gomez cert petition
TRANSCRIPT
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No. ___________
In The
Supreme Court of the United States
________________________
CLARVEE GOMEZ,
Petitioner,
v.
UNITED STATES OFAMERICA,
Respondent.
________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
For the First Circuit
PETITION FOR WRIT OF CERTIORARI
Robert E. Toone*
Daniel L. McFadden
FOLEY HOAG LLP155 Seaport Boulevard
Boston, Massachusetts 02210-2600
(617) 832-1242
* Counsel of Record
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QUESTIONS PRESENTED
In this case, petitioner was sentenced to a ten-year mandatory minimum
under 21 U.S.C. 841(b)(1)(A)(ii) after the trial judge found that the offense
involved at least five kilograms of cocaine, even though: (i) the indictment charged
a lower drug quantity (500 grams) and a different offense, 21 U.S.C.
841(b)(1)(B)(ii) (which imposes a five-year mandatory minimum for offenses
involving at least 500 grams of cocaine); and (ii) the jury found only 500 grams.
Both the indictment error and the judicial factfinding error were preserved in the
district court and raised in the court of appeals. The First Circuit declined to grant
relief, even after this Courts ruling inAlleyne v. United States, 133 S. Ct. 2151
(2013), on the ground that both errors were harmless. The questions presented are
as follows:
(1) In a federal prosecution, can the punishment of a defendant for anoffense not charged against him in the indictment constitute harmless
error?
(2) In holding that the judicial factfinding error was harmless even thoughpetitioner contested the element at trial, did the First Circuit apply the
harmless-error standard contrary to the rulings of this Court and other
circuit courts?
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TABLE OF CONTENTS
Questions Presented ....................................................................................................... iTable of Contents ........................................................................................................... iiTable of Authorities ...................................................................................................... ivPetition for a Writ of Certiorari .................................................................................... 1Parties to the Proceeding .............................................................................................. 1Opinion Below ................................................................................................................ 1Jurisdiction .................................................................................................................... 1Constitutional and Statutory Provisions Involved ....................................................... 1Statement ....................................................................................................................... 3
A. Proceedings in the District Court ................................................................. 3B. Proceedings in the Court of Appeals ............................................................. 6
Reasons for Granting Review ........................................................................................ 9I. THE COURT SHOULD GRANT REVIEW TO RESOLVE TWO
LONGSTANDING CIRCUIT SPLITS REGARDING WHETHER
HARMLESS-ERROR ANALYSIS APPLIES TOCONSTITUTIONALLY DEFICIENT INDICTMENTS. .............................. 9A. The Circuits Are Split on Whether an Objected-to Constructive
Amendment Requires Automatic Reversal. ....................................... 9B. The Circuits Are Split on Whether the Omission of an Offense
Element Can Constitute Harmless Error. ....................................... 14C. By Authorizing Prosecutors to Introduce Uncharged Offenses
During Plea Negotiations and Pretrial Motion Practice, theFirst Circuit Has Stripped the Grand Jury of Its ConstitutionalRole and Exposed Citizens to Prosecutorial Abuse. ........................ 18
II. THE COURT SHOULD GRANT REVIEW TO RESOLVE A CIRCUITSPLIT ON HOW HARMLESS-ERROR REVIEW APPLIES TO
APPRENDIERRORS INVOLVING AN OMITTED ELEMENT THATWAS CONTESTED AT TRIAL. .................................................................. 20
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Conclusion .................................................................................................................... 28Appendix
Opinion of the First Circuit .............................................................................. 1a
Judgment of the First Circuit ......................................................................... 21a
Denial of Motion to Recall Mandate and for Leave to File Petition for
Rehearing ........................................................................................................ 22a
Indictment ....................................................................................................... 23a
Jury Verdict ..................................................................................................... 28a
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TABLE OF AUTHORITIES
United States Supreme Court Cases
Alleyne v. United States,
133 S. Ct. 2151 (2013) .....................................................................................passim
Almendarez-Torres v. United States,
523 U.S. 224 (1998)................................................................................................. 14
Apprendi v. New Jersey,
530 U.S. 466 (2000)....................................................................................... 5, 10, 14
Batchelor v. United States,
156 U.S. 426 (1895)................................................................................................. 10
Blakely v. Washington,542 U.S. 296 (2004)................................................................................................. 23
Bollenbach v. United States,
326 U.S. 607 (1946)................................................................................................. 26
Chapman v. California,
386 U.S. 18 (1967)................................................................................................... 22
Connecticut v. Johnson,
460 U.S. 73 (1983)................................................................................................... 22
Griffith v. Kentucky,
479 U.S. 314 (1987)................................................................................................. 26
Hamling v. United States,
418 U.S. 87 (1974)................................................................................................... 14
Harris v. United States,
536 U.S. 545 (2002)............................................................................................. 6, 21
Kotteakos v. United States,328 U.S. 750 (1946)................................................................................................. 26
Neder v. United States,
527 U.S. 1 (1999)......................................................................................... 22, 23, 24
Russell v. United States,
369 U.S. 749 (1962)........................................................................................... 10, 19
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Satterwhite v. Texas,
486 U.S. 249 (1988)................................................................................................. 26
Smith v. United States,
360 U.S. 1 (1959)..................................................................................................... 15
Stirone v. United States,
361 U.S. 212 (1960)................................................................................... 8, 9, 10, 19
Strauder v. West Virginia,
100 U.S. 303 (1880)................................................................................................. 10
Sullivan v. Louisiana,
508 U.S. 275 (1993)................................................................................................. 22
Taylor v. Louisiana,
419 U.S. 522 (1975)................................................................................................. 10
United States v. Calandra,
414 U.S. 338 (1974)................................................................................................. 18
United States v. Cotton,
