Pubdate: Mon, 20 Sep 2004
Source: Wall Street Journal (US)
Copyright: 2004 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Laurie P. Cohen and Gary Fields, Staff Reporters
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/meth.htm (Methamphetamine)

REASONABLE DOUBTS

How Judges Punish Defendants For Offenses Unproved in Court

Stories of Five Convicts Show That Charges in Dispute Can Multiply Prison Time

The Supreme Court Steps In

Laurence Braun learned the hard way that being acquitted of a crime doesn't 
always stop you from being punished for it.

Mr. Braun, former co-owner of a New York company that defrauded the U.S. 
Postal Service, was convicted by a New York federal jury in 2002 of 
racketeering and conspiracy. Had he been punished just for those crimes, he 
probably would have gotten around 21/2 years in prison.

But the federal judge who sentenced Mr. Braun also decided he should serve 
time for many of the 23 counts of which he was acquitted, calling it 
"relevant conduct." This last-minute add-on -- called an enhancement -- 
doubled Mr. Braun's prison sentence to five years.

"The government gets two bites at the apple," says Thomas C. Goldstein, a 
Washington, D.C., litigator. "Prosecutors can put stuff before a jury and 
if they're unsuccessful because the evidence is tossed or the jury acquits, 
they can ask the judge to find the very same wrongdoing at sentencing."

Now the Supreme Court is weighing whether the federal rules on enhancements 
violate the Constitution. The high court already determined on June 24 that 
similar rules in the state of Washington were unconstitutional. The court 
said any factor, other than a prior conviction, that increases a criminal 
sentence must be admitted by the defendant in a plea deal or proved to a 
jury beyond a reasonable doubt. That 5-4 ruling, in the Blakely v. 
Washington case, has already achieved landmark status although it 
technically affected the guidelines of just a single state. Federal judges 
have cited it in dozens of legal opinions.

Since Blakely, Mr. Braun, 61 years old, and thousands of other federal 
defendants have challenged their sentences, arguing that "relevant conduct" 
and other findings by judges violated their Sixth Amendment right to a jury 
trial. More than 44% of all cases in 2002, the last fiscal year for which 
data are available, had enhancements that may now be thrown into question 
by the Blakely ruling, according to a U.S. Sentencing Commission internal 
memo. Because of the Blakely tumult and objections raised by many of the 
250 defendants sentenced daily, the Supreme Court agreed to hear arguments 
Oct. 4 on the federal sentencing guidelines. It is expected to rule quickly 
whether they are constitutional.

The U.S. Sentencing Guidelines, which took effect in November 1987, were 
intended to make sentencing fairer by assigning similar punishments for the 
same crime. Previously judges had wide discretion and would give greatly 
varying sentences based on their personal inclinations.

But many federal judges and defense lawyers say the guidelines have failed 
to achieve their purpose. The system harshly punishes many people for 
crimes that juries never considered. And now prosecutors are the ones with 
wide discretion: They can add decades to a sentence, or keep them off, 
based on what they tell a judge about a defendant prior to sentencing.

The guidelines have the force of law. They work by assigning point values 
to federal crimes. Besides "relevant conduct," there are hundreds of 
sentence-boosting enhancements codified in the 1,800-page Federal 
Sentencing Guidelines Manual. The number of points rises, for example, if a 
judge finds that the defendant played a leadership role in the crime, used 
a special skill or targeted a victim deemed especially vulnerable. In many 
instances, the point score is boosted based on alleged offenses that never 
were proved or that defendants weren't even charged with.

All it takes to have an enhancement tacked on is a sentencing judge's 
finding based on a "preponderance of evidence." That is a much lower 
standard than the one for a guilty verdict at trial, when a jury must 
conclude that the defendant committed the crime "beyond a reasonable doubt."

Of course, prosecutors have to secure a conviction or a guilty plea before 
any enhancements kick in. So it's not as if innocent people routinely are 
locked up.

But judges say case law and new statutes have made it burdensome in recent 
years to depart from the guidelines, even if the stipulated sentence seems 
disproportionate to the crime. Judges usually must hold a lengthy hearing 
or several hearings to justify a departure, and even then they're likely to 
be challenged on appeal.

If the Supreme Court holds that the federal sentencing guidelines are 
unconstitutional, few expect the sentences of all the nation's 180,000 
federal prisoners to be up for review. But constitutional-law specialists 
say courts will likely be forced to reconsider the sentences of thousands 
of prisoners who have appeals pending.

Here is a look at five federal defendants who stand to have their sentences 
reviewed if the Supreme Court decides that the federal sentencing system 
ought to be held to the same standard as that of Washington state:

Yves Darbouze

A Web-site designer, Yves Darbouze founded his own company and won the 
acclaim of Forbes magazine as a post-Internet-bubble success. In September 
2002, police found a suitcase filled with 16 kilograms, or about 35 pounds, 
of cocaine in a neighbor's apartment. The neighbor said the suitcase was 
Mr. Darbouze's. The neighbor pleaded guilty to a lesser offense and 
testified for the prosecution when Mr. Darbouze went on trial in Miami 
federal court in March 2003. Mr. Darbouze said he was innocent.

