 (RELEVANT CONDUCT)

I. INTRODUCTION

On December 8, 2023, a jury returned its verdicts with respect to defendants Kevin Fordham, Martin Murff, and Eddie Reid. The jury determined, among other findings, that Kevin Fordham was not guilty of two of the counts with which he was charged (Counts 4 and 41). When it answered certain special interrogatories on the defendants' jury verdict forms, the jury found that the government had not established beyond a reasonable doubt that the defendants possessed or distributed one or more controlled substances that could have served as a basis for the RICO conspiracy charge (Count 1) and/or the drug trafficking conspiracy charge (Count 5) for which the jury found the defendants guilty.

On April 17, 2024, the U.S. Sentencing Commission (the “Commission”) voted to promulgate and send to Congress a series of amendments to the federal sentencing guidelines. The defendants claim that the Commission's revision to § 1B1.3 (Relevant Conduct) changes how their guideline ranges should be calculated. The new language to be added to § 1B1.3 as subparagraph (c) prohibits the use of acquitted conduct in calculating a person's sentencing guideline range (hereinafter, the “amendment”), as follows:

Relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court unless such conduct also establishes, in whole or in part, the instant offense of conviction.

U.S. Sent. Comm'n., Notice of submission to Congress of amendments to the sentencing guidelines, effective November 1, 2024, and request for comment, 89 FR 36853 (May 3, 2024), https://www.federalregister.gov/d/2024-09709. When Congress did not reject the amendment, it became effective by law on November 1, 2024. See 28 U.S.C. § 994(p).

In this case, the jury found all three defendants guilty of a RICO conspiracy (Count 1) and a drug trafficking conspiracy (Count 5). Because the jury found the defendants guilty of those charges, the jury had to answer special interrogatories for each defendant on each conspiracy count. When asked to identify the quantity of certain drugs in relation to each of those charges, the jury answered “zero.” (See ECF Nos. 1359 (as to Kevin Fordham), 1361 (as to Martin Murff), and 1363 (as to Eddie Reid).

The defendants contend that each of the jury's “zero” answers mean that they were acquitted with respect to that drug, i.e., it constituted “acquitted conduct” for purposes of the amendment. The government disagrees, arguing that a finding regarding drug quantities is not an acquittal of “charged” conduct under the amendment. At the Court's request, the parties have briefed whether and to what extent the amendment impacts the sentencing in this case. (See ECF Nos. 1762, 1906.) For the reasons that follow, the Court concludes that, when the jury answered “zero” with respect to drug quantities listed in the special interrogatories, each answer of “zero” constituted acquitted conduct for purposes of § 1B1.3(c).

II. ANALYSIS

As recently clarified by the Sixth Circuit, the issue of whether the amendment prohibits a judge from considering acquitted conduct applies only to a district court's calculation of the sentencing guidelines range. United States v. Ralston, 110 F.4th 909, 921 (6th Cir. 2024). “[C]orresponding changes to the policy statement found at § 6A1.3 of the Guidelines clarify that sentencing courts remain free to consider acquitted conduct in imposing a sentence in consultation with the 18 U.S.C. § 3553(a) sentencing factors.” Id. (“nothing in the Guidelines Manual abrogates a court's authority under 18 U.S.C. § 3661”).

Section 3661 provides, “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” See also Vice Chair Claire Murray, Remarks at U.S.S.G. Public Meeting, Apr. 17, 2024, available at https://perma.cc/Q9ZQ-5CA5?type=standard (clarifying that the “amendment precludes consideration of acquitted conduct in the context of calculating the guidelines,” but a court may still consider acquitted conduct when “imposing a sentence.”). Accordingly, the Court's analysis and conclusion regarding “acquitted conduct” impacts the calculation of a defendant's sentencing guidelines range, but it does not prevent the Court from considering any “acquitted conduct” in the context of the § 3553(a) factors when imposing sentence.

The government first argues that a jury's determination that a defendant did not possess or distribute a threshold amount of drugs does not constitute an acquittal of conduct. Citing two dictionaries, the government contends that “acquittal” relates only to a finding of not guilty on a charged offense (a count), and it insists that special interrogatories about drug quantities are not “charges of offenses.” (See ECF No. 1762, PageID.24276, citing Meriam-Webster Dictionary (defining “acquittal” as “a setting free from the charge of an offense by verdict, sentence, or other legal process”) and Black's Law Dictionary (“The legal certification, usually by jury verdict, that an accused person is not guilty of the charged offense ․”).) On that basis, the government argues that the only acquitted conduct with respect to the defendants was the jury's finding that Kevin Fordham was not guilty of Count 4.

