Likely Committee Vote on H.R. 4547 Today

Families Against Mandatory Minimums (FAMM) reports that it expects the full House Judiciary Committee to debate and vote on H.R. 4547 today, Thursday, September 30. Should H.R. 4547 become law, it not only sends a strong signal from Congress of which direction it will go in the post-Blakely and post-Booker & Fanfan sentencing world: the very wrong direction everyone other than DOJ strongly counsels. This bill continues the trajectory of adding terrible mandatory minimum sentences, and decreasing the discretion of judges, as well as largely gutting the safety valve, among other harmful effects.

I suppose that, like the President, Representatives Sensenbrenner and Feeney maintain they are just moving ahead steadily, never minding that it happens to be in the wrong direction.

FAMM has the following links for Letters of Opposition and Sign-On Letters (note: letters are in Adobe PDF format.)

- Judicial Conference of the United States
- United States Sentencing Commission
- American Bar Association
- Leadership Conference on Civil Rights (LCCR), NAACP, FAMM, ACLU, National Council of La Raza, NACDL sign-on letter

As they line up at the Court pre Booker & Fanfan

From the Court, as the Booker & Fanfan argument day approaches, the following collegial exchange as the Justices line up on the various issues raised:

Scalia: “Knock, knock”

Breyer: “Who’s there?”

Scalia: “It’s me, Nino.”

Breyer: “Oh, God!”

Scalia: “Close, but not quite. It’s just me, Nino.”

Breyer: “Coming!”

Scalia: “Hi! Steve. Listen, I just wanted to tell you I think you were right when you told me I should recuse in Cheney’s case.”

Breyer: “Well, that’s nice of you to say, Nino.”

Scalia: “Yeah, and I wanted to tell you that you should strongly consider avoiding the Court further embarrassment by recusing in Booker and Fanfan. My law clerks tell me you once said you would recuse yourself if the guidelines themselves were attacked, and I think that was a wise decision. It’s all over the internet now, you know, from Tony Mauro at Law.com to Tom Lincoln at Macondo Law to Ken Lammers at CrimLaw and those ethics professors which Tony Mauro cites. Of course, if you should decide that you'll come to Apprendi-land with us, then nobody would question the tough choice you made, . . . and the papers would be full of stories about how you set aside your ego and followed your conscience.”

Breyer: "Nice try, Nino! See ya."

Stop Me Before I Do It Again!

This guy wanted to get caught! Otherwise why would a guy into downloading child porn to his computer ask his employer's technicians to tinker around with his computer?!

Will Booker & Fanfan Oral Argument be Broadcast?

Does anyone have any idea whether the audio of the Booker & Fanfan oral arguments will be broadcast? I'd sure like to hear that argument.

Revised - A bit on Booker & Fanfan, and looking back at Mistretta and Apprendi

Yesterday the Solicitor General filed the Reply Brief in Booker & Fanfan, and now the case is ready for oral argument on October 4th, 2004.

The Solicitor General has insisted that Blakely does not apply to the federal sentencing guidelines because they are not statutes, and are therefore different than the legislatively enacted Washington State sentencing guidelines. All briefs for respondents Booker and Fanfan, as well as the amici briefs in support of respondents have done an effective job addressing this issue.

But, quite frankly, trying to decide which way the Supreme Court will go is a bit like reading tea leaves. The Solicitor General's theme seems to be that "statutory maximum" whether for Apprendi purposes or for any other purpose, means the maximum penalty enacted by Congress for the offense, rather than any top of a guidelines' base offense level.

Every federal criminal defense lawyer knows that the Supreme Court upheld the constitutionality of the guidelines in Mistretta v. United States, 488 U.S. 361 (1989). Mistretta, however, dealt with issues of separation of powers, delegation of power, and not the Sixth Amendment right to jury trial. A lot has rained since Mistretta was initially decided, including the composition of the Court, and we have a lot more knowledge as to how the Sentencing Commission and Congress have operated during this period as regards the guidelines. I thought it would be prudent to go back to Mistretta.

In Mistretta you had Justice Blackmun, who delivered the opinion of the Court, in which Chief Justice Rehnquist, and Justices White, Marshall, Stevens, O'Connor, and Kennedy, joined, and Justice Brennan who also joined in all but n. 11. Justice Scalia filed a dissenting opinion, in which he famously referred to the creation of the Sentencing Commission as the creation of a Fourth Branch of Government, "a sort of junior-varsity Congress." Id. at 427.

After reviewing Mistretta, only Justice Scalia's dissent made any sense to me. And his dissent in Mistretta makes it very clear that he will view the federal guidelines as legislative in nature. It is a gem, and I strongly recommend you read it again.

While Mistretta was an 8-1 opinion, 4 of the Justices (Blackmun, Brennan, White and Marshall) out of those 8 are no longer in the Court. In their places we have Justices Thomas, Souter, Ginsburg and Breyer. Of these four, all but Justice Breyer joined in Apprendi, together with Justices Scalia (the sole Mistretta dissenter), and Stevens (who authored the Court's opinion in Apprendi).

In Apprendi, Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., filed a concurring opinion, in which Scalia, J., joined as to Parts I and II. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., joined. In Justice Scalia's concurring opinion in Apprendi you can already see the strong language towards Justice Breyer's views on the matter, as we saw in Blakely.

In Blakely, you have the exact same lineup as in Apprendi. But it is curious that while both Justices O'Connor and Breyer predicted that the Court was in effect dooming the federal sentencing guidelines in Blakely, neither Chief Justice Rehnquist nor Justice Kennedy joined that portion of Justice O'Connor's dissent. Could it be that Justice O'Connor and Breyer finally purchase tickets to Apprendi-land in an effort to save the guidelines by making their voices heard on the severability issue? I seriously doubt it, but wopuld appreciate your expressing your views on this in the comments.

In his opening merits brief, the Solicitor General --very much aware that Justice Scalia's opinion had used 21 U.S.C. §§841(b)(1)(A), (D) as an example in Blakely, slip op. at 15, a non-federal case in which he was also stating that the federal guidelines were not before the Court-- argued that some federal statutes, such as § 841 carried different statutory maximums in the statute itself. This, in my view, is an obvious effort to peel away some of the Justices in the Blakely majority, who joined without any objection or clarification offered to the example provided by Justice Scalia.

Were there Justices in the Blakely majority who did not think the federal guidelines are legislative in nature and that Blakely would not be extended to the federal guidelines? If so, given the dissenters' predictions, and the obvious confusion Blakely's aftermath would cause in the federal criminal justice system, why did they not at least make a clearer distinction? It hardly would suffice to say that they didn't realize it would have such impact, given the dissenters' predictions.

The Solicitor General has a hard row come October 4th, as I think his arguments on the guidelines not being legislative in nature is a rather poor one, at least given what we now know of the manner in which the Sentencing Commission and Congress have operated in regards to the guidelines. As to the Sentencing Commission's placement in the judicial branch, I sauggest you read Justice Scalia's dissent in Mistretta.

The harder question for the Court will be the severability issue, and there may well be a split at that juncture, although I would assume that the Justices would be keenly aware that how they go on this issue would influence Congress' reaction to Booker & Fanfan.

Congress, after all, does not appear to have lost its appetite for mandatory minimums, as seen by the threats made by Rep. Feeney (R-Fla) in his appearance at the Heritage Foundation sponsored discussion on federal sentencing (see posts here and here), or as appears by the bill that Rep. Sensenbrenner (R-Wis) is currently pushing in the House (see post here). It is as if these fellows were not even capable of realizing the impact of the Feeney Amendment and enactment of mandatory minimums may have had on the judiciary's views of the so-called guidelines.

Note: I revised this post to correct a rather serious mistake on my part - having placed Justice Kennedy in the Blakely majority. Sorry for the misinformation. I will expand this post to analyze other cases (and mainly the votes of the various Justices in those cases) spanning the Mistretta to Blakely spectrum.

Trivia: Did you know that Mistretta was argued on October 5th, 1988, almost 16 years earlier to the date than the Booker & Fanfan cases will be argued on October 4th? And did you know that Blakely was decided almost 4 years to the date when Apprendi was decided?

Solicitor General submitted the United States' Reply Brief in Booker & Fanfan

Today the Solicitor General submitted the United States' reply brief in Booker & Fanfan. One of the questions that has been looming is whether the Solicitor General will reply merely to the arguments raised in the respondents' briefs or whether it will address the arguments in the briefs submitted in support of respondents by amici. Let me read it first!

• United States' Reply Merits Brief in Booker & Fanfan (via Sentencing Law & Policy)

More comments later.

Court grants divided argument to Booker and Fanfan

SCOTUSBlog -the Goldstein & Howe Supreme Court blog- reports here that the Court has granted defendants (respondents) Booker and Fanfan divided argument, directing both to argue both questions on which the Court granted certiorari. Goldstein & Howe are the attorneys representing NACDL as amicus curiae in Booker and Fanfan. The Solicitor General's reply brief, if any, is due today.

Try Firefox Browser

I don't like to be pushing products, but I'm going to make this exception. Try out the Firefox 1.0PR browser. You'll thank yourself for your smart choice.

It's a lean & mean browser! It's even got a feature called "Live Bookmarks" for grabbing the RSS feeds from various pages, including Macondo Law, and many others. While I use a stand alone feed reader - FeedDemon - I still found this feature really nice, particularly if you do not want to or cannot shell out the money for FeedDemon.

Oh! . . . and did I tell you I have not experienced a single freeze the whole time I have been using it?! I think Firefox has caught the guys at Microsoft's Internet Explorer asleep at the switch, and they have had a rude awakening. Microsoft is going to have to come up with one heck of a browser to ever get me back to Internet Explorer. I used Netscape way back when, until IE became a better browser and I switched, and somehow Netscape did not quite make it again. But Firefox is --by far-- the best stand-alone browser I have tried. Go for it!

And the other stand-alone products by the Mozilla team, such as Mozilla Thunderbird (e-mail client) and Mozilla Sunbird (Calendar) which I'm also trying out are excellent too. Sunbird is still in development and it already seems to be better than MS Outlook's Calendar. I'm still somewhat hooked on Outlook's e-mail client, but that is probably more a matter of habit than anything else.

Thanks for your patience!

For those of you who may be using Macondo Law's feed, you may have been receiving a lot of old posts. This was due to my having to repost all the old posts I had received by e-mail so as to keep the blog complete. I had thought I had lost most of these, but not so. Just time consuming at the cut and paste and republishing game, including getting the correct date and hour of each post.

Thanks for your patience!

How Far can the Power of Eminent Domain Reach

The words of the U.S. Constitution are clear:

“…nor shall private property be taken for public use without just compensation.” U.S. Constitution, Amendment V

Seattle Post-Intelligencer reports here on some of the 40 cases in which the Court has granted certiorari this term. One of them caught my eye, and it is not Booker or Fanfan. It involves "whether a Connecticut city can take away a person's home to clear the way for upscale development." In seriousness, it is not only for upscale development, but also whether the eminent domain power can be exercised to take someone's home or other property for "economic development" that will place the property in the hands of private developers, thereby creating jobs and resulting in more taxes being paid to the government's coffers. Is this exercise of the power of eminent domain for public use?

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

You can find a PDF version of the Connecticut Supreme Court's opinion in Kelo here, and the opinion concurring in part and dissenting in part here.

As stated by the Property Rights Foundation of America, Inc. here,

The dispute, known as Susette Kelo v. City of New London, centers around a single principle—whether the government can condemn property to transfer it to another private party for the claimed “public purpose” of economic development. During recent years, government agencies far and wide have been condemning urban properties using the excuse that the properties are “blighted,” whether or not this is reasonably the case, but with the Fort Trumbull neighborhood, the city is exercising its eminent domain power solely on the basis of economic development. Therefore, the question that the homeowners are presenting to the U. S. Supreme Court is narrowly defined to that of whether, or to what degree, economic development is a constitutional reason for eminent domain. In August, Dana Berliner, Senior Counsel at the Institute for Justice, called the Connecticut ruling “eminent domain without limits.” She pointed out, “IJ and the homeowners’ argument was simple—the Constitution forbids condemnations for the purpose of private development.”

