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300.21 Apprendi v. New Jersey
300.21.1 Ring & Apprendi: Favorable
Cases
300.21.2 Apprendi: Constitutional Rights Apply To Sentencing Decisions The Increase The Range Of Punishment
300.21.3 Apprendi: Applicability Of Federal Constitutional Rights To Prior Convictions
300.21.4 Apprendi: Applicability Of Double Jeopardy To Sentencing Factors
300.21.5 Apprendi: Drug Quantity Enhancements
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300.21.1 Ring & Apprendi: Favorable Cases
U.S. v. Doggett (5th Cir. 2000) 230 F3d 160 [drug amounts must be submitted to jury and proved beyond a reasonable doubt].
U.S. v. Slaughter (5th Cir. 2001) 238 F3d 580, 583 [Apprendi applies to 18 USC 841; trial judge erred by not presenting drug quantity to jury].
U.S. v. McWaine (5th Cir. 2001) 243 F3d 871, 875 [applying Apprendi to 18 USC 841].
U.S. v. Rebmann (6th Cir. 2000) 226 F3d 521, 522 [remanded for resentencing when "death due to drug distribution" proved
by preponderance rather than beyond a reasonable doubt].U.S. v. Flowal (6th Cir. 2000) 234 F3d 932, 933 [Apprendi applies to drug enhancement facts triggering mandatory minimums].
U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1056 [Apprendi requires proof of marijuana quantities].
U.S. v. Rogers (11th Cir. 2000) 228 F3d 1318, 1327-30 [reversal of sentence when drug amounts were not alleged or proved and applying principle to Career Offender statute]
; but see U.S. v. Sanchez (11th Cir. 2001) 269 F3d 1250 [Rogers overruled -- rights to notice, jury trial and proof beyond a reasonable doubt do not apply to a sentence-enhanced drug quantity allegation unless the sentence that is actually imposed exceeds the sentence available for a conviction involving an unspecified quantity of the drug.Jones v. Smith (9th Cir. 2000) 231 F3d 1227 [due process violation must be found when the prosecutor presents facts regarding penalty which were not alleged in the charging document].
U.S. v. Camacho (11th Cir. 2001)
248 F3d 1286 [overruled by U.S. v. Sanchez (11th Cir. 2001) 269 F3d 1250] [applying Apprendi to drug mandatory minimum case].U.S. v. Strayhorn (6th Cir. 2001) 250 F3d 462, 467-71 [imposition of one of the mandatory minimum sentences under 21 USC 841 on the basis of a drug quantity determination made by a judge under the preponderance standard violates Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435], even if, as a result of the defendant’s prior record, the sentence does not exceed the maximum for a crime involving an unspecified quantity of contraband]; but see U.S. v. Leachman (6th Cir. 2002) 309 F3d 377
.)State v. Gould (KS 2001) 23 P3d 801, 809-14 [federal constitutional rights to due process and trial by jury (5th, 6th and 14th amendments) are implicated by permitting the judge to impose an upward sentencing departure based on a sentencing fact which the judge has found by a preponderance of the evidence; Kansas sentencing scheme results in the imposition of a sentence in excess of the statutory maximum by the trial judge based on a sentencing factor which has not been found by the jury]. The Gould court also held that the harmless error analysis does not apply to Apprendi violations.
U.S. v. Barnes (1st Cir. 2001) 251 F3d 251, 260-61[Apprendi bars five years of supervised release in most drug cases; although Barnes was decided under the listed chemical section (21 USC 960(b)), the language and reasoning is identical to 18 USC 841(b)(1)(C).]
U.S. v. Promise (4th Cir. 2001) 255 F3d 150 and U.S. v. Angle (4th Cir. 2001) 254 F3d 514 [under Apprendi, in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, such drug quantities must be treated as elements of aggravated drug trafficking offenses under 21 USCA 841, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt].
U.S. v. Campbell (4th Cir. 2001) 259 F3d 293, 298-99 [Under Apprendi 18 USC 111(b) requires proof of both bodily injury and use of a dangerous weapon as elements of the criminal offense and not merely as sentencing factors].
People v. Sengpadychith (CA 2001) 26 C4th 316, 325-330 [109 CR2d 851], concluded that Apprendi v. U.S. renders the failure to instruct on an enhancement which increases the statutorily prescribed maximum penalty an element of the offense which is subject to the federal constitutional rights to due process and trial by jury (5th, 6th and 14th Amendments).
U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187 [the "prior conviction" exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial in which the prosecution is required to prove guilt beyond a reasonable doubt do not fall within Apprendi’s "prior conviction" exception. Hence, a juvenile prior adjudication may not be considered as a prior conviction for purposes of the Armed Career Criminal Act 18 USC 924(e) and for conviction of being a felon in possession of a firearm in violation of 18 USC 922(g)(1)]; but see People v. Thomas (CA 2001) 91 CA4th 212, 218-224 [110 CR2d 571].
People v. Bryant (IL 2001) 758 NE2d 430 [failure to abide by Apprendi regarding Illinois sentencing enhancement for exceptional brutality is unlikely ever to be harmless error because it involves weighing of the evidence by the fact finder].
U.S. v. Barbosa (3rd Cir. 2001) 271 F3d 438 held that in a federal drug prosecution, the type of controlled substance must be charged and proven to the jury beyond a reasonable doubt whenever the sentence the defendant receives is higher than the lowest sentence provided by the federal drug statute (21 USC 841(b)(3) [one-year term for offenses involving an unspecified amount of a schedule V controlled substance]). However, Barbosa held that Apprendi does not require the prosecution to prove to a jury that the defendant had knowledge or intent regarding the particular type of drug that was actually involved in the offense. (See e.g., U.S. v. Valencia-Gonzales (5th Cir. 1999) 172 F3d 344.)
U.S. v. Guevara (2nd. Cir. 2001) 298 F3d 124 [mandatory minimum above guidelines terms implicates rule of Apprendi].
U.S. v. Thomas (2nd Cir. 2001) 274 F3d 655 [failure to allege drug quantity in indictment is plain error].
