More on having more in indictments

As noted before here, the legitimacy of Blakely-ized indictments depends in large part on whether (and how) Blakely impacts federal guideline sentencing. In a thorough recent decision covering these realities, Magistrate Judge Stephen L. Crocker in US v. Dennis, 2004 U.S. Dist. LEXIS 19919 (W.D. Wisc. Oct. 1, 2004), recommended denying a motion to strike sentencing allegations from a Blakely-ized indictment. Here is some of the key language from the Magistrate’s report and recommendation:

The bottom line is that the current law of this circuit requires the government to include sentencing allegations in its indictments even though it doesn’t want to, and none of the defendant’s counter-arguments are sufficiently persuasive to justify striking the allegations….

Defendants argue that this court should strike the two sentencing allegations for three reasons: 1) The allegations are prejudicial surplusage; 2) The government does not have statutory authority to include sentencing allegations in an indictment; and 3) Presenting sentencing allegations to a jury for proof beyond a reasonable doubt to increase defendants’ sentences violates the constitutional principles of separation of powers and the prohibition against the legislative branch delegating its powers to the executive branch. The government demurs, noting that it has no choice but to include sentencing allegations in the indictment under the current law of this circuit. The government is correct.