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.

We lucked out, . . . this time

It now appears Hurricane Frances' tropical storm winds, which extend some 180 miles from the center will not affect San Juan that badly. And, as Martha would say, "that's a good thing."

Go away, Frances!

Apparently the center of Hurricane Frances will pass sufficiently north of San Juan so that we will not feel any hurricane force winds and still hoping that we will not get tropical storm force winds either, but that is more iffy right now.

But, I never trust these hurricanes, as I recall the one that crossed Florida from East to West and then came right back inland again. I think that was Andrew, but I'm not sure. Just A slight downturn in Frances and she could still surprise everyone. Lots of rain expected in any event.

Real Lawyers don't have virtual degrees

If you want a real law degree, don't try to get a virtual one.

There she blows!

Hurricane Frances heading to Macondo Law!

For those of you not familiar with the Caribbean, the three big islands from left to right are Cuba, Haiti/Dominican Republic and the smallest of them, Puerto Rico, the land of Macondo Law.

Hurricane Frances May Strike Macondo Law's Turf

I am watching the trajectory of Hurricane Frances very carefully. I'm hoping it veers sufficiently north, actually that would be in a West-NorthWest trajectory, so as to avoid having to put up shutters. There are an awful lot of glass windows and sliding doors here. All windows that open have those accordion type shutters installed, so that is a no brainer. But installing the aluminum panels on the others and on two sets of sliding doors is a pain.

But that's the least of my worries. Whenever we have a hurricane strike us we then have to deal with loss of power, water (pumps not functioning), and usually without phone service as well. So, for readers outside Puerto Rico, if you don't see me post anything else for some time, you'll know what happened. And for those in Puerto Rico, well, you will not notice since you will likely be just as helpless as me.

Where is the Petitioner's Brief in Shepard?

Does anyone know if the petitioner's brief in Shepard has been filed? According to the Supreme Court docket it was due last Friday, August 27th, 2004. If anyone knows if it can be obtained online, please leave a comment to this post.

Positions of DOJ and NACDL before the Supreme Court from Blakely to Booker and Fanfan

I was just reading NACDL's amicus brief in support of petitioner in Blakely v. Washington. This is not the merits brief, but the brief in support of the petition for writ of certiorari. I found curious the following excerpt:

III. Applying Apprendi to Upward Departures from Statutory State Sentencing Guidelines Would Not Invalidate the Federal Sentencing Guidelines, Which are Promulgated by an Independent Commission Within the Judicial Branch.

The rule set forth in Apprendi is confined to facts “that increase the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490 (emphasis added). Thus, this Court has so far limited Apprendi to sentencing ranges that are established by legislative acts. See id. (“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”) (emphasis added); id. at 481 (noting that judges have historically “exercise[d] discretion . . . in imposing a judgment within the range prescribed by statute”) (emphasis added).

Washington’s sentencing guidelines are established by statute. See Wash. Rev. Code § 9.94A.310 (2000). Therefore, Apprendi squarely governs sentences that exceed the maximums set by those guidelines. The sentencing ranges in the federal Sentencing Guidelines, on the other hand, are not statutory and are not set by the legislature. Rather, the federal guidelines are established by the United States Sentencing Commission, an “‘independent commission in the judicial branch of the United States.’” Mistretta v. United States, 488 U.S. 361, 368 (1989) (quoting 28 U.S.C. § 991(a)).

Because the federal guidelines are the product of “an independent rulemaking body . . . within the Judicial Branch,” id. at 385, the federal guidelines do not establish “statutory maximum[s]” for purposes of Apprendi. 530 U.S. at 490. Thus, deciding that Apprendi applies to upward departures from state statutory sentencing guidelines would not usurp the federal court’s role in making findings under the federal sentencing guidelines. This Court may properly leave that latter issue—whether Apprendi applies to the federal sentencing guideline ranges—for a later day.

Apparently, from NACDL's brief in support of respondents in Booker and Fanfan, that "later day" did not take long to arrive.