Because life without parole represents a greater penal sanction than life imprisonment with the possibility of parole, excluding the jury from the determination of the offender’s eligibility for heightened punishment of this kind cannot be reconciled with Apprendi. (Keels v. U.S. (D.C. 2001) 785 A2d 672, 679.) Accordingly, the federal constitution as interpreted in Apprendi v. New Jersey (2000) 530 US 466, requires that factual findings that authorize a sentencing judge to impose a sentence of life imprisonment without parole, rather than life with the possibility of parole, must be made by the jury rather than the sentencing judge.
State v. Hopkins (WA 2001) 36 P3d 1080, 1086-87 held that the increase in the maximum length of a license suspension is an increase in the maximum penalty for purposes of Apprendi v. New Jersey (2000) 530 US 466.
See State v. Palermo (LA 2002) 818 So2d 745 [statute violates Apprendi because it establishes that certain acts amount to an attempt to commit a particular offense while the sentence for the attempt is based on the entire, multi-grade sentencing scheme for the underlying offense].
U.S. v. Minore (9th Cir. 2002) 292 F3d 1109 [Apprendi requires drug quantity to be included in FRCP 11, guilty plea colloquy.
U.S. v. Jordan (9th Cir. 2002) 291 F3d 1091 [Apprendi violated where drug quantity neither charged in an indictment nor mentioned in the jury instructions].
People v. Swift (IL 2002) 781 NE2d 292 [Ring/Apprendi apply to findings resulting in sentencing above 60 maximum for murder].
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.2 Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment
PRACTICE NOTE: "The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) The Supreme Court also made clear in Patterson v. New York (1977) 432 US 197 [97 SCt 2319; 53 LEd2d 281] and Mullaney v. Wilbur (1975) 421 US 684 [95 SCt 1881; 44 LEd2d 508] that a statute proscribing criminal conduct violates due process whenever it "[s]hifts the burden of proof to the defendant by presuming [an] ingredient [of an offense] upon proof of the other elements of the offense." (Patterson, 432 US at 215 [holding the statute requiring defendant to prove that he suffered from extreme emotional disturbance did not run afoul of this rule because that was an affirmative defense]; compare Mullaney, 421 US at 692-704 [statute requiring defendant to prove that he acted in heat of passion violated due process because absence of heat of passion is element of malice].) However, beginning with McMillan v. Pennsylvania (1986) 477 US 79 [106 SCt 2411; 91 LEd2d 67], the Court declined to extend Winship to sentencing decisions. (See also Almendarez-Torres v. U.S. (1998) 523 US 224, 226 [118 SCt 1219; 140 LEd2d 350]; U.S. v. Watts (1997) 519 US 148 [117 SCt 633; 136 LEd2d 554]; Spaziano v. Florida (1984) 468 US 447, 449 [104 SCt 3154; 82 LEd2d 340].) Notwithstanding these cases, federal constitutional rights may still be applicable to many sentencing decisions.
McMillan concluded that the Winship standard did not apply to a judge's finding (by a preponderance of the evidence) of firearm possession which subjected the defendant to a mandatory term within the sentencing ranges otherwise prescribed. The Court observed that the result might have been different if the firearm possession had exposed the defendant to a sentence beyond the maximum that the statute otherwise set without the firearm possession. (McMillan,477 US at 88; see also People v. Wims (CA 1995) 10 C4th 293, 324 [41 CR2d 241], Kennard, J., dissenting.)
Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311], addressed, in dicta, the question left unresolved in McMillan. Jones concluded that a sentencing factor which exposes a defendant to a significantly greater range of punishment would "raise serious constitutional questions" if imposed without "the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." (Jones, 526 US at 252.)
In so doing, the Court distinguished Almendarez-Torres, because it involved only the issue of whether the sentencing factor must be charged and because it dealt with recidivist statutes. Jones also distinguished Spaziano and Walton v. Arizona (1990) 497 US 639 [111 LEd2d 511; 110 SCt 3047], which dealt with choosing punishment between existing choices in death penalty cases rather than "raising the ceiling of the sentencing range available." (Jones, 526 US at 251.)
Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] expressly adopted the view foreshadowed in Jones: any fact (other than a prior conviction) that increases the penalty beyond the statutory maximum is an element of the charge to which federal constitutional protections, including trial by jury and proof beyond a reasonable doubt, apply. This rule is grounded upon the 14th Amendment right to due process and the 6th Amendment right to trial by jury: "[P]ractice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt." (Apprendi, 120 SCt 2359.) "'[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.' [Citation.]" (Apprendi, 120 SCt at 2363.)
In fact, Apprendi actually incorporated the "tail wagging" doctrine into its rejection of the prosecution's argument: "[I]t can hardly be said that the potential doubling of one's sentence -- from 10 to 20 -- has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as 'a tail which wags the dog of the substantive offense.' [Citation.]." (Apprendi, 120 SCt at 2365.)
See NCJIC 300.21.1 [Apprendi: Favorable Cases] for favorable Apprendi cases.
NOTE: "Tail Wagging The Dog" Analysis. For reference purposes the pre-Apprendi "tail wagging the dog" analysis is provided below.
McMillan recognized that legislatures do not have "unbridled power to redefine crimes to the detriment of criminal defendants...." (477 US at 86.) McMillan suggested that the legislature might lack power to remove a factual issue from the jury's consideration by defining the issue as a mere "sentencing consideration" if a finding on that issue would expose the defendant to substantially "greater or additional punishment." (Id. at 88.) That is, the sentencing enhancement cannot become "a tail that wags the dog of the substantive offense." (Ibid.)
Hence, any statute which imposes an enormous sentence increase -- even one based on recidivism -- may be subject to constitutional limitations. (Cf., Castillo v. U.S. (2000) 530 US 120 [120 SCt 2090, 2096; 147 LEd2d 94] [federal enhancement construed as element of the crime]; U.S. v. DeJesus (9th Cir. 2000) 217 F3d 638, 642 ["'when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction a higher standard of proof may be required.' [Citation.]"]; U.S. v. Gigante (2nd Cir. 1996) 94 F3d 53, 56 [preponderance of evidence is threshold basis for sentencing but courts may require higher standards to be met where the factor leads to a "substantially enhanced sentencing range"]; U.S. v. Restrepo (9th Cir. 1991) 946 F2d 654, 659 [when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction," the government may have to meet a "clear and convincing evidence" standard]; see U.S. v. Lombard (1st Cir. 1995) 72 F3d 170, 186-87 [where sentence enhancement is "enormous," downward departure was allowed because enhancing a sentence in such a manner based on a preponderance of the evidence may have "exceeded" constitutional limits]; U.S. v. Townley (8th Cir. 1991) 929 F2d 365, 369 ["preponderance standard the [McMillan] Court approved in the garden variety sentencing determination may fail to comport with due process whereas here a sentencing enhancement becomes 'a tail which wags the dog of the substantive offense'" (quoting, McMillan, 477 US at 88)].)
