Did The Supreme Court Just Shift the Ground Under The Feet of New York and The Sham Trial of President Trump?
A defendant has the right to a unanimous jury find beyond a reasonable doubt as to any fact that increases his exposure to punishment. P.S. -- that doesn't apply to Jan 6 cases as suggested.
“[a] fact that increases” a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sentence, must “be submitted to a jury” and found unanimously and beyond a reasonable doubt.
This passage is found in the decision today by the Supreme Court in Erlingher v. United States, but this is merely the most recent pronouncement of a watershed ruling on the constitutional rights of defendants in criminal cases first announced in the Court’s 2000 decision in Apprendi v. New Jersey.
Since Apprendi the Court has invalidated a variety of sentencing procedures under state and federal law used to increase the sentences in criminal cases through minimizing or eliminating the role of the jury in rendering a unanimous verdict on facts necessary to impose longer sentences.
In Erlinger the defendant was convicted of being a felon-in-possession of a firearm, a rather “garden-variety” federal felony not dissimilar from the crime Hunter Biden was just convicted of.
But Erlingher had a lengthy criminal history — dating back 26 years — and as a result he was also charged under the “Armed Career Criminal Act.” That statute carries a mandatory minimum sentence of 15 years for recidivists convicted of illegally possessing a firearm when they have three prior state or federal convictions for violent felonies or serious drug offenses.
In Erlinger, the defendant was convicted of a common gun-crime for which the maximum sentence was 10 years. But the ACCA allegation, if proven true, would increase his sentence to a mandatory minimum of 15 years — a minimum that was 5 years longer than the maximum without the ACCA finding.
The application of the ACCA has undergone significant litigation over the past 20 years on the question of what crimes — particularly what state crimes in the 50 different states with all kinds of different state laws — fall within the federal statute’s reference to “crimes of violence” and to a lesser degree “serious drug offenses.” The definitions turn out to be much more difficult to apply in practice than might seem to be the case just looking at the phrases.
But the issue in Erlinger was who decides if there are three prior convictions that qualify under the ACCA? Historically, it has been an issue resolved by the trial judges after a jury returns a verdict of guilty on the gun charge. But following a long series of cases on this general topic going back to Apprendi, the Court concluded in Erlinger that the issue of how many prior “occasions” of criminal activity can only be determined from several factual questions bound up in the events and circumstances of each of those prior “occasions”. As such, whether or not ACCA is proven requires façtual findings, and such facts must be resolved unanimously by a jury beyond a reasonable doubt, and not by a judge as part of the sentencing process.
This is a “not all that controversial outcome” on this ACCA question given the path that the Court has followed on similar issues since Apprendi that involved decision-making by judges at sentencing that influence the sentence imposed. In fact, Erlingher has the unusual circumstance of both the Government and the Defendant agreeing that the sentencing court and appeals court were wrong, and the Supreme Court appointed “Amicus counsel” to take on the role typically performed by the Government in defending the outcome in the the Appeals Court. The DOJ and the defendant both believed this would be the correct outcome.
So, how does this impact the decision in Alvin Bragg’s NY state court prosecution of trump just finished up last month? Because is drives home in yet another context the need for a unanimous verdict from a jury on any fact that increases the potential maximum sentence that a defendant might face as a result of his conviction.
In the NY case, Trump was charged with “false business records” crime that is ordinarily a misdemeanor, punishable by less than 1 year. But that statute increases the potential maximum sentence to 4 years — a felony — if another fact is found to be true, i.e., the misdemeanor was committed with the “intent” to conceal another crime. The other crime as alleged by the Bragg was a violation of Sec. 17-152, conspiring to promote or prevent the election of any person by “unlawful means.” Bragg’s theory was that the false business records were intended to cover up this “conspiracy”.
In Erlinger the Court repeated what it first said in Apprendi — any fact that increases the potential maximum sentence for a defendant must be decided unanimously by a jury on a “beyond a reasonable doubt” standard — the language I put at the very top here.
In the NY case, the existence of a second crime being concealed increased the maximum sentence from 1 year to 4 years. It is exactly the kind of “fact” that Apprendi was concerned with — a fact that increased Trump’s exposure from a misdemeanor to a felony.
Where the problems arose was from the decision by the trial judge to instruct the jury that they did not need to be unanimous as to the “unlawful means.” He gave them three options, told them that all they had to agree that one of the three options was proven, but they did not need to agree unanimously as to any one of the three — it was a “buffet” where they could all chose differently.
As a general proposition, I would say that a red flag should be flown high any time a judge in a criminal trial tells a jury that they need not be unanimous on any particular part of their verdict.