H. Christopher Bartolomucci, Partner, Hogan and Hartson, L.L. P., Washington, D.C., prepared PRFA’s amicus curiae brief, which points out that no U. S. Supreme Court rulings support the contention that eminent domain is justified to transfer private property to another private party solely for the purpose of economic development. By contrast, the PRFA brief points out, that the standard employed by the Connecticut Supreme Court “gives government carte blanche to take private property from one person and transfer it to another person limited only by the government’s willingness or ability to proclaim that is intent is to promote economic development.” With the sad thought in mind that residents stand to lose their cherished family homes for the sake of job creation and tax revenues, PRFA’s brief contrasted the Connecticut policy with the historic rejection of this purpose of eminent domain in the U.S. Supreme Court starting with Calder v. Bull in 1798, where it was stated that it is “against all reason and justice, for a people to entrust a Legislature with “the power to enact “a law that takes property from A. and gives it to B,” and therefore the legislature cannot be presumed to have such a power.

The Supreme Court in Kelo will likely reassess the viability of Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), an case decided by an 8-0 vote, with Justice Marshall not participating. The Hawaii Housing Authority opinion was written by Justice O'Connor.

Representative Feeney's Legislative "Legacy"

Here is a link to various legislative actions in which Rep. Feeney -a true champion of mediocrity- has either sponsored or co-sponsored. I'm really impressed by this fellow! I sometimes watch the Puerto Rico legislature with embarrassment, but Rep. Feeney would almost make me proud of some of our worst, and believe me these are real ignoramus(es)!

Court Rules a Horse Is Not a Vehicle

Ken Lammers of CrimLaw is now safe, at least in Pennsylvania and Utah.

The Pennsylvania state Supreme Court ruled that Pennsylvania's drunken driving law can't be enforced against people on horseback, a decision that inspired the dissenting justice to wax poetic.

Justice Michael Eakin, who is fond of writing rhyming opinions, summed up the lone dissent with two stanzas mimicking the theme song of "Mister Ed" — a 1960s TV sitcom about a talking horse:

"A horse is a horse, of course, of course,
but the Vehicle Code does not divorce
its application from, perforce,
a steed as my colleagues said.

"'It's not vague,' I'll say until I'm hoarse,
and whether a car, a truck or horse
this law applies with equal force,
and I'd reverse instead."

And our thanks to Phil for pointing us to this AP story here.

Another Ass in Congress? - or - Here Come More Mandatory Minimums

In an earlier post titled Drug Points to Start Carding Customers? we stated

More Mandatory Minimums? Even before Blakely was decided, Rep. James Sensenbrenner (R-Wis.) introduced a bill that would increase from one year to 10 the mandatory minimum sentence for anyone 21 or older who sells any amount of a controlled substance (even a single joint) to someone under 18. A second offense of this sort would trigger a mandatory life sentence.

For some time all was quiet on the frontlines regarding this bill. But it now appears, as reported here that "Despite growing opposition to long mandatory minimum prison terms, the U.S. House Subcommittee on Crime, Terrorism, and Homeland Security will consider imposing new, even more draconian mandatory minimums on nonviolent drug offenders on Thursday, Sept. 23, in 2141 Rayburn HOB at 9:00 a.m." The bill, H.R. 4547, is the same one sponsored by U.S. Rep. James Sensenbrenner (R-WI) we mentioned earlier, "and would provide radical new mandatory minimums for a variety of nonviolent drug offenses. 'This bill would effectively impose a five year mandatory minimum for anyone distributing any amount of a controlled substance in an urban area -- even medical marijuana dispensaries supported by local authorities,' said Steve Fox, director of government relations for the Marijuana Policy Project in Washington, D.C. 'A 21-year-old who sells a few joints to his 17-year-old brother would face a mandatory ten years in federal prison for the first offense. Such cruel penalties will help nobody.'" Id.

So Rep. James Sensenbrenner (R-WI) joins Rep. Feeney as just another ass and a yahoo in Congress we could do without.

UPDATE: See NACDL's website for information on H.R. 4547 ("Alert! Hep Stop Feeney II"); and FAMM Memorandum on "Changes proposed by H.R. 4547 Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004."

