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A philosophical spat between two federal judges in Nebraska points out the unresolved burden-of-proof questions in sentencing defendants after the Supreme Court’s landmark Booker decision last session. In a highly unusual order, U.S. District Judge Richard Kopf in Lincoln, Neb., said he disagrees with his “dear friend and wonderful colleague” Chief Judge Joseph Bataillon and won’t follow Bataillon’s position that the government must prove “beyond a reasonable doubt” contested sentencing factors that produce a harsher sentence. What distinguishes Kopf’s order is that the judge did not have a case presenting that challenge before him when he issued the order. Instead he issued it Aug. 31 in direct response to Bataillon’s opinion in a counterfeiting case, U.S. v. Okai, No. CR05-19. “I disagree with that opinion because that opinion strikes at the heart of the sentencing process in the District of Nebraska,” Kopf wrote. He offers his own view to benefit lawyers and probation officers appearing in his court. He then directed that his order be filed in all criminal cases assigned to him. DUE PROCESS CONCERNS Kopf’s action raises questions of whether, in the absence of a specific case, he has issued an advisory opinion that prejudges the issue before a defendant can raise it in his court, said Steve Sady, a Portland, Ore., federal public defender. Sady raised the due process questions in a blog site catering to 9th U.S. Circuit Court of Appeals defense lawyers. Adu-Ansere Kwame Okai was charged with possessing forged identification and passing counterfeit currency in Nebraska. Okai offered to plead guilty but was only willing to admit passing less than $1,000 in currency, while the government claimed a loss of $14,000. A determination of the amount, which was not stated in the indictment, would affect the length of Okai’s prison term. Bataillon wrote that he was asked to decide whether, and under what standard of proof, he could determine facts at sentencing that did not offend the defendant’s Fifth Amendment due process rights. Bataillon said he could resolve the question based on his interpretation of statutory construction, rather than turning the matter into a constitutional question. He found that the statute called for the government to prove disputed sentencing factors beyond a reasonable doubt. To use a lower standard of proof — preponderance of the evidence — would violate due process, he said. Kopf wrote that nothing in the Supreme Court’s Booker decision, U.S. v. Booker, 125 S. Ct. 738 (2005), justifies such an assertion. He discounted Bataillon’s holding as a “newly discovered Constitutional right to proof beyond a reasonable doubt at sentencing. “Once the ordinary criminal has been found guilty by plea or trial that complies with the Constitution, there is no applicable precedent for cloaking an indisputably … guilty person with the Constitutional protections intended for the innocent,” Kopf said. Douglas A. Berman, a professor at Ohio State University’s Michael E. Moritz College of Law, said that he did not have a problem with Kopf’s order and that he understood the rationale for it, but he added that he didn’t think it was a “sensible use of a judge’s power.” Berman, who keeps a running commentary on the mountains of post-Booker developments on his own blog, Sentencing Law and Policy (http://sentencing.typepad.com), said that this area is “a mess, a complicated mess that implicates the Fifth Amendment as well as the Sixth Amendment.” Neither the U.S. attorney’s office in Lincoln nor the federal public defender there returned calls for comment on the dispute.

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