Nos. 00-1256, 00-8464 and 00-8634
In the Supreme Court of the United States
JOSUE G. REYES-HERNANDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
JOHN ALEXIS MOJICA-BAEZ, PETITIONER
v.
UNITED STATES OF AMERICA
JOSE RAMOS-CARTAGENA, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
BARBARA D. UNDERWOOD
Acting Solicitor General
Counsel of Record
JOHN C. KEENEY
Acting Assistant Attorney
General
JOSEPH C. WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the district court abused its discretion in reopening the government's
case after petitioners moved for judgments of acquittal in order to allow
the government to present evidence that deposits of the banks petitioners
robbed were federally insured.
2. Whether the court of appeals should have accorded petitioners relief,
under the plain-error standard, from the ten-year sentences imposed on them
under 18 U.S.C. 924(c)(1) (1994), because there was no allegation in the
indictment and no finding by the jury that petitioners used semiautomatic
assault weapons during and in relation to their crimes of violence.
In the Supreme Court of the United States
No. 00-1256
JOSUE G. REYES-HERNANDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
No. 00-8464
JOHN ALEXIS MOJICA-BAEZ, PETITIONER
v.
UNITED STATES OF AMERICA
No. 00-8634
JOSE RAMOS-CARTAGENA, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (00-8634 Pet. App. 12-51, 53-551) is
reported at 229 F.3d 292.
JURISDICTION
The judgment of the court of appeals was entered on August 30, 2000. A petition
for rehearing was denied on November 2, 2000 (Pet. App. 52). The petition
for a writ of certiorari in No. 00-8464 was filed on January 30, 2001, and
the petitions in Nos. 00-1256 and 00-8634 were filed on January 31, 2001.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the District
of Puerto Rico, each petitioner was convicted of two counts of armed robbery
of money and checks belonging to a federally insured bank, in violation
of 18 U.S.C. 2113(a) and (d); one count of assault with intent to rob money
belonging to the United States by use of a dangerous weapon, in violation
of 18 U.S.C. 2114(a); one count of entering a vehicle containing interstate
shipments of money and checks with intent to commit larceny, in violation
of 18 U.S.C. 2117; and one count of using a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. 924(c)(1) (1994). Petitioner
Reyes-Hernandez was sentenced to 308 months' imprisonment, to be followed
by five years of supervised release. Petitioner Mojica-Baez was sentenced
to 330 months' imprisonment, to be followed by five years of supervised
release. Petitioner Ramos-Cartagena was sentenced to 355 months' imprisonment,
to be followed by five years of supervised release. The court of appeals
affirmed.
1. On May 13, 1997, petitioners and co-defendant Nelson Cartagena-Merced
robbed the armored car depot of Loomis, Fargo & Co. in Ponce, Puerto
Rico. Three of the robbers, who were armed with rifles and disguised in
security guard uniforms, took the Loomis Fargo guards captive as the guards
returned to the depot in their armored vehicles after their daily collection
runs. The fourth robber stood watch outside with a walkie-talkie. The robbers
escaped with $5.5 million, which included money and checks collected from
two federally insured banks, Banco Popular and Banco Santander, and from
a United States Postal Service branch. Pet. App. 15-17; Gov't C.A. Br. 13-16.
During the robbery, the robbers threatened the guards and boasted how powerful
their weapons were. The guards heard the robbers say that "[t]his AK-47
that I have here can actually punch through 12 guys," "[t]his
thing can even go through cement," and "[t]his is an AK-47, and
if I shoot you with this, I'll rip you up." One guard recognized a
weapon as an AK-47, and another guard described the firearms carried by
the robbers as "assault weapons, big weapons." Pet. App. 17, 40;
Gov't C.A. Br. 14; Gov't Supp. C.A. Br. 11.
Based upon information from a confidential informant, FBI agents obtained
search warrants for petitioners' houses. In petitioner Mojica-Baez's house,
the agents found AK-47 ammunition and part of the barrel of an AR-15 assault
rifle. In petitioner Ramos-Cartagena's house, the agents found AK-47 ammunition
and a photograph of Ramos-Cartagena holding an AK-47. At trial, an FBI agent
testified that an AK-47 round is capable of penetrating cement, and that
an AK-47 can operate as either a semiautomatic or a fully automatic weapon.
Pet. App. 19-20, 40; Gov't C.A. Br. 17; Gov't Supp. C.A. Br. 11.
2. Counts 1 and 2 of the indictment charged petitioners with armed robbery
of money and checks belonging to federally insured banks, in violation of
18 U.S.C. 2113(a) and (d). Count 1 identified the bank as "Banco Popular,
a bank insured by the Federal [Deposit Insurance] Corporation" (FDIC),
and Count 2 identified the bank as "Banco Santander, a bank insured
by the Federal [Deposit Insurance] Corporation." Pet. App. 1-2. After
the government rested its case at trial, petitioners moved for judgments
of acquittal with respect to those two counts on the ground that the government
had failed to prove, as an element required by 18 U.S.C. 2113, that the
banks were insured by the FDIC. In response, the government asked the district
court to reopen the case to allow it to present such evidence or, alternatively,
to take judicial notice that both banks were federally insured. Pet. App.
21-22; Gov't C.A. Br. 22-23.
The district court indicated its inclination to reopen the case and proposed
that the parties stipulate to the fact that the two banks were federally
insured. Petitioners and the government entered into the stipulation, without
prejudice to petitioners' right to raise the issue on appeal, and the stipulation
was read to the jury. Pet. App. 22; Gov't C.A. Br. 23-24.
