United States District Court, E.D. New York
July 20, 2004.
UNITED STATES OF AMERICA,
ALI SHER KHAN, Defendant.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
AMENDED MEMORANDUM ORDER & JUDGMENT
This case reflects some of the many sentencing issues raised by
the numerous appeals in criminal cases; they arise because of the
need to follow mechanical and often harsh sentencing guidelines
while taking account of the manifold differences in the human
condition. Often, as in the case of this defendant, a recent
Pakistani immigrant who prospered as a businessman and was
returning to his homeland to share some of the proceeds of his
success, the court may not fully understand his milieu.
In Blakely v. Washington, the Supreme Court invalidated the
State of Washington's sentencing guidelines under the Sixth
Amendment to the extent that they authorized judicial
fact-finding of enchantments factors warranting a sentence above
the applicable guidelines range. 2004 WL 1402697 (U.S. June 24,
2004). Blakely does not as some have speculated constitute
the death knell of the Federal Sentencing Guidelines. Compare
United States v. Croxford, 2004 WL 1521560, *6 (D. Utah July 7,
2004) ("[T]he inescapable conclusion of Blakely is that the
federal sentencing guidelines have been rendered unconstitutional
in cases such as this one."), with United States v. Pineiro,
2004 WL 1543170 (5th Cir. July 12, 2004) (declining to extend
Blakely to the federal guidelines). See also Mistretta v.
United States, 488 U.S. 361, 109 S.Ct. 647 (1988) (strongly
supporting Guidelines' constitutionality as appropriate
delegation of legislative powers and lack of violation of
separation of powers, over dissent of one Justice). Blakely
does provide Congress, the courts and the Sentencing Commission with an opportunity and
obligation to reevaluate and revise the Guidelines. They are
presently, in general (but not as applied in the present case),
overly rigid, overly complex, overly harsh, and overly expensive
to taxpayers and society. Blakely's reintroduction of the jury
into the present sentencing process suggests the desirability of
making the Guidelines discretionary guideposts as their name
implies rather than mandatory precepts, inflexible commands.
An appropriate sentence requires an appreciation of the subtle
socioeconomic factors defining and explaining the defendant. Yet
the judge is often unlikely to possess detailed knowledge or
appreciation of the defendant's background with its subtle
cultural and linguistic characterizations usually so different
from the court's: high status, relatively large income, assured
medical care, well-todo friends in high places, and the skills to
take advantage of the system and to avoid its pitfalls. Cf.
Anna Wierzbicka, On Happiness: A cross-linguistic and cross
cultural perspective, Daedalus, 34 (Spring 2004).
There are occasions and this arguably is one of them where
an advisory jury selected from a representative cross section of
the community may serve to bridge the lifestyle and empathy gap
between judge and criminal, providing the insights and the
opportunity for a more humane and effective administration of
justice. As indicated in Parts IV and V, infra, reliance on a
jury in sentencing is possible for this purpose.
A. Crime and Original Sentence
Defendant and two of his Pakistani countrymen had labored in
the chicken restaurant business. They had assembled substantial cash savings. As is apparently the
wont of recent immigrants, they were returning to their homeland
families with cash gifts wrapped for specific relatives; they
also carried cash entrusted to them by co-workers. See, e.g.,
Elizabeth Becker, Latin Migrants to U.S. Send Billions Home,
N.Y. Times, May 18, 2004 at C4 (quoting official at the
Inter-American Development Bank: "We want to bring [the $30
billion sent by immigrants to relatives back home] out of the
shadows so people understand the critical contribution these
hard-working people are making."). The money was in the
interstices of the bags of clothing they were taking with them.
As they were about to board their plane, representatives of the
United States government asked them to declare any cash they
carried in excess of $10,000. Ali Sher Kahn, the defendant, said
he had only $12,800. A search of his bags revealed $293,266 all
of it legally earned by himself or the friends for whom he was
transporting it. There was no hint that the cash was to be used
to fund terrorist activity or for any other illegal purpose. He
was arrested, detained, tried criminally, and became a defendant
in a civil forfeiture suit for the cash that the government had
After a jury trial, defendant was convicted of cash smuggling
(31 U.S.C. § 5332(a) and (b)), making false statements
(18 U.S.C. § 1001(a)(2)) and conspiracy (18 U.S.C. § 371). His sentence was
three years of supervised release, five months of home
confinement, a special assessment of $300 and a fine of $7,500.
(The civil forfeiture suit is still pending.) The court departed
downward twelve levels because of (1) defendant's family
circumstances and (2) the potential negative impact of a prison
sentence on the workers in the businesses he operated.
Upon appeal by the United States from the downward departure
the government's view being that imprisonment of no less than forty-one months was
required the Court of Appeals for the Second Circuit reversed
and remanded for resentence. It wrote in an unpublished opinion:
[T]he district court erroneously granted a downward
departure based on Ali Khan's family circumstances
and on account of his business and employees.
. . .
1. Family Circumstances
While it is possible that exceptional family
circumstances may exist here, the district court's
departure was erroneous based on the current record.
The record does not suggest that Ali Khan was the
primary let alone sole support. The record
similarly shows nothing as to how Ali Khan's
incarceration would affect those individuals.
Curiously, the expense portion of Ali Khan's monthly
net cash flow statement, which he submitted prior to
sentencing as part of his personal financial
statement, omits any mention of funds that he sends
to support his extended family.
2. Business and Employees
"[B]usiness ownership alone, or even ownership of a
vulnerable small business, does not make downward
departure appropriate"; but a "departure may be
warranted where . . . imprisonment would impose
extraordinary hardship on employees." United States
v. Milikowsky, 65 F.3d 4, 9 (2d Cir. 1995). The
Milikowsky Court upheld a downward departure based
on extensive documentary and testimonial evidence
demonstrating that the defendant was indispensable to
his two companies and to the continuing employment of
more than 150 individuals. Id. at 8-9.
