“To sum up, the convictions on the APC count are reversed, and the convictions on the Forum-Paxton count and the obstruction of justice count are affirmed. The sentences are vacated and the case remanded for resentencing, as well as for trial, limited however to the APC count.
“But although the defendants are entitled to a new trial on that count, the entitlement is moot unless the government decides to retry them. The government may wish instead, in order to conserve its resources and wind up this protracted litigation, to dismiss the APC count and proceed directly to resentencing. The judge could consider at the resentencing hearing the evidence that had been presented at the original trial concerning APC in determining what sentences to impose on the two counts (the $600,000 fraud involving Forum-Paxton and, with respect to Black, obstruction of justice as well) of which the defendants were properly convicted. 18 U.S.C. § 3661. “A jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam); see also United States v. Quintero, 618 F.3d 746, 755 (7th Cir.2010); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005). (And there was no acquittal on the APC count, just an error warranting-barely-a retrial.) But of course it is for the government to determine, not us, how to proceed on remand.
“Affirmed in Part, Reversed in Part, and Remanded.”
In short, only one count of Black’s conviction is reversed: the APC count. But Posner, in not untypical fashion, wants to say much more about how other people involved in this case would behave if only they were as rational as he: The government would forgo retrying Black on the APC count, but the judge would then consider the evidence underlying the APC count when resentencing Black. It is not hard to see what Posner thinks the net result would be: The government saves money by not re-trying Black, but Black gets his old sentenced re-affirmed.