No.

13-5625
In The

Supreme Court of the United States
________________________

CLARVEE GOMEZ,
Petitioner, –v.–

UNITED STATES OF AMERICA,
Respondent. ________________________

On Petition for a Writ of Certiorari to the United States Court of Appeals For the First Circuit

REPLY BRIEF FOR PETITIONER

Robert E. Toone* Daniel L. McFadden FOLEY HOAG LLP 155 Seaport Boulevard Boston, Massachusetts 02210-2600 (617) 832-1242 * Counsel of Record

TABLE OF CONTENTS Table of Authorities ....................................................................................................... ii  Reply Brief for Petitioner .............................................................................................. 1  I.  II.  The Applicability of Harmless-Error Review to Uncharged Offenses Is Properly Presented for This Court’s Review. ..................................................... 1  The First Circuit’s Application of Harmless-Error Review to Uncharged Offenses Conflicts with This Court’s Precedent and Implicates Two Longstanding Circuit Splits. .............................................................................. 5  The First Circuit’s Application of Harmless-Error Review to Judicial Findings of Contested Elements Conflicts with This Court’s Precedent. ....... 12 

III. 

Conclusion .................................................................................................................... 15 

TABLE OF AUTHORITIES CASES Alleyne v. United States, 133 S. Ct. 2151 (2013) ..................................................................................... passim Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................................................ 4, 8-9 Blakely v. Washington, 542 U.S. 296 (2004) ................................................................................................. 12 Chapman v. California, 386 U.S. 18 (1967) ........................................................................................ 12-13, 15 Neder v. United States, 527 U.S. 1 (1999) ................................................................................................ 13-15 Russell v. United States, 369 U.S. 749 (1962) .......................................................................................... 4-5, 10 Stirone v. United States, 361 U.S. 212 (1960) ......................................................................................... passim Sullivan v. Louisiana, 508 U.S. 275 (1993) ................................................................................................. 12 United States v. Allen, 406 F.3d 940 (8th Cir. 2005) (en banc) .................................................................. 5-6 United States v. Brown, 295 F.3d 152 (1st Cir. 2002)................................................................................... 3-4 United States v. Delgado, 266 Fed. Appx. 594 (9th Cir. 2008) ........................................................................... 9 United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) ................................................................................ 8-9 United States v. Cordoba-Murgas, 422 F.3d 65 (2d Cir. 2005)......................................................................................... 9 United States v. Cotton, 535 U.S. 625 (2002) ................................................................................................... 4 - ii -

United States v. Eirby, 262 F.3d 31 (1st Cir. 2001)........................................................................................ 3 United States v. Gomez, 716 F.3d 1 (1st Cir. 2013).................................................................................... 2, 14 United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012)..................................................................................... 10 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ................................................................................................... 4 United States v. Green, 516 Fed. Appx. 113 (3d Cir. 2013) .......................................................................... 11 United States v. Harakaly, No. 12-2274, 2013 WL 5832654 (1st Cir. Oct. 31, 2013) .......................................... 4 United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc) ................................................................. 11 United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) ................................................................................... 13 United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009) .............................................................................. 10-11 United States v. Lake, 419 F.3d 111 (2d Cir. 2005)....................................................................................... 9 United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).................................................................................... 11 United States v. Omer, 395 F.3d 1087 (9th Cir. 2005) ................................................................................... 8 United States v. Resendiz-Ponce, 549 U.S. 102 (2007) ................................................................................................ 7-8 United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007) ..................................................................................... 9

