Blakely-ized Indictment and Sentencing Interrogatories Given Thumbs Up By Circuit

In United States v. Hedgepeth, No. 04-4564 (3d Cir. January 12, 2006), the Third Circuit bestowed its approval upon a Blakely-ized indictment and special sentencing interrogatories. Subsequent to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but prior to United States v. Booker, 125 S.Ct. 738 (2005), the Government filed a third superseding indictment in Hedgepeth's case adding a Notice of Special Findings containing three sentencing factors. The district court denied Hedgepeth's motion to strike the sentencing factors as surplusage and permitted a special verdict form to be submitted to the jury that included the three sentencing factors.

On appeal, the Third Circuit first clarified the standard for striking surplusage, holding that a court may strike surplusage from an indictment or information upon a defendant's timely motion only when the surplusage is both irrelevant (or immaterial) and prejudicial. Here, because the indictment was never revealed to the jury, there could be no prejudice. Accordingly, the Court affirmed the district court's decision denying Hedgepeth's motion to strike.

With regard to the special sentencing interrogatories, the Court held that special interrogatories are appropriate in the sentencing context when they are considered by the jury after a guilty verdict has been rendered. Here, the special verdict form was structured so that the jury was first instructed to determine Hedgepeth's guilt and only then move on to consideration of the related sentencing factors. The Court concluded that the structure of the special verdict form was sufficient to alleviate any danger of prejudice and affirmed the submission of the form to the jury.