535 U.S. 625 (2002)................................................................................................. 13
United States v. Gaudin,
515 U.S. 506 (1995)................................................................................................. 22
United States v. Mandujano,
425 U.S. 564 (1976)................................................................................................. 18
United States v. Miller,
471 U.S. 130 (1985)..................................................................................... 11, 14, 15
United States v. Resendiz-Ponce,
549 U.S. 102 (2007)................................................................................................. 17
United States v. Williams,504 U.S. 36 (1992)................................................................................................... 18
Vasquez v. Hillery,
474 U.S. 254 (1986)................................................................................................. 10
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Washington v. Recuenco,
548 U.S. 212 (2006)................................................................................................. 23
Weiler v. United States,
323 U.S. 606 (1945)................................................................................................. 25
Wood v. Georgia,
370 U.S. 375 (1962)........................................................................................... 18, 20
Federal Circuit Court Cases
United States v. Allen,
406 F.3d 940 (8th Cir. 2005)............................................................................. 12, 16
United States v. Anderson,
289 F.3d 1321 (11th Cir. 2002)............................................................................... 16
United States v. Brandao,
539 F.3d 44 (1st Cir. 2008)...................................................................................... 13
United States v. Chambers,
408 F.3d 237 (5th Cir. 2005)................................................................................... 12
United States v. Corporan-Cuevas,
244 F.3d 199 (1st Cir. 2001).................................................................................... 16
United States v. Crocker,568 F.2d 1049 (3d Cir. 1977)................................................................................... 11
United States v. DAmelio,
683 F.3d 412 (2d Cir. 2012)..................................................................................... 11
United States v. Du Bo,
186 F.3d 1177 (9th Cir. 1999)................................................................................. 16
United States v. Eirby,
262 F.3d 31 (1st Cir. 2001)........................................................................................ 7
United States v. Farr,
536 F.3d 1174 (10th Cir. 2008)............................................................................... 12
United States v. Floresca,
38 F.3d 706 (4th Cir. 1994)..................................................................................... 11
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United States v. Soto-Beniquez,
356 F.3d 1 (1st Cir. 2004)........................................................................................ 21
United States v. Spinner,
180 F.3d 514 (3d Cir. 1999)..................................................................................... 15
United States v. Velasco-Heredia,
319 F.3d 1080 (9th Cir. 2003)................................................................................. 15
United States v. Von Stoll,
726 F.2d 584 (9th Cir. 1984)................................................................................... 12
United States v. Zepeda-Martinez,
470 F.3d 909 (9th Cir. 2006)................................................................................... 23
United States v. Zingaro,
858 F.2d 94 (2d Cir. 1988)....................................................................................... 11
Constitutional Provisions
U.S. Const., amend. V................................................................................................ 1, 9
U.S. Const., amend. VI.................................................................................................. 1
Statutes
21 U.S.C. 841 ............................................................................................................... 2
21 U.S.C. 846 ............................................................................................................... 2
Additional Authorities
Harry T. Edwards, To Err is Human, But Not Always Harmless:
When Should Legal Error Be Tolerated?, 70N.Y.U. L. Rev. 1167 (1995).............. 25
J. Story, Commentaries on the Constitution of the United States (4th ed.1873)....... 23
Robert H. Jackson, The Federal Prosecutor, J. Am. Jud. Socy 18 (1940)................. 20
5 Wayne R. LaFave et al.,
Criminal Procedure 19.3(a) (3d ed. 2007)...................................................... 11, 15
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5 Wayne R. LaFave et al.,
Criminal Procedure 19.6(c) (3d ed. 2007) ...................................................... 12, 13
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PETITION FOR A WRIT OF CERTIORARI
Petitioner Clarvee Gomez respectfully petitions this Court for a writ of
certiorari to review the judgment of the United States Court of Appeals for the First
Circuit.
PARTIES TO THE PROCEEDING
The parties to the proceeding are those listed in the caption.
OPINION BELOW
The opinion of the United States Court of Appeals is reported at 716 F.3d 1
(1st Cir. 2013). The slip opinion is reprinted in the Appendix to this Petition. App.
1a20a. The court of appeals judgment is at App. 21a. The court of appeals order
denying petitioners motion to recall the mandate and for leave to file a petition for
rehearing (following this Courts ruling inAlleyne v. United States, 133 S. Ct. 2151
(2013)) is at App. 22a.
JURISDICTION
The court of appeals affirmed the judgment of the district court on May 3,
2013. App. 1a. This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grandjury, . . . nor be deprived of life, liberty, or property, without due
process of law . . . .
The Sixth Amendment to the United States Constitution provides:
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In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury . . . and to be
informed of the nature and cause of the accusation . . . .
21 U.S.C. 841 provides in relevant part:
(a) Unlawful acts. Except as authorized by this title, it shall be
unlawful for any person knowingly or intentionally
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance; . . .
(b) Penalties. Except as otherwise provided in section 409, 418, 419,
or 420, any person who violates subsection (a) of this section shall
be sentenced as follows:
(1) (A) In the case of a violation of subsection (a) of this section
involving-- . . .
(ii) 5 kilograms or more of a mixture or substance
containing a detectable amount of [cocaine] . . .
such person shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life . . . .
(B) In the case of a violation of subsection (a) of this section
involving
(ii) 500 grams or more of a mixture or substance
containing a detectable amount of [cocaine] . . .
such person shall be sentenced to a term of imprisonment
which may not be less than 5 years and not more than 40 years
. . . .
21 U.S.C. 846 provides in relevant part:
Any person who attempts or conspires to commit any offense
defined in this title shall be subject to the same penalties as thoseprescribed for the offense, the commission of which was the object of
the attempt or conspiracy.
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STATEMENT
There is no dispute that petitioner Clarvee Gomez was sentenced for a new,
aggravated crime that was neither charged in his indictment nor supported by the
jurys finding of drug quantity, in violation of this Courts ruling inAlleyne v. United
States, 133 S. Ct. 2151, 2161-62 (2013). The court of appeals refusal to grant relief
in response to either the indictment or the judicial factfinding error raises
fundamental questions and implicates several clear circuit splits concerning the
application of harmless-error review to constitutional errors.
