US v. Bogle, 87-856-CR-MARCUS

• Decision Date: 11 August 1988
• Docket Number: No. 87-856-CR-MARCUS,87-848-CR-KEHOE and 87-964-CR-HASTINGS.,88-8019-CR-DAVIS,88-14001-CR-DAVIS,88-006-CR-RYSKAMP,87-855-CR-ARONOVITZ,87-858-CR-KEHOE,87-856-CR-MARCUS
• Citation: 693 F. Supp. 1102
• Parties: UNITED STATES of America, v. Beverly BOGLE, UNITED STATES of America, v. Marianne EUTSEY, UNITED STATES of America, v. Rafael S. PENA, UNITED STATES of America, v. Alan P. FOGEL, UNITED STATES of America, v. Marie D. PAUL, UNITED STATES of America, v. Steven M. ROBERTS, et al., UNITED STATES of America, v. Yolanda Rogers PEOPLES, UNITED STATES of America, v. Augusto GOMEZ.
• Court: U.S. District Court — Southern District of Florida

693 F. Supp. 1102

UNITED STATES of America, v. Beverly BOGLE, UNITED STATES of America, v. Marianne EUTSEY, UNITED STATES of America, v. Rafael S. PENA, UNITED STATES of America, v. Alan P. FOGEL, UNITED STATES of America, v. Marie D. PAUL, UNITED STATES of America, v. Steven M. ROBERTS, et al., UNITED STATES of America, v. Yolanda Rogers PEOPLES, UNITED STATES of America, v. Augusto GOMEZ.

Nos. 87-856-CR-MARCUS, 87-858-CR-KEHOE, 88-14001-CR-DAVIS, 88-8019-CR-DAVIS, 87-855-CR-ARONOVITZ, 88-006-CR-RYSKAMP, 87-848-CR-KEHOE and 87-964-CR-HASTINGS.

United States District Court, S.D. Florida.

August 11, 1988.

Dexter W. Lehtinen, U.S. Atty., and Harriett Galvin, Asst. U.S. Atty., S.D. Fla., Miami, Fla., for U.S.

Benson B. Weintraub, Natl. Ass'n of Criminal Defense Lawyers, Sonnet, Sale & Kuehne, Miami, Fla.

Stewart Abrams, Asst. Federal Public Defender, Miami, Fla., for defendant Beverly Bogle.

Ken Swartz, Asst. Federal Public Defender, Miami, Fla., for defendant Marianne Eutsey.

Philip Brutus, Asst. Federal Public Defender, Miami, Fla., for defendant Marie D. Paul.

Stephen Bronis, Miami, Fla., for defendant Rafael Peña.

Michael Salnick, West Palm Beach, Fla., for defendant Alan P. Fogel.

Luis Rojas, Hialeah, Fla., for defendant Steven Roberts.

Edward McHale, Miami, Fla., for defendant Yolanda Peoples.

Melvyn Kessler, Miami, Fla., for defendant Augusto Gomez.

Before KING, Chief Judge, ROETTGER, ARONOVITZ, HOEVELER, GONZALEZ, PAINE, KEHOE, SPELLMAN, DAVIS, HASTINGS, NESBITT, MARCUS, SCOTT, ZLOCH and RYSKAMP, District Judges, and ATKINS, Senior District Judge.

MARCUS, District Judge.

On June 15, 1988, this Court, sitting en banc, issued an Order finding the Sentencing Guidelines ("Guidelines") promulgated by the United States Sentencing Commission ("Commission") pursuant to the Sentencing Reform Act of 1984 as amended ("Act"), Pub.L. No. 98-473, ch. II, 98 Stat. 1837, 1976, 2017 (1984) amended by Sentencing Act of 1987, Pub.L. No. 100-182, 101 Stat. 1266 (1987), unconstitutional as a violation of the doctrine of separation of powers. This decision was reached reluctantly and after lengthy deliberation and analysis based upon consideration of the briefs filed by the Parties and amici curiae as well as oral argument taken before the full Court. At that time, we recognized that being "called upon to decide the validity of an Act of Congress is one of the `gravest and most delicate' tasks that a Court will ever face." United States v. Bogle, 689 F.Supp. 1121, at 1123 (S.D.Fla. 1988) (en banc) (quoting Rostker v. Goldberg, 453 U.S. 57, 65, 101 S.Ct. 2646, 2656, 69 L.Ed.2d 478 (1981)). We further recognized that although the Commission undertook its mission with great wisdom and skill, the placement of the Commission in the judicial branch and the required participation of at least three federal judges collided fundamentally with the doctrine of separation of powers because it called upon judges to write the very laws they would be required to interpret and apply. Accordingly, we ruled that the Guidelines would not be applied in the Southern District of Florida until we received further guidance from the Eleventh Circuit Court of Appeals or the Supreme Court.

