 You're watching FJTN, the Federal Judicial Television Network. A federal judicial center production, charging and sentencing after Apprendi. Now from the studios of the Federal Judicial Center in Washington, D.C., our program moderator. Hello. I'm John Cook. On June 26th, the United States Supreme Court decided Apprendi v. New Jersey. Although several other decisions by the court received more attention at the time, in the six months since it was decided, Apprendi has generated more litigation and more discussion than any case last term. With us today to talk about Apprendi, what it did and did not do, and some of the questions it raises, are Judge Paul Boorman of the Eastern District of Michigan, Professor Lori Levinson of the Loyola Law School in Los Angeles, and Judge Joe Kendall of the Northern District of Texas, who is also a commissioner on the United States Sentencing Commission. Thank you all for being here. The materials for today's program, including copies of the leading cases, citations to other cases, a list of federal criminal statutes potentially affected by Apprendi, and other materials, can be found at the center's website. A one-page evaluation form is also included with those materials. Please fill it out and fax it to us on the number on the form. That's the only way for us to know what you thought of this program and how we can better serve you. Let's begin with a quick review of the Apprendi decision itself, and how it relates to some earlier Supreme Court decisions. Professor Levinson, can you talk a little about that? Absolutely, John. As you mentioned, Apprendi was one of the most important cases decided last term, and it's important because it established a new bright line rule. If there are sentencing facts, or facts that are going to be used to increase the sentence beyond the maximum for which the defendant was convicted, other than a prior conviction, then those facts now need to be pled and proved to a jury beyond a reasonable doubt. How do we get to this rule? Well, in Apprendi itself, Charles Apprendi in New Jersey was shooting at the home of an African-American family, the only African-American family in an all-white neighborhood. As a result of his acts, he was charged with 23 felony counts, and he ended up striking up a plea bargain and pleading guilty to three of those counts. The maximum sentence on those was 10 years each. However, the prosecution reserved the right to bring an enhancement based upon the state's hate crime law, to say that this was a racially biased, motivated shooting. Well, they got to the sentencing hearing, and that's exactly what the state argued based upon some statements Apprendi himself had made to the police officers. But Apprendi put on his own evidence, and he said that, in fact, he was not biased, and that his shooting was the result of being intoxicated. After listening to the evidence, the judge made up his mind and found by a preponderance of the evidence that the prosecution was right and imposed a sentence above the 10-year max toward 12-year sentence. Apprendi, at that point, on appeal, brought a constitutional claim. He said that under due process, and in Ray Winship and other cases, he was entitled to have that presented to the jury and decided beyond a reasonable doubt. He lost in the intermediate courts of New Jersey. But in the New Jersey Supreme Court, he at least got a divided opinion. And the court there went along with the procedure that the Supreme Court had up to then, which is to carefully analyze the statute to see whether something is an element or it's just a sentencing factor. When the Supreme Court was presented with this issue, they were looking for it. They were ready for it because they had cases leading up to it. And at least five of the justices thought it's time to set the bright line rule, and they did exactly that. They did not do the multi-factor analysis to decide whether this was an element of crime or whether this was a sentence enhancement. Rather, they said, if this is a fact that leads to a sentence beyond the maximum and it's not a prior conviction, it must be pled and proved beyond a reasonable doubt. And that opinion was written by Justice Stevens. Now, part of the problem for Justice Stevens in writing that opinion was dealing with the court's own precedent. Because the court had, for example, the McMillan case back from 1986. And in that case, the court had said that on mandatory minimum sentences, those facts can be decided by a judge. They need not be decided by a jury. But Stevens said, well, this isn't a mandatory minimum. This is going beyond the maximum. The prosecution had also said, well, what about Alamandara's torres? Now, that was a case in which the defendant was convicted of being deported as an alien, and the sentence for that would ordinarily be two years. But because of a prior conviction, the sentence was up to 20 years. And the court said, that's okay. That's a sentencing factor that the judge can consider. Because, in fact, that's an issue of recidivism. When Justice Stevens looked at Apprendi, he said, well, you know, we don't have either one of those situations. We're not limited by that. So we can and we will say that it's a violation due process to increase the maximum if it's other than a prior conviction factor. We could see this case somewhat coming based upon a couple other cases the court had recently handled. Namely, the Castillo case in just last term in which the court carefully looked to see whether machine gun was a separate crime in terms of use of a weapon under 924C. And in particular, in the Jones case, in which Justice Souter, in a 5-4 opinion, has a footnote that gives a preload that says, right now, we're