United States v. Archer, No. 10-4684-cr (2d Cir. September 20, 2011), a case involving fraud by an attorney, brought up a particularly interesting discussion of the procedures for sentencing issues upon returning a case to the trial court for reconsideration of sentence. The “consensus” among the other circuits is “where the government knew of its obligation to present evidence and failed to do so, it may not enter new evidence when the sentencing is reconsidered unless the “government’s burden was unclear,” the “trial court prohibited discussion of the issue,” or the “evidence was, for a good reason, unavailable.”
Ordinarily, according go the Court, where the prosecution’s burden of proof would require it to prove that something was NOT present, or did NOT occur, “and the facts at issue are more readily ascertainable by the defendant,” the defendant assumes a burden of producing “at least a triable issue as to the fact” after which the prosecution assumes the burden of persuasion. That is the “appropriate” allocation of burdens here. The defendant here was “more likely than the government to ascertain whether a client knew of the fraud or would have paid a fee even if the client had known of the fraud,” since this knowledge would have come from the defendant. So the defendant has the burden, but I have seen a case where the defense counsel thought he had the burden to persuade that judge that he did not possess a gun in furtherance of a narcotic trafficking deal, where I would argue that the Government has the burden to prove this aggravating factor.