A. Proceedings in the District CourtPetitioner and Juan Pena-Rosario were arrested on the evening of December
11, 2008. Pena was arrested after he drove away from a four-story commercial
building in downtown Lawrence, Massachusetts, where agents conducting
surveillance believed he had participated in a drug transaction. App. 7a-8a. A
search incident to arrest found one kilogram of cocaine on Penas person. App. 8a.
Petitioner Clarvee Gomez was arrested after he and two other unknown individuals
left the building 10 to 15 minutes after Pena did. App. 8a-9a. No drugs were found
on petitioner.
On December 17, the government charged petitioner and Pena with
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
841(a)(1) and 846. App. 9a, 23a-27a. The indictment stated that the alleged
conspiracy ran from at least in or about September, 2008, and continuing
thereafter until at least December 11, 2008, in the District of Massachusetts and
elsewhere. App. 9a, 23a. It further stated that the offense involved at least 500
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grams of a mixture and substance containing a detectable amount of cocaine, a
Schedule II controlled substance. App. 9a, 24a. Accordingly, Title 21, United
States Code, Section 841(b)(1)(B)(ii)applies to this Count. Id. Subsection
841(b)(1)(B)(ii) establishes a five-year mandatory minimum for distribution offenses
involving amounts between 500 grams and five kilograms of cocaine.
Pena entered a plea of guilty on December 8, 2009. App 9a. At his plea
hearing, the government stated that the one kilogram of cocaine found on Pena was
the sum total of the drugs attributable to this defendant in the course of the
conspiracy as charged. Around the same time, the government informed petitioner
that if he also pleaded guilty the government would hold him responsible for only
one kilogram of cocaine and, therefore, a five-year mandatory minimum would
apply at his sentencing. If, on the other hand, petitioner did not plead guilty, the
government told him that it would seek to introduce evidence of a separate,
unconsummated reverse transaction involving seven kilograms of cocaine and
occurring in Florida in August and September 2008 and would, as a result, seek a
ten-year mandatory minimum at sentencing.1
Petitioner did not plead guilty. App. 9a. Instead, he filed a motion to exclude
the evidence involving the Florida reverse transaction on the ground that it was
not relevant to this indictment. App. 10a. The district court denied this motion
without prejudice before trial, then overruled petitioners objections at trial and
allowed the evidence to be presented. Id. On the Florida transaction, the
1A reverse transaction is a law enforcement tactic in which agents or informants pose as dealers inan effort to sell drugs to unwitting buyers.
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government presented evidence from its confidential informant (CI) and recordings
of his conversations with petitioner, including conversations during which they
discussed a proposed transaction and petitioner tasted a sample of cocaine. App.
3a-4a. The transaction was never consummated because, at a subsequent meeting
in Lowell, Massachusetts the CI refused to provide a sample or provide the drugs in
exchange for an assurance of later payment. App. 4a-5a. Petitioner testified that
he had a problem using controlled substances at the time, that he traveled to
Florida because he wanted to find work in the construction industry and knew that
the CI had a construction business there, and that rather than intending to
effectuate any deal concocted by the CI and his colleague, he acted out of fear from
their threats and a genuine desire to find construction work in Florida. The jury
ultimately found him guilty. App. 11a. On the verdict form, it found that his
offense involved at least 500 grams or more of a mixture and substance containing
a detectable amount of cocaine. App. 11a, 28a.
At both trial and sentencing, petitioner argued that the weight of the drugs
was an element of the offense that had to be charged in the indictment and found by
a jury beyond a reasonable doubt. App. 10a-11a. The government responded by
arguing that underApprendi v. New Jersey, 530 U.S. 466 (2000), the terms of the
indictment controlled only the applicable maximum sentence, not the mandatory
minimum. At sentencing, the government argued that based on the evidence it
introduced regarding the Florida reverse transaction, petitioner should be
sentenced under 21 U.S.C. 841(b)(1)(A)(ii), which establishes a ten-year
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mandatory minimum for distribution offenses involving amounts greater than five
kilograms of cocaine. The district court agreed, found that the weight is eight
kilograms, and imposed a mandatory minimum sentence of 120 months. App.
11a.
B. Proceedings in the Court of Appeals
On appeal, petitioner challenged his ten-year mandatory minimum sentence
on two independent grounds. App. 11a. First, he argued that the sentence was
improperly based on a judicial finding of fact, not a finding by the jury. App. 18a-
19a. Second, he argued that he was sentenced for an offense for which he was not
indicted. App. 19a-20a.
The court of appeals found that both arguments were preserved by
contemporaneous objections in the district court. App. 10a-11a. It concluded,
however, that the judicial factfinding argument was foreclosed by its prior ruling in
United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003), which held that drug
quantity for purposes of 841 is a sentencing factor that may be determined by a
preponderance of the evidence, so that a judges determination of drug quantity
can influence the mandatory minimum sentence imposed. App. 18a-19a. The
court wrote:
Gomez notes, however, that our holding in Goodinerelied on Harris v.
United States, 536 U.S. 545 (2002), and that the Supreme Courtrecently heard oral argument on whether Harris should be overruled.
See Alleyne v. United States, No. 11-9335 (argued Jan. 14, 2013).
Gomez urges that we should withhold decision in this appeal until
Alleyneis decided. We decline to do so. Under controlling First Circuit
and Supreme Court precedent, the district court did not err in
sentencing Gomez to a mandatory minimum sentence based on the
courts findings as to drug quantity.
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App. 19a. The Court further stated that, in any event, any judicial factfinding error
was harmless. Id.
The court of appeals also held that petitioners indictment-based challenge
was foreclosed by United States v. Eirby, 262 F.3d 31, 37 (1st Cir. 2001), which held
that when a defendant receives a sentence below the default statutory maximum,
the inclusion of a wrong drug weight in the indictment does not constitute
reversible error underApprendiregardless of its effect on the mandatory minimum.
App. 19a-20a. Under this precedent, the court of appeals held, the switch from
841(b)(1)(B) (the offense charged) to 841(b)(1)(A) (the offense for which petitioner
was sentenced) did not require reversal unless it deprived appellant of notice or
otherwise misled him to his detriment. App. 20a. It then found that petitioner had
ample notice of the applicability of 841(b)(1)(A) and its higher drug-weight
threshold due to the fact that he had filed a motion to exclude evidence of the
Florida reverse transaction. Id. The court of appeals therefore concluded that it
was not error to sentence petitioner pursuant to a statutory provision not specified
in the indictment. Id.
