United States v. Courtney

• Decision Date: 21 May 2013
• Docket Number: No. CR 11–2860 JB.,CR 11–2860 JB.
• Parties: UNITED STATES of America, Plaintiff, v. Keith Michael COURTNEY, Defendant.
• Court: U.S. District Court — District of New Mexico

960 F.Supp.2d 1152

UNITED STATES of America, Plaintiff,

v.Keith Michael COURTNEY, Defendant.

No. CR 11–2860 JB.

United States District Court, D. New Mexico.

May 21, 2013.

Kenneth J. Gonzales, United States Attorney, Mary L. Higgins, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Billy R. Blackburn, Paul Linnenburger, Albuquerque, NM, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Courtney's Motion to Preserve Right to Jury Trial, filed March 29, 2012 (Doc. 31)(“Motion”). The Court held a hearing on February 8, 2013. The primary issues are: (i) whether the Court should permit Defendant Keith Michael Courtney to inform the jury of the United States Sentencing Guidelines' advisory sentencing provisions at his trial; and (ii) whether the Court should instruct the jury with information that implies existence of its power to nullify. The Court will deny the motion. The Supreme Court of the United States' recent decisions about the Sixth Amendment to the United States Constitution's right to a jury trial suggest that the Supreme Court is willing to reconsider precedent by addressing whether a particular practice is necessary to the jury trial right as it existed at the time that the States ratified the Sixth Amendment. Historical sources and precedent show that the common-law jury at the Founders' time knew the ramifications of a guilty verdict and used that knowledge in reaching a verdict, frequently choosing a verdict because it would mitigate a defendant's punishment. Moreover, although courts at the Founders' time instructed the jury that the court's role is to provide the jury the law and that the jury's role is to apply that law to the facts as the jury finds them, the courts also instructed the jury that its role included ultimately deciding both the facts and the law. Additionally, courts at the Founders' time allowed lawyers to argue openly to the jury that it should exercise its ability to decide the law in the case and nullify the law that the court gives. Accordingly, the common-law jury in the Framers' era knew about and exercised its power to acquit when the government proved beyond a reasonable doubt that the defendant was guilty, or to mitigate the defendant's sentence regardless whether application of the law given by the court to the facts which the jury found provided otherwise. The Court concludes that, Supreme Court and especially Tenth Circuit precedent allowing the jury to know about sentencing ramifications only if its participation in sentencing is required, and precedent preventing the jury from learning about its nullification right, are inconsistent with trial practices at the Founders' time, and that these practices have eroded the Sixth Amendment jury trial right as the Framers understood that right. Nevertheless, because, as a district court, the Court must faithfully apply controlling Supreme Court and Tenth Circuit precedent, the Court will deny Courtney's motion to instruct the jury with information implying that it has the ability to depart from its duty to follow the Court's instructions on the law.

FACTUAL BACKGROUND

Courtney was part owner of Black Diamond Construction Company, Veritas Mortgage Company, and Polaris Realty, and co-Defendant Jason Johns was a loan officer with Veritas Mortgage. See Indictment ¶ 1–2, at 1, filed November 11, 2009 (Doc. 2). The Indictment charges that Courtney and Johns, with intent to defraud, devised a scheme to defraud Aurora Loan Services and Plaza Home Mortgage, and to obtain money, funds and other property from Aurora Loan and Plaza Home. See Indictment ¶ 5, at 1–2. The purpose of the scheme was to obtain loans from Aurora Loan and Plaza Home by inducing them to lend funds to straw buyers for the purchase of residential properties, and using those funds to pay off existing mortgages, construction loans, and fraudulently obtain a portion of the funds. See Indictment ¶ 6, at 2.

PROCEDURAL BACKGROUND

A federal grand jury indicted Courtney and Johns for wire fraud and aiding and abetting, associated with transactions that involve complex financial instruments, transactions, records, and activity over the course of nearly one calendar year. Courtney states that, upon information and belief, Plaintiff United States of America investigated this matter for approximately two years before presenting the case to the grand jury. An eight-page Indictment was entered on November 9, 2011, charging Courtney and co-Defendant Jason Johns with three counts of wire fraud, in violation of 18 U.S.C. § 1343. See Indictment at 1–7. The United States seeks Courtney's forfeiture of any and all property derived from the proceeds of the scheme, which is alleged to have included the illegal transfer of over $1,500,000.00. See Indictment at 6–7.