The government asserts that, when the sentence would fall within the prescribed statutory framework, it is within the province of the Court, not the jury, to calculate drug amounts for sentencing purposes. It argues that a matter must be submitted to the jury and proved beyond a reasonable doubt only when an amount increases the penalty for a crime above the statutory minimum or maximum. (ECF No. 1762, PageID.24276–24277 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge but must be submitted to a jury and proved beyond a reasonable doubt); Alleyne v. United States, 570 U.S. 99, 103 (2013) (extending the rule announced in Apprendi to facts that increase the statutory mandatory minimum sentence for a crime)).) The government further argues that, if the penalty based on the drug quantity at issue would not increase the penalty above the statutory minimum or maximum, the issue need not even be presented to a jury. (ECF No. 1762, PageID.24277 (citing four Sixth Circuit cases that predate Alleyne ¹ ).)

The government therefore asserts that “not finding a threshold quantity isn't an acquittal of the charge itself” because the quantity is not an element of the charge. (Id. at PageID.24277–24278 (citing cases from the First and Seventh Circuits, all of which predate Alleyne ² ).) In essence, the government contends that Apprendi does not affect the conviction of a crime and changes only the range of statutory penalties available, not the guideline penalties available. (Id. at PageID.24279.)

The Court is not persuaded by the government's arguments. First, relying on Alleyne, the Sixth Circuit has held that “drug quantity is an element of the offense in § 841, since its effect is to increase the maximum penalty.” United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014); see also Alleyne, 570 U.S. at 113 (“the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury”).

Second, defendants accurately cite to Sixth Circuit cases that support the proposition that a jury's finding, including on a special verdict form, constitutes an acquittal or “acquitted conduct” for purposes of § 1B1.3. See United States v. Mendez, 498 F.3d 423 (6th Cir. 2007); United States v. Benson, 591 F.3d 491 (6th Cir. 2010).³

Third, the Sixth Circuit has recognized drug quantity as such a critical element of a drug trafficking offense that, even where the jury found the defendant guilty of the drug trafficking charge, it ordered that the defendant be acquitted on that charge when the jury answered “none” to a special interrogatory about the quantity of drugs involved in that offense. United States v. Randolph, 794 F.3d 602, 612 (6th Cir. 2015) (“Where a jury's special verdict finding negates an essential element of the offense, the defendant must be acquitted and cannot be retried on that offense.”). See also United States v. Petlechkov, 922 F.3d 762, 771 (6th Cir. 2019).

Fourth, multiple Supreme Court decisions discussing “acquitted conduct” support the conclusion that a jury's answers finding a defendant responsible for a lesser drug quantity constitutes an acquittal of a higher drug quantity. See, e.g., McElrath v. Georgia, 601 U.S. 87, 94 (2024) (quoting Evans, 568 U.S. at 318) (“[O]ur cases have defined an acquittal to encompass any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense.”).

Fifth, pursuant to Apprendi and Alleyne, the basis and purpose for including special interrogatories regarding drug amounts in the jury verdict forms is to ascertain whether different statutory penalties would be triggered based on the quantity of drugs the jury determines a defendant is responsible. See Wayne R. LaFave, et al., 6 Crim. Proc. § 24.10(a) (4th ed. 2023) (discussing special interrogatories in federal drug cases involving mandatory minimums).

Sixth, the Court agrees with defendants that, by asking the jury to find drug quantity in this case, the government was essentially charging two offenses: an unaggravated drug conspiracy and an aggravated drug crime with a mandatory minimum. This is evidenced by Sixth Circuit Pattern Jury Instruction 14.07A, which was given to the jury in this case as follows:

(1) The defendants are charged in Count Four and Five of the first superseding indictment with Conspiracy to Distribute or to Possess with Intent to Distribute. The conspiracy charged in Count 4 is alleged to involve cocaine base, methamphetamine, heroin, cocaine, and fentanyl, and the Conspiracy charged in Count 5 is alleged to involve fentanyl, heroin, cocaine, and marijuana. If you find a defendant guilty of either of these charges, you will then be asked to determine the quantity of the controlled substance involved in the conspiracy that was attributable to him as the result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him. You will be provided with those additional questions on the verdict form.

(2) If you find by unanimous agreement that the government has proved beyond a reasonable doubt that the offense involved a certain quantity of a mixture or substance containing a detectable amount of a particular controlled substance was attributable to the defendant as a result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him, then please indicate this finding on the special verdict form.

