Amicus Curiae Brief — United States v. Booker

‘ ary ft =

Nos. 04-104 and 04-105 visi ory CERI

In The

Supreme Court of the United States

UNITED STATES OF AMERICA, Petitioner,

We

FREDDIE J. BOOKER, Respondent.

On Writ Of Certiorari To The United States Court Of

Appeals For The Seventh Circuit

UNITED STATES OF AMERICA, Petitioner,

Vv

DUCAN FANFAN, Respondent.

On Writ Of Certiorari Before Judgment To The

United States Court Of Appeals For The First Ctreuit

BRIEF AMICUS CURIAE OF THE

NATIONAL ASSOCIATION OF FEDERAL DEFENDERS

IN SUPPORT OF RESPONDENTS

NATIONAL ASSOCIATION PAUL M. RASHKIND

OF FEDERAL DEFENDERS Assistant Federal Public Defender

Carol A. Brook, President Counsel of Record

Henry J. Bemporad Office of the Federal Public

Frances H. Pratt, Co-Chairs, Defender

Amicus Committee 150 West Flagler Street, Ste 1500

is Miami, Florida 33130

(305) 536-6900

i

QUESTION PRESENTED

Whether the principles of Blakely v. Washington, 124

S. Ct. 2531 (2004), assimilate readily into practice

under the United States Sentencing Guidelines.

il

TABLE OF CONTENTS

Page

Question Presented... .sccsvessccussueeeeennnee i

Table Of AMGROTUNGS . oc occscssesetuenenn eee ees iv

interest of Amicus Coviae ...ccccvcecssveeseeuneeneel lL

Summary of Asqument .....ccccocssvcceseseseeenee 2

CO! eae sts 3

The Principles Of Blakely v. Washington Assimilate

Readily Into Practice Under The United States

Sentencing CUIGOTGS .. wo ec cnseseceseeeeeeeeen 3

A. Blakely culminates from a succession of the Court’s

decisions applying to sentencings the protections of

the Fifth and Sixth Amendments ............... 3

B. For over 97% of all federal sentencings — those in

which defendants plead guilty or no contest — the

sole impact of assimilating Blakely into the federal

sentencing scheme is that indictments must allege

any enhancing facts (other than the fact of a prior

conviction) that affect the statutory maximum

SOMNSMOS . wc cc ccccsccssceseuse ee een 6

C. In the remaining 3% of federal sentencings — those

following trial — the only additional requirements of

Blakely are that the prosecution prove the alleged

facts beyond a reasonable doubt, that juries be

TABLE OF CONTENTS -— Continued

properly instructed on the law, and that verdict

forms reflect findings on relevant enhancing facts,

all of which are readily accomplished under present

DE UEEGRGbnedercececccccoscececes

. Rather than cause chaos, applying Blakely to

guidelines practice enhances the accuracy, integrity,

and public reputation of sentencing in federal courts

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- Page

19

iv

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... passim

Blakely v. Washington, 124 S. Ct. 2531 (2004) ..... passim

Carey v. Saffold, 536 U.S. 214 (2002) ................. l

Cheney v. U.S. Dist. Court for Dist. of Columbia,

Sea ED cd bncundoodtecsasesdéeens 15

Furman v. Georgia, 408 U.S. 238 (1972) ............. 21

Gardner v. Florida, 430 U.S. 349 (1977) ............. 21

Geders v. United States, 425 U.S. 80 (1976) ........... 26

Gregg v. Georgia, 428 U.S. 153 (1976) .............. 21

In re Olabode, 325 F.3d 166 (3d Cir. 2003) ............ |

In re Winship, 397 U.S. 358 (1970) ...........00.055. 29

Ivan V. v. City of New York, 407 U.S. 203 (1972) ....... 29

Jones v. United States, 526 U.S. 227 (1999) ...... 3, 4, 5,6

Kowalski v. Tesmer, No. 03-407 (U.S. 2004) ........... l

Massaro v. United States, 538 U.S. 500 (2003) .......... l

Newland v. Saffold, 534 U.S.971 (2001) .............. l

Old Chief v. United States, 519 U.S. 172 (1997) ....... 26

Overton v. Bazzetta, 539 U.S. 126 (2003) .............. |

Pacheco-Camacho v. Hood, 535 U.S. 1105 (2002) ....... l

People v. Reese, 179 N.E. 305 (N.Y. 1932) ........... 29

Ring v. Arizona, 536 U.S. 584 (2002) ............. 4, 5,6

Ross v. Bernhard, 396 U.S. 531 (1970) ............... 20

Russell v. United States, 369 U.S. 749 (1962) ........... 7

Schiro v. Farley, 510 U.S. 222 (1994) .............4.. 21

Speiser v. Randall, 357 U.S. 513 (1958) .............. 29

Stirone v. United States, 361 U.S. 212 (1960) ........... 7

United States v. Arvizu, 534 U.S. 266 (2002) ........... l

Vv

TABLE OF AUTHORITIES — Continued

United States v. Beard,

313 F. Supp. 844 (D. Minn. 1970) ............-+5- 20

United States v. Carlos Cardenas, et al., Case No. 03-

20450-CR-GOLD(s) (S.D. Fla.), available at http://

pacer.flsd.uscourts.gov ...... 6... eee eee eee eeees 24

United States v. Carlson, 423 F.2d 431 (9th Cir. 1970) .. 27

United States v. Richard Casseus and Shretta Renee

Casseus, No. 04-20047-CR-MARTINEZ (s) (S.D. Fla.

July 29, 2004), available at http://pacer.flsd.uscourts.

OD coccccccsvcvcvceccccesusesessoesesoacess 13

United States v. Richard A. Causey, Jeffrey K. Skilling, and

Kenneth L. Lay, Cr. No. H-04-25(S-2) (S.D. Tex. July

29, 2004), available at http://news.findlaw.com/hdocs

/docs/enron/usvlay70704 ind.pdf. .............+-- 13

United States v. Climatemp, Inc.,

482 F. Supp. 376 (N.D. Ill. 1979), aff'd mem., 705 F.2d

461 (7th Cir.), cert. den. sub nom. Fakter v. United

States, 462 U.S. 1134 (1983) .......... 2c eee ee eee 9

United States v. Cotton, 535 U.S. 625 (2002)

