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The Randy Bookout
Clemency Campaign of 2020
#2
Using uncorroborated out-of-court hearsay to manufacture a ready-made four-year drug enterprise:
Even though the court used uncorroborated out-of-court hearsay accusations to support more than 50 uncharged drug deals and related activities tacked on at Randy’s sentencing, Randy was not allowed to fairly defend himself by facing his accuser.
#3
Inventing evidence through manipulation:
To support more than 50 drug deals and related activities that drove Randy’s near-statutory-maximum prison sentence and to paint Randy as a drug trafficker, the government buried the overwhelming evidence that rendered the accusations unreliable or demonstrably false, by hiding from Randy’s sentencing judge every word, statement, sentence, interview, and other evidence that undercut the accusations, no matter how strong; and consequently manufactured a one-sided sentencing report.
#4
Rewarding high-level drug traffickers, while punishing a low-level addict:
Randy, a low-level addict who was truthful and simply had nothing substantial to give the government, received a prison sentence nearly twice as long as both of the prison sentences received by two high-level drug traffickers, who fabricated for the government accusations (never confirmed) against Randy, combined.
Section #1
Randy pleaded guilty to a single $250 drug deal that yielded a sentencing range of about 18 months, but he was sentenced to nearly two decades (with no parole) in federal prison for uncharged conduct and uncharged crimes tacked on at sentencing. This, of course, deserves an explanation.
During a criminal trial, the accused is afforded vital Constitutional procedural protections such as the demanding beyond-a-reasonable-doubt standard and the right to face his accusers, among other rights. For example, during a trial, under the Federal Rules of Evidence, only admissible evidence can be presented to support the government’s case. However, during the sentencing stage, these rules change. During federal sentencing, the defendant loses those precious Constitutional procedural safeguards. In Randy’s case, this spelled opportunity for government prosecutors.
Plainly, when the vital Constitutional procedural protections promised to the criminally accused are removed, what’s left is a heavily watered-down system of justice ripe for exploitation. It works like this: there is no evidence linking Randy to even a single drug deal and, problematically, for the government, Randy vehemently denies the allegations. Randy was unindicted. Still, government agents dogmatically insist that if Randy does not waive his Constitutional rights to an indictment by a grand jury and a trial by jury, they will destroy his life, and he will die in federal prison. Against this psychological backdrop, Randy was offered a seemingly great guilty plea — all he had to do was plead guilty to a single $250 drug deal, which yielded a sentencing range of about 18 months in prison. Randy took the bait. But, unbeknownst to Randy, the backdoor is wide open. At sentencing, the government added uncharged conduct (more than 50 additional drug deals and related activities) and uncharged crimes via the backdoor. By doing so, the government parlayed a guilty plea to a single $250 drug deal into a gravely serious drug trafficking crime comprising more than 50 drug deals and related activities. As a result, Randy’s sentencing increased by a multiple of 70, skyrocketing from 18 months to nearly 20 years. It’s clever and sneaky — and perfectly legal.
This legal loophole allows the government to convict a defendant of very little (something superficially simple or petty), only to tack on additional uncharged conduct and uncharged crimes at sentencing, when the standard of proof drops and the Constitutional procedural protections in place during a criminal trial, are inapplicable. A defendant’s conviction (here, a $250 drug deal) is an empty vessel. What matters is all the uncharged conduct and uncharged crimes that can be slipped in the backdoor at sentencing (in this case, more than 50 drug deals and related activities), when the defendant is a sitting duck.
This abusive practice cheapens the American justice system, as many federal judges and legal scholars alike have lamented. Even the Supreme Court of the United States has called such practice “perverse” and “sinister.” And the two most recently appointed Supreme Court Justices, have openly criticized it, questioning its Constitutionality. Beyond that, the best and brightest and most highly regarded legal minds in the U.S. have consistently denounced the abusive practice, calling it an “end-run around the Constitution.”
