Tuesday, August 31, 2004

Back to the Legal Stuff

Enough of playing weather bureau, other than to let you know that it did not even rain where I live in San Juan!

In a follow-up to Booker, the 7th Circuit issued today its opinion in U.S. v. Messino, No. 02-1411 (7th Cir. August 31, 2004). The Court's opinion is written by Judge Bauer, and there is an opinion by Judge Easterbrook, concurring in part and dissenting in part, who also dissented in Booker. The majority opinion reverses in part the sentences of appellants based on Blakely-Booker grounds of judicial fact-finding as to drug amounts, etc. It also clearly establishes that Apprendi -and thus Blakely- does not apply to criminal forfeiture counts, and that criminal forfeiture may be established by a preponderance standard.

Judge Easterbrook, for his part, presents an analysis of the preservation of Blakely claims (assuming in arguendo that Blakely applies to the guidelines) and when these should be reviewed for plain error and when for harmless error. This was in response to the government's argument that appellants had waived any Blakely claims.