piieterdcenacbaind candemewed 4, 5, 6, 7, 11, 16, 24

United States v. Finestone,

816 F.2d 583 (11th Cir. 1987) .............-2-55- 22

United States v. Gonzalez,

921 F.2d 1530 (11th Cir. 1991) ............... 22, 23

United States v. Greenpeace, Inc.,

314 F. Supp. 2d 1252 (S.D. Fla. 2004) ............ 20

United States v. Jackson, 390 U.S. 570 (1968) ... 20,21, 22

United States v. Joshua, 976 F.2d 844 (3d Cir. 1992) . 26-27

United States v. Kaplan, 886 F.2d 536 (2d Cir. 1989) .... 22

United States v. Kemper, 503 F.2d 327 (6th Cir. 1974).... 8

vil

TABLE OF AUTHORITIES -— Continued

Page

United States v. LaBonte, 520 U.S. 751 (1997) ...... 14,15

United States v. McNeese, 901 F.2d 585 (7th Cir. 1990) .. 23

United States v. Neapolitan,

poe ee 22

United States v. Scop, 940 F.2d 1004 (7th Cir. 1991) . 22, 23

United States v. Stassi, 544 F.2d 579 (2d Cir. 1976) ..... 23

United States v. Taylor, 17 F.3d 333 (11th Cir. 1994) . 22, 23

United States v. Russell Wallace, No. 04-14034-CR-

MARRA/LYNCH (s) (S.D. Fla. Aug. 5, 2004),

available at http://pacer.flsd.uscourts.gov .......... 14

United States v. Joseph E. Williams, No. 04-160-A,

available at http://pacer.vaed.uscourts.gov ......... 13

United States v. Vonn, 535 U.S. 55 (2002) ............. |

United States v. Young, 470 U.S. 1 (1985) ............ 18

Woodson v. North Carolina, 428 U.S. 280 (1976) ...... 21

Zafiro v. United States, 506 U.S. 534 (1993)........... 26

CONSTITUTION, STATUTES, AND RULES

EE Ee ee ee 19

EE Ee mT i em 3,5,7

eee en earls 1,3, 5, 19

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

Title Il, Ch. 1, 98 Stat. 1837 (Oct. 12, 1984)...... 2,27

RE A OREN Sonn PR PRPS pe ine eee 22

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“vil

TABLE OF AUTHORITIES — Continued

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U.S. SENTENCING GUIDELINES AND PUBLICATIONS

United States Sentencing Commission, Guidelines

Manual (Nov. 2003) .........02c eee eeeeeeees 23,27

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U.S.S.G. § 5C1.2 ...... consdnessuenssewenenennent 17

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Vill

TABLE OF AUTHORITIES — Continued

Page

United States Sentencing Commission, Sourcebook

of Federal Sentencing Statistics (1995 - 2002)

sn GON be neebn6kneeenunsededeeseewas 6, 16, 17, 28

TREATISES AND MANUALS

Department of Justice Manual (Aspen Law &

de eee 8,9

Moore's Federal Practice, Criminal Procedure

Ned ie ee eee ee ee ke 23

Weinstein on Evidence (2d ed. 2004) .............. 22, 23

Charles Alan Wright, Federal Practice and

~ Procedure: Criminal (3d ed. 1999) ............. 7,8

OTHER

ABA Model Code of Professional Responsibility (1980) . 18

ABA Model Rules of Professional Conduct (1984) ..... 18

ABA Standards for Criminal Justice (2d ed. 1980) ...... 18

Bnef for United States, United States v. Cotton,

535 U.S.625 (2002) (No. 01-687) ..............04.. 7

Memorandum from James Comey, Deputy Attorney

General, U.S. Department of Justice, to All Federal

Prosecutors, re: Department Legal Positions and

Policies in Light of Blakely v. Washington (July 2,

2004), available at http://sentencing.ty; :pad.com/

sentencing law_and_policy/files/dag blakely memo_

CE astuvduddisédadecconsiendencseeeers 10

ix

TABLE OF AUTHORITIES — Continued

Page

Memorandum from Christopher A. Wray, Assistant

Attorney General, U.S. Department of Justice, Criminal

Division, to All Federal Prosecutors, re: Guidance

Regarding the Application of Blakely v. Washington,

2004 WL 1402697 (June 24, 2004), to Pending Cases

(undated), available at http://sentencing.typepad.com

/sentencing law_and_policy/files/chris_wray_doj_me

MOE oc cccedecccvevecesevesececcveseees 11,12

l

INTEREST OF AMICUS CURIAE'

The National Association of Federal Defenders was formed

in 1995 to enhance the representation provided under the

Criminal Justice Act, 18 U.S.C. § 3006A, and the Sixth

Amendment to the United States Constitution. The Association

is a nationwide, non-profit, volunteer organization whose

membership includes attorneys who work for federal public and

community defender organizations authorized under the

Criminal Justice Act.

One of the guiding principles of the Association is to

promote the fair administration of justice by appearing as

. amicus curiae in litigation relating to criminal law issues,

particularly as those issues affect indigent defendants in federal

court. The Association has appeared as amicus curiae in

litigation before the Supreme Court and the federal courts of

appeals.”

' No counsel for any party has authored this brief in whole or in part,

and no person or entity, other than the National Association of Federal

Defenders, its members or its counsel, made any monetary contributions to

its preparation or submission. See Sup. Ct. R. 37.6. The parties have

consented to the filing of this brief, and letters of consent have been lodged

with the Clerk of the Court, in accordance with Sup. Ct. R. 37.3(a).

? Published decisions in which the Association has appeared as amicus

curiae include: Overton v. Bazzetta, 539 U.S. 126(2003);Massaro v. United

States, 538 U.S. 500 (2003); Carey v. Saffold, 536 U.S. 214 (2002);

Pacheco-Camacho v. Hood, 535 U.S. 1105 (2002) (mem.); United States v.

Vonn, 535 U.S. 55 (2002); United States v. Arvizu, 534 U.S. 266 (2002);

Newland v. Saffold, 534 U.S. 971 (2001); and Jn re Olabode, 325 F.3d 166

(3d Cir. 2003). The Association also appears as amicus curiae in Kowalski

v. Tesmer, No. 03-407, presently pending before the Court.

2

The pending cases raise important questions that impact

federal criminal practice, from indictment through trial — or, as

is much more often the case, through plea negotiation — and

sentencing under the United States Sentencing Guidelines. As

amicus curiae, the Association offers its practical view of the

federal criminal justice system, seen through the eyes of counsel

who represent a majority of those charged with federal crimes

in districts throughout every federal circuit.

SUMMARY OF ARGUMENT

Opponents of Blakely v. Washington, 124 S. Ct. 2531

(2004), raise the spectre of chaos as a reason to revisit the

decision or to hold it inapplicable to the federal sentencing

scheme. For those who practice criminal law in the federal

courts every day, the only chaos has been caused not by

applying Blakely to federal criminal cases, but rather by those

trying to avoid its application or to force its reconsideration.

The requirements of Blakely are assimilated readily into the

federal sentencing scheme, with little or no change to current

statutes or rules, providing sentences entirely consistent with

the Sentencing Reform Act of 1984 and the United States

Sentencing Guidelines. For over 97% of federal sentencings —

those arising from guilty pleas — the only change required by

Blakely is that indictments must now allege any fact (other than

the fact of a prior conviction) that increases the statutory

maximum penalty. There are no structural or practical

impediments to this requirement, which has already been

satisfied in districts throughout the country.

Nor are there legal or practical impediments to assimilating

Blakely in the small percentage of cases that go to trial. Trial

3

juries will be empaneled, hear proof, and return verdicts, based

on a reasonable doubt standard. With such verdicts, the trial

court actually has simpler sentencing obligations, filtered by the

jury’s findings, which will yield the appropriate guideline range.

Real-world experience dispels the myths imagined by those

who choose to avoid Blakely and its application in federal

sentencings. In the end, Blakely will improve federal guidelines

sentencing by increasing the accuracy of factfinding, reducing

unwarranted sentencing disparities, and enhancing the public

reputation of the federal sentencing process.