Finally, the court of appeals noted that the viability of the precedent it was
relying on Goodineand Eirby may be called into question by the Supreme
Courts upcoming decision inAlleyne v. United States, No. 11-9335 (argued Jan. 14,
2013). App. 2a n.1.
The court of appeals issued its decision on May 3, 2013. App. 1a. This Court
decidedAlleyne on June 17, 2013. On June 20, three days later, petitioner filed a
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motion to recall the mandate and for leave to file an attached petition for rehearing
and rehearing en banc. Petitioner explained thatAlleynedid in fact overrule
Goodineand Eirbyby holding that the principles inApprendiapply with equal
force to facts increasing the mandatory minimum. Alleyne, 133 S. Ct. at 2161. In
particular, petitioner argued that he was entitled to sentencing relief because he
had been sentenced for a new, aggravated crime for which he had not been
charged. See id. Petitioner further observed that this Court has held that the
deprivation of the right to be tried only on charges presented in an indictment
returned by a grand jury is far too serious to be . . . dismissed as harmless error.
Stirone v. United States, 361 U.S. 212, 217 (1960).
The government responded to petitioners motion on July 11, 2013. It
conceded that, underAlleyne, petitioner had been erroneously sentenced for an
offense not charged in his indictment. Nevertheless, it argued that the error did not
warrant relief because it was harmless. In particular, the government argued that
omitting the five-kilogram drug quantity from the indictment did not prejudice
Gomez because he had ample notice that the government would seek to prove that
drug quantity at trial. It did not address Stironein its response.
On July 22, 2013, the court of appeals denied petitioners motion to recall the
mandate without comment. App. 22a.
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REASONS FOR GRANTING REVIEW
I. THE COURT SHOULD GRANT REVIEW TO RESOLVE TWO
LONGSTANDING CIRCUIT SPLITS REGARDING WHETHER
HARMLESS-ERROR ANALYSIS APPLIES TO CONSTITUTIONALLY
DEFICIENT INDICTMENTS.
This Court should grant the petition in order to decide whether Stirone v.
United States, 361 U.S. 212 (1960), remains good law and to resolve two broadly
acknowledged circuit splits involving the applicability of harmless-error doctrine to
constitutionally defective indictments.
A. The Circuits Are Split on Whether an Objected-to Constructive
Amendment Requires Automatic Reversal.
The Grand Jury Clause of the Fifth Amendment provides that [n]o person
shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury. U.S. Const., amend. V. Put simply, a
court cannot permit a defendant to be tried on charges that are not made in the
indictment against him. Stirone, 361 U.S. at 217 (citation omitted). In Stirone, the
indictment charged the defendant with obstructing shipments of sand to
Pennsylvania, but the judge allowed the government to argue that he also
interfered with shipments of steel from Pennsylvania. Id.at 213-14. This Court
reversed the conviction, holding that the trial court had committed fatal error by
allowing the defendant to be convicted on a charge the grand jury never made
against him. Id.at 219. The deprivation of the right to be tried only on charges
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presented in an indictment returned by a grand jury, it observed, is far too serious
to be . . . dismissed as harmless error. Id.at 217.2
Here, there is no dispute that, despite his timely objections, petitioner was
erroneously sentenced for an offense that was not charged in his indictment. In
Alleyne, this Court held that any fact that increases a mandatory minimum
sentence forms an essential ingredient of the offense and, along with the core
crime, constitutes a new, aggravated crime. 133 S. Ct. at 2161; see also id.
(Defining facts that increase a mandatory statutory minimum to be part of the
substantive offense enables the defendant to predict the legally applicable penalty
from the face of the indictment.) (citingApprendi, 530 U.S. at 478-79). Even
though petitioners indictment stated that his offense involved at least 500 grams
of cocaine and that, [a]ccordingly . . . Section 841(b)(1)(B)(ii) applies to this Count,
he was sentenced to a ten-year mandatory minimum under 841(b)(1)(A)(ii), which
applies to five kilograms or more a new, aggravated, and uncharged crime.
Nevertheless, the government argued that this indictment error should be
dismissed as harmless, and the court of appeals concurred by refusing to reconsider
its decision afterAlleynewas decided.
2Where the defendant preserved a timely objection to a constitutional indictment error, this Courthas consistently adhered to a strict rule of reversal. See Vasquez v. Hillery, 474 U.S. 254, 256 (1986)(racial discrimination in composition of grand jury); Russell v. United States, 369 U.S. 749, 771-72(1962) (omission of essential fact from indictment); Stirone, 361 U.S. at 219 (constructiveamendment of indictment); Batchelor v. United States, 156 U.S. 426, 432 (1895) (failure to allegeessential elements with sufficient specificity); Strauder v. West Virginia, 100 U.S. 303, 304 (1880)(racial discrimination in composition of grand jury), abrogated on other grounds by Taylor v.Louisiana, 419 U.S. 522 (1975).
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Following Stirone, the majority of circuit courts have held that where a
timely objection was made below, the constructive amendment of an indictment
constitutes error per se and requires reversal. See United States v. Floresca, 38
F.3d 706, 711 & n.12 (4th Cir. 1994) (collecting cases); 5 Wayne R. LaFave et al.,
Criminal Procedure 19.3(a) at 267 (3d ed. 2007) (Under the traditional standard
of appellate review, a constructive amendment, if properly challenged at the trial
level, required the automatic reversal of conviction on appeal, without considering
the possibility of the error being harmless.).3
The Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh,
and D.C. Circuits continue to hold this position. SeeUnited States v. Zingaro, 858
F.2d 94, 98 (2d Cir. 1988) (reversing conviction because it is well settled that the
constructive amendment of an indictment is per se violative of the grand jury clause
of the fifth amendment); United States v. Crocker, 568 F.2d 1049, 1060 (3d Cir.
