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."