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United States v. Sierra-Ledesma, 645 F.3d 1213 (10th Cir. 2011) ............................................................................... 13 United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir. 2004)........................................................................................ 14 United States v. Spinner, 180 F.3d 514 (3d Cir. 1999)..................................................................................... 11 United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc).............................................................. 5, 9-10 United States v. Wilkes, 130 F. Supp. 2d 222 (D. Mass. 2001) ...................................................................... 11 Washington v. Recuenco, 548 U.S. 212 (2006) ............................................................................................... 4, 8 CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const., amend. V .......................................................................................... passim U.S. Const., amend. VI ........................................................................................ passim 21 U.S.C. § 841 ..................................................................................................... passim OTHER AUTHORITIES 5 Wayne R. LaFave et al., Criminal Procedure § 19.3(a) (3d ed. 2007) .............................................................. 8 5 Wayne R. LaFave et al., Criminal Procedure § 19.6(c) (3d ed. 2007) ........................................................... 6-7 Memorandum from Eric H. Holder, Jr., Att’y Gen. of the United States, to U.S. Att’ys and Assistant U.S. Att’ys for the Criminal Div. re: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013) .......................................................................... 3 Petition for a Writ of Certiorari, United States v. Resendiz-Ponce, 549 U.S. 102 (2007) (No. 05-998) ..................................................................................................... 7

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REPLY BRIEF FOR PETITIONER Under the approach to harmless error advocated by the government and applied by the First Circuit, prosecutors may ignore constitutional charging requirements, shift theories of criminality as their cases evolve, and threaten defendants who refuse to plead guilty with uncharged mandatory minimums – so long as somewhere along the way they give the defendants “fair notice” of their intent to seek the new, aggravated penalties. Judges may also decide offense elements that were disputed by the parties at trial but not presented to the jury. This approach raises fundamental questions about the role of grand juries and petit juries in our constitutional system, calls into question the validity of several of this Court’s Fifth and Sixth Amendment rulings, and implicates longstanding circuit splits. The government’s attempt to discourage review through a variety of immaterial distinctions, mischaracterizations of circuit case law, and reversals of prior positions is unpersuasive. I. The Applicability of Harmless-Error Review to Uncharged Offenses Is Properly Presented for This Court’s Review. The government initially argues that this Court should deny the petition because the “first harmless-error question is not properly presented.” Opp’n at 10. Its opposition, however, does not dispute any of the key facts underlying the indictment issue. See id. at 5-7. Petitioner’s indictment stated that his offense involved “at least 500 grams” of cocaine and that, “[a]ccordingly” 21 U.S.C. § 841(b)(1)(B)(ii) “applies to this Count.” App. 24a. That charged offense provides a five-year mandatory minimum for offenses involving at least 500 grams of cocaine.

Before trial, the government told petitioner that if he pleaded guilty, it would apply this five-year mandatory minimum, but if he went to trial it would seek imposition of an uncharged ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(ii). Dist. Ct. Dkt. #61 at 3. That is what occurred, over petitioner’s objections, after he exercised his right to trial. App. 10a-11a; United States v. Gomez, 716 F.3d 1, 6 (1st Cir. 2013). Although the government elsewhere acknowledges that a court’s application of harmless-error review need not contain “detailed analysis,” see Opp’n at 25-26, it argues that the First Circuit did not in this case squarely address whether the punishment of a defendant for an offense not charged against him in the indictment can constitute harmless error, see id. at 11-12. That is incorrect. The court of appeals clearly answered this question “Yes” when it ruled that the “switch” from § 841(b)(1)(B) (the offense charged) to § 841(b)(1)(A) (the offense for which petitioner was sentenced) does not require reversal “unless it deprived appellant of notice or otherwise misled him to his detriment.” App. 20a; Gomez, 716 F.3d at 10. That holding is the “reasoned opinion” for which petitioner seeks review now. See Opp’n at 12-13. It is also the position that the government advocated when it argued that the court of appeals should continue to deny relief to petitioner after Alleyne v. United States, 133 S. Ct. 2151 (2013). Specifically, it admitted it was a constitutional violation to sentence petitioner to a ten-year mandatory minimum for an offense not charged in his indictment, but argued that the court’s “fair notice” analysis was nevertheless correct. It wrote:

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As the panel correctly found, “[a]t least as of the time the district court denied [his] motion to exclude evidence pertaining to the AugustSeptember 2008 transaction, Gomez was put on ample notice that he would be held responsible for the drug quantities involved in both that transaction and the December 2008 transaction if convicted.” Gomez, 716 F.3d at 10. Although the Court made the above statement in the context of applying United States v. Eirby, 262 F.3d 31 (1st Cir. 2001) – a decision that was partly overruled by Alleyne, compare id. at 37-38 with 133 S. Ct. at 2158 – the analysis applies equally to the rule from [United States v. Brown, 295 F.3d 152 (1st Cir. 2002)] and other cases that the failure to allege an element in the indictment is harmless if it did not deprive the defendant of fair notice of the charges against him. Government’s Opposition to Defendant’s Motion to Recall Mandate 5-6 (July 11, 2013). As a result, the court of appeals declined to revisit its ruling.1 As the government noted below, the First Circuit’s holding in this case is fully consistent with its longstanding rule that a constitutionally defective indictment is harmless so long as the defendant otherwise receives “fair notice” of the charges that the government intends to pursue at trial and sentencing. In United States v. Brown, 295 F.3d 152 (1st Cir. 2002), for example, the First Circuit held that the indictment’s omission of an element that increased the mandatory
1

Consistent with the government’s admission of error below, the Attorney General recently issued a memorandum stating that under Alleyne, “for a defendant to be subject to a mandatory minimum sentence, prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty.” Memorandum from Eric H. Holder, Jr., Att’y Gen. of the United States, to U.S. Att’ys and Assistant U.S. Att’ys for the Criminal Div. re: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases 1 (Aug. 12, 2013). The Attorney General observed that the application of mandatory minimums has resulted in “unduly harsh sentences and perceived or actual disparities” and directed prosecutors to lessen reliance on mandatory minimums for certain offenders by excluding drug quantities from their indictments. Id. at 1-2. By arguing here that no relief is required when defendants are sentenced to mandatory minimums that are unsupported by the drug quantities charged in their indictments, the government undermines the reforms it purports to have undertaken.

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minimum sentence to life imprisonment was harmless because the defendant had received notice from pre-plea proceedings that he would be subject to the enhanced sentence. Id. at 154-55. Just last month, the First Circuit reiterated this holding in a drug conspiracy case similar to this one. In United States v. Harakaly, No. 122274, 2013 WL 5832654 (1st Cir. Oct. 31, 2013), the court agreed with the government that harmless error review applies to a preserved claim that “the drug quantity that triggered the mandatory minimum sentence was not alleged in the indictment.” Id. at *5.2 As in this case, the court of appeals affirmed a sentence that was imposed in violation of Alleyne, on the ground that evidence of the uncharged drug quantity was “overwhelming” and the defendant received fair notice of the government’s intent to pursue the uncharged mandatory minimum. See id. at *5-8. There is therefore no merit to the government’s contention that the

2

In reaching this conclusion, the court of appeals referred to “the long line of cases subjecting preserved Apprendi errors to harmless-error review.” Harakaly, 2013 WL 5832654, at *4. The two Supreme Court cases it cited, however, do not support the application of harmless-error review to preserved indictment errors. In Washington v. Recuenco, 548 U.S. 212, 220 n.3 (2006), this Court addressed only the applicability of harmless-error review to Apprendi judicial factfinding errors, not charging errors. Charging errors are distinct due to both the grand jury’s vital role as an independent safeguard against prosecutorial abuse, see Pet. at 18-20, and the difficulty inherent in trying to “guess as to what was in the minds of the grand jury at the time they returned the indictment.” Russell v. United States, 369 U.S. 749, 770 (1962); see also United States v. Gonzalez-Lopez, 548 U.S. 140, 149 & n.4 (2006) (explaining that structural error determination rests “upon the difficulty of assessing the effect of the error”); Stirone v. United States, 361 U.S. 212, 217 (1960) (no court may “know” what grand jury “would have been willing to charge”). In United States v. Cotton, 535 U.S. 625, 631 (2002), another case involving a failure to allege the required drug quantity in the indictment, this Court acknowledged that automatic reversal is required for such defective indictments under Stirone, but distinguished that case on the ground that (as is true here) a “proper objection had been made in the District Court to the sufficiency of the indictment.”

