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October 14, 2004

Seeking news (and data) from the federal sentencing courts

I am heading out the door for this great conference, and may not be back on-line for a while. While I am gone, I wonder if readers working in the federal criminal justice system might provide a status report on whether and how federal cases are being processed while everyone awaits a decision in Booker and Fanfan.

Today marks 16 weeks since Blakely was handed down. Operating at its usual pace of 1200 sentencings per week, this means that nearly 20,000 federal sentences should have been imposed since June 24, 2004. I have heard from various sources that sentencings have completely stopped in many federal courtrooms, but I also am certain that some cases continue to move through the pipeline. I wonder if the USSC or the AO or DOJ or anyone else has a real sense of the current case flow.

Evidence of the flow of cases continuing can be found in various places. For example, this article from Maine discusses the recent sentencing of a federal gun crime by US District Judge John Woodcock. The article interestingly notes that the defendant was allowed to plead to a four-year sentence, though Judge Woodcock apparently would have liked to impose a longer sentence and thought a longer sentence would have been in the cards pre-Blakely.

Relatedly, some federal case decisions recently appearing on Lexis (and helpfully collected by the folks at USSGuide) provide additional insights into what is transpiring "on the ground." For example, in US V. Banton, 2004 U.S. Dist. LEXIS 20401 (E.D.N.Y. Oct. 12, 2004), we get a glimpe into the work of Judge Weinstein and his commitment to giving Blakely factors to juries. In Banton, Judge Weinstein had the jury consider the facts for a "role-in-the-offense" enhancement, and he tells the jury that "even without enhancement defendant faces a very serious sentence." Here's how the case concludes: "The jury determined that with respect to each count, the amount of cocaine was more than 500 grams but less than 2000 grams, and that the defendant was an "organizer," "leader," "manager," or "supervisor," and thus eligible for a role enhancement under the guidelines. Defendant's objection to this two stage trial is overruled."

Moving to the front-end of federal criminal cases, we also have an interesting decision in US v. Jardine, 2004 U.S. Dist. LEXIS 20414 (E.D. Pa. Oct. 8, 2004), which addresses efforts by the government to cover all its Blakely bases though amended indictments. As detailed below, US District Judge Berle M. Schiller did not think much of the government's efforts:

In sum, this Court will not countenance the Government's attempt to leave irrelevant and prejudicial information in the Indictment "as a protective measure" "in anticipation" of pending Supreme Court cases, on the assumption that Booker and Fanfan will be decided in a certain way. It has been said that "the wheels of justice grind slowly," but the Government would prefer a dead stop....

[T]his Court notes that the Government has conducted its prosecution of this case in a piecemeal fashion. As set forth above, the charging instruments have included an Information against Robert Jardin, an Indictment against Robert Jardin and Bruce Jardine, a Superseding Indictment against those two, a second Superseding Indictment to incorporate the "Notice of Additional Factors," and now a Third
Superseding Indictment adding Dennis Jardine. All the while, though, the Government knew of all three Jardine brothers, and knew at least the broad outlines of their involvement in the alleged crimes.

This kind of inefficiency seemingly is the result of bureaucratic case management by officials in Washington, D.C. Perhaps these problems could have been avoided if the United States Attorney's office in the Eastern District of Pennsylvania was given appropriate authority. The Government is admonished that such confusion and indecisiveness is to be avoided.

October 14, 2004 at 12:30 PM | Permalink


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On the ground where I am:
Sentencings continue, but at a slower pace. Plea agreements have Blakely waivers. We've also had a number of "pro forma" trials in order for defendants to preserve suppression issue appeals because the Government will not accept conditional guilty pleas without Blakely waivers. The last one, a bench trial for a felon in possession charge, took a total of 37 minutes (!) from openening statements to verdict. (The Defendant stipulated to previous convictions, firearm nexus, and the testimony of other witnesses. Defendant did not do any cross examination of substance.) It has to be a record.

Additionally, superceding indictments have been filed charging relevant enhancements. When relevant, juries have been used to find enhancing factors after trial. Some judges in the district have held off on ruling on s. 2255 motions.

In short: We're getting by, proceeding when it's presumably "safe" to do so. But I have a feeling that there is a logjam piling up, which will have to be dealt with if a decision doesn't come soon.

Posted by: District Clerk Battling Blakely | Oct 14, 2004 3:17:22 PM

Thanks, DCBB, for another helpful and informative report. Others willing to share?

Posted by: Doug B. | Oct 14, 2004 7:04:08 PM

Why doesn't the DOJ stop worrying about the "numbers" and start concentrating on justice? Isn't that their job? It shouldn't matter how many sentences this affects, what matters most is a fair and equitable sentence based on proven facts (in a plea or found by a jury). The only factor outside that may be prior convictions, but isn't that usually precluded from trial? (Unless it's a second offense situation.)

Posted by: Shelly | Oct 15, 2004 8:52:10 AM

I practice federal criminal law in the 7th District, Chicago. I am currently challenging an indictment which includes every type of enhancement possible. Strangly, the government admits that the sentencing allegations are prejudicial, but explains that they will not present evidence on them if there is a guilty verdict until the sentencing is bifircated. The proscuter also argues that Blakely and Booker are wrongly decided. A number of judges in our district are awaiting the US Sup. Ct. decision prior to sentencing.

Posted by: Demitrus Evans | Oct 24, 2004 11:47:42 AM

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