1977) (The consequence of a constructive amendment is that the admission of the
challenged evidence is per se reversible error, requiring no analysis of additional
prejudice to the defendant.), overruled on other grounds by United States v. Miller,
527 F.3d 54 (3d Cir. 2008); Floresca, 38 F.3d at 711 (In the usual case, where the
error has been properly preserved, this rule requires a reviewing court to
conclusively presume that the defendant has been prejudiced by the constructive
3A constructive amendment occurs when the terms of the indictment are in effect altered by thepresentation of evidence and jury instructions which so modify essential elements of the offensecharged that there is a substantial likelihood that the defendant may have been convicted of anoffense other than that charged in the indictment. United States v. DAmelio, 683 F.3d 412, 416-17& n.2 (2d Cir. 2012).
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amendment and to forgo harmless error analysis.); United States v. Chambers, 408
F.3d 237, 241 (5th Cir. 2005) (holding that in case of constructive amendment
reversal is automatic, because the defendant may have been convicted on a ground
not charged in the indictment) (citation omitted); United States v. Ford, 872 F.2d
1231, 1235 (6th Cir. 1989) (holding that constructive amendment is per se
prejudicial and warrants reversal of a conviction); United States v. Pigee, 197 F.3d
879, 887 (7th Cir. 1999) (reversing conviction because such a constructive
amendment is an error that is reversible per se); United States v. Von Stoll, 726
F.2d 584, 586 (9th Cir. 1984) (holding that constructive amendment is considered
prejudicial per se); United States v. Farr, 536 F.3d 1174, 1184-85 & n.7 (10th Cir.
2008) (holding that constructive amendment provides a sufficient basis, standing
alone, to compel reversal without any further showing of prejudice and disclaiming
earlier constructive amendment cases in which court loosely invoked the term
harmless error); United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004)
(reversing convictions because constructive amendment of the indictment is per se
reversible error); United States v. Lawton, 995 F.2d 290, 292 (D.C. Cir. 1993)
(What occurred amounted to a constructive amendment of the indictment and, for
that reason, his convictions must be reversed.).
Two circuits have departed from the majority view and held that an objected-
to constructive amendment is not a structural error. See 5 LaFave, supra, at
19.6(c) at 339-40 (recognizing circuit split). In United States v. Allen, 406 F.3d 940
(8th Cir. 2005) (en banc), the indictment failed to include a capital punishment
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statutory aggravator. The Eight Circuit applied harmless error after rejecting the
contention that Stironerequired the defect to be treated as a structural error
requiring automatic reversal without a showing of prejudice to the defendant. Id.
at 944. Similarly, in 2008 the First Circuit disclaimed its prior rulings describing
constructive amendments as prejudicial per se and held that constructive
amendments should not be considered structural errors. United States v. Brandao,
539 F.3d 44, 59 & n.9, 60-61 (1st Cir. 2008). It reasoned that this Court has not
extended Stirones per se reversal approach to closely related situations and
suggested that Stironemay no longer require automatic reversal of constructive
amendments for preserved claims of error on harmless error review. See id.at 62.
The First Circuit applied this position below, at the governments urging, in
refusing to reverse petitioners sentence even afterAlleynemade clear that he had
been erroneously sentenced for a new, aggravated offense for which he was never
charged.
Pointing to post-Stironedevelopments in harmless error analysis, the
government has previously argued to this Court (as it did below) that per se
reversal should not be required even when a timely objection was made to a
constructive amendment. See 5 LaFave, supra, at 19.6(c) at 339. In United States
v. Cotton, 535 U.S. 625 (2002), this Court acknowledged that Stironerequired
automatic reversal of a constructive amendment, but distinguished that case on the
ground that a proper objection had been made in the District Court to the
sufficiency of the indictment. Id.at 631. This case now squarely presents the issue
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of whether an objected-to constructive amendment is subject to harmless-error
analysis and whether, as a result, Stironeshould be overruled. The Court should
grant review to resolve this critically important issue of constitutional law and
criminal procedure.
B. The Circuits Are Split on Whether the Omission of an Offense
Element Can Constitute Harmless Error.
This case also implicates a related circuit split concerning whether the
omission of an essential element from a federal indictment can constitute harmless
error.
This Court has held that the Grand Jury Clause requires that every element
of a criminal offense be charged in a federal indictment. See, e.g.,Almendarez-
Torres v. United States, 523 U.S. 224, 228 (1998); United States v. Miller, 471 U.S.
130, 136 (1985); Hamling v. United States, 418 U.S. 87, 117 (1974). This
requirement ensures that a grand jury considers all of the elements of an offense
before deciding to indict. InAlleynethis Court reviewed the well-established
practice of including in the indictment, and submitting to the jury, every fact that
was a basis for imposing or increasing punishment, 133 S. Ct. at 2159, and noted
that a defendants ability to predict with certainty the judgment from the face of
the felony indictment flowed from the invariable linkage of punishment with crime,
id.at 2160 (quotingApprendi, 530 U.S. at 478).
As with the constructive amendment issue, there is a longstanding and
broadly acknowledged circuit split on whether an objected-to failure of an
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indictment to charge an essential element of an offense is subject to harmless error
review.
Where an essential elements objection is timely raised pretrial, rejected by
the trial court, and then raised on appellate review following conviction, the
traditional position mandates automatic reversal of the conviction . . . . See 5
LaFave, supra, at 19.3(a) at 263-64. This traditional position is followed by the
Second, Third, Fourth, and Ninth Circuits. In United States v. Gonzalez, 686 F.3d
122 (2d Cir. 2012), the Second Circuit vacated a ten-year mandatory minimum
sentence under 841(b)(1)(B) and remanded for resentencing under 841(b)(1)(C)
because the indictment did not allege the necessary quantity of cocaine. The Fifth
Amendment right to indictment by grand jury, the court emphasized, is
mandatory and cannot be taken away with or without court amendment. Id.at
127 (quoting Smith v. United States, 360 U.S. 1, 9 (1959), and United States v.
