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staff reporter The cases discussed in this column are selected with the assistance of Washington, D.C., practitioner Thomas Goldstein. Lacking the evidence to prove beyond a reasonable doubt that David L. Mayle committed four murders he was suspected of, law enforcement officials instead prosecuted him for mail fraud, forgery and for making a false statement to a federal agent. There’s certainly nothing new about prosecutors having to scale back their ambitions. Back in 1931, for instance, federal law enforcement officials who suspected Al Capone of crimes almost beyond number had to settle for a handful of tax-evasion convictions and an 11-year sentence to match. What’s unusual about Mayle’s case is that while his penny-ante convictions (comparatively speaking) would ordinarily result in prison time of no more than 21 months, Mayle got a murder-sized sentence of 30 years. In fact, U.S. District Judge James Gwin of Ohio imposed that sentence precisely because he concluded after a hearing that Mayle was in fact guilty of three of the four murders. On July 1, the 6th U.S. Circuit Court of Appeals upheld that sentence, in U.S. v. Mayle, No. 01-3696. In the process, the court rejected the 3d and the 9th circuits’ view that a sentence disproportionate to the underlying offense should be based only on facts proven by clear and convincing evidence. Instead, the 6th Circuit reaffirmed its own position, shared by the 2d and 10th circuits, that the default standard for adjusting federal sentences upward or downward-proof by a preponderance of the evidence-should govern even in those cases in which prosecutors leverage a relatively minor conviction into a major sentence. Got away with murder The first murder of which Mayle was suspected occurred in 1989, when Scott Cohen, who worked at a Florida convenience store managed by Mayle, went missing the day after Mayle told police that Cohen had stolen more than $7,000 in store receipts. Gwin ruled that there was not even a preponderance of evidence pointing to Mayle. In 1990, Mayle reported the theft of $11,000 in receipts, blaming it on another employee, Brett Woehlk, whose body was found a few days later. Florida prosecutors were prepared to take that case to trial, relying on statements by Mayle’s on-again, off-again lover, Paul DeLay, that Mayle had confessed to the murder. The case fell apart, however, when DeLay recanted before a grand jury. Mayle, who moved to Ohio in the meantime, was suspected of killing two disabled men, Harrison Hazzard in 1994 and Joseph Newman in 1995, to obtain their Social Security checks. His convictions were for actions he took while cashing Newman’s checks. Relying in part on testimony by DeLay, who had followed Mayle to Ohio only to break with him later, Gwin ruled that, more likely than not, Mayle had murdered Woehlk, Hazzard and Newman. In 1990′s U.S. v. Kikumura, 918 F.2d 1084, the 3d Circuit noted that once having been convicted, a defendant is no longer entitled to the same protection as someone who stands in the dock with the presumption of innocence, and thus may have his or her sentence enhanced based on facts about which there may be reasonable doubt. The court was troubled, however, by cases in which what happens at sentencing dwarfs the trial itself in importance, in effect acting as the “tail that wags the dog of the substantive offense.” Such a case occurred when Yu Kikumura, a Japanese national convicted of explosives and passport offenses, had his sentence increased twelvefold on the strength of evidence that he intended to commit terrorism. The proper response, the court concluded, was to “ratchet up” sentencing procedures and insist on clear and convincing evidence, a standard met in Kikumura’s case. The Mayle court saw no reason to follow Kikumura, noting that even at its enhanced level, Mayle’s sentence fell within the range of sentences authorized by Congress for the underlying convictions obtained with proof beyond a reasonable doubt. Young’s e-mail address is [email protected].

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