Supreme Court Gives Prosecutors Ammo in Oath Keepers Capitol Riot Case

The Supreme Court recently discussed the use of acquitted charges in sentencing hearings, possibly giving prosecutors in the Oath Keepers trial ammo for the sentencing of two defendants.

On Tuesday, Roger Parloff, a senior editor at Lawfare, shared a Twitter thread discussing a recent opinion by the Supreme Court. "The statements relate to the practice of holding conduct against a defendant at sentencing even though the jury acquitted the defendant of that conduct," Parloff wrote.

Parloff went on to discuss how this could impact the sentencing for two members of the Oath Keepers, Thomas Caldwell and Michael Greene. "This issue most dramatically affects def Tom Caldwell, who was acquitted of all conspiracies in the OK seditious conspiracy case. Nevertheless, govt originally sought a 14-yr sentence for him based largely on his conspiratorial acts relating to the 'quick reaction forces,'" Parloff wrote.

"The issue also arises in more lower-stakes context for def Michael Greene—the only OK to have been acquitted of all felonies. Govt seeks max misdemeanor term--1 yr--citing acquitted conduct," another tweet from Parloff said.

This discussion by the Supreme Court comes as members of the Oath Keepers await their sentencing hearings, following a seditious conspiracy trial for their alleged roles in the January 6 Capitol riots. According to the U.S. Department of Justice, Greene, 39 was previously found guilty of "entering and remaining in a restricted building or grounds, a misdemeanor," while Caldwell was acquitted of seditious conspiracy but found guilty on other felony charges.

Michael McAuliffe, an elected state attorney and former federal prosecutor explained to Newsweek on Tuesday that the use of acquitted conduct in a sentencing hearing is permitted because "acquittals are based on reasonable doubt while most sentencing factors—not all—are based on preponderance of the evidence," adding that members of the Oath Keepers will likely face sentencing enhancements based on acquitted conduct.

"The defense counsel in the Oath Keepers case surely will argue that the judge should not take acquitted conduct into consideration, but under the current federal sentencing guidelines, the judge can consider acquitted conduct in fashioning a federal sentence," McAuliffe told Newsweek. "The US Sentencing Commission plans to address the issue of using acquitted conduct in federal sentencing determinations, but that likely will not occur in time for the Oath Keeper defendants sentencing hearings."

Neama Rahmani, the President of West Coast Trial Lawyers and former federal prosecutor told Newsweek that judges are allowed to use "relevant conduct" when determining sentencing, which includes uncharged, dismissed, or acquitted conduct.

Rahmani explained that a not guilty verdict for a defendant does not necessarily mean they are innocent, but instead, it shows that "the prosecution was not able to prove their case beyond a reasonable doubt."

"Because the standard at sentencing is lower, preponderance of the evidence, judges can theoretically consider acquitted conduct when imposing a sentence, even though they usually do not," Rahmani told Newsweek.

A lawyer for Caldwell had no comment after Newsweek reached out. Newsweek also reached out to a lawyer for Greene via email for comment.