analyzing statutes. And we don't have to strike them down on due process grounds because the statutes themselves, their context, their history show us that these are separate offenses and have to be proved beyond a reasonable doubt. But they almost invited the Apprendi case by saying there might be a situation where we don't do that analysis. We're not sure. And in that situation, we may still have a due process violation. Apprendi was that situation. Now, in addition to Justice Stevens' opinion, which sets that bright line rule, we have a very important concurrence by Justice Thomas. Justice Thomas would go even further. What he says is that if you have any aggravating facts, even if it doesn't push it beyond the statutory maximum, those should be pled and proved to the jury. In essence, arguing you should not be convicted for one crime and sentenced for another. And then there were two very strong dissents in this case, one by Justice O'Connor and one by Justice Breyer, who almost argued that the sky is falling and that if you take the court's reasoning to its full extent, that this has grave implications, for example, for the federal sentencing guidelines, is a dramatic change in how judges have handled sentencing and, in fact, is a bad change. Because there are certain types of sentencing factors that judges can and have historically handled. So that's how we got to Apprendi. And if I was going to boil down what that decision says, it says for right now, if you have a fact that's going to increase the maximum sentence for that defendant. And it's other than a prior conviction. The prosecutors better plead it and prove it beyond a reasonable doubt. We know that Apprendi has generated quite a bit of attention in the federal court since it was decided, and many of the circuits have addressed one aspect of the decision or another. Could you summarize briefly for us what some of the major holdings have been? I will. There's been an awful lot of action in this area. There have been actually at least 150 decisions in the last six months since Apprendi by various courts interpreting that. Let's get to the easy part. Taking a look at other types of cases that might be affected. And the main type, of course, are the narcotics offenses under federal law. And every circuit that has addressed this issue have said that the quantity and the type of narcotic must be pled and proved to the jury, although in the pre-Apprendi decisions, when those are now coming up on collateral attack or review, the court is applying both the Plain Error Rule and the Harmless Error Rule. They're not playing the Plain Error. They're saying that it's not Plain Error, and they're refusing to apply Apprendi in a retroactive manner. But there are other types of cases as well that these are starting to percolate in, whether it be the fraud cases, the type of weapon used, and the serious bodily injury. Let me tell you how the courts are not applying Apprendi. If the actual sentence imposed was below the statutory maximum, then Apprendi doesn't come into play. And the courts are sticking with that. If the case is like Almandara's torus and involves the use of a prior conviction, the courts are not applying Apprendi. They say Apprendi says the judge can consider that, even if it's not pled. They're not applying Apprendi in forfeiture situations. And Apprendi itself says not to apply it in capital sentencing schemes. So there it's not implicated. Question then is what constitutes compliance with Apprendi? What have courts been doing in that area? And they're doing a wide range of things. Certainly if it's mentioned in the indictment, that's the first start for the courts. But they're also looking to see whether there have been special verdicts forms. And one court even went so far to say, well, does the evidence show to such a point where we'd say it was harmless error not to give notice of this particular factor? They're rejecting, so far, Justice Thomas's argument that any aggravating fact should be pled to the jury. But the defense lawyers have hooked into that, anticipating that the next cases to come before the court may be to review McMillan and those mandatory minimums, as well as Almandara torus, and to say that in all those situations, Apprendi should apply. That's what's been happening so far around the courts. Thanks. Some have suggested, including the dissent in Apprendi, that the majority's decision casts some doubt on the sentencing guidelines themselves. Judge Kendall, would you care to comment on that? Well, I have somewhat of a contrarian point of view from many of the commentators. You and your question, I think, hit the nail on the head. The dissent suggests. But as we all know, the dissent is not the holding and it's not the law that, at least as federal judges and prosecutors and defense lawyers and probation officers and law clerks and others who may be viewing this, that is not what binds us to majority holding does. I believe it was Mark Twain who said that 95% of the things I worry about never come to pass and I think that that might be somewhat applicable here. Of the 150 decisions that were mentioned, at least of the ones that I have read, I have yet to read one that suggests to me that the federal sentencing guidelines as a sentencing regime is in jeopardy. In fact, the dissent itself was dealt with in the majority opinion. Really, it was dismissed in a footnote, footnote 21, and I would, for purposes of evaluating Apprendi in light of the guidelines, commend if nothing else is read, read that footnote, which speaks to the dissent and says in essence that we're treated to, I believe the word was disquitation, on the federal sentencing or determinant sentencing regime