Thoughts on the Boyd Case:
I wanted to offer a few thoughts in response to Doug Berman's post (mentioned by Jonathan below) about Judge Posner's sentencing opinion in United States v. Boyd.

  One way to read Doug's post is that he finds it objectionable — or more specifically, contrary to "numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government" — that a federal district court determined beyond a reasonable doubt whether the defendant violated state law. He writes:
  Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness. Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness.
  On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense.
  On this issue, my sense is that Doug's concerns are misplaced. Federal law occasionally requires federal district courts to try defendants for violations of state criminal law. Consider prosecutions brought under the Assimilated Crimes Act, 18 U.S.C. 13. The Assimilated Crimes Act was first enacted in 1825, and it federalizes state criminal laws on federal property in some circumstances. Prosecutions brought under the ACA require federal courts to hold trials on whether defendants violated state criminal laws — even state criminal laws enacted after the passage of the ACA. The Supreme Court upheld the ACA as constitutional in United States v. Sharpnack, 355 U.S. 286 (1958), and under Sharpnack Congress seems to have pretty wide authority to adopt state law as a controlling federal standard.

  So to the extent Doug suggests that having federal judges try defendants for violations of state law (with federal consequences) is unconstitutional, I don't think that's right under Sharpnack.

  Doug also notes that that Indiana prosecutors did not indict or try Boyd for this state offense. This is true, but I'm not sure why it is relevant. Blakely requires proof beyond a reasonable doubt of each element of the statutory offense, and the statutory offense does not make a state conviction an element. Perhaps I'm missing something, but it seems pretty sensible to me for a trial judge to try to square Congress's language with the Supreme Court's Blakely decision by determining beyond a reasonable doubt whether in fact Boyd committed the state offense. So if the district court held a mini-trial on the sentencing element, then that seems unobjectionable to me (although I'm not sure off the top of my head if that would have to be a bench trial or a jury trial — did the plea waive the jury trial right?).

  On the other hand, I agree with Doug's criticisms to the extent he is criticizing Judge Posner for being unclear. At least after a quick read, I find it hard to figure out what Posner is doing. Is he conducting a sufficiency review to determine if there was sufficient evidence to support the trial judge's finding of proof beyond a reasonable doubt? That would make sense, and there is language in the opinion to support that. On the other hand, other parts of Posner's opinion suggests that he is conducting some sort of free-floating de novo review. For example, presumably you don't need a satellite photo to conduct a sufficiency review (although this may have been just an extraneous comment as to what kind of evidence would have been helpful at trial). And what does it mean to be "reasonably confident" about the result? What standard is that? I agree with Doug that this part of the opinion is rather weird.

  UPDATE: Doug Berman clarifies his concerns and raises some good points in a new post. Definitely worth checking out.

Related Posts (on one page):

  1. Thoughts on the Boyd Case:
  2. Boyd v. Blakely?
Respondent (mail):
I think that Doug's criticism is entirely misplaced, since the defendant was sentenced below the relevant maximum under the now advisory guidelines. Since "everyone agrees" that under that scheme a defendant has no right to indictment, jury trial, or proof beyond a reasonable doubt on a factor used to enhance the sentence, a summary determination without warning by an appeals court that a defendant is guilty of any factor used to raise the sentence is constitutional. Perhaps Apprendi's rule should be extended, but current doctrine creates no problems at all for what Posner did.
1.31.2007 1:47pm
Respondent (mail):
To clarify, I think that Doug's criticism is misplaced when discussing the Booker angle, but I certainly feel that Judge Posner's means of arriving at the decision are distasteful. My guess is that his short opinion is a result of the serious time constraints appellate court judges have, which all too often results in opinions lacking fully developed reasoning.
1.31.2007 2:05pm
htom (mail):
Not a lawyer. "If you want a decision, go to court. If you want justice, go to church." is becoming truer and truer. Sentenced because of a crime he was not tried for, is that correct? [snort] Was bound to happen, and, I suspect, will be common practice. After all, we're all guilty of something.

I cannot fix this system, very few of you lawyers seem to think that there is even a problem, and so I think that things will get a good deal worse before they get better. Once the lawyers start being convicted for the crimes of their clients, maybe.
1.31.2007 2:26pm
Bryan DB:
"federal judges try defendants"?

Judges just hear cases. Doesn't someone have to prosecute for the crime? I don't see how a judge can, on his or her own, initiate a prosecution in the way you've said this. Even if it's true that a state conviction isn't an element of the federal crime, what are federal appellate judges doing going on factfinding missions? Whatever happened to review of *legal* issues on appeal, or erroneous mistakes on the part of the trial judge?
1.31.2007 2:38pm
While the statutory offense does not make a state conviction an element, this would seem to violate either the principle of "innocent until proven guilty in a court of law" or the sixth amendment right to trial by jury for the criminal offense in question. The defendent pleaded guilty to one offense; without expressly either pleading or waiving the right to a jury trial for the other, he was (from the description) sentenced as guilty.

I am not a lawyer, and I have not yet read all the case material. I am, however, concerned.
1.31.2007 2:38pm
M. Lederman (mail):
I defer to Doug and other Booker mavens for guidance on whether the elements of the Indiana crime would have to be established beyond a reasonable doubt, and/or by a jury rather than by a judge.

But even if "Respondent" (see first comment above) is correct that a judge's finding, by a preponderance of evidence, would be sufficient, there are at least two prominent problems with the Posner opinion, aren't there?:

1. The court of appeals' job is presumably to review whether the evidence before the trial court was sufficient under the relevant standard, not whether a creative court of appeals could itself find evidence on the Web to establish the requisite proof. The Posner opinion more or less concedes that the prosecution did not offer sufficient proof of the elements of the Indiana crime before the trial judge. That ought to be the end of the matter.