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.3 Apprendi: Applicability Of Federal Constitutional Rights To Prior Convictions
PRACTICE NOTE: Under California law, most determinations regarding the proof of prior convictions have been removed from the jury. (See People v. Kelii (CA 1999) 21 C4th 452 [87 CR2d 674]; see also People v. Wiley (CA 1995) 9 C4th 580 [38 CR2d 347].)
However, Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] provides a basis upon which these cases may be challenged. Apprendi hinted that its rule may also be applied to prior convictions by observing that the logic of McMillan v. Pennsylvania (1986) 477 US 79 [106 SCt 2411; 91 LEd2d 67] and Almendarez-Torres v. U.S. (1998) 523 US 224 [118 SCt 1219; 140 LEd2d 350] may no longer be viable.
The court indicated that McMillan may be ripe for reconsideration: "[W]e reserve for another day the question whether stare decisis considerations preclude reconsideration of [McMillan]. (Apprendi, 120 SCt at 2361, fn 13.)
Moreover, both the majority and concurring opinions suggested that a prior conviction which triggers increased punishment should be considered an element of the charge and that Almendarez-Torres is incorrect in this regard. Majority opinion: "Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today ...." [Emphasis added.] (Apprendi, 120 SCt at 2362, majority opinion.)
Concurring opinion: "[O]ne of the chief errors of Almendarez-Torres -- an error to which I succumbed -- was to attempt to discern whether a particular fact is traditionally (or typically) a basis for a sentencing court to increase an offender's sentence. [Citation.] For the reasons I have given, it should be clear that this approach just defines away the real issue. What matters is the way by which a fact enters into the sentence. If a fact is by law the basis for imposing or increasing punishment -- for establishing or increasing the prosecution's entitlement -- it is an element. (To put the point differently, I am aware of no historical basis for treating as a nonelement a fact that by law sets or increases punishment.) When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute. Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime." (Apprendi, 120 SCt at 2371 [Thomas, J. concurring].)
Hence, the applicability of Apprendi to prior convictions is supported by the collective views of the majority of justices in Apprendi. (See People v. Sengpadychith (CA 2001) 26 C4th 316 [109 CR2d 851] concurring opinion of Brown, J.) Furthermore, the view that McMillan ultimately must fall is further supported by the persuasive opinion of the New Jersey Supreme Court in State v. Johnson (NJ, 2001) 766 A2d 1126, which also involved an enhancement increasing the defendant’s mandatory minimum sentence. (But see, e.g., U.S. v. Aguayo-Delgado (8th Cir. 2000) 220 F3d 926, 933 [Apprendi does not apply to factual determination that "only narrows the sentencing judge’s discretion" within a previously authorized range].)
Drawing on the views of a collective majority of the United States Supreme Court Justices expressed in separate opinions, the New Jersey court inferred "that the continuing vitality of McMillan itself may be in question....[B]oth the principal concurrence and dissent in Apprendi...construed the majority opinion as mandating reversal of McMillan and invalidation of the mandatory minimum statutes in the mold of the Pennsylvania law. [Citations.]" (Johnson, 766 A2d at 1136-37.)
"The [Apprendi] majority noted specifically that its reasoning did not necessarily conflict with the narrow holding [ ] of McMillan..., because the statute in McMillan did not increase the overall maximum prison term, [citation]....However an undeniable tension, explicitly recognized in Justice O’Connor’s dissent, [citation] exists between the formal distinctions drawn between the cases and the language of the Apprendi majority indicating that ‘the relevant inquiry is not one of form, but of effect – does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’ [Citation.] Recognizing that tension, the majority made explicit its reservations about the future application of McMillan, although it specifically avoided reconsideration of McMillan’s holding...." (Johnson, 766 A2d at 1134; see Apprendi, 530 US 487, fn. 13.)
As the Johnson court noted, Justice Thomas’s concurrence evinced no such reserve. (Johnson, 766 A2d at 1135; Apprendi, 530 US at 521.)
In concluding that the rule of Apprendi applies to a mandatory minimum increase, the New Jersey Supreme Court also found support in its own jurisprudence, which "‘always recognized that real time is the realistic and practical measure of the punishment imposed.’ [Citations.]" (Johnson, 766 A2d at 1137.)
In sum, "[t]he rationale of Apprendi – as well as the express views of a majority of the justices – effectively eviscerates the holding in McMillan...." (People v. Sengpadychith (CA 2001) 26 C4th 316, 332 [109 CR2d 851], Brown, J., concurring.)
See also NCJIC 300.21.10 [Apprendi: Juvenile Adjudications (Priors) -- Apprendi Forecloses Use Of Juvenile Prior As A Strike Or Enhancement].
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.4 Apprendi: Applicability Of Double Jeopardy To Sentencing Factors
PRACTICE NOTE: The rationale of Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] directly contradicts People v. Hernandez (CA 1998) 19 C4th 835 [80 CR2d 754] which held that federal double jeopardy principles do not apply to sentencing determinations. If a sentencing factor is an element to which the federal constitutional rights of due process and trial by jury apply, then double jeopardy principles should apply as well.
Additionally, since Apprendi suggests that there is no logical distinction between recidivist and non-recidivist sentencing factors, (Apprendi provides a basis for challenging Monge v. California (1998) 524 US 721 [118 SCt 2246; 141 LEd2d 615] and People v. Monge (CA 1997) 16 C4th 826 [66 CR2d 853], which held that double jeopardy principles do not apply to prior convictions which increase the defendant's sentence.