The United States, in its amicus brief in Blakely, took the position that the Court's application of Apprendi to Blakely would call into question the constitutionality of the federal sentencing guidelines, only to now argue that Blakely does not apply to the guidelines.

Talk about reversal of positions!

And this is considered ethical?

Check out this New York Times article: Ethical Questions Raised on Legal Fee From Widow, by Adam Liptak. It is a good example of how some contingent fee agreements give lawyers a really bad name. This is practically like stealing candy from a baby.

An Interview with the Uniter

This is not supposed to be a blog about politics, but some exceptions have to be made. The New York Times had an article yesterday (Excerpts of an Interview With President Bush) containing excerpts of an interview with President Bush. It is a funny read, as well as a sad one when one considers this is the President speaking his usual doublespeak. About the only honest answer the President gives during the interview was the one in this exchange, itself an evasive answer:

On mistakes made in his first term:
Ms. Bumiller: At your last big press conference, you said that you couldn't think of any mistakes you had made. It's been about three or four months. Can you think of any now? It's been a long time.

THE PRESIDENT: You mean other than having this interview?

I would have liked for these reporters to have asked the President whether he thought John McCain really respected him, or whether he was simply positioning himself to be a presidential candidate in 2008.

My First Illegal Blakely Waiver

Yesterday I had a client enter a guilty plea in accordance to the provisions of a plea agreement containing a Blakely waiver. This was my first and I do not like it one bit, mostly because I consider such waivers illegal to the extent that they require a defendant to waive the burden of proof.

It will have no impact whatsoever on the sentence, but I still do not like signing things I consider are wrong as a matter of law.

Lawyers Turn Sentencing Commission Down in Favor of their White-Collar Criminal Clients

Another funny part of the Law.com article we quoted from in our previous post is that it relates that the Sentencing Commission (in the judicial branch, don't you forget) could not even get the law firm they inintially selected to represent it as amicus in Booker and Fanfan.

The commission turned to several top Supreme Court advocates in private practice seeking help in drafting its brief, but they turned down the work, not wanting to upset white-collar criminal clients who would probably like to see the guidelines struck down.

The commission then hired James Robinson, partner in the D.C. office of New York's Cadwalader, Wickersham & Taft, to finalize the brief, which is due Sept. 1. Robinson was assistant attorney general in charge of the Criminal Division in 2000 when the high court issued Apprendi v. New Jersey, the precursor to Blakely that first called into serious question the role of judges in sentencing.

When was the last time you heard of the judiciary not being able to get the help of BigLaw when it asked for it? Well, it is true that if they had criminal defendants as clients they could not properly accept this work, but it goes to show how favored the guidelines are!

The Independent USSC - Yeah! It's over in the Judicial Branch

It appears that the US Sentencing Commission has decided to file an amicus brief arguing that Blakely does not afffect the guidelines, but will not discuss the severability issue. That'll be a very helpful brief to the Court!

But I had to laugh when I read the following portion of Tony Mauro's article at Law.com here:

At first, according to one source, the solicitor general's office, part of the Justice Department, balked at the commission's desire to file its own brief. "The Court likes to hear the government speak with one voice," said the source.

But the Justice Department relented in light of the fact that the Sentencing Commission is viewed as a judicial branch, rather than an executive branch, agency and does not need permission to file separately. Commissioners also pointed out that the commission filed its own brief in Mistretta v. United States, the first constitutional challenge to sentencing guidelines, decided in 1989. But the commission's request to the solicitor general's office for part its 30-minute argument time was denied.

That's goes to show how much the Justice Department really considers the USSC a judicial branch agency! We have come a long way since Mistretta, and it has -for the most part- been in the wrong direction.