3. Count 5 of the indictment charged that petitioners "use[d] and carr[ied]
a firearm, as defined in Title 18, United States Code, Section 921(a)(3),
during and in relation to a crime of violence * * *, specifically robbery
of property belonging to a bank * * *," in violation of 18 U.S.C. 924(c)(1)
(1994). Pet. App. 4. At trial, the district court instructed the jury:
For you to find the defendants guilty of this crime you must be convinced
that the Government has proven each of these things beyond a reasonable
doubt.
First, that the defendants committed the crime of armed or aggravated bank
robbery.
And that, second, during and in relation to the commission of that crime
the defendants knowingly used or carried firearms. The word knowingly means
that act was voluntary and intentional and not because of mistake or accident.
I totally forgot to define a firearm in the [written] charge, but I will
define it for you now. A firearm is any typical weapon referred to as a
firearm, as long as it's capable of expelling a projectile.
Gov't Supp. C.A. Br. 9-10; Pet. App. 78. The jury found all three petitioners
guilty.
At the sentencing hearing of petitioner Reyes-Hernandez, the district court
found that the firearms used during the robbery were semiautomatic assault
weapons and, therefore, that petitioners were subject to mandatory consecutive
ten-year sentences on Count 5 under 18 U.S.C. 924(c)(1) (1994).2 10/28/98
Tr. 6-10; Gov't Supp. C.A. Br. 12-14. Petitioner Reyes-Hernandez objected
to the ten-year sentence on the ground that the evidence at trial was insufficient
to show that the firearms were semiautomatic assault weapons. 10/28/98 Tr.
6-10; Pet. App. 37-39 & n.8. The court overruled the objection:
The weight of the evidence is that-the evidence is that the individuals
who robbed that facility had assault rifles with them of AK-47 type. That
type. And that is enough for me to rely on and say that the penalty has
to be a consecutive, fixed term of ten years.
10/28/98 Tr. 9. The court sentenced petitioner Reyes-Hernandez to a ten-year
sentence on Count 5, to run consecutively to his 188-month sentence on the
other counts. The court similarly sentenced petitioners Mojica-Baez and
Ramos-Cartagena to ten-year sentences on Count 5, to run consecutively to
their respective 210-month and 235-month sentences on the other counts.
Gov't Supp. C.A. Br. 13-14.
4. The court of appeals affirmed petitioners' convictions and sentences.
Pet. App. 12-51, 53-55.3 As relevant here, the court rejected the claim
by petitioners Reyes-Hernandez and Ramos-Cartagena that they were entitled
to acquittal on the bank robbery counts, because the district court indicated
its willingness to reopen the government's case to allow proof that Banco
Popular and Banco Santander were insured by the FDIC, and urged the parties
to enter into a stipulation on that point. Id. at 21-22. The court of appeals
concluded that "[t]here was no serious dispute that the banks were
federally insured, and the government's lapse was recognized in time."
Id. at 22. The court likewise rejected petitioner Ramos-Cartagena's claim
that he was entitled to acquittal on the assault count because the evidence
was insufficient to show that they robbed money belonging to the United
States Postal Service. Id. at 23.
While petitioners' appeals were pending, this Court held in Castillo v.
United States, 530 U.S. 120, 131 (2000), that "Congress intended the
firearm type-related words it used in [18 U.S.C. 924(c)(1) (1988 & Supp.
V 1993)] to refer to an element of a separate, aggravated crime." As
a result, under that version of the statute, "the indictment must identify
the firearm type and a jury must find that element proved beyond a reasonable
doubt" in order for a defendant to receive a sentence in excess of
the five-year term provided in the statute for using or carrying any "firearm."
Id. at 123.4 The court of appeals directed the parties to file supplemental
briefs in this case addressing the effect of Castillo on petitioners' sentences.
Pet. App. 15, 38. It then considered the effect of Castillo, as well as
of this Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
which was announced after the parties' supplemental briefs were filed, see
Pet. App. 38, 54, taking note that no claim based on the legal theories
of those cases had been raised at sentencing.5
In its decision, the court concluded that claims under Castillo were subject
to review only for plain error, because "[t]he only objections at sentencing
regarding the § 924(c)(1) conviction did not encompass Castillo's distinction
between sentencing factors and elements," and "the arguments in
the initial briefs on appeal [were not] addressed to this point." Pet.
App. 38-39. The court observed (id. at 39) that "[p]lain error review
requires four showings: that there was error; that it was plain; that the
error affected substantial rights; and that the error seriously affected
the fairness, integrity or public reputation of judicial proceedings."
The government acknowledged that, under Castillo, firearm type should have
been charged in the indictment and proved to the jury before it was used
to enhance petitioners' sentences, see Gov't Supp. C.A. Br. 16-17, and the
court held that the threshold requirements for relief were met because "there
was error, and it was plain, at least by the time of argument on the direct
appeal." Pet. App. 39 (citing Johnson v. United States, 520 U.S. 461,
468 (1997)). The court noted, however, that there was uncontradicted trial
evidence showing that petitioners used an AK-47 assault weapon during their
robbery. Id. at 40; see also id. at 49 ("There is no question that
the petit jury in this case would have found that [petitioners] used at
least one AK-47."). In light of that evidence, the court explained,
petitioners were not entitled to relief from the trial court's error in
not submitting the question of firearm type to the jury, because petitioners
had not shown that the error affected their substantial rights (by changing
the outcome of the proceeding) or resulted in any "miscarriage of justice."
Id. at 39-40.