The jury convicted Mr. Darbouze of attempting to possess less than five 
kilograms of cocaine. But it acquitted him on the government's more serious 
charges that Mr. Darbouze was involved in a conspiracy with the neighbor 
and that he tried to possess more than five kilograms of cocaine. A lawyer 
for Mr. Darbouze, Richard C. Klugh Jr., says the charge for which he was 
convicted would normally carry prison time of no more than seven years.

Then came the probation officer's presentencing report. Federal law 
requires these officers to draft reports that reflect a defendant's prior 
criminal record, family background and financial condition. The officers 
then calculate what the defendant's sentence should be under the federal 
guidelines, taking into account the specific offense of the conviction plus 
the enhancements.

Probation officers aren't part of the prosecution team: They work for the 
judge. But in practice, prosecutors supply most of the information for the 
probation officers' initial drafts. A defendant can then raise objections 
to the draft, but lawyers often counsel against that because they fear the 
defendant will lose credit in sentencing for accepting responsibility for 
their crimes. (See related article1.)

In the end, "probation reports usually reflect the government's point of 
view," says U.S. District Judge Jed S. Rakoff of New York, a critic of the 
current guidelines system. Time-pressed judges usually accept their 
probation officers' reports.

Enhancements tend to hit defendants who go to trial, such as Mr. Darbouze, 
harder than those who agree to a plea bargain. "Many prosecutors will 
ignore or withhold enhancements from probation officers and judges as a 
favor to defendants who plead guilty and spare the government the effort of 
going to trial," says Tony Garoppolo, chief probation officer of the 
Eastern District of New York.

For the purposes of sentencing, the report on Mr. Darbouze held him 
accountable for attempting to possess more than 15 kilograms of cocaine. 
And the probation officer determined that Mr. Darbouze knew or should have 
known about a gun in his neighbor's home -- even though the jury found Mr. 
Darbouze not guilty of conspiring with the neighbor. Adding up the 
enhancements, the report said Mr. Darbouze's sentence under the guidelines 
should be between 15 years, eight months and 19 years, seven months.

Mr. Darbouze's lawyer objected to the report, noting the contradictions 
with the jury's verdict. "I am living the American dream and the American 
nightmare at the same time," Mr. Darbouze told U.S. District Judge Shelby 
Highsmith.

Judge Highsmith said he didn't have much of a choice. His sentence: 15 
years and eight months. "That's the way the system is," Judge Highsmith 
wrote in delivering the sentence. "I encourage anyone who is a citizen of 
this country to take a long, hard look at what we call sentencing 
guidelines." The judge called Mr. Darbouze, now 31 years old, "an excellent 
example of perseverance in his occupation" and "worthy of applause ... 
prior to this incident."

Informed of the sentence recently, several jurors in the case were 
distressed. "Some murders don't even get that," said Jean Sardinas, 
managing director for an optical company. She says five years would have 
been a stiff sentence for Mr. Darbouze. Juror John Elam, a Miami retiree, 
says when he voted to convict the defendant, "I thought he'd get 18 months."

Shirley Maye Rollow

In its legitimate usage, pseudoephedrine is a decongestant. It also is a 
major ingredient in methamphetamine, or "speed," an addictive stimulant 
drug that can be made in illegal labs and sold on the street.

Shirley Maye Rollow, 55, was indicted by an Oklahoma City grand jury in 
January 2002 on charges of conspiring to possess and distribute 
pseudoephedrine for use in making illegal drugs. At trial, Ms. Rollow 
testified in her own defense. She said she was employed by two companies to 
pick up pseudoephedrine from legal distributors and deliver it to a 
warehouse for future distribution to convenience stores. A federal jury 
didn't buy the explanation. She was found guilty on all nine counts in 
October 2002.

Although the jury wasn't required to determine the amount of 
pseudoephedrine Ms. Rollow sold, a 41-page presentence report held her 
responsible for 3,438 kilograms, or 3.78 tons, which would boost her 
sentence to at least eight years under the federal guidelines. The report 
also slapped an enhancement on Ms. Rollow for "obstruction of justice," 
saying that, "according to the government," her testimony at the trial was 
false.

Yet another enhancement resulted from a finding that Ms. Rollow "functioned 
as a leader and organizer" of the crime, although she said she was just an 
employee of the two companies distributing the chemical. The jury hadn't 
ruled on that point. Without enhancements or a specific amount of drugs 
sold, the guidelines would have recommended a sentence of 10 months to 16 
months.