(3) If you do not so find, you will then be asked to determine whether the government has proved a lesser quantity. If you unanimously find that the government has proved beyond a reasonable doubt that the offense involved the lesser quantity of a mixture or substance containing a detectable amount of the particular controlled substance, was attributable to a defendant as the result of his own conduct and the conduct of other co-conspirators that was reasonably foreseeable to him, then please indicate this finding on the special verdict form.

(4) In determining the quantity of the controlled substance involved in the offense, you need not find that the defendant knew the quantity involved in the offense.

(ECF No. 1722, PageID.23314–23315 (emphasis added).)

The verdict forms correspondingly asked the jury to, after finding the defendants guilty on Counts 1 and 5, determine whether the government had proved beyond a reasonable doubt certain quantities of several drugs. For example, with respect to defendant Kevin Fordham, the verdict form included the following special interrogatories, all of which had to be answered once the jury found Kevin Fordham guilty on Count 5:

Count 5 – Special Interrogatories

With respect to Count 5, if you find Kevin Fordham not guilty of conspiracy to distribute controlled substances, there is no need to answer the following questions.

If you find Kevin Fordham guilty of conspiracy to distribute controlled substances, please answer the following question. Your answer must be unanimous.

Question 1:

With respect to Count 5, the amount of the mixture or substance containing a detectable amount of fentanyl that was attributable to Kevin Fordham as the result of his own conduct and the conduct of other co-conspirators reasonably foreseeable to him was:

_____ 400 grams or more of fentanyl

_____ less than 400 grams of fentanyl but 40 or more grams

_____ less than 40 grams of fentanyl

Question 2:

With respect to Count 5, the amount of the mixture or substance containing a detectable amount of heroin that was attributable to Kevin Fordham as the result of his own conduct and the conduct of other co-conspirators reasonably foreseeable to him was:

_____ one kilogram or more of heroin

_____ less than one kilogram of heroin but 100 grams or more

_____ less than 100 grams of heroin

Question 3:

With respect to Count 5, the amount of the mixture or substance containing a detectable amount of cocaine that was attributable to Kevin Fordham as the result of his own conduct and the conduct of other co-conspirators reasonably foreseeable to him was:

_____ five kilograms or more of cocaine

_____ less than five kilograms of cocaine but 500 grams or more

_____ less than 500 grams of cocaine

(ECF No. 1359, PageID.12771–12773.)

The Court finds that the only reason the special interrogatories were included on each jury verdict form was to have a jury determine what level of drugs to attribute to a defendant. Significantly, the government does not dispute that it stipulated to the inclusion of the special interrogatories in the verdict forms, nor do they suggest an alternate purpose for their inclusion.

Finally, as another court recently stated:

The practice of sentencing defendants based on acquitted conduct is now firmly disfavored. See McClinton v. United States, –––U.S. ––––, 143 S. Ct. 2400, 2401, 216 L.Ed.2d 1258 (2023) (Sotomayor, J., “respecting the denial of certiorari”).6 “As many jurists have noted, the use of acquitted conduct to increase a defendant's Sentencing Guidelines range raises important questions that go to the fairness and perceived fairness of the criminal justice system.” Id. at 2401 & n.2 (collecting cases).7 In recently promulgated sentencing guideline amendments, the U.S. Sentencing Commission explained that acquitted conduct ought not be considered in calculating a defendant's guideline range. See U.S. Sentencing Comm'n, Amendments to the Sentencing Guidelines (Apr. 30, 2024) (amended § 1B1.3: “Acquitted Conduct. — Relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction”).8

Notably, in McClinton, Justice Sotomayor cautioned that “the Court's denial of certiorari should not be misinterpreted” because the “Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year,” and “[i]f the Commission does not act expeditiously or chooses not to act,” the Court “may need to take up the constitutional issues presented.” 143 S. Ct. at 2403.

Justices Kavanaugh, Gorsuch and Barrett collectively agreed: “The use of acquitted conduct to alter a defendant's Sentencing Guidelines range raises important questions.” Id. But “[i]t is appropriate for this Court to wait for the Sentencing Commission's determination before this Court decides whether to grant certiorari in a case involving the use of acquitted conduct.” Id.

6 Whether the same holds true for uncharged conduct is less clear. See, e.g., United States v. Fitch, 659 F.3d 788 (9th Cir. 2011) (affirming upward sentencing departure based on uncharged conduct).

