Vol. 11, No. 27
Covering Cases Published in the Advance Sheets through July 5, 2004

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.


The Blakely Drama is Growing - Exponentially

The Confrontation Clause - Another Crawford Update

A Paean for the Independence of Grand Juries


U.S. v. Booker, No. 03-4225 (7th Cir. July 9, 2004) (Judge Posner)
U.S. v. Fanfan, No. 03-47-PH (D.Me. June 28, 2004) (Judge Hornby)
U.S. v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004) (Judge King)
U.S. v. Bijou, No. 03-4247 (4th Cir. April 13, 2004) (Per Curiam) (Unpublished)

Last week a number of events complicated, if not slowed down, the Supreme Court’s review of an ever- growing number of sentencing issues raised by its June 24 decision in Blakely v. Washington, 124 S.Ct. 2531 (2004).

Following the Solicitor General’s selection of Booker and Fanfan as the appropriate cases for review, defense lawyers suggested two different and, they argue, better cases for review - namely the Fifth Circuit’s decision in U.S. v. Pineiro (P&J, 06/21/04) and the Fourth Circuit’s unpublished decision in U.S. v. Bijou (a case involving an enhancement based essentially on "acquitted conduct" decided by the Fourth Circuit before Blakely).

The question raised in Pineiro was: “Does a federal judge violate a defendant’s Sixth Amendment jury trial rights by increasing the defendant’s sentence through the application of federal sentencing guideline provisions that are supported by facts found by the judge and not by the jury?”

The question raised in Bijou was: “Whether a fact necessary for an increase in offense level under the U.S. Sentencing Guidelines must be alleged and proved according to the requirements of the Sixth Amendment as set forth in Blakely v. Washington?”

Then, in a joint brief filed by the NACDL and the National Association of Federal Defenders, the Supreme Court was urged to grant review in Booker or Pineiro, deny review in Fanfan, and grant review in Bijou. In that amicus brief two additional questions were presented to the Supreme Court, namely:

1. Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.

2. If the answer to the first question is yes, the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing?

Thus, on top of the three questions previously certified by the Second Circuit in U.S. v. Penaranda, No. 03-1055(L) (2nd Cir. July 2, 2004) (P&J, 06/21/04), and the four questions framed by the parties in the four cases for which writs of certiorari have already been filed, the Supreme Court has now been presented with a total of nine Blakely related questions - and some of the lower court decisions have raised a host of additional questions that they deem pertinent to the Supreme Court’s review.

Finally, the Solicitor General’s Office quickly responded with its own Reply Briefs - urging the Supreme Court to stick with his selection of cases and warning:

“[T]he federal judicial system is in dire need of this Court’s prompt resolution of the issues presented. The defense bar’s caution aside — a caution that coincides with the reduced sentences that many defendants are receiving in the current reign of confusion over Blakely — there is widespread sentiment in the lower federal judiciary that, absent this Court’s expedited intervention, federal sentencing threatens to descend even further into a balkanized set of regimes in which each circuit, if not each individual district court judge, literally makes up the rules as he or she goes along. This chaotic state of affairs cannot stand. It can only be rectified by expeditious action by this Court."

Clearly, the opposing forces are jockeying for position by trying to select the cases that will have the greatest public appeal for their respective positions. While the Supreme Court is expected to act quickly on these filings, the proliferation of new filings with the Court during its summer recess clearly complicates the Court’s review and may push back any action by the Supreme Court on Blakely until later in the Fall than had originally been expected.

For those interested in staying abreast of the most current Blakely developments, we remind you that we track and post, on a daily basis, all new Blakely developments on our Website at www.ussguide.com, where you will also find of all the latest published district and circuit court Blakely rulings (organized by Circuit) and a wealth of other Blakely resources.


U.S. v. Mueffleman, No. 01-CR-10387-NG (D.Mass, July 26, 2004) (Judge Gertner)

In the scholarly and logical fashion for which she is renowned, Judge Gertner has presented the most comprehensive - and one of the most compelling - analyses of the impact of Blakely v. Washington on the Federal Sentencing Guidelines that we have seen to date.