Ms. Rollow's lawyer, Bill Zuhdi, filed more than 60 objections to the 
presentencing report. U.S. District Judge Wayne E. Alley overruled all of 
them, sentencing Ms. Rollow to 15 years in March 2003.

"Probation officers go to town and kill defendants who go to trial," Mr. 
Zuhdi asserts. "If you go to trial and lose, you get the book thrown at you 
-- without having a jury consider all the facts of your case. It dissuades 
you from your constitutional right to go to trial."

Robert McCampbell, the U.S. attorney in Oklahoma City, responds, "The facts 
given to probation officers for presentence investigation reports are the 
same whether a defendant goes to trial or not." He notes that defendants 
can always challenge the report.

Jimmy Bijou

In February 2002, law-enforcement officers were looking for Jimmy Bijou. He 
had already been convicted three times of possessing crack cocaine and 
served his time. Now the cops were on his trail again over a January 2001 
incident in which he eluded a police officer chasing him and fired a gun in 
the officer's direction.

Officers found Mr. Bijou at an apartment in Charlotte, N.C., and arrested 
him. Inside his home, they discovered crack cocaine, a pistol and 
ammunition. The officers who found the crack said it weighed 74 grams, or 
about 2.6 ounces. Weeks later, a police-department drug analyst weighed 
what the government said was the same cocaine, and this time it measured 
54.7 grams. Three days before Mr. Bijou's September 2002 trial in federal 
court in Charlotte was to begin, a police analyst and Mr. Bijou's lawyer, 
Noell Tin, weighed the crack cocaine. This time, the drugs weighed 67.4 grams.

Mr. Tin argued it was impossible that the drugs the government sought to 
introduce as evidence in the trial were the same drugs seized from the 
apartment. U.S. District Judge Richard L. Voorhees agreed, finding it was 
"improbable that it's the same item," and excluded the government's drug 
evidence.

Left without that key evidence, the government dismissed the drug counts. 
Mr. Bijou, who is now 31, pleaded guilty to the remaining counts including 
possession of a firearm and ammunition by a convicted felon stemming from 
his February 2002 arrest and possession of a firearm by a convicted felon 
in connection with the January 2001 incident.

For the charges he admitted to, Mr. Bijou's guideline sentence would have 
been less than nine years. But prosecutors often don't tell defendants what 
they'll actually face when they plead guilty, as 97% of federal defendants 
do. "Every defense lawyer lives in dread of enhancements that he or she 
hasn't anticipated coming in at sentencing," says Jon Sands, the head of 
the federal defenders office in Phoenix.

The presentence report said Mr. Bijou's sentence should be enhanced because 
of the cocaine allegedly found with him when he was arrested. The probation 
officer, faced with the conflicting versions of how much that cocaine 
weighed, wrote in the report: "In the light most favorable to the 
defendant, the lesser weight is considered for guideline applications."

The probation officer then invoked a guideline provision that creates a 
special kind of enhancement for firearms possession when the possession is 
related to other offenses. This provision, known as "cross-referencing," 
directs the judge to set the sentence at the guidelines level for the other 
offense -- provided that the other offense carries a weightier sentence 
than gun possession. In Mr. Bijou's case the other offense was cocaine 
possession.

The guidelines call for a sentence of 171/2 years to nearly 22 years for a 
prior multiple felon who possesses 54.7 grams of crack cocaine. Judge 
Voorhees found by a preponderance of evidence that Mr. Bijou had committed 
the identical drug offense that the government had decided against trying 
him for. The sentence: 20 years.

"The same judge who excluded tainted drug evidence from the jury turned 
around at sentencing and used the same evidence to double the applicable 
sentencing range," says Mr. Bijou's lawyer, Mr. Tin. Judge Voorhees 
declined to comment.

Carla Lyn Clifton

A former criminology student, Carla Lyn Clifton was filling up her car at 
an Albuquerque, N.M., gas station on her way to a night job in January 2003 
when two Drug Enforcement Administration agents approached her. The police 
had arrested Jaime Mendoza, a boyfriend of Ms. Clifton's cousin, and found 
that he used a cellphone to arrange crack-cocaine sales. The cellphone was 
listed as being owned by Ms. Clifton.

Ms. Clifton confirmed the agents' suspicions: She told them that she had 
bought the phone as a favor to Mr. Mendoza, who had bad credit. Although 
the phone was in her name, he was the one using it, she told the agents. 
But later, when she testified before a federal grand jury, she reversed 
herself, saying that she was the only one using the phone. Prosecutors 
charged Ms. Clifton with perjury, arguing in court documents that the 
change in her story made it harder to link Mr. Mendoza to the cocaine 
dealing. Ms. Clifton was convicted by a federal jury in October 2003.