Without doing too much of a deep dive on the jury instructions in the NY case, those arguing that the Judge’s instructions were sufficient even without requiring unanimity on the “unlawful means” will argue the only requirement needed was that Trump “intended” to conceal the second crime — the conspiring to promote Trump by “unlawful means. Since it was the presence or absence of this “intent” that created the felony, that was all the jury needed to be unanimous on. They did not need to be unanimous on the “unlawul means” he “intended” to employ because he wasn’t charged with a crime for engaging in those those “unlawful means.” That’s as much as I’m going to attempt here.
Those who have challenged this instruction to the jury — including myself — have argued that the jury needed to decide more that simply that Trump “intended” to conspire because “conspiring” alone is not a crime.
“Conspiring to commit a crime” … is a crime.
So unless you have unanimity on the “crime” being conspired about, you don’t have a “criminal conspiracy” that makes the misdemeanor a felony. This confusion stems from a poorly drafted statute referring to “unlawful means” where what is actually being referenced is the “unlawful objective.”
Objective = murder.
Means = via gun, knife, hammer, suffocation, etc.
A jury can find a defendant guilty of murder without having to agree on what “means” was used to kill the victim.
The phrase “unlawful means” in the statute — based on the way the jury was instructed — is not a “means” as typically understood, but the criminal objective of the conspiracy — without which you don’t have a criminal conspiracy. The jury given 3 options and told they did not need to agree.
The decision in Erlinger — requiring that a unanimous jury decide the specifics of the prior crimes that might trigger the longer sentence under the ACCA statute — supports the view of the manner in which the misdemeanor becomes a felony under the NY statute as has been advanced in Trump’s favor.
On a related subject, it has been suggested in various places online that Erlinger’s language someone portends positive developments for January 6 defendants, with some reference having been made to the use by the Court of the “terrorism” enhancement. I’ve now read Erlinger 3 times, and there is simply nothing there that impacts the way sentencing enhancements are applied in federal court under the Guidelines — another subject has been the topic of significant litigation since the Court’s decision in Apprendi.
What the public at large needs to accept is that these are matters that have been litigated over for 20+ years - nearly 40 years if you go back to when the Sentencing Guidelines first came into use 1987.
There seems to be some superficial belief that Erlinger suggests “facts” involving the application of sentencing enhancements in Jan 6 cases — notably the “terrorism” enhancement — must be found by the jury before that enhancement can be applied at sentencing by the judge. That subject isn’t even vaguely hinted at in the Court’s language of Erlinger, and the sentencing guidelines are referenced only with respect to the historical evolution of Supreme Court case law since the 2000 decision in Apprendi.
One passage that seems to be catching the attention of the “Ah Ha!!! crowd is this:
There seems to be some confusion that the reference to a “sentencing enhancement” passed by the New Jersey legislature is the same or similar to the “sentencing enhancement” for “terrorism” in the federal Sentencing Guidelines because of the same phrase to describe them.
They are not the same. Not understanding Apprendi, and not understanding how the Sentencing Guidelines work — and the voluminous Supreme Court case law on the federal Sentencing Guidelines since Apprendi — leaves some without any ability to understand that error.
Let’s first turn to Apprendi:
A New Jersey statute classifies the possession of a firearm for an unlawful purpose as a "second-degree" offense…. Such an offense is punishable by imprisonment for "between five years and 10 years." A separate statute, described by that State's Supreme Court as a "hate crime" law, provides for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity."… The extended term authorized by the hate crime law for second-degree offenses is imprisonment for "between 10 and 20 years."
The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.
So in Apprendi the “sentencing enhancement” is actually a statute that changes the potential maximum sentence a defendant faces, and does so based on findings made by the judge by a “preponderance of evidence” after a conviction that the “hate crime” statute also applies.
New Jersey called the Judge’s determination a “sentencing factor,” and the practice of judges making decisions on such “sentencing factors” was long accepted. The defendant called it an “element” of a more serious offense — use of a firearm (the crime Apprendi was charged with) as part of a hate crime — a crime that was not charged in the indictment.
Particularly pertinent to the “terrorism” enhancement is the following observation by the Court:
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion -- taking into consideration various factors relating both to offense and offender--in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. See, e.g., Williams v. New York, 337 U. S. 241, 246 (1949) ("[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law" (emphasis added)). As in Williams, our periodic recognition of judges' broad discretion in sentencing … has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U. S. 443, 447 (1972) (agreeing that "[t]he Government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review" (emphasis added)); Williams, 337 U. S., at 246, 247.
So, at the same time it was working a sea-change in criminal procedure, the Court also reinforced the proposition that Judges have wide discretion at sentencing to made factual determinations that influence decision on what an appropriate sentence is — so long as they remain WITHIN the limits set by the statute. That discretion comes to an end when a a factual determination — authorized or not — leads the Court to impose a sentence beyond the maximum established by the statute.