The court then considered the error in imposing enhanced sentences when
firearm type had not been alleged in the indictment. Pet. App. 40-49, 54-55.6
The court rejected petitioners' argument that "such indictment errors
are not subject to harmless or plain error analysis." Id. at 41. The
court agreed with petitioners that Rule 12(b)(2) of the Federal Rules of
Criminal Procedure allows a defendant to raise certain indictment claims
for the first time on appeal, Pet. App. 43, and that the indictment in this
case was arguably deficient, id. at 43-44, but it held that the error in
this case was "not of [the same] dimension" as the sorts of "structural
error" that have been held to require reversal without any showing
of prejudice, id. at 44-45. The court noted, moreover, that "the integrity
of the judicial system" was not implicated, because "[t]he reason
the indictment in this case did not specify that a semiautomatic assault
weapon or AK-47 had been used in the robbery was that circuit precedent
at the time did not require it." Id. at 45; see id. at 45-46 ("It
is one thing to vacate a conviction or sentence where the prosecutor failed
to indict in accordance with the current state of the law. It is quite another
thing to vacate a conviction or sentence based on an indictment that was
entirely proper at the time.").
The court acknowledged that "[t]here are some serious harms * * * that
can emerge from flawed indictments." Pet. App. 46. It emphasized, however,
that petitioners "[had] not argued on appeal that they lacked fair
notice" of the charges against them, and it distinguished cases addressing
different indictment issues. Id. at 46-47, 54-55 & n.1. The court found
guidance, instead, in this Court's decision in Neder v. United States, 527
U.S. 1 (1999), which "held that a jury instruction 'that omits an element
of the offense does not necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence' and
is, therefore, subject to harmless error review." Pet. App. 47 (quoting
Neder, 527 U.S. at 9). The court reasoned that the distinction between "the
failure to submit an element of an offense to the petit jury" and the
"failure to present an element to the grand jury to secure an indictment"
was not significant "where the indictment provided the defendant with
fair notice of the charges against him." Ibid. The court also concluded
that the omission of an allegation of weapon type in the indictment in this
case "did not necessarily render the indictment unfair or make it an
unreliable vehicle with which to commence the proceedings in this case."
Id. at 49. The court accordingly declined to require resentencing or reindictment
in this case. See id. at 41 n.9, 49, 51.
ARGUMENT
1. Petitioners Reyes-Hernandez (00-1256 Pet. 4-6) and Ramos-Cartagena (00-8634
Pet. 7-11) contend that the district court erred in denying their motions
for judgments of acquittal because the government initially failed to present
evidence that the two bank victims, Banco Popular and Banco Santander, were
insured by the FDIC. When petitioners properly raised that issue in their
motions, however, the district court indicated its willingness to reopen
the government's case, and the parties then stipulated that the two banks
were federally insured. The government's omission was therefore promptly
corrected, and petitioners have no just cause for complaint.
A district court has discretion to reopen the government's case to allow
correction of such an omission. See, e.g., United States v. Rouse, 111 F.3d
561, 573 (8th Cir.), cert. denied, 522 U.S. 905 (1997); United States v.
Leslie, 103 F.3d 1093, 1104 (2d Cir.), cert. denied, 520 U.S. 1220 (1997);
United States v. Blankenship, 775 F.2d 735, 740-741 (6th Cir. 1985); United
States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980); cf. Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 (1971) ("[A] motion
to reopen to submit additional proof is addressed to [the trial judge's]
sound discretion."). Petitioners cite no decision holding to the contrary.
To the extent that petitioners contend that the district court abused its
discretion in allowing a limited reopening in this case, that fact-bound
claim was properly rejected by the court of appeals, Pet. App. 21-22, and
does not warrant review by this Court.7
2. Petitioners contend (00-1256 Pet. 7-9; 00-8464 Pet. 4-14; 00-8634 Pet.
11-26) that the ten-year sentences imposed by the district court under 18
U.S.C. 924(c)(1) (1994) are invalid under Castillo v. United States, 530
U.S. 120 (2000), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In Castillo
the Court held, as a matter of statutory construction, that Section 924(c)(1),
as in effect before its amendment in 1998, created a base offense involving
the use or carrying of any firearm and "separate, aggravated crime[s]"
involving the use or carrying of certain specified firearms, such as machineguns.
530 U.S. at 131; see id. at 121, 123-124. In Apprendi the Court held, as
a matter of constitutional law, that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." 530 U.S. at 490.
a. Under the version of Section 924(c)(1) in effect at the time of petitioners'
offenses, the penalty authorized for using or carrying any firearm during
and in relation to a crime of violence was five years' imprisonment.
18 U.S.C. 924(c)(1) (1994). Castillo held that in order to impose the ten-year
sentence authorized in Section 924(c)(1) for violations involving certain
types of firearms, "the indictment must identify the firearm type and
a jury must find that element proved beyond a reasonable doubt." 530
U.S. at 123. In this case, petitioners were sentenced above the five-year
maximum sentence authorized for the base offense, but the indictment did
not allege that petitioners used or carried a semiautomatic assault weapon,
and the jury was not asked to find that the offense involved such a weapon.
Imposition of the ten-year sentences was therefore error, both under Castillo
and under Apprendi.
Petitioners did not raise claims of the sort upheld in Castillo and Apprendi
at trial, at sentencing in the district court, or in their initial briefs
in the court of appeals. See Pet. App. 38 & n.8. Those claims may therefore
be reviewed, at most, for plain error. Fed. R. Crim. P. 52(b); Johnson v.
