Sunday, September 2, 2007

11th Circuit Checks Government Power in a 5K1.1 Decision

The 11th Circuit came down with a case that has an interesting 5K1.1 issue. Although the case itself is not a white collar case, the holding clearly could apply in this context.  The 11th Circuit reversed and remanded a case (U.S. v. Dorsey) where the accused argued that he was denied the government's filing of a 5K1.1 motion when he decided to proceed to trial. The court stated:

"We have not previously considered whether the government’s refusal to file a § 5K1.1 motion because the defendant exercised his right to a jury trial constitutes an unconstitutional motive. We now hold that it does, but we are unable to determine whether that is what took place in this case because of insufficient fact-finding at the district court."

The court also stated:

"Accordingly, we agree with our sister circuits and hold that refusing to file a section 5K1.1 motion in retribution for exercising the Sixth Amendment right to a trial by jury is an unconstitutional motive under Wade."

The court remanded the case for fact finding to determine whether there was an improper deprivation of the filing of a 5K1.1 motion. The opinion can be found here.  Attorney Mark P. Rankin's (Carlton Fields) Brief can be found at 2006 WL 4471028.

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/09/5k11-motion.html

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