Sentencing Law and Policy

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds.  Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

Related posts on Polizzi:

• Judge Weinstein makes notable headlines with notable jury-based ruling
• Judge Weinstein's magnum opus on jury rights

Judge Weinstein's magnum opus on jury rights

As noted in this recent post, famed EDNY Judge Jack Weinstein this week found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Judge Weinstein's full opinion in US v. Polizzi, No. No. 06-CR-22 (EDNY April 1, 2008) is available here, and it runs a total of 288(!) pages (though the last 50 are detailed appendices).  Here is how this amazing work of judicial exposition concludes:

A. Constitutionality of Statute

Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra.  Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra.  The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.

B. New Trial as to Counts One Through Twelve

For the reasons stated in Part IV, supra - - failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence - - the verdict is set aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts in declared unconstitutional on appeal.

Brand new year, same old Blakely

Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004.  Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).

Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:

• State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)

• State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)

• US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")

A (too?) clever Blakely plea attempt

With many thanks to a reader for the tip, I can note this fascinating article from Chicago discussing a federal white-collar offender's attempt to plea guilty without "Blakely" enhancements.  As the article details, prosecutors have urged US District Judge Elaine Bucklo to reject the defendant's guilty plea as "fluff."

Highlights of a remarkable USSC document

The US Sentencing Commission's recently posted "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here; discussed here) is a remarkable document which, though "preliminary" and "anecdotal," paints a vivid and fascinating picture of federal sentencing in the post-Blakely world.  I could do a dozen posts about the memo; every section and nearly every sentence contributes new insights to an understanding of the current state of federal sentencing.   For now, I will be content to urge evryone to read the document and provide just a few highlights from the text of the memo here:

Continuances. Several lines of evidence suggest that Blakely has led to a delay in final sentencing in a large portion of cases. A decline in sentencings is reflected in the decrease in case documentation received by the Commission.... Interviews in the 7th and 9th circuits confirm that continuances have generally increased in courts holding that Blakely applies to the federal guidelines, although there is considerable variation from district to district....  Some court administrators are concerned that, after a slow summer, the backlog of cases will strain resources when the cases start moving.

Sentencing post-Blakely. Courts have identified a limited range of possible responses to the Blakely decision, as outlined in the decision tree attached to this report.... Among courts that have held that Blakely applies to the federal guidelines, the most common response appears to be to treat the guidelines as advisory.

Alternative sentencing. Interviewees in our survey in several districts also reported that judges were not announcing alternative sentences and one judge said he had tried the practice but abandoned it. The Blakely coding project has found documentary evidence of alternative sentencing in just 4.9 percent of the cases coded as of November 1.

Case and factor severability. Documentary data are not yet sufficient to quantify the portion of cases adopting any particular approach to severability. Interviews in the 7th and 9th circuits suggest that most judges are holding the guidelines invalid only in cases with offending adjustments. Further, there is evidence that many judges, even in the 9th circuit, resist severing the offending provisions and applying the guidelines without aggravating adjustments.

Sentencing "windfalls." Interviews with participants in the 7th and 9th circuits suggest that sentencing windfalls due to non-application of aggravating adjustments have occurred but are relatively rare. Windfalls appear to be largely limited to cases that plead guilty pre-Blakely, because defendants now stipulate to at least some of the aggravating adjustment or waive their Blakely rights.

A belated information present from the USSC

In my testimony last month to the US Sentencing Commission, I urged the USSC to examine post-Blakely developments, especially in the Seventh and Ninth Circuits where Blakely has been deemed applicable to the federal guidelines, to help assess whether a "quick legislative fix" would be truly essential after a possible ruling in Booker and Fanfan applying Blakely to the federal system.  Thus, I am very pleased to see that the USSC now has posted on its Booker/Fanfan page a document entitled "Preliminary Findings: Federal Sentencing Practices Subsequent to the Supreme Court’s Decision in Blakely v. Washington" (available here).

Here is how the USSC describes this fascinating new document on its Booker/Fanfan page:

While awaiting the submission and analysis of empirical data on the effect of the Blakely decision, the Commission staff conducted a survey of 40 sample subjects (judges, defense counsel, and probation officers) in the Seventh and Ninth Circuits to attempt to determine, through anecdotal means, how those jurisdictions are handling their criminal caseloads.

Though this document is, as stressed by the USSC, "preliminary" and "anecdotal" and only includes cases through October, it is still an extremely important and interesting (partial) report on the post-Blakely state of federal sentencing.  Along with this week's WSJ article on federal court doings, this document is a must read for everyone interested in assessing both the present and possible future of federal sentencing.