United States, 520 U.S. 461 (1997); United States v. Olano, 507 U.S. 725
(1993). At least with respect to Apprendi's constitutional holding, the
error in imposing an enhanced sentence on the basis of a finding made only
by the district court at sentencing is "plain," in that it became
"clear" or "obvious" after this Court's decision in
Apprendi. See Johnson, 520 U.S. at 467-468 (when "the law at the time
of trial was settled and clearly contrary to the law at the time of appeal[,]
it is enough that an error be 'plain' at the time of appellate consideration");
see also Pet. App. 39 (concluding that Castillo error was "plain").
Even with respect to a "plain" error, however, petitioners are
not entitled to relief unless they can also demonstrate that the error both
"affect[ed] substantial rights" and "seriously affect[ed]
the fairness, integrity, or public reputation of judicial proceedings."
Johnson, 520 U.S. at 467 (quoting Olano, 507 U.S. at 732).
b. The court of appeals correctly held that petitioners could not make those
showings with respect to the district court's failure to submit the question
of firearm type to the jury. Pet. App. 39-40. In Johnson, 520 U.S. at 470,
this Court held that where the evidence that would have supported a finding
on an element of an offense was "overwhelming" and "essentially
uncontroverted," failure to submit that element to the jury did not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Since Apprendi, courts of appeals have applied the same principle
in conducting plain-error review of cases in which the jury was not asked
to find a fact necessary to support the imposition of an enhanced sentence
under the federal drug statutes. See, e.g., United States v. Mietus, 237
F.3d 866, 875 (7th Cir. 2001) (no serious effect on fairness, and therefore
no relief for plain Apprendi error, where evidence as to drug quantity was
overwhelming); United States v. Keeling, 235 F.3d 533, 539-540 (10th Cir.
2000) (same). And this Court relied in part on Johnson in deciding Neder
v. United States, 527 U.S. 1, 9, 17 (1999), in which the Court held that
"where a reviewing court concludes beyond a reasonable doubt that [an]
omitted element was uncontested and supported by overwhelming evidence,
such that the jury verdict would have been the same absent the error, [an]
erroneous instruction [omitting a requirement that the jury find that element]
is properly found to be harmless."
In this case, the undisputed trial evidence showed that petitioners used
AK-47 assault rifles during their robbery, and the court of appeals concluded
that there was "no question" that the jury, if it had been asked
to do so, "would have found that [petitioners] used at least one AK-47."
Pet. App. 49; see id. at 40 (recounting evidence on point). The court correctly
held that, in light of that conclusion, petitioners could not establish
any entitlement to relief under the plain-error standard "simply by
showing that an element of an offense was not submitted to the jury."
Id. at 39.
c. The court of appeals also correctly held that the plain-error standard
applies to petitioners' claim that their enhanced sentences should be vacated
because the aggravating factor justifying those sentences was not alleged
in the indictment.8 As this Court made clear in Johnson, 520 U.S. at 466,
all claimed errors in federal criminal trials, regardless of their nature
or seriousness, are subject to the plain-error rules set out in Rule 52(b)
of the Federal Rules of Criminal Procedure when the defendant does not make
a timely objection to the alleged error in the district court.9 "'No
procedural principle is more familiar to this Court than that a constitutional
right,' or a right of any other sort, 'may be forfeited in criminal as well
as in civil cases by the failure to make timely assertion of the right before
a tribunal having jurisdiction to determine it.'" Olano, 507 U.S. at
731 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)). Indeed,
even a conclusion that a particular type of error is "structural,"
or "so serious as to defy harmless-error analysis," suggests only
that such errors may always "affec[t] substantial rights," thus
satisfying the third of the four requirements for plain-error relief. See
Johnson, 520 U.S. at 468-469 (emphasis added). Under the fourth requirement,
a prejudicial error (including a "structural" one) that would
clearly be grounds for relief if properly preserved is not a proper ground
for relief if it was not preserved, unless it also "seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings."
Id. at 469-470 (quoting Olano, 507 U.S. at 736).
The provisions of Rule 12(b) do not vary the analysis with respect to indictment
errors like the one claimed here. That Rule provides in the main that a
defendant "must" raise before trial all "[d]efenses and objections
based on defects in the indictment." Fed. R. Crim. P. 12(b)(2). It
provides a narrow exception for claims that the indictment "fails to
show jurisdiction in the court or to charge an offense," which "shall
be noticed by the court at any time during the pendency of the proceedings."
Ibid. Petitioners cannot claim that the district court lacked jurisdiction
to try them under the indictment in this case, or that the indictment "fails
* * * to charge an offense." See Pet. App. 41 n.9. They claim only
that the indictment did not allege a particular aggravating fact concerning
the offense, and that in light of that failure they should have been sentenced
for the base offense, not the aggravated offense. Petitioners' failure to
raise any such claim at sentencing, see id. at 38 & n.8, requires that
appellate consideration be limited to review for plain error, as required
by Rule 52(b).10
In Johnson the Court held that failure to submit an element of an offense
to the petit jury was "plain" error, which the Court assumed had
"affec[ted] substantial rights" (and might be "structural").
520 U.S. at 467-469. The Court then held that the error did not justify
relief when raised for the first time on appeal, because existence of the
element had been "essentially uncontroverted at trial" (the defendant
had made only a passing objection to the sufficiency of the evidence), and
the evidence supporting its existence was "overwhelming." Id.
at 470. Later, in Neder, the Court held that the same error was not, in
fact, "structural," because it would not "necessarily render
a criminal trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence." 527 U.S. at 9. Even a preserved claim was therefore
subject to harmless-error analysis-and the error was harmless where it was
"clear beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error." Id. at 18.