Very Interesting Blakely Essay

Over at Blakely Blog, Jason Hernandez provides a link to a very interesting draft of Phil Fortino's* "A Post-Blakely Era or Post-Blakely Error?", 38 COLUM. J. L. & SOC. PROBS. __ (forthcoming Oct. 2004), which I must admit is rather interesting. Mr. Fortino, although agreeing that Blakely applies to the federal sentencing guidelines, considers that Courts have jumped the gun in declaring that Blakely makes the guidelines unconstitutional and makes a very good argument for this. I would not be surprised if federal courts started taking this approach to Blakely, and I wonder whether the government will modify the all or nothing at all argument it has pursued to date: i.e., if Blakely applies, then you have to throw out the entire guidelines.

* Production Editor, COLUM. J.L. & SOC. PROBS., 2004-2005. J.D., Columbia University School of Law, expected 2005; M.A., B.A., Yale University, 2001.

Request from NACDL

I'm including here a request from Barry Scheck, on behalf of NACDL:

If and when the Supreme Court holds that Blakely v. Washington
applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation. Some proposals under consideration would make the current sentencing system much worse -- for example, by prescribing a presumptive sentence at the statutory maximum for every offense, with the burden on the defendant to prove mitigating facts to reduce the sentence. To combat a hasty response and to provide a compelling case for sentencing fairness, the NACDL needs to highlight cases where the Sentencing Guidelines have caused disturbing inequity in federal sentencing.

WE NEED YOUR HELP TO IDENTIFY CASES WHERE:

• acquitted and/or uncharged conduct unfairly and significantly increased the sentence;
• extremely dubious evidence was relied upon to significantly increase the sentence;
• relatively low-level participants in a conspiracy were sentenced far in excess of the leaders and organizers of the conspiracy;
• the prosecutor unfairly wielded his or her power by manipulating charges, drug weights or loss amounts for the sole purpose of unfairly increasing the possible sentence; or
• other abuses were caused either by the Guidelines or in the name of the Guidelines.
  

We are particularly interested in cases involving white-collar or non-violent offenders. You can respond to Kyle O'Dowd, NACDL Legislative Director, at Kyle@nacdl.org.

Please give as much information about these cases as possible, including the district, the docket number, case captions, defendants' names and the lawyers involved. Pleadings, transcripts or decisions (or citations thereto) that highlight the inequity of the case are particularly helpful.

Thank you,

Barry Scheck
President

Now, review some of your cases and see if you have any information that might be responsive to NACDL's request.

The Tennessean Exposes Lies of two U.S. Attorneys re: Orchestrated Media Campaign

We previously reported here on what clearly appeared to be a DOJ orchestrated media campaign in which U.S. Attorneys were asked to place in their local newspapers as opinion articles or letters material that came from DOJ. All the articles or letters seemed too much alike. It now appears one newspaper, The Tennessean, has finally caught on and exposed it. And it is too good not to copy completely, so here it goes:

Opinion piece came from local office, attorney contends, by Rob Johnson, Staff Writer

The region's top federal prosecutor contends that while his recently published opinion piece in The Tennessean borrowed some passages from U.S. Department of Justice materials, the work was indeed the product of the Middle Tennessee U.S. Attorney's Office in Nashville.

If so, then some of U.S. Attorney Jim Vines' colleagues across the country must have thought mighty highly of his writing: It features whole passages echoed by other U.S. attorneys in opinion pieces in their hometown papers.

Vines' Aug. 3 guest editorial in The Tennessean defended the federal government's use of mandatory minimum sentences that were established to ensure tough prison terms for heinous crimes. The American Bar Association recently has taken a position that the mandatory minimums are overly harsh and ensnare defendants whose crimes don't warrant the long sentences that are imposed.

Sandy Mattice, the U.S. attorney for Tennessee's Eastern District, submitted an Aug. 11 article to The Chattanooga Times-Free Press that was nearly identical to Vine's Tennessean offering. Another article published in a Guam newspaper by a federal prosecutor there also featured many of the same passages, phrasing and transitions.

Was this an example of ''AstroTurfing,'' in which supposed independent grass-roots political expressions aren't really grass-roots products after all? Was Vines instructed to submit a Department of Justice work as his own?

''Absolutely not,'' Vines said. While he concedes that he borrowed some written materials supplied by the U.S. Department of Justice, he said that he wrote it with the assistance of another person in his Nashville office. ''It wasn't an off-the-shelf kind of thing.''