Breaking News: Representative Feeney is an Ass!

I just finished viewing The Heritage Foundation hosted discussion about the status of federal criminal sentencing policy. It lasts 1 hr. 25 minuntes.

From Representative Feeney, I expected and got the worst Blakely outlook. In essence, he agrees with the DOJ position in Booker & Fanfan, but warns that if the Court does not, then Congress will basically accomodate the guidelines to remove them from the reach of the Fifth and Sixth Amendments. He does not say it in so many words, but that is exactly what he is saying. A wise man, this fellow Feeney! Apparently it is beneath such genius as his to simply have a sentencing system that actually accomodates the Fifth and Sixth Amendment guarantees.

Archived Link to Heritage Foundation hosted "Federal Criminal Sentencing: Where Are We and Where Do We Go Next?"

You can still view the archived audio/video of The Heritage Foundation hosted discussion about the status of federal criminal sentencing policy, which was held on Tuesday, September 21, 2004 at 2 p.m., here.

As we indicated here the speakers are Congressman Tom Feeney (R-FL), James Comey, Deputy Attorney General, U.S. Department of Justice, The Honorable John Steer, Commissioner, U.S. Sentencing Commission, and Margaret Love, Esq., Reporter for the American Bar Association's Justice Kennedy Commission.

The linked page for the program states as follow:

Federal criminal sentencing policy now, more than ever, is the subject of substantial public debate. Incarceration rates are up and violent crime rates are down – suggesting that our incarceration policies are a success. Yet, a recent report by the American Bar Association is critical of government policy as overly onerous. Meanwhile, Congress and the Courts are in a tug-of-war over which branch controls sentencing policy. Join us for an informative debate on the status of federal criminal sentencing policy.

I have yet to view the program, so I have no comments of my own to add.

Booker & Fanfan Briefs Filed Today by Repondents and their Amici

Here are the links to the merits briefs filed today by respondents Booker and Fanfan and their amici. The links to the petitioner's (United States) and amici (US Sentencing Commission, and Senators Hatch, Kennedy & Feinstein) merits briefs can be found in this earlier post.

• Brief for Petitioner Booker *
  
• Brief for Petitioner Fanfan *
  
• Brief for Amicus NACDL in support of petitioners Booker & Fanfan *
  
• Brief for Amicus FAMM in support of petitioners Booker & Fanfan *
• Brief for Amicus NAFD in support of petitioners Booker & Fanfan *
• Brief for Amicus NY Council of Defense Lawyers in support of petitioners Booker & Fanfan *
• Brief for Amicus Washington Legal Foundation in support of petitioners Booker & Fanfan *
  

* All briefs are via Sentencing Law & Policy.

A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, September 27, 2004. Oral argument is set for Monday, October 4, 2004.

Interesting analysis of Blakely by Professor Berman

You may want to read this thoughtful analysis of Blakely by Professor Berman at Sentencing Law & Policy. One would think that we are through digesting Blakely, and that it is just a matter for the Court to decide now, but the good Professor shows us that Blakely still has a lot of interesting analysis to be done. The briefs to be filed today by respondents in Booker and Fanfan as well as their amici will sure add fuel to the fire.

Rep. Tom Feeney to Speak out on Sentencing Policy - and this is not April Fool's Day

Watching Justice reports that The Heritage Foundation will host a discussion about the status of federal criminal sentencing policy on Tuesday, September 21, 2004 at 2 p.m. Topics will include the American Bar Association's Kennedy Commission recommendations and the debate over which branch controls federal sentencing policy.

Paul Rosenzweig, Senior Legal Fellow, Center for Legal and Judicial Studies, The Heritage Foundation will host the debate. Speakers will include Congressman Tom Feeney (R-FL), James Comey, Deputy Attorney General, U.S. Department of Justice, The Honorable John Steer, Commissioner, U.S. Sentencing Commission, and Margaret Love, Esq., Reporter for the American Bar Association's Justice Kennedy Commission.

I wonder whether anyone will be asking Rep. Feeney whether he has ever considered -even post-Blakely- whether his role in drafting the Feeney Amendment may play a decisive role in the guidelines demise? He should also be asked what other atrocity he has in mind if that turns out to be the case.