and then interestingly, and I think not accidentally, quotes back Justice Breyer's own words to him from the Edwards decision, which sets up an Apprendi type situation applying the guidelines that is, Justice Breyer had said this in Edwards, that this may be a different case, the Edwards case may be different if we were going above statutory maximums, but that's not the case. And then Justice Breyer cites 5G 1.1, which for Apprendi purposes, I think is probably the key guideline to have a working knowledge of, which has always been the law under the sentencing guideline since 1987, which is that the statutory maximum, which of course as we know is what is pled in the indictment, that always trumps whatever a guideline calculation is. So that being the case, I do not think for the purposes of the guidelines as a sentencing regime that they are in jeopardy, that indeed the sky is not falling. And even for those who would prognosticate what future courts may do, the pragmatic question I would ask of those who have that view is once you get past Justice Scalia, who is the dissent in Mastretta, and Justice Thomas from the language in his opinion, once you get past those two votes, I'd be curious as to where the other three are going to come from. So if I understand you then, Apprendi affects the calculation of the maximum sentence, but not the application of the guidelines within that maximum. Oh, not at all. And the court says specifically, no, the guidelines are not before us, but the very fact of quoting back 5G1.1 when you understand what it does, as well as quoting Breyer's, Justice Breyer's words to him back from the Edwards decision, I think it's pretty clear that the majority do not see this as affecting the guidelines. And certainly you'd be hard pressed to argue that the dissenters in Apprendi would be for adversely affecting the guideline regime. But the point I want to make and not lose sight of is what Apprendi deals with is statutory maximum. It is dealing with a ceiling. And as long as that ceiling is not gone past, then you're not going to run into an Apprendi issue for guideline sentencing purposes. Let's take a couple of simple examples just so we can all be on the same sheet of music here. And using the drug statutes as probably the most frequently used area since Apprendi's come down. A defendant convicted of possession with intent to distribute marijuana amount unspecified in the indictment and unaddressed by the jury, what would the maximum be under Apprendi? Well, there I think that you have a good question because some are arguing it would be one year under the statute 841B4, which says that if someone distributes marijuana, a small amount doesn't define small. And for no remuneration that the sentence maximum is one year. If there is evidence of a large amount or not small amount, and also that there was remuneration, then you get five years, it seems to me. But Apprendi certainly casts its shadow over here. And I think it'll have a significant impact in terms of drug prosecutions, what's charged, what's brought before the jury. And it's a new world for the government in terms of prosecuting cases and also for judges in terms of instructing juries. Are you seeing amounts pled in any cases that you've had? They're now, yes, the prosecution is now putting amounts in indictments. In a simple case, that's fairly easily handled. How about a more complicated case with perhaps a multi-defendant conspiracy case with different amounts for the different defendants and so forth. Well, I think we're gonna be seeing the prosecutor putting the largest amount in the indictment. But then also asking for special instructions on lesser included offenses. For example, if one person in the conspiracy is guilty or there's evidence of a large amount and then lessers go to lesser and other individuals in order to protect themselves, I think the government is going to have to request lesser included offense instructions and also may be dealing with more substantive counts. Used to be there would be a conspiracy count and that would cover everything. Now I think you're gonna see more substantive counts to go with conspiracy counts, both in terms of directing the amount, but also in terms of protecting themselves in terms of sentencing where they may be able to ask for stacked sentences, consecutive sentences to reach what under the guidelines would be suggested but will be limited under Apprendi for the offensive conviction. And in fact, that's what some courts have been doing so far, not a lot of them, but there have been at least two or three courts around the nation who in the drug context have been stacking those sentences so that they could give beyond what ordinarily would be the maximum to an overall maximum for all the counts to which the defendant is pleading guilty or convicted. And is that an effective way to get around Apprendi then? Well, I'm not sure that it will need to be done if the prosecutors start pleading their cases more accurately, but I think that in the time being this has been a fill gap measure. Well, Professor, that raises a question because I don't recall specifically Apprendi several times, not familiar with what happened in the New Jersey courts, but there were three counts there where those stacked. No, in that situation, the court basically looked at, I think the court had concurrent sentences there and the court looked at the fact that the 10-year sentence had been raised to a 12-year with that enhancement. Well, that, in your mind at least, I mean, I'm sitting thinking that that might call into question that procedure. Oh, I think the procedure should be called into question because, in fact, if you look at the reasoning behind