She started by noting that she had 30 cases within her own docket that fit the Blakely mold; and, from that group, she chose four that were “on the cusp of sentencing” to address three issues: (1) whether it was appropriate to defer consideration of Blakely issues pending further appellate guidance; (2) whether Blakely applies to the Federal Sentencing Guidelines; and (3) whether the Guidelines are severable if portions of those Guidelines are unconstitutional under Blakely

In responding to those questions, Judge Gertner ultimately concluded:

“(1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.”

One of the key premises of her decision was that the Guidelines are unconstitutional in their entirety because they were “intended to cohere as a single regime.” She then continued:

"While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis."

Clearly, space does not permit an exhaustive reiteration of all the details of Judge Gertner’s powerful reasoning and her carefully documents arguments; but Blakely watchers should read this case for what it is: a beacon of light that shows the way on many of the complex and interrelated issues that flow from Blakely.


U.S. v. Sisson, Cr. No. 01-10185-EFH (D.Mass. July 21, 2004) (Judge Harrington)

One of the unintended effects of Blakely v. Washington may be that it will bring Senior Judge Harrington back into the Federal sentencing corral. Three years ago, Judge Harrington announced, in U.S. v. Sidhom, 144 F. Supp.2d 41 (D. Mass. 2001), that he had decided not to accept any more criminal cases because "under the Sentencing Commission Guidelines the power to impose a sentence has been virtually transferred from the court to the government, which, as the prosecuting authority, is an interested party to the case. This transfer constitutes an erosion of judicial power and a breach in the wall of the doctrine of the separation of powers." He complained that the government, not the judge, "has the power to determine the severity of the punishment."

Sensing that Blakely might force a return to a more traditional approach to sentencing in which the judges - not the prosecutors - determine the appropriate sentence, Judge Harrington announced last week in the instant case that, in view of Blakely, he would recommence accepting criminal cases as of September 1, 2004. He wrote:

“In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of U.S. v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and . . . adhere to the statutory commands setting sentences. In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court ‘will continue to rely on the Guidelines as recommendations worthy of serious consideration.’ The Guidelines are to be considered as guidelines and not as mandates which have destroyed traditional judicial discretion.”


U.S. v. Nixon, 315 F.Supp.2d 876 (E.D.Mich. 2004) (Judge Feikens)

The facts of this case are a prime example of what Judge Harrington complained about in Sisson: the undisguised efforts of prosecutors to wrest total control over all aspects of sentencing away from the judiciary.

Here, the two defendants were originally indicted on drug charges in a Michigan state court as part of a joint state/federal program known as “Project Safe Neighborhoods,” which is spearheaded by the Justice Department. The defendants were then subjected to the old “Do it my way, or you’ll be reamed” trick: both defendants were told that if they refused to accept a two-year plea offered by the State, their cases would be transferred to the Federal system.

While the defendants were not specifically told of the full range of penalties that would be available in the Federal system, the unspoken message of vindictive justice was unmistakably clear. As Judge Feikens noted, if Nixon defied the prosecutors, his sentence could (and probably would) be jacked up to 262 months in prison (approximately 22 years) in the Federal system, compared with the two years he was “offered” under the state deal. (Id., at 878).

Both defendants declined the state plea; and, shortly afterwards, the state charges were dropped and Federal indictments were brought. When the defendants learned the consequences of their defiance, they filed motions alleging ineffective counsel at the state level arguing that their counsel had not sufficiently warned them how badly they could be hammered.

That’s when the plot behind Project Safe Neighborhoods began to unravel: Judge Feikens started to become concerned about whether defendants charged under Project Safe Neighborhoods were systematically being clubbed into submission. After holding hearings on the defendants’ motions, he asked the parties to submit briefs on a number of potential remedies he was considering. He also stated that “in order to decide whether any remedy was available in federal court, this Court would need to know the level of cooperation that exists between the prosecutors as part of Project Safe Neighborhoods.” (Id., at 878).

