Since the Supreme Court’s decision in Booker, the federal sentencing guidelines have been voluntary. In compliance with the court’s opinion that those guidelines still be consulted, courts have continued to follow and apply them. See, e.g., United States v. Crawford, No. 03-00156-CR-1-1 (11th Cir. May 2, 2005)(applying guidelines post-Booker); United States v. Mathijssen, No. 04-1995 (8th Cir. May 2, 2005); United States v. Creech, No. 4:03-CR-95-1-LED (5th Cir. May 3, 2005).

One key question concerning the application of the guidelines involves acquitted conduct. For example, under the guidelines the base level for insider trading is at level 8 which translates of a sentence of 0 to 6 months. The guidelines contain certain enhancements, one of which involves the amount of profits. Under Section 2B1.1, the base level of the offense can be increased by anywhere from 2 to 30 levels, if the gain resulting from the offense exceeds $5,000. A key question in applying this portion of the guidelines concerns acquitted conduct. Suppose for example that the defendant is charged with tipping four people and the jury only finds the alleged tipper guilty of tipping two other defendants, acquitting as to the remaining two. The question is whether the trading profits of the two persons acquitted can be used to enhance the sentence of the convicted tipper. According to at least two circuit court decisions, the answer is yes. See, e.g., United States v. Price, 418 F.3d 771, (7th Cir. 2005); United States v. Duncan, 400 F.3d 1297 (11th Cir.) cert. denied, 126 S. Ct. 432 (2005). This result is justified because facts used as enhancements only have to be established by proof which equates to a preponderance of the evidence, not beyond a reasonable doubt. Under this theory, the defendant tipper can spend many more months in prison for conduct for which he was not convicted.

In contrast, three district courts have held that a sentence cannot be enhanced using conduct for which the defendant was not convicted. See, United States v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005); United States v. Pimental, 367 F.Supp.2d 143 (D. Mass. 2005). Essentially, these courts reason that the burden of proof on the government is beyond a reasonable doubt. While perhaps it might be better to reason that using facts from an acquittal to enhance a sentence smacks of double jeopardy and is fundamentally unfair, the result seems clearly correct.

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In Litigation Release No.19504, December 20, 2005 ( the SEC announced that it was voluntarily dismissing with prejudice all claims against the former officers of TenFold Corporation that it had named along with the company in a fraud complaint. The SEC did not offer any explanation for the unusual action. New accounts suggest that there may have been new materials produced which prompted the dismissal. See, e.g, New York Times, at C4 (December 20, 2005). The company previously settled with the SEC. The announcement did not state that the SEC planned to request that the settlement be vacated.

In 2002, the SEC in SEC v. TenFold Corp., et al, ( charged the defendant company and several of its officers with financial fraud. Specifically, the complaint alleged that in its initial registration statement the company failed to disclose two unusual transactions that had a significant impact on its financial statements. In one, the terms of a contract were manipulated so that revenue could be recognized at an earlier date. In another, an unusually large allotment of shares from the IPO was granted to a customer in return for the deletion of a contract term that permitted earlier recognition of revenue. The company also failed to disclose pervasive operating problems according to the complaint. The company had previously settled.

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