Apprendi and really what the court's trying to accomplish there is that they want to make sure that the defendant has noticed and that the jury has an opportunity to decide that case. So I am in no way encouraging courts to find this way around, but I am pointing out that it's been one approach that the courts have used. Well, I think the point that Professor just made, John, is a good one, and that is another thing not to lose sight of is that Apprendi first and foremost, as I read it, is a notice case, Sixth Amendment notice case, that the indictment, and we've talked a lot, we've thrown the term around here a lot about determining statutory maximum as being what sets the ceiling, the statutory maximum is and can only be determined by what the government chooses to plead in that indictment. And so, again, how that would fit in to this business about stacking, I'm not real clear. After the fact, to try to come back is maybe a mop-up operation. I don't know, but I guess that will play itself out in the circuit courts. I think Judge Kendall raises a significant point on the stacking thing, that while government may seek to do that, it runs into Apprendi in terms of what Apprendi's talking about and the rights of notice and pleading and what the ultimate sentence can be. And going back to what both of you have said, and I totally agree that Apprendi is a lot about the notice about the charging decision, but I also think that it puts added responsibilities on judges now because in addition to looking at what the prosecutors have charged, there's going to be a need for the judges to evaluate those jury instructions and make sure that they're tailored not just for the specific counts, but for the specific defendants that may in fact make the jury instruction process a lot longer and bulkier to do all of that. And finally, it may be necessary, at least some courts have taken the approach to tailor their verdict forms as well so that they have clear verdicts as to what the jury's finding and what they're not. I would agree with that. I think that some procedures may need to be changed and really looked at, but recall, 93% I believe the last statistic I read of cases, criminal cases in federal courts in this country are resolved by plea agreement. So much for the jury charge and the vast majority of the work the courts do. I believe that's a correct stat. It's somewhere in that range. It's a lot. But with regard to jury trials, particularly where you're going to really need to be careful as a court personnel, multi-defendant, conspiracy cases, and it does not need to be only drug cases, although the majority of the cases that have come out out of the 150, I believe majority of them are 841 cases. But again, you just need to do, if you're the judge, what a good lawyer and a good judge, take judging requires. Take the indictment, take what is pled, parse it and draft your charge accordingly. I want to come back to the jury issue a bit, but since you've raised the guilty plea issue, where the amount is pled in a drug prosecution, for example, does that change in any way the colloquy from what you've previously engaged in? Well, a lot previously you'd say, okay, we'll take the plea and we'll deal, sometimes we'll deal with the amount at the sentencing, not anymore. You've got to put it right out there. And if you're dealing with an indictment that does not list an amount, the judge shouldn't take the plea unless they can reach something where there'd be a superseding information at the plea proceeding listing the amount. Because otherwise, if you're gonna go above the cap, you can't. And Apprendi was a state case, now we're dealing here, obviously with the federal cases, where we also have the right to an indictment that sets forth the specific amounts, the specific elements, that's what Apprendi's talking about. So Apprendi doesn't deal with that, but at the same time, there's language in it referring back to Jones talking about the right to an indictment, which they have in the federal courts and the indictment spelling out what the elements are. And you also need to tell the defendant what the maximum he faces, is that correct? And again, I would just come back to what I've said earlier that it all starts with the indictment, in the Rule 11 plea colloquy, take the indictment. And really, this is, I think, a way to apply Apprendi generally as a judge. Take the indictment, see what is pled, take the statute, determine what the statutory maximum is for what is pled, that becomes your ceiling, take that number, put it in your pocket, and form the defendant of the maximum. Do whatever you're gonna do, do the trial, do the plea, do the sentencing process, determine the guideline sentence. Take that number, take the number that you put in your pocket, which is the statutory maximum, and apply 5G 1.1. The sentence is the guideline calculation not to exceed what you determined. And that may sound like an oversimplification, but that's the holding, not a lot of the talk, but that is the holding of Apprendi. That that statutory maximum becomes the ceiling on what you can do as determined from what the defendant has put on notice of in the indictment. Of course, it goes without saying under Rule 11, Paul, as we all know from federal judging 101 that that Rule 11 plea colloquy has to put the defendant on notice in open court of the maximum sentencing cases. And I'm just wondering that you might end up with some combination type pleas, where the defendant does plea, but the amount is in dispute and you almost bifurcate that out to have the judge do a court trial or stipulated fact trial or some other type of trial essentially on that issue so that you could end up with pleas, but