In subsequent posts over the next few days, I will highlight some of the most essential elements of this memo and also reflect on what it suggests for those planning for a post-Booker world.  For now, let me just lavish the USSC with praise for making this document publically available.  Perhaps this good deed will bring good karma for USSC Chair Judge Hinojosa's beloved Texas Longhorns (who will need to do a lot better against a Big Ten team in the Rose Bowl than another Big 12 team did against my Buckeyes in the Alamo Bowl last night).

Gov. Rowland's interesting plea agreement

With thanks to Professor Ellen Podgor of White Collar Crime Prof Blog, I can now provide a link here to former Connecticut Governor John Rowland's plea agreement.  I pondered in this post whether the agreement included a Blakely waiver and whether it anticipated a decision in Booker and Fanfan.  Not surprisingly, these issues are well covered on page 3 of the 11-page agreement.

The entire Rowland plea agreement is a fascinating read.  It includes provisions calculating the guideline sentencing range for Rowland of 15-21 months of imprisonment.  The last three pages of the agreement constitutes a "Stipulation of Offense Conduct," and it covers the facts which support these guideline calculations.  Also of interest is a passage on Page 5 of the agreement that contemplates Rowland will argue for a downward departure from the guideline range of 15-21 months on various grounds related to his minor role in the offense and his professional and community contributions.

Interesting Blakely perspectives

Two interesting newspapers stories this morning on the Blakely beat provide details about both the system-wide and case-specific impact of the decision:

• This article from Alaska provides a system-wide perspective on Blakely.  It quotes a state public defender who explains, within a story about increased December state caseloads, that his office has been "appointed to represent 75 people in a sort of post-conviction review regarding the legality of sentence under the Blakely."  This article reinforces a point spotlighted here that the administrative burdens created by Blakely are consequential wholly apart from the decision's substantive impact on sentencing laws and outcomes.

• This article from New York provides a case-specific perspective on Blakely. The piece details the federal sentencing of a father and son for their roles in directing a massive asbestos cleanup scam.  The long sentences (19 years for the father, 25 years for the son) and the case's interesting facts make the story a fascinating read.  The article notes that the defendants' sentences were increased considerably based on judicial fact-finding and that Blakely will be a chief issue raised on appeal.

The morning's sentencing news

It is another morning with newspapers filled with interesting stories on both capital and non-capital sentencing topics.  Here's a sample of some of the highlights:

• On the death penalty front, the big news from Virginia, as detailed here and here, comes from state Attorney General Jerry Kilgore's proposed legislation to make it easier for prosecutors to seek the death penalty in cases like the Washington-area sniper killings.  In this editorial, the Roanoke Times is already criticizing the AG for "playing politics with life and death."

• In other capital developments up the coast, this editorial from The Republican in Massachusetts advocates that Connecticut not execute serial killer Michael Ross even though there are no doubts about his guilt.  (Background on the Ross case can be found here and here.)

• From the Blakely desk, this story from Pittsburgh details the Blakely claims being made by a retired state trooper appealing his 1989 homicide sentence.  And this story from St. Louis details that St. Louis Rams player Leonard Little has failed in his attempt, noted previously here, to use Blakely to get his pending felony drunken driving charge dismissed.

Hacking into the world of Blakely

Making headlines and getting the attention of the blogsphere today are the sentencings of the defendants who last year hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information.

This AP story notes that the government is calling the nine-year sentence given to Brian Salcedo, who pleaded guilty in August to conspiracy and other hacking charges, "the longest prison term ever handed down in a computer crime case in the United States."  But Professor Orin Kerr at The Volokh Conspiracy explains here his sense "that there really isn't anything interesting about this case."

I basically concur with Orin's first take on the case, though I do think the plot is starting to thicken.  First, this follow-up AP story indicates that Salcedo's co-defendant, Adam Botbyl, today received a sentence of only 26 month.  Though I would need a lot more information to pass judgment, this prior story discussing the defendants' seemingly comparable roles in the offenses makes me wonder why Salcedo is getting a sentence four times longer than his co-conspirator.

Further, though not discussed in any of these news stories, I wonder about how Blakely fits into all of these developments.  The press reports indicate the plea deals were being put together just as the Blakely earthquake hit.  Of course, by late August, the Sixth Circuit had ruled in Koch (details here, commentary here) that Blakely should not apply to the federal sentencing guidelines unless and until the Supreme Court so held.  But that holding may be disrupted by Booker and Fanfan, and I cannot help but speculate about what kind of Blakely waivers might have been requested and secured by the government while negotiating the plea agreements in this case.