The Court’s ruling was as follows:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."
So why is it that the application of the terrorism enhancement is not implicated by Erlinger?
The reason is that the statutory maximum for the offenses charged in the January 6 cases is 20 years —”the range prescribed by statute.” Application of the terrorism enhancement does not make that maximum higher — it only increases the applicable “guideline range” for the offense. The MAXIMUM sentence is still 20 years.
So the terrorism enhancement does not do what the ACCA determination in Erlinger or the “hate crime” finding in Apprendi did — increase the maximum sentence that applied to the crimes of conviction: from 10 years max to minimum of 15 years for Erlinger, and from 10 years max to 20 years max for Apprendi.
At one point after Apprendi there was some traction gained on the question of whether "sentencing enhancements” under the federal sentencing guidelines needed to be included in the indictment and determined by a jury. This seemed to be a natural extention of Apprendi, with the New Jersey judge’s finding of a “hate crime” no different in practice that a federal judge’s finding of an intent to use “terrorism” to influence governmental action — for example. To the extent both were required, and neither was determined by a jury, the same Sixth Amendment right to a jury determination seemed to be involved.
When the Guidelines were first adopted in 1984, Congress made their application mandatory to all federal crimes. Judges did not have discretion to not apply “sentencing enhancements” if they found facts that required the application of the enhancement to be true at sentencing by a “preponderance of the evidence.”
But in another landmark decision in 2005, United States v. Booker, the Supreme Court solved this dilemma by determining that the only way the Guidelines could be saved as constitutional was if they were held to be only advisory, and not binding on sentencing judges.
What that meant was that while the judge is required to do the “guideline calculation” as set forth in the Sentencing Guidelines — following all the rules as laid out — the resulting “Guideline Range” is only advisory. It is just a “starting point” and one factor of many the Court can consider in determining an appropriate sentence in any given case.
The Court can decide, for reasons it states on the record, that the Guideline calculation doesn’t result in an appropriate guideline range in a particular case, and “vary downward” to a lower sentence that the judge thinks more appropriately fits the facts of the crime.
As for the application of specific “sentencing enhancements” under the rules for doing this calculation, the Judge retains the discretion to find that certain enhancements, even if “technically” applicable under the facts, are outside the “heartland” of cases that the United States Sentencing Commission meant them to apply to. This is true with respect to the terrorism enhancement.
I have successfully argued — and will likely argue again — that the “terrorism” enhancement was created by the Sentencing Commission to address events like knocking down high rise Mahattan office buildings with airplanes and blowing up federal courthouses with a truck bomb, but not for breaking out a window at the Capitol with a hard object. As such, “destruction of government property” on January 6 is not within the “heartland” of criminal conduct that the terrorism enhancement was intended to reach. That argument has generally carried the day in January 6 cases, with the exception of the main Proud Boys case where the enhancement was applied. The Government has asked for it in a handful other of other cases, and the judges have denied the request to apply it.
How federal guideline sentencing enhancements are applied in federal cases was resolved by Booker. Because they are only advisory, and district judges are not required to apply them, they do not increase a defendant’s sentencing exposure in a way that implicates the problems addressed by Apprendi and the cases that have followed — including Erlinger.
Nothing in Erlinger suggests the Court is open to revisiting that decision.
Captain’s Note — I’m releasing this one into the wild for free again because there is some seriously mistaken legal analysis bouncing around out there that simply misunderstands this subject. As noted above, as a “young” prosecutor I lived through Apprendi in 2000, and the 6-8 Supreme Court cases that followed Apprendi that radically changed what federal prosecutors needed to include in indictments and prove at trial — with those facts specifically listed in questions beyond “Guilty” or “Not Guilty” that the jury had to fill out on the verdict form.
This is not subject for amateurs or even attorneys who have not studied the evolution of this case last over the past 2 decades. The outcome of Erlinger isn’t surprising — it is actually quite predictable given cases decided by SCOTUS the past 2 decades.
I’ve written this somewhat hastily on a Friday morning and reserve the right to change parts of it over the next day or so as I reread both the article and look at Erlinger further.
I support open circulation in the "wild" of your analyses. As you said, way too many "incorrect" (nicely said) opinions out there. We need an informed public.
Thank you Mr. Shipley
Ship, post for free whenever you want. I on the subscription to help Jan 6 defendants!
Between the gag order requested by Smith, your previous article mentions, and the gag order imposed by Merchan, can you comment on the constitutionality of these gag orders or write an article. They seem to be a new and inappropriate restraint on the rights of defendants.