you still have that issue that has to be resolved by the decision maker beyond a reasonable death. Would you accept a plea like that? Well, you'd have to have a waiver of the right to jury trial. You'd have to make the decision beyond a reasonable doubt and you'd have to have a hearing that would be like a bifurcated trial. I think it would be acceptable. Obviously from a judge's point of view, the better thing would be if it's not charging the indictment is to have an information, superseding information, the defendant waives the right to indictment and you put the amount and go from there. But if the defendant challenges the amount, but at the same time wants to plead, you can't say, well, we'll decide it at the sentencing. You have to have a type of trial. Well, it depends. It depends procedurally. I'm thinking through this, what was suggested by the professor procedurally. If you have the indictment and there is not a plea agreement, something different, you either plead to the indictment or you don't plead to the indictment. If you don't plead to the indictment, you're required to enter the plea of not guilty and you go for a trial on the merit. So I'm not sure procedurally you could do that. But they could have the information where you plead it or you have maybe two types of pleadings. I'm not quite sure, but I'm wondering about those situations where defendants want to plead to basically the overall narcotics charge, but there is still a dispute as to the amount. Maybe the way to do that, as you say, is don't have any plea at all and just say that we will have a court trial and we accept that the evidence on this, regarding you admit the evidence on this, regarding the actual distribution and the only issue left in the court trial would be the amount. Let's go back to the jury trial again for a minute, the contested case. And again, we'll use drugs as a simple example, although this could apply in other situations. The indictment alleges a certain amount that would carry a higher maximum penalty, but the jury finds a lower amount with a lower maximum penalty. There may be though, minimums depending on the amount in the statute, the guidelines themselves may be driven by amounts and factors that the jury has, in effect, acquitted on. Can you as a judge still consider those for these other factors that don't change the maximum penalty, but may change the sentence that the defendant receives within that maximum? Well, I think that in terms of the mandatory minimum, McMillan is still alive. And despite what's said with regard to one of the justice's opinions, I think, and also the dissent, as Judge Kennel said, the dissenters in there complaining about what they think some of the other opinions do certainly wouldn't go the way of overruling McMillan. So I think McMillan is still there, and you can have a federal sentence where the mandatory minimum would apply, but you cannot go above the maximum. There is, well, let me just reiterate, under the guidelines acquitted, if you can, you have been able for some time now to consider acquitted conduct. So quite clearly, even though a jury may acquit on, let's say, for example, a common, what will probably be common, will be a pled drug amount of a Schedule 1 or 2 drug under 841. If that amount is acquitted of, nevertheless, a jury may find, as a lesser included defense, that the defendant possessed cocaine, but just, for example, which carries a 20-year maximum, but not a specific amount of cocaine. So therefore, 20 years becomes the cap. That does not bar the judge from going back and doing what has been done, and that is determining drug amount by preponderance of the evidence. And that's the key to why acquitted conduct counts is because you have a different standard of proof for purposes of sentencing, and that's specifically by statute, as well as the federal rules of evidence. But if the jury comes back on a lesser included offense, which then takes it to a statutory lower level of sentence maximum, you can't go above that. Well, of course. And I think all of this applies as long as Justice Thomas's view does not win out, because under Justice Thomas's view, I think we would be overruling McMillan and overruling Almondara's Taurus and any facts that have that type of effect on sentencing would be something that has to be proved beyond the reasonable. I think we have to distinguish between overruling McMillan and overruling Almondara's Taurus based on what was said in Apprentice. So with regard to McMillan, I think it's pretty clear. With regard to Almondara's Taurus, they're still recounting. Yeah, let's quiet right. Well, quiet right, that as I said earlier, I just don't see it with regard to the guidelines as a regime with regard to McMillan. The votes, I don't see where they're gonna come from once you get past Justice Scalia and Thomas, because you know the dissenters aren't going there and the majority, the other justices certainly could have had they chose to and what did they do instead? Even in what, I can tell by the look on your face, John, we're probably about to turn to Almondara's Taurus. That's one key case and all this we haven't talked about. Even with that case, even with what Justice Thomas said, they left it alone. They left it alone, they reaffirmed McMillan. And so, but I would be a bit cautious about Almondara's. Well, and we know that the defense bar is eagerly bringing the challenges to Almondara's Taurus. They're preserving those in the record. The courts are not ruling in their favor. They're reading as you have, Your Honor, strictly according to Apprentice, which has rejected that challenge. But they're making the stab at having that be the next issue that the court