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2ND CIRCUIT EXPANDS APPRENDI’ RULE NEW YORK � The Second Circuit U.S. Court of Appeals has expanded the application of the U.S. Supreme Court’s Apprendi holding in drug cases, ruling that drug quantities must be proved to a jury or admitted by a defendant for every aggravated drug offense, not only those that result in upward departures beyond the maximum prison sentence. The ruling in U.S. v. Gonzalez, 03-1356, by Judge Reena Raggi, is the latest in a line of cases following the 2000 Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466, which held that jurors, not judges, must determine facts used to increase criminal sentences beyond the statutory maximum. In Gonzalez, the Second Circuit said drug quantities must be considered elements in all prosecutions of aggravated 21 U.S.C. �� offenses. By “aggravated” offenses, the court said it was referring to crimes under ��(b)(1) that provide for enhanced penalties for drug trafficking in specified quantities. The court said drug quantities must be proved in these cases even if the final sentence amounts to the statutory minimum under the enhanced penalty statute, as was the case in Gonzalez. “The drug quantities specified in 21 U.S.C. �� are elements that must be pleaded and proved to a jury or admitted by a defendant to support any conviction on an aggravated drug offense, not simply those resulting in sentences that exceed the maximum otherwise applicable for an identical unquantified drug crime,” Judge Raggi wrote for the unanimous court. The result of the ruling was a vacated conviction for Manuel Gonzalez, who was sentenced to 20 years in prison after he pleaded guilty to a single-count indictment charging a conspiracy to distribute crack cocaine. The court said Gonzalez’s plea should be vacated, adding that the government could then proceed to trial on an aggravated charge. � New York Law Journal U.S. HALT OF VIDEO MAY HAVE VIOLATED RIGHTS NEW YORK � A federal judge has ruled that the actions of an FBI agent and a federal attorney may have violated the First Amendment rights of a New Jersey filmmaker and the Web site owner that hosted his video, a purportedly authentic outline for an attack on Times Square set for New Year’s Eve 1999. The judge nonetheless dismissed the case on the ground of qualified immunity. At issue in Zieper v. Metzinger, 00 Civ. 5594, was whether the government’s requests for the plaintiffs to remove from a Web site a video that showed a man planning a “military takeover” implied potential punishment or regulatory action. The “question is whether reasonable law enforcement officials in defendants’ positions could disagree as to whether [they] would have known that [their] actions violated” the plaintiffs’ First Amendment rights, wrote Southern District of New York Judge P. Kevin Castel. He answered in the affirmative, and granted the government’s motion for summary judgment, dismissing the case. The video shows a man canvassing Times Square, purportedly in preparation for a military takeover on the upcoming New Year’s Eve. � New York Law Journal

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