The court of appeals relied on Johnson and Neder to hold that petitioners
were not entitled to relief, under the circumstances here, from enhanced
sentences based on an aggravating factor that was omitted from the indictment.
See Pet. App. 45-49. As the court noted (id. at 45-46), at the time of indictment,
circuit precedent did not require an allegation of weapon type as a predicate
for later enhancement of a defendant's sentence. Petitioners did not object
when the government sought such enhancement at sentencing, or complain then
or on appeal that they lacked fair notice of that possibility. Id. at 46-47.
The trial evidence concerning petitioners' use of AK-47 assault weapons
was, as in Johnson, "essentially uncontroverted." 520 U.S. at
470; compare id. at 470 n.2 with Pet. App. 38 n.8; see Pet. App. 40 (reviewing
evidence, and noting that petitioners' briefs on appeal did not "address
the key question: whether, given the evidence actually introduced as to
the weapons used, there was any prejudice from the failure to have submitted
the question to the jury"). And the court of appeals, having reviewed
that evidence (Pet. App. 40), was persuaded that there was "no question
that the petit jury in this case would have found that [petitioners] used
at least one AK-47." Id. at 49. Under those circumstances, the court
concluded (id. at 45), plain-error relief was not necessary to "safeguard[]
fair trials," to "vindicat[e] compelling constitutional policies,"
or to preserve "the integrity of the judicial system." On the
basis of those conclusions, the court properly denied plain-error relief
under Johnson. See also United States v. Nance, 236 F.3d 820, 825-826 (7th
Cir. 2000) (refusing relief for plain Apprendi error in not alleging or
proving drug quantity, where it was clear that defendant would have received
the same enhanced sentence even if there had been "a properly worded
indictment and a properly instructed jury," because "i[f] th[e]
jury was going to convict [the defendant] at all-which it plainly did-there
is simply no way on this record that it could have failed to find"
that the offense involved an enhancing quantity of drugs); United States
v. Pease, 240 F.3d 938, 943-944 (11th Cir. 2001) (same, where defendant
admitted in plea agreement and colloquy that he dealt in more than required
threshold quantity of drugs); United States v. Wright, No. 00-1034 (8th
Cir. Apr. 27, 2001), slip op. 2-3 (where defendant was sentenced for carjacking
resulting in serious bodily injury, in violation of 18 U.S.C. 2119(2), without
an allegation of such injury in the indictment (see Jones v. United States,
526 U.S. 227 (1999)), court remands for harmless-error analysis, stating
that "testimony by [the victim] at resentencing might provide overwhelming
evidence that she in fact suffered serious bodily injury, making the defect
in Wright's indictment harmless error").
d. The court of appeals' holding does not conflict with Stirone v. United
States, 361 U.S. 212 (1960), in which the proof and instructions at trial
might have allowed the petit jury to find the existence of a jurisdictional
element on a ground never considered by the grand jury. The petit jury's
findings concerning petitioners' offenses confirmed all the allegations
of the grand jury, and those allegations were by themselves fully sufficient
to charge an offense against the United States. The error in this case occurred
when the district court sentenced petitioners for an aggravated form of
that offense (notably, the "same offense" under the standard normally
used for purposes of Double Jeopardy analysis, see Blockburger v. United
States, 284 U.S. 299, 304 (1932)), where the aggravating fact was not considered
an element of a separate offense at the time of indictment, trial, or sentencing,
and therefore was not included in the indictment or submitted to the jury.
The question presented here, moreover, is not whether imposing that sentence
was error. Cf. United States v. Miller, 471 U.S. 130, 140-145 (1985) (reaffirming
Ex parte Bain, 121 U.S. 1 (1887), to the extent it held that "a defendant
cannot be convicted of an offense different from that which was included
in the indictment," 471 U.S. at 142). Nor is it whether such an error
may be held harmless when a proper objection is made. Cf. Stirone, 361 U.S.
at 217-218. The question here is whether petitioners' unpreserved claim
of error entitled them to relief, on appeal, under the plain-error standard.
Stirone did not address such an issue.
For much the same reasons this case is also unlike United States v. Prentiss,
206 F.3d 960 (2000), in which a panel of the Tenth Circuit held that an
indictment for violation of a federal law extended to Indian country under
18 U.S.C. 1152 must, as a jurisdictional matter, allege that the crime was
committed by an Indian against a non-Indian (or vice versa), and (206 F.3d
at 974-977) that absence of such an allegation from the indictment could
not be harmless error. See Pet. App. 42-43 (discussing Prentiss). In any
event, the Tenth Circuit has granted rehearing en banc to reconsider the
Prentiss panel's conclusions. See Order of June 19, 2000, No. 98-2040 (10th
Cir.) (reargued Sept. 26, 2000).
The decision in this case does conflict with the Second Circuit's decision
in United States v. Tran, 234 F.3d 798 (2000), which sustained a claim very
similar to that advanced by petitioners, in a case also involving enhanced
sentences under 18 U.S.C. 924(c)(1) (1994).11 See 00-1256 Pet. 9; 00-8464
Pet. 7-8. Tran held that "plain error review is inappropriate where
[a] defect in the indictment is jurisdictional," 234 F.3d at 806, and
concluded that "the district court did not have jurisdiction to enter
a conviction or impose a sentence for an offense not charged in the indictment,
namely, the 'separate, aggravated crime' of using or carrying a short-barreled
rifle," id. at 808 (quoting Castillo, 530 U.S. at 131). That conflict
does not, however, warrant review in this case.