In our initial en banc Order, we declined to reach the question of severability, and ordered further briefing on that issue. Subsequently, the United States moved to stay the effect of our ruling pending the decision of the United States Supreme Court in United States v. Mistretta and Mistretta v. United States, Nos. 87-1904, 87-7028, cert. granted, ___ U.S. ___, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988). Because of the need to resolve the stay and severability issues on an expedited basis, and the critical need to establish uniform procedures within the district while awaiting guidance from the United States Court of Appeals for the Eleventh Circuit, or the Supreme Court, in a brief per curiam Order we denied the Government's application for a stay and found the provisions of the Act which eliminated parole not severable, and the provision concerning "good time" credits severable. In that Order of June 30, 1988, we indicated that an opinion would later issue that detailed our reasons for these rulings. We do so today.

I. STAY

The standard that must be met in order to gain a stay pending Supreme Court review is well established. First, there must exist a "`reasonable probability' that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction." Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1980) (Brennan, Circuit Justice) (citations omitted). Second, there must be a

fair prospect that a majority of the Supreme Court will conclude that the decision below was erroneous.... Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. And, fourth, in a close case it may be appropriate to "balance the equities" — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.

Id. (citations omitted). The applicant has met the first requirement since the Supreme Court has granted certiorari in a case that presents issues identical to those under consideration here. Accordingly, we are left to examine the other prerequisites.

To begin with, we believe that the United States is without a "fair prospect" of prevailing in the Supreme Court. We reach this judgment principally for the reasons detailed in our opinion of June 15, 1988, and because of the position the Government asserted in the cases before us. We emphasize that the United States conceded that the legislation as enacted by Congress was unconstitutional. In its memorandum of law and at oral argument, the Government agreed with the Defendants that the placement of the Commission in the judicial branch, in fact, violated the separation of powers doctrine. Memorandum of the United States of America on the Constitutionality of the Work of the Sentencing Commission at 3, 28-38. The Government's answer to this constitutional defect was to call upon the Court to perform judicial surgery by "peeling away" the explicit Congressional designation placing the Commission in the judiciary and reconstituting the statute so as to house the Commission in the executive branch. We rejected this position as being inconsistent with both the explicit language of the Act and the obvious intent of the legislature. Moreover, we concluded that even if the Government could surmount those hurdles, placement in the executive branch still would not cure the primary constitutional infirmity of requiring judges to write the law of punishment for all federal crimes. Bogle, supra, at 1156-1159. We do not view the prospect as "fair" that the applicant will be able to persuade a majority of the Supreme Court that although — by the Government's very concession — this Act is unconstitutional as framed, radical, reconstructive surgery would be an appropriate means to redress the defect.

The Government correctly states the law when it argues that "the strong presumption of constitutionality that attaches to an act of Congress is a compelling factor in evaluating the probability of success on the merits." Motion to Stay Ruling Declaring Sentencing Guidelines Unconstitutional Pending a Final Decision of the United States Supreme Court in United States v. Mistretta, Nos. 87-1904, 87-7028, at 5 citing Bowen v. Kendrick, ___ U.S. ___, 108 S.Ct. 1, 97 L.Ed.2d 787 (1987) (Rehnquist, Circuit Justice); Walters v. National Association of Radiation Survivors, 468 U.S. 1323, 1324, 105 S.Ct. 11, 12, 82 L.Ed.2d 908 (1984) (Rehnquist, Circuit Justice) hereinafter "United States' Brief". However, the mere recitation of this standard does not persuade us, especially in view of the position advanced by the United States. The presumption of constitutionality afforded an Act of Congress might, in the abstract, weigh in favor of the entry of a stay. However, the Government never asserted before this Court that the statute as written was constitutional. Accordingly, the presumption alone does little to convince us that the United States has a fair prospect of success on the merits in the Supreme Court.

Further, we are unconvinced that any developments in the law subsequent to our ruling of June 15, 1988 would compel a different result. While we see no need to revisit the substance of our decision in order to resolve the motions before us, we note that the day before we denied the Government's application for a stay, the Supreme Court decided Morrison v. Olson, 481 U.S. 221, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). In its determination that the Ethics in Government Act of 1978, 28 U.S. C.A. §§ 49, 591 et seq. (Supp.1988) is constitutional, the Court employed an analysis that was in no way inconsistent with the functional analysis of separation of powers used in Bogle. In large measure the Court's analysis in Morrison rested on the Special Division's power under the Appointments Clause, U.S. Const.Art. II, § 2, cl. 2, to appoint inferior officers, and the Court concluded that "we do not think it impermissible for Congress to vest the power to appoint independent counsels in a specially created federal court." Morrison, 108 S.Ct. at 2610. In Bogle, we considered at length the relevance of the appointments clause and in particular the cases of Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879), and Hobson v. Hansen, 265 F.Supp. 902 (D.D.C. 1967) (three-judge court) to the cases sub judice. See Bogle, supra, at 1147-1149. We concluded that those cases were different first, because under the Guidelines, the judge/Commissioner did not exercise an appointment power; and second that the power actually conferred upon judge/Commissioners under the Act was "wholly unlike the delegation of a unique and discrete appointment power," id., at 1149, and incongruent with the judicial function.

Also,...