Inmates in Some States Getting Access to Computerized Legal Research

TalkLeft has a report on Inmates to Receive Access to Computerized Legal Research through a partnership between Lexis-Nexis with a company called Touch Sonic Technologies to create legal research kiosks for inmates, and -obviously- sell this resource to corrections administration. The post, however, seems to refer to deals between various States and the partnership, but does not mention BOP. Does anyone know whether BOP will be providing computerized legal research facilities for inmates?

In Defense of Civil Liberties

I have always believed that organizations such as the American Civil Liberties Union play an extremely important role in America. Yet, I'm from time to time upset at some of the causes they take on, much as some people get upset at certain defendants even receiving legal representation. I make the comparison because it helps me to keep my feet on the ground.

Today's New York Times editorial - In Defense of Civil Liberties - reminded me once more of the important role of ACLU and similar organizations.

CBS Memos and Mr. Bush's Texas Air National Guard Record

For all of you who still may be wondering whether the CBS Texas Air National Guard memos are forgeries, prepared using Microsoft Word, or are genuine, see Opinion: Bush's Exam Doc -- Real or Fake? at PC Magazine. It will not offer a definitive answer to the question, but will enlighten you somewhat.

Aside from the typeface, superscript and other details pointed out by critics of the documents as forgeries, one of the latest is the reference to Col. Walter "Buck" Staudt — who supposedly was exerting pressure on Lt. Col. Jerry Killian to sugar coat Mr. Bush's activities as a member of the Guard in the early 1970s — had been honorably discharged before the date of the memo referring to Staudt purportedly written by Lt. Col. Jerry Killian. According to most, the fact that Staudt had retired means that he could not have exerted any sort of pressure or influence. Oh, really? How naive have we become that we cannot imagine a retired Col. Staudt having some clout and being able to exert pressure or influence on someone else? It does not have to be the sort of pressure or influence where he is threatening with doing something, but can be perhpas merely the asking of a favor for a friend, Poppy, for his boy.

While we may never find out the truth of all of this, I find it surprising that so many have jumped to the forgery conclusion so easily. I know Dan Rather makes it easier for many to do so, but Bush makes it harder for me to do so, at least so easily. I would like a really good question and answer session with no limits in which Mr. Bush explains to the nation his service in the Texas Air National Guard and answers all questions forthrightly, including the ones related to any drug use by him. I also would like him under oath, but know that would be asking too much. Until then, I will view him with a suspect eye.

The Delays working both sides of the aisle?

I love this! One brother proposes stiffer penalties in Congress while the other gets juicy contract from a county to lobby the Federal Bureau of Prisons to continue placing inmates in the county-operated prison facilities, which have become the biggest employer in the county. Why does a county with a 3-year contract with BOP need to lobby BOP to place inmates there, and what exactly is done as part of such lobbying that costs $120,000 annually plus expenses which bring the total tab to $165,00? Meet Tom and Randy Delay. See Reeves County renews lobbyist's contract, by Ruth Campbell.

The Best Defense

You are all cordially invited to also visit The Best Defense and we would recommend that you start with the first post What this blog is about to get an idea of what I want to do there. I will also welcome any of your stories.

"But I still have 2 more offers" and other trends

This has not happened of late, but there was a period when I had several clients with whom I was discussing proposed pleas from government counsel tell me about "the 3 Offer Rule" - that is, that the Government would make them three offers prior to holding firm, so they did not have to accept the first two.

I tried explaining that I had cases in which as many as 9 different offers (albeit some being very similar except for details) were made, and I had cases were the only offer was jury trial or straight plea. I would also tell them that I had also had some cases in which the first offer was, say, for 46 months, and then the offers would only increase thereafter.

Obviously enough defense attorneys clarified to their clients "the 3 Offer Rule" that I no longer get clients talking to me about it. Or, perhaps the person who was telling them this is no longer around.