confronts. And just to review the bidding, the reason Almondara's Taurus is such a question mark is because one of the five votes in the majority of Almondara's Taurus, Justice Thomas, now says he doesn't think that way anymore in his concurring opinion in Apprentice. That's right. And so that's out there, but as all courts feels that I've read decisions on this, we as judges are bound to follow the law. Not what we think it might be, but what it is. Coming back to the point that was made though about the defense bar, yes, it's one of those type of situations that I read a lot of argument that's not always based upon what the law is. And it is true indeed that once this case came out and it was publicized, and I think that's kind of a key, you didn't read anything much about this case for a period of about 30 days after it was decided until an article appeared in the Washington Post that basically took the position, the sky is falling. And then it just started rolling, let news spread through the prisons in this country and many, and one of the best decisions. I wanna say it's Talbot, Judge Easterbrook. I'm pretty much sad, and I'm paraphrasing him here, but basically that all the prisoners in this country, in the BOP are thinking that Apprendi is some type of magic wand or get out of jail free card and as he pointed out, anything but the case. And in fact, I think his words were the prisoners should hold their horses and stop wasting everyone's time with futile applications because indeed, as you mentioned, they've been bringing these challenges. Well, those are late habeas that they've been bringing where they get one shot and you said, don't do it there, but there are a lot of persons incarcerated who have either on direct appeal or first time challenges to make under Apprendi and they'll be making them. And I think if you read the opinions where Justice Conner says we're gonna have a flood of litigation, I think that that will be true because she said that there's going to be and also because they have raised issues about is McMillan good, is Alamondara's Taurus still good, and what happens to all the individuals who are convicted and sentenced to be on the maximum sentence in drug cases and telemarketing and other cases previously. So any defense lawyer that does not bring this challenge, for example, to Alamondara's Taurus would almost be guilty of malpractice because all the opinions tell them to. And it was the Supreme Court opinion saying, this could be something you ought to be doing. And so I think it's thoroughly expected and indeed the court is encouraging it in the opinions. Well, one thing I would add to that, I do believe that there will be a finite number, a definite number of persons who have relief available to them who have been wrongly sentenced just because of Apprendi error. Well, I keep coming back to 5G 1.1 error. It's been there if a person was sentenced in excess of a statutory maximum that sentencing guideline has been on the books for quite some time. But once you get past those numbers, I think a lot of the jailhouse litigation that many are seeing, and it's magistrate judges that are seeing primarily, I have yet to see, and I said in a large metropolitan area, I have yet to see my first Apprendi issue here, five and what, five months down the road. But once you get through that, I think, and it's good to remember a little history here, I remember when the Bailey case was decided and there were a lot of pundits and a lot of commentators saying the sky is falling. And then along comes Coon, Coon came out roughly in the same time in the mid 90s. The sky is falling. Well, you know what, the world kept spinning and I think at the end of the day, that's what we're gonna see with Apprendi. Now it'd be a little work in the short run, but I think at the end of the day, so many of these challenges are challenging the guideline regime itself with in statutory maximum factors, enhancements for obstruction of justice or various special offense characteristics that will move up within guideline or within statutory maximum range. A lot of those types of claims are being made and that's just flat, not Apprendi. That's not Apprendi. If what the sentencing factor does is narrow the range for the judge within that statutory maximum, that's not Apprendi, the fencers are arguing it, but I don't see the judges following it and they're not required to under Apprendi give those issues to the jury. Could I make one point about what she said and I think that this, I've read some, frankly in some of the opinions, I've read some somewhat sloppy language and it's good to remember what Supreme Court said about sentencing factor versus element of the offense and it comes up in the issue of whether or not, for example, a drug amount, whether it has to be pled, whether it is an element of the offense, whether this is a new crime and what Apprendi says, referring specifically back, shifting gears a little within the opinion about the monikers that are placed upon these concepts, it's not so much what you call it, it's not the characterization of is this a sentencing factor or is this an element? It's look at what it does, what is the effect and if the effect is to raise a statutory maximum or raise a sentence above the statutory maximum, it must be pled, it must be proved. So as I analyze that, I see that an event, a fact, for example, a drug amount, a drug amount could be either a factor or an element based upon what the statutory maximum is as determined from the indictment, for example, if it raises the potential sentence under the guidelines above that statutory maximum is determined in the indictment, it's an element. However, that same drug amount, if