Friday, November 12, 2004

The Blakely costs and court crisis

This 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).

November 12, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, November 10, 2004

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."

November 10, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Criminal Sentences Alternatives, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, November 09, 2004

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:

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.

November 9, 2004 in Blakely in Sentencing Courts | Permalink | Comments (5) | TrackBack

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.

November 9, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, November 08, 2004

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.

November 8, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Saturday, November 06, 2004

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.

November 6, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, November 04, 2004

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.

November 4, 2004 in Blakely in Sentencing Courts | Permalink | Comments (5) | TrackBack

Tuesday, November 02, 2004

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.

November 2, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, October 29, 2004

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.

October 29, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Thursday, October 28, 2004

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.

October 28, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

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."

October 28, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Sunday, October 24, 2004

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.

October 24, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

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.

October 24, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Friday, October 22, 2004

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.

October 22, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Thursday, October 21, 2004

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

October 21, 2004 in Blakely in Sentencing Courts | Permalink | Comments (1) | TrackBack

Tuesday, October 19, 2004

Judge Bataillon speaks on Blakely-ized indictments

Regular readers know that Nebraska US District Judge Joseph Bataillon has issued a number of important opinions in the post-Blakely world (as detailed in posts here and here). Now, in US v. Benitez-Hernandez, 8:04CR317 (D. Neb. Oct. 19, 2004), Judge Bataillon has entered a noteworthy order rejecting a defendant's motion to dismiss a Blakely-ized indictment "in its entirety or to strike the 'additional factual findings' pled in the indictment." Here are some highlights from an opinion that can be downloaded below:

This court has held that it will continue to sentence under the guidelines to the extent that factors increasing the "maximum," as it is defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or to the court if a jury is properly waived) under the standard of proof beyond a reasonable doubt. United States v. Terrell, No. 04-CR-24, 2004 WL 1661018 (D. Neb. July 22, 2004). The indictment herein is the result of the government’s attempted compliance with Blakely. The additional allegations, if found by a jury beyond a reasonable doubt, would support a guideline sentencing enhancement.

Defendant challenges the indictment, contending the "additional factual finding" set out in the indictment is not a crime and that his prosecution for conduct that does not proscribe any criminal statute violates his Fifth and Sixth Amendment right to notice of conduct constituting a criminal offense and right to be informed of the nature and cause of the accusation against him. He further asserts that the Fifth Amendment Grand Jury Clause permits indictment only for infamous crimes, contending that sentencing enhancements promulgated by the Sentencing Commission are not crimes. Last, he contends that this court lacks jurisdiction over charges that do not constitute federal crimes.

The court finds defendant’s contentions have no merit..... The court finds no defect in the indictment. The government may seek to enhance defendant’s sentence under the guidelines with proof beyond a reasonable doubt of the additional fact it alleges. That fact then becomes the functional equivalent of an element of the crime that carries the enhanced penalty. The court finds the indictment fairly apprises the defendant of the elements of the crime, as enhanced, and the nature of the charge against him. Because the guideline provisions have the force of law, conduct that increases a penalty under the guidelines, together with proof of other essential elements, comprises an enhanced crime. Although reference to a guideline section would be helpful and appropriate, courts and practitioners have sufficient familiarity with the guidelines to ascertain the statutory source of the alleged enhancing fact. See Fed. R. Crim. P. 7(c)(3) ("unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment.").

Download Benitez.pdf

October 19, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Saturday, October 16, 2004

More Blakely cases move along

In this post here I wondered about whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan. Though I would still appreciate additional feedback from readers in the comments, the newspapers help fill in the picture.

Specifically, here is an article from Montana detailing a sentencing decision by US District Judge Richard Cebull which copes with Blakely, and here is an article concerning a fraud case in California in which it is reported that, following a guilty verdict, Chief U.S. District Judge Vaughn Walker "is overseeing a second set of deliberations during which the jury will determine factors to be used in sentencing."

October 16, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Thursday, October 14, 2004

Seeking news (and data) from the federal sentencing courts

I am heading out the door for this great conference, and may not be back on-line for a while. While I am gone, I wonder if readers working in the federal criminal justice system might provide a status report on whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan.

Today marks 16 weeks since Blakely was handed down. Operating at its usual pace of 1200 sentencings per week, this means that nearly 20,000 federal sentences should have been imposed since June 24, 2004. I have heard from various sources that sentencings have completely stopped in many federal courtrooms, but I also am certain that some cases continue to move through the pipeline. I wonder if the USSC or the AO or DOJ or anyone else has a real sense of the current case flow.

Evidence of the flow of cases continuing can be found in various places. For example, this article from Maine discusses the recent sentencing of a federal gun crime by US District Judge John Woodcock. The article interestingly notes that the defendant was allowed to plead to a four-year sentence, though Judge Woodcock apparently would have liked to impose a longer sentence and thought a longer sentence would have been in the cards pre-Blakely.

Relatedly, some federal case decisions recently appearing on Lexis (and helpfully collected by the folks at USSGuide) provide additional insights into what is transpiring "on the ground." For example, in US V. Banton, 2004 U.S. Dist. LEXIS 20401 (E.D.N.Y. Oct. 12, 2004), we get a glimpe into the work of Judge Weinstein and his commitment to giving Blakely factors to juries. In Banton, Judge Weinstein had the jury consider the facts for a "role-in-the-offense" enhancement, and he tells the jury that "even without enhancement defendant faces a very serious sentence." Here's how the case concludes: "The jury determined that with respect to each count, the amount of cocaine was more than 500 grams but less than 2000 grams, and that the defendant was an "organizer," "leader," "manager," or "supervisor," and thus eligible for a role enhancement under the guidelines. Defendant's objection to this two stage trial is overruled."

