Yesterday, in what I believe to be a case of first impression, Judge Spatt in the EDNY fashioned an interesting Blakeley-inspired proceeding. To make  a long story short, my trial of the guy who faked his kidnapping to extort his cousin ended yesterday. The AUSA asked the Judge to have the jury render a special verdict on the isues which the government thinks will be sentencing enhancements, to avoid the probability that Blakeley will be applied to the USSG.

I objected, among other reasons, on the grounds that Blakeley by its terms does not apply to the USSG, but only to Washington guidelines, and further on the grounds that even if it arguably does apply there is no basis for the proceeding, and Congress or the Judicial Conference (or whoever)   needs to amend the Federal Rules of Criminal Procedure before this can be done. The Judge nonetheless permitted the jury to determine the issues, although he did not tell them about it until after they convicted. Then he gave them a special verdict sheet, requesting answers about loss amount and obstruction. We were permitted the opportunity to present a case and to sum up again on the narrow issues. Jury then deliberated another hour, and found the loss amount the government sought (it was obvious)...however, in the silver lining department, they answered "NO" to the question of wheteher he obstructed justice.