From: "LadyNada" 
Subject: Supreme court approves bribery to lessen sentence
Message-ID: <199511112119.NAA06137@ix5.ix.netcom.com>
Date: Sat, 11 Nov 1995 16:19:43 +0000

Area : AEN NEWS
Date : 11-07-95  22:02
From : alt@iquest.net
To   : All
Subj : Supreme Court approves bribery to lessen sentence


From: "Al Thompson" 
Originally to: news@aen.org
Organiztion: American Justice Federation
Original Date: Tue, 07 Nov 95 22:01:03 -0600

         (Give more property - get a reduced prison sentence)


         Supreme Court supports government in forfeiture case
         ----------------------------------------------------

 (c) 1995 Copyright Nando.net
 (c) 1995 N.Y. Times News Service

WASHINGTON (Nov 7, 1995 - 20:48 EST) -- Bolstering the government's
efforts to seize the assets of convicted drug dealers, the Supreme
Court ruled Tuesday that defendants who agreed to forfeit their
property as part of a guilty plea were not entitled to a judge's
review of whether the government was taking more property than
authorized by law.

Ordinarily, a federal judge must review a guilty plea to make sure
that the defendant understood his action and that there was a factual
basis for the admission of guilt. The question for the court Tuesday
was whether this procedural protection extended to review of the scope
of a forfeiture agreement, which is a common part of a bargain for a
lighter sentence in federal drug cases carrying stiff mandatory
sentences.

The defendant in this case, a Wyoming accountant named Joseph
Libretti, agreed to forfeit all of his assets as part of a plea
bargain that gave him a 20-year sentence for running a big cocaine and
marijuana operation in Wyoming and Colorado. He had faced a possible
sentence of life in prison.

At the sentencing hearing, Libretti had a change of heart about the
breadth of his forfeiture agreement, which included a number of
assets, including a childhood coin collection and a company pension
plan, that were not tainted by his drug operation.

Criminal forfeiture under federal law is limited to property obtained
from, used in, or intended for use in drug trafficking, although the
government also has the legal right to take untainted assets as
substitutes for tainted property the defendant may have disposed of or
otherwise made unavailable.

The U.S. District Court in Wyoming agreed to give Libretti a chance to
show that any of his assets were not subject to orfeiture. The
government then successfully appealed that ruling to the U.S. Court of
Appeals for the 10th Circuit, in Denver.

In a majority opinion Tuesday by Justice Sandra Day O'Connor, the
court rejected two challenges Libretti made to the forfeiture. By a
vote of 8 to 1, the court agreed with the 10th Circuit that Rule 11(f)
of the federal Rules of Criminal Procedure, which requires a judge to
review the basis of a plea agreement, did not apply to any forfeiture
agreement because forfeiture was part of the sentence rather than part
of the criminal offense to which the defendant pleaded guilty.

In a dissenting opinion, Justice John Paul Stevens agreed with the
majority that Rule 11(f) itself did not give a right to judicial
review, but he said a judge had a legal obligation to make an
independent review in any event.

The court also rejected Libretti's second argument, that he had a
right to a jury trial on the appropriateness of the forfeiture order.
Noting that there was no constitutional right to a jury determination
on sentencing, Ms. O'Connor said that because forfeiture was an
element of sentencing, there was no right to a jury verdict. Although
federal law provides for a jury verdict on a criminal forfeiture,
Libretti had waived that statutory right when he agreed to plead
guilty, the court said.

Two members of the majority, Justices David H. Souter and Ruth Bader
Ginsburg, did not sign that part of the opinion. Souter said there was
no need to address the constitutional issue because Libretti had
received adequate notice that he was waiving any right to a jury
trial. Ms. Ginsburg, emphasizing that judges should take care to make
sure defendants understand the right they are giving up, said Libretti
had understood what he was giving up.

By rejecting the argument that a defendant has a constitutional right
to a jury trial on forfeiture, the court left intact a situation that
is highly favorable to the government.

The ruling means that if the forfeiture question does go to a jury,
under the federallaw that provides for a special jury verdict on the
amount to be forfeited, the government need not meet the standard of
proof that is constitutionally required in criminal cases. Instead of
having to prove its case beyond a reasonable doubt, the government
need meet only the lower standard of proving its case by a
"preponderance of the evidence."

The decision, Libretti vs. United States, No. 94-7427, was something
of a departure for the court, which over the last few years has
rebuffed the government's use of its forfeiture authority in several
notable cases.

The government setbacks have come in civil forfeiture cases, however,
and the ruling Tuesday may indicate that the court is still willing to
give the government considerable leeway to seek forfeiture as part of
a criminal case.

Later this month, the court will hear arguments in a civil forfeiture
case from Michigan in which the justices may be considerably more
skeptical of governmental authority.

The case, Bennis vs. Michigan, No. 94-8729, is a constitutional
challenge to a state forfeiture law by a woman who was co-owner with
her husband of a 1977 Pontiac and whose husband was arrested for
having sex in the car with a prostitute. The car was ordered forfeited
under the law, and the wife, Tina B. Bennis, is arguing that the
forfeiture violated her constitutional right to due process.


--- GEcho 1.02+
 * Origin: AEN NEWS Internet Gateway (1:231/110.1)