Opinion
Criminal Action No. 03-675-02.
August 19, 2004
ORDER
AND NOW, this 19th day of August, 2004, upon consideration of defendant Milton Cintron's motion to strike surplusage from the superseding indictment (docket entry # 134) and the Government's response thereto, and the Court finding that:
(a) On July 28, 2004, the grand jury returned a superseding indictment against Milton Cintron and his co-defendants which included "notice of additional factors";
(b) Milton Cintron has moved to strike the notice of additional factors from the superseding indictment because those factors are not elements of the charged offenses and are thus allegedly irrelevant to this case;
(c) We will not grant a motion to strike pursuant to Fed.R.Crim.P. 7(d) "unless it is plain that the allegations in the indictment are not relevant to the charge made or contain prejudicial matter," United States v. Yeaman, 987 F. Supp. 373, 376 (E.D. Pa. 1997) (Newcomer, J.);
(d) Although the additional factors in the superseding indictment are not elements of the charged offenses, they are nevertheless relevant to the charged offenses because, if proven to and found by a jury, they would permit enhancement of the defendants' sentences under the Sentencing Guidelines;
Although Blakely v. Washington, 124 S. Ct. 2531 (2004), calls into question the extent to which the Guidelines remain constitutional, it is far from "plain" that they are sufficiently unconstitutional to make the additional factors irrelevant. Cf. United States v. Duncan, No. 03-15315, 2004 U.S. App. LEXIS 17250, at *7 (11th Cir. Aug. 18, 2004) ("[W]e cannot conclude that it is obvious from Blakely that the case would apply to render unconstitutional judicial fact finding leading to sentence enhancement under the Federal Sentencing Guidelines."). Thus, Milton Cintron has failed to carry his burden, as articulated inYeaman, of showing that the material is plainly irrelevant.
To be sure, Blakely implicates serious trial issues, but these will be considered at the September 7, 2004 hearing on the other defendants' motion to continue.
(e) Milton Cintron also argues that Mistretta v. United States, 488 U.S. 361 (1989), forbids the inclusion of the additional factors in the indictment, but Mistretta held only that the Sentencing Commission's promulgation of the Sentencing Guidelines did not violate separation-of-powers principles and did not speak to what matters are appropriately included in indictments; and
(f) Thus, we shall deny Milton Cintron's motion;
It is hereby ORDERED that Milton Cintron's motion to strike surplusage from the superseding indictment is DENIED.