Sentencing guidelines for perjury suggested Ms. Clifton, who is now 23, 
would get about a year in prison. But the probation officer invoked another 
kind of "cross referencing" enhancement in the guidelines. This one says 
that if someone commits perjury tied to a criminal act, he or she must be 
sentenced based on that crime, assuming the crime carries a heavier 
sentence than perjury.

The officer's judgment meant that for sentencing purposes, Ms. Clifton was 
now being treated as a cocaine trafficker -- even though the prosecutors 
hadn't linked her to the cocaine dealing by her cousin's boyfriend. It now 
appeared that Ms. Clifton would spend at least 10 years in prison.

At the first sentencing hearing in February, Judge William Johnson, a 
George W. Bush nominee, was incredulous. He delayed the proceeding to look 
for ways of reducing the sentence while staying within the guidelines. 
Ultimately Judge Johnson decided that although Ms. Clifton would still be 
sentenced as a cocaine trafficker, she would be considered a "minimal 
participant." Her sentence: three years and five months.

"My preference on this would have been to simply impose the guideline 
sentence for the offenses of perjury," Judge Johnson said at the March 
sentencing. "I note the defendant had no involvement in the underlying drug 
offense other than providing a single cellular telephone."

Ms. Clifton, now in prison, is appealing the sentence. The federal appeals 
court is waiting for the Supreme Court decision before deciding her fate.

Laurence Braun

American Presort Inc. was a New York-based company that sorted metered mail 
for corporate clients and then submitted the mail, about two million 
letters daily, to the U.S. Postal Service. Its purpose was to help 
customers get discounted rates for the presorted mail.

Laurence Braun was arrested in April 1999 and charged on 42 counts. The 
government alleged that American Presort defrauded the Postal Service of 
more than $20 million, partly by hiding unsorted mail at the bottom of 
large bins, and defrauded private customers of nearly $1 million by 
inflating their bills.

Mr. Braun, American Presort's treasurer, owned the company with two 
brothers, Philip and Steven Fruchter. Philip Fruchter was convicted by a 
jury and received a sentence of four years and three months. His brother 
got a 31/2-year sentence in a plea bargain.

Mr. Braun went to trial in a New York federal court. He was convicted of 
racketeering and conspiracy to defraud American Presort's customers. 
However, Mr. Braun was acquitted on 23 other counts of mail fraud against 
the post office and false statements to the post office. He maintains his 
innocence and is appealing the convictions.

Mr. Braun's June 2002 presentencing report held him responsible for total 
losses to the Postal Service and customers of more than $21 million -- even 
though the jury hadn't found him guilty of defrauding the Postal Service. 
The guidelines peg the length of a defendant's sentence to the amount of 
the fraud. Therefore, a $21 million fraud calls for much more time than a 
$1 million fraud.

The sentencing in March of former Dynegy Corp. executive Jamie Olis shows 
how the dollar figure can affect a sentence. Mr. Olis was convicted for his 
role in a fraud case. A Houston federal judge determined the loss from the 
fraud to be $105 million. That alone added more than 10 years to his 
sentence. Combined with other enhancements to his sentence, Mr. Olis ended 
up with more than 24 years in prison although the crime for which he was 
convicted carried minimal prison time. He is appealing the sentence.

At Mr. Braun's sentencing, U.S. District Judge Michael Mukasey of Manhattan 
decided that the amount of the Postal Service fraud for which he was 
acquitted counted as "relevant conduct." Mr. Braun's presentence report 
recommended a sentence of 61/2 years. In an unusual move, Judge Mukasey 
departed from that recommendation, acknowledging the acquittal and the 
potential for error in the government's loss calculations. Still, he 
sentenced Mr. Braun to five years -- more than anyone else indicted in 
connection with the case.

Mr. Braun entered prison in November 2002. Last month, the Second Circuit 
Court of Appeals released him on bond, pending his challenge in the wake of 
the Blakely ruling. Without enhancements, Mr. Braun's prison term probably 
would have ended late this year or early next year counting reductions for 
good behavior, says his lawyer, Joshua Dratel. The appeals court allowed 
his provisional release because if he had to wait in prison for all the 
legal maneuvering to be completed, he might end up serving more than his 
rightful sentence.

If the Supreme Court decides to uphold the federal sentencing guidelines, 
Mr. Braun will likely be sent back to prison to serve the remainder of his 
five-year sentence. If it overturns the guidelines, he's likely to walk free.

[sidebar]

The System

Facts on the federal sentencing guidelines:

Year took effect

1987

Percentage of defendants who went to trial before the guidelines took effect

12.6%

Percentage after

2.9%

Number of sentences under guidelines in fiscal 2002

64,366

Percentage of sentences enhanced

44.2*

Percentage of current prisoners serving 10+ years

37.8

*Includes only cases with identifiable enhancements

Sources: Bureau of Justice Statistics; U.S. Sentencing Commission; Bureau 
of Prisons