Decision may cause wave of drug appeals Judges say they know ruling will dramatically change trial policy

The Associated Press
Tuesday September 12, 2000

SAN FRANCISCO — A federal appeals court Monday reversed a precedent in how drug convicts are sentenced, potentially ushering in a wave of new appeals. 

A panel of the 9th U.S. Circuit Court of Appeals overturned a common practice where judges, not juries, decide the quantity of drugs involved in a crime for sentencing purposes. 

The three-judge panel of the San Francisco-based circuit based its decision on a little-noticed June ruling by the U.S. Supreme Court that said juries, not judges, must decide if a hate crime was motivated by racial bias and therefore subject to a steeper sentence. 

“This is big. This is a major change in law,” said Linda M. Leavitt, a San Francisco defense lawyer whose client’s sentence was at issue Monday. “There’s probably thousands of cases like this across the country.” 

Leavitt represented a Humboldt County man convicted of cultivating marijuana. 

At sentencing, the government accused Kayle Nordby of growing 2,300 plants. The judge found he had grown more than 1,000 plants, requiring that he serve a 10-year sentence. If the judge found he grew less than 1,000 plants, he would have received a mandatory five-year term. 

In overturning the precedent, the panel reduced Nordby’s sentence to five years. 

The circuit panel acknowledged in its opinion that it was dramatically changing trial policy. 

“Our existing precedent to the contrary is overruled,” Judge William C. Canby wrote for the court that covers California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Alaska and Hawaii. 

Thousands of drug convicts who have exhausted their appeals could seek a new trial or request their prison terms be reduced, said Steve Kalar, a federal public defender in San Francisco. 

In new cases, federal prosecutors must prove to a jury the amount of narcotics at issue. 

“I think this is going to have a dramatic impact on drug cases,” Kalar said. “It’s really the jury that should be making these decisions, which is a fundamental American concept.” 

In June, the U.S. Supreme Court overturned a 12-year prison termed imposed on a white New Jersey man accused of firing shots into a black family’s home. The court found the defendant was entitled to a jury decision, not a judge’s, on whether he acted out of racial bias. 

Justice John Paul Stevens wrote for the majority that the case was “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” 

Three-judge panels of the 8th and 6th appellate circuits have ruled similarly to Monday’s decision.  

But experts said the 9th Circuit is the nation’s most influential and largest appellate panel and other circuits are likely to follow suit. 

The Supreme Court ruled on the hate crime case the same day it issued a landmark ruling saying police still must warn suspects of their right to remain silent when questioned. 

The case of so-called Miranda warnings received the bulk of media attention, and the hate crime case received little notice. 

“A lot of people thought the hate crime case was a revolutionary case,” said Yale Kamisar, a University of Michigan Law School professor. “It dwarfed (Miranda), which got more publicity.”