My waiting wish-list

With no decision today, I did not get my wish of an opinion in Booker and Fanfan as a Hanukkah present.  And, unless the Supreme Court surprises us with extra opinions this month, it also seems I wasted my time writing to Santa to ask for a Booker and Fanfan opinion.  But even though it appears we now must all wait until January for a sentencing present from the Supreme Court, other institutions can keep me in a holiday mood by working on this waiting wish-list of mine:

1.  I wish the US Sentencing Commission supplements the fascinating data it has collected here about post-Blakely federal case processing, which could provide a fuller picture of the state of federal sentencing now.

2.  I wish a few state Supreme Courts resolve pending Blakely appeals, in order to further define and refine the many post-Blakely legal questions that need to be resolved (see some background here).  My own perspectives on Blakely (reflected in articles here and here) have been greatly influenced by state court rulings, and the Supreme Court apparently needs all the help it can get.

3.  I wish a few state sentencing commissions (or even the offices of state Attorneys General) provide additional data and analysis on how Blakely is impacting state criminal justice systems.  We get snippets from briefs and news stories, but nothing compares to the systematic analysis that can be done by an effective sentencing commission (as Minnesota's commission has shown).

4. I wish the ABA and the ALI and the Constitution Project and all the other important groups working on sentencing reform can use this extra Booker-free time to gear up for what is likely to be a hectic January.  I was rooting for a decision from SCOTUS now so we might all have a few weeks to mentally process the decision before congressional re-writing of federal sentencing was realistically feasible.  Now I fear we could possibly get a Supreme Court decision and then new federal sentencing legislation in rushed succession in January.

5.  I wish the powers that be in college football could figure out how to create a playoff system.  This mysterious blog sensibly suggests here that I watch a lot of football to keep in good cheer and keep my mind off Booker and Fanfan.  But what really keeps me from being in good cheer is knowing that USSC Chair Judge Hinojosa's beloved Texas Longhorns will not get a chance to prove on the field that they might actually be the best team in college football.  I suppose if the Longhorns take their frustrations out on Michigan in the Rose Bowl, that should suffice for this Buckeye.

More Blakely news from the field

Two more interesting news reports about the post-Blakely worlds of state and federal sentencing:

• This article from Minnesota discusses a state sentencing in which, because of Blakely, "a separate sentencing hearing was conducted before the jury, and prosecutors successfully argued that [the defendant] should be given the maximum sentence under Minnesota's dangerous offender law."

• This article from Iowa discusses another federal sentencing which has been postponed awaiting a decision in Booker and Fanfan.  The article indicates that the defendant's appointed federal public defender has objected — apparently unsuccessfully — to all of the government's continuance requests.

More consequences while we wait for Booker and Fanfan

As detailed in this AP report, US District Judge Sylvia H. Rambo today allowed recently convicted Rite Aid executive Franklin Brown to remain free on bail pending appeal, at least until the Supreme Court decides Booker and Fanfan.  As article explains, "Brown was convicted last year of 10 criminal counts related to his tenure as the pharmacy chain's vice chairman and top lawyer [and] had been scheduled to turn himself in Dec. 13 to begin serving a 10-year prison term."  Here are more snippets from the story:

"The Blakely issues in this case are significant, and a definitive resolution of the matter could be forthcoming," Rambo wrote in a seven-page ruling.

Brown attorney Peter Goldberger said Monday his client was "relieved" to get news of Rambo's decision. "But in the short term. For now," Goldberger said.... "It's not a case where you can say, this side will win or that side will win, and that you'll know the minute the decision is handed out," he said.

Perhaps this means there may be one person rooting for the decisions in Booker and Fanfan to take a lot longer.  But I continue to hope that this week we finally get a decision from the Supreme Court.  As noted before, the Court has announced that opinions will be issued each of the next two days, and eventually I have to be right when predicting the decision is coming soon.

Post-Blakely data on the state of federal sentencing

Though we did not get an opinion form the Supreme Court, I will still consider today a huge day because the US Sentencing Commission has now posted, here on its Booker/Fanfan page, some fascinating preliminary data about post-Blakely case processing in the federal system, as well as a memo with a review of lower federal court opinions addressing Blakely.

The sentencing data, comprising three pretty charts and described as "Preliminary Comparison of Case Submissions July and August 2003 and 2004," can be accessed here; the memo, which is more of a database than a substantive memo, can be accessed here. 

