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