Then, after returning its verdict on these first five factors, the jury would return to hear evidence, deliberate and determine the sixth sentencing factor:

6. That each defendant willfully obstructed the administration of justice during the course of the investigation or prosecution of this matter.

The court further ruled that the jury would not be presented with any evidence that defendants sought to obstruct or harass the undersigned district judge.

II. A. To date, it is not entirely clear whether or not Blakely applies to the U.S. Sentencing Guidelines. The question of whether the U.S. Sentencing Guidelines, to the extent they allow the district judge to determine certain aggravating sentencing facts, violate the Sixth Amendment right to a jury trial will soon be resolved by the Supreme Court, which has granted certiorari and scheduled oral argument for Oct. 4, 2004, for consolidated appeals of the Seventh Circuit decision in United States v. Booker, 2004 WL 1713654 (Aug. 2, 2004) and the District of Maine’s decision in United States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004). This court, though, could not await clarification of Blakely‘s impact. Instead, on June 24, 2004, the court determined that the safest course, for the protection of the rights of the defendants to trial by jury of sentencing enhancement facts, was to assume that Blakely changed the legal landscape for federal criminal cases, and that the Sixth Amendment, therefore, required that all facts enhancing a criminal defendant’s sentence beyond the base offense level be proved to a jury beyond a reasonable doubt.

B. Defendants argued that even if the Sixth Amendment protects the rights of these defendants to have all sentencing factors proved to a jury beyond a reasonable doubt, the government could not present the sentencing factors at a trial of these defendants because the factors were not charged in the indictment. This argument was based on a paragraph in Justice Sandra Day O’Connor’s dissent in Blakely, 124 S.Ct. at 2546.

Held: Blakely imposed no requirement that the sentencing facts in this matter be charged in the indictment. Alternatively, if such factors were required to be stated in the indictment in 2003, the indictment herein, enhanced by the bill of particulars as to the sentencing facts, sufficed to protect defendants’ rights.

The Blakely majority’s decision regarding sentencing factors, as well Apprendi, were based solely on the defendant’s Sixth Amendment right to a jury trial. The decisions did not address defendant’s Fifth Amendment right to indictment.

Blakely does not require retroactively that sentencing factors also be charged by a grand jury under the circumstances of this case, where the sentencing factors would have needed to be charged in an indictment entered over a year before Blakely. However, Blakely did intend that defendants be provided due notice of the sentencing factors with which they would be charged to prevent prejudicial surprise at trial. Such notice was provided here in the United States’ notice and amended notice of sentencing factors. The jury made specific findings on each sentencing fact.

It is well-established that an indictment does not need to set forth in great detail the charges against the defendant provided that it includes “a plain, concise and definite written statement of the essential facts constituting the offense charged” and “the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Fed. R. Crim. P. 7(c)(1). This indictment clearly passed that test.

Here, while the indictment did not recite specific sentencing factors by “chapter and verse,” it is clear that the indictment charged defendants with a factual basis that supports five of the six factors. First, for the factor that defendants were willful members of an active conspiracy past Nov. 1, 2001, the ndictment charged that “[f]rom at least as early as in or about May 2000 to in or about December 2001, in the District of New Jersey, and elsewhere, defendants … knowingly and willfully … conspired. … ” Second, for the factor that the intended loss of the conspiracy exceeded $10 million, the indictment charged that “ [t]he amount of the false and fictitious money orders totaled more than $10 million.”

Third, for the factor that the crimes involved more than minimal planning, the indictment includes 43 paragraphs explaining the “Defendants’ Scheme,” and the elaborate overt acts taken to plan and execute the scheme between May 2000 and December 2001, including their filings made with New Jersey, their placement of printing orders at the commercial printer, their inclusion of legal references on the money orders to provide them with an air of legitimacy, and their attempted passing of the money orders between December 2000 and November 2001.

Fourth, for the factor that the conspiracy offense involved more than one victim, the indictment provided the conspiracy’s intended victims. Fifth, for the factor that Harris, Lundy and Wooten had aggravating roles in the conspiracy, the indictment charges them as individuals who took specific steps to plan and oversee the conspiracy.