It is possible, as the district court found, that Ali
is "the main spring in the enterprise and that it
will not succeed without him;" but the record does
not support the district court's decision to depart
on this basis. Even though Ali maintains that "[h]e
attends to the purchasing and every other detail" of
the twelve-employee business, he testified also that
one of his partners handles most of the paperwork.
Ali concedes that the facts of his case are not as
compelling as in Milikowsky. There is nothing in
the record, other than Ali's self-serving and somewhat contradictory claims, indicating that
Ali has unique skills essential to this enterprise,
or that his two partners could not hire a new manager
or do the work themselves.
* * *
The current record does not support either basis,
family or business circumstances, on which the
district court granted Ali Khan a downward departure.
On remand, therefore, the court should conduct
further fact-finding necessary to reassess whether a
downward departure is appropriate and then should
re-sentence Ali Khan consistent with this order and
any additional findings that the court makes.
United States v. Khan, No. 03-1227, slip op. at 6-8 (2d Cir.
Apr. 16, 2004).
The Court of Appeals generously added that the order of remand
"does not foreclose application of [USSG § 2S1.3(b)(2) (eff. Nov.
1, 2001)], assuming appropriate showings and findings." Id. at
8. As indicated in Part V, infra, that provision of the
Guidelines permits probation without a prison term.
III. Defendant's Background
The original presentence report and the original sentencing
hearing revealed the following background:
Defendant, now thirty-five, was born in Swat, Pakistan. He is
one of six children of the marital union of Bacht Zamal and
Mehina Bibi. Raised under lower-income economic conditions, he
reported an uneventful childhood, free from drug, alcohol, and
physical abuse. Because he could not read well enough to be
promoted, defendant attended school only until the sixth grade.
His father died in 1998 of a heart attack at the age of
fifty-six. His mother lives in Pakistan, is unemployed, and suffers from diabetes. She is supported by
defendant and his brother.
Defendant has four living siblings. His one brother resides in
the United States. He is John Sher, age thirty-four, living in
Camden, New Jersey, with his wife and six children. He is in good
health and is employed as a cook in a fast food restaurant. There
are three sisters. All are housewives living in Pakistan: Begun
Bibi is married with seven children; Maleeka Bibi is married with
five children; and Shagoupta Bibi is married with four children.
Defendant had another brother, Akbar Zada, who was beaten to
death in Pakistan following a dispute over the use of water from
a river; he is survived by his wife and six children, whom the
defendant helps support.
Defendant's wife, Flora Drake, is healthy and is employed
part-time in daycare, earning between $300 and $500 per week. The
marriage his only one has not resulted in any children,
although Mrs. Khan's son from a prior marriage, Lidel Drake, age
twenty-one, resides with defendant. They live in a modest two
bedroom, walk-up apartment. Lidel has two daughters, Monat, age
six, and Aliza, age eighteen months, who live with their mother.
Since Lidel is unemployed, defendant and his wife assist in
supporting his children.
Until he was twenty-one, defendant resided in Pakistan. In
1990, he traveled to the United States by ship. He lived in
Brooklyn for six months before moving to Middletown, New York,
where he has since resided.
In 1992, defendant applied for political asylum because of the
religious strife between the Shiites and Muslims in Pakistan; the
status of that application is not known. Immigration and
Naturalization Service records indicate that defendant is a
lawful permanent resident of the United States. Defendant reported no history of mental or emotional health
problems or of gambling. In 1993 he injured his right knee
playing soccer; surgery partially repaired the damage. He is
otherwise healthy. Until his arrest, defendant smoked one or two
marijuana cigarettes and drank two "shots" of brandy or cognac
two or three times a week. He has never used any other narcotic.
Prior to 1990 defendant was a laborer on a farm or a railroad
in Pakistan earning ten to fifteen rupees a day (equivalent to a
few dollars). For a few months he was a deck hand on a ship based
in Karachi, Pakistan, earning a total of $450 for this work. He
quit to travel by boat to the United States.
For six months in 1990 defendant was a construction laborer in
the Bronx. In 1991 he worked as a helper at a carpet store where
he earned $225 (net) per week, "off-the-books." He lost this job
when his employer left the area. From October 1991 to June 1992
he was a cook-trainee in a chicken fast food store in Newburgh,
New York, where he earned $150 a week; from June 1992 to January
1996, defendant was a cook at $200 a week. He left to open his
own restaurant in Camden, New Jersey.
Defendant is now partial owner and operator of three fried
chicken fast food stores in Camden. He opened the first in 1996,
investing with his friends, Maser Zafer and Liquat Ali; the
defendant and Liquat Ali own seventy-five percent of the
establishment, while Maser Zafer owns twenty-five percent. In
1998, the defendant, two cousins, and Liquat Ali opened a second
fried chicken store in Camden. In 2001, the defendant, a cousin,
and Liquat Ali opened a third fried chicken store in Camden. Each
store is located in a lower-income commercial area. Each contains
glass protecting employees from customers. All told they employ
twelve workers in addition to the owners. Defendant's filed income tax returns reflect the following:
Tax Year Adjusted Joint Gross Taxable Income
1997 $ 17,047 $ 2,197
1998 $ 20,878 $ 5,678
1999 $ 25,912 $ 10,462
2000 $ 35,362 $ 12,350
2001 $ 47,619 $ 22,146
His 2003 Personal Financial Statement reads:
(Omitting Good Will and Entrepreneurial Value)
Checking account No. 1 $ 4,200
Checking account No. 2 6,313
Automobile No. 1 5,800
Automobile No. 2 9,900
Camden, N.J. property No. 1 150,000
Camden, N.J. property No. 2 91,000
Total Assets $ 267,213
Liabilities $ 0
Net Worth $ 267,213
Obviously, coming to the United States has improved this
defendant's economic and social condition appreciably. As
indicated on his Personal Financial Statement, defendant now
earns monthly $3,933 (net) for his own labor and $3,020 (net) in
IV. The Guidelines are not Dead In Blakely v. Washington, 2004 WL 142697 (U.S. June 24,
2004), the Court found that enhancement of the length of a
sentence under the Washington State guidelines based on judicial
factfinding required, under the Federal Constitution, that the
"facts" must be found by a jury to be true beyond a reasonable
doubt. The dissents suggested that the rulings might lead to the
end of the Federal Sentencing Guidelines. See id. (dissenting
opinions). Partly as a result of Blakely, a number of judges
have declared the Guidelines dead. See, e.g., United States v.