Courtney filed his Motion on March 29, 2012, “request[ing] this Court uphold Courtney's right to a jury trial and permit the jury to be informed of the Guideline advisory sentencing provisions at any trial in this matter.” Motion at 1. Courtney argues that the Government “repeatedly works to keep the jury ignorant of the ramifications of its determination of guilt,” which “ignores the deep historical roots of the jury and denigrates its sacred role as the last stalwart standing before tyranny.” Motion at 1–2. Courtney asserts that “[s]uch a lack of candor” violates the Supreme Court's guidance that courts should uphold a defendant's right to a jury trial “as it was at the time of the Framers.” Motion at 2 (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Courtney contends that the Supreme Court's recent decisions in United States v. Booker,Blakely v. Washington, and Jones v. United States,

ha[ve] altered the landscape of the Sixth Amendment's parameters ... [which] the Government has relied upon in support of continued ignorance .... [and] has emphatically rejected the pretense at the heart of the practice of disallowing jurors to learn the consequences of their verdict; that the jury is to ignore its role as the conscience of the community and bulwark against tyranny.

Motion at 2. Courtney asserts that “[t]he true meaning” of the Sixth Amendment requires the jury to be informed of the penalties associated with any guilty verdict if “its sacred role within our justice system is to be properly preserved.” Motion at 2.

When Courtney filed his Motion, he asserted that he expects the United States to rely on United States v. Parrish, 925 F.2d 1293 (10th Cir.1991), abrogated on other grounds by United States v. Wacker, 72 F.3d 1453 (1995), and United States v. Greer, 620 F.2d 1383 (10th Cir.1980), for the proposition that a jury can be informed of the possible penalties of a guilty verdict only if the jury is statutorily required to participate in the defendant's sentencing. See Motion at 2. Courtney contends that the holdings of these cases “were implicitly overturned,” because, contrary to the current aversion to candor to the jury, the Framers openly acknowledged the jury's nullification role and “praised it as a vital component to the jury's role.” Motion at 2–3. Courtney argues that the jury's sacred role in the common law, including its nullification role when faced with unjust application of laws, has been diminished in the twentieth century. See Motion at 3. He asserts that the Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), however, directed courts to preserve the jury trial as it existed at the Framers' time. See Motion at 3.

Courtney cites to United States v. Booker,Blakely v. Washington, and Jones v. United States in support of his contention that the Supreme Court “solidified this understanding of the parameters of the Sixth Amendment.” Motion at 3–4. He asserts: “The Supreme Court's declarations of the parameters of the jury's role in these cases is premised upon an honest examination of the historical significance of the jury and the role the Framers foresaw it must continue to play if liberty were to be preserved.” Motion at 4 (citing Blakely v. Washington, 542 U.S. at 306, 124 S.Ct. 2531).

Courtney argues that the Supreme Court emphasizes that the right to a common law jury trial is essential to liberty, is “fundamental to the American scheme of justice,” and that “this right was no accidental inclusion in our Constitution.” Motion at 4 (quoting Sullivan v. Louisiana, 508 U.S. at 277, 113 S.Ct. 2078). He asserts that the Framers intended the Sixth Amendment right to jury trial to eliminate the danger of unfounded criminal charges, and to “ensure the[ ] [people's] control in the judiciary.” Motion at 4 (quoting Blakely v. Washington, 542 U.S. at 306, 124 S.Ct. 2531). He asserts that the Framers' “understanding of the jury's role relied upon nullification of overly harsh sentencing.” Motion at 5. Relying upon the statement in Jones v. United States that “other liberties would remain secure only so long as this [jury acting as the bulwark of our civil liberties] remains sacred and inviolate, not only from attacks, ... but also from all secret machinations which may sap and undermine it,” Motion at 5 (quoting Jones v. United States, 526 U.S. at 246, 119 S.Ct. 1215)(internal quotations and emphasis omitted), Courtney argues that withholding the possible penalties associated with a guilty verdict “is just such a ‘secret machination’ which will ‘sap and undermine’ the sacred role of the jury.” Motion at 5. He asserts that, in light of the Framers' distrust of the government, they would have considered withholding such information from the jury as an affront to our liberty. See Motion at 5–6.

Courtney argues that the Framers' words...