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August 31, 2004

More from the Seventh Circuit (and Judge Easterbrook)

Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants' claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey's effect (or lack of ) on forfeiture:

We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely's is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 673; U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.

In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook's important (and contestable) insights will have to await another post late tonight.

August 31, 2004 at 02:51 PM | Permalink


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Judge Easterbrook's comments concerning withholding issuance of the mandate or hoping that the district court sits tight pending resolution of Booker and Fanfan by the Supreme Court is interesting as it parallels what is the apparent policy of the Ninth Circuit. In a triology over a period of three successive days (U.S. v. Castro, 02-50365; U.S. v. DeGeorge, 03-50444; and U.S. v. Mirikitani, 02-10013) the Ninth Circuit appears to have adopted the following policy when faced with an appeal in which Blakely and the Ninth Circuit decision in Ameline are implicated.
1. In ordinary cases, where the court affirms the conviction, it will withhold its decision or the mandate pending the U.S. Supreme Court decision in Booker and Fanfan. (Castro).
2. Where the conviction is reversed, the case will be remanded as there is no longer any Blakely/Ameline issue.
3. Where the conviction is affirmed and defendant would have completed, or nears completion of, his/her sentence absent the asserted Blakely/Ameline errors, the case will be remanded for such action as in the discretion of the district judge is appropriate, including the granting of bail pending re-sentencing (leaving application of Blakely/Ameline to the district court in the first instance, with reminder of the pendency of Booker and Fanfan before the Supreme Court). (Castro/Mirikitani).
4. Where the conviction is affirmed and there are sentencing errors other than under Blakely/Ameline, the court will vacate the sentence and remand for sentencing in conformance with the decision and in light of Ameline without deciding the Blakely/Ameline issues, leaving them for determination in the first instance by the district judge (with the reminder of the fact Booker and Fanfan are pending). (DeGeorge).
In Castro, the court requested that the parties inform the court in those pending cases involving Blakely/Ameline and any particular circumstances that may require special consideration, implying that the court would expedite review of those cases similar to Castro where the defendant would have completed the sentence except for the enhancements that violated Blakely/Ameline. From this I surmise that with respect to cases that are on appeal from a district court in the Ninth Circuit in which Blakely/Ameline are implicated no final decision will be forthcoming if the conviction is affirmed until Booker and Fanfan are decided except in those cases in which the defendant's sentence would have been completed except for the enhancements (or some other extraordinary circumstance exists).

Posted by: Thomas J. Yerbich | Aug 31, 2004 5:37:12 PM

Easterbrook's comments on forfeiture under Apprendi/Blakely are fallacious. The offense is not "forfeiture." Rather, forfeiture is a type of additional punishment for certain offenses which is added to what would otherwise be the maximum penalties (fine, imprisonment, special assessment, supervised release, maybe restitution) IF certain ADDITIONAL FACTS are proven: that certain property was misused in certain ways in connection with the offense, and that the defendant had an interest in the property. If those facts are not proven, then the maximum punishment does not include any forfeiture. If they are proven, on the other hand, then the applicable punishment is increased by adding a forfeiture of the defendant's interest in the tainted property. I can't see why that wouldn't be an increase in the maximum punishment in vioaltion of Apprendi/Blakely, unless those facts were found beyond a reasonable doubt by a jury. If so, then Blakely overrules Libretti and this new Seventh Circuit opinion is wrong.

Posted by: Peter G | Sep 3, 2004 12:02:03 AM

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