Yesterday, I wrote about the United States v. Dazey, a case in which the Tenth Circuit held that enhancing a defendant's sentence by using facts found by a judge by preponderance (rather than a jury) does not violate the Sixth Amendment.
In response to the Dazey court, I wrote "This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence."
In United States v. Ruhbayan, the Fourth Circuit demonstrates why the Dazey court's holding was not fully complete and may be wrong. In Ruhbayan, the defendant was convicted of perjury and obstruction of justice in connection with a criminal trial. Even though Ruhbayan's indictment specified that he was charged under 18 USC 1512(b), which had a maximum sentence of only ten years, the district judge sentenced him to life in prison pursuant to 18 USC 1512(j). Ruhbayan, unlike Scooter Libby, received a life sentence pursuant to 18 USC 1512(j) for suborning perjury in his first criminal trial.
The Fourth Circuit upheld the sentence. The reasoning was based upon the fact that Ruhbayan's indictment did incorporate language from 1512(j), namely that the pejury or obstruction of justice occurred in a criminal trial. Because of this language, the jury implicitly made the finding beyond a reasonable doubt that Ruhbayan's conduct occurred during a prior criminal trial when it convicted him of the offense in the second indictment.
Therefore, the judge was free to impose life, a life sentence, afterall is stautorily authorized upon conviction of 1512(j).
The Fourth Circuit explained:
First, because Count Two of the 2002 indictment alleged the elements of the § 1512 offense and fairly informed Ruhbayan of the charge, it was sufficient to enable him to plead double jeopardy in any subsequent prosecution. See United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998) ("To pass constitutional muster, an indictment must (1) indicate the elements of the offense and fairly inform the defendant of the exact charges and (2) enable the defendant to plead
double jeopardy in subsequent prosecutions for the same offense."). Second, Count Two specified that Ruhbayan’s conduct occurred in connection with the First Trial. Indeed, the jury in the Second Trial was instructed on Count Two as follows:
Count 2 of the indictment charges that in or about May through August of 2000, . . . Ruhbayan[ ] did knowingly and corruptly persuade . . . Goodman[ ] to testify falsely in an official proceeding, namely his pending criminal trial in the United States District Court for the Eastern District of Virginia at Norfolk, entitled United States v. Ruhbayan, Criminal Number 2:00cr86, with intent to influence the testimony of that person in an official proceeding, namely his criminal trial, in violation of Title 18 of United Sates Code, Section 1512(b)(1).
Clearly, the issue of whether the conduct charged in Count Two occurred in connection with a criminal trial was a fact that would increase the penalty for that offense beyond the maximum Ruhbayan otherwise faced under § 1512(b). For that reason, that factual issue was appropriately submitted to the jury. The indictment and the instructions each identified the Count Two offense as related to the First Trial, and the jury could not have returned a guilty verdict thereon without so finding. Ruhbayan was thus subject to a maximum of life imprisonment under § 1512(j), because an offense charged in the First Trial involved use of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (citations omitted)
Because the trial court properly submitted to the jury the factual issue of whether the Count Two offense occurred in connection with the First Trial, no Apprendi error occurred. The sentencing court thus properly determined that the statutory maximum penalty on Count Two was life in prison.
This is the correct application of Apprendi, the 10th Circuit's holding in Dazey is imprecisely written or just plain incorrect.
Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.
Mr. Venie's website can be found at http://www.anothernotguilty.com
