Last year, Richard I. Berger, the former chief executive of a Southern California electronics company, was convicted of bilking banks and investors out of millions of dollars by “cooking” his company’s books and lying to the Securities and Exchange Commission.
Berger -- who had served as chairman of the board of Cerritos-based Craig Consumer Electronics, which supplied stereos to Best Buy, Circuit City and other major retailers -- faced a possible 8- to 10-year prison term.
That was not to be, however. To the dismay of prosecutors, the 61-year-old businessman was sentenced last month to six months in prison.
U.S. District Judge Robert Takasugi said he was constrained from giving Berger additional prison time for aggravating conduct because of recent rulings by the U.S. Supreme Court and the San Francisco-based U.S. 9th Circuit Court of Appeals.
Three months earlier, the high court had invalidated Washington state’s sentencing guidelines law, declaring that juries -- not judges -- must decide all the factors that result in sentencing enhancements.
The 5-4 ruling, in Blakely vs. Washington state, immediately raised questions about the constitutionality of federal sentencing guidelines, which were implemented in 1987 to end disparities in punishments meted out by federal judges nationwide.
In addition to establishing a numerical range of penalties for different crimes, the federal guidelines allowed judges to increase a sentence for aggravating conduct, none of which had to be proved to a jury. Judges were allowed to base their findings on a “preponderance of evidence,” rather than the more rigorous “beyond a reasonable doubt” standard that juries must follow in criminal cases.
In Berger’s case, the prosecution argued that his sentence should be enhanced because he abused a position of trust, obstructed justice, defrauded multiple victims and played a primary role in planning the scam.
A month after the Supreme Court’s decision, the 9th Circuit, which hears federal appeals in nine Western states, including California, ruled that the decision in the Washington state case applied to federal sentencing guidelines as well.
Appeals courts in other circuits have issued contrary opinions, which prompted the Supreme Court to take up the issue in early October on the first day of its new term. A decision is expected shortly.
In the meantime, federal judges, prosecutors and defense lawyers have devised strategies to keep the wheels of justice turning and to protect their respective interests regardless of how the Supreme Court rules.
In Los Angeles, the U.S. attorney’s office has taken initial steps to appeal Berger’s and 23 other sentences handed down since the Blakely decision. The Justice Department’s position is that the Blakely ruling does not apply to U.S. sentencing guidelines.
Prosecutors also are incorporating into indictments allegations of aggravating conduct that in the past would have been raised at sentencing hearings. They also are returning to the grand jury to obtain superseding indictments in pending cases that have not yet gone to trial.
All of which means that prosecutors are bearing an increased burden of proof, said Chief Assistant U.S. Atty. George Cardona, second in command at the federal prosecutor’s office.
Cardona said, however, that more than 97% of all criminal cases brought by his office end in guilty pleas. Accordingly, the U.S. attorney’s office has adopted a policy of including so-called Blakely waivers in proposed plea agreements. By signing such a waiver, a defendant agrees to be sentenced under the old guidelines that are now under a cloud.
Maria E. Stratton, chief federal public defender in Los Angeles, has raised legal and ethical objections to the waivers. “If the guidelines are unconstitutional, they are unconstitutional, and our clients cannot and should not be sentenced under them,” she wrote to top brass at the U.S. attorney’s office.
Stratton added that her office would refuse to enter into any Blakely waivers, except in cases where the maximum punishment would fall between zero to six months in custody. She said she would consider authorizing an exception only under extraordinary circumstances.
“I believe this response to the waivers proposed by your office is the ethical way to represent our clients and constitutes effective assistance of counsel,” she said.
The confusion generated by the Blakely ruling has led to a patchwork of responses by the federal judges in Los Angeles and in the district’s satellite courts in Santa Ana and Riverside.
“I suppose you can say we’ve been all over the map,” said Chief Judge Consuelo B. Marshall, who is hoping for a quick Supreme Court decision.
Immediately after the Blakely decision, some judges took the position that they were bound by the ruling. Some held that it did not affect the federal guidelines. And others adopted a combination approach, handing down alternative sentences, one under the old guidelines and another adhering to Blakely. Almost all judges now follow the 9th Circuit’s mandate.
Yet another reaction has been to postpone sentencing with the consent of prosecutors and defense lawyers until the Supreme Court rules.
Those affected by the controversy agree on one point: A decision by the Supreme Court would not come too soon.