It is about an issue, he said, that he finds particularly resonant, so he said he elected to pen a piece for submission to The Tennessean.

Mattice said yesterday that he, like Vines, had been working from a similar set of Department of Justice statistics, talking points and documents when they wrote their editorials -- and that it should not be surprising that their works so closely resemble one another's.

''I'm a little surprised by the reaction to this,'' he said, adding that he is a representative of the U.S. Department of Justice, so it's natural that his point of view on mandatory minimums would reflect the department's.

Jack King, a spokesman at the National Association of Criminal Defense Lawyers, says his group strongly opposes the mandatory minimums. His organization has been informally tracking the current editorials from U.S. attorneys that have been popping up in newspapers in the mandatory-minimum debate.

''It's a sign of desperation,'' King said of the practice. ''It is also a sign of naiveté. These days, with Lexis/Nexis and even the Web, you can't get away with it anymore. People are going to figure it out.''

Vines and Mattice shrug it off.

''I really believe it's an important issue,'' said Vines of the views espoused in his guest editorial. ''I've even heard that my piece got circulated around by e-mail to some of the other offices.''

Now, of course, we all believe these two "upright" U.S. Attorneys. Why would they lie? Hmm! Or maybe they are no different than some of the people they accuse of false statements. As I said, DOJ gets worse all the time. Have they no shame?

The Lynne Stewart Trial and a Prominent Visitor

Lynne Stewart, who stands accused in SDNY, has her own trial blog. And guess who visited with Ms. Stewart in the courtroom in late June? Here is an excerpt you can find here:

Last week, we saw Kathleen Cleaver, who has graciously agreed to be on my advisory board, comedian and political activist Randy Credico, Rafael Anglada, longtime activist lawyer for the Puerto Rican struggle for autonomy, Nasser Ahmed, his wife and 5 children, my client who was held for three years in solitary confinement on bogus "secret evidence", Michael Smith, attorney and leader on the Lynne Stewart Defense Committee with his son Eli, a talented guitarist/banjopicker and recent graduate of Oberlin; old friends and comrades, Ginny Gernes and Dolphy Hazel, the good people who travel in from Suffolk Co. by train from the Huntington defenders of the Bill of Rights--- this is the face of my America. (oops,I forgot to list my dear Ralph--stalwart and uplifting as always!) So come on down to Foley Square, 40 Centre Street, Courtroom 110, (9:30 to 4:30 Mon to Thurs) We'll post any changes we know about on the website. We need your support. so give us an early or late lunch hour or a day. The Tigar show is worth the investment of time and you can never tell who you might run into!! Besides, those 12 jurors need to see you.

Probation for AIDS Institute Convict, or was it Parole? Maybe it was Bail Pending Appeal?

Evalúan Dar Probatoria a Convicto Instituto Sida reads the headline in El Vocero, which would translate into "Probation Being Considered for Convicted AIDS Institute." This immediately called my attention, since I was aware that all of those convicted had already been sentence to prison and two of them had appeals pending before the First Circuit. It was once more, a case of the headline not fitting the story. What was actually going on was that the federal Judge had granted a government motion for denial of bail pending appeal. But even the story itself was all messed up when it referred to parole ("libertad bajo palabra"). Of course, what you have are reporters who mainly speak Spanish, translating from English motions or orders they obtain, and then try to put it into their own words in Spanish. Additionally you have a complete disconnect between the reporter and the headline writer. Probation, parole, bail pending appeal ....what's the difference? Don't they all mean the guy is not in jail?

The Do-Nothing U.S. Attorney!