ARGUMENT

THE PRINCIPLES OF BLAKELY V. WASHINGTON

ASSIMILATE READILY INTO PRACTICE UNDER

THE UNITED STATES SENTENCING GUIDELINES

A. Blakely culminates from a succession of the Court’s

decisions applying to sentencings the protections of

the Fifth and Sixth Amendments.

Blakely v. Washington, 124 S. Ct. 2531 (2004), is the

culmination of five decisions delivered by the Court during the

past five years, reiterating that sentencing in criminal cases

must operate within the limits of the Fifth and Sixth

Amendments. Each decision built on its predecessors and

brought gre + clarity to the requirements imposed by these

constitutiona. provisions.

In Jones v. United States, 526 U.S. 227 (1999), the Court

stated that the Fifth Amendment’s Due Process Clause and the

Sixth Amendment’s notice and jury trial guarantees require that

4

“any fact (other than prior conviction) that increases the

maximum penalty for a federal crime must be charged in an

indictment, submitted to a jury, and proved beyond a reasonable

doubt.” 526 U.S. at 243 n.6.

Apprendi v. New Jersey, 530 U.S. 466 (2000), followed a

year later, and applied the constitutional principle announced in

Jones to state court sentencing: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.

Two years later, the Court made clear that, in applying

Apprendi “ijn federal prosecutions, such facts must also be

charged in the indictment.” United States v. Cotton, 535 U.S.

625, 627 (2002). During that same Term, in Ring v. Arizona,

536 U.S. 584 (2002), the Court applied Apprendi to death

penalty determinations.

And last Term, Blakely v. Washington refined and applied

Apprendi’s rule, defining “statutory maximum” in a determinate

sentencing scheme as “the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” 124 §. Ct. at 2537

(emphasis in original). It “is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he

may impose without any additional findings.” 124 S. Ct.

at 2537. To the extent a judge sentences above the statutory

maximum, based on facts not found by a jury (or conceded by

the defendant), “the judge exceeds his proper authority.” /d.

As the Court decided each case, a gradually increasing

chorus of doomsayers predicted chaotic courtrooms and the

demise of determinate sentencing schemes. Yet, the culmination

5.

of the decisions, and their application to federal sentencing,

brings neither chaos nor the guidelines’ demise. To the contrary,

Apprendi jurisprudence does not inexorably overrule

determinate sentencing, but simply causes it to be

“implemented in a way that respects the Sixth Amendment,”

Blakely, 124 S. Ct. at 2540, by processes for which the criminal

justice system is well-suited.

Together, Jones, Apprendi, Cotton, Ring, and Blakely

recognize four important Fifth and Sixth Amendment principles

applicable to federal sentencing:

First, enhancing facts that increase the statutory

maximum sentence must be alleged in the indictment.

Second, the government must prove those allegations —

like any other allegations of an indictment — beyond a

reasonable doubt.

Third, the jury must find the existence of the facts

beyond a reasonable doubt.

Fourth, a court may not sentence a convicted defendant

in excess of the statutory maximum for any fact not

indicted, proved beyond a reasonable doubt, and found

by a jury verdict.’

> The four principles have these caveats: If the fact is indicted and its

proof conceded by the defendant, further proof and jury finding on that

factor are unnecessary, and a sentencing judge may take the fact into account

in imposing a sentence above the statutory maximum. Blakely, 124 S. Ct.

at 2541. Likewise, a defendant may consent to judicial factfinding in place

of a jury determination. /d.

6

Each of these principles is readily applied under the United

States Sentencing Guidelines, although in the real world, only

the first principle has universal application.

B. For over 97% of all federal sentencings — those in

which defendants plead guilty or no contest — the

sole impact of assimilating Blakely into the federal

sentencing scheme is that indictments must allege

any enhancing facts (other than the fact of a prior

conviction) that affect the statutory maximum

sentence.

Tie overwhelming majority of federal prosecutions are

reso! ed by guilty or no contest pleas. According to the most

rece: available statistics, 97.1% of all federal sentencings

follow guilty pleas, with the remaining 2.9% following trial.‘

This striking contrast is not new, but rather is part of a long-

term trend,’ a trend that has continued — indeed accelerated —

despite the assimilation of the Court’s decisions in Jones,

Apprendi, Cotton and Ring. This reality must be considered in

gauging the true impact of now assimilating Blakely into the

federal sentencing scheme.

* U.S. Sentencing Commission, Sourcebook of Federal Sentencing .

Statistics (2002) (Table 11).

* During the past decade, the percentage of pleas has increased from

91.9% in 1995, to 97.1% in 2002. Remarkably, the concomitant reduction

in trial dispositions — from 8.1% to 2.9% — has occurred despite the

application of Apprendi’s requirements to federal drug trafficking

prosecutions. Compare U.S. Sentencing Commission, Sourcebook of

Federal Sentencing Statistics (1995) (Table 3) with id. (2002) (Table 11).

7

Guilty plea dispositions implicate only one of Blakely’s

requirements: An indictment must allege all enhancing facts

(other than the fact of a prior conviction) that might affect the

statutory maximum sentence. Despite the naysayers’

protestations, there are neither legal nor practical impediments

to Blakely-ized indictments.

Federal Rule of Criminal Procedure 7 implements the

requirement of the Fifth Amendment’s indictment clause.

1 Charles Alan Wright, Federal Practice and Procedure:

Criminal § 125 (3d ed. 1999). The rule “put an end to ‘the rules

of technical and formalized pleading which had characterized

an earlier era,” id. § 123, at 529 (quoting Russell v. United

States, 369 U.S. 749, 762 (1962)), replacing those arcane

requirements with a simplified procedure in which “common

sense and reason prevail over technicalities.” /d. § 123,

at 530-31. The rule requires an indictment or information to be

“a plain, concise, and definite written statement of the essential

facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1)

(emphasis added). Although the rule requires that elements of

the charged crime be included, there is no prohibition on

including relevant and material non-elemental facts.°

® The rule accords with the Constitution, which, far from barring

indictment allegations other than those elements contained in the statute,

sometimes requires them. Sve, e.g., Russell, 369 U.S. at 765 (requiring more

than statutory language tc provide required notice); cf Stirone v. United

States, 361 U.S. 212 (1960) (only grand jury may change allegation of

means of committing offense); Brief for United States at 16 n.4, United

States v. Cotton, 535 U.S. 625 (2002) (No. 01-687) (“The conclusion that

under Apprendi threshold drug quantities must be charged in a federal

indictment and proved to the jury in order to support a sentence above the

otherwise-applicable statutory maximum does not require a determination

that drug quantity is formally an ‘element’ of the offense under Section 841

or Section 846.”).

8

Subsection (d), which permits surplusage to be stricken from

the indictment upon motion of the defendant, is “strictly

construed against striking surplusage,” United States v. Kemper,

503 F.2d 327, 329 (6th Cir. 1974), and for that reason “only

rarely has surplusage been stricken.” Wright, supra, § 127,

at 639. By design and by its terms, the rule is one of inclusion

and simplification, not exclusion for the sake of complication.

Indeed, that has long been the view of the ') 3. Department of

Justice in its policy and practice.

The Department of Justice Manual recognizes that proper

allegations in an indictment are not limited to only the statutory

elements of an offense. See 3 Department of Justice Manual,

Title 9, Resource Manual, Criminal, No. 214 (Drafting

Indictments and Informations) (Aspen Law & Business 2002).