Medas, 2004 WL 1498183 (E.D.N.Y. July 1, 2004) (declining to
submit a supplemental verdict sheet to jury for sentencing
enhancement factors); United States v. Croxford, 2004 WL 21560
(U.S. July 7, 2004) (declining to apply Guidelines and reverting
to pre-Guidelines procedure the sentence was much the same as it
would have been under the Guidelines); United States v.
Maflahi, No. 03-CR-412 (E.D.N.Y. June 9, 2004) (same); United
States v. Shamblin, 2004 WL 1468561, *8 (S.D.W. Va. June 30,
2004) (same); United States v. Green, 2004 WL 1381101 (D.
Mass., June 18, 2004 (finding that Guidelines were
unconstitutional before Blakely, based on the pre-Blakely
decision in Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)); Alan Vinegrad &
Jonathan Sack, Blakely: The End of the Sentencing Guidelines,
N.Y.L.J., July 5, 2004, at 48 ("The entire federal guidelines
scheme is on precarious constitutional grounds"). See generally
Sentencing Law and Policy, at http://sentencing.typepad.com
(July 12, 2004). But cf. United States v. Booker, No. 03-4225,
slip op. at 7, 9, 17 (7th Cir. July 9, 2004) (majority of court
held the Guidelines constitutional except in cases "in which they
limit defendant's right to a jury and to the reasonable doubt
standard;" defendant had right to a jury to determine the
quantity of drugs he possessed; separate sentencing jury trial approved; dissent would severely limit effect of Blakely).
The opinions of the learned judges finding the Guidelines
unconstitutional are well reasoned and entitled to great respect.
Many federal judges who believe the Guidelines unnecessarily
cruel to defendants and their families, unduly expensive to the
taxpayers who pay unnecessary billions for our bloated
penitentiary system, and a violation of separation of powers
under the Constitution would applaud the conversion of the
mandatory restrictive Guidelines into discretionary guidelines in
fact. But traditional deference of the courts to extensive
legislative and executive powers, as in Mistretta v. United
States, brings to mind Mark Twain's response to his own
premature obituary: "The reports of my death are greatly
exaggerated." John Bartlett, Familiar Quotations, 763a (14th ed.
As indicated in Part V, infra, the jury's participation in
sentencing has deep roots in this country's history and may be
incorporated in the constitutional right to a jury trial.
Experience with juries suggests that use of a jury in sentencing,
even after a plea of guilty or in a second phase of a trial on
the merits, is feasible. It is the mode in capital cases and, as
even the dissent acknowledges, apparently works in Kansas. See
Blakely, 2004 WL 1402697.
Most cases result in pleas, not trials. Blakely will,
undoubtedly, result in many plea agreements in which the
defendant concedes the facts that Blakely requires to be proven
by a jury. Defendants simply cannot resist the prosecutors'
offers of guaranteed low punishments. In the few cases of a
trial, after the guilty verdict, the special questions required
for enhancement of sentence can be put to the jury as in capital
cases. These issues will normally not be adjudicated at the main
trial of guilt or innocence since they will likely prove unduly
The jury instruction need not be as complicated as those the
government requested in United States v. Medas. 2004 WL 1498183. They should, unlike those in
Medas, be requested before the trial with adequate notice given
by indictment or letter. If the evidence to support them might be
prejudicial on the main issue of guilt or innocence, they can be
conveniently given to the same jury which determined guilt, in a
second phase, with the opportunity to supply additional evidence
and argument. This process works reasonably well in capital
cases. See 28 U.S.C. § 848(g)-(o).
The Department of Justice on July 2, 2004 directed a
communication to all prosecutors with respect to the government's
position on Blakely v. Washington. See Memorandum to All
Federal Prosecutors, from James Comey, Deputy Attorney General,
regarding Departmental Positions and Policies in Light of
Blakely v. Washington (July 2, 2004). Its basic position is
that Blakely does not apply to the Federal Sentencing
The position of the United States is that the rule
announced in Blakely does not apply to the Federal
Sentencing Guidelines, and that the Guidelines may
continue to be constitutionally applied in their
intended fashion, i.e., through factfinding by a
judge under the preponderance of the evidence
standard, at sentencing.
Id. at 1. This position seem plainly wrong and need not be
The fallback position stated in the communication is:
[I]f Blakeley applies, the constitutional aspects
of the Guidelines cannot be severed from the
unconstitutional ones. In that event, the court
cannot constitutionally apply the Guidelines, but
instead should impose a sentence, in its discretion,
within the maximum and minimum terms established by
statute for the offense of conviction. In all such
cases, the government should argue that, in the
exercise of its discretion, the sentencing court
should impose a sentence consistent with what should
have been the Guidelines sentence.
There are three critical components of this position.
First, the Guidelines remain constitutional and
applicable if the Guidelines sentences can be calculated without the resolution of
factual issues beyond the admitted facts or the jury
verdict on the elements of the offense of conviction.
Thus, in cases where a court, applying the Guidelines
as they were intended, finds that there are no
applicable upward adjustments under the Guidelines
beyond the admitted facts or the jury verdict on the
elements of the offense, the Guidelines are
constitutional and should be applied. Second, in a
case in which the defendant agrees to waive his
rights to resolution of contested factual issues
under the Blakely procedural requirements, the
Guidelines should be applied. Thus, waivers of
"Blakely rights" in connection with plea agreements
and guilty pleas may be sought. Third, in a case in
which there are applicable upward adjustments under
the Guidelines, and the defendant desires to contest
the underlying facts under the Blakely procedures,
the Guidelines system as a whole cannot be
constitutionally applied. In that event, the
government should urge the court to impose sentence,
exercising traditional judicial discretion, within
the applicable statutory sentencing range. The
government's sentencing recommendation in all such
cases should be that the court exercise its
discretion to impose a sentence that conforms to a
sentence under the Guidelines (including justifiable
upward departures), as determined with regard to
Id. at 2 (emphasis in original).
The first point of the Department of Justice the Guidelines
should be applied if a factual issue left unresolved by jury
verdict or admitted fact does not exist is correct. The second
point that a defendant may waive or stipulate to avoid
Blakely also is correct. The third point that when
Blakely applies, traditional sentencing without Guidelines
should be used is a possible alternative. A second alternative
is to apply the Guidelines without enhancement. A third
alternative is to use a jury to decide the special enhancement
facts. The trial judge should have discretion to use any of these
alternatives, with the advice of counsel, since procedural
difficulties in the individual case need to be weighed by the
court in deciding whether use of a jury is practicable.
Unless Blakely is made retroactive which seems highly
unlikely in view of the chaos which would result it is probable that this decision will have little
impact on practice in federal district courts. Cf. United States
v. Coleman, 329 F.2d 77, 90 (2d Cir. 2003) (Apprendi is not
retroactive). In most cases, the enhancing facts will be
With that background of current issues, it is useful to turn to
the history of juries and judges cooperating in sentencing in the
V. Jury and Court Cooperation in Sentencing
A. Rationale of Blakely
The rationale of the majority in Blakely is summed up in its
paean to the jury:
Our commitment to Apprendi in this context reflects
not just respect for longstanding precedent, but the
need to give intelligible content to the right of
jury trial. That right is no mere procedural
formality, but a fundamental reservation of power in
our constitutional structure. Just as suffrage
ensures the people's ultimate control in the
legislative and executive branches, jury trial is
meant to ensure their control in the judiciary. See
Letter XV by the Federal Farmer (Jan. 18, 1788),
reprinted in 2 The Complete Anti-Federalist 315, 320
(H. Storing ed. 1981) (describing the jury as
"secur[ing] to the people at large, their just and
rightful controul in the judicial department"); John
Adams, Diary Entry (Feb. 12, 1771), reprinted in 2
Works of John Adams 252, 253 (C. Adams ed. 1850)
("[T]he common people should have as complete a
control . . . in every judgment of a court of
judicature" as in the legislature); Letter from
Thomas Jefferson to the Abbe Arnoux (July 19, 1789),
reprinted in 15 Papers of Thomas Jefferson 282, 283
(J. Boyd ed. 1958) ("Were I called upon to decide
whether the people had best be omitted in the
Legislative or Judiciary department, I would say it
is better to leave them out of the Legislative");
Jones v. United States, 526 U.S. 227, 244-248,
119 S.Ct. 1215, 143L.Ed.2d 311 (1999). Apprendi
carries out this design by ensuring the judge's
authority to sentence derives wholly from the Jury's
verdict. Without that restriction, the jury would not
exercise the control that the Framers intended.
Blakely v. Washington, 2004 WL 1402697, *6 (U.S. June 24,
2004). B. Inherent Difficulty in Determining Original Meaning of Jury
The Constitution requires that we apply 1780 jury practice in
our courts. Yet any attempt to fully understand and apply
eighteenth-century rules for juries in twenty-first century
federal sentencing is bound to be somewhat chimerical. As in most
endeavors to construe late eighteenth-century legal practice as a
guide to appropriate current procedures, the former background,
applicable language, precedents and atmosphere is substantially
incongruent with our own. We tend to adopt because we generally
have no real choice unsophisticated political assumptions of
nineteenth as well as twenty-first century historians, rather
than focusing upon the actual functioning of the law and the
courts in widely disparate times and circumstances.
In his magisterial volume, Felony and Misdemeanor, Julius
Goebel, Jr., has noted the fundamental mendacity of the
historical process applied to many forensic issues determining
present rights. He wrote:
Our profession . . . for some seven centuries has
made a cult of its historical method. . . . In
America, at least, this ritual has become a matter of
mechanical gesture, bereft of all piety, pervaded
with pettifoggery. For here this method to which
jurists point with pride has been used for but mean
tasks. It is the small and immediate issues of
instant litigation which drive the practitioner to
the past in a myopic search for ruling cases and
Julius Goebel, Jr., Felony and Misdemeanor: A Study in the
History of Criminal Law at xxxiii (1976 ed.).
C. Discretion of Trial Court to Utilize Varying Procedures
A wide variety of techniques is available to judges seeking to
advise themselves in civil cases of relevant facts they must
determine, ranging from testimony by eyewitnesses and experts to
advisory juries. Cf. City of New York v. Beretta U.S.A. Corp., 2004 WL
1050875 (E.D.N.Y. 2004) (granting constitutional jury when
advisory jury is appropriate); N.A.A.C.P. v. Accusport, Inc.,
271 F. Supp.2d 435 (E.D.N.Y. 2003) (advisory jury); N.A.A.C.P.
v. Accusport Corp., 226 F. Supp.2d 391 (E.D.N.Y. 2003) (advisory
jury); Birnbaum v. United States, 436 F. Supp. 967 (E.D.N.Y.
1977) (same), aff'd on this ground, 588 F.2d 319 (2d Cir.
Where there is no specific rule on a subject covered in the
Federal Rules of Criminal Procedure, the civil rule or practice
may be borrowed. Rule 57(b) of the Federal Rules of Criminal
Procedure explicitly provides that when there is no controlling
law, "a judge may regulate practice in any manner consistent with
federal law. . . ." See also Charles Alan Wright, Nancy J.
King, Susan R. Klein, Federal Practice and Procedure, Federal
Rules of Criminal Procedure, § 902; Holmes v. United States,
363 F.2d 281, 283 (D.C. Cir. 1966) (power stemming from common
law; relying on Rule 42(b) of the Federal Rules of Civil
Procedure to avoid prejudice in criminal trial); United States
v. Colombo, 616 F. Supp. 780, 783 (E.D.N.Y. 1985) (applying by
analogy Rule 60(b) of the Federal Rules of Civil Procedure to
criminal proceeding in reliance on Rule 57(b) of the Federal
Rules of Criminal Procedure).
Determining whether use today of a jury in criminal sentencing
is consistent with our history particularly that of the third
quarter of the eighteenth century is desirable for reasons of
constitutional interpretation based on original meaning. Approach
to the topic must begin with the humble acknowledgment that the
founders, if they could at all understand our current bloated
federal criminal law and the labyrinthian structure of the
Guidelines, would be appalled or bemused.
D. Historical Discretion of Court In understanding the constitutionally-designed broad scope of
judicial discretion to control practice, it is hard to do better
than listen to Alexander Hamilton. Hamilton, a distinguished
practicing lawyer, noted that "liberty can have nothing to fear
from the judiciary alone. . . . The complete independence of the
court of justice is peculiarly essential in a limited
Constitution." The Federalist No. 78 (Alexander Hamilton). See
generally Vols. I & II, The Law Practice of Alexander Hamilton
(Julius Goebel, Jr., ed. 1964). He went on to add, in words that
could be applicable to the recent innovation of rigid federal
guideline sentencing, that,
[t]his independence of the judges is equally
requisite to guard the Constitution and the rights of
individuals from the effects of those ill humours,
which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among
the people themselves, and which though they speedily
give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to
occasion dangerous innovations in the government, and
serious oppressions. . . ."
Id. (emphasis added). Hamilton recognized that "the firmness of
the judicial magistracy is of vast importance in mitigating . . .
severity. . . ." Id.
The founders appreciated the desirability of having judges
involve juries in criminal trials as they were in 1789. See
U.S. Const. art. III, § 2 ("The Trial of all Crimes . . . shall
be by jury."); see also U.S. Const. amend. VII (establishing
trial by an impartial jury in civil cases). The jury as an
"institution" was to "remain precisely in the same situation in
which it is placed in State constitutions. . . ." The Federalist
No. 83 (Alexander Hamilton). Hamilton was referring in The
Federalist to the criminal jury since the civil jury was not
guaranteed until after the Constitution was adopted. Because of
Zenger and other cases, the public was well aware of the
importance of the jury in protecting human rights. See, e.g., Morris D. Forkosch, Freedom of the Press;
Croswell's Case, 35 Fordham L. Rev. 415 (1965) (describing the
Trial of Mr. John Peter Zenger, 17 Howell St, Tr. 675) (1735) and
Summarizing this earlier practice, with an analysis of the
serious departures from traditional practice under current
Guidelines, is the 2003 Address of Justice Anthony M. Kennedy to
the American Bar Association. He is reported to have said: "Since
the dawn of our republic and the creation of the federal court
system, the role of sentencing has traditionally been at the
discretion of the judiciary." Justice Anthony Kennedy, Our
resources are misspent, our punishments too severe, our sentences
too long, 51 The Fed. Lawyer 31, 31 (May 2004) (Marcia G. Shein,
ed.). Contrasting the present situation, he is said to have
declared, "No longer are judges able to address a defendant with
knowledge that the sentence imposed will be a just one." Id.
Supporting the Justice's reported critical views, footnotes have
been added by the editor. Id. at 35-36. See also Koon v.
United States, 518 U.S. 81 (1996) (describing the traditional
sentencing discretion of trial courts); Note, The
Unconstitutionality of Determinate Sentencing in Light of the
Supreme Court's "Elements" Jurisprudence, 117 Harv. L. Rev.
1236, 1259 (2004) ("Although discretionary sentencing may have
produced inconsistency and indeterminacy, the procedural
protections of the Constitution were not designed to create the
most efficient criminal justice system possible. They were
designed to ensure that each defendant receives adequate
protection against arbitrary state encroachment on his
liberty. . . . [D]espite all its perceived faults, discretionary
sentencing achieved this protection. And, with all their
perceived benefits, the Sentencing Guidelines do not.").
Professor Thomas Sargentick, writing about the historical
foundation of separation of powers, noted the importance of the special function of the judiciary in
protecting the respect and dignity due to those before it. He
The great value of courts is that of fairness, the
notion that litigants before them have a tribunal in
which they can count on the fundamental norms of
respect and dignity. The decision-making technique is
one of judgment, based on normative and practical
moral reasoning, and legal materials in order to
achieve a result that is in accord with the law and
applicable to the facts of a particular case. . . .
But the argument for judicial independence
necessarily rests, I think on the notion of
difference the notion that there are certain
special values that are reflected in the court system
and the judicial process.
Thomas Sargentick, Foundations of separation of powers, 87
Judicature 209, 212 (Mar.-Apr. 2004).
E. Historical Discretion of Jury
The fact that each of the states had distinctly different court
systems and procedures complicates determining how the jury in
criminal cases operated in colonial times. See The Federalist
No. 83 (Alexander Hamilton). As the colonies were turning into
states, moreover, nineteenth-century trial by jury was in process
of substantial change.
What tended to replace the eighteenth-century jury trial more
and more was the guilty plea. This trend began fairly early in
the nineteenth century and snowballed. By 1900, in New York
County, there were more than three times as many convictions in
felony cases because of guilty pleas than there were convictions
by judge or by jury. See Lawrence M. Friedman, Crime and
Punishment in American History 251 (1993); see also United
States v. Speedy Joyeros, N.A., 204 F. Supp.2d 412, 417
(E.D.N.Y. 2002) (less than five percent of criminal cases are
tried, giving the prosecutor enormous leverage in fixing sentence
under federal guidelines).
Earlier, the discretionary function in sentencing was shared by
judge and jury. John H. Langbein concluded:
The sentencing practices of the later seventeenth and
eighteenth centuries were a powerful source of
pressure on the defendant to speak at his trial. Our
modern expectation is that sentencing will occur in a
separate post-verdict phase, after the trial has
determined guilt. Furthermore, in jury-tried cases,
we expect the judge, not the jury, to exercise
whatever sentencing discretion the law might bestow.
In early modern times, however, these divisions of
function in sentencing matters between trial and
post-trial, and between jury and judge, were less
John H. Langbein, The Origins of Adversary Criminal Trial 57
(2003); see also Id. at 59 (describing "jury's power to
mitigate sanctions"); Barbara Wootton, Crime and Penal Policy 35
(1978) (changing views of the balance between justice and
fairness); J.M. Beattie, Crime and the Courts in England,
1660-1800 at 406 (1986) (describing changing relationship of
judge and jury and power of jury to affect punishment); Peter
Graham Fish, Federal Justice in the Mid-Atlantic South 30-32,
165066, 212 (undated) (conflict between jury and judge control
and differences between state and developing federal practice).
Juries decided questions of law and fact in criminal and civil
cases. See, e.g., William E. Nelson, Americanization of the
Common Law, The Impact of Legal Change on Massachusetts Society,
1760-1830, 257 n. 37 (1994). As Professor Larry D. Kramer put the
matter in The People Themselves, Popular Constitutionalism and
Judicial Review, 28-29 (2004):
[L]awyers argued fundamental law to juries, which
rendered verdicts based on their own interpretation
and understanding of the constitution. This was
consistent with the broad power of the
eighteenth-century jury to find law as well as fact
and to decide every aspect of a case. Judges might
instruct juries, but it was, in the words of John
Adams, "not only [every juror's] right but his Duty
in that Case to find the Verdict according to his own
best Understanding, Judgment and Conscience, tho in
Direct opposition to the Direction of the Court."
Placing juries in this dominant position, Adams explained, introduced a
"mixture of popular power" into the execution of the
law and was thus an important protection of liberty.
This was particularly true when it came to
fundamental law, for the jury was "the Voice of the
(Footnotes and quotations omitted); see also, e.g., James R.
Stoner, Jr., Common-Law Liberty, Rethinking American
Constitutionalism 94-96 (2003).
The authors known to the founders had a high respect for the
wide powers of the jury over law, fact and punishment. See,
e.g., James R. Stoner, Jr., Common Law and Liberal Theory: Coke,
Hobbes and the Origins of American Constitutionalism at 110
(Hobbes), 156 (Montesquieu), 210 (Hamilton) (1992); Paul O.
Carrese, The Cloaking of Power: Montesquieu, Blackstone and the
Rise of Judicial Activism at 5 ("More leading politicians studied
and cited Montesquieu in America's founding era than read Rawls
today. . . ."), 16 ("jury centered power"), 49 ("Juries are, for
Montesquieu a kind of cloaking device . . . judges will
imperceptibly mitigate the severity of the law. A cloaking power
quietly reforms the . . . severe moral standards. . . ."), 128
(Blackstone recognized that "the jury indeed was a point of pride
for English common law. . . ."), 170 (Blackstone's reliance on
"that central institution of the common law, trial by jury")
(2003); 4 William Blackstone, Commentaries 378 (St. George Tucker
Am. ed. 1803) (describing the jury as the "glory of the English
law," in civil and even more so in criminal cases).
In a sense, the jury was, and remains, the direct voice of the
sovereign, in a collaborative effort with the judge. It expresses
the view of a sometimes compassionate free people faced with an
individual miscreant in all of his or her tainted humanity, as
opposed to the abstract cruelties of a more theoretical and
doctrinaire distant representative government. Cf. Gary Wills,
Lessons of a Master, N.Y. Rev., June 24, 2004, at 12, 14 (reviewing Edmund S. Morgan, The Genuine
Article: A Historian Looks at Early America (2004)) (discussing
representative versus democratic government in the United
In the last quarter of the eighteenth century, juries were also
changing. Instead of partial fact providers, they were becoming
controlled fact finders, limited to knowledge acquired in the
courtroom. See, e.g., Langbein, supra, at 320-21.
The complexity of the late colonial practice and the
relationship of judge and jury can perhaps best be gleaned from
Julius Goebel, Jr. and T. Raymond Naughton, Law Enforcement in
Colonial New York, A Study in Criminal Procedure (1664-1776)
(1970). For our present purposes, it is enough to say that the
practice in the various colonies was a combination of actual
practice as revealed in court files, local legislation and
procedures adopted from that of the British in local and central
courts. See Id. at xvii-xix, xxiii, xxvii, xxix, 144-145. The
importance of "trial by the vicinage" to obtain local knowledge
and sentiments was recognized. Id. at 603-05. "[O]n some
occasions [in the late colonial period] matters were left to the
jury which in England would have been the province of the
court. . . ." Id. at 629. Mitigation by jury was recognized.
Id. at 675. There was "the feeling in Revolutionary times that
of all incidents of criminal justice trial by jury should remain
inviolate." Id. at 679. Discretion of the magistrate in
sentencing was broad. Id. at 682-83, 686, 703 n. 189, 707, 710,
& 748. Clemency was widespread. Id. at 749, 756. The jury could
exercise its charity. Id. at 751.
James Madison's fear of majoritarian abuse, particularly by the
legislature, and of the lack of power and will of judges to
protect minorities against maltreatment was partly ameliorated by
the jury. "When the people are the sovereign and, one way or
another, are the source of all the branches' power, an agency of
government that attempts to mete out justice against the will of
the people does so at its peril." James S. Liebman & Brandon L. Garrett, Madisonian Equal
Protection, 104 Colum. L. Rev. 837, 935 (2004) (paraphrasing
Madison). "Because judges with a `will' sufficiently `independent
of the people' to dispose them to resist majority oppression had
to be appointed and life-tenured, they inevitably `are too far
removed from the people to share much of their prepossessions'
and to partake of their trust." Id. at 936 (quoting Madison).
"However strongly disposed judges may otherwise be to counter
majority injustices, their lack of popular support deprives them
of their power and thus the courage to do so." Id. at 936
(emphasis in original); see also United States v. Chevere, ___
F.3d ___, 2004 WL 1059280, *2 (2d Cir. 2004) ("The jury speaks
for the community. . . .") (quoting United States v. Gilliam,
994 F.2d 97, 100-01 (2d Cir. 1993)).
Our modern cases recognize that the jury's influence in
sentencing dates back to eighteenth-century English courts, where
juries were able to reduce sentences by convicting on lesser
charges carrying lesser penalties. See Jones v. United States,
526 U.S. 227, 245 (1999) ("The potential or inevitable severity
of sentences was indirectly checked by juries' assertions of a
mitigating power when the circumstances of a prosecution pointed
to political abuse of the criminal process or endowed a criminal
conviction with particularly sanguinary consequences."); see
also Langbein, supra, at 57-58. This "pious perjury," as it
was called, was used most commonly to defeat attempts to impose
the death penalty. Id. (citing 4 Blackstone, Commentaries
239). Juries exercised this discretion in nearly twenty-five
percent of "a sample of London cases from the Old Bailey in the
1750's." Id. The subtle machinations of the ancient English
juries call to mind the contemporary prosecutor's power to
influence sentencing through the charges sought. See, e.g.,
Harris v. United States, 536 U.S. 545, 571 (2002) (Breyer, J.,
concurring) ("[Mandatory minimums] transfer sentencing power to
prosecutors, who can determine sentences through the charges they decide to
bring. . . ."); Lewis v. United States, 518 U.S. 322, 336
(1996) ("Prosecutors have broad discretion in framing charges.").
These maneuvers do not constitute formal sentencing authority,
but they are inseparable from sentencing practice.
F. Legislatively Recognized Jury Sentencing Power
The legislators of colonial America granted juries sentencing
power, recognizing the widespread common law practice. See,
e.g., Jenia Iontcheva, Jury Sentencing as Democratic Practice,
89 Va. L. Rev. 311, 316 (2003). Virginia was apparently the first
state to legislatively recognize that jury sentencing existed.
See Act of Dec. 22, 1796, § 15, 1796 Va. Acts ch. 2. In 1919,
fourteen states still utilized jury sentencing in noncapital
cases. See Iontcheva, supra, at 318.
G. Modern Decreased Use of Juries
The English and post-colonial states' trust in jury sentencing
stands in marked contrast to the practice in today's federal
courts; now appellate courts are disturbed by the thought of
jurors catching a whiff of the sentencing implications in their
deliberations. See, e.g., Aliwoli v. Carter, 225 F.3d 826, 829
(7th Cir. 2000) ("Since the jury only determines whether the
defendant is guilty or not guilty, `providing jurors sentencing
information invites them to ponder matters that are not within
their province, distracts them from their factfinding
responsibilities, and creates a strong possibility of
confusion.'") (citations omitted).
By the mid-twentieth century, jury sentencing was becoming the
exception. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986)
("[T]here is no Sixth Amendment right to a jury sentencing, even
where the sentence turns on specific findings of fact."). It is
said that only six states specifically, currently allow jury
sentencing in noncapital cases. See Iontcheva, supra, at 318. Jury participation in sentencing still has substantial support.
See, e.g., Morris B. Hoffman, The Case for Jury Sentencing,
52 Duke L.J. 951 (2003); Jenia Iontcheva, Jury Sentencing as
Democratic Practice, 89 Va. L. Rev. 311 (2003); Fernand N.
Dutile, Jury Consideration of Parole, 18 Cath. U. Am. L. Rev.
308 (1968); Adriaan Lanni, Note, Jury Sentencing in Noncapital
Cases: An Idea Whose Time Has Come (Again)?, 108 Yale L.J. 1775
(1999). Cf. Nancy J. King, Lessons from the Past: The Origins
of Felony Jury Sentencing in the United States, 78 Chi.-Kent.
L. Rev. 937 (2003); Note, Jury Sentencing in Virginia, 53 Va.
L. Rev. 968 (1967) (listing thirteen states which provide for
sentencing in non-jury cases); Note, Practice and Potential of
the Advisory Jury, 100 Harv. L. Rev. 1363 (1987); United States
v. Greenpeace, ___ F. Supp.2d ___, 2004 WL 840166 (S.D. Fla.
Apr. 15, 2004) (noting that jury trial is in court's discretion
and discussing historical precedent). Moreover, juror departures
when they seek to nullify the law in order to humanize it are
far from universally frowned upon. See, e.g., Kaimipono David
Wenger & David A. Hoffman, Nullificatory Juries, 2003 Wis. L.
Rev. 1115 (extensive authorities cited).
No suggestion is made that a late colonial court would have
used an advisory jury or a post-guilt finding jury trial in
determining a guidelines sentence. Such sentences were unknown.
Nonetheless, the practice cannot be said to be out of character
for a colonial judge faced with the kind of sentencing dilemmas a
federal judge now confronts under the Guidelines. It is not
aberrational to suggest that use of a jury on sentencing issues
of fact and perhaps on severity is consistent with history,
practice and the inherent role of federal courts and juries.
Reliance on the jury represents a reflection of our
government's dependence on the ultimate and residual sovereignty of the people. That foundation for all power
executive, legislative and judicial is reflected in the
preamble to the Constitution beginning, "We the People . . . do
ordain and establish this Constitution." See also, e.g., U.S.
Const. amend. IX (reserved rights); Declaration of Independence
("Governments . . . depriving their just Powers from the Consent
of the Governed."); James Madison, Essay on Sovereignty (1835)
(equating "the supreme power" to "the sovereignty of the people").
I. Waiver by Parties
In this case the parties have not requested that the court use
an advisory jury because one is not necessary to protect the
defendant and the public. See Part V, infra. Under the
approach described below, the non-custodial sentence does not
require jurors' factual findings supporting grounds for
departure. Counsel for both the Government and defendant now
concede this is the case. Accordingly, an advisory jury will not
be empaneled in this case.
VI. Sentencing Under Guidelines Section 2S1.3(b)(2)
A. Applicable Guideline and Supporting Facts
Subsection 2S.1.3(b)(2) of the United States Sentencing
Guidelines, effective November 1, 2001, states in part with
respect to defendant's crimes:
If (A) [not applicable] . . . (B) the defendant did
not act with reckless disregard of the source of the
funds; (C) the funds were the proceeds of lawful
activity; and (D) the funds were to be used for a
lawful purpose, decrease the offense level to level
The court finds the requisite elements (B), (C) and (D) as a
matter of fact. First, there has been no showing that defendant
"knew or believed that the funds were proceeds of unlawful
activity, or were intended to promote unlawful activity." The
defendant did not act with "reckless disregard of the source of
the funds." The funds were shown to be proceeds of defendant's
business operations or the labor of his friends. Defendant has no prior criminal history suggesting
that the funds were gained through illicit activity. See, e.g.,
United States v. $49,766.29 U.S. Currency, 2003 WL 21383277, *5
(W.D.N.Y. Jan. 22, 2003) (USSG 2S.1.3(b)(2)). Finally, the money
was intended for use as lawful financial assistance for
defendant's family in Pakistan and for those of his friends.
Level 6 of the Guidelines permits a term of probation. Given
the defendant's background and responsibilities to his own and
other families and business associates, a prison sentence is not
There are occasions when a conspiracy may provide a greater
threat to society than the crime itself since many dangerous
individuals combining may be of more concern than one defendant.
See American Law Institute, Model Penal Code & Commentaries,
Part 1, § 5.03 (1985) ("special danger incident to group
activity"); Herbert Wechsler, Kenneth Jones and Harold Korn, The
Treatment of Inchoate Crimes in the Model Penal Code of the
American Law Institute: Attempt, Solicitation and Conspiracy, 61
Colum. L. Rev. 571, 957-1017 (1961). Nevertheless, the Guidelines
provide in general for reduced penalties for a conspiracy that
does not succeed. See U.S.S.G. § 2X1.1. Here, although
defendant was convicted of conspiracy, the court finds there was,
for purposes of sentencing, no conspiracy. Defendant and his
friends engaged in parallel conduct, not a conspiracy even though
a jury was authorized to find a conspiracy. These were not
dangerous collaborators in crime, but individuals trying to do a
good turn to their former countrymen and relatives. There is no
reason to treat this defendant as a dangerous conspiring gang
C. Non-application of the Feeney Amendment The Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 ("PROTECT Act"),
passed by Congress in April of 2003, included a much-criticized
provision commonly referred to as the Feeney Amendment. Pub.L.
No. 108-21, 117 Stat. 650 (2003). See, e.g., Chief Justice
Attacks a Law on Infringing on Judges, N.Y. Times, Jan. 1, 2004
at p. A14; Carl Hulse, Bill to Create Alert System on Abduction
is Approved, N.Y. Times, Apr. 10, 2003 at A1 (quoting letter
from Chief Judge Rehnquist to Senate Judiciary Committee stating
that the Feeney Amendment "would do serious harm to the basic
structure of the sentencing guideline system and would seriously
impair the ability of courts to impose just and reasonable
sentences"); Michael Brennan, A Case for Discretion: Are
Mandatory Minimums Destroying Our Sense of Justice and
Compassion, Newsweek, Nov. 13, 1995, at 18; David M. Zlotnick,
The War Within the War on Crime: The Congressional Assault on
Judicial Sentencing Discretion, 57 S.M.U.L. Rev. 211, 229-37
(2004) (criticizing Feeney Amendment in text accompanying notes
The Feeney Amendment, among other unsound innovations,
prohibits a downward departure unless the ground for departure
was relied upon in the previous sentencing and approved by the
court of appeals. See 18 U.S.C. § 3742(g)(2). Section 3742 of
title 18 of the United States Code now provides:
(g) Sentencing upon remand A district court to
which a case is remanded . . . shall resentence a
defendant in accordance with section 3553 and with
such instructions as may have been given by the court
of appeals, except that
(1) In determining the range . . . the court shall
apply the guidelines . . . that were in effect on the
date of the previous sentencing of the defendant
prior to the appeal . . .; and
(2) The court shall not impose a sentence outside the
applicable guidelines range except upon a ground that
(A) was specifically and affirmatively included in
the written statement of reasons . . . in connection
with the previous sentencing of the defendant prior
to the appeal; and
(B) was held by the court of appeals, in remanding
the case, to be a permissible ground of departure.
The new sentence in the instant case is in accordance with a
suggestion by the Court of Appeals for the Second Circuit to
consider sentencing under subsection 2S.1.3(b)(2) of the
Guidelines. See Part II.B, supra. That court did not "foreclose
application of this provision, assuming appropriate showings and
findings." United States v. Khan, No. 03-1227, slip op. at 8
(2d Cir. Apr. 16, 2004) (unpublished opinion).
The new sentence after remand is not outside the "applicable
guidelines range" imposed by subsection 2S.1.3(b)(2) of the
guidelines. 18 U.S.C. § 3742(g)(2). The range dictated by
subsection 2S.1.3(b)(2) includes a term of probation to up to six
months imprisonment. See U.S.S.G., Sentencing Table (eff. Nov.
1, 2001). Where an independent section of the guidelines not
relied upon at the time of the original sentence operates to
reduce the new sentence without a downward departure, the Feeney
Amendment is not applicable.
In light of this decision, it is not necessary to consider
whether this and other guidelines changes have by now so
interfered with appropriate judicial discretion under Article III
of the Constitution as to be unconstitutional. See, e.g.,
Zlotnick, supra, at 235; Part IV, supra.
The range associated with subsection 2S.1.3(b)(2) is the
"applicable guidelines range" for purposes of subsection
3742(g)(2). A sentence within that range is not precluded by the
Feeney Amendment. VII. Conclusion
Defendant is sentenced to five years probation, a $300 special
assessment and a fine of $7,500. This is the sentence the court
would have imposed under its general powers were the Guidelines
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