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.5 Apprendi: Drug Quantity Enhancements
ALERT: United States v. Cotton (2002) 535 US 625 [122 SCt 1781; 152 LEd 2d 860] held that the failure to allege a drug quantity enhancement in the indictment violated Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]. However, the omission was not jurisdictional error and relief was denied because the error did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." (Cotton, 535 US at 629.)
PRACTICE NOTE: Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] has been applied to drug quantity as a sentencing factor. For example, imposition of one of the mandatory minimum sentences under 21 USC 841 on the basis of a drug quantity determination made by a judge under the preponderance standard violates Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435], even if, as a result of the defendant’s prior record, the sentence does not exceed the maximum for a crime involving an unspecified quantity of contraband. (U.S. v. Strayhorn (6th Cir. 2001) 250 F3d 462, 467-71.)
Several cases have applied Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348;147 LEd2d 435] to require that drug quantity sentencing factors (e.g., 21 USC 841) be proven beyond a reasonable doubt under the requirements of the federal constitution. (5th, 6th and 14th Amendments; see
NCJIC 300.21.1 [Apprendi: Favorable Cases].)Other favorable drug quantity cases:
U.S. v. Promise (4th Cir. 2001) 255 F3d 150 and U.S. v. Angle (4th Cir. 2001) 254 F3d 514 [under Apprendi, in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, such drug quantities must be treated as elements of aggravated drug trafficking offenses under 21 USCA 841, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt].
U.S. v. Doggett (5th Cir. 2000) 230 F3d 160 [drug amounts must be submitted to jury and proved beyond a reasonable doubt].
U.S. v. Slaughter (5th Cir. 2001) 238 F3d 580, 583 [Apprendi applies to 18 USC 841; trial judge erred by not presenting drug quantity to jury].
U.S. v. McWaine (5th Cir. 2001) 243 F3d 871, 875 [applying Apprendi to 18 USC 841].
U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1056 [Apprendi requires proof of marijuana quantities].
U.S. v. Rogers (11th Cir. 2000) 228 F3d 1318, 1327-30 [reversal of sentence when drug amounts were not alleged or proved and applying principle to Career Offender statute].
Whether Quantity Enhancements Of 21 USC 841 Are Unconstitutional In Light Of Apprendi. Apprendi v. U.S. (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] renders 21 USC 841(b)(1)(A) and 21 USC 841(b)(1)(B) unconstitutional because they permit the judge to find a fact, the quantity of drugs, under the preponderance of evidence standard, that increases the maximum penalty to which a defendant is exposed. (See also U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1058-59
; but see U.S. v. Buckland (9th Cir. 2002) 289 F3d 558, 562 [21 USC 841(b)(1)(A) and 21 USC 841(b)(1)(B), increasing sentence for drug offenses bases on quantity of drugs, is not facially unconstitutional]; U.S. v. Nance (7th Cir. 2000) 236 F3d 820, 824-25.)RESEARCH NOTES:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
See generally, NCJIC 305.4.9 [Drug Offenses].
See also generally, NCJIC 305.5.3 [Enhancements].
Article: The Confounding Boundaries of "Apprendi-land": Statutory Minimums and the Federal Sentencing Guidelines, 29 Am. J. Crim. L. 377 (2002)/
Article: Federal Sentencing Guidelines, 54 Mercer L. Rev. 1503 (2003)/
Article: The Search for Equality in Criminal Sentencing, 2002 Sup. Ct. Rev. 223 (2002)
/RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, NCJIC 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].
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300.21.5.1 Drug Conspiracy: Quantity Enhancement Requires Jury Finding
PRACTICE NOTE:
In determining quantity of drugs for which conspirator will be held responsible, the court must determine the quantity of drugs the conspirator "reasonably foresaw or which fell with ‘the scope’ of his particular agreement with the conspirators." (United States v. Petty (9th Cir. 1993) 992 F2d 887, 890.) Where this finding exposes the conspirator to a higher statutory maximum than he otherwise would face, it must be made by the jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; see also United States v. Banuelos (9th Cir. 2003) 322 F3d 700.)THE NATIONAL CRIMINAL JURY INSTRUCTION
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300.21.6 Apprendi: Mandatory Minimums
PRACTICE NOTE: See
U.S. v. Flowal (6th Cir. 2000) 234 F3d 932, 933 [Apprendi applies to drug enhancement facts triggering mandatory minimums].Apprendi is not applicable to sentencing factor which subjects defendant to a minimum sentence. (Harris v. U.S. (6/24/02) ____ US ____ [122 SCt 2406; 153 LEd2d 524].) Read together, McMillan v. Pennsylvania (1986) 477 US 79, 85 [106 SCt 2411; 91 LEd2d 67], and Apprendi (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435];mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of constitutional analysis. However, within the range authorized by the jury’s verdict, it is constitutional to require defendants to serve minimum terms after judges make certain factual findings. (Harris, 122 SCt at 2419.)
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.7 Apprendi: Upward Departure In Violation Of Statutory Maximum
PRACTICE NOTE: State v. Gould (KS 2001) 23 P3d 801, 809-14 [federal constitutional rights to due process and trial by jury (5th, 6th and 14th amendments) are implicated by permitting the judge to impose an upward sentencing departure based on a sentencing fact which the judge has found by a preponderance of the evidence; Kansas sentencing scheme results in the imposition of a sentence in excess of the statutory maximum by the trial judge based on a sentencing factor which has not been found by the jury]. The Gould court also held that the harmless error analysis does not apply to Apprendi violations.
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.8 Apprendi: Parole Term Or Conditions
PRACTICE NOTE: U.S. v. Barnes (1st Cir. 2001) 251 F3d 251, 260-61[Apprendi bars five years of supervised release in most drug cases; although Barnes was decided under the listed chemical section (21 USC 960(b)), the language and reasoning is identical to 18 USC 841(b)(1)(C).]
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.9 Apprendi: Prior Convictions
PRACTICE NOTE: The "prior conviction" exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial in which the prosecution is required to prove guilt beyond a reasonable doubt do not fall within Apprendi’s "prior conviction" exception. Hence, a juvenile prior adjudication may not be considered as a prior conviction for purposes of the Armed Career Criminal Act 18 USC 924(e) and for conviction of being a felon in possession of a firearm in violation of 18 USC 922(g)(1). (U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187, but see People v. Thomas (CA 2001) 91 CA4th 212, 218-224 [110 CR2d 571].)
