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Southern California prosecutors are recharging cases and revamping jury procedures to make sure that the sentences fit the crimes, at least as they see it, in response to several landmark court rulings on federal sentencing guidelines. In Blakely v. Washington, the U.S. Supreme Court ruled that juries, not judges, are the finders of facts that apply to how defendants are sentenced. In the federal system, where the strict sentencing guidelines required judges to calculate sentences based on facts such as the amount of loss and the defendant’s role in the crime, the ruling meant that existing prosecutions lacked the legal structure to garner the sentences they would have before Blakely, 124 S.Ct. 2531. Compounding the confusion over Blakely, the Ninth Circuit U.S. Court of Appeals ruled that the Blakely decision applies to federal prosecutions, U.S. v. Ameline, 376 F.3d 967. The Fifth Circuit decided its prosecutors could wait for Supreme Court clarification coming later this year. U.S. v. Pineiro, 377 F.3d 464. First Assistant U.S. Attorney Steve Clark, in the Southern District of California, said prosecutors within the Ninth Circuit hope the U.S. Supreme Court clarifies its June decision soon. Last week, the high court heard expedited arguments in two cases that posed the question of Blakely’s impact on the federal system: U.S. v. Booker and U.S. v. Fanfan. “We are all a little nervous about what we are supposed to do until then,” he said. “And the Ninth Circuit hasn’t helped us at all.” In prosecutions that haven’t gone to trial yet, prosecutors are taking steps to be able to seek harsh sentences. Those in the Central District of California have begun filing superseding indictments to add information to existing indictments, preparing more complex jury forms and bracing themselves for more complicated trials to be sure that defendants, particularly in fraud cases, end up with sentences that, in the opinion of prosecutors, match the crimes. “It’s a matter of making specific what’s already in the indictment generally,” said Orange County-based Assistant U.S. Attorney Greg Staples, who filed a superseding indictment in an alleged $100 million fraud last week. “The problem is that [ Blakely] changed the rules in midstream for some prosecutions, and there’s no question that some defendants will get a windfall from Blakely.” But cases that had already gone to trial can’t be amended, and that means defendants, particularly in fraud cases, are getting far lighter sentences than they would have before Blakely and Ameline. For example, a six-month prison sentence — combined with $4.4 million in fines and restitution — handed to a former CEO convicted of fraud illustrates the pitfalls of those rulings, which left sentencing guidelines up in the air. “If this had gone to trial after the [ Blakely] decision, we could have taken steps to make sure the sentence fit the crime,” said Thom Mrozek, the spokesman for the U.S. attorney for the Central District of California. “ Blakely was the perfect storm that led to [defendant] Mr. Berger’s benefit.” Richard Berger was the founder and CEO of retailer Craig Electronics Inc. The company filed for bankruptcy in 1997, 15 months after its $6 million initial public offering of stock. Prosecutors estimated the fraud at up to $15 million. Berger was convicted on 12 felony counts earlier this year and, prosecutors argued, should have faced 97 months to 121 months in federal prison. U.S. v. Berger, 00CR994 (C.D. Calif.). Defense attorney Brad Brian of Los Angeles’ Munger, Tolles & Olson did not return calls for comment. U.S. District Judge Robert Takasugi said his hands were tied by the Blakely decision in sentencing, but not as to fines and restitution. Takasugi ordered Berger to pay a $1.25 million fine and nearly $3.2 million in restitution to the banks. “Both sides will appeal this sentence,” said Assistant U.S. Attorney Paul Stern, who prosecuted Berger. “But the high fine shows that the judge believed there was significant wrongdoing that he could not sentence for. “In a lot of cases in our district, we’re getting sentences like this, where the fines show the magnitude of the crime but the sentence does not,” Stern said. Clark, in San Diego, said the Southern District of California has seen its share of defendants getting the minimum six-month sentence because the jury didn’t rule on the facts. “Our view, which hasn’t been tested, is that it should be treated like forfeitures where there are two trial phases, one for guilt or innocence and then the jury is reconvened to hear the special allegations,” he said. “We don’t know what the Ninth Circuit wants because the cases that have gone there have been sent back with the instruction that the individual district courts should decide what to do.” The vagueness of those instructions leaves lots of room for different outcomes in each court, prosecutors agree. Marty Graham wrote this story for The National Law Journal, a Recorder affiliate based in New York City.

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