Free Motion to Bifurcate - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams Street, Ste. 201 3 Phoenix, Arizona 85007 4 Telephone: (602) 382-2727 5 MILAGROS A. CISNEROS, #020410 [email protected] 6 Asst. Federal Public Defender Attorney for Defendant 7 IN THE UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 vs. Bella Ben-Henry, Defendant. United States of America, Plaintiff, No. CR 04-1018-PHX-JAT MOTION FOR BIFURCATION AND FOR JURY DETERMINATION OF FACTORS THAT "ENHANCE" THE DEFENDANT'S SENTENCE (Argument and Hearing Requested)

Bella Ben-Henry, through undersigned counsel, respectfully requests this Court to order that the trial jury that will be seated in this case be asked to make

18 findings of fact that "enhance" Ms. Ben-Henry's sentence. This request is based upon 19 Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), United States v. 20 Booker, 125 S. Ct. 738 (2005), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 21 2348 (2000), and the Fifth and Sixth Amendments to the United States Constitution. 22 This Motion is supported by the attached Memorandum of Points and Authorities. 23 24 25 26 27 28 s/Milagros A. Cisneros MILAGROS A. CISNEROS Assistant Federal Public Defender Respectfully submitted: August 25, 2005. JON M. SANDS Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Law Regarding Jury Findings of Enhancements 3 In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the 4 U.S. Supreme Court held, pursuant to the Sixth Amendment to the United States 5 Constitution, that facts that would increase a sentence beyond the maximum sentence 6 a defendant faced as charged must be found by a jury. Thus, Apprendi relief applied 7 when sentencing exceeded the statutory maximum possible based on the charges. 8 The Apprendi holding was refined last summer when the Supreme Court issued its 9 10 opinion in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Not 11 deviating from its Sixth Amendment position in Apprendi, the Court redefined what 12 constitutes a "maximum allowable sentence" to be the highest sentence called for 13 under the sentencing scheme at issue, based upon the facts charged, proven, or 14 admitted by the defendant. Blakely, 124 S. Ct. at 2537. Therefore, any sentencing 15 enhancements that increase the sentence beyond those facts had to be found by a jury 16 under the standard of proof of "beyond a reasonable doubt." 17 18 19 20 21 22 The Supreme Court's recent opinion in United States v. Booker, 125 S. Ct. 738 (2005)­in the majority opinion authored by Justice Stevens­expressly held that the Blakely decision is applicable to the sentencing scheme utilized in federal courts, the United States Sentencing Guidelines (hereinafter "the Guidelines"). Booker, 125 S. Ct. at 755. However, Booker changed neither the requirement of a

23 jury finding nor the higher standard of proof for sentencing enhancements. The fact 24 that, in Booker, the majority opinion authored by Justice Breyer (known as the 25 "remedial" opinion) did not overrule those aspects of Blakely either indicates that 26 they remain intact. Accordingly, the Blakely holding that any sentencing 27 enhancements that increase the sentence beyond those facts charged, proven or 28
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1 admitted by the defendant must be found by a jury under the standard of proof of 2 beyond a reasonable doubt constitutes "good law" today. 3 In Booker the remedial majority held that the Guidelines are now merely 4 "advisory" and invalidated the portions of the federal statute that rendered the 5 Guidelines mandatory and binding on the sentencing judge. Booker, 125 S. Ct. at 6 757. But, that aspect of Booker addresses only how the judge proceeds to determine 7 the appropriate punishment in the case before him or her. It does not address how the 8 Court is to find the facts that would be then be applied to the Guidelines. Because 9 10 Booker made no change in that aspect of extant law, Blakely's jury finding and 11 standard of proof remain viable constitutional law. In accordance with Ms. Ben-Henry's Fifth and Sixth Amendment rights, 12 13 the Court should allow the jury to find the facts that constitute the sentencing 14 "enhancements" in this case. In addition, whether the Court or the jury is the finder 15 of those facts­they still must be proven beyond a reasonable doubt to satisfy Ms. Ben16 Henry's Sixth Amendment guarantees. 17 II. Procedural Aspects as Applied to this Case 18 In this case, the government identified (and in fact indicted Ms. Ben19 Henry on) five sentencing enhancements: 20 (1) the amount of loss and intended loss exceeded $600,000; 21 (2) the defendant relocated, or participated in relocating, a fraudulent 22 23 scheme to another jurisdiction to evade law enforcement or regulatory officials; and, 24 the offense otherwise involved sophisticated means; (3) the defendant was an organizer or leader of a criminal activity that 25 26 involved five or more participants or was otherwise extensive; 27 28
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(4) the defendant did not clearly demonstrate acceptance of

2 responsibility for his [sic] offense; and 3 (5) the defendant's criminal history category does not adequately reflect 4 the seriousness of the defendant's past conduct or the likelihood that the defendant 5 will commit other . 6 The jury should be given special verdict forms asking for findings 7 beyond a reasonable doubt as to these facts. Such jury instructions will be proposed 8 by the Defense. Moreover, this Court should bifurcate the findings of the sentencing 9 10 factors from the findings on the elements of the offense because the facts underlying 11 those enhancements would not necessarily be admitted at trial. 12 III. Conclusion 13 For the foregoing reasons, Ms. Ben-Henry asks the Court to ask the jury 14 in her trial to make findings beyond a reasonable doubt of the sentencing 15 enhancement facts alleged in the Indictment. 16 Respectfully submitted: August 25, 2005. 17 18 19 20 21 22 23 24 25 26 27 28
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JON M. SANDS Federal Public Defender

s/Milagros A. Cisneros MILAGROS A. CISNEROS Assistant Federal Public Defender

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1 Copy of the foregoing transmitted by CM/ECF for filing this 25th day 2 of August, 2005, to: 3 DAN DRAKE 4 Assistant United States Attorney Two Renaissance Square 5 40 North Central Avenue Suite 1200 6 Phoenix, Arizona 85004-4408 7 BRIAN F. RUSSO 111 W. Monroe Street, Ste. 1212 8 Phoenix, Arizona 85003 Attorney for Co-Defendant Pat Chee Miller 9 10 TIMOTHY C. HOLTZEN 245 W. Roosevelt Street 11 Phoenix, Arizona 85003 Attorney for Co-Defendant Frederick Marianito 12 JOANNE F. LANDFAIR 13 331 N. First Avenue, Ste. 103 Phoenix, Arizona 85003 14 Attorney for Co-Defendant Ed Preston 15 16 Copy mailed to: 17 BELLA BEN-HENRY Defendant 18 19 s/Milagros A. Cisneros M. Cisneros 20 21 22 23 24 25 26 27 28
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