Petition for Writ of Certiorari — Toby Jones, Petitioner v. United States

Supreme Court briefDec 18, 2017

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IN THE

SUPREME COURT OF THE UNITED STATES

TOBY JONES

PETITIONER

(Your Name)

vs.

THE UNITED STATES OF_ AMERICA RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Toby Jones

(Your Name) 421031-424

U.S.P. Big Sandy P.O. Box 2068

(Address)

Inez, KY. 41224

(City, State, Zip Code)

(None) Incarcerated

(Phone Number)

QUESTION(S) PRESENTED

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LIST OF PARTIES

X] All parties appear in the caption of the case on the cover page.

[ II All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

JURISDICTION........................................................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................39

STATEMENT OF THE CASE ............................................................................................5-fl

REASONS FOR GRANTING THE WRIT ..........................................................................

CONCLUSION................................................................................................................

INDEX TO APPENDICES

APPENDIX A Seventh Circuit Court Opinion

APPENDIX B DSTrcr

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

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STATUTES AND RULES

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment. be1ow.

OPINIONS BELOW

[XI For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

; or,

[X] reported at 2017 IT. S. LEXIS 18204

[1 has been designated for publication but is not yet reported; or,

{ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[1 reported at

; or,

[ J has been designated for publication but is not yet reported; or,

4 is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review thip merits appears at

Appendix

to the petition and is

; or,

{ I reported at

[] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appeal's at Appendix

court

to the petition and is

; or,

[ I reported at

[ ] has been designated for publication but is not yet reported; or,

[ I is unpublished.

(j)

JURISDICTION

For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

J1 No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date:

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on ____________________ (date)

A______

The jurisdiction of this Court is invoked under 28U. S. C. § 1254(1), 4 8

Wefl A S Ag i)-S, i61@-)

{ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[II A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ J An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No. ...A_______

(date) on

________________

(date) in

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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STATEMENT OF THE CASE

The Undercover Investigation

In late 2013, the Bureau of Alcohol, Tobacco and Firearms ("ATF") and

its Agent Christopher Labno were informed by Confidential Informant Jamie

Ringswald ("CI") about crack cocaine sales on Chicago's west side. Doc. 413 at

76:9-13, 77:19-24. The CI named Toby, Kelsey Jones, (Toby's brother and coDefendant), and co-Defendant Wesley Fields. Doc. 413 at 82:14-22.

Since 2004, the ATF has paid the CI $180,000 for information about

drug deals. Doc. 413 at 78:9-25. The Cl's work was interrupted by stints in

prison for various drug-related crimes. Id. Job benefits for the CI included free

housing, specifically an apartment at 464 North Austin, where the Cl

supplemented his ATF payouts with drug sales. Id. at 79:40-7. Nor did the CI

let his agreement with the ATF to abstain from using heroin during the

investigation deter his inveterate use. Doc. 415 at 460:22-461:2; 462:6-10.

In December 2013, the CI introduced Toby and Kelsey Jones to a drug

purchaser (undercover Agent Labno). Doc. 413 at 80:8-9. Agent Labno posed

as a crack cocaine reseller with access to stolen guns. Id. at 76:5-8. Through

the winter, the CI and Agent Labno participated in recorded phone calls and

in-person meetings with Toby, Kelsey Jones, and Fields. Id. at 82-88.

Meanwhile, the CI bought drugs from Fields during unrecorded contact

without Agent Labno's knowledge. Doc. 419 at 31:7-23. However, the CI told

Agent Labno that he was not contacting Fields outside of their monitored

interactions. Id. at 34:16-25.

On January 15, 2014, a video depicts Toby telling Agent Labno he wants

"30 poppers and 30 clips," asking Agent Labno about gun prices, looking at

Agent Labno's photo of a firearm, and advising Agent Labno to not discuss

guns on the phone. Doc. 420 at 1725-26,

A 58-59. A few

weeks later, Fields visits Toby's apartment to pick up drugs to sell. Doc. 414

at 296:17-297:1. Fields thinks he sees a.40-caliber gun at the apartment. Id.

at 297:15-22.

In a February 4, 2014 video, Agent Labno and Toby discuss a Beretta

and a Glock.