Rising to the occasion, the Government effectively took the position that it was not going to permit a federal judge to look over its shoulders. It argued that the Court “did not have the power to grant any of the proposed remedies”; it stated that “it would not produce these documents voluntarily”; and it said that, before it gave in to a Federal judge, “it would move to dismiss the federal indictments as to both defendants.” (Id., at 879).

Judge Feikens was up to the challenge. He bluntly gave notice that he would not be bullied into submission, stating: “Because there are a large number of cases filed in the Eastern District of Michigan as part of Project Safe Neighborhoods, and because similar difficulties may present themselves in further proceedings, I feel it is my responsibility to make a report to my fellow judges about the nature of Project Safe Neighborhoods. To that end, I order the government to produce those documents described here for in camera review on or before 7 June 2004.” (Id.).


In Brief

The Feeney Amendment: U.S. v. Ray, No. 03-30339 (9th Cir. July 23, 2004) - By a sharply divided vote, and over strong wails of protest from the Government, the Ninth Circuit upheld Judge Molloy’s standing order that required the U.S. Attorney's office in Montana to assemble the data required to comply with the court's reporting requirements under the Feeney Amendment. (See prior decision reported at 273 F.Supp.2d 1160 (D.Mont. 2003) (P&J, 10/06/03)).

The Roots of Abu Ghraib?: U.S. v. Donnelly, 370 F.3d 87 (1st Cir. 2004) - This is a disturbing decision that raises eerie questions about the causes of the barbaric treatment of many of the prisoners held at the Abu Ghraib prison in Iraq. The defendant in this case, a former supervisor at the Nashua Street Jail in Boston, MA, was convicted of using “unjustified, excessive force” to punish pretrial detainees who “disrespected” him during a period that ran “at least” from June, 1998 through February, 2001. One of his victims was easy-pickings: he suffered from Turette’s Syndrome - and much of the decision was devoted to a discussion of whether that person was a “vulnerable victim” within the meaning of U.S.S.G. § 3A1.1 (the Court ruled he was). But underlying this decision is a far more significant question that has only been whispered by some since the brutality at Abu Ghraib became public: is this type of brutality endemic to the United States prison system?

That question was raised by Bob Herbert of The New York Times, in his column entitled “America’s Abu Ghraibs,” published on May 31, 2004 - and then largely ignored by the Government and the general public. But, in his column, Mr. Herbert stated: “Most Americans were shocked by the sadistic treatment of Iraqi detainees at the Abu Ghraib prison. But we shouldn't have been. Not only are inmates at prisons in the U.S. frequently subjected to similarly grotesque treatment, but Congress passed a law in 1996 to ensure that in most cases they were barred from receiving any financial compensation for the abuse.”

Search and Seizure: American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., No. 04-11652-GAO (D.Mass. July 28, 2004) - Sharply disagreeing with the approach taken by Judge Sweet in Stauber v. City of New York, No. 03 Civ. 9162 (S.D.N.Y. July 16, 2004) (P&J, 06/28/04), Judge O’Toole upheld the right of the Massachusetts Bay Transportation Authority ti conduct warrantless and suspicionless searches of handbags, briefcases and other items carried by passengers on all of the MBTA’s trains and buses passing near or by the Fleet Center during the Democratic National Convention in Boston.

Of course, some people will argue that such searches during the convention were necessary and justified the police state tactics and the deprivation of civil liberties. Sadly, however, powers given to the Government in times of crisis are exceedingly difficult to take back - ever. Thus, for example, in summarizing some of the “benefits” of the Democratic Convention to the City of Boston, the Boston Globe reported: “An array of security measures that raised the hackles of civil libertarians, but that law enforcement officials believe make the city safer, are also likely to stay. The Boston Police Department plans to move its new surveillance cameras from around the Fleet Center to high-crime neighborhoods around the city. The MBTA says it retains the right to search the bags of passengers, although it doesn't expect to do so with any regularity.” (See, “Convention leaves costs, prospects of gain for city,” by Michael Paulsen, the Boston Globe, July 30, 2004.)

Our question is this: Doesn't anyone realize that by the time we start objecting to these measures it may be too late to protest?


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

43

1,185

20,112

District Courts

25

724

 11,126


Copyright © 2004 Punch and Jurists, Ltd.