Can someone explain to me why the U.S. Attorney's Office in San Juan has more prosecutors than ever in its history, and yet the number of cases filed has gone down? A reduction in crimes is definitely not the explanation, since one of the top campaign issues here is fighting crime, given the exploding crime statistics. And many of the cases they are taking on are not all that big, compared to cases we have been used to seeing the U.S. Attorney's Office here handle. Perhaps the explanation lies in the U.S. Attorney himself. Nobody seems to have ever spoken to him personally, and he seems to just be in a holding pattern awaiting a judicial appointment somewhere in Texas (that's where he is from), or at least that is what has been rumored. His name is H.S. García. Anyone know what kind of AUSA he was in Texas? I'm told that one is more likely to meet him at the Plaza Las Americas mall (he likes Borders) than at his office during working hours.

Former PD Serving 30 Days for Contempt

This article at the Billings Gazette tells of a former public defender who is now serving a 30 day sentence for contempt! Thanks to Arbitrary and Capricious for the link.

. . . and I thought Mexico Opposed Capital Punishment

Mexico has regularly objected to capital punishment but, cusriously, they have their own Mexican Gas Chamber.

Younger abstention applied to District of Columbia

Although not related to criminal law, I think you may find it interesting -particularly those of us in Puerto Rico with our never ending debate on status politics - that the U.S. Court of Appeals for the D.C. Circuit had, up until now, avoided deciding whether the Younger abstention doctrine applied to the District of Columbia. The Court has now decided it does. See JMM Corp. v. District of Columbia and D.C. Department of Consumer and Regulatory Affairs, No. 03-7057 (D.C. Cir. August 17, 2004). The tough issue was on the federalism concerns of Younger abstention.

Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)

At the Puerto Rico Association of Criminal Defense Lawyers I posted some Comments on U.S. v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004) here, essentially criticizing Chief Judge Holmes from the Northern District of Oklahoma, for his manner of forcing defendants into a partial Blakely-waiver. Defendant appears for sentencing with a pre-Blakely plea agreement. The Chief Judge grants defendant the "opportunity" to withdraw the guilty plea. If defendant does not, he then uses this as a knowing and voluntary waiver of the right to jury determination of any enhancements, and considers himself empowered to find the facts himself. The only benefit to defendant is that this judge has also decided that he will find the facts using the beyond a reasonable doubt standard. But transparent in all of this is an effort not to let defendants get away with any windfall by mere timing of her plea.

Mincey: "We are not saying Blakely does not apply to guidelines, just that we are not going to apply it"

As I read the opinon in U.S. V. Mincey, No. 03-1419 (2d Cir. August 12, 2004) (Second Circuit directs all district courts within the circuit to apply the sentencing guidelines as before Blakely until the Supreme Court indicates otherwise) it follows the Government's position that Blakely does not apply to the federal sentencing guidelines without saying as much. I consider this will present a windfall for many defendants sentenced with judge found facts using a preponderance of the evidence standard. And since 2d Circuit has told its lower courts not to apply Blakely, no sentence enhancing factors will be submitted to the jury. All defendants have to do is properly presere their objections.

DOJ Orchestrated Media Campaign? You really think John Ashcroft would do something like that?

DOJ has outdone itself with the Blakely memos - talking points - on why the Blakely doesn't apply at all to the federal sentencing guidelines (a contradiction to what was argued to the Court in their amicus brief in Blakely itself); that if it does apply, then all the guidelines and not just upward adjustments are unconstitutional (their non-severability analysis is essentially "because I say so" with no analysis of whether the Sentencing Reform Act is affected by their reasoning, or Rule 32, F.R.Crim.P.); but the guidelines would only be unconstitutional in cases in which upward adjustments are sought, and not in any others (thus leaving 2 different federal sentencing schemes).

While a few Courts have bought into these arguments, with little or no discussion of severability as applies to the statute rather than the guidelines, as if they were putting out a fire and had no time for such niceties, or were trying to be "fair"to the Government by not creating any windfalls for defendants (as if the government has not unfairly benefited from the draconian sentencing guidelines and its control over sentencing results for all of these years).

I seriously doubt the Supreme Court will buy into these arguments in Boooker and Fanfan.

Recently, DOJ has apparently started a public relations campaign in which it appears Main Justice has asked the various US Attorneys to get a particular article into their local newspapers. Compare, for example, this letter from the Guam U.S. Attorney, with this opinion article from the Eastern District of Tennessee U.S. Attorney. Don't ever think that these folks are playing politics, please.