I am looking forward to consuming and commenting on these documents later this evening.  For now I will just say huzzah and thanks to the USSC and its staff for becoming much more public and transparent on these issues at a very important time.

Another report about jury involvement in federal sentencing

With thanks to Marcia Oddi at the Indiana Law Blog for the tip, this article in Monday's Munster Times discusses a recent (apparently positive) experience with a "sentencing jury" in an Indiana federal district court.  Though specific details about the sentencing proceeding are sketchy, the article suggests that the jury in a high-profile public fraud, like the jury in the recently concluded Enron Nigerian barge case (details here and here), reached a compromise sentencing "verdict" on the facts.  Moreover, the article reinforces my suggestion here that a decision in Booker and Fanfan applying Blakely to the federal system might be positively perceived by the press and public as an appropriate vindication of the role of juries in the criminal justice system.

Interesting Blakely decisions from Maine

I recently came across two interesting federal Blakely rulings coming from the District of Maine (home, of course, of Fanfan).  These rulings reveal that cases are still moving along in one federal district.  However, a footnote in the Thomas opinion (discussed below) notes that, "although two judges in this district have concluded that the Blakely rationale reaches the Federal Sentencing Guidelines, this intra-district view is not unanimous."

In US v. Morehouse, 2004 WL 2668347 (D. Me. Nov. 22, 2004), District Judge Woodcock held that, because of Blakely, he could "not upwardly depart from guideline sentence range based on wrongful convictions of others for crimes defendant had committed," but he still could "consider those wrongful convictions in determining the sentence within the guideline range."

In Thomas v. US, 2004 WL 2674362 (D. Me. Nov. 19, 2004), Magistrate Judge Kravchuk recommends denying a defendant's federal habeas petition over claims that he was "sentenced under unconstitutional sentencing guidelines and his attorney was ineffective because he did not raise a challenge to the constitutionality of the guidelines."  The recommendation relies heavily on existing First Circuit holdings that Blakely has not (yet) clearly rendered the federal guidelines unconstitutional.

Interesting reports from the front lines

I have received a few interesting responses to my post here this morning, in which I speculated that a vast number of sentencings have been postponed until Booker and Fanfan are decided.  Specifically, I have heard from two "in the know" folks in two distinct districts (in different circuits) who report that the pending Booker and Fanfan have had little impact on the federal docket — that is, sentencing hearings are generally not being delayed in these districts while the rest of us wait for Booker and Fanfan to be resolved. 

Notably, according to these reports, though sentencings are going forward in these two districts, they are going forward in distinctly different ways under distinctly different understandings of the applicable federal sentencing rules and procedures.  These anecdotal reports, of course, just feed my now ravenous desire for post-Blakely federal sentencing data from the USSC.

I highly encourage readers to use the comments or to send me e-mails with additional reports from the field.

Blakely/Booker backup

I continue to be curious about — and eager to see data concerning — how many federal sentencings have been delayed awaiting a decision in Booker and Fanfan.  More anecdotal evidence suggesting many postponements can be found today in stories from Tennessee and Texas involving delayed judicial proceedings for two white-collar offenders pending the ruling in Booker and Fanfan.  (A noteworthy previous example can be found here.)

At the US Sentencing Commission hearing last week, I was given the impression that a very large number of the roughly 30,000 federal sentences that should have been handed down since Blakely have been postponed.  But I still have no sense of whether this means 1/4 or 1/2 or even 3/4 of all sentencings have been put on hold (and thus, as noted here, I will be thrilled when the USSC is able to make public the preliminary data it has collected concerning the post-Blakely state of federal sentencing).

Whatever the exact number, it seems clear that, after Booker and Fanfan are decided, the lower federal courts will have a huge backlog of postponed cases to process.  It will be interesting to watch if the Blakely backup has broad ripple effects next year on the administration of justice in the federal courts.

The Blakely costs and court crisis

This law.com article, tellingly titled "Courts on the Edge of Financial Crisis," documents a dire "funding crisis, unprecedented in the last two decades," now being experienced by the federal courts.  In the piece, insightful court scholar Arthur Hellman notes the potential impact of Blakely:

The Supreme Court's June decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a state sentencing case, has increased the workload because it threw into doubt the constitutionality of the Federal Sentencing Guidelines. Courts and prosecutors have been scrambling to anticipate what the impact on sentencing will be.