Apprendi Alert: Applicability To Sentencing Factor Permitting Upward Departure In Excess Of Statutory Minimum. State v. Gould (KS 2001) 23 P3d 801, 809-14 [federal constitutional rights to due process and trial by jury (5th, 6th and 14th amendments) are implicated by permitting the judge to impose an upward sentencing departure based on a sentencing fact which the judge has found by a preponderance of the evidence; Kansas sentencing scheme results in the imposition of a sentence in excess of the statutory maximum by the trial judge based on a sentencing factor which has not been found by the jury]. The Gould court also held that the harmless error analysis does not apply to Apprendi violations.
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.10 Apprendi: Juvenile Adjudications
(Priors) -- Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or EnhancementPRACTICE NOTE: U.S. v. Tighe (9th Cir. No. 2001) 266 F3d 1187 held that juvenile priors may not be used to enhance a sentence unless the juvenile was afforded the constitutional rights to a full and fair trial by jury. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348].) The reasoning of the Tighe court was also followed in [NF] State v. Brown (La.App. 4 Cir. 5/28/2003) 853 So2d 8. However, other courts have held to the contrary. (See e.g., State v. Jones (KS 2002) 47 P3d 783, 796 [Apprendi is not violated by having a judge, rather than a jury, determine that a juvenile should be prosecuted as an adult]; but see U.S. v. Smalley (8th Cir. 2002) 294 F3d 1030; United States v. Jones (3rd Cir. 2003) 332 F3d 688; People v. Bowden (CA 2002) 102 CA4th 387, 390-92 [125 CR2d 513].)
See also NCJIC 300.21.3 [Apprendi: Applicability Of Federal Constitutional Rights To Prior Convictions].
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.11 Apprendi: Whether Sentencing Factors Must Be Charged
PRACTICE NOTE: See Jones v. Smith (9th Cir. 2000) 231 F3d 1227 [due process violation must be found when the prosecutor presents facts regarding penalty which were not alleged in the charging document].
RESEARCH NOTE:
See NCJIC 305.1.13.2 [Apprendi v. New Jersey].
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300.21.12 Apprendi: Enhancement For Exceptionally Brutal And Heinous Offense
PRACTICE NOTE: See People v. Bryant (IL 2001) 758 NE2d 430, 437-38 [failure to abide by Apprendi regarding Illinois sentencing enhancement for exceptional brutality is unlikely ever to be harmless error because it involves weighing of the evidence by the fact finder].
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300.21.13 Apprendi: Type Of Gun Possessed In Violation Of 18 USC 924(c)(1) Is A Sentencing Factor
PRACTICE NOTE: U.S. v. Harrison (4th Cir. 2001) 272 F3d 220, 226, held that the rule announced in Apprendi does not apply because the amended version of 18 USC 924(c)(1) establishes the maximum sentence for a violation at life imprisonment.
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300.21.14 Apprendi: Application To Identity Of Controlled Substance (21 USC 841(d)(3))
PRACTICE NOTE: U.S. v. Barbosa (3rd Cir.
2001) 271 F3d 438, 467 held that in a federal drug prosecution, the type of controlled substance must be charged and proven to the jury beyond a reasonable doubt whenever the sentence the defendant receives is higher than the lowest sentence provided by the federal drug statute (21 USC 841(b)(3) [one-year term for offenses involving an unspecified amount of a schedule V controlled substance]). However, Barbosa held that Apprendi does not require the prosecution to prove to a jury that the defendant had knowledge or intent regarding the particular type of drug that was actually involved in the offense. (See e.g., U.S. v. Valencia-Gonzales (5th Cir. 1999) 172 F3d 344.)THE NATIONAL CRIMINAL JURY INSTRUCTION
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6 Death Penalty: Application Of Apprendi To Death Qualification (Death Eligibility) FactorsSee NCJIC 301.1.3 [Death Penalty: Narrowing Determination Must Be Made By Jury And Comport With 5th, 6th And 14th Amendments].
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300.21.17 Apprendi: Parole Eligibility
PRACTICE NOTE: Because life without parole represents a greater penal sanction than life imprisonment with the possibility of parole, excluding the jury from the determination of the offender’s eligibility for heightened punishment of this kind cannot be reconciled with Apprendi. (Keels v. U.S. (D.C.
2001) 785 A2d 672, 684.) Accordingly, the federal constitution as interpreted in Apprendi v. New Jersey (2000) 530 US 466, requires that factual findings that authorize a sentencing judge to impose a sentence of life imprisonment without parole, rather than life with the possibility of parole, must be made by the jury rather than the sentencing judge.THE NATIONAL CRIMINAL JURY INSTRUCTION
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8 Apprendi: Application To Finding That Increases Duration Of License SuspensionPRACTICE NOTE:
State v. Hopkins (WA 2001) 36 P3d 1080, 1082-83 held that the increase in the maximum length of a license suspension is an increase in the maximum penalty for purposes of Apprendi v. New Jersey (2000) 530 US 466.THE NATIONAL CRIMINAL JURY INSTRUCTION
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300.21.19 Apprendi: Applicability To Restitution
PRACTICE NOTE:
The operative rule from Apprendi is as follows: "Other than the fact of 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." (530 US at 490.) Restitution orders made pursuant to criminal convictions are considered to be criminal penalties. (U.S. v. Edwards (3rd Cir. 1998) 162 F3d 87, 91 [restitution ordered under the Mandatory Victims Restitution Act (MVRA), 18 USC 3663A, constitutes punishment for the purpose of Ex Post Facto Clause analysis]; U.S. v. Sleight (3d Cir. 1987) 808 F2d 1012, 1020 [under the Federal Probation Act, restitution "remains inherently a criminal penalty"]; U.S. v. Palma (3rd Cir. 19850 760 F2d 475, 479 [holding that a restitution ordered under the VWPA is a criminal penalty].)In U.S. v. Syme (3rd Cir. 2002) 276 F3d 131, the court held that restitution ordered under 18 USC 3663 [order of restitution] constitutes "the penalty for a crime" within the meaning of Apprendi. But section 3663 does not specify a maximum amount of restitution that a court may order. It only provides guidelines that a sentencing judge may use to determine the amount of restitution without prescribing a maximum amount. Syme held that the Apprendi rule, therefore, does not apply to restitution orders made pursuant to 18 USC 3663, because Apprendi applies only to criminal penalties that increase a defendant's sentence "beyond the prescribed statutory maximum." (U.S. v. Syme, 276 F3d at 159.)