whatever reason does not, for example, criminal history categories, there are a number of factors that can go into its special offense characteristics, but if it does not raise it above it, it is still a sentencing factor, which Apprendi points out as a term that entered our jargon, not until 1986. It still nevertheless can be considered in determining an appropriate sentence under the guidelines. I wanna come back to Almadira's Taurus here because there's another little twist here, I think, that deserves exploration. You've said, of course, that the law today is that a prior conviction is not a matter that Apprendi affects, not a matter that has to be pleaded and proved that the judge can apply that and can raise the maximum sentence based on that. But there's enough question about Almadira's Taurus' future viability that some U.S. attorneys have made the decision to go ahead and plead it and attempt to prove it. And now there's some pretty good reasons why the defense may not want that to happen in front of the jury. If the defense objects to that, what do you do? Were you ever a law professor? Go ahead, Paul, we'll let you handle that question. Thanks. I think what you do is you try and read some type of stipulation on the record that the defendant would agree to, but it's a slippery slope because if Almadira's Taurus were to be reversed and it says you gotta plead and prove it and the prosecutor says here, I wanted to plead and prove it and I'm gonna plead and prove it and the judge may say, okay, if you're gonna do that, if it's gonna be a factor at sentencing, then we'll deal with that or you could bifurcate and have the jury deal with that other issue separately which might be fair because the scenario you're creating, John, would have the defendant saying, I don't wanna brought out the trial because it's a 404B type evidence and it would be prejudicial, 403, more prejudicial and probative, so you might wanna bifurcate it, but it's gonna happen as we all agree. I think the prosecution has a much greater burden after Apprendi and with what's the numbers relating to Almadira's Taurus, that's gonna be before the court, the prosecutors and all of us. I would agree with that. First, what is pled, that's up to the government and if they plead that, they plead it now. But the government can't plead extraneous facts just to get them in front of the jury. I understand that. Now that raises the issue is, and this comes up particularly in an eight, USC 1326A versus B and that's being found in the country having previously been convicted, having been reentering the country after deportation being previously convicted. It's a two year sentence unless you were deported for an aggravated felony which under current law in most circuits, virtually all felonies are aggravated felonies which many of our brethren along the border between the United States and Mexico are all too aware of with the amount of traffic they're having down there, traffic in the courts. Is it jurisdictional? And you would, I think you'd be hard pressed to say that it is given Apprendi's carved out exception for prior convictions being the exception to the general rule of having to plead and prove. The only solution I really see to that absent stipulation which I can't really see what the upside for a defendant would be to stipulate to the aggravated felony would be to bifurcate it. And that indeed is a system employed in many state court criminal justice systems in the country and that is a bifurcated trial between the guilt or innocence phase and the sentencing phase of a trial. For example, in my state of Texas, the Texas state court system, criminal defendants can be sentenced by juries or the judge at their election and those trials are bifurcated so that specifically prior convictions can be proved but the jury is not jaundiced with having that knowledge of hey, I'm dealing with a convicted felony and you've been the defendant who wants to exercise his or her fifth amendment. Right, not to testify. Let me turn it a little bit and similar, same indictment, but the defendant wants to plead guilty to the underlying offense but doesn't want to admit to the prior conviction. How would you handle that? Well, you could say then let's go to trial number one or if you wanted to say, well, do you want to bench trial on that other issue? And then you say, okay, if you want to waive your right to a jury trial on that issue, you want to stipulate to the amount and the other things and we'll have a termination whether it proved beyond a reasonable doubt that you did commit the prior conviction. You know, I think pragmatically though, as I sit here and listen to this discussion in my life experience and I've been doing this for a while now, most of the time, I don't think you're going to have a defendant coming in wanting to plead not guilty part of the case. Paul, maybe you can jump in here if you have a different experience, but most of the time I suspect that if you're going to take the case to trial, if you're the defendant and you're going to put a jury in the box, you're going to go for the home run, you're going to swing for the fence most of the time. Now you may, there may be circumstances but I think that those are going to be very much of the minority scenario you're putting out for us. Let's go back to the collateral attack issue a little bit, we talked about it. Obviously, there's a difference between a first attack and a second or subsequent attack on an initial collateral attack and let's take a federal prisoner to make it a little simpler. What's the standard and what chance does he or she have? Well, thus far the courts have not been willing to allow the defendants to collateral attack under