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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 at 03:41 PM | Permalink


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Thats very interesting. After Apprendi, the feds used USSG 5G1.2 to run multiple count convictions consecutively to cirumvent the 20 year statutory max that Apprendi imposed on convictions without a charged drug amount. I expect this will also be a problem post-Booker/Fanfan in that multiple count convictions without drug amount findings will simply be stacked consecutively to get the desired sentencing range. Post-Apprendi, I never found a good defense to this practice in cases that were remanded.

Posted by: Rob ratliff | Oct 21, 2004 6:35:08 PM

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