In short, Randy’s extreme sentence, just shy of the 20-year statutory maximum, is a product of this abusive practice. In fact, according to our exhaustive research, uncharged conduct that increased 10-fold a defendant’s sentencing range (as it did here), is one of the most (if not, the most) extreme increases in the 30-year-plus history of the U.S. Sentencing Guidelines.
In sum, this sneaky maneuver allows the government and the court to strip away all the vital Constitutional procedural safeguards that ensure the integrity of the process and the quality of the result, leaving a skeleton system where the accused is defenseless. For all practical purposes, this subtle and slick exploitation of a legal loophole in sentencing is tantamount to a fundamental paradigm shift in the American system of justice. This exploitation results in a shadow system of justice, where the accused is robbed of the Constitutional protections afforded to him. In the simplest terms, the government is sneaking through the backdoor what it cannot bring through the frontdoor.
And given the facts in Randy’s case, it’s difficult to imagine a more dramatic example of this perverse effect.
We invite you to read more about Randy’s case. This is hardly where the unfairness and abuse end.
Section #2
The government used unsworn, uncorroborated, out-of-court hearsay accusations to parlay Randy’s guilty plea to a single $250 drug deal into a multiyear drug operation, comprising of more than 50 drug deals and related activities – and Randy couldn’t even fairly defend himself against the out-of-court accusations.
In the famous words of John Henry Wigmore, “cross-examination is beyond doubt the greatest legal engine invented for the discovery of truth.” It goes without saying, if you (the reader) are accused of something, you want a fair opportunity to defend yourself, i.e., to test your accuser’s story and credibility and subject it to intense scrutiny.
With that in mind, at the heart of the American system of justice, is the right to face one’s accuser (through vigorous cross-examination). This fundamental Constitutional procedural safeguard is far and away the most vital protection afforded to the criminally accused, a tool dating back hundreds of years. When this vital Constitutional procedural protection is removed from the American justice system paradigm, the Due Process Guarantee is rendered empty and, consequentially, is eviscerated. Simply put, allowing the criminally accused to test his accuser’s story and credibility through vigorous cross-examination and intense scrutiny, strikes at the heart of Due Process and procedural fairness.
And when the government’s case is devoid of physical evidence and is instead based entirely on out-of-court hearsay accusations (from drug-dealers-turned-government-witnesses who are desperate to avoid a harsh prison sentence), the credibility of the accuser is paramount, and cannot be overstated. Unfortunately, in the federal justice system, at sentencing, there is no right to face one’s accuser — which is problematic, because, conveniently, it’s at sentencing when the government piles on the gravamen of its case, making the process particularly unfair.
As a result, the government can exclusively use unsworn uncorroborated out-of-court hearsay accusations to support additional uncharged conduct and uncharged crimes pinned on a defendant at sentencing, and the defendant cannot fairly defend himself against the accusations. In Randy’s case, although he pleaded guilty to a single $250 drug deal, more than 50 uncharged drug deals and related activities were piled on at sentencing, which increased the amount of incarceration recommended by the Sentencing Guidelines by a multiple of 10, from about 18 months’ imprisonment to nearly 20 years’ imprisonment.
This allowed the court to use unsworn, uncorroborated, out-of-court hearsay accusations as the raw material to parlay a guilty plea to a single $250 drug deal into a multiyear drug operation comprising of more than 50 drug deals – despite a total and complete absence of even a single piece of physical evidence or live testimony subject to intense scrutiny and adversarial testing.
Imagine how you would feel if you were imprisoned for years based exclusively on out-of-court accusations against which you could not fairly defend yourself? That should resonate with you. Although this is a radical notion that is hard to believe, it’s absolutely how the federal system is designed.
Section #3
The lack of any physical evidence in Randy’s case, coupled with not having a single credible witness against him, lead to the government manufacturing evidence.
