This is a rather offbeat use of Blakely but we think it will work.
DANIEL A. HOROWITZ State Bar No. 92400
Attorney at Law
Second Floor
120-11th Street
Oakland, California 94607
(510) 444-4888
Attorney for Defendant NAME EXCISED
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff, No.
vs.
... NAME EXCISED,
Defendants.
__________________________/
... NAME EXCISED’S AUTHORITIES
ASSERTING "STATUTE OF LIMITATIONS"
(DEMURRER AND MOTION TO STRIKE SUPERSEDING INDICTMENT)
INTRODUCTION
These authorities raise the issue of whether the filing of a Superseding Indictment charging the same offense but adding
an "Apprendi" quantity allegation relates back to the original filing or is barred when (as in this case) the statute of limitations
has long run.
Relying upon the Apprendi line of cases the defense argues that because the quantity amounts alleged in the Superseding
Indictment set "the outer limits of a sentence, and of the judicial power to impose it, [they] are elements of the crime for
the purposes of the constitutional analysis." (Harris v. U.S., 536 U.S. 545, 547 (U.S. Jun 24, 2002)) The defense therefore
argues that the current Superseding Indictment is charging a new offense with greater punishment.
The basic rule is that a superseding indictment that is brought after the statute of limitations has run is timely if the
original indictment is still pending and if the superseding indictment does not substantially amend or broaden the original
charges. (United States v. Sears, Roebuck & Co., 785 F.2d 777, 778 (9th Cir.), cert. denied, 479 U.S. 988 (1986).
THE QUANTITY ALLEGATION ADDS AN ELEMENT OF THE CRIME
Our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), clarified what constitutes
an "element" of an offense for purposes of the Sixth Amendment's jury-trial guarantee. Put simply, if the existence of
any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact--no
matter how the State labels it--constitutes an element, and must be found by a jury beyond a reasonable doubt. Id., at
482-484, 490, 120 S.Ct. 2348.
(Sattazahn v. Pennsylvania, 537 U.S. 101, 110 (U.S.Pa. Jan 14, 2003) Emphasis added)
Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense,"
Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury. Pp. 2437- 2443.
(Ring v. Arizona, 536 U.S. 584, 585 (U.S. Jun 24, 2002) Emphasis added)