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question at issue – whether harmless-error review applies to the punishment of a federal defendant for an offense not charged against him – has not been directly addressed by the First Circuit. II. The First Circuit’s Application of Harmless-Error Review to Uncharged Offenses Conflicts with This Court’s Precedent and Implicates Two Longstanding Circuit Splits. Because the ruling below conflicts with this Court’s holdings on the Fifth Amendment and implicates several related, longstanding splits of authority among the circuit courts, this Court’s review is warranted. First, the court of appeals’ ruling cannot be reconciled with Stirone v. United States, 361 U.S. 212 (1960), which held that the deprivation of the right “to be tried only on charges presented in an indictment returned by a grand jury” is “fatal error” and “far too serious to be . . . dismissed as harmless error.” Id. at 217-19; see also Russell v. United States, 369 U.S. 749, 770 (1962) (“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure.”). A circuit split has since developed on whether reversal remains automatic for offenses and punishments that were never charged against the defendants. See Pet. at 9-14. Compare, e.g., United States v. Thomas, 274 F.3d 655, 669-71 (2d Cir. 2001) (en banc) (holding that under Stirone sentencing of defendant for drug quantity not charged in indictment is “akin to a constructive amendment” and “per se prejudicial”), with, e.g., United States v. Allen, 406 F.3d 940, 943-45 (8th Cir. 2005) (en banc) (in case involving uncharged capital aggravator, describing Stirone -5-

as “the strongest case in [defendant’s] favor” but denying relief on theory defective indictments are no longer structural error). In previous cases, the government forthrightly argued that this Court should overrule Stirone. See 5 Wayne R. LaFave et al., Criminal Procedure § 19.6(c) at 339 (3d ed. 2007) (noting government’s argument that “per se reversal should not be required” even when timely objection was made). The government hints at that position when it argues that an error of this kind should not be treated as structural – an argument that cannot be reconciled with Stirone. See Opp’n at 15-16. Rather than explicitly call for Stirone’s reversal, however, the government argues that it and related rulings involve “distinct considerations” involving the rendering of a verdict, as opposed to the imposition of an aggravated sentence, for an uncharged offense. See Opp’n at 14.3 Tellingly, however, it never explains why this distinction is significant.4

The government also writes that petitioner “argues that the district court erred in sentencing him to a ten-year mandatory minimum based on a jury verdict that he no longer disputes,” Opp’n at 14, but that is a misstatement of both the record and petitioner’s position. Petitioner was not sentenced based on the jury’s verdict; if he had been, he would have been subject to only a five-year mandatory minimum under § 841(b)(1)(B)(ii). See App. 28a (verdict finding quantity of 500 grams). Instead, the district judge imposed a ten-year mandatory minimum under § 841(b)(1)(A)(ii) based on his own finding of drug quantity. The occurrence of this independent judicial factfinding error did not somehow ameliorate the harm caused by the indictment error.
3

At one point, the government suggests that Stirone and its progeny are distinguishable because they involved “evidentiary and instructional rulings deemed to constructively amend indictments.” Opp’n at 13-14. As the government acknowledges elsewhere, however, the district court in this case was able to impose the uncharged ten-year mandatory minimum only after it overruled petitioner’s objections to the admission of evidence on the higher drug quantity. See id. at 6-7.
4