Although the United States did not seek en banc rehearing in Tran, we have
suggested to the Second Circuit in a different case that Tran's errors warrant
en banc correction. See Gov't Supp. Reply Br. 13-18, United States v. Greer,
No. 99-1072(L) (2d Cir.) (filed Mar. 2, 2001). Recently, the Second Circuit
sua sponte ordered en banc rehearing in United States v. Thomas, No. 98-1051,
2000 WL 33281680 (2d Cir. Apr. 20, 2001), which this Court remanded to the
court of appeals for reconsideration in light of Apprendi. See 121 S. Ct.
749 (2001). The court's order, which is reprinted as an appendix to this
brief, indicates that the court will consider whether an enhanced sentence
imposed on defendant Thomas under 21 U.S.C. 841(b), in the absence of any
allegation of drug quantity in the indictment and any finding concerning
quantity by the petit jury, should be allowed to stand in light of Apprendi
and Tran. App., infra, 2a. The order specifies that the parties are to address,
among other issues, the following question: "Should this Court's analysis
in the instant case be governed or influenced by [Tran], and, if so, is
Tran's reasoning sound?" Id. at 5a. It is, accordingly, not clear whether
Tran's holdings will continue to stand as controlling authority in conflict
with the decision below.
The decision below is also in significant tension with the decision of the
Tenth Circuit in United States v. Jackson, 240 F.3d 1245, 1247-1249 (2001),
which holds that plain-error review does not apply to a defendant's challenge
to her sentence where the indictment did not include any allegation concerning
drug quantity, and the sentence exceeds the maximum authorized by statute
without a quantity finding. The Tenth Circuit, however, has recently called
for a response to the government's petition for rehearing or rehearing en
banc in Jackson.12 We note, further, that the precise question presented
by petitioners is likely to arise as well in a case now pending in the Eleventh
Circuit, which that court has sua sponte ordered reheard in light of this
Court's decision in Castillo. See United States v. Riley, 232 F.3d 844,
vacating in part, 211 F.3d 1207 (2000), cert. denied, 121 S. Ct. 880 (2001).
In view of these continuing developments in the lower courts, the question
petitioners seek to present is not yet ripe for review by this Court.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
BARBARA D. UNDERWOOD
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney
General
JOSEPH C. WYDERKO
Attorney
MAY 2001
1 Unless otherwise noted, we cite to the appendix to the petition in No.
00-8634, which includes both the original slip opinion (Pet. App. 12-51)
and an "Errata Sheet" issued by the court (id. at 53-55). The
appendix in No. 00-1256 does not incorporate the changes directed by the
errata sheet, and the appendix in No. 00-8464 incorporates them incorrectly
(and misnumbers the footnotes).
2 At the time of petitioners' offenses, 18 U.S.C. 924(c)(1) (1994) provided
in pertinent part:
Whoever, during and in relation to any crime of violence * * * uses or carries
a firearm, shall, in addition to the punishment provided for such crime
of violence * * * be sentenced to imprisonment for five years, and if the
firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic
assault weapon, to imprisonment for ten years, and if the firearm is a machinegun,
or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.
The term "semiautomatic assault weapon" was defined in 18 U.S.C.
921(a)(30)(A)(i) (1994) to include:
(A) any of the firearms, or copies or duplicates of the firearms in any
caliber, known as-
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models)[.]
3 The court addressed and rejected several claims that petitioners do not
renew in this Court. See Pet. App. 12-26. The court also affirmed the conviction
of petitioners' co-defendant Rodolfo Landa-Rivera, but vacated his sentence
and remanded for resentencing. Id. at 49-51, 55.
4 The version of Section 924(c) at issue in Castillo did not include semiautomatic
assault weapons among the types of firearms requiring a ten-year consecutive
sentence. See 530 U.S. at 131-132 (appendix to opinion). Congress added
semiautomatic assault weapons to the list of firearms meriting a ten-year
sentence in 1994. Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 110102(c), 108 Stat. 1998. That amendment did
not change the structure of the statute, however, in any way that affects
the applicability of Castillo's analysis in this case. See Gov't Supp. C.A.
Br. 17 (acknowledging that Castillo applies to this case).
The court of appeals' discussion incorrectly refers to the version of Section
924(c)(1) in effect at the time of appeal, rather than the version in effect
at the time of petitioners' offenses (May 13, 1997), and under which they
were convicted and sentenced. See Pet. App. 26 (quoting later version);
id. at 40-41, 46 (referring to subsection (B) of Section 924(c)(1), which
did not exist under earlier version). Congress substantially revised Section
924(c) effective November 13, 1998, in ways that affect any Castillo analysis
(for example, by changing mandatory fixed sentences to mandatory minimum
sentences, with an implicit statutory maximum of life imprisonment for any
violation). Act of Nov. 13, 1998, Pub. L. No. 105-386, 112 Stat. 3469; see
18 U.S.C. 924(c)(1) (Supp. V 1999) (prescribing sentences of "not less
than" specified numbers of years, depending on various circumstances).
The court's references to the later version of Section 924(c) do not, however,
affect the analysis in the court's opinion, which proceeds on the basis
that, in light of Castillo, firearm type was an element of the Section 924(c)
offense for which petitioners were sentenced.
5 The government's supplemental brief, without undertaking a plain-error
analysis, concluded that petitioners' sentences should be vacated and the
case remanded so they could be sentenced to five-year terms on their Section
924(c) convictions. Gov't Supp. C.A. Br. 19.