Miller, 471 U.S. 130, 139 (1985)). Similarly, in United States v. Velasco-Heredia,
319 F.3d 1080, 1085-86 (9th Cir. 2003), the Ninth Circuit vacated a five-year
mandatory minimum sentence imposed under 841(b)(1)(B) and remanded for
resentencing under 841(b)(1)(D) where [t]he indictment made no mention of
quantity. See also United States v. Spinner, 180 F.3d 514, 515-16 (3d Cir. 1999)
(holding that indictments failure to allege interstate commerce element was not
subject to harmless error); United States v. Kingrea, 573 F.3d 186, 194 (4th Cir.
2009) (vacating conviction based on indictment that omitted essential element and
observing that [n]either instructions nor a petit jury verdict can satisfy after the
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fact the Fifth Amendment right to be tried upon charges found by a grand jury)
(citation omitted); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)
(holding that indictment failing to charge mens rea element was not amenable to
harmless error review).
By contrast, the First, Fifth, Eighth, and Tenth Circuits have held that such
errors are subject to harmless error review. United States v. Corporan-Cuevas, 244
F.3d 199, 202 (1st Cir. 2001) (holding that any error resulting from omission of
element in indictment was harmless); United States v. Mojica-Baez, 229 F.3d 292,
311 (1st Cir. 2000) ([W]e see no reason why harmless error review should not apply
to the failure to include an element in an indictment that otherwise provided the
defendants with fair notice of the charges against them.); United States v.
Robinson, 367 F.3d 278, 286 (5th Cir. 2004) (holding that the absence of an
indictment on the aggravating factors used to justify a death sentence is not
structural error and is susceptible to harmless error review); United States v.
Allen, 406 F.3d 940, 943-45 (8th Cir. 2005) (en banc) (concluding that failure to
charge aggravator factor and mens rea requirement in indictment was not
structural error); United States v. Prentiss, 256 F.3d 971, 984 (10th Cir. 2001) (en
banc) (applying harmless error analysis before determining whether omission of
elements from indictment requires reversal); United States v. Anderson, 289 F.3d
1321, 1327 (11th Cir. 2002) (holding that failure to charge . . . a specific drug
quantity is harmless error underApprendiif, by finding the defendant guilty, the
jury necessarily must have found, beyond a reasonable doubt, that a certain
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quantity of drugs was involved in the offense). Here, the government relied on
Corporan-Cuevas, Mojica-Baez, and other authority in persuading the First Circuit
to dismiss petitioners indictment error on the ground that it was harmless.
The government previously asked this Court to resolve this circuit split in
United States v. Resendiz-Ponce, 549 U.S. 102 (2007). The Court granted the
governments petition in that case to answer the question whether the omission of
an element of a criminal offense from a federal indictment can constitute harmless
error. Id.at 103. It ultimately concluded, however, that the indictment in that
case did not actually deprive the defendant of any significant protection that the
constitutional guarantee of a grand jury was intended to confer. Id.at 111. Here,
by contrast, there is no question that petitioners indictment failed to allege an
essential element for application of the ten-year mandatory minimum under 21
U.S.C. 841(b)(1)(A)(ii): a drug quantity of five kilograms or more. Indeed, the
grand jury not only set a limit on the applicable sentence by charging petitioner
with only 500 grams, but also explicitly stated that the statutory provision
containing the five-year mandatory minimum 841(b)(1)(B)(ii) applies to this
Count. App. 9a, 24a. This case presents an excellent vehicle for resolving this
important circuit split and constitutional question.
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C. By Authorizing Prosecutors to Introduce Uncharged Offenses
During Plea Negotiations and Pretrial Motion Practice, the
First Circuit Has Stripped the Grand Jury of Its Constitutional
Role and Exposed Citizens to Prosecutorial Abuse.
This Court should also grant review to reaffirm the integral and
indispensable role of the grand jury in our constitutional heritage and system of
criminal justice.
In England, the grand jury served for centuries both as a body of accusers
. . . and as a protector of citizens against arbitrary and oppressive governmental
action. United States v. Calandra, 414 U.S. 338, 343 (1974). It has continued to
serve a vital role in our constitutional system as a basic guarantee of individual
liberty and a barrier to reckless or unfounded charges. United States v.
Mandujano, 425 U.S. 564, 571 (1976); see also United States v. Williams, 504 U.S.
36, 47 (1992) (stating that grand jury belongs to no branch of the institutional
Government but rather serv[es] as a kind of buffer or referee between the
Government and the people); Wood v. Georgia, 370 U.S. 375, 390 (1962) (stating
that grand jury has been regarded as a primary security to the innocent against
hasty, malicious and oppressive persecution). Its historic office has been to
provide a shield against arbitrary or oppressive action, by insuring that serious
criminal accusations will be brought only upon the considered judgment of a
representative body of citizens acting under oath and under judicial instruction and
guidance. Mandujano, 425 U.S. at 571. Thus, the government may decide what
charges to present, but the people speaking through a grand jury composed of a
putative defendants peers determine whether there is prima facie evidence for
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those charges to go forward and impose limits on the scope of the subsequent
prosecution. The very purpose of the requirement that a man be indicted by grand
jury is to limit his jeopardy to offenses charged by a group of his fellow citizens
acting independently of either prosecuting attorney or judge. Stirone, 361 U.S. at
218.
The First Circuits expansive application of harmless-error review to
indictment errors subverts the grand jurys constitutional role as an independent
investigative body and safeguard against prosecutorial abuse. The court of appeals
ruled that omitting the actual offense of conviction from the indictment does not
constitute reversible error unless it deprived the [defendant] of notice or otherwise
misled him to his detriment. App. 20a. It further held that even a prejudicial
omission can be cured by events occurring in the prosecution long after the
indictment is returned. In this case, for example, it concluded that petitioner had
ample notice of the new, aggravated crime because (i) approximately one year
after his indictment, the government threatened in plea negotiations to seek a ten-
year mandatory minimum under that provision if petitioner did not plead guilty,
and (ii) petitioner filed an (unsuccessful) motion in limine to exclude the
corresponding evidence. See id. The grand jury cannot protect citizens from
unjustified indictment if prosecutors may amend the charges after the grand jurys
role in the case has ended. Such a practice leaves the prosecution free to roam at
large to shift its theory of criminality so as to take advantage of each passing
vicissitude of the trial and appeal. Russell v. United States, 369 U.S. 749, 768
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(1962); see also Wood, 370 U.S. at 390 (stating that one function of Grand Jury
Clause is to assure that criminal charges will be founded upon reason and not
dictated by an intimidating power or by malice and personal ill will). The
Framers did not intend such a result.
