Friday, December 10, 2004

More Blakely Delay

The Supreme Court's (much lamented) delay in issuing a decision in Booker and Fanfan regarding the effect of its Blakely decision on the Federal Sentencing Guidelines has affected the final sentencing of the two lawyer-defendants convicted of mail fraud in U.S. v. Rybicki.  The lawyers were convicted in 2000 of engaging in an (alleged) honest services fraud involving a kickback scheme to settle insurance claims.  The conviction is the subject of an exhaustive en banc opinion by the Second Circuit ( on a 7-4 vote with dissenting opinions) holding that the honest services form of fraud is not unconstitutionally vague (354 F.3d 124 (2d Cir. 2004). [Note: Professor Ellen Podgor wrote an amicus brief on behalf of the NACDL and appeared at the oral argument in support of the defendants' position that the statute is unconstitutionally vague.]  The Supreme Court denied certiorari in the case in October of this year.  With the conviction final, the government has sought to have the court order the defendants to being their one year terms of imprisonment.  However, relying on its decision in U.S. v. Mincey, 380 F.3d 102 (2d Cir. 2004), to postpone all sentencings until the Supreme Court resolves the Blakely issue, the Second Circuit has refused to issue a final mandate in the case permitting the imposition of the one year sentences.  According to an article in the New York Law Journal (Dec. 8), the government filed a declaration asserting that "While the defendants are within their rights to exhaust every possible avenue of appellate review, that process has now come to an end. The defendants should no longer be able to postpone serving their sentences for crimes that they committed more than a decade ago."  Part of the one-year sentence, however, was an increase for the lawyers for abuse of a special skill (and you thought law was easy), a determination made by the district court under the pre-Blakely federal sentencing procedure, so it certainly appears that an extension of Blakely to federal sentencing may have an effect on the sentences. (ph)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2004/12/more_blakely_de.html

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