"The one consequence of that is many sentencing determinations before the Supreme Court decision that would have been routine and non time-consuming are now requiring huge amounts of time and attention by judges, assistant U.S. attorneys and defense attorneys," said Hellman. "That pushes other cases further down the line.

"Even if the caseload had remained the same, when you have an upset like this, just the sheer amount of human resources the court system has to devote to a large class of cases increases," he explained. "Even with a steady budget that would be difficult."

This disconcerting article confirms a lot of what I heard when I had a chance to  speak last month with federal District Court Clerks and Executives (discussed here and here).  Put simply, the federal courts were overloaded and underfunded before Blakely, and the impact of Blakely (even if it does not ultimately get applied to the federal system) is to make a bad workload situation much worse.

Of course, at least in the criminal law arena, one should not lose sight of what might be called the federalism solution to this workload problem.  If more criminal prosecutions, especially local drug crimes, were simply left to the states, the caseload burdens in the federal courts would be somewhat alleviated (although then the states would bear even more of the brunt of our swelled criminal justice system).

Lots of morning sentencing news

The papers are filled with two sets of sentencing-related stories.  The Supreme Court's decision in Leocal v. Ashcroft — holding that DUI is not a "crime of violence" for which an immigrant can be subject to automatic deportation — is thoughtfully discussed in articles in the NY Times and LA Times. Both pieces suggest that the impact of this seemingly little decision could be very big; the NY Times article quotes Ira Kurzban, a prominent immigration lawyer in Miami, saying Leocal is "going to have an immediate and significant impact on a large number of cases."

The work of the Enron sentencing jury (detailed here) is also discussed widely, and this Houston Chronicle story covers the sentencing angle most effectively. In the article, one of the defense attorneys describes the Blakely-inspired sentencing phase of the trial as "exceedingly weird — pure guesswork." An AP story here provides broader coverage.

UPDATE: With thanks to How Appealing, here is a Philadelphia Inquirer editorial entitled "Sentencing Guidelines: Court should fix a problem it created."

Enron sentencing jury is back

This just in: the novel advisory sentencing jury asked to decided a variety of sentencing-enhancing guideline issues in the Enron Nigerian barge case (background here) has returned its verdict. You can get all the details in this Houston Chronicle article, which explains that the jury determined:

• The sham produced $13 million in loss (not as much as the $43 million argued by the government or as little as the $120,000 suggested by the defense)
• All three defendants broke a private trust with Merrill Lynch.
• Two defendants had managerial or leadership roles and used more than minimal planning in the deal.
• One defendant did not substantially interfere with justice and did not use special skills.

Juries at work.  How interesting.  I cannot help but conclude (especially while sitting in the ivory tower) that this case shows that, even in complicated fraud settings, "Blakely-izing" the federal guidelines is not really that hard.

Not yet for Booker and Fanfan

The speculation that today was the big day proved inaccurate, as now two reliable sources report that the US Supreme Court did not issue its opinions in Booker and Fanfan today. 

Conforming Howard Bashman's genius here, it appears according to the SCOTUS Blog post here that the Court issued two relatively brief unanimous opinions today.  Interestingly, today's opinions were authored by Chief Justice Rehnquist and Justice O'Connor, which leads me to speculate that they are not writing for the Court in Booker and Fanfan (though that's hardly a surprising notion).

Sorry if I fueled unhealthy buzz that we might see the decisions today; I guess I am just too eager to see what the Court finally has to say.  Indeed, my efforts this morning to outline just some of the issues that confront the Court here is a reminder of how hard the decision is.  And the failure to get the opinion out quickly heightens my fear that we may see a fractured decision.  Stay tuned.

UPDATE: Chris Geidner at Law Dork deserves extra credit here for beating me to the inevitable Beckett reference.

Can sentencing jurors get the blue flu?

I was hoping that we might have news from the Enron Nigerian barge sentencing jury (previously discussed here) before the sentencing stories are overtaken by a decision in Booker and Fanfan.  But the rumor mill is starting to "confirm" my speculation here that tomorrow's opinion from SCOTUS will be Booker and Fanfan, and now this report from Houston indicates that an ill juror put a halt to the jury's advisory sentencing deliberations in the Enron Nigerian barge.  Though the work of this "sentencing jury" is scheduled to resume tomorrow, I wonder if a decision in Booker and Fanfan could change the face of this case yet again.

Fascinating Blakely reports on Enron trial

Earlier this week I asked here for readers to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding.  There are some great insights shared in the comments to that post, and I have also received other direct feedback from judges and lawyers that reinforces my general sense that having juries involved in sentencing factfinding has not proved too cumbersome or problematic.