Toby asks Labno how much for the "Glock

with the extended clip right now," and Labno replies $450. Gvt. Ex. 2/4/2014

UC Video at 4. Labno also tells Toby he would take "six jabs." Id; Doc. 420 at

1726:21-23,

jab equals 10 to 12 rocks of cocaine. Doc. 413 at

102:2-3. Toby indicates he wants the Glock and the Beretta. Doc. 420 at

1727:2-5,

A few weeks later, Agent Labno, Fields, and Toby examine gun photos

on Agent Labno's phone. Doc. 420 at 1727:9-14, AppxOMM. Agent Labno

asks Toby if he was "still good for them, like six [jabs] on each?" to which Toby

agrees. Doc. 420 at 1727:21-25, AppnvzWkW. Agent Labno informs Toby he

has a "30 popper" and a "retta." Doc. 420 at 1728:1-3, ipja&

He also

tells Toby he has more guns because Fields "was talking at" Agent Labno, to

which Toby responds, "I got you." Doc. 420 at 1728:3-6,

A week later, Agent Labno tells Toby that "he has the two he was

looking for, the 30 popper and the other one." Doc. 420 at 1728:11-14, iM

1. Toby says he wants the 30. Doc. 420 at 1728:15-16,

They

agree on the price of six jabs, but Toby does not have the drugs. Doc. 420 at

1728:16-22, ftVzQU0ft. Meanwhile, Fields has multiple conversations with

the Cl about buying guns for cash. Doc. 418 at 1514:3-11. Fields and the Cl

speak again on March 25, 2016. Id. Fields plans on buying guns for himself

with cash. Id. at 1514:12-19. Toby never tells Fields to purchase a gun with

drugs. Id. at 1523:20-22.

On March 25, 2016, the Cl tells Fields he wants drugs from Toby for the

gun exchange. Doc. 418 at 1525:24-1526:13. Fields meets Toby at Kelsey

Jones' apartment at 653 North Austin where Toby gives Fields $430 in cash

and six jabs of cocaine. Id. at 1526:19-1527:11. Toby did not instruct Fields

which currency (cash or drugs) to buy which gun. Id. at 1527:16-22. He tells

Fields that he wants the "30 popper" (the Glock) (Doc. 420 at 1729:4-10, ftqt,

and to get himself a gun. Doc. 418 at 1527:13-15. Toby also asks him

to meet the CI and Agent Labno, as Toby would not attend. Doc. 420 at

The Guns-for-Drugs-and-Cash Transaction

On March 26, 2014, the CI and Toby text. Doc. 420 at 1729:11-24, app.

.The CI texts Toby that he is bringing the "30" and "all of' the guns.

Id.; Doc. 415 at 508: 1-11. Toby says he will not be there. Doc. 415 at 508:1124. The CI tells Toby to send Fields. Doc. 415 at 508:15-24. Fields drives with

co-Defendant Parashun Roscoe to meet the CI and Agent Labno. Doc. 418 at

1536:17-23. Fields and Roscoe examine guns. Id. at 1537:4-7. Fields plans to

return with more money to buy more guns. Doc. 418 at 1539:23-25.

Fields exchanges the six jabs and $430 with Agent Labno for a Glock

and Beretta. Doc. 420 at 1731. Fields did not know what the jabs were for and

what the money was for. Doc. 420 at 1733:9-15. Fields said it did not matter to

Toby. Doc. 418 at 1540:16-25. Fields' plan was to buy the guns with cash. Doc.

418 at 1514:3-17. Agent Labno arrests Fields. Doc. 414 at 265:23-266:1. Fields'

bond is later revoked for drug use. Id. at 268:7-15.

After the transaction, Toby texts the CI about where his "little shorties"

were. Doc. 420 at 1735:5-11,

The CI lies and asks Toby "who's

coming to hit me," even though Fields was already arrested. Doc. 420 at

1735:14-18,

Toby tells the CI that he would get paid. Doc. 420 at

1736:1-3,

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Fields Equivocates

Fields sold crack cocaine to the CI every week from December 2013 to

March 2014. Doc. 418 at 1494:24-1495:10. After his arrest, Fields told agents

that he received the 6 jabs of cocaine from "Zane." Doc. 418 at 1530:9-14. At

his later proffer, he equivocated about the source of the drugs and money. Id.

at 1531. He also lied to the district court while on pretrial release. Id. at

1547:23-1548:16. The district court acknowledged Fields' credibility was in

tatters:

The Court is certainly aware that Mr. Wesley Fields has notbeeñ

credible and has not been credible with the Court; and, I am

certainly considering his testimony with caution and great care. I

know he has a deal with the government. He is cooperating as

part of that deal, in hopes of getting a lower sentence. And trust

me he lied directly to me, which is why he is in custody. So, ,I

am well aware that I need to, and I am considering his testimony

with caution and great care.