Prosecutors possess an immense power to strike at citizens, not with mere
individual strength, but with all the force of government itself. Robert H. Jackson,
The Federal Prosecutor, 24 J. Am. Jud. Socy 18, 18 (1940). Beneath the cloak of
prosecutorial discretion lies the power to attack those whose real crime becomes
that of being unpopular with the predominant or governing group, [or] being
attached to the wrong political views. Id.at 19. Stripping the grand jury of its
constitutionally assigned duties leaves citizens nakedly exposed to prosecutorial
excess. This Court should grant review in this case to affirm and restore the
Constitutions carefully engineered balance of powers in the criminal justice system.
II. THE COURT SHOULD GRANT REVIEW TO RESOLVE A CIRCUITSPLIT ON HOW HARMLESS-ERROR REVIEW APPLIES TO
APPRENDIERRORS INVOLVING AN OMITTED ELEMENT THAT
WAS CONTESTED AT TRIAL.
This Court should also grant the petition in order to resolve a circuit split
involving the application of harmless-error review to judicial factfinding errors.
As with the indictment error discussed in Section I, supra, there is no dispute
that the district judge violated the Fifth and Sixth Amendments when he imposed a
ten-year mandatory minimum sentence based on his own finding of drug weight. At
trial, the jury found that petitioners offense involved 500 grams or more of
cocaine. App. 11a, 28a. This quantity is sufficient to trigger only a five-year
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mandatory minimum under 21 U.S.C. 841(b)(1)(B)(ii). Nevertheless, the district
court imposed a mandatory minimum of ten years imprisonment, pursuant to
841(b)(1)(A)(ii), based on its finding that the weight is eight kilograms. App.
11a. Petitioner preserved his objection to this error. App. 10a-11a. On appeal, the
First Circuit ruled that petitioners judicial factfinding error was foreclosed by
United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003), in which it held (relying on
Harris v. United States, 536 U.S. 545 (2002)) that drug quantity for purposes of
841 is a sentencing factor that may be determined by a preponderance of the
evidence, so that a judges determination of drug quantity can influence the
mandatory minimum sentence imposed. App. 18a-19a. It acknowledged that
Goodinemay be called into question by this Courts forthcoming decision in
Alleyne, App. 2a n.1, but declined petitioners request to wait until Alleynewas
decided, App. 19a. This Court then overruled Harrisand Goodineand held that
facts that increase mandatory minimums (like drug weight) are elements and must
be submitted to the jury and found beyond a reasonable doubt. Alleyne, 113 S. Ct.
at 2158.
The court of appeals alternative holding on harmless error is therefore
critical:
In any event, any error was harmless, since the evidence
overwhelmingly establishe[d] the minimum drug quantity needed tojustify Gomezs sentence, here five kilograms of cocaine, where Gomez
repeatedly tried to buy seven kilograms for him to resell. United
States v. Soto-Beniquez, 356 F.3d 1, 46 (1st Cir. 2004).
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App. 19a. This approach to harmless error focusing on the courts own assessment
of a defendants guilt rather than the effect of the constitutional error on the
proceeding is inconsistent with this Courts authority and the rulings of other
circuit courts.
In Chapman v. California, 386 U.S. 18 (1967), this Court held that to
establish the harmlessness of a constitutional error, the government must prove
beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained. Id.at 24. As the Court subsequently explained, the inquiry is is
not whether, in a trial that occurred without the error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually rendered in thistrial
was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279
(1993) (emphasis in original).
In Neder v. United States, 527 U.S. 1 (1999), this Court considered whether it
was clear beyond a reasonable doubt that a jury would have found the defendant
guilty if an omitted element had been included in the jury charge. In approaching
this question, the Court sought to strike an appropriate balance between societys
interest in punishing the guilty [and] the method by which decisions of guilt are
made. Id.at 18 (quoting Connecticut v. Johnson, 460 U.S. 73, 86 (1983) (plurality
opinion)). The right to a jury determination of guilt was designed to guard against
a spirit of oppression and tyranny on the part of rulers, and was from very early
times insisted on by our ancestors in the parent country, as the great bulwark of
their civil and political liberties. Id.at 19 (quoting United States v. Gaudin, 515
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U.S. 506, 510-15 (1995), in turn quoting J. Story, Commentaries on the Constitution
of the United States 540-41 (4th ed. 1873)). Nederheld that an error may be
deemed harmless only when it is clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty in any event. See id.at 18 (error can be
deemed harmless where a defendant did not, and apparently could not, bring forth
facts contesting the omitted element). By contrast, where the defendant contested
the omitted element and raised evidence sufficient to support a contrary finding by
a rational jury, the right to a jury determination on that element precludes the
reviewing court from deeming the error harmless. Id.
Some circuit courts have properly applied the distinction drawn in Neder
between contested and uncontested elements. For example, in United States v.
Hunt, 656 F.3d 906 (9th Cir. 2011), the court of appeals concluded that a judicial
factfinding error was not harmless because defendant expressly contested the facts
at issue and pointed to evidence sufficient to support a contrary finding. Id.at
915 (quoting Neder, 527 U.S. at 19). It distinguished other cases holdingApprendi
errors to be harmless on the ground that the defendant did not contest the critical
facts at issue. See id.at 914 (citing United States v. Zepeda-Martinez, 470 F.3d 909
(9th Cir. 2006); United States v. Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007)).4
Similarly, in United States v. Sheehan, 512 F.3d 621 (D.C. Cir. 2008), the court of
appeals held that a conviction based on errors of law that eliminated the
4InWashington v. Recuenco, 548 U.S. 212 (2006), the Court held that harmless-error analysisapplies to judicial factfinding errors under Blakely v. Washington, 542 U.S. 296 (2004). It did notaddress the applicability of harmless-error analysis to indictment-based errors. See548 U.S. at 220n.3.