Republicans, Democrats and Vegetables

Legalese helps for some of those who are tittering between being a liberal Republican or a conservative Democrat, as so well explained in this post at A Criminal Waste of Space.

Thanks to ACS Blog for the link.

Cow Tracking & Homeland Security

A friend just e-mailed me this and I thought Tom Ridge, who reads this blog regularly should look into it:

Is it just me or does anyone else find it absolutely amazing that the US government can track a cow born in Canada almost three years ago, right to the stall where she sleeps in the state of Washington, and determine exactly what that cow ate. They can also track her calves right to their stalls, and tell you what kind of feed they ate.

But they are unable to locate 11 million illegal aliens wandering around in their country, including people that are trying to blow up important structures in the US.

My solution is to give every illegal alien a cow as soon as they enter the country.

It's a good thing for the nation that I have friends with brilliant ideas.

Hey, it's not about sex . . .

It's not about sex. It's all about the touchy-feely experience of snuggling up to perfect strangers wearing pajamas.

The grab fests are called cuddle parties, and since they started in New York in February, hundreds of people have paid $30 each to touch and embrace others in intimate gatherings.

But the rules are clear. The PJs stay on the whole time and participants are reminded of Rule No. 7: "No dry humping!"

In case things get too steamy, a small chime is kept on hand. Before the cuddling begins, the chime is struck several times so everyone gets the message.

"We've never used it," said Mihalko, who said sexual arousal does occur, and that participants shouldn't be turned off or scared by erections. "They happen."

Before any touching begins, participants gather in a circle to hear the rules and voice any questions or concerns. The first rule is that the event is not clothing optional, pajamas must stay on and sex is not permitted.

Participants team up into pairs and to ensure the boundaries of what is permissible are clear, they practice saying "no" to the question, "May I kiss you?"

An introduction to cuddling ensues, first by hugging three people. People then get in a circle on their hands and knees, rub shoulders and moo like cows. After a bit of swaying, everyone falls to their side, which puts them into an easy cuddling position.

Cuddle parties are intended for people who are emotionally sound. People in therapy or who are seeing a mental health professional are asked to consult their doctor before signing up for a party and to tell organizers of their situation.

Excerpts from "Cuddle parties let strangers get touchy-feely" at the Houston Chronicle.

Border Patrol Agents to Get Power to Deport Illegal Aliens

Check out this NYT article "U.S. to Give Border Patrol Agents the Power to Deport Illegal Aliens". I wonder whether it will apply to Border Patrol agents working in Puerto Rico.

Blakely briefing Order from First Circuit

In U.S. v. Cianci, the First Circuit issued the following Order on August 10 2004:

Defendant-appellants jointly seek permission to make supplemental filings addressing the Supreme Court's recent decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004). They may make such filings with the court in the form of supplemental briefs not to exceed twenty pages, no later than thirty days from the date of this order, with service to opposing counsel. These briefs shall also address the issue of whether defendant-appellants have waived any Blakely issue by not raising it in their original appeals.

The United States shall file a response brief with the court not to exceed twenty pages, no later than fifteen days from the date the last defendant-appellants' supplemental briefs are filed, with service to opposing counsel.

Suspicious Activity

The PD refuses to represent neighbor - and so would I!

You have to read this story at Arbitrary and Capricious about a public defender whose neighbor got arrested. This reminded me of the day I was leaving for the courthouse and was robbed right outside the entrance gate to my home. Gave every defendant that day a dirty look! Also check the Whizzinator mentioned in the post. Thanks to Ken Lammers at CrimLaw for bringing this to our attention.

From around the blogosphere

The American Constitution Society for Law and Policy has set up a blog which has a lot of promise. In their own words:

ACSBlog is a project of the American Constitution Society, and is the newest front in our effort to restore the fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice to their rightful place in American law. This site is moderated by a team of law students, and will feature reaking legal news, student observations, and expert commentary written by some of the best legal minds in the nation.