Additional news and insights on this front come from the on-going trial of a group of Enron defendants in the so-called Nigerian barge case.  (The Houston Chronicle has this impressive site with background on the case and all its reporting.)  Despite the fact that the Fifth Circuit has held that Blakely is inapplicable to the federal guidelines (details here), the government sought, and US District Judge Ewing Werlein has arranged for (over defense objections), jury factfinding on seven aggravating factors about the conspiracy and fraud.

The Houston Chronicle has already run three fascinating articles about this Blakely-inspired sentencing proceeding: Ruse cost Enron investors $43 million - or $120,000; Jurors deliberate unorthodox Enron sentencing; and Jury to continue deliberations on sentences of 3.  All three articles are must-reads for anyone interested in a case-specific perspective on how Blakely could play out "on the ground."

Though I cannot readily summarize all the rich details in these great articles, I must note a few interesting facts: (1) of the five convicted defendants, two waived a jury sentencing trial and apparently agreed to judicial factfinding (though the article does not note what burden of proof will apply); (2) it appears that the sentencing phase took only two days after a seven-week guilt phase; (3) through competing expert witnesses (including Dan Fischel, a University of Chicago law professor who testified for the defense), the dispute over the amount of the loss in the offense is enormous, with the government claiming a loss of $43 million and the defense claiming a loss of no more than $120,000; (4) in addition to loss, the jury is also considering facts relating to role in the offense, abuse of trust, more than minimal planning and related issues; and (5) the attorneys spoke directly and diversely to the jury about their sentencing role:

Tom Hagemann, attorney for [defendant] Bayly, told the jury their decisions could alter "whether Mr. Bayly goes to prison for 15 years or not at all."

But prosecutor John Hemann told jurors that it is the judge, not the jury , that will decide the punishments and they are to consider the facts before them and not be swayed by attempts to garner sympathy.

Experiences with juries doing sentencing factfinding

Though US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), recently refused to allow the government to submit sentencing factors to a jury (as detailed here), there are anecdotal report of juries involved in sentencing factfinding in many courtrooms. For example, Ellen S. Podgor at the White Collar Crime Prof Blog reports here on the on-going Enron-related criminal trial where five convicted defendants "are back in court today for the jury to hear evidence for the purpose of sentencing." And Michael Ausbrook at INCourts reports here on reports of a state judge presiding "over a real, live, Indiana, non-capital sentencing jury --apparently without objection from the defense."

I would be grateful if readers might be inclined to utilize the comments to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding. I surmise from various anecdotal reports that having juries involved in this factfinding has not proved too cumbersome or problematic, but I doubt I am getting a complete picture from reading the occasional caselaw and newspaper accounts.

Blakely Ohio legal news

While Ohio legal wrangling over election law is already making headlines, and occupying the Supreme Court, there is also an interesting Blakely story in today's Cincinnati Post. This article details that four white-collar offenders are hoping a ruling in Booker and Fanfan might pave the road to reduced sentences, and it discusses in some depth the procedural posture of their cases as everyone awaits a Supreme Court ruling.

More on Blakely-ized indictments and retroactivity

Yesterday's Blakely reports from the federal district courts included noteworthy developments and rulings on Blakely-ized indictments here and Blakely's (non-)retroactivity here. In the course of trying to "close the book" on this week's developments, I noticed two more cases on these topics decided recently that only of late showed up on Westlaw.

In US v. Jamison, 2004 WL 2385003 (W.D. Wis. Oct. 21, 2004), Magistrate Judge Crocker filed a thoughtful report recommending that the court deny motions by the defendant to strike sentencing allegation from the indictment. Along the way, Judge Crocker explains that "pragmatically, unless the court stays all of its pending criminal trials, the most risk-free course of action [while the law is unsettled] is to continue the current practice of allowing sentencing allegations in the indictment and holding a bifurcated sentencing hearing."

In US v. Falodun, 2004 WL 2397612 (D. Minn. Oct. 25, 2004), Judge Montgomery joined the growing list of district judges to rule on the record that Blakely is not to be applied retroactively: "Even were Blakely's holding to apply to the USSG, this Court concludes that Blakely would not apply retroactively to matters on collateral review." However, as some earlier comments have flagged here, this ruling is among many that do not fully grapple with the impact of the burden of proof on the overall retroactivity analysis.

Careful retroactivity analysis from WD of Virginia

Today in Lilly v. US, 1:04CV00079 (W.D. Va. Oct. 28, 2004), Chief United States District Judge James P. Jones issued a thoughtful opinion (available here) dealing with Blakely retroactivity issues. Chief Judge Jones notes that the Fourth Circuit's Hammoud decision means that, for the time being, "sentences under the USSG are not impacted by Blakely in this circuit." He goes on to explain that "even if Blakely is held applicable to the USSG, it does not apply retroactively to Lilly's case."

Walking effectively and clearly through all the steps of Teague, Chief Judge Jones holds that (1) Blakely is "a new rule for purposes of determining retroactivity," (2) that "Blakely announced a new procedural rule" because "Blakely does not alter the elements of the offense but merely requires that a jury find beyond a reasonable doubt any facts that the USSG requires in order to enhance a sentence, and (3) "Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."

The Lilly opinion also addresses a number of related issues concerning the posture and possibilities of different claims for retroactive application of Blakely. Though all the retroactivity analysis in Lilly is, in a sense, dicta, the decision provides a terrific road map through the complicated terrain of retroactivity. Though I am sure defendants with final convictions will not like where the destination ends, everyone working through these complicated issues should benefit from the mapping done in Lilly.

Indicting up Gotti

With organized crime infiltrating pop culture — with shows ranging from HBO's The Sopranos to A&E's Growing up Gotti — we knew it would only be a matter of time before organized crime infiltrated the world of Blakely. And, earlier this week, through US v. Gotti, 2004 WL 2389755 (S.D.N.Y. Oct. 26, 2004), US District Judge Richard Conway Casey issued an interesting Blakely decision in a case involving the Gambino Organized Crime Family.

The interesting factual backdrop for the Gotti decision should not overshadow Judge Casey's thoughtful and cautious ruling in response to the defendant's claims that sentencing allegations in a Blakely-ized indictment "are mere surplusage that may be prejudicial to Defendants at trial." In a well-reasoned opinion that merits a full read, Judge Casey highlights that the "confluence of Booker and Fanfan looming on the horizon and Mincey controlling the present left the Government in a quandary in this case and in others." Judge Casey thereafter explains why most of the facts, of the added allegations do not constitute surplusage, any then adroitly avoids a definitive ruling on matters of trial procedure for proving those allegations. Here's the court's summary:

For the foregoing reasons, Defendants' motion to strike the sentencing allegations in the eighth superseding indictment is GRANTED IN PART and DENIED IN PART. The term "Sentencing Allegations" and the citations to the Sentencing Guidelines are irrelevant and may be prejudicial; therefore, they shall be struck. The factual allegations, however, shall remain. The Court reserves decision on whether the sentencing enhancements will be presented to the jury, and if so, whether the Court will hold a separate sentencing proceeding. These issues may be resolved by the Supreme Court's forthcoming decision in Booker and Fanfan.

UPDATE: An attorney from Virginia wrote in to report that "on October 26, Judge Gerald Bruce Lee (US District Court, ED of Virginia) ruled from the bench in US v. Johnson that sentencing factors must be stricken from an indictment as surplusage under Rule 7(d)." Recall that the Fourth Circuit, in US v. Hammoud, 378 F.3d 426 (4th Cir. 2004), upheld the constitutionality of the sentencing guidelines, and counsel argued that the government, after having "gotten what it asked for in Hammoud, ... was now asking lower courts to disregard its holding by seeking to create a new jury-sentencing regime in case they turn out to be wrong. The Disitrct Court agreed that Hammoud required it to reject this attempt. The defendant preserved the right to challenge the guidelines under under Blakely at sentencing in the event of a conviction."

Living with Blakely and Ameline

Early last week I asked here about what the federal sentencing world was like in the Ninth Circuit, which as a result of the decision in Ameline is the one jurisdiction having to deal directly Blakely-ized guidelines. Interestingly, one district court clerk indicated in the comments that "we are not having much trouble adjusting to the post Ameline world.... Our court conducts 3 sentencing proceedings each week and I would estimate that a contested Blakely issue only arises once a month at the most."

But this article in the LA Times paints a much different picture of life "on the ground" in the Ninth Circuit. The article's headline asserts that Blakely and Ameline have caused "confusion for federal jurists and prosecutors," and it portrays the state of federal sentencing in Los Angeles as chaotic. One especially interest section of the article details a dispute over efforts to secure Blakely waivers in LA:

[Chief Assistant US Attorney George] Cardona said ... that more than 97% of all criminal cases brought by his office end in guilty pleas. Accordingly, the U.S. attorney's office has adopted a policy of including so-called Blakely waivers in proposed plea agreements. By signing such a waiver, a defendant agrees to be sentenced under the old guidelines that are now under a cloud.

