Be careful what you wish for

Because of the mobius strip features of the post-Blakely world, many have repeated in various contexts the old cliche warning "Be careful what you wish for." I have previous suggested that the warning seems appropriate in response to arguments that Blakely is just an application of (and not an extension of) Apprendi. As discussed here and here, that argument might keep federal courts from having lots of sentencing headaches in federal direct appeal cases, but then may produce different and greater headaches for these courts when dealing with state habeas cases.

In another arena, the decision yesterday in US v. Mutchler, 2004 WL 2004080 (S.D. Iowa, Sept. 09, 2004), provides another object lesson in "Be careful what you wish for." At the same time that DOJ has been arguing that Blakely is inapplicable to the federal guidelines, it has also been "Blakely-izing" indictments. (See Ron's post here about amended Blakely-ized indictments in the Enron prosecutions, and note here that the Comey memo urged this double-barrel post-Blakely strategy.)

But, in Mutchler, US District Judge Robert Pratt faced a defense motion to strike allegations of aggravating factors in a Blakely-ized superseding indictment. And Judge Pratt was so moved:

The Court considers the Defendants' arguments persuasive and finds that the aggravating factors within the Superseding Indictment are prejudicial surplusage....

The Government argues the addition of the aggravating factors is proper in the current uncertain post-Blakely v. Washington sentencing environment.... The Government's concerns are understandable.... [But] Defendants argue, since the aggravating factors are not properly offenses against the laws of the United States ..., this Court lacks the subject matter jurisdiction over the matters asserted in the aggravating factors.

The Court agrees that the aggravating factors are not criminal conduct defined by Congress and, as such, have no place within the charging documents against the Defendants.... As a part of guidelines meant to act as procedural rules for the court, the aggravating factors do not provide sufficient authority to bring the allegations contained within them properly before a trier of fact in a United States courtroom.

The Government's concerns about the Defendants' possible windfall in the form of a reduced sentence are genuinely placed. However, the scenario in which the Guidelines are found unconstitutional as applied to the present case is still, technically, suppositional. What is not suppositional is that the presence of the aggravating factors within the charging documents as they now exist is unconstitutional.

There is a lot more rich analysis in Judge Pratt's opinion, and the decision reinforces for me that the warning "Be careful what you wish for" might suitably be given to both prosecutors and defense counsel these days.