ACSBlog has a twofold purpose. The first is to supplement law reviews and other scholarly literature by providing short, easily digestible legal analyses of interest to a broad legal audience. By drawing upon distinguished professors and practitioners as "guest bloggers" we hope to allow the ideas of the best progressive and moderate legal minds in the country to be disseminated throughout the legal profession. Furthermore, as the ACSBlog allows readers to comment on any articles posted, a guest blogger’s idea can be expanded upon and perhaps form the basis for further discussion and even action.

An equally important purpose, however, is to provide a forum in which non-lawyers may read easily digestible legal commentary and thus become more familiar with the way law shapes our society. By providing commentary in a short, pithy format, ACSBlog hopes to be a resource not simply for lawyers, but for educated laypeople struggling to understand the law.

We welcome ACSBlog to the blogosphere!

Don't say you weren't warned -or is this old news?

It has been reported that El Nino 'could strike this year'. This must be that he could strike again this year, since most of the federal judiciary -including his colleagues at the Court- believe he already struck. Didn't Justice O'Connor tell the 9th Circuit's Judicial Conference that it had been "a big one" ... "a 10" on the Richter Scale?

U.S. v. Shepard: Is the Court revisiting Almendarez-Torres?

I had earlier commented here about the Court taking a case -one from Washington State- to overrule Almendarez-Torres. It appears that the Court already has such a case, but it is from the First Circuit, as reflected in this post at Sentencing Law and Policy, which states, in part, as follows:

UPDATE: I have been meaning to highlight this important and insightful point that attorney Bill Fick has made in the comments that merits mention here:

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: US v. Shepard, 03-9168.

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.

The Supreme Court Docket for the case is here and the Questions Presented for Review are as follows:

03-9168 SHEPARD V. UNITED STATES
Decision Below: 348 F.3d 308 (1st Cir. 2003)

QUESTIONS PRESENTED FOR REVIEW

The Armed Career Criminal Act [18 U.S.C. §924(e)] imposes a mandatory minimum sentence of 15 years imprisonment for a person convicted of being a felon in possession of a firearm [18 U.S.C. § 922(g)] where that person has previously been convicted of three violent felonies or serious drug offenses or both. United States v. Taylor, 495 U.S. 575 (1990) held that Congress intended a sentencing court to employ a categorical approach to determine whether a defendant's prior convictions qualify as predicates for this sentence enhancement, looking only to the fact of conviction and the elements of the statute of conviction, or to the charging document and the jury instructions to determine whether all of the elements of generic burglary (an enumerated violent felony) were necessarily adjudicated in the state court. The questions presented are:

1. Whether, where the defendant has pleaded guilty to a nongeneric charge of burglary brought under a nongeneric statute, there is no contemporaneous record of the guilty plea proceedings and the judgment of conviction reflects a general finding of guilty, the sentencing court is still bound by Taylor's categorical method of application or may instead be required to conduct an inquiry - including an evidentiary hearing - into the facts underlying the conviction, to determine whether, in the guilty plea proceeding, both the defendant and the government believed that generic burglary was at issue?

2. If so, whether the sentencing court may be required to consider a version of these underlying facts found in any document in the court file such as an investigative police report or a complaint application and, if the facts alleged in the document are not challenged by the defendant, regard them as sufficiently reliable evidence that the defendant was convicted of a crime including all of the elements of generic burglary to support an Armed Career Criminal Act enhancement?

Certiorari granted 6/21/04. (Blakely decided on June 24, 2004)

The brief for petitioner Shepard is due on August 27, 2004.

Some defendants will have cake, others will not

The judges in the District of Puerto Rico have instructed the US Attorneys Office not to include more than "x" defendants in a single indictment. Thus, you often have the same conspiracy charged in two indictments, each assigned to a different judge. I just learned today that in a case involving a large credit card fraud conspiracy, in which defendants were divided into two indictments, each before a different judge, and sentencing hearings were being held for the various defendants. Those before one Judge had Blakely applied to their sentences (i.e., no upward adjustments other than based on facts admitted by defendant), whereas the Judge handling the related case informed counsel that he would not apply Blakely unless a higher Court directed him to do so. I hope the ones before the first Judge were not the more culpable defendants.