7 Legal scholars have also extensively criticized the practice of increasing the length of a defendant's sentence on the basis of acquitted conduct. See, e.g., Erwin Chemerinsky, Making Sense of Apprendi and its Progeny, 37 McGeorge L. Rev. 531, 537 (2006) (“This is obviously inconsistent with the principle that it is wrong to convict a person of one crime and then to sentence them for another.”); Eang Ngov, Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing, 76 Tenn. L. Rev. 235, 291 (2009) (“Consideration of acquitted conduct means a death sentence for innocence.”); Barry L. Johnson, The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It, 49 Suffolk L. Rev. 1, 4 (2016) (“[O]n balance, use of acquitted conduct is a poor sentencing practice, inconsistent with a number of important sentencing policies and process interests.”).

8 The proposed amendments to the sentencing guidelines have been submitted to Congress for a 180-day review period and are slated to take effect on November 1, 2024.

United States v. Johnson, No. 96-CR-932 (FB), 2024 WL 4517550, at *5 (E.D.N.Y. Oct. 17, 2024) (emphasis added).

The Court is not persuaded by the government's repeated suggestions that a sentencing court historically has been able to consider more information and evidence than what was presented to a jury. This is especially true as the jury has made some relevant findings beyond a reasonable doubt, and “[a]n acquittal is afforded special weight.” United States v. DiFrancesco, 449 U.S. 117, 129 (1980); see also McClinton v. United States, 143 S.Ct 2400, 2402 (Sotomayor, J.) (Statement respecting the denial of certiorari: “acquittals have long been accorded special weight, distinguishing them from conduct that was never charged and passed upon by a jury”).

The Court acknowledges that, even though a jury did not determine beyond a reasonable doubt that a certain drug quantity could be attributed to a defendant, a court may still consider information presented by the government when deciding the sentence it will impose. That is because a “not guilty” verdict does not necessarily equate to “actually innocent.” See, e.g., Bravo-Fernandez v. United States, 580 U.S. 5, 10 (2016) (recognizing that a jury's verdict could be “the result of compromise, compassion, lenity, or misunderstanding of the governing law”); see also United States v. Powell, 469 U.S. 57, 65 (1984). As such, under the preponderance of the evidence standard, the standard that the Court must use to evaluate evidence when deciding the sentence to impose, the Court could reach a different conclusion. The Commission's comment to § 1B1.3(c), as well as its comment to § 6A1.3, recognizes as much. (See ECF No. 1762, PageID.24297–24298.) The Court's right to consider acquitted conduct when imposing sentence is not relevant, however, with respect to the calculation of the proper guidelines range in light of the amendment; the amendment expressly provides that “acquitted conduct” cannot be considered for purposes of calculating the guideline range.

Finally, the government asserts that, as to Kevin Fordham, his “conduct from Count Four falls squarely within his conduct from Count One. And because it is overlapping conduct, this Court should consider it [the charged drug trafficking offense in Count Four] when calculating [Kevin Fordham's] guideline range.” (ECF No. 1762, PageID.24283–24284.) The government argues that the most compelling fact demonstrating that the drug trafficking conspiracy counts overlap the RICO conspiracy count is that each drug agreement and completed transaction is explicitly spelled out in the First Superseding Indictment as an overt act of the RICO conspiracy. (ECF No. 955, PageID.5798.)

The government suggests that Counts 4 and 5 are subsumed in Count 1, as evidenced by the listing of overt acts in the superseding indictment. Because of the overlapping conduct in the drug trafficking counts and the RICO conspiracy, the government contends that the Court should calculate the guidelines based on all relevant conduct in Count 1 for all defendants because they were all convicted of the same RICO conspiracy.

The Court agrees with the government's argument about overlapping conduct in this case as it relates to Kevin Fordham. For Kevin Fordham, the Court notes there were many responses of “zero” in the special interrogatories, including with respect to methamphetamine, fentanyl, and heroin in Count 1 and fentanyl and heroin in Count 5. As to Count 1, however, in special interrogatory Question 1(a), the jury answered, “less than 280 grams of cocaine base.” In Count 4, special interrogatory Question 1 asked about cocaine base, with drug quantity options of: (1) 280 grams or more; (2) less than 280 grams but 28 grams or more; and (3) less than 28 grams. This question was not answered based on the jury's finding that Kevin Fordham was Not Guilty of Count 4. As such, the only possible overlapping conduct from Count 1 is related to cocaine base.