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Any suggestion that verdicts and sentences present distinct considerations in this context ignores this Court’s ruling in Alleyne, among other cases. In Alleyne, the Court rejected the government’s attempt to distinguish between the jury’s verdict that supported the initial five-year mandatory minimum and the decision of the sentencing judge to increase that minimum by two years based on his finding that the defendant brandished a firearm. See 133 S. Ct. at 2156. Facts that increase a mandatory minimum are “part of the substantive offense,” the Court explained, and “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime.” Id. at 2161. Here, the district court sentenced petitioner to a new, aggravated crime when it imposed the uncharged ten-year mandatory minimum. Accordingly, this case falls squarely under Stirone and the circuit split addressing its continued validity. See Pet. at 1113; 5 LaFave, supra, at § 19.6(c) at 339-40. This case also implicates what in 2006 the government described as “a clear and well-established circuit conflict”: “the question whether the omission from a federal indictment of an offense element (or a fact that increases the penalty for a crime beyond the statutory maximum) can constitute harmless error.” See Petition for a Writ of Certiorari, United States v. Resendiz-Ponce, 549 U.S. 102 (2007) (No. 05-998). The government now backtracks, arguing that even though this Court ultimately did not decide that issue in Resendiz-Ponce, the conflict among the circuit courts no longer requires resolution. See Opp’n at 17-20. That view is not widely shared. See, e.g., Resendiz-Ponce, 549 U.S. at 116-17 (Scalia, J., dissenting)

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(stating that “the full Court will undoubtedly have to speak to” whether “a constitutionally deficient indictment is structural error” in future); 5 LaFave, supra, at § 19.3(a) at 275-76 (“Since the conflict among the circuits remains, . . . it seems likely that the Court will grant certiorari in some other case to resolve that issue.”). The government’s argument against resolving this split rests on a proposition that it did not embrace in 2006: i.e., that it is improper to “conflate” cases that involve “omission of a non-sentencing element of an offense” and cases that involve “omission of a sentence-enhancing factor.” See Opp’n at 19. In the very same paragraph of its opposition, however, the government concedes that this Court has directed that “elements of an offense and statutory sentencing enhancements should be analyzed in the same manner.” See id. at 19-20 (citing Washington v. Recuenco, 548 U.S. 212, 220 (2006)); see also 5 LaFave, supra, at § 19.3(a) at 271-73 (stating that in 2002 the Court rejected “the suggestion of some earlier lower court opinions that the standard of appellate review should differ for a failure to allege an Apprendi element and the failure to allege some other essential element”). Indeed, this point was only fortified by the Court’s ruling in Alleyne that facts that trigger a higher mandatory minimum, along with the core crime, “together constitute a new, aggravated crime.” 133 S. Ct. at 2161. The government’s argument against review now therefore relies on a distinction that this Court has repeatedly rejected. The government also relies on a selective and inaccurate summary of circuit case law. For example, in United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), the Ninth Circuit ruled that because the Fifth Amendment “requires that a defendant

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be convicted only on charges considered and found by a grand jury,” the failure of an indictment to charge a mens rea element was not “amenable to harmless error review.” Id. at 1179. Citing United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007), the government argues that more recent decisions have “cast doubt on the extent of any current division of authority.” See Opp’n at 18 & n.3. In SalazarLopez, however, the court found that “the central holding” of Du Bo remains controlling law in the Ninth Circuit but distinguished that case on the ground that it involved a timely objection. 506 F.3d at 753; see also United States v. Delgado, 266 Fed. Appx. 594, 595 (9th Cir. 2008) (applying Du Bo after observing that court in Salazar-Lopez found that it “is still valid law in this circuit”); United States v. Omer, 395 F.3d 1087, 1088 (9th Cir. 2005) (applying Du Bo and holding that failure to allege element of offense is not subject to harmless error review). The government similarly misinterprets Second Circuit precedent. It cites dicta in United States v. Cordoba-Murgas, 422 F.3d 65, 69, 72 (2d Cir. 2005), for its claim that all circuits apply harmless-error review to “Apprendi-based indictment errors.” See Opp’n at 18-19. The government in that case did not argue harmless error, however, see 422 F.3d at 72; the only authority on harmless error cited therein involved an inapposite “Sixth Amendment objection” to “judicial factfinding.” See United States v. Lake, 419 F.3d 111, 113 (2d Cir. 2005). The court in Cordoba-Murgas acknowledged that the controlling Second Circuit authority is its en banc ruling in Thomas, which held that the sentencing of a drug conspiracy defendant for an uncharged drug quantity is “per se prejudicial.” See 274 F.3d at