Defendants can have cake, but they can't eat it!

This is a summary of an exchange with a federal Judge. I honestly think that he felt that defendant was going to "have his cake and eat it too" because of Blakely, and was somewhat upset.

Judge: Yes, Mr. Lincoln, I agree with you that Blakely applies to the federal sentencing guidelines, so I am going to comply with Blakely by submitting these sentencing enhancements to the jury.

Lincoln: Your Honor, with all due respect, the Court in Blakely did not state that you are now a legislator and can change the language of the Sentencing Guidelines or the Sentencing Reform Act, by substituting "the jury shall" for wherever it states "the Court shall." You can determine that those portions of the guidelines and the sentencing reform act are unconstitutional and then you have to deal with the matter of severability. And, even if you decide to go ahead with your proposed submission to the jury of these matters, I have requested that you at the very least allow us to do so in a bifurcated fashion. This would avoid unfair prejudice to defendant in the guilt phase, would allow us to thereafter present any eveidence we have to contest those enhancements, not to mention forcing us into a weird closing argument. Moreover, it will allow the jury to focus solely on the enhancements during a second deliberation. If you intend to do something which we understand the law does not authorize you to do, and which government counsel has offered no support for this procedure other than following direction from main "Justice" - at least do so in a fair manner.

Judge: You want to have your cake and eat it too.

Lincoln: Your Honor, my name is Lincoln, not Scalia, and I want to state for the record that I had nothing to do with the writing of the Blakely opinion. Beyond that, I just want compliance with the laws and the Constitution.

Judge: Government counsel will reply to your motion within 15 days. And, trial is reset for October 15th.

Petitions granted today in Booker and Fanfan, but what about the others?

Today the Court did almost exactly as the Solicitor General requested: it granted the petition for certiorari in U.S. v. Booker (7th Cir.) and the petition for certiorari before judgment in U.S. v. Fanfan (1st Cir.). The Court also expedited briefing and scheduled 2 hours of consolidated oral argument for October 4th in these two cases. The only difference was that the Acting Solicitor General had suggested as his first choice for oral argument a September date, before the start of the next term. Today's Order List can be found here.

The Court did not act upon the pending petitions in Pineiro (5th Cir.), Bijou (4th Cir.), the certification from the 2d Cir. in Penaranda, or the request for rehearing submitted by the State of Washington in Blakely itself.

Respondents and Amici File Reponses to Petitions in Fanfan & Booker before the Supreme Court

As reported at SCOTUSBlog here, various filings were made by respondents in Fanfan and Booker regarding the petition for cert. before judgment to the First Circuit in Fanfan, and the petition for cert. to the Seventh Circuit in Booker.

Also, the NACDL and NAFD filed an amici brief before the Court, most interesting for requesting that the Court reframe the questions presented in the Solicitor General's petitions in Fanfan and Booker, as well as recommending that the Court not grant cert. before judgment in Fanfan, but that it, instead, grant cert. in Pineiro (5th Cir.) (holding Blakely inapplicable to federal sentencing guidelines) or Bijou (4th Cir.) (involving an enhancement based essentially on "acquitted conduct" decided before Blakely).

In Fanfan respondent opposes the granting of cert. before judgment, as well as arguing that the case is not a proper vehicle for review of the Blakely issues, because it involves other issues that the Court would have to deal with before reaching the Blakely issues. More at the Puerto Rico Association of Criminal Defense Lawyers blog here. You can get the links to the various briefs at the PRACDL blog, or for more reading and the links, see Sentencing Law and Policy here. In reviewing the briefs, I could not help but grasp how important some web blogs and sites have become to this rapidly moving Blakely issue, that citations were often to links at USSGuide.com and Sentencing Law and Policy.