Randy pleaded guilty to a single $250 drug deal. The problem is, a $250 drug deal is not worthy of a big-time U.S. Attorney’s Press-Release. In fact, one might even wonder why a Federal prosecutor is prioritizing a petty $250 drug deal involving a 50-year-old professional photographer. Federal prosecutors need big games. No worries. To inflate the size of the case, an additional 50 drug deals (which increased the drug amount, which drives a prison term in a drug case, by 7000 percent), allegations of a presold drug network, a multiyear drug operation, and many more accusations were detailed in a Presentence Investigation Report and then given to Randy’s sentencing judge, who in turn, used the many pages of accusations to fashion a near-two-decades long federal prison sentence. This allowed the prosecutors and law enforcement to tout its big bust. But there was no bust.
Randy was never caught with drugs. There were no telephone wiretaps or controlled buys, or even a single incriminating text message. Since Randy vehemently denied the accusations and since there was no physical evidence that so much as linked Randy to drug distribution (or, even drugs) to support the additional 50 uncharged drug deals (and related activities) piled on at sentencing, the government relied entirely on out-of-court hearsay accusations from drug-dealers-turned-government-witnesses. Still, there was a problem. In large part, the allegations against Randy were made by an inmate during a jailhouse interview. The follow-up investigation, however, revealed the information was unreliable and even demonstrably false — i.e., the investigation produced overwhelming information that undermined the accusations, exposing most of the accusations as blatant lies.
The problem was, if the additional uncharged conduct pinned on Randy at sentencing didn’t stick, the government would be left only with the conduct underlying Randy’s guilty plea, a single $250 drug deal, hardly worth a U.S. Attorney’s Press-Release.
The solution: While preparing Randy’s Presentence Investigation Report (a document designed to capture the entirety of a defendant’s criminal conduct and degree of wrongdoing), for Randy’s sentencing judge, every word, statement, sentence, paragraph, and other evidence that undermined the integrity of the accusations (of more than 50 drug deals and related activities) or outright proved them blatantly false, was omitted. By not fairly presenting and strategically omitting the overwhelming evidence that undercut the accusations, a one-sided version was manufactured by the government. The report was then passed off to Randy’s sentencing judge as an objective third-party report written by the Probation Department. Clever. In reality, it was a concerted effort by the government agents and the probation department to carefully craft the report to comport with the government’s narrative. This was done with great skill.
In short, Randy’s culpability was artificially inflated through clever editing of the Presentence Investigation Report. Or, put simply, since there was no real evidence to support the accusations, the evidence was manufactured.
Section #4
Most people believe high-level drug traffickers receive stiff sentences, and the low-level grunts who peddle small amounts to support their habits receive much shorter sentences. Wrong. It is the high-level drug traffickers who trade information to the government in exchange for a massive sentence reduction, because, well, they have the good information, information the government uses to secure additional lay-down convictions. Conversely, the low-level offenders oftentimes receive the harshest sentences.
Randy’s case exemplifies that phenomenon — a very real phenomenon that has been tracked by some of America’s most respected law professors and legal scholars. In Randy’s case, the high-level drug traffickers received significantly reduced sentences for providing the government with vague information about Randy. It’s no surprise that, before one of these drug traffickers began his greatly reduced prison term, the drug-dealer-turned-government-witness who pinned years of phantom drug transactions on Randy, went on a violent crime spree, culminating in a stand-off with law enforcement, resulting in a mélange of fresh felony charges, all of which were tossed out (because of his golden government witness status). The other drug-dealer-turned-government-witness served a couple of short years and was back on the street. Within her first month of release, she had already racked up additional severe charges and was tested positive for methamphetamine use.
Both government witnesses’ conduct dwarfed Randy’s. Randy was worlds apart from these high-level drug traffickers, who sold massive amounts of methamphetamine. In fact, Randy was accused of peddling a small fraction of the number of drugs the two government witnesses sold. Still, Randy’s prison sentence is much greater than both of their sentences, combined.
We invite you to read Randy’s entire Clemency Petition.