Apprendi. In terms of the direct appeals, the courts have been looking for the plain error and they've not been particularly generous in their application of that rule, but it does depend on the facts of the case and as well as how strong the evidence was and the nature of the evidence in the case. The only thing we know is Judge Easterbrook did carry the day that when you have the subsequent collateral attacks, they're just going nowhere fast. And I think that's the way it's going to be unless the Supreme Court says we want this to be applied retroactively and they haven't said it and I don't know that they would say it in the upcoming years, although I think that they will have other opportunities to examine Apprendi and its application on their torres and other cases that come before it. I think, I'm sorry, go ahead. Well, I think on direct appeal shifting from collateral attack that there's a better chance. They're gonna be looking at the harmless error question and whether this is an element, whether it's required to be proved, whether it is structural and to that extent, I think there may be a better chance on the direct appeal, obviously, with a better standard in terms of the defendant's chance to overturn when they have a sense. It's above the maximum. I think that's right. Now, if it wasn't in the indictment, then does the government have a shot in that case or is that gonna be fatal for the government? Well, you would think it'd be fatal but there was at least one court who was willing to look at the evidence otherwise as well as the other specific findings by the jury and infer in it that there was a finding for the jury. So not paying attention so much to the notice provision but rather the fact of what does the jury verdict tell us? And if we can tell otherwise from the jury verdict that it tells us that they found this person guilty of this fact, then it could be used to increase the amount. Would that be somewhat in luck looking at the verdict form and trying to define juror intent? With or without the chance. I think that's one court that's spoken. I think others will speak in probably contrasting opinions because it's a tough issue and I think you're gonna end up with splits on that issue. Well, and also really it does depend on the nature of the charges. You can envision a case where the charge the defendant's found guilty and in one charge of the indictment, it's very explicit as to the amount of the narcotics involved but it's not specified in the other but you know that the whole case by its presentation was about the exact same set of facts. In those situations, the courts are willing to say we've got a problem in the charging but really do we know what the jury verdict says? But does the constitutional requirement of an indictment listing all the elements of the offense go away? Apprendee was not a federal case but the language in it referring to Jones talks about the right in the federal courts to be proceeded against by indictment listing the elements and so it's a tough call to take that away. I think that's right. No, I would agree with that. I know I'm familiar with the case you're talking about and I'd be interested to see where that ends up but coming back to Apprendee again it's a sixth amendment notice right to draw a jury case at its core. I think the government will have the tougher argument of arguing that there was enough notice given the overall indictment even though it wasn't specified in the individual charge. I think one thing we really have to let the audience know about is that we're not just talking about drug cases that Apprendee is that issue in the federal courts is gonna arise in a lot of statutes like carjacking, alien reentry, telemarketing and there's a whole list in the article the Apprendee article by professors King and Klein that lists all of them and it's something we as judges have to be aware of in all the cases and be ready to acknowledge that there are Apprendee issues in a lot a lot of federal statutes. And that list is incidentally in the materials that are on the center's website with this program. Any other last thoughts? Now I would say stay tuned because the next question would be well what do we expect to make its way back up to the court regarding Apprendee? The Supreme Court so far has sent back a slew of cases this term to be reviewed under the Apprendee standard. And so it may be looking for the next one although given the problem with collecting the votes to overturn the cases maybe they're holding off till they find exactly the right case. But right now the cases are going back and the responsibility is in the trial courts to make sure that they're pled and approved and that the courts are using the jury instructions and jury verdicts to make sure they know what crime they're sentencing the defendant on because when I read all of this together under Apprendee it's really a very basic message by the court. The message is a defendant should not be convicted of one crime and sentenced for another. And you do that when you go over the statutory maximum that changes the nature of the crime as opposed to the prior analysis as you mentioned to the court trying to figure out what's an enhancement sentencing factor and what's an element here they've drawn the bright line. I think that's a good place to stop. That's our program for today. We hope you found it useful and interesting. I want to thank our panelists again for taking the time to talk with us about this important decision and its implications. And I want to thank you for watching. Again, please send in your evaluations and let us know what you thought of today's program. For the Federal Judicial Television Network, I'm John Cook.