6 The court noted at the outset of its discussion of this point that "Castillo
and Apprendi are trial-error cases and do not tell us what to do [with]
claims of indictment error based on their holdings, particularly where the
issue was not raised at trial." Pet. App. 54.
7 Petitioner Reyes-Hernandez also appears to argue (00-1256 Pet. 5) that
the government failed to prove that the guards whom petitioners assaulted
had charge of money belonging to the United States or that any vehicle they
entered contained an interstate shipment. The court of appeals expressly
rejected the ownership argument, Pet. App. 23, and neither claim presents
a legal issue that merits review by this Court.
8 There is no question after Castillo that firearm type was an element of
an aggravated offense under former Section 924(c)(1), and that use of a
semiautomatic assault weapon should therefore have been alleged in the indictment
as a predicate to imposing ten-year sentences on petitioners. See 530 U.S.
at 123. The constitutional holding in Apprendi, by contrast, arose out of
a state prosecution, and this Court did not hold that any fact that might
increase the statutory maximum penalty for a crime must be alleged in a
federal indictment. See 530 U.S. at 477 n.3. Because the federal right to
grand-jury indictment does not extend to state prosecutions, uniform application
of Apprendi's principles would not dictate any particular form in which
constitutionally adequate notice must be provided.
9 In United States v. Vonn, cert. granted, No. 00-973 (Feb. 26, 2001), one
of the questions presented is whether a district court's deviation from
the advice required by Rule 11(c)(3) of the Federal Rules of Criminal Procedure
is subject to plain-error, rather than harmless-error, review on appeal
when the defendant fails to preserve the claim of error in the district
court. Because this case involves a claim of sentencing error rather than
a guilty plea followed by a claim of Rule 11 error, Vonn has no bearing
on this case.
10 Some courts have suggested that Rule 12(b)(2) applies to a claim that
the indictment charged a lesser offense (rather than no offense), and allows
a court to consider such a claim de novo whenever it is first raised. See
United States v. Gama-Bastidas, 222 F.3d 779, 785 & nn.3, 4 (10th Cir.
2000) (claim that indictment charged misdemeanor possession of cocaine,
rather than the felony of possession of cocaine with the intent to distribute
it); United States v. Fitzgerald, 89 F.3d 218, 221 n.1 (5th Cir.), cert.
denied, 519 U.S. 987 (1996). But nothing in the Rule requires that such
an objection be reviewed de novo, no matter when raised. See United States
v. Stein, 233 F.3d 6, 22 (1st Cir. 2000); United States v. Perez, 67 F.3d
1371, 1376 (9th Cir. 1995) (applying plain-error review to a challenge to
the adequacy of an indictment), opinion withdrawn in part on other grounds,
116 F.3d 840 (1997); United States v. Murphy, 762 F.2d 1151, 1155 (1st Cir.
1985).
11 Like petitioners, the defendants in Tran were convicted and sentenced
under the pre-1998 version of Section 924(c)(1). See 234 F.3d at 802 n.1.
12 As noted above, the same court is also reconsidering en banc the panel's
holding in Prentiss.
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
NO. 98-1051
UNITED STATES OF AMERICA, APPELLEE
v.
RAMSE THOMAS, a/k/a ROCK, DEFENDANT-APPELLANT
[Filed: Apr. 20, 2001]
MEMORANDUM AND ORDER
BEFORE:
WALKER, Chief Judge, KEARSE, JACOBS, LEVAL, CALABRESI, CABRANES, PARKER,
STRAUB, POOLER, SACK, SOTOMAYOR, and KATZMANN, Circuit Judges
On remand from the United States Supreme Court, see Thomas v. United States,
121 S. Ct. 749 (2001), defendant Ramse Thomas argues that the sentence imposed
by the United States District Court for the Northern District of New York
(Thomas J. McAvoy, Chief Judge), pursuant to 21 U.S.C. § 841(b)(1)(A),
is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000).
A poll of the judges in regular active service having been requested and
taken and a majority of the active judges of the court having voted to rehear
the appeal in banc, IT IS HEREBY ORDERED that the appeal be reheard in banc
since this case raises questions of exceptional importance that will affect
the administration of criminal justice in our Circuit, see Fed. R. App.
P. 35(a). The in banc panel will consist of the active judges of the court.
See 28 U.S.C. § 46(c). It is being convened to consider whether, following
the Supreme Court's decision in Apprendi v. New Jersey, and our decision
in United States v. Tran, 234 F.3d 798 (2d Cir. 2000), the district court
was empowered to impose an enhanced sentence on Thomas based on its findings
concerning the quantity of drugs involved in his offense.
The facts and proceedings relevant to the instant appeal are as follows:
In 1994, a grand jury in the Northern District of New York returned an indictment
charging, inter alia, that Thomas and others "did knowingly, willfully
and unlawfully combine, conspire, confederate and agree among themselves
and with others, to possess with intent to distribute and to distribute
a quantity of cocaine, a Schedule II controlled substance and a quantity
of cocaine base, also known as 'crack' cocaine, a Schedule II controlled
substance, in violation of Title 21, United States Code,
§ 841(a)(1). In violation of Title 21, United States Code, § 846."
The indictment nowhere alleges that the charged crimes involved any particular
quantity of drugs.
Thomas and his co-defendants were convicted, following a jury trial, on
February 27, 1995. See United States v. Thomas, 116 F.3d 606, 612 (2d Cir.
1997). They appealed, and we vacated their convictions and remanded the
case for retrial based on the District Court's improper dismissal of a juror.
