No.

___________ In The

Supreme Court of the United States

CLARVEE GOMEZ,
Petitioner, v.

UNITED STATES OF AMERICA,

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 LLP 155 Seaport Boulevard Boston, Massachusetts 02210-2600 (617) 832-1242 * Counsel of Record

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 in Alleyne 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 an offense not charged against him in the indictment constitute harmless error? (2) In holding that the judicial factfinding error was harmless even though petitioner 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?

TABLE OF CONTENTS Questions Presented ....................................................................................................... i Table of Contents ........................................................................................................... ii Table of Authorities ...................................................................................................... iv Petition for a Writ of Certiorari .................................................................................... 1 Parties to the Proceeding .............................................................................................. 1 Opinion Below ................................................................................................................ 1 Jurisdiction .................................................................................................................... 1 Constitutional and Statutory Provisions Involved ....................................................... 1 Statement ....................................................................................................................... 3 A. B. Proceedings in the District Court ................................................................. 3 Proceedings in the Court of Appeals ............................................................. 6

Reasons for Granting Review ........................................................................................ 9 I. THE COURT SHOULD GRANT REVIEW TO RESOLVE TWO LONGSTANDING CIRCUIT SPLITS REGARDING WHETHER HARMLESS-ERROR ANALYSIS APPLIES TO CONSTITUTIONALLY DEFICIENT INDICTMENTS. .............................. 9 A. B. C. The Circuits Are Split on Whether an Objected-to Constructive Amendment Requires Automatic Reversal. ....................................... 9 The Circuits Are Split on Whether the Omission of an Offense Element Can Constitute Harmless Error. ....................................... 14 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. ........................ 18

II.

THE COURT SHOULD GRANT REVIEW TO RESOLVE A CIRCUIT SPLIT ON HOW HARMLESS-ERROR REVIEW APPLIES TO APPRENDI ERRORS INVOLVING AN OMITTED ELEMENT THAT WAS CONTESTED AT TRIAL. .................................................................. 20

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Conclusion .................................................................................................................... 28 Appendix 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 - iv -

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. Ford, 872 F.2d 1231 (6th Cir. 1989) ................................................................................. 12 United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012)..................................................................................... 15 United States v. Goodine, 326 F.3d 26 (1st Cir. 2003).......................................................................... 6, 7, 8, 21 United States v. Hollis, 490 F.3d 1149 (9th Cir. 2007) ................................................................................. 23 United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) ................................................................................... 23 United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009) ................................................................................... 15 United States v. Lawton, 995 F.2d 290 (D.C. Cir. 1993) ................................................................................. 12 United States v. Miller, 527 F.3d 54 (3d Cir. 2008)........................................................................... 11, 14, 15 United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).................................................................................... 16 United States v. Narog, 372 F.3d 1243 (11th Cir. 2004) ............................................................................... 12 United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir. 2009)........................................................................................ 24 United States v. Pigee, 197 F.3d 879 (7th Cir. 1999) ................................................................................... 12 United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) ................................................................................. 16 United States v. Robinson, 367 F.3d 278 (5th Cir. 2004) ................................................................................... 16 United States v. Sheehan, 512 F.3d 621 (D.C. Cir. 2008) ................................................................................. 23

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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?, 70 N.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 in Alleyne 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 grand jury, . . . nor be deprived of life, liberty, or property, without due process of law . . . . The Sixth Amendment to the United States Constitution provides:

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 those prescribed 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 in Alleyne 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 Court

Petitioner 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 -3-

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
A reverse transaction is a law enforcement tactic in which agents or informants pose as dealers in an effort to sell drugs to unwitting buyers.
1

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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 under Apprendi 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. 18a19a. 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 Goodine relied on Harris v. United States, 536 U.S. 545 (2002), and that the Supreme Court recently 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 Alleyne is 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. -6-

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 under Apprendi regardless 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 Goodine and Eirby may be called into question by the Supreme Courts upcoming decision in Alleyne 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 decided Alleyne 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 that Alleyne did in fact overrule Goodine and Eirby by holding that the principles in Apprendi apply 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, under Alleyne, 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 Stirone in 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.) (citing Apprendi, 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 after Alleyne was decided.

Where the defendant preserved a timely objection to a constitutional indictment error, this Court has 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 (constructive amendment of indictment); Batchelor v. United States, 156 U.S. 426, 432 (1895) (failure to allege essential 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).
2

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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. See United 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

A constructive amendment occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment. United States v. DAmelio, 683 F.3d 412, 416-17 & n.2 (2d Cir. 2012).
3

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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 objectedto 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 Stirone required 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 Stirone may 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 after Alleyne made clear that he had been erroneously sentenced for a new, aggravated offense for which he was never charged. Pointing to post-Stirone developments 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 Stirone required 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, Stirone should 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., AlmendarezTorres 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. In Alleyne this 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 (quoting Apprendi, 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 under Apprendi if, 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 tenyear 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 CIRCUIT SPLIT ON HOW HARMLESS-ERROR REVIEW APPLIES TO APPRENDI ERRORS 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 Goodine may be called into question by this Courts forthcoming decision in Alleyne, App. 2a n.1, but declined petitioners request to wait until Alleyne was decided, App. 19a. This Court then overruled Harris and Goodine and 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 to justify 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 this trial 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)). Neder held 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 holding Apprendi 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
In Washington v. Recuenco, 548 U.S. 212 (2006), the Court held that harmless-error analysis applies to judicial factfinding errors under Blakely v. Washington, 542 U.S. 296 (2004). It did not address the applicability of harmless-error analysis to indictment-based errors. See 548 U.S. at 220 n.3.
4

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prosecutors burden to prove a mens rea element could not be excused as harmless. Id. at 631. Distinguishing Neder on 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. See App. 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 Chapman and 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. See Harry 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 harmlesserror review. Its cursory analysis also needlessly undermined the impact of this Courts ruling in Alleyne. 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 kilograms of 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 more under 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 might also have charged such a crime, and the petit jury might also have found such a crime beyond a reasonable doubt, then Alleyne is 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 of Alleyne.

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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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