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671.5 The government further argues that when the Second Circuit more recently vacated a ten-year mandatory minimum sentence under § 841(b)(1)(B) because the indictment did not allege the necessary quantity of cocaine, it “[did] not consider harmless-error review.” See Opp’n at 19 n.4 (citing United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012)). The court in that case, however, relied extensively on Thomas, as well as this Court’s rulings in Stirone and Russell, in explaining why the right to indictment by grand jury is “mandatory” and cannot be supplanted by speculation about what the grand jury might have done or “prosecutorial advice in the nature of a bill of particulars stating the element.” See Gonzalez, 686 F.3d at 127-28 (citations omitted). The government also claims that the Fourth Circuit “did not even address the harmless-error question” when it vacated a conviction based on an indictment that omitted an essential element in United States v. Kingrea, 573 F.3d 186, 194 (4th Cir. 2009). See Opp’n at 19 n.5. But in rejecting the government’s argument that jury instructions, a petit jury verdict, or other “provision of adequate notice to the
5

The court in Thomas actually vacated the defendant’s sentence under plain error review, since (unlike here) the defendant did not make a contemporaneous objection before the district court. The pertinent analysis involved whether the omission of the drug quantity was “prejudicial” and therefore affected the defendant’s “substantial rights.” See 274 F.3d at 668. The court concluded it was “beyond cavil” that the defendant was prejudiced by a sentence resulting from the error of using a drug quantity not charged by the grand jury, and the punishment of the defendant for “a crime other than the crime alleged in the indictment” was per se prejudicial under Stirone. Id. at 669-70. “[I]t would be inappropriate for a court to speculate as to whether a grand jury might have returned an indictment in conformity with the available evidence, because such an exercise would work the harm the Grand Jury Clause is intended to prevent – a federal prosecution begun by arms of the Government without the consent of fellow citizens.” Id. at 670 (citing Stirone, 361 U.S. at 217-19).

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defendant” could cure the constitutional infirmity, the court in Kingrea relied on not only Stirone but also its prior holding in United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir. 1988) (en banc), which explicitly held that “harmless error analysis is inappropriate” when the defendant has made a timely objection to an indictment that omitted an essential element. Similarly, the government suggests that the Third Circuit’s holding that the failure to allege an element in an indictment is “far too serious to be . . . dismissed as harmless error,” United States v. Spinner, 180 F.3d 514, 515-16 (3d Cir. 1999) (quoting Stirone, 361 U.S. at 217), was somehow undermined by its unpublished ruling in United States v. Green, 516 Fed. Appx. 113 (3d Cir. 2013). See Opp’n at 18 n.3. In Green, however, the court declined to apply Spinner because the counts at issue relied on a separate charged offense that alleged the missing element. See 516 Fed. Appx. at 125-26. That limited holding hardly casts any doubt on the continued validity of Spinner. These and other circuit court rulings stand in sharp contrast to the First Circuit’s view that there is “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. MojicaBaez, 229 F.3d 292, 311 (1st Cir. 2000). See also United States v. Wilkes, 130 F. Supp. 2d 222, 237-38 (D. Mass. 2001) (observing that application of harmless-error review in Mojica-Baez conflicts with Stirone and other circuit court rulings and allows prosecutors to “do an end-run around the grand jury and cure crucial omissions just by notifying the defendant”). This Court should grant the petition in