It offers prosecutors no fewer than five separate form responses

to defense motions to str'ke surplusage, each setting forth law

and argument permitting non-elemental facts to be alleged in an

indictment. See 2 id., Resource Manual, Title 4, Civil, Nos. 127,

128, 129, 130, 133. Many of the boilerplate legal responses

demonstrate, through law and argument, why the types of

enhancing facts that Blakely affects are eligible for inclusion in

an appropriate indictment simply because they are “legally

relevant.” /d. at 4-530, 4-533. Examples of permissible non-

elemental allegations include background information, like

“reference to the Bonanno family of La Cosa Nostra,” “anti-

bugging equipment,” or “organized crime;” relevant conduct,

such as “allegations of drug trafficking and narcotics

transactions in a mail fraud indictment,” or “references to an

inmate awaiting tral for narcotics offense;” victim impact, like

“allegations that the diverted funds were destined for the poor

and homeless and that rightful recipients were lulled and

deceived;” and leadership and other roles in the offense, like “a

Means and Manners section . . . explaining the . . . roles of each

9

defendant within the organization.” Jd. at 4-528, 4-531, 4-533,

4-536, 4-537. These and many other non-elemental allegations

were upheld, at the government’s urging, because they were

“legally relevant” and “material.” Of the many cases cited in the

form government responses, the one relied upon most often is

United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D.

Ill. 1979), aff'd mem., 705 F.2d 461 (7th Cir.), cert. den. sub

nom. Fakter v. United States, 462 U.S. 1134 (1983), which the

government summarizes as: “(I]ndictment language the

government hopes to prove at trial cannot be considered

surplusage, no matter how prejudicial it may be, if it is legally

relevant.” Resource Manual, Title 4, Civil, at 4-529, 4-533.

In this light, one cannot seriously suggest that enhancing

facts relating to drug quantity, financial loss or gain, role in the

offense, victim status, or relevant conduct are surplusage in an

indictment when proof of those facts determines the degree of

punishment in the event of conviction.

Actual practice confirms this conclusion. After the Court

decided Blakely, the Department of Justice issued to all federal

prosecutors at least two memoranda, one from Deputy Attorney

General James Comey and the other from Assistant Attorney

General Christopher A. Wray, offering guidance on post-

Blakely practices.’ “Until the Supreme Court definitively rules

on the constitutional impact of Blakely on the Guidelines,” the

Comey memorandum directs all federal prosecutors to conform

indictment practices to Blakely:

” Although the Wray memorandum cautions in a footnote that it should

not be disseminated outside of DOJ, it is posted publicly on the Internet at

http://sentencing.typepad.com and has been made available to the federal

judiciary on the JNET, http://jnet.ao.dcn/Memos/2004_Archive/Dir4092.

html.

Washington (July 2,

10

1. Indictments. Prosecutors should immediately

begin to include in indictments all readily provable

Guidelines upward adjustment or upward departure

factors (except for prior convictions that are exempt

from the Blakely and Apprendi rules). . . . [I}n light of

the unpredictable future path of court rulings, it is

prudent for the government to protect against the

possibility that such allegations in indictments will be

held necessary.

2. Superseding indictments. In pending

prosecutions that have not resulted in a plea of guilty or

a tral, prosecutors should obtain superseding

indictments that allege all readily provable Guidelines

upward adjustment or upward departure factors (except

for prior convictions that are exempt from the Blakely

and Apprendi rules).

Memorandum from James Comey, Deputy Attorney General,

U.S. Department of Justice, to All Federal Prosecutors, re:

Department Legal Positions and Policies in Light of Blakely v.

2004), at 3, available at

http://sentencing.typepad.com/sentencing law

_and_policy/files/dag_blakely memo_7204.pdf.

The second memorandum, issued only a few days later,

offered the same advice in greater detail and made a candid

admission about the government’s ability to adapt to Apprendi’s

indictment requirements:

Procedures That Blakely Would Require. Any

fact to which Blakely applies must be charged in the

indictment, and either found by a jury beyond a

reasonable doubt or admitted by the defendant. Blakely,

11

2004 WL 1402697, at *4; United States v. Cotton, 535

U.S. 625, 627 (2002) (indictment requirement applies in

federal prosecution).

After Apprendi was decided, we were able to reduce

the impact of the decision by immediately beginning to

charge and prove to the jury facts that increase the

statutory maximum — for example, drug type and

quantity for offenses under 21 U.S.C. 841.

Memorandum from Christopher A. Wray, Assistant Attorney

General, U.S. Department of Justice, Criminal Division, to All

Federal Prosecutors, re: Guidance Regarding the Application of

Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), to

Pending Cases (undated), at 8, available at

http://sentencing.typepad.com/sentencing_law_and_policy

/files/chris_wray_doj memo.pdf. To that end, the Wray

memorandum directed prosecutors on the procedures for

Blakely-izing indictments and informations:

A. Indictments and Informations. Prosecutors should

immediately begin to include in indictments all

Guidelines upward adjustment or upward departure

factors (except for prior convictions that are exempt

from Blakely and Apprendi rules) that are readily

provable beyond a reasonable doubt. Facts that will

need to be alleged may include Chapter Two factors that

determine the base offense level (including relevant

conduct), Chapter Two specific offense characteristics,

Chapter Three upward adjustments, and Chapter Five

departure grounds. In a drug case, for example, this

might include the quantity of drugs as set forth in the

drug quantity table of Guidelines § 2D1.1(c) (for

example, that the defendant distributed at least 2 kg but

12

less than 3.5 kg of cocaine, which would result in an

offense level of 28), that a dangerous weapon was

possessed (Guidelines § 2D1.1(b)(1)) and that the

defendant was an organizer or leader of criminal activity

that involved five or more participants (Guidelines

§ 3B1.1(a)). Prior convictions do not need to be alleged

in the indictment, but prosecutors should allege facts

other than prior convictions that increase a defendant’s

criminal history score and are readily provable beyond

a reasonable doubt. The allegations of enhancement

factors should track the language of the applicable

Sentencing Guidelines. Prosecutors may also choose to

allege Guidelines enhancements in informations where

the defendant has agreed to enter a guilty plea and to

waive indictment, but has not agreed to waive his

Blakely rights.

If a defendant has already been indicted but has not

yet gone to trial or pleaded guilty, prosecutors should

supersede the indictment to allege Guidelines factors.

The Criminal Division will prepare and distribute

sample indictments.

Id. at 9.

Indictments complying with Blakely’s requirements (and

DOJ policy) have been returned nationwide, from the

prosecution of the biggest and most infamous fraud case to the

most obscure and routine cases. For example, the superseding

indictment in the Enron fraud prosecution, 132 numbered

paragraphs spanning 65 pages, concludes with four paragraphs

identifying a smorgasbord of enhancements: leadership role,

abuse of trust, special skills, facilitation to conceal, loss amount

exceeding $100 million, more than minimal planning, a scheme

13

to defraud more than 50 victims, sophisticated means,

commission through mass marketing, offenses affecting a

financial institution, gross receipts of over $1 million, funds

values in excess of $6 million; and, as to counts 38-41, gain

exceeding $60 million, and more than minimal planning.