2. The most disturbing thing, however, is that Posner basically overrides the Indiana legislature, too. The legal standard under Indiana law is whether the defendant "consciously disregarded a substantial and unjustifiable risk that [bodily injury would result]."

Posner "finds" (page 4) that the defendant created a risk of harm that was "not large in probabilistic terms" -- and you'd think that that would mean there the risk of harm was not "substantial," even accounting for Posner's jerry-rigged "evidence." But Posner nevertheless finds that the element was satisfied because the risk of harm was "'substantial' relative to the gratuitousness of the defendant's actions." In other words, for Posner it's enough that the risk of harm was unjustifiable, all things considered -- even the minor risk of harm here was "substantial" when weighed against the "gratuitousness" of the reasons for the shooting. But the Indiana statute clearly requires that the risk of harm be both substantial and unjustifiable.

By reading "substantial" to mean, in effect, "unjustifiable, all things considered," Posner has eliminated one of the elements of the Indiana crime.
1.31.2007 3:08pm
Even if you accept that this is a proper issue to resolve during the sentencing phase, it still seems like there needs to be a record. When the appellate court finds itself rooting around with Google, it should serve as a red flag that the trial court simply didn't create the necessary record. Even if the state crime doesn't have to be proven to a jury beyond a reasonable doubt, it still shouldn't be proven by pure seat-of-the-pants conjecture, which is what Posner's analysis amounts to.
1.31.2007 3:12pm
Christopher Cooke (mail):
I think Professor Berman's criticisms derive from the appellate court purporting to act as a "finder" of facts to uphold the sentence that the district court imposed. It does look bad, for Posner, for example, to hunt through the internet to find facts to justify that the defendant's conduct was criminally reckless under Indiana law. Perhaps it is a Booker/Blakely criticism, e.g. the defendant didn't plead guilty to this offense used to justify his sentence, so how can the courts use it?

My view, without researching this point (apart from reading Crawford again), is that so long as the underlying federal offense to which Boyd pled guilty allowed, as a statutory maximum, the sentence that the district judge imposed, then the "facts" the judge considered in meting out a sentence under the maximum --whether the offense created a substantial risk of harm to others---are probably fine, as long as the judge didn't abuse her discretion in looking at these facts, as for example, would happen if there was no support in the record for any of these facts.

As I read Crawford, Booker, and Blakely, the Supreme Court is saying that the 6th Amendment prohibits a judge from finding additional facts, beyond those found by the jury (or established by a guilty plea) that make it mandatory for the court to increase the sentence the defendant faces beyond the maximum sentence he or should would have faced simply by the guilty verdict or plea. But the 6th Amendment doesn't preclude the court from sentencing within a statutorily defined range, for a non-arbitrary reason.
1.31.2007 3:14pm
Apu (mail):
Prof. Lederman makes good points -- it's shocking that J. Posner appears to recognize that the government failed to meet its burden of showing that Boyd committed the Indiana offense, yet nonetheless affirms the sentencing enhancement.
Contra Prof. Kerr's suggestion, the district court's standard for application of the sentencing enhancement in this case was "by a preponderance of the evidence." While there are arguments that guidelines enhancements, even under the post-Booker (arguably) advisory Guidelines should be applied only after a finding "beyond a reasonable doubt", every circuit court of which I'm aware has rejected that position.
And, contra the statements by some commentors, it is entirely routine for defendants to be sentenced based on judicial findings made only by a preponderance of the evidence. This is the concept of "relevant conduct" in the Guidelines (as well as in other Guidelines). For example, say a defendant pleads guilty to one count of distributing drugs for which the statutory maximum sentence is ten years and for which the guidelines range is 36-46 months. At sentencing, however, the court finds by a preponderance that the defendant has committed a second distribution offense. In combination with the first offense, this yields a guidelines calculation of 77-96 months, and the court sentences within that range (even though the defendant did not admit, and no jury found, that he committed the second offense). Every appeals court in the country would affirm that sentence (always assuming it was below the ten-year statutory max).
Whether this is a good (or constitutional) system is a broader question; but this is the system we have now.
1.31.2007 3:19pm
Michelle Dulak Thomson (mail):
M. Lederman,

In other words, for Posner it's enough that the risk of harm was unjustifiable, all things considered -- even the minor risk of harm here was "substantial" when weighed against the "gratuitousness" of the reasons for the shooting. But the Indiana statute clearly requires that the risk of harm be both substantial and unjustifiable.

Yes, it certainly looks like that's what Posner is doing. To me, it seems an unnecessary flaw in his argument. It is true that in "probabilistic terms" the chance of six shots fired at random actually hitting anyone is small, but small is not "insubstantial." Suppose the defendant had blindfolded himself, stepped into the middle of the street, spun around several times, and fired while spinning? The risk of his hitting anyone would still be small, but it is hard for me to imagine anyone not thinking such behavior posed a "substantial" risk to anyone within range.

Having lived for some time in a neighborhood in which shooting firearms into the air is a popular New Year's celebratory activity, I have some interest in the question. I remember spending one particular New Year's amusing myself (?) by calculating the time a bullet fired straight up with a given muzzle velocity would take to come back down, and guesstimating what fraction of that velocity would be lost to air friction by the time it did. That was the year, IIRC, that the Oakland PD found nearly 300 spent shells on a single city block the next morning . . .
1.31.2007 3:51pm
MS (mail):
Posner's appellate factfinding is odd, but not shocking. Because Booker vests sentencing discretion in federal district courts, the proper remedy for the first error identified by Professor Lederman would be vacate and remand for resentencing. The government would then meet their google-maps burden, no?

The second error identified by Lederman is worse, but its classic Posner: statutes are mere heuristics, evidence of what might be an efficient rule.
1.31.2007 3:54pm