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300.21.20 Apprendi: Applicability To Cases On Initial Collateral Review
PRACTICE NOTE: See U.S. v. Sanchez-Cervantes (9th Cir. 2002) 282 F3d 664 [Apprendi does not apply retroactively to cases on initial collateral review].
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1 Apprendi: Waiver Of Defect In IndictmentPRACTICE NOTE: See U.S. v. Cotton (2002) 535 US 625 [122 SCt 1781; 152 LEd2d 860] [defects in federal indictment are not jurisdictional and therefore, failure to object waives Apprendi violation based on failure of an indictment to allege the specific quantity of drugs].
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300.21.22 Apprendi/Ring: Death Penalty Sentencing -- Presumption Of Life; Prosecution Burden Of Proof Beyond A Reasonable Doubt
RATIONALE: In Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435], the US Supreme Court held that a state may not impose a sentence greater than that authorized by the jury's simple verdict of guilt, unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (Id., at 478.) This decision together with Arizona v. Ring (6/24/2002) ____ US ____ [122 SCt 2428; 153 LEd2d 556] confirms that as a matter of due process under the Fourteenth Amendment the proof beyond a reasonable doubt standard must apply to all of the findings the sentencing jury must make as a prerequisite to its consideration of whether death is the appropriate punishment.
POINTS AND AUTHORITIES: In Apprendi [Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 L.Ed.2d 435]], the United States Supreme Court held that a state may not impose a sentence greater than that authorized by the jury's simple verdict of guilt, unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 US at p. 490 [120 SCt at pp. 2363-2364].)
In Apprendi, New Jersey state law authorized a maximum sentence of ten years based on a jury finding of guilt for second degree unlawful possession of a firearm. A related hate crimes statute, however, allowed imposition of a longer sentence if the judge found, by a preponderance of the evidence, that the defendant committed the crime with the purpose of intimidating an individual or group of individuals on the basis of race, color, gender, or other enumerated factors. In short, the New Jersey statute required a jury verdict on the elements of the underlying crime, but treated the racial motivation issue as a sentencing factor for determination by the judge. (Id., 530 US at p. 491 [120 SCt at p. 2352-2353].)
The United States Supreme Court granted certiorari to determine if due process was offended by this sentencing scheme. Concluding that it was, the Court quoted Jones v. United States (1999) 526 US 227, 243, fn 6 [119 SCt 1215; 143 L.Ed.2d 311] with approval, noting: "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." (Apprendi, supra, 530 US at 490; 120 SCt at 2355-2356.) Since Jones involved only a federal statute, the court extended the Jones rationale to state sentencing schemes through the Fourteenth Amendment. (Ibid.) The Court further held that simply labeling a particular matter a "sentence enhancement" did not provide a "principled basis" for distinguishing between proof of facts necessary for conviction and punishment within the normal sentencing range, on one hand, and those facts necessary to prove the additional allegation increasing the punishment beyond the maximum that the jury conviction itself would allow, on the other. (Ibid.) Summing up its decision, the court held that "[o]ther 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." (Id., 530 US at p. 490 [120 SCt at p. 2363].)
Although the Apprendi decision arose in the context of sentencing in a non-capital case, the Apprendi principles were extended to capital sentencing in Arizona v. Ring (6/24/2002) ____ US ____ [122 SCt 2428; 153 LEd2d 556]. Ring (1) overruled Walton v. Arizona (1990) 497 US 639 [110 SCt 3047; 111 LEd2d 511] to the extent Walton allowed a sentencing judge, sitting without a jury to make factual findings necessary for imposition of a death sentence, and (2) held Apprendi fully applicable to all such findings whether labeled "sentencing factors" or "elements" and whether made at the guilt or penalty phases of trial: "Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense’. . . .". (Ring, 122 SCt at 2443, quoting Apprendi, 530 US at 494, n. 19 (2000).)
Ring should apply to statutes such as California's, which require that the jury find one or more aggravating factors, and that these factors outweigh mitigating factors, before it can decide whether or not to impose death. These findings exposed appellant to a greater punishment than that authorized by the guilt/death eligibility findings alone. "Capital defendants, no less than non-capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. . . . The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant's sentence by two years, but not the fact-finding necessary to put him to death." (Ring, 122 S. Ct. at 2443.)
Accordingly, the prosecution's burden of proof beyond a reasonable doubt should apply to any death sentencing factual finding.
SAMPLE INSTRUCTION # 1:
Only if you are unanimously persuaded beyond a reasonable doubt that the aggravating factors so outweigh the mitigating factors or in the absence of any mitigating factors that the aggravating factors are themselves so serious as to justify a sentence of death, can you return a decision in favor of a sentence of death. If you do not unanimously decide that a sentence of death is justified, then you will complete that portion of the verdict form which indicates the defendant should be sentenced to life imprisonment without the possibility of release. Regardless of what your decision is, you will not have to explain your reasons therefor. However, whatever your decision is, this court is bound to follow it.
[Source: CLOSING INSTRUCTIONS 4/99 Sample W.D.N.C.]
SAMPLE INSTRUCTION # 2:
It is the prosecution's burden both to prove guilt beyond a reasonable doubt and, at this stage of the proceeding, to prove beyond a reasonable doubt that justice mandates a sentence of death rather than life in prison without any possibility of release, or some lesser prison sentence. As I have told you, a defendant is not required to prove that he should be allowed to live. Thus, no adverse inference may be drawn against a defendant who does not take the stand. Nor may the absence of testimony by [_________the defendant] be considered in any way relevant to the issue of remorse for his role in the death of the victim.
[Source: Sample THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION.]
SAMPLE INSTRUCTION # 3: Government's Burden of Proof
The burden of proving that ____________________ should be sentenced to death rests at all times with the government.