You'd think that was the end, but there is always a new fad. A good friend from the U.S. Probation Office here in San Juan recently retired from Government service, and now offers his services as a sentencing consultant. He's probably praying for the guidelines to be upheld, as he was one of the Sentencing Guidelines Specialists at the Probation Office. Now, after a few defendants with really complex guidelines issues in their cases have retained his services, every defendant approaches me and says I want you to ask the Court for a guidelines specialist. I think Sammy has a chaser! Hey, Sammy, just kidding!

U.S. Government Aids Terrorists in Afghanistan

TalkLeft has a post here on "D.E.A. Roadshow Hits Times Square" featuring "Target America: Traffickers, Terrorists & You". So everyone who uses illegal drugs is helping drug traffickers and by the same token, feeding terrorism. I'm certain there is probably a bit of truth in making all of us, even those who defend people charged with drug trafficking, somehow pro-terrorists, . . . at least in the eyes of DEA, FBI, Ashcroft's DOJ, and probably even in Don's, Dick's and George's view.

The problem with all of this is that DEA and the rest of the Government have done very little if anything to curb the huge heroin traffic from Afghanistan, instead moving resources into Iraq. Now, if DEA and the Bush administration can explain why they have allowed this continue in Afghanistan, I'd like to hear their explanations. The last time I heard the DEA top guy talk about this on television he reacted as if this were a very nuanced matter that had to take a backburner to the war on terror! Give me a break!

Amici Brief in US v. Councilman

Orrin Kerr at The Volohk Conspiracy reports on the filing of an amici brief in support of the United States' petition for rehearing and for rehearing en banc in the First Circuit's 2-1 opinion in United States v. Councilman, slip op. No. 03-1383 (1st Cir. June 29, 2004) on internet privacy. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting.

I previously posted on the importance of this case here, quoting from Professor Kerr's views on the case. His comments , as we quoted, were as follows:

Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored Communications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger [v. New York, 388 U.S. 41 (1967)] and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.

There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.

I will try to obtain a copy of the petition for rehearing and for rehearing en banc. Stay tuned to this case, for I also agree that it is an important one in which the panel's majority got it wrong.

Apprendictionary-land

For all the doublespeak in politics and the law -part of the reason I called this blog Macondo Law- I never envisioned that there would come a day when I would have to wonder about what the Supreme Court meant when it said “statutory.” Now after reading the briefs from the SG as well as from the amici in Booker and Fanfan, all I can say is welcome to Apprendictionary-land.

I am afraid that Justice Scalia will write that he is perplexed that all of these judges have not bothered to look up the meaning of statutory in the dictionary, and that he certainly knew the meaning of the word when he used it. What kind of Clerks have they?!

In all frankness, I have not gone to a dictionary to look up the meaning of statutory, but will do so right after posting this. This is what we've been reduced to, rather than really talking about the right to jury trial and findings beyond a reasonable doubt.

I'm back!

Sorry folks, but the previous Macondo Law with all it's posts is ... gone forever, lost somewhere in cyberspace. I had a backup of the template, but not of the posts. Doers anyone know how does one back up posts, comments, etc.? Of the template, I had merely copy-pasted into a WordPerfect document. Anyway, I'm back.

Thanks for having noticed my absence to Federalist 84 at Crime and Federalism, and the new site looks good! Already updated my FeedDemon to the new feed. I'll probably be changing Macondo Law to write on a white background, but let me get going first. Our feed remains the same.

Here Kitty, Kitty . . .

Now a bit of politics. Alan Greenspan appeared before Congress and said, among other things, the following, as reported by The New Tork Times (AP Story):

In response to questions, Greenspan said he believed the Bush tax cuts were well-timed to help the economy rebound from the last recession. But he agreed that there were other things the government could have done that might have provided an even bigger boost to growth.

Greenspan, as he has in the past, urged Congress to reinstate budget rules that were in effect through much of the 1990s that required any tax cuts or increases in benefit programs such as Social Security to be paid for either by tax hikes or spending cuts in other areas.

Greenspan warned that Congress must act with more urgency to address the country's long-term deficit problems before the retirement of the baby boom generation at the end of this decade.

