US v. Ziskind, No. 03-2645 (6/20/07). As part of the defendant’s trial, he executed a stipulation with the government that his alleged co-conspirator “had previously pleaded guilty to the counts of the indictment with which he was being charged.” The District Court had encouraged this as a way to get around a possible Bruton issue. After trial, Crawford came down, and on appeal, however, the defendant raises a Crawford argument. The First finds that there was no plain error.
But he also raises a Booker challenge to his sentence. It rejects an argument under Stogner v. California, 539 U.S. 607 (2003), and finds that a court can consider conduct that took place outside a statute of limitations period. Strangely, the District Court sentenced him to 63 months' imprisonment on the conspiracy count [18 U.S.C. § 371]. Problem is, the statutory maximum is 60 months, and the government conceded error, so he gets a remand.
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