Judge Gertner on drug statute and burden of proof
While I spent Wednesday enjoying Carolina golf, it appears that the circuit courts were also taking a bit of a Booker break (which was well-deserved after Tuesday’s Booker circuit mania). But, joyfully, the ever dynamic Mass US District Judge Nancy Gertner brought some Booker excitement from the district courts through her opinion in US v. Malouf, No. 03-cr-10298 (D. Mass. June 14, 2005). As usual, Judge Gertner covers so much ground that her Malouf opinion defies summary, but I can note the decision is especially strong on interpreting § 841 charges and applying an enhanced burden of proof. Here is Judge Gertner’s “teaser” in Malouf:
[T]he sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court’s rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?
Download gertner_maloufsentenmemojune14.pdf
In addition to reading Malouf for answers to these questions, anyone interested in reviewing more broadly some of the modern works of Sentencing Hall of Fame Judge Gertner should explore: