HIGH COURT DECISION MAY UPEND DRUG CASES

Federal Convictions In The Thousands Could Be Affected

A little-noticed U.S. Supreme Court decision last summer could upend
thousands of federal drug-trafficking convictions won in San Diego over
more than a decade.

At the very least, it's expected to lower sentences in certain
drug-smuggling cases. Already, it's changed the way juries decide such cases.

The key question raised by the decision is whether judges can consider
information not weighed by a jury when they impose a sentence. The answer
can mean a difference of many years in prison.

The Supreme Court's pivotal ruling in a New Jersey case is being refined in
scores of test cases throughout the nation, including at least 10 from San
Diego.

The outcome is especially important locally because drug-trafficking cases
account for almost half the caseload in San Diego federal court, one of the
nation's busiest.

Generally in a drug case, juries can convict if they merely conclude that
defendants knew they were transporting an illegal substance. They don't
have to determine whether the defendants knew the kind of drug or how much.

At sentencing, however, judges are permitted to use the amount and type of
drugs to decide punishment.

Smuggling five kilos of marijuana could draw a sentence of up to five years
in prison. But if the drug turned out to be cocaine, the sentence could be
10 years to life.

Defense attorneys have long protested the practice. They say it has meant
that unwitting drug couriers were given sentences meant for drug barons.

But prosecutors believe the threat of long sentences is a deterrent. And
many judges contend that they should have the discretion to consider
information that juries haven't.

The Supreme Court's decision last June gave defense attorneys their best
ammunition in a legal battle that's been running since Congress passed
controversial drugs laws in the early 1980s.

In the case of Apprendi vs. New Jersey, the court held, 5-4, that the jury,
not the judge, should have decided if a hate crime was motivated by racism
and, as a result, warranted a higher sentence.

Other than a prior conviction, any fact that increases the penalty for a
crime beyond the maximum sentence in the federal rules must be submitted to
a jury, Justice John Paul Stevens wrote in the majority opinion.

"Apprendi is a very broad ruling, but the reasoning behind it is clear: It
is wrong to convict a person for one crime and sentence them for another,"
said Erwin Chemerinsky, a professor of law at the University of Southern
California. "It's a case that could have enormous significance."

The decision got little publicity, partly because it was issued on the same
day of a landmark decision upholding Miranda warnings.

But within the legal community, reaction was swift and dramatic.

"It was a shock" because it raised "grave constitutional questions" about
federal sentencings, said David Steinberg, a professor at the Thomas
Jefferson School of Law in San Diego.

Legal scholars described it as the sleeper decision of 2000. Defense
attorneys immediately filed a flood of appeals.

Important stakes

In border areas like San Diego, where drug cases crowd court calendars, the
stakes are high.

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently heard
arguments in some of the San Diego cases. The panel's decisions can be
cited as precedent throughout the circuit, which covers nine Western
states, including California, and Guam and the Northern Mariana Islands.

In one of these cases, an Escondido man, Phillip Reschly, was arrested at
the San Ysidro border crossing after customs inspectors discovered 52.6
pounds of marijuana in three secret compartments in a car he was driving.

Reschly told the agents that someone he knew in Tijuana had asked him to
drive the car across and leave it at a fast-food restaurant in San Ysidro.

He denied knowing the car contained marijuana and denied he was paid to
smuggle drugs.

The judge told the jury that prosecutors are not required to prove the
amount of marijuana as charged in the indictment. The jury just needed to
prove beyond a reasonable doubt that there was a detectable amount of
marijuana.

The jury convicted Reschly. The judge sentenced him to 21 months, less than
the maximum. But his lawyer appealed, arguing that the jury should have
decided whether Reschly knew what he was driving across the border before
convicting him.

David Zugman, a defense attorney who appealed another San Diego case to the
9th Circuit, said lower-level smugglers are often duped by the traffickers
who hire them. Requiring juries to decide whether suspects knew exactly
what they were smuggling would avoid unfair sentences, he said.

"Most of the people who are caught are not the drug traffickers Congress
envisioned," Zugman said. "They are poor, migrant workers."

150 appeals

No matter what the lower courts rule, most disputes arising from Apprendi
are likely to remain unresolved until the Supreme Court takes up the issue
once again.

At least 150 appeals have been decided so far.

The impact of the decision hinges on at least one significant question:
Will the decision apply to defendants whose sentences were lower than the
statutory maximum?

David Curnow, a prosecutor in the appeals section of the U.S. Attorney's
Office, believes it applies only to sentences that are more severe than the
maximum. If he's correct, the ruling won't apply to a vast majority of
federal cases, because most reflect the maximum or less.

Another question is whether the case will allow convicts who have exhausted
their appeals to reopen their cases.

So far, most district and appeals courts have read the Supreme Court case
narrowly, saying it applies only to sentences in excess of the statutory
maximum. They also have said convicts cannot reopen their cases.

In the West, the 9th Circuit has clarified one issue -- at least for the
moment. It said juries in its nine states must decide the amount of drugs
before a judge can impose a higher sentence than the maximum set out in the
statutes. The type of drug was not at issue.

This decision was made in the case of Kayle Nordby, a Humboldt County man
accused of growing more than 1,000 marijuana plants. The judge sentenced
Nordby to 10 years, which was five years more than the maximum.

The appeals court ruled the sentence should be reduced, saying the
allegation that Nordby grew more than 1,000 marijuana plants should have
been proven to the jury beyond a reasonable doubt.

Nordby's San Francisco attorney, Linda Leavitt, said her client, who only
had a drunken-driving conviction before his marijuana arrest, was serving
one of the highest sentences in his prison camp.

Since Apprendi, most prosecutors include the amount of drugs in the charges
against a defendant. And in cases that might trigger sentences higher than
the statutory maximum, like Nordby's case, juries are being asked to decide
whether the defendant knew the amount.

"Thousands of defendants could ask for new sentences," Leavitt said.
"Whether thousands will succeed is another question."