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After six weeks of trial, U.S. District Court Judge Howard Munson got word from the federal jury in Syracuse, N.Y.: Raul Antonio Cordoba-Murgas was guilty of peddling cocaine. Munson checked the tax-table-like charts of the federal sentencing guidelines, established in 1987 to eliminate widely disparate sentences for similar crimes. For smuggling a kilo a month into Oneida County, N.Y., Cordoba was in for 12.6 to 15 years. Then the prosecutor spoke: To do justice, the 32-year-old Panamanian immigrant deserved life because he was the triggerman in an unsolved double homicide. This was a surprise. Cordoba hadn’t been indicted for murder. Prosecutors had never before accused him. Nonetheless, they insisted, the drug-related slaying was “relevant conduct.” Munson first held a six-day hearing into Cordoba’s role, and on Dec. 15, 1998, the judge, 77, meted out a sentence with a specificity that didn’t please either side. He declared himself 51 percent certain that, on a January evening four years before, Raul Cordoba killed two young drug users inside the Fisher Auto Parts Store in Rome, N.Y. Guilty, by a preponderance of the evidence. But that was not guilty enough, said Munson. Looking past many precedential cases, he rejected the notion that 51 percent proof sufficed if the sentence would rise 30 years. He opted for a “clear and convincing” standard, previously backed by only a few courts. Munson’s opinion gave each side fuel for an appeal — one that would put before the 2nd U.S. Circuit Court of Appeals the question of the fundamental fairness of a process that allows a person to be sentenced, in effect, for murder though never charged with, tried for or convicted of it. LOOKING FOR CLARITY From the bench, the Gerald Ford appointee expressed his satisfaction at thrusting into clear light the relevant conduct rules, a gear from the machinery of justice that irritated him and many other judges. “Before the guidelines, I had absolute discretion,” he said. “Both sides now have an excellent opportunity to get it clear in the 2nd Circuit, which I’m sure all of you will do.” Munson’s modestly rebellious stand is a gamble. If the panel of judges Pierre Leval and Sonia Sotomayor, and visiting District Judge J. Garvan Murtha, who heard oral arguments on the case May 22, affirm his decision, he will have delivered a new circuit-level precedent that, because of circuit conflicts, could prompt a Supreme Court hearing. If reversed, the 2nd Circuit will slam the door on the judicial maneuvering that current lack of precedent allows. This mild pro-defendant liberalization has plenty of support. One-third of the circuit judges, district judges and chief probation officers surveyed by the Federal Judicial Center in 1996 favored raising the standard of proof for post-conviction evidence. These hearings, says 6th Circuit Judge Gilbert Merritt, “always seemed to me to be unfair, and oftentimes, this is all done with hearsay, double and triple, and not proved by live witnesses in court.” He was surprised to hear of Munson’s opinion: “I thought I had lost that battle.” Several scholars say that the 2nd Circuit has little choice but to draw a line because of the phrasing in the 1997 Shonubi decision, which plowed the path for Munson. “The way the Court of Appeals has set up the test right now, ‘significantly enhance a sentence’ is a very loosey-goosey term. If you were going to give 18 years and now you’re going give 20, is that significant?” asks Kirby Behre, a defense lawyer who co-edits the Federal Sentencing Manual. “How about four? How about 10?” “This decision hardly exonerates defendants,” Munson told Cordoba. “You may, some time in the future, be faced with the lower standard because I could easily get reversed by the Circuit Court of Appeals.” The prosecutors’ proof that Cordoba was a killer were the shaky alibis of him and his fellow drug conspirators; their supposed intimate knowledge of the crime; a hearsay jailhouse witness; and a man who lived near the store and testified that he saw Cordoba around the store on the evening of January 12, 1995, amidst the witness’s, in the judge’s words, “effusive use of marijuana” that night. The judge was not persuaded. “Here’s a case [for which] the state and the federal government did not feel that they had enough evidence to get an indictment,” he said in an interview. “Therefore, they didn’t have enough evidence to convict these guys beyond a reasonable doubt for the crime of murder, so why should I apply a standard that has to do with negligence cases? It doesn’t make any sense.” ‘GENERAL FAIRNESS’ Cordoba’s lawyers, Bruce Bryan and Robert Wells, argue that trying a defendant for homicide without a jury or the right to impeach submitted statements violates the constitutional guarantee of due process — not to mention general fairness. “Between Oneida County and the U.S. government, they had this case for years,” said Wells, who had the case for only three summer months. Daniel French, the U.S. attorney for the Northern District of New York, says his office was doing its job. “The guidelines have pretty much put an affirmative responsibility for prosecutors to bring forward information that might be relevant to sentencing,” he contends. Prosecutor Grant Jaquith tried at trial to soft-pedal the request for an enhancement, saying that the feds would accept less than life. He preferred that to the judge defining a new category of “significant” rises: “We have said from the beginning that we don’t seek to draw that bright line in this case.” Many judges don’t fret over the guideline restrictions; typically, says Michael Simons, of St. John’s School of Law, they wiggle around obstacles by fudging conclusions. “If a judge felt that a 12-year sentence were the appropriate sentence, it would not be hard for the judge to look at the evidence of the murder with a jaundiced eye and find that it doesn’t meet the preponderance standard.” This prevailing flexibility may bode ill for Cordoba, now serving a 12.6-year sentence. Rather than pushing the judges to distinguish between extreme and not extreme, the 2nd Circuit might opt for the status quo, says Paul Shechtman, a New York defender and onetime fed. And then Munson, having lost his gamble, will be stuck giving Cordoba a much longer sentence, the first 12 years determined by proof beyond a reasonable doubt, and an extra 20, 30 or 40 years because it was more likely than not that he committed a crime.

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