United States v. Richard A. Causey, Jeffrey K. Skilling, and

Kenneth L. Lay, Cr. No. H-04-25(S-2) (S.D. Tex. July 7, 2004),

available at http://news.findlaw.com/hdocs/docs/enron/usvlay

70704 ind.pdf.

More routine cases provide everyday examples of Blakely’s

application to superseding indictments. In a two-defendant,

eight-count tax fraud prosecution, the superseding indictment

concludes with eight double-spaced lines alleging that the

defendants had a leadership role in criminal activity involving

“less than five members” that “was not otherwise extensive;”

the defendants were in the business of preparing tax returns;

and their conduct resulted in loss exceeding $80,000.00. United

States v. Richard Casseus and Shretta Renee Casseus, No. 04-

20047-CR-MARTINEZ (s) (S.D. Fla. July 29, 2004), available

at http://pacer.flsd.uscourts.gov (Local Option Images).

In a single-defendant, two-count prosecution charging the

defendant with being both a felon and an unlawful drug user in

possession of a firearm and ammunition, each count of the

second superseding indictment makes the traditional charge and

adds enhancement fact allegations that the possession was “in

connection with a robbery and a first degree and second degree

murder, including felony murder.” United States v. Joseph E.

Williams, No. 04-160-A (E.D. Va. July 15, 2004) (on file with

counsel), available at http://pacer.vaed.uscourts.gov.

And, in a one-count superseding indictment for interstate

transportation of pornography involving minors, the

14

government added factual allegations that raise the guideline

range bec~use the material involved a prepubescent minor under

‘the age of 12 years, distribution to a minor, the material

portrayed sadistic and masochistic conduct and other depictions

of violence, and because distribution was committed by use of

a computer. All of the enhancing facts were alleged in a total of

nine double-spaced lines. United States v. Russell Wallace, No.

04-14034-CR-MARRA/LYNCH (s) (S.D. Fla. Aug. 5, 2004),

available at http://pacer.flsd.uscourts.gov (Local Option

Images).

These few selected indictments illustrate a wealth of facts

that, if proved beyond a reasonable doubt, would raise the

statutory maximum sentence set by the U.S. Sentencing

Guidelines. And they illustrate how simply and routinely

Blakely has already assimilated into practice in federal court.

To the extent a defendant faces punishment beyond the

otherwise applicable maximum, it will be because the grand

jury and the prosecutor determined it is warranted. If the

enhancing facts are not part of the ultimate charge and sentence,

it will be because the grand jury found proof of the enhancing

fact wanting, or due to the exercise of prosecutorial discretion.

As the Court observed in United States v. LaBonte, 520

U.S. 751 (1997), such prosecutorial discretion remains a vital

component within the federal guidelines scheme:

Insofar as prosecutors, as a practical matter, may be able

to determine whether a particular defendant will be

subject to the enhanced statutory maximum, any such

discretion would be similar to the discretion a

prosecutor exercises when he decides what, if any,

charges to bring against a criminal suspect. Such

discretion is an integral feature of the criminal justice

15

system, and is appropriate, so long as it is not based

upon improper factors.

520 U.S. at 761-62; see also Cheney v. U.S. Dist. Court for

Dist. of Columbia, 124 S. Ct. 2576, 2590 (2004) (“The decision

to prosecute a criminal case, for example, is made by a publicly

accountable prosecutor subject to budgetary considerations and

under an ethical obligation, not only to win and zealously to

advocaie for his client but also to serve the cause of justice. The

rigors of the penal system are also mitigated by the responsible

exercise of prosecutorial discretion.”).*

Thus, the first requirement of Blakely, that enhancement

facts should be charged by indictment, is legally permissible

and practicable. For the 97% of federal cases in which

defendants plead guilty or no contest, the other requirements of

Blakely are met by virtue of their plea. Under Federal Rule of

Criminal Procedure 1 1(b)(1), defendants who plead guilty will

be advised of the nature of the charges against them, their rights

to jury trial and procedures to defend against the charges, and

that their plea waives all of those rights. When the district court

accepts the plea under the terms of Rule 11, the remaining

requirements of Blakely — a jury trial with proof of all

* Labonte’s recognition of prosecutorial discretion also disposes of any

concern that Blakely will cause unseemly sentencing disparity because some

defendants will be indicted for enhancement conduct whereas others will not.

Labonte addressed this argument in the context of the comparable effect of

21 U.S.C. § 851(a)(1) enhancement notices. Rejecting the significance of the

similar disparity created because some defendants receive enhancement

notices while others do not, the Court relied upon traditional precepts of

prosecutorial discretion: “Any disparity in the maximum statutory penalties

between defendants who do and those who do not receive the notice is a

foreseeable — but hardly improper — consequence of the statutory notice

requirement.” 520 U.S. at 762.

16

allegations of the indictment beyond a reasonable doubt — are

waived and the sentencing proceeds within the limits of crimes

and factors alleged in the indictment. See Blakely, 124 S. Ct.

at 2541. _

_ Those who predict chaos rejoin by predicting that Blakely

will cause an increase in trials and a decrease in plea

negotiations. Although such concerns cannot override

constitutional requirements, see Blakely, 124 S. Ct. at 2543, the

claim itself is statistically unfounded and counterintuitive.

Despite Apprendi, which required new allegations and proof in

federal prosecutions, the number and percentage of criminal

trials have decreased, not increased. See supra note 5. The most

dramatic effect of Apprendi has been on federal drug

prosecutions, see Cotton, yet trials have decreased even in those

cases. Apprendi was decided on June 26, 2000. In the prior year,

1999, there were 1,359 drug trafficking trials, 6.2% of all such

cases. The remaining 93.8% of cases were resolved by plea.

Sourcebook of Federal Sentencing Statistics (Table 11) (1999).

In each year since, the number and percentage of trials declined.

By 2002, there were only 766 drug trafficking trials nationwide,

3% of such cases. Jd. (2000 - 2002).’ This reduction in trials

* The reduction in drug trafficking trials is a consistent downtrend, not

a snapshot anomaly:

Prim«ry Offense: Drugs - Trafficking

FY Total Plea Trial

N Percent Number Percent

1999 21,840 20,481 93.8% 1359 6.2%

2000 = 23,195 22,011 94.9% 1184 5.1%

2001 24,016 23,204 96.6% 812 3.4%

2002 25,361 24,595 97.0% 766 3.0%

Sourcebook of Federal Sentencing Statistics (Table 11) (1999 - 2002).

17

occurred even though the overall number of drug trafficking

prosecutions increased, from 21,840 in 1999, to 25,361 in 2002.

These statistics belie the myth that Apprendi-specific

indictments will lead to catastrophic increases in federal court

workloads. To the contra ’, if any conclusion may be drawn

from the data, it is that such indictments more sharply focus the

issues in ways that contribute to successful plea negotiations. "°

Not only is the thought that Blakely will increase trials

statistically unsupported, but it is also counterintuitive, as the

Guidelines continue to offer significant benefits for those

defendants who accept responsibility for their criminal

involvement.'' Some would say these benefits are penalties,

because they are withheld from most who elect trial over plea,

and those who go to trial are further penalized if their evidence

is disbelieved.'? But, whether viewed as benefits or penalties,

they serve to discourage frivolous demands for trial. Moreover,

explicit indictments are more likely to encourage plea

'© This is not to say that federal courts lack capacity to conduct

additional criminal trials. While federal courts conducted 1,851 criminal

trials in 2002, fewer judges conducted 2,958 criminal trials in 1999

and 3,124 in 1995. Sourcebook of Federal Sentencing Statistics (2002)

(Table 10); id. (1999) (Table 10); id. (1995) (Table 16).

