More from the Seventh Circuit (and Judge Easterbrook)

Just out from the Seventh Circuit is US v. Messino, 02-1411 (7th Cir. Aug. 31, 2004), which provides more guidance on the holdings of Blakely and Booker. Though a quick analysis is hard because there are three defendants’ claims involved, it does not appear that any new ground is broken by the majority on basic guideline issues. But the opinion includes this interesting discussion about Blakey‘s effect (or lack of ) on forfeiture:

We have previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. United States v. Vera, 278 F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory maximum was supplied by the statute of conviction; Blakely‘s is external—the statutory maximum is found not in the criminal code, but instead, the sentencing guidelines. See Booker, 2004 WL 1535858, at *1. The criminal forfeiture provisions do not include a statutory maximum; they are open-ended in that all property representing proceeds of illegal activity is subject to forfeiture. Vera, 278 F.3d at 67321 U.S.C. § 853. Therefore, we conclude that Blakely, like Apprendi, does not apply to forfeiture proceedings.

In addition, Judge Easterbrook dissenting in part in Messino has a number of interesting and important points to make about plain error review and also burden of proof issues. Further commentary on Judge Easterbrook’s important (and contestable) insights will have to await another post late tonight.