See id. at 625. In January 1998, following a second jury trial, Thomas was
again convicted of the conspiracy charge. See United States v. Thomas, 204
F.3d 381, 382 (2d Cir. 2000) ("Thomas II").
In conformity with standard practices adopted by district courts following
the promulgation of the U.S. Sentencing Guidelines, the Presentence Investigation
Report on Thomas prepared by the U.S. Probation Office recommended that
the sentencing judge enter the following findings regarding the quantities
of narcotics attributable to Thomas: 24.479 kilograms of cocaine and 1.826
kilograms of crack cocaine. After considering the record before it, the
district judge found Thomas responsible for 12.9 kilograms of cocaine and
1.2 kilograms of crack cocaine. Under 21 U.S.C. § 841(b)(1)(A), these quantities resulted in a sentencing range of
ten years' to life imprisonment. (By contrast, had the judge not made findings
concerning drug quantity, or had he found that the amount involved was less
than 500 grams of cocaine and 5 grams of crack cocaine, he could have imposed
a sentence no higher than the statutory maximum of twenty years' imprisonment
for an offense involving either an unspecified quantity of cocaine or crack
cocaine, or quantities less than those set forth in 21 U.S.C. § 841(b)(1)(A)-(B).
Compare 21 U.S.C. § 841(b)(1)(C) with § 841(b)(1)(A) and §
841(b)(1)(B).). Applying the Sentencing Guidelines, the sentencing judge
identified a range of 292 to 365 months' imprisonment. On January 15, 1998,
he sentenced Thomas principally to 292 months' imprisonment.
In a second appeal to this Court, Thomas and two of his co-defendants argued,
inter alia, that Jones v. United States, 526 U.S. 227 (1999), mandated the
reversal of their convictions because it rendered the quantity of drugs
involved in their crimes an issue of fact that increased the maximum penalty
for their crimes and, therefore, had to be submitted to a jury and proved
beyond a reasonable doubt. See Thomas II, 204 F.3d at 383. Our opinion,
filed on February 14, 2000, rejected this argument. See id. at 384. We held
that Jones applied only to the particular car-jacking statute interpreted
in the case and did not, generally, "rewrite the law regarding what
facts must be determined by a jury rather than a judge." Id. at 384.
We thus joined every other Circuit that had considered the question in holding
that, after Jones, drug quantity remained a sentencing factor to be determined
by the district judge, not an element of the offense to be proved by the
prosecutor and found by the jury. See id. (collecting cases from other Circuits).
Following our decision in Thomas II, the Supreme Court, on June 26, 2000,
decided Apprendi, which held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." 120 S. Ct. at 2362-63 (emphasis added). The Supreme Court then granted Thomas's
petition for a writ of certiorari and remanded this case to us for further
consideration in light of Apprendi. See Thomas v. United States, 121 S.
Ct. 749 (2001).
In a related development, on November 11, 2000, a panel of this Court in
United States v. Tran, 234 F.3d 798 (2d Cir. 2000), held that the government's
failure to include in the indictment an element of the sentenced offense
is jurisdictional error and thus not subject to plain error review. Tran
had been indicted for, and pleaded guilty to, being a felon in possession
of a firearm, in violation of 18 U.S.C. § 924(c). He was sentenced,
on the other hand, for being a felon in possession of a sawed-off shotgun,
which carries a higher sentence than the maximum applicable for being a
felon in possession of a firearm simpliciter.
The parties are requested to address the following questions in their briefs:
(1) Does drug quantity under 21 U.S.C. § 841, when it increases a defendant's
sentence above a statutory maximum, constitute an element of the offense
under the analysis used in Apprendi v. New Jersey, 530 U.S. 466 (2000),
Castillo v. United States, 530 U.S. 120 (2000), and Carter v. United States,
530 U.S. 255 (2000), such that it must be alleged in the indictment?
(2) Assuming that an indictment's failure to allege drug quantity is error,
under what circumstances is that error subject to harmless or plain error
review?
(3) Should this Court's analysis in the instant case be governed or influenced
by United States v. Tran, 234 F.3d 798 (2d Cir. 2000), and, if so, is Tran's
reasoning sound?
The Court is mindful that the parties' responses to these questions may
affect other cases that raise questions not directly before the Court in
the instant appeal-for example, cases involving pleas of guilty, stipulations
by the parties to the amount of drugs involved, or whether the issue arises
on direct or habeas review. Accordingly, the Court encourages consideration
in the briefs of any such significant and foreseeable effects of this case.
The appellant's brief shall be filed by May 14, 2001, the appellee's brief
shall be filed by June 4, 2001, and the appellant's reply brief shall be
filed by June 15, 2001. Oral argument will be held on Wednesday, June 27,
2001 at 1:30 p.m. in the Ninth Floor Courtroom of the United States Courthouse,
500 Pearl Street, New York, New York.
We request that the United States Attorneys in the six districts of the
Second Circuit submit a single, joint brief on behalf of the government,
because of the importance of the answers to the questions presented to the
administration of criminal justice throughout the Circuit. We invite consideration
of this appeal as well by the Solicitor General of the United States, to
whom a copy of this order shall be delivered. We also invite amicus curiae
briefing from the New York Council of Defense Lawyers, the Federal Bar Council,
and the Association of the Bar of the City of New York, or their respective
committees on criminal law. Joint amicus briefs may be filed. All amicus
curiae briefs must be filed no later than June 4, 2001. Appellee may reply
to any arguments raised in such briefs by June 15, 2001.
FOR THE COURT,
Roseann B. MacKechnie, Clerk of
Court
By: /s/ ROSEANN B. MACKECHNIE