Tuesday, February 1, 2005

The Booker Effect on the Nigerian Barge Trial

The so-called Nigerian Barge Trial that resulted in the conviction of executives from Enron and Merrill Lynch included a post-verdict proceeding -- triggered by the Supreme Court's Blakely decision -- in which the government "proved" the amount of the loss and the leadership role of certain defendants to the jury.  The jury found that the loss caused by the defendants was $13.7 million, which would have triggered a sentencing range under the Federal Sentencing Guidelines of approximately 63-78 months.  U.S. District Judge Ewing Werlein has now announced that, after the Supreme Court's decision in Booker, he is not bound by the jury's sentencing determinations when he announces the sentences in the case, currently set for March.  Doug Berman on Sentencing Law & Policy, who first posted on this report, states here that "[m]y instinct is to say the result of the Nigerian Barge 'sentencing trial' should still be relevant to advisory guideline calculation, but it will now be especially interesting to see how this sentencing gets handled in March." It is hard to see how a judge can ignore a jury finding, especially one based on a finding of fact beyond a reasonable doubt, but we're in a brave new (Booker) world these days. An article in the Houston Chronicle discussing Judge Werlein's decision is here. (ph)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/02/the_booker_effe.html

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