Maria E. Stratton, chief federal public defender in Los Angeles, has raised legal and ethical objections to the waivers. "If the guidelines are unconstitutional, they are unconstitutional, and our clients cannot and should not be sentenced under them," she wrote to top brass at the U.S. attorney's office.

Stratton added that her office would refuse to enter into any Blakely waivers, except in cases where the maximum punishment would fall between zero to six months in custody. She said she would consider authorizing an exception only under extraordinary circumstances. "I believe this response to the waivers proposed by your office is the ethical way to represent our clients and constitutes effective assistance of counsel," she said.

Blakely, mandatory minimums and the safety valve

In yet another interesting district court ruling from Utah, US District Judge J. Thomas Greene in US v. Aguilar Guilardo Parra, 2004 U.S. Dist. LEXIS 21133 (Oct. 20, 2004), thoughtfully explores the impact of Blakely in the application of certain mandatory minimums and the so-called "Safety Valve" provision of USSG § 5C1.2 and 18 USC § 3553(f). Judge Greene explains that "Blakely does not require jury involvement in connection with any increase of a sentence under the Guidelines where such increase results from prior conviction(s) [and] Blakely does not apply to any action by the court which would decrease rather than increase a sentence," and consequently "Blakely is not implicated and does not apply to sentencing issues in this case."

The decision in Aguilar Guilardo Parra is both cautious and contained in its analysis, but it merits a read for its thoughtful review of the scope of Blakely and Judge Greene's determination that he can make needed factual findings under the Safety Valve without regard to Blakely. In addition, Judge Greene's thoughtful non-Blakely discussion of the Safety Valve and of the acceptance of responsibility guideline are noteworthy.

A window on waiver

I have heard interesting and diverse anecdotal stories about when and how defendants are expressly waiving their Blakely rights, and I get the sense that Blakely waivers are quite common and quite varied in courts nationwide. A decision earlier this week from Maine (which just came on-line) provides a window on waiver in federal district court. Though the ruling of US District Judge John Woodcock in US v. Roper, 2004 U.S. Dist. LEXIS 20957 (D. Maine Oct. 19, 2004), does not break significant jurisprudential ground, it does reveal some of the new waiver dynamics that have arisen in the wake of Blakely.

Double whammy through double jeopardy

Today in US v. Kassab, CR 03-407-RE (D. Or. Oct. 21, 2004), which can be downloaded below, US District Judge James A. Redden rejected a government's motion to empanel a sentencing jury. In Kassab, the defendant pled guilty before Blakely was decided to one count of possession and distribution of pseudoephedrine. While sentencing was pending, the Ninth Circuit decided Blakely was applicable to the federal guidelines in Ameline, and the government in turn filed "a request for a sentencing jury in this case to determine the amount of pseudoephedrine for which defendant should be held responsible at sentencing."

Relying heavily on the Ninth Circuit's post-Ameline decision in US v. Patterson, 381 F.3d 859 (9th Cir. August 20, 2004), Judge Redden refused the government's request:

In this case, in order to impanel a sentencing jury on the issue of amount of pseudoephedrine, this court necessarily would have to vacate, over defendant's objections, his plea to an unspecified amount of pseudoephedrine. Under Patterson, this court is not permitted to vacate the plea in these circumstances. Further, based on the Ninth Circuit's rationale in Patterson, this court concludes that because initial jeopardy attached when the court accepted defendant's guilty plea to an unspecified amount of substance, double jeopardy would attach to a subsequent jury determination of the amount of substance involved, in violation of defendant's rights under the Double Jeopardy Clause of the Fifth Amendment. Defendant's guilty plea established only that he admitted to possession and distribution of an unspecified amount of pseudoephedrine, and that is the basis upon which he will be sentenced.

In sum, when this court accepted defendant's plea to an unspecified amount of pseudoephedrine, the government lost the opportunity to prove to a sentencing jury that defendant was responsible for a specified amount of the substance. This is a situation like Patterson where intervening changes in the law have resulted in the government losing, through no fault of its own, the opportunity to argue and prove the amount of substance at issue. Even though this arguably could result in a windfall to the defendant and prejudice to the government, the Fifth Amendment does not permit the defendant to be tried twice for the same offense.

Download kassab_double_jeopardy_opinion.pdf