'' See, e.g., U.S.S.G. § 3E1.1 (permitting 2-level reduction in offense

level for demonstrating acceptance of responsibility and an additional 1-level

reduction for timely notifying authorities of the intention to plead guilty); id.

§§ 2D1.1(b)(6), 5C1.2 (safety valve, permitting a 2-level offense level

reduction and a sentence below a mandatory minimum sentence for

qualifying defendants who truthfully disclose all information and evidence

concerning offenses part of the same course of conduct).

'2 See U.S.S.G. § 3C1.1 (permitting 2-level increase in offense level for

obstruction or impeding the administration of justice, including offering false

testimony at trial).

18

negotiations, and to permit the parties to compromise on

enhancing facts when proof of a single fact is inadequate or

questionable, without fear that the issue will re-emerge in a

presentence report written by a non-lawyer probation officer

unfamiliar with the realities of trial, rules of evidence, subtleties

of proof, and ethical constraints imposed upon the prosecutor as

a “minister of justice.”

A defendant’s election to plead guilty or to stand trial is

influenced not by the specificity of the indictment, but rather by

the certainty and magnitude of punishment set forth in the

Guidelines. Before .pprendi was decided, that certainty was

often lacking for defendants in drug cases, who “would

routinely see [their] maximum potential sentence balloon from

as little as five years to as much as life imprisonment .. .

based . . . on facts extracted after trial from a report compiled by

a probation officer... .” Blakely, 124 S. Ct. at 2542. The

increased specificity that Apprendi required led to greater

certainty, and, as a result, enhanced opportunities for knowing

See, e.g., United States v. Young, 470 U.S. 1, 26 (1985) (Brennan,

Marshall, Blackmun, JJ., concurring in part and dissenting in part) (“[W]Je

have long emphasized that a representative of the United States Government

is held to a higher standard of behavior:

The United States Attorney is the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern at

all; and whose interest, therefore, in a criminal prosecution is not

that it shal] win a case, but that justice shall be done... .

(Cf ABA Model Rules of Professional Conduct, Rule 3.8 comment (1984)

(‘A prosecutor has the responsibility of a minister of justice and not simply

that of an advocate’); ABA M odel Code of Professional Responsibility EC

7-13 (1980) (prosecutor owes a ‘special duty’); ABA Standard for Criminal

Justice 3-5.8, p. 3°88 (2d ed. 1980)”).

19

settlement. After Blakely, the indictment must include other

facts that increase the statutory maximum, thus providing even

greater certainty. Given past experience, there is no reason to

believe that- Blakely-specific indictments will cause an

increase — much less a catastrophic increase — in trials; rather,

the more specific allegations give the parties specific details

with which to reach successful compromise and negotiations.

C. In the remaining 3% of federal sentencings — those

following trial — the only additional requirements of

Blakely are that the prosecution prove the alleged

facts beyond a reasonable doubt, that juries be

properly instructed on the law, and that verdict

forms reflect findings on relevant enhancing facts,

all of which are readily accomplished under present

procedures.

The remaining 3% of sentencings will likely follow a jury

or non-jury trial. In some of those cases, the prosecution will

offer proof of enhancing facts and the jury will be instructed to

make relevant findings on its verdict form. Commentators have

speculated wildly about the difficulties attendant to these

requirements, but. there are neither legal nor practical

impediments to Blakely-ized trial s.

The Constitution has two provisions relating to criminal

trials. The first is in the article allocating federal judicial power:

“The Trial ofall Crimes, except in Cases of Impeachment, shall

be by Jury.” U.S. Const. art. II, § 2. The second is in the Bill of

Rights: “In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury... .” U.S.

Const. amend. VI. These provisions are given effect by Federal

Rule of Criminal Procedure 23: “If the defendant is entitled to

a jury trial, the trial must be by a jury” unless waived by the

20

defendant with the consent of the government and the court’s

approval. Absent waiver, Blakely entitles a defendant to a jury

trial to decide enhancing facts that increase the statutory

maximum, so, by their terms, the Constitution and rules

authorize such a proceeding. —

In addition, “[nJothing in the Constitution or the Rules

precludes the judge from granting a jury trial as a matter of

discretion.” Ross v. Bernhard, 396 U.S. 531 (1970) (Stewart,

Burger, Harlan, JJ., dissenting); United States v. Greenpeace,

Inc., 314 F. Supp. 2d 1252 (S.D. Fla. 2004) (Jordan, J.)

(granting jury trial, as a matter of discretion, for organization

charged with misdemeanor, based on review and discussion of

historical precedent); United States v. Beard, 313 F. Supp. 844,

846 (D. Minn. 1970) (Neville, J.) (the “granting of a jury trial

rests within the court’s discretion” where petty offense

defendants have no constitutional right to jury trial and

Congress has not spoken on subject).

The government relies on United States v. Jackson, 390

U.S. 570 (1968), for a contrary view. Pet’r Br. at 60-61.

Jackson, however, is distinguishable in many ways that leave it

with little weight or precedential value in this setting. Jackson

held unconstitutional a federal death penalty law that could only

be imposed upon those convicted of kidnaping after trial, but

not on those who pleaded guilty. In an effort to salvage the

federal statute, the government suggested that those who plead

guilty should, despite their objection and the fact that Congress

had not authorized such a procedure, be subjected to a death

-penalty phase jury. The Court rejected the government’s attempt

to create out of whole cloth a procedure to impose the death

penalty on those who plead guilty.

21

In nearly every respect, Jackson differs from Blakely. Most

prominently, Jackson was about the power of a court to

empanel a jury after a guilty plea; Blakely requires no such

procedure. Nothing Blakely requires occurs outside of the

traditional setting of a criminal proceeding, whereas the

government’s rejected salvage in Jackson attempted to create a

unique post-guilty plea sentencing jury for which Congress

made no provision. In short, assimilating Blakely does not

require that new sentencing juries be created out of whole cloth;

it merely requires that when defendants elect trial instead of

plea, the jury’s factfinding include certain facts that may

influence the statutory maximum sentence in the event of

conviction.

In addition, Jackson has little bearing in a non-death penalty

setting, as the ruling certainly derives from the Court’s “death

is different” jurisprudence of that era.'* In Jackson, the

government wanted the post-guilty plea jury empaneled to

impose a punishment “different in kind from any other

punishment imposed under our system of criminal justice.”