If, after fair and impartial consideration of all the evidence in this case, all twelve of you are not persuaded that justice mandates ____________________'s execution, then you must return a decision against capital punishment, and impose the option of life in prison without any possibility of release [OR: and consider the remaining options of life in prison without any possibility of release or some lesser sentence. Likewise, if the evidence fails to show that he should be sentenced to life imprisonment without possibility of release, you should return a decision against that punishment as well. In that event, I will decide what punishment less than life imprisonment to impose upon the defendant __________________].
[Source: FJC Federal Resources Counsel Samples: INSTRUCTION NO. 4.]
SAMPLE INSTRUCTION # 4: Prosecution Burden To Prove Aggravation Outweighs Mitigation
You are only permitted to return a verdict of death if the prosecution has proven beyond a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole.
If from all the evidence you have a reasonable doubt that the prosecution has met this burden you must return a verdict of Life Without Parole.
[Source: Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL 4.21, CALJIC (West, 6th Ed. 1996).]
SAMPLE INSTRUCTION # 5:
If, after consideration of all the evidence, you have a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole the you must return a verdict of Life Without Parole.
[Source: Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL 4.30/4.50, CALJIC (West, 6th Ed. 1996).]
SAMPLE INSTRUCTION # 6:
The burden is on the prosecution to prove beyond a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole
If after considering the circumstances of the killing you have a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole you must give the defendant the benefit of the doubt and return a verdict of Life Without Parole.
[Source: Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL 2.91, CALJIC (West, 6th Ed. 1996).]
SAMPLE INSTRUCTION # 7: Presumption Of Life
It is the prosecution's burden both to prove beyond a reasonable doubt that justice mandates a sentence of death rather than life in prison without any possibility of release. This means that the defendant is not required to prove that he should be allowed to live. If after consideration of all the evidence you have a reasonable doubt that the prosecution has met its burden you must sentence the defendant to life without parole.
[Source: Cf. U.S. v. Mancini (1st Cir. 1983) 721 F2d 840, 843; People v. Hall (CA 1980) 28 C3d 143, 159 [167 CR 844]; see also Smith v. U.S. (App. DC 1996) 687 A2d 1356; see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature Of Case; Nature Of Indictment; Burden Of Proof; Presumption Of Innocence; Duty Of Jury; Cautionary] ¶ 2 (2000); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 1.2 [Preliminary Instructions Before Opening Statements (Long Form) (1997); McClung & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:370 [Closing Instruction-Burden Of Proof-Reasonable Doubt-Communication With Others] (James Publishing, 2000).]
SAMPLE INSTRUCTION # 8:
The sentence in a death penalty case is presumed to be life without parole unless the contrary is proven beyond a reasonable doubt. In case of a reasonable doubt whether the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole the defendant is entitled to a verdict of Life Without Parole. This presumption places upon the prosecution the burden of proving beyond a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole.
[Insert further language defining proof beyond a reasonable doubt.]
[Source: Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL 2.90, CALJIC (West, 6th Ed. 1996).]
SAMPLE INSTRUCTION # 9:
It is a cardinal principle of our system of justice that the sentence in a death penalty case is presumed to be life without parole unless and until it is established beyond a reasonable doubt that the aggravating circumstances are so substantial in comparison to the mitigating circumstances that death is warranted instead of Life Without Parole This presumption is not a mere formality. It is a matter of the most important substance. The presumption of life alone may be sufficient to raise a reasonable doubt and to require a verdict of life without parole.
[Source: Cf. 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 (2002).]
SAMPLE INSTRUCTION # 10: Presumption Of Innocence Not Just A Slogan
The presumption of innocence is not a mere slogan. It is an essential part of the law that is binding upon you.
[See State v. Motta (HI 1983) 659 P2d 745, 749; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 3.02, [Presumption Of Innocence; Reasonable Doubt] para.2. (West, 1998).]
SAMPLE INSTRUCTION # 11:
The law presumes a defendant to be innocent unless proven guilty beyond a reasonable doubt. This presumption is not a mere matter of form, but is a basic constitutional right guaranteed a defendant.
[Cf. Cowan, Hayne, Fox, Defending DUIs in Washington (Lexis, 1999) § 16.2, Inst. No. 4.]
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300.21.23 Apprendi/Ring: Jury Unanimity As To Death Findings
PRACTICE NOTE: Of the twenty-two states that vest the responsibility for death penalty sentencing on the jury, fourteen require that the jury unanimously agree on the aggravating factors proven. (See Ark. Code Ann. § 5-4-603(a) (Michie 1993); Colo. Rev. Stat. Ann. § 16-11-103(2) (West 1992); Ill. Ann. Stat. ch. 38, para. 9-1(g) (Smith-Hurd 1992); La. Code Crim. Proc. Ann. art. 905.6 (West 1993): Md. Ann. Code art. 27, § 413(i) (1993); Miss. Code Ann. § 99-19-103 (1992); N.H. Rev. Stat. Ann. § 630:5(IV) (1992); N.M. Stat. Ann. § 31-20A-3 (Michie 1990); Okla. Stat. Ann. tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. 1992); Tenn. Code Ann. § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann. § 37.071 (West 1993).)
Those jurisdictions that do not have such a requirement are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
The United State Supreme Court decision in Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] confirms that under the Due Process Clause of the Fourteenth Amendment and the jury trial guarantees of the Sixth Amendment, all of the findings prerequisite to a sentence of death must be made beyond a reasonable doubt by a jury acting as a collective entity. (Id., 530 US at 478.) In Apprendi the high court held that a state may not impose a sentence greater than that authorized by the jury's simple verdict of guilt, unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved to the jury's satisfaction beyond a reasonable doubt.
