US v. Ortiz
| Decision Date | 29 January 1992 |
| Docket Number | No. SACR 91-13(A)-GLT.,SACR 91-13(A)-GLT. |
| Citation | 783 F. Supp. 507 |
| Court | U.S. District Court — Central District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Rolando Madriz ORTIZ, Defendant. |
David A. Hoffer, Asst. U.S. Atty., Santa Ana, Cal., for plaintiff.
Law Offices of Howard J. Shopenn, Beverly Hills, Cal., for defendant.
This case presents the novel questions whether it is a due process violation to transfer a defendant's case from state to federal prosecution solely to obtain an increased federal sentence, and whether the court may depart from federal sentencing guidelines because the state sentence would have been substantially less severe than the federal sentence. Both questions are answered in the negative.
Defendant was arrested following an investigation by the City of Garden Grove police department, initiated by a resident's complaint of drug activity. After a police department surveillance, the Garden Grove police obtained a search warrant from a municipal court judge, executed the warrant, and arrested the defendant. He was placed in Orange County Jail and charged under California law with possession of narcotics for sale and conspiracy (California Health and Safety Code § 11351, and California Penal Code § 182).
Less than a month later, the case was presented to a Federal Grand Jury in Los Angeles. An indictment was returned against the defendant charging violations of the Federal Drug Abuse Prevention and Control Statutes. The state charges were later dismissed.
Defendant pled guilty to possession with intent to distribute approximately 936.8 grams of heroin in violation of 21 U.S.C. § 841(a)(1). Among various arguments raised by the defendant at his sentencing hearing, he contended that his due process rights were violated when the state charges were dropped and he was referred to federal authorities for prosecution of federal crimes which carried substantially longer sentences. The court, he argued, should therefore disregard the federal sentencing guidelines and minimum mandatory sentence concerning such offense. The court denied this contention, and also declined to consider disparate state sentencing ranges for purposes of a downward sentence departure. This written opinion is issued concerning such rulings.
The Court concludes the transfer from state to federal prosecution, even to obtain a longer sentence, did not violate defendant's due process rights. The Court also concludes the discrepancy between state and federal sentence guidelines is not a proper basis for federal sentence downward departure.
It is a fundamental rule of due process that "no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). A criminal statute is therefore invalid if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
It is not a violation of this rule for the government to select to prosecute a criminal act under one of several applicable statutes. The Supreme Court has long recognized that, when a criminal act violates more than one statute, the Government may prosecute either crime as long as the decision is not based upon an unjustifiable standard such as race, religion, or other arbitrary classification. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978); United States v. Sanchez, 908 F.2d 1443, 1445 (9th Cir.1990). Consequently, under most circumstances, the decision whether to prosecute and what to charge or bring before a grand jury rests in the prosecutor's discretion. Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668-669. Such prosecutorial discretion is not a violation of due process.
The defendant argues the rule should be different in the case of a prosecutor's discretion to select the forum, as opposed to selecting the statute. He contends it violates due process for the prosecutor to proceed with this case in federal court because it started in state court and was transferred to federal court solely because the federal penalty is more severe. Defendant asserts his case is entirely and exclusively a state-based claim: it originated with a citizen's tip to a Garden Grove police officer; the investigation was conducted by the Garden Grove police department's narcotics unit; the surveillance of the suspected activity was conducted by state officers; the search warrant was issued by a state judge; the search was executed by Garden Grove police officers; he was initially charged with violations of California law; and he was originally held at the Orange County Jail. Based on these factors, defendant concludes the case properly belongs in state court.
Similar to the discretion of prosecutors to select the particular crimes to prosecute, federal prosecutors have the discretion to prosecute a defendant in federal court for conduct which may also be a crime under state law. See Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959). The government may even seek a federal indictment for criminal conduct after prosecution has already commenced in state court or after a conviction has been obtained there. Id. at 195-196, 79 S.Ct. at 670-71. Thus, the transfer of the case from California state court to the federal court does not, by itself, violate defendant's due process rights.
Moreover, a transfer to federal court solely to obtain an increased sentence does not violate a defendant's due process rights. The analogy to the "choice of statute" cases is again appropriate: When evidence supports prosecution under different statutes, the "prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause." United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979). The Court reasoned that a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of the indictment and prosecution, and should similarly not be entitled to chose the penalty scheme under which the sentence will be imposed. Batchelder, 442 U.S. at 125, 99 S.Ct. at 2205.
Although Batchelder dealt with prosecutorial selection among applicable federal statutes, this same principle has been applied by several courts outside the Ninth Circuit to prosecutorial selection of forum. These courts have found that a prosecutor's decision to transfer a case from state to federal court, thereby subjecting the defendant to a heavier potential penalty, does not violate constitutional due process. See United States v. Andersen, 940 F.2d 593, 595-596 (10th Cir.1991) (); United States v. Frankel, 739 F.Supp. 629, 630 (D.D.C.1990) (); United States v. Smith, 727 F.Supp. 1023, 1024-25 (W.D.Va.1990) ().1
Although the Ninth Circuit has apparently not spoken on this issue, this Court adopts the reasoning of those cases, and concludes it is no violation of constitutional due process for what would otherwise be a state prosecution to be transferred to federal court solely to obtain an increased federal sentence.
Implicit in defendant's contention is the argument that, even if federal prosecution is not a due process violation, the court should take into account the great discrepancy between state and federal sentencing guidelines for the same offense as a ground for downward sentence departure. Apparently the Ninth Circuit has not directly ruled on this point, and the court has found no case from another circuit.
While disparities in sentencing are an inevitable part of our criminal justice system, Congress has attempted to eliminate disparities by developing sentencing guide-lines. "The objective of the guidelines `is to avoid unwarranted sentencing disparities among defendants with similar records who may have been found guilty of similar conduct ...'" McCleskey v. Kemp, 481 U.S. 279, 312 n. 35, 107 S.Ct. 1756, 1777 n. 35, 95 L.Ed.2d 262 (1987) (citing 52 Fed. Reg. 3920 (1987)).
Departures from the guidelines are specifically authorized by statute. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. But Congress only authorized a departure in the limited situation where the court finds that "... there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).
Chapter 5, Part K of the Guidelines deals specifically with departures and identifies several factors that the Sentencing Commission was unable to adequately address in establishing the Guidelines. This section again explains that the court may look to other factors that have not been given adequate consideration by the Commission, as such factors may warrant departure from the Guidelines. U.S.S.G. § 5K2.0.
The Ninth Circuit follows these principles, and has allowed departures in only limited circumstances.2 See, e.g., United States v. Floyd, 945 F.2d 1096 (9th Cir. 1991) (...
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