Pubdate: Tue, 12 Dec 2000
Source: Lincoln Journal Star (NE)
Copyright: 2000 Lincoln Journal Star
Contact:  PO Box 81609, Lincoln, NE 68508
Fax: (402) 473-7291
Feedback: http://www.journalstar.com:80/info/about_ljs/letform
Website: http://www.journalstar.com/
Author: Butch Mabin

DRUG SENTENCE FINDING REJECTED

U.S. District Court Judge Richard G. Kopf has rejected a lower court
recommendation that a Lincoln man serving a life sentence for dealing drugs
either be resentenced or retried in light of a recent U.S. Supreme Court
ruling.

Kopf said the Supreme Court ruling, which changes the way federal
prosecutors try drug cases, did not apply to the government's case against
Jimmy C. Johnson, whom Kopf sentenced in 1998 for distributing crack
cocaine.

The judge said the ruling, Apprendi vs. New Jersey, decided by the high
court this summer, was not retroactive. Kopf's order Thursday rejected a
lower court finding that Johnson should receive a new sentence or trial
because of the Apprendi case.

In November, U.S. Magistrate Judge David L. Piester said Apprendi required
the government to specify drug quantities in criminal indictments.

Piester also said the Apprendi case required prosecutors to prove to juries
beyond a reasonable doubt the amount of drugs possessed or sold by
defendants. Before Apprendi, judges determined drug quantities using
"preponderance of the evidence" as their standard of proof.

Johnson alleged that the government did not specify drug quantities in its
indictment against him, nor did it prove the quantities to the jury using
the "beyond a reasonable doubt" standard.

In his eight-page memorandum rejecting Piester's recommendation, Kopf said
the ruling in the New Jersey case was not retroactive because it does not
call into question the basic fairness of Johnson's conviction.

"Essentially, the shifting of an element of the offense from the judge to
the jury, and requiring proof of such element beyond a reasonable doubt
rather than by a preponderance of the evidence, does not directly relate to
the accuracy of the conviction or sentence, nor does it implicate
fundamental fairness," Kopf wrote.

A federal jury convicted Johnson in September 1997 of conspiracy to
distribute and possession with intent to distribute crack cocaine. Kopf
sentenced him to life in prison, based partly on his post-trial finding on
the quantity of crack Johnson sold.

The judge noted in his memorandum that the charge on which Johnson was
indicted carried a maximum penalty of life in prison.
- ---
MAP posted-by: Andrew