Gregg v. Georgia, 428 U.S. 153, 188 (1976); under Blakely, the

jury decides if the statutory maximum sentencing range for a

single type of punishment should be higher or lower. Under

Jackson, the jury was to be empaneled as a sword, to invoke a

different and much more serious penalty; under Blakely, the

' See Schiro v. Farley, 510 U.S. 222, 237 (1994) (Blackmun, J.,

dissenting) (“The ‘unique’ nature of modern capital sentencing

proceedings . . . derives from the fundamental principle that death is

‘different,’ see, e.g., Gardner v. Florida, 430 U.S. 349, 357,97 S. Ct. 1197,

1204, 51 L. Ed. 2d 393 (1977) (plurality opinion); Woodson v. North

Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2992, 49 L. Ed. 2d 944 (1976)

(plurality opinion); see also Furman v. Georgia, 408 U.S. 238, 306, 92

S. Ct. 2726, 2760, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring)”).

22

jury right is a shield to protect the defendant from an increase

in the statutory maximum for the same type of punishment,

absent sufficient proof. In Jackson, the defendant objected to

the penalty jury (because it could not help, but only hurt his lot);

but under Blakely, the jury serves to protect the defendant from

increased punishment based on facts proved only to a probation

officer. And, under Blakely, a defendant can plead guilty to

avoid the jury and its potentially more severe punishment, relief

not available under the government’s formulation in Jackson.

In the context of Blakely, there is no constitutional

provision, statute, or rule prohibiting the jury from hearing

enhancement factors contained in the indictment. Given an

indictment alleging enhancement factors and a jury empaneled

to try the case, the government is certainly authorized to

introduce evidence in an effort to prove its allegations beyond

a reasonable doubt. See, e.g., United States v. Taylor, 17

F.3d 333 (11th Cir. 1994) (permitting government to introduce

relevant evidence to prove charges in the indictment); United

States v. Scop, 940 F.2d 1004 (7th Cir. 1991) (same); United

States v. Gonzalez, 921 F.2d 1530 (11th Cir. 1991) (same);

United States v. Kaplan, 886 F.2d 536, 549 (2d Cir. 1989)

(same); United States v. Finestone, 816 F.2d 583, 587 (11th

Cir. 1987) (same); United States v. Neapolitan, 791 F.2d 489,

501 (7th Cir. 1986) (same).

Enhancing fact evidence is comparable to many types of

evidence presently admitted in federal trials, independent of

Blakely. Evidence of intrinsic acts (sometimes denominated

“res gestae” evidence) is admissible, because it is “inextricably

intertwined with the charged offense .. . .” 2 Weinstein on

Evidence § 404.20[2}[b] (2d ed. 2004); see, e.g., 18 U.S.C.

§ 924(c)(1)(a) (evidence of use, brandishing, or discharge of

deadly or dangerous weapon or firearm is proved at trial in

23

relation to crime of violence or drug trafficking crime). A

significant variety of extrinsic evidence is also admissible.

2 Weinstein § 404.20[2][c]; see, e.g., Taylor, 17 F.3d at 338

(admission of evidence of uncharged Ecstasy in support of

cocaine conspiracy); Scop, 940 F.2d at 1008-09 (admission of

evidence of uncharged stock manipulation in securities fraud

case); Gonzalez, 921 F.2d at 1546 (evidence of defendant’s

uncharged activities as a pilot admissible to prove RICO

charge); Fed. R. Evid. 404(b) (evidence of other wrongs and

acts admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake).

Certainly, the jury can be instructed on the law and can

return verdicts with appropriate findings on those facts. Jury

instructions can be readily adapted from the U.S. Sentencing

Commission’s Guidelines Manual. Adapting verdict forms to

reflect the jury’s appropriate findings has precedent in precisely

this area. “There are classes of cases . . . where special verdicts

appear to be essential if the court is to exercise its sentencing

powers upon conviction.” 26 Moore's Federal Practice,

Criminal Procedure § 631.03[2] (3d ed. 2004) (citing United

States v. McNeese, 901 F.2d 585, 605-06 (7th Cir. 1990);

United States v. Stassi, 544 F.2d 579, 583 (2d Cir. 1976)). Such

forms are especially appropriate where, under the charged

conduct, there are “varying penalties,” or “penalties differ,” or

a “single act [is] committed by alternative means” /d. (citing

cases).

Even the current Guidelines Manual recognizes that special

verdict forms are appropriate for a proper sentencing, at least in

the case of hate crimes. In such cases, the Manual states, the

jury must make a specific verdict finding, beyond a reasonable

doubt, that the defendant selected the victim because of race,

color, religion, national origin, ethnicity, gender, disability, or

24

sexual orientation. U.S.S.G. § 3A1.1(a) (Nov. 2003). And, at

least since Cotton, verdict forms in federal narcotics

prosecutions have required jurors to designate drug type and

quantity. Otherwise, the enhanced statutory sentence range

cannot be applied.

As in the case of B/akely-compliant indictments, real-world

practice proves that Blakely-complaint jury trials are readily

assimilated into federal criminal practice. Consider, for

example, United States v. Carlos Cardenas, et al., Case No. 03-

20450-CR-GOLD(s) (S.D. Fla.), available at http://pacer.flsd.

uscourts.gov (Local Option Images). This multi-defendant,

multi-count, money laundering and MDMA/Ecstasy distribution

conspiracy prosecution was completed less than a month after

Blakely was decided, yet both the government and the district

judge readily adapted to its requirements. The government

introduced evidence to support enhancement facts, the court

instructed the jury, fashioned appropriate special verdicts, and

a portion of the verdict was returned in bifurcated jury

deliberations. Three defendants were convicted ofall counts, id.

at docket entry (“DE”) 657-59; one defendant had split verdicts,

convicted on some counts and acquitted on others, id. at

DE 660; and one defendant was acquitted of all counts, id. at

DE 655. The guilty verdict forms required special findings,

including a multiple-choice selection from many possible

ranges of pill quantity, corresponding to the possibilities under

U.S.S.G. § 2D1.1; the jury chose an appropriate pill quantity

range on the guilty verdict forms. /d. at DE 657-60. The money

laundering verdicts required the jury to select the means,

knowledge, and intent with which the crimes were committed,

as well as to choose the value of the laundered funds, from a list

comparabic to the Guidelines ranges; the jury again made

appropriate selections. /d. at DE 657-59. After the initial

verdicts were returned, the district court had the jury deliberate

25

again, this time to deliver special jury verdicts concerning the

amount of funds laundered, another fact that determines

guidelines sentencing. The jury deliberated and filled in by hand

the amounts relating to each count: $1 1,340.00, $3,250.00, and

$14,5990 on one verdict; $0 on the other.

The trial lasted 25 days. Jd. at DE 661. The first jury

deliberation was completed in less than two trial days, while the

bifurcated second stage lasted a day. Jd. at DE 661, 665. The

only jury instructions added to satisfy Blakely were these two

brief passages. First:

If you find the defendant guilty of this count, you are

further instructed to select the number of pills

attributable to the defendant on the verdict form. The

number of pills attributable to the defendant is the

actual number of pills the defendant possessed.

Id. at DE 653, Inst. 13 (conspiracy to possess with intent to

distribute MDMA/Ecstasy), Inst. 15 (possession with intent to

distribute MDMA/Ecstasy). Second:

In the verdict form you will be asked to specify the

amount of currency involved in each count that you find

the defendant guilty of violating. Obviously, if you find

the defendant “not guilty” it will not be necessary for

you to specify any amount.

Id. at DE 653, Inst. 17A (money laundering and conspiracy to

money launder).