In Count 5, in response to special interrogatory Question 3, the jury answered, “less than 500 grams of cocaine.” In Count 4, special interrogatory Question 4 asked about cocaine, with drug quantity options of: (1) 500 grams or more of cocaine; and (2) less than 500 grams of cocaine). This question was not answered based on the jury's finding of Not Guilty on Count 4. As such, the only possible overlapping conduct from Count 5 is related to cocaine.

As to cocaine base, Count 1 charges a period of 2012-2021, whereas Count 4 charges a period of 2016-2021. As to cocaine, Count 5 charges a period of 2018-2021, whereas Count 4 charges a period of 2016-2021. Although Count 4 and 5 provide no specific dates for any transaction or possession of cocaine by Kevin Fordham (or any other defendant), Count 1 includes numerous overt acts involving the sale of cocaine and cocaine base by Kevin Fordham and other members of the Almighty Vice Lords Nation. Based on the evidence presented with respect to Count 1 and the jury's answers to the special interrogatories for that count regarding the quantities of cocaine base and cocaine, the Court finds that the conduct charged related to cocaine base and cocaine in Count 4 was the same conduct charged, and established by the jury's findings, in Counts 1 and 5, respectively. Accordingly, the Court finds that there is overlapping conduct because the conduct for which Kevin Fordham was found guilty in Count 1 “establishes, in whole or in part, the offense of conviction in Count Four.”

For each of Martin Murff and Eddie Reid, the only response of “zero” was a special interrogatory for Count 5 related to cocaine attributable to them. Nowhere in either of their Verdict Forms, including Count 1, was there any finding attributing cocaine to Martin Murff or Eddie Reid–or anyone else. Accordingly, the Court concludes that there is no overlapping conduct as there is no conviction in Count 1 related to cocaine that could establish an offense of conviction related to the cocaine interrogatories in Count 5 as it relates to Martin Murff or Eddie Reid.

III. CONCLUSION

For the reasons stated above,

IT IS ORDERED that the Court finds that, for purposes of calculating a defendant's applicable guideline range, the Commission's revision to § 1B1.3 (relevant conduct) at subparagraph (c) means that “acquitted conduct” includes drug quantities that the jury does not determine beyond a reasonable doubt are attributable to that defendant “unless such conduct also establishes, in whole or in part, the instant offense of conviction.” § 1B1.3(c).

IT IS FURTHER ORDERED that, as there is overlapping conduct with respect to Kevin Fordham, the exception to the amendment applies with respect to him, and the Court may consider the “acquitted conduct” in Count 4 as it relates to cocaine base and cocaine in the calculation of his sentencing guideline range.

IT IS FURTHER ORDERED that, as there is no overlapping conduct with respect to Martin Murff or Eddie Reid, the exception to the amendment does not apply in this case with respect to them, and the acquitted conduct in Count 4 regarding cocaine shall not be included in the calculation of their sentencing guideline ranges.

SO ORDERED.

Certificate of Service

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First-Class U.S. mail addresses disclosed on the Notice of Electronic Filing on November 12, 2024.

Sandra Osorio Case Manager

FOOTNOTES

1.   United Sates v. Solorio, 337 F.3d 580, 596 (6th Cir. 2003); United States v. Robertson, 67 F. App'x 257, 267 (6th Cir. 2003); United States v. Dunn, 52 F. App'x 666, 671 (6th Cir. 2002); United States v. Delgado, 20 F. App'x 407, 410 (6th Cir. 2001).

2.   United States v. Wilson, 62 F. App'x 731, 737 (7th Cir. 2003); United States v. Yeje-Cabrera, 430 F.3d 1, 13 (1st Cir. 2005); United States v. Gomez-Rosario, 418 F.3d 90, 104 (1st Cir. 2005); United States v. Tolliver, 454 F.3d 660, 668 (7th Cir. 2006).

3.   The Court notes that, in both cases, the Sixth Circuit held that the acquitted conduct could be considered in calculating the defendant's guideline range. As the Benson court stated, a court could look to various facts, including acquitted conduct, “so long as the defendant receives a sentence at or below the statutory ceiling set by the jury's verdict.” Benson, 591 F.3d at 503 (citing United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc)). See also United States v. Bennett, Nos.22-5142/5162, 2024 WL 966367, at **8–9 (6th Cir. Mar. 6, 2024) (citing White); United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005); United States v. Magallanez, 408 F.3d 672, 682–685 (10th Cir. 2005). Based on the amendment, however, the Court believes that the Sixth Circuit now would decide the cases differently.

JONATHAN J.C. GREY UNITED STATES DISTRICT JUDGE