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order to decide whether Stirone remains good law and to resolve these longstanding circuit splits involving the applicability of harmless-error review to constitutionally defective indictments. III. The First Circuit’s Application of Harmless-Error Review to Judicial Findings of Contested Elements Conflicts with This Court’s Precedent. A separate basis for reversal involves the First Circuit’s misapplication of the harmless-error standard for judicial factfinding issues. As with the indictment question, the government does not dispute that the district court violated petitioner’s right to jury trial, “a fundamental reservation of power in our constitutional structure,” see Blakely v. Washington, 542 U.S. 296, 306 (2004), as well as the prohibition against judges making independent determinations of a defendant’s guilt, see Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), when it imposed a ten-year mandatory minimum based on its own finding of drug quantity, even though the jury found a quantity sufficient to support only a five-year mandatory minimum. App. 11a, 28a. Instead, the government argues that this Court should deny review because petitioner’s challenge to the application of harmless-error review is “factbound.” Opp’n at 21; see also id. at 25 (referring to “the court of appeals’ fact-bound assessment of the record in this case”). That is incorrect. In finding harmless error, the First Circuit acted contrary to this Court’s precedent by ignoring the contested nature of the issue at hand: petitioner’s responsibility for the additional drug weight involved in the Florida transaction. 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 - 12 -

“beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24. In Neder v. United States, 527 U.S. 1 (1999), this Court held that the failure to instruct the jury on an element of the crime is potentially harmless only when “a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.” Id. at 17 (emphasis added). In other words, an element must be, at a minimum, “uncontested” before a court can conclude that its finding by a judge, not a jury, was harmless. Indeed, the government concedes that under Neder an error cannot be harmless in a case “where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding.” See Opp’n at 23 (citing Neder, 527 U.S. at 19). As petitioner previously explained, see Pet. at 23-24, other circuit courts have faithfully applied the rule established in Neder. See, e.g., United States v. Hunt, 656 F.3d 906, 915 (9th Cir. 2011) (holding that omission of element is harmless “only where the record contains ‘overwhelming’ and ‘uncontroverted’ evidence supporting” element) (emphasis added); United States v. Sierra-Ledesma, 645 F.3d 1213, 1224 (10th Cir. 2011) (holding omission of element was harmless under “uncontested and supported by overwhelming evidence standard” because “[a]t no point has Defendant provided any evidence” to contrary and because “the only evidence presented to the jury” tended to prove missing element). Although the government attempts to distinguish such cases on their facts, see Opp’n at 24-25, the specific facts are indeed irrelevant to the legal principle at issue: Neder’s holding that the

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judicial finding of an element cannot be harmless error if it was subject to contested evidence at trial. By contrast, the First Circuit in this case asked only whether “the evidence overwhelmingly established the minimum drug quantity needed to justify” the tenyear mandatory minimum sentence. App. 19a; Gomez, 716 F.3d at 10 (quoting United States v. Soto-Beniquez, 356 F.3d 1, 46 (1st Cir. 2004)). This standard omits Neder’s requirement that the missing drug quantity element be “uncontested.” Neder forbids what the First Circuit did here: focusing exclusively on the quantity and quality of the evidence of guilt, evaluated from the perspective of the appellate court, while ignoring whether the element was contested such that a jury could rationally reach a contrary result. In fact, petitioner did contest his responsibility for the uncharged drug quantity, and there are multiple reasons why a jury might have rationally declined to hold him responsible for the larger drug quantity (had it actually been asked). See Pet. at 24-25. The government asserts that when petitioner testified at trial, he “did not seriously contest” his responsibility for the unconsummated Florida reverse transaction. See Opp’n at 26. That assertion is contradicted by the fact that in closing arguments to the jury, the prosecutor vigorously challenged petitioner’s testimony “that either he was duped or he did it because he needed a job or he didn’t know anything or he did know something but it was only for extenuating circumstances.” See C.A. App. 507; see also id. at 486 (arguing that “the defendant’s explanations are chockful of holes”). In holding that the judicial factfinding error

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was harmless due to “overwhelming” evidence, the court of appeals ignored the contested nature of this element and therefore misapplied this Court’s holdings in Chapman and Neder. CONCLUSION For the reasons set forth above and in the Petition, this Court should grant a writ of certiorari. 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: November 13, 2013

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