None of this should be surprising. Jurors in federal civil

’ cases are called upon to decide individual liability, to determine

loss or damages, and to apportion responsibility. Often, those

26

are complex cases. Yet, there is no surprise when jurors fulfill

their duty in the civil case setting.

There may, of course, be cases in which the enhancement

evidence becomes unduly prejudicial, making it difficult for

jurors to render impartial verdicts. But such concerns have long

been addressed in the federal courts. See Fed. R. Evid. 403

(authorizing court to exclude relevant evidence if unduly

prejudicial). In the event that required enhancement evidence

threatens to prejudice the determination of guilt or innocence,

the district court and defendant have two options, stipulation to

the fact (if that is appropriate) under Old Chief v. United States,

519 U.S. 172 (1997) (holding it an abuse of discretion under

Rule 403 to disallow defendant’s stipulation to prior felony

convictions where such convictions are an element of the

offense), or bifurcation of the trial.

A district court’s authority and discretion to bifurcate a trial

stem from two sources. First, Federal Rule of Evidence 61 1(a)

gives a court the authority to control the mode and order of the

presentation of evidence. Geders v. United States, 425 U.S. 80,

86 (1976) (“The trial judge must meet situations as they arise

and to do this must have broad power to cope with the

complexities and contingencies inherent in the adversary

process. To this end, he may determine generally the order in

which parties will adduce proof; his determination will be

reviewed only for abuse of discretion.””). Second, Federal Rule

of Criminal Procedure 14(a) gives a court authority and

discretion to contro] the format of a trial, providing that the

Court “may order separate trials of counts . . . or provide any

other relief that justice requires.” See Zafiro v. United States,

506 U.S. 534, 538-39 (1993) (Rule 14 “leaves the tailoring of

the relief to be granted [on a motion to sever], if any, to the

district court’s sound discretion”); see also United States v.

27

Joshua, 976 F.2d 844, 847-48 (3d Cir. 1992) (approving district

court’s decision to bifurcate, rather than sever, felon-in-

possession count from armed bank robbery count); United

States v. Carlson, 423 F.2d 431, 435 (9th Cir. 1970) (in

reviewing district court’s refusal to bifurcate one defendant’s

insanity defense from other defendants’ general “not guilty”

defense, stating that “[t]he trial court undoubtedly had authority

to bifurcate the trial if it had wished to do so”).

Blakely assimilates into the sentencing process as well.

Admittedly, the Sentencing Commission thought that judges

should make many of the findings that Blakely allots to juries.

But nothing in the Sentencing Reform Act of 1984 required the

precise federal sentencing guidelines now in effect. The choice

of judicial factfinding, instead of jury factfinding, was simply

a philosophical choice of the United States Sentencing

Commission to adopt a “real offense” system instead of a

“charge-offense” system. See United States Sentencing

Commission, Guidelines Manual § 1A1.1, comment. (Chapter

One — Introduction and General Application Principles) (Nov.

2003) at 4-5. The Commission chose, as a matter of policy, a

preponderance of evidence standard for factual disputes because

it predicted that the lesser standard “is appropriate to meet due

process requirements.” U.S.S.G. § 6A1.3, p.s., comment. It

could have chosen jury factfinding and the reasonable doubt

standard that Blakely now requires. To be sure, neither the Act

nor the guidelines prevent the jury findings required by Blakely.

For those many cases in which no shift in maximum

sentence can occur, the guidelines continue to operate as before.

For those few cases in which a shift does occur as a result of a

jury finding, the guidelines also continue to operate as before,

except the jury’s findings lock in the statutory maximum

28

sentence.'* Blakely’s requirements are consistent with both the

enabling legislation and the guidelines.

Similarly, nothing in Federal Rule of Criminal Procedure 32

prohibits the assimilation of Blakely. For those cases without

possibility of an increased statutory maximum, the rule

functions as before. For those cases in which the jury makes a

positive finding for an indicted enhancement factor, the rule

also functions as before. And for those cases in which the jury

makes a negative determination, the judge is bound by that

decision in setting the statutory maximum sentence, eliminating

any need for a judicial determination because “the matter will

not affect sentencing.” Fed. R. Crim. P. 32(i)(3)(B); see

U.S.S.G. § 5G1.1(a) (guideline range cannot exceed “statutorily

authorized maximum penalty”).

Only some of the 3% of sentencings that follow a trial will

involve any enhancing facts’ and only those are affected by the

tial requirements of Blakely. For them, the government must

prove its case beyond a reasonable doubt, and the jury (or judge,

in a non-jury trial) must make findings about the indictment’s

allegations. There is nothing in the law or structure of the

criminal justice system that prevents these processes.

'S The judge does, however, retain authority to pretermit or override the

jury’s verdict, based upon insufficiency of evidence, under Federal Rules of

Criminal Procedure 29, 33 and 34.

'* Many offenders do not receive upward adjustments to their base

offense levels. Very few offenders — less than 1% in most categories —

receive upward adjustments under Chapter Three. Sourcebook of Federal

Sentencing Statistics (2002) (Table 18). Upward departures under Chapter

Five also occur very rarely, in only 0.8% of cases. /d. (Figure G).

29

D. Rather than cause chaos, applying Blakely to

guidelines practice enhances the accuracy, integrity,

and public reputation of sentencing in federal

courts.

“There is always in litigation a margin of error, representing

error in factfinding . . . .” Speiser v. Randall, 357 U.S. 513,

525-26 (1958). In a criminal case, “this margin of error is

reduced by . . . persuading the factfinder . . . beyond a

reasonable doubt.” /d., cited with approval in In re Winship,

397 U.S. 358, 364 (1970). The reasonable doubt standard

“impresses on the trier of fact the necessity of reaching a

subjective state of certitude of the facts in issue.” Winship, 397

U.S. at 364, cited with approval in Ivan V. v. City of New York,

407 U.S. 203, 205 (1972). This state of certitude is just as

valuable in the determination of punishment as it is in the

determination of guilt or innocence. “The genius of our criminal

law is violated when punishment is enhanced in the face of a

reasonable doubt as to the facts leading to enhancement.”

People v. Reese, 179 N.E. 305, 308 (N.Y. 1932) (Cardozo,

C.J.).

Blakely promotes accuracy in sentencing precisely because

it requires factfinding beyond a reasonable doubt. Accuracy in

factual determinations that may alter the statutory maximum

sentence reduces unwarranted sentencing disparities, honoring

one of the overriding objectives of Congress in adopting a

guidelines system. Applied to the federal guidelines, Blakely

ensures that defendants tried and convicted of similar crimes

wiill receive similar sentences. In doing so, Blakely’s application

enhances the integrity and public reputation of federal

sentencing proceedings.

30

CONCLUSION

Pased upon the arguments and citations of authority of the

respondents and amici, it is respectfully requested that the Court

apply the principles of Blakely v. Washington to practice under

the United States Sentencing Guidelines.

Respectfully submitted,

NATIONAL ASSOCIATION PAUL M. RASHKIND

OF FEDERAL DEFENDERS Assistant Federal Public Defender

Carol A. Brook, President Counsel of Record

Henry J. Bemporad Office of the Federal Public

Frances H. Pratt, Co-Chairs, Defender

Amicus Committee 150 West Flagler Street, Ste 1500

Miami, Florida 33130

(305) 536-6900

September 2004