Evidence from pending state prosecution is constitutional “fair game” at sentencing

Concurrent state and federal prosecutions can force defendants to make difficult judgments about trial and sentencing strategy. The Sixth Circuit recently held that such difficult choices do not violate the Fifth Amendment.

In United States v. Alsante, the defendant faced sentencing in federal court while separate state charges were pending. The court allowed the government to introduce evidence of the alleged state crimes, and the defendant chose not make a personal statement or otherwise offer rebuttal evidence. The court departed upward from the 15-21 month guideline range, sentencing the defendant to 54 months in custody.

On appeal, the defendant argued that the introduction of evidence of his state crimes violated his right against self-incrimination. He asserted that the difficult choice between staying silent or testifying to help himself in the federal court while risking self-incrimination on the state charges created unconstitutional coercive pressure to speak. The Sixth Circuit did not agree. In the published opinion, the Court held that unlike threats of physical or economic harm, the pressure felt by every defendant when deciding whether to speak and attempt to help himself or avoid any risk of self-incrimination does not cause the type of compulsion that the Fifth Amendment prohibits.  The Court added that “the exercise of Fifth Amendment rights need not be cost-free” and that the Constitution does not forbid requiring a defendant to make difficult judgments about strategy.

The Court also rejected the defendant’s due process argument that mounting a strong defense to the evidence of his alleged state crimes might have revealed his state court trial strategy or elicited damaging information, creating an unconstitutional burden on his ability to defend the state charges. Under the lower constitutional protections at play during sentencing, the Sixth Circuit held that the due process clause requires only that the defendant have available options to speak or stay silent. The district court need not “relieve the defendant of all difficult tactical choices” to satisfy the Fifth Amendment.

Accordingly, evidence from pending state prosecutions is “fair game” at federal sentencing hearings, and defendants must continue to make difficult choices about sentencing strategy when such information is presented by the government.