As a result, though the five sentencing factors relating to time of the conspiracy, amount of loss, more than minimal planning, number of victims, and role in the offense were not explicitly charged as such in the indictment, their factual bases were. Defendants then received the more specific charge of these factors, analogous to a bill of particulars, in the form of the notice of sentencing factors, even before the guilt-phase verdict was returned in this matter. Defendants were also provided an opportunity to be heard on the sufficiency of the charged sentencing factors, as amended in the amended notice of sentencing factors, prior to proceeding to trial on them. Under these circumstances, there can be no assertion that these defendants suffered any “prejudicial surprise at [their sentencing factors] trial,” see Fed. R. Crim. P. 7(f), where they received an indictment, supplemented by a notice of sentencing factors that acted as a bill of particulars to clarify the precise enhancement factors at stake, all before commencement of the sentencing phases.

As for the sixth sentencing factor, the obstruction-of-justice factor, it is clear that neither it nor its factual basis was charged, nor could have been charged, in the indictment. However, such facts were not required to be charged in the indictment and the amended notice of sentencing factors provided sufficient notice to defendants to allow them to prepare for trial on the enhancement for obstructing justice.

First, the obstruction facts could not have been charged in the indictment because the majority was not known at the time that the charges were presented to the grand jury. Therefore, the court here required the United States to provide explicit written notice of the obstruction facts, before the sentencing phase, and to require proof beyond a reasonable doubt to a unanimous jury.

Second, to have charged such facts in the indictment, or to have superseded the indictment to do so, would have required bifurcation of the obstruction phase in any event. Indeed, it was defendants who sought to have the obstruction factor tried separately from the other sentencing factors, to assure that it would not have any prejudicial spillover effect. There was simply no reason to include such information about obstruction of justice in the indictment or in a superseding indictment that would be presented to a jury determining issues of guilt and innocence on unrelated fraud charges.

As a result, the Fifth Amendment, when interpreted in light of Blakely‘s Sixth Amendment holding, did not require that the government present charges of obstruction of justice to the grand jury prior to proceeding to trial on the obstruction-of-justice sentencing factor. Instead, defendants were entitled to reasonable written notice of the charges asserted against them; such notice, and an opportunity to be heard, was provided to these defendants in the notice of sentencing factors and amended notice of sentencing factors.

Moreover, there was no surprise here. Defendants have been made aware, throughout the pendency of this matter, that they do not have a right to obstruct the court, the prosecution or the defense of others accused herein.

For these reasons, defendants were provided sufficient notice under the Fifth and Sixth Amendments regarding each sentencing factor charge asserted against them.

C. Having concluded that defendants were appropriately charged with the six sentencing factors, the court determined that the sentencing hearing should be bifurcated into two parts, such that the obstruction-of-justice factor would not be heard until the jury had reached its verdict on all other sentencing factors.

Here, had the jury heard the conduct of defendants, which, likely, could have qualified as a separate crime for obstruction of justice, the risk of undue prejudice would have been high.

Importantly, the obstruction of justice charged in this matter was directed against the prosecutors and judicial officers who have been involved in the case. Needless to say, the prosecutors did not testify about the harassment and obstruction, see R.P.C. 3.7. However, the jury was presented evidence, in this final phase of trial, about harassment to attorneys that they had watched in court over the course of a six-week trial. To have heard such personalized evidence at any earlier stage could have possibly prejudiced the jury into attributing “bad character” to all defendants regarding all of their charged actions. Severance guaranteed that could not occur.

The motion to require indictment of the sentencing factors charged is denied.

� Digested by Steven P. Bann

[The slip opinion is 70 pages long.]

For plaintiff � R. Stephen Stigall and Lee D. Rudy, Assistant U.S. Attorneys (Christopher J. Christie, U.S. Attorney). For defendants: William Oscar Harris � Edward F. Borden Jr. (Earp Cohn); Reginald David Lundy � Troy A. Archie (King, Archie & King); Reginald M. Wooten � R. Louis Gallagher II; Arthur T. Outterbridge � Rocco C. Cipparone Jr.; Robert McCurdy � Charles Sandilos.