Moving to the front-end of federal criminal cases, we also have an interesting decision in US v. Jardine, 2004 U.S. Dist. LEXIS 20414 (E.D. Pa. Oct. 8, 2004), which addresses efforts by the government to cover all its Blakely bases though amended indictments. As detailed below, US District Judge Berle M. Schiller did not think much of the government's efforts:

In sum, this Court will not countenance the Government's attempt to leave irrelevant and prejudicial information in the Indictment "as a protective measure" "in anticipation" of pending Supreme Court cases, on the assumption that Booker and Fanfan will be decided in a certain way. It has been said that "the wheels of justice grind slowly," but the Government would prefer a dead stop....

[T]his Court notes that the Government has conducted its prosecution of this case in a piecemeal fashion. As set forth above, the charging instruments have included an Information against Robert Jardin, an Indictment against Robert Jardin and Bruce Jardine, a Superseding Indictment against those two, a second Superseding Indictment to incorporate the "Notice of Additional Factors," and now a Third
Superseding Indictment adding Dennis Jardine. All the while, though, the Government knew of all three Jardine brothers, and knew at least the broad outlines of their involvement in the alleged crimes.

This kind of inefficiency seemingly is the result of bureaucratic case management by officials in Washington, D.C. Perhaps these problems could have been avoided if the United States Attorney's office in the Eastern District of Pennsylvania was given appropriate authority. The Government is admonished that such confusion and indecisiveness is to be avoided.

October 14, 2004 in Blakely in Sentencing Courts | Permalink | Comments (4) | TrackBack

Saturday, October 09, 2004

More fun(fun) from judge who decided Fanfan

Proving that certain judges have all the fun, US District Court Judge Brock Hornby — who is already famous for being the judge who sentenced Fanfan — earlier this week addressed in US v. Perez, 2004 U.S. Dist. LEXIS 20133 (Oct. 5, 2004), a request of a defendant in a drug case "who wants to plead guilty to the charge of conspiracy, but wants a jury trial on the drug quantities and on the scope of the conspiracy."

The whole opinion in Perez is a great and significnt read. Here are just a few highlights:

As a result of Blakely, the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences....

Since "an indictment must set forth each element of the crime that it charges," Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the "elements" of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government's objection, accept a plea to a lesser included offense.... The defendant here says that pleading guilty to conspiracy covers the "elements" in this case. I do not believe that "scope" of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become "elements of the offense"? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an "element" seems to have lost significance. It certainly does not help resolve the issue before me. Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. The appellate cases generally have said that defendants cannot stipulate their way out of the government's right to try a case the way it was charged.... This background counsels in favor of sustaining the government's objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). "A court may reject a plea in exercise of sound judicial discretion." Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

October 9, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack

Friday, October 01, 2004

Minnesota's Long-Term Report

Right on time, the Minnesota Sentencing Guidelines Commission has followed up the short-term recommendations it made to Minnesota Governor Tim Pawlenty in response to Blakely (available here with commentary here and here) with a set of long-term recommendations on Blakely. And the link to the report now seems to be working; the report can be accesed here.

Though I will do substantive commentary on the new Minnesota report in subsequent posts, I want to start by complementing the Minnesota Sentencing Guidelines Commission for its thoughtful and balanced discussion of legal issues and also its obvious effort to present data in a public and accessible manner for lawyers, policy-makers, researchers and other interested observers. Sadly, though the federal sentencing system is in dire need of thoughtful and balanced data-driven analysis, the US Sentencing Commission has not been as effective in publically analyzing Blakely and its impact (as lamented here and here). Once again, the federal system would benefit from following Minnesota's lead.

Helpfully, this latest Minnesota SG Commission report includes at various points a discussion of Blakely that should be of great interest to persons working outside of The North Star State. Particularly insightful are some of these passages from the report's conclusion:

The level of chaos surrounding the Blakely decision is determined in part on the structure of an individual state’s sentencing system. When sentencing enhancements are an integral part of the sentencing structure, such as with the Federal Sentencing Guidelines, the impact is much more significant and difficult to remedy. To add to the confusion of the last three months, the two cases pending before the U.S. Supreme Court, Booker and Fanfan create even more apprehension as to what the outcome of those decisions may have on sentencing policies.

The Commission's analysis of the Blakely decision on sentencing in Minnesota indicates that there is limited impact. The sentencing guidelines remain constitutional, as do aggravated departures. The current procedure for imposing aggravated departures requires some modification to address the constitutional issues raised in Blakely, but the modifications are not extensive or far reaching, especially given the limited number of cases each year that receive aggravated departure sentences. In addition, there are a limited number of sentencing provisions or procedures that need to be modified or amended, but the majority of the modifications focus on language changes, amending forms or modifying trial procedures. The basic structure of the state's sentencing system remains intact and continues to provide for sentences that promote public safety and hold the defendant accountable, while ensuring the constitutional rights of the defendant are protected....

Although the recommendations presented in this report carry no legal force, they do provide a road map for the state with regard to sentencing policies and practices as both the state and federal courts work through the numerous issues surrounding the Blakely decision. If the state approaches the issues raised in the recent decision in a rational and methodical manner, the disruption and impact to the criminal justice system will be held to a tolerable level.

October 1, 2004 in Blakely in Sentencing Courts | Permalink | Comments (0) | TrackBack