In the meantime, Kitty Kelly tells us about the Bushes and W's coke snorting days -not only before 1974 - but at Camp David while Poppy was President. Democrats should present a constitutional amendment to preclude anyone who has ever used cocaine from being president, and take it to a vote or use a refusal to do so for the campaign.

Marijuana plants growing outside Courthouse

Uh-oh! Right under their noses, in Green Bay, Wisconsin, they find marijuana plants growing outside the Courthouse.

Former federal Judge is, well, strange

I invite you all to read Professor Berman's post When did Judge Martin enter the Bizarro World? at Sentencing Law and Policy. Former federal Judge Martin resigned from the federal bench because he did not want to be part of our unjust criminal sentencing system, and now submits an amicus brief defending the guidelines. Hats off, Judge!

Amici Brief filed in U.S. v. Councilman

Orin Kerr at The Volokh Conspiracy reports on the filing of an amici brief in support of the United States' petition for rehearing and for rehearing en banc in the First Circuit's 2-1 opinion in United States v. Councilman, slip op. No. 03-1383 (1st Cir. June 29, 2004) on internet privacy. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting.

I previously posted on the importance of this case here, quoting from Professor Kerr's views on the case. His comments , as we quoted, were as follows:

Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored Communications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger [v. New York, 388 U.S. 41 (1967)] and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.

There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.

I will try to obtain a copy of the petition for rehearing and for rehearing en banc. Stay tuned to this case, for I also agree that it is an important one in which the panel's majority got it wrong.

The Bard of the U.S. Tax Court?

Check this out from the U.S. Tax Court. Thanks to Underneath Their Robes for the link.

Booker & Fanfan Briefs filed today by petitioner United States and Amici "for" petitioner

The U.S. Sentencing Commission's amicus brief in Booker and Fanfan was filed today. Also filed today was an amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy.

We are still awaiting for the Solicitor General's brief.

UPDATE: The United States' brief in Booker and Fanfan, also courtesy of Professor Berman at Sentencing Law and Policy.

I can't comment yet on any of these, as I'm still reading them. I am particularly interested in the severability argument from the government, although I will note that at least the amicus brief filed by the Senators keeps emphasising that the Sentencing Gudleines were intended to operate as an integrated whole. The Sentencing Commission mentions the differences (as they describe them) between the Washington State statutory guidelines and the non-statutory federal guidelines in that "independent" commission in the judiciary. They mention the changes to the Commission's membership brought about by the PROTECT Act in a footnote, without giving it any importance whatsoever.

Booker & Fanfan Briefs Start Coming

The U.S. Sentencing Commission's amicus brief in Booker and Fanfan was filed today. Also filed today was an amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy.

We are still awaiting for the Solicitor General's brief.

Vets (as in Veterinarians) and others have the lie on Giuliani B.S. Story

No, I don't think Rudy will take that polygraph test I mentioned here. Check this quote from a speech he gave to the American Veterinary Medical Association on July 19, 2003, published here.

As an example, Giuliani talked about how he had gotten to know President Bush while he was still governor of Texas. Shortly after 9/11, Giuliani remembers saying to himself, "Thank God, George Bush is president."

Now, Rudy, which is it? Did you say this to Bernie or to yourself? Or was it to a fireman you said this to? See this post describing a Rudy speech in Louisiana:

Unsurprisingly, President Bush dominated the entire speech, all the way down to Giuliani’s favorite story about spontaneously telling a fireman during that fateful day, “Thank God George Bush is President.”

Will Rudy make up his mind? Will he tell us the truth? What a pathetic guy! No wonder he identifies with George Bush. And this is the guy who talks about Kerry not telling the truth?

Rudy to Bernie - Will they both take a polygraph on this?

I can't agree more with this letter to Editor at The New York Times:

To the Editor:

Re "The Natural: Giuliani Plays the Role of Backer With
Relish" (news article, Aug. 31):

As the World Trade Center was falling, do you really think that Rudy Giuliani said to the police commissioner, Bernard Kerik, "Bernie, thank God George Bush is our president"?

I'm a New Yorker. Puh-leeze.

David Johnson

New York, Aug. 31, 2004

I think Rudy actually believes he really can make a legitimate run for the presidency in 2008. And offer us what? Patriot Act XX?