The Volokh Conspiracy -

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.

	[Jonathan Adler, January 31, 2007 at 9:06am] Trackbacks Boyd v. Blakely? Over at the Sentencing Law & Policy blog — an absolute must-read blog for those interested in sentencing issues — Doug Berman takes Judge Richard Posner to task for pontificating on what would be sufficient to establish that a criminal defendant engaged in an uncharged felony under state law so that his sentence could be enhanced under federal law. In United States v. Boyd, Judge Posner wrote the panel opinion upholding the trial court's decision to enhance Artemus Boyd's sentence for being a felon in possession of a gun based on the trial court's conclusion that Boyd "had used the gun to commit another felony," namely criminal recklessness, a felony under Indiana state law. The twist, however, is that Boyd was never charged (let alone convicted) of committing the state felony, so Judge Posner devotes the lion's share of his opinion to explaining why Boyd's comment was likely to have been sufficiently reckless to justify the sentencing enhancement. we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute. Berman finds this quite unseemly, and contrary to the principles underlying the Supreme Court's string of opinions on sentencing guidelines (i.e. Apprendi, Blakely, etc.). 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. Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988"). . . . Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute." Berman's challenge to his readers is straightforward: Explain how Judge Posner's opinion is consistent with the principles of Blakely and the constitutional right to trial by jury. Related Posts (on one page): Thoughts on the Boyd Case: Boyd v. Blakely? Comments [Orin Kerr, January 31, 2007 at 12:18pm] Trackbacks 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): Thoughts on the Boyd Case: Boyd v. Blakely? Comments