The U.S. Supreme Court has held that the verdict of a six-person jury must be unanimous in order to "assure . . . [its] reliability." (Brown v. Louisiana (1980) 447 US 323, 334 [100 SCt 2214, 65 LEd2d 159].) Particularly given the "acute need for reliability in capital sentencing proceedings." (Monge v. California (1998) 524 US 721, 732 [118 SCt 2246; 141 LEd2d 615].) The Monge court developed this point at some length: "The penalty phase of a capital trial is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment; it is in many respects a continuation of the trial on guilt or innocence of capital murder. ‘It is of vital importance’ that the decisions made in that context ‘be, and appear to be, based on reason rather than caprice or emotion.’ (Gardner v. Florida (1977) 430 US 349, 358, 97 SCt 1197, 1204, 51 LEd2d 393.) Because the death penalty is unique ‘in both its severity and its finality,’ id., at 357, 97 S.Ct., at 1204, we have recognized an acute need for reliability in capital sentencing proceedings. (See Lockett v. Ohio (1978) 438 US 586, 604, 98 SCt 2954, 2964, 57 L.Ed.2d 973 (opinion of Burger, C.J.) [stating that the ‘qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed’]); see also Strickland v. Washington (1984) 466 U.S. 668, 704, 104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (Brennan, J., concurring in part and dissenting in part) [‘[W]e have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding’]." (Monge v. California, supra, 524 US at 731-732; accord Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575), the Sixth, Eighth, and Fourteenth Amendments are likewise not satisfied by anything less than unanimity in the crucial findings of a capital jury.
The finding of an aggravating circumstance is such a finding. An enhancing allegation in a non-capital case is a finding that must, by law, be unanimous. (See, e.g., Calif Pen. Code, §§ 1158, 1158a.) Since capital defendants are entitled, if anything, to more rigorous protections than those afforded non-capital defendants (see Monge v. California, supra, 524 US at p. 732; Harmelin v. Michigan (1991) 501 US 957, 994 [111 SCt 2680; 115 LEd2d 836]), and certainly no less (Arizona v. Ring (6/24/2002) ____ US ____ [122 SCt 2428, 2438-43; 153 LEd2d 556]), and since providing more protection to a non-capital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment (see generally (Myers v. Ylst (9th Cir. 1990) 897 F2d 417, 421), it follows that unanimity with regard to aggravating circumstances is constitutionally required. (Under the federal death penalty statute, it should be pointed out, a "finding with respect to any aggravating factor must be unanimous." (21 USC 848, subd. (k).))
Jury unanimity was deemed such an integral part of criminal jurisprudence by the Framers of the California Constitution that the requirement did not even have to be directly stated. The first sentence of Article 1, section 16 of the California Constitution provides: "Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict." (See People v. Wheeler (CA 1978) 22 C3d 258, 265 [148 CR 890] [confirming the inviolability of the unanimity requirement in criminal trials].)
The United States Supreme Court has repeatedly pointed out, however, that the penalty phase of a capital case "has the ‘hallmarks of a trial’on guilt or innocence." (Monge v. California, supra, 524 U.S. at p. 726; Strickland v. Washington (1984) 668, 686-687 [104 SCt 2052; 80 LEd2d 674]; Bullington v. Missouri (1981) 451 US 430, 439 [101 SCt 1852; 68 LEd2d 270].) While the unadjudicated offenses are not the only offenses the defendant is being "tried for," obviously, that trial-within-a-trial often plays a dispositive role in determining whether death is imposed.
The California Supreme Court has rejected the need for unanimity on the ground that "generally, unanimous agreement is not required on a foundational matter. Instead, jury unanimity is mandated only on a final verdict or special finding." (People v. Miranda (CA 1987) 44 C3d 57 , 99 [241 CR 594].) But unanimity is not limited to final verdicts. For example, it is not enough that jurors unanimously find that the defendant violated a particular criminal statute; where the evidence shows several possible acts which could underlie the conviction, the jurors must be told that to convict, they must unanimously agree on at least one such act. (People v. Diedrich (CA 1982) 31 C3d 263, 281-282 [182 CR 354].) It is only fair and rational that, where jurors are charged with the most serious task with which any jury is ever confronted – determining whether the aggravating circumstances are so substantial in comparison to the mitigating as to warrant death – unanimity as to the existence of particular aggravating factor supporting that decision, and as to the fact that such factors outweigh the mitigating factors, likewise be required. These "foundational factors" of the sentencing decision are precisely the types of determinations for which appellant is entitled to unanimous jury verdicts beyond a reasonable doubt. (See
NCJIC 300.21.22 [Apprendi/Ring: Death Penalty Sentencing -- Presumption Of Life; Prosecution Burden Of Proof Beyond A Reasonable Doubt].)Failure to instruct on unanimity is reversible per se, because it permits the jury to return a death judgment without making the findings required by law. (See Sullivan v. Louisiana(1993) 508 US 275, 278-281 [113 SCt 2078; 124 LEd2d 182]; United States v. Gaudin (1995) 515 US 506, 522-523 [115 SCt 2310; 132 LEd2d 444] [aff'g 28 F.3d at pp. 951-952]; Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, 668-670.) Moreover, given the difficulty of the penalty determination, the State could not demonstrate beyond a reasonable doubt (Chapman v. California (1967) 386 US 18, 24 [87 SCt 824; 17 LEd2d 705; Fahy v. Connecticut (1963) 375 US 85, 86-87 [84 SCt 229; 11 LEd2d 171]; Satterwhite v. Texas (1988) 486 US 249, 258-259 [108 SCt 1792; 100 LEd2d 284]; Hitchcock v. Dugger (1987) 481 US 393, 399 [107 SCt 1821; 95 LEd2d 347]) that a failure to instruct on the need for unanimity was harmless. It certainly could not be found that the error would have "no effect" on the penalty verdict. (Caldwell v. Mississippi (1985) 472 US 320, 341 [105 SCt 2633; 86 LEd2d 231].)
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300.21.24 Sentencing: Drug Quantity – Sufficiency Of Objection
PRACTICE NOTE:
Some circuits hold that an objection to the quantity of drugs attributed to a defendant is sufficient to preserve error under Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]. Others have rejected this position, holding that factual challenges to the calculation of drug amounts in the district court alone may be insufficient to preserve the Apprendi issue on appeal. (See United States v. Humphrey (6th Cir. 2002) 287 F3d 422.)
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300.21.25 Whether Ring Applies Retroactively
PRACTICE NOTE: See [NF] Summerlin v. Stewart, 341 F3d 1082, 1096 (9th Cir. 2003) [disagreeing with the 11th Circuit].