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prosecutors burden to prove a mens reaelement could not be excused as harmless.
Id.at 631. Distinguishing Nederon the ground that the defendant did not contest
the issue of materiality, id.at 633 (citing 527 U.S. at 15), the D.C. Circuit held that
reversal was required because the defendant in that case sought to present
evidence on the critical element of the charged offense but was prohibited from
doing so by the trial judge. Id.at 634.
By contrast, in applying harmless-error review to petitioners judicial
factfinding error below, the First Circuit applied an overwhelming evidence
standard that ignored the fact that petitioner vigorously contested his responsibility
for the additional drug weight at issue. SeeApp. 19a. In fact, he provided jurors
with several reasons to decline to make such a finding, if asked. First, they might
have concluded that the Florida transaction was not part of the charged conspiracy,
since it involved activity that occurred outside the specified time period and
location. Second, they might have found that no criminal conspiracy occurred
because petitions purported agreement was with an undercover government agent.
See United States v. Paret-Ruiz, 567 F.3d 1, 6 (1st Cir. 2009) (The agreement must
exist between two or more persons, and as a matter of law, there can be no
conspiracy between a defendant and a government agent.). Third, jurors could
have concluded that the seven kilograms offered by the governments informant was
not attributable to any conspiracy because there was no final agreement as to the
deals terms. Fourth, they might have had reasonable doubt as to whether
petitioner knowingly and voluntarily participated in the transaction, based on his
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testimony that he acted out of fear from the informants threats and a genuine
desire to find construction work in Florida. Importantly, the question is not
whether there was a sufficient evidentiary basis for a jury to find petitioner liable
for more than five kilograms of cocaine, but rather whether it is possible that one or
more jurors might not have done so. In summarily holding that the judicial
factfinding error was harmless due to overwhelming evidence of a drug quantity
exceeding five kilograms, the court of appeals ignored the contested nature of this
element and therefore misapplied this Courts holdings in Chapmanand Neder.
The First Circuits approach reflects what Judge Edwards described as a
dangerously seductive occurrence: the conflation of the harmlessness inquiry
with our own assessment of a defendants guilt. SeeHarry T. Edwards, To Err is
Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70
N.Y.U. L. Rev. 1167, 1170 (1995). The approach is seductive because it allows an
appellate court to readily confirm convictions and sentences even where, as here,
constitutional errors unquestionably occurred. It is not, however, a proper
application of the harmless-error rule, which has always focused on determining an
errors effect rather than triggering a second-hand assessment of a defendants
guilt. In Weiler v. United States, 323 U.S. 606 (1945), for example, this Court
observed that it was not authorized to look at the printed record, resolve conflicting
evidence, and reach the conclusion that the error was harmless because we think
the defendant was guilty. Id.at 611. The Court cautioned appellate courts against
substituting the jurys judgment with its own, since the question is not whether
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guilt may be spelt out of a record, but whether guilt has been found by a jury
according to the procedure and standards appropriate for criminal trials.
Bollenbach v. United States, 326 U.S. 607, 614 (1946); see also Kotteakos v. United
States, 328 U.S. 750, 763-64 (1946) (stating that it is not the appellate courts
function to determine guilt or innocence and that its opinion of the evidences
weight cannot be the sole criteria). In Satterwhite v. Texas, 486 U.S. 249 (1988),
this Court emphasized that the question is not whether the legally admitted
evidence was sufficient to support the death sentence, which we assume it was, but
rather, whether the State has proved beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained. Id.at 258-59.
By emphasizing its own judgment on the strength of the governments
evidence, and ignoring the countervailing evidence presented by petitioner, the
court of appeals disregarded this well-established line of authority on harmless-
error review. Its cursory analysis also needlessly undermined the impact of this
Courts ruling inAlleyne. It is well established that courts must apply new
constitutional rules retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which the new rule constitutes
a clear break with the past. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Here,
Alleynes holding that the core crime and the fact triggering the mandatory
minimum sentence together constitute a new, aggravated crime, each element of
which must be submitted to the jury unquestionably applies to all cases pending on
direct review, including petitioners. See 133 S. Ct. at 2161. Petitioners ten-year
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mandatory minimum sentence was triggered by a finding that the crime involved
more than five kilogramsof cocaine under 21 U.S.C. 841(b)(1)(A)(ii), a fact that in
combination with the traditional elements of conspiracy under 21 U.S.C. 846
constituted a new, aggravated crime. Yet the grand jury never found probable
cause to believe that this new crime was committed it charged only a crime
involving 500 grams or moreunder 21 U.S.C. 841(b)(2)(B)(ii). App. 9a, 24a. And
the petit jury never found each of this new crimes elements proved beyond a
reasonable doubt it found only that the offense involved at least 500 grams or
more. App. 11a, 28a (emphasis added). The only finder of fact to even consider
whether petitioners crime involved more than five kilograms of cocaine was the
trial judge at sentencing. If this judicial finding suffices to trigger a ten-year
mandatory minimum merely because the evidence suggests that the grand jury
mightalso have charged such a crime, and the petit jury mightalso have found such
a crime beyond a reasonable doubt, thenAlleyneis dead on arrival.
Accordingly, this Courts review is warranted to resolve the various circuit
splits discussed in this petition involving the application of harmless-error review to
violations of the fundamental Fifth and Sixth Amendment safeguards recognized in
Alleyne. In the alternative, this Court should enter an order granting, vacating, and
remanding the petition for further proceedings in light ofAlleyne.
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CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.
Respectfully submitted,
_______________________________
Robert E. Toone*
Daniel L. McFadden
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, Massachusetts 02210-2600
(617) 832-1242
* Counsel of Record
Dated: July 31, 2013
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