Doc. 420 at 1731:20-1732:3,

Kensha Barlow is Shot

Kensha Barlow lived in the same building as the Cl. Doc. 417 at

1103:13-21. Barlow sold drugs out of this building. Id. at 1114:20-22. He sold

drugs to the CI countless times. Id. at 1119:20-24. Barlow's rap sheet includes

drug and gun convictions. Id. at 1103:1-12.

On the night of March 26, 2014, Barlow is home smoking marijuana and

drinking. Doc. 420 at 1740:6-7,

He is high. Doc. 420 at 1740:12-

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Around midnight, there is a knock at his door. Doc. 420 at

An unknown voice says "it's me" and "you know who

it is." Doc. 417 at 11069-13, 23-1107:1. Barlow looks through the peephole but

it is covered. Doc. 420 at 1740:16-17,

He looks again for a few

seconds and sees two men. Doc. 420 at 1740:17-18, ApagatQUftj Doc. 417 at

1107:9. Barlow recognizes neither. Doc. 417 at 1107:24-1108:1.

Barlow then hears kicking at the door and yelling. Doc. 417 at 1108:2-9.

He looks through the peephole again and sees the man with the black hat

reach into his pants. Id. at 1108:10-13, 1109:3-5. Barlow steps back from the

peephole. Id. at 1109:5-13. Three bullets come through the door and one hits

Barlow's leg. Id. at 1109:16-19. The bullets are .40-caliber. Id. at 1220:12-15.

Barlow Fails to Make an Identification

Officer Taylor of the Oak Park Police Department visits Barlow at the

hospital the next day. Doe. 417 at 1198:14-16. Barlow describes his shooter as

a dark-skinned, stocky, clean-shaven black male. Id. at 1199:4-6. Officer

Taylor visits Barlow the next day and Barlow similarly describes his shooter

but adds that he is lighter-skinned. Id. at 1199:7-14. A few weeks later,

Barlow meets Officer Taylor at the Oak Park police station. Doe. 229,

Barlow is shown two color photo lineups, one with Kelsey's photo and one

with Toby's photo ("First Photo Lineup"). Id.

The First Photo Lineup consists of six black males, one with dark skin

and five with lighter skin.

Toby has a beard and is light skinned.

Doc. 412 at 17:1-2. Five of the men have at least some facial hair. AqZDpAtdb

Barlow previously described his shooter as clean-shaven and dark-

skinned. Id. Officer Taylor places Toby's photo in the lineup because ATF

agents said Toby was a suspect. Doc. 417 at 1187:8-18.

Barlow pauses for "no more than a second" at Toby's photo, but says he

does not recognize anyone in the First Photo Lineup. AWsalrM, Doc. 417 at

1201:24-1202:2. Officer Taylor has Barlow look at the First Photo Lineup a

second time and Barlow identifies no one.

Officer Taylor does not

memorialize this meeting in his report.

Doc. 417 at 1197:14-18.

Barlow Makes an Identification After His Arrest

On June 2, 2014, Barlow sells ten grams of crack cocaine to Agent

Labno and is arrested. Doc. 417 at 1119:4-13; 1223:10-14. Agent Labno

advises Barlow that cooperation in his shooting will benefit his drug case. Id.

at 1228:10-12. Barlow then says the shooter is a bearded, light-skinned black

male with a stocky build, while the second person wore a gray hoodie and was

darker-skinned, shorter, and skinnier than the shooter.

Doc. 417

at 1225:10-19.

After interrogating Barlow, Agent Labno retrieves six individual color

arrest photos—larger photos from the First Photo Lineup.

Lacking a color copier to copy the First Photo Lineup, Agent Labno prints out

larger arrest photos in color from a database. Id. at 8; Doc. 419 at 40:10-11,

50-9-10. Agent Labno does not show Barlow the First Photo Lineup because

he wants to make his lineup "better" by using larger photos. *±

Doc.

419 at 40:4-11. He is also concerned the First Photo Lineup would be marked.

Doc. 419 at 42:9-25. Agent Labno admitted it was a "really strange

situation ... [I was] kind of Unsure how to proceed." Id. at 43:2-11.

Agent Labno displays the photos like playing cards when he enters the

room.

417 at 1230:2-17. Seeing Toby's photo on top, Barlow

identifies him as the shooter: "that's his gay ass right there."

Agent Labno then sets the photos on the table in the same order as the First

Photo Lineup and asks Barlow if he sees his shooter, saying that "there might

be someone in there and there might not be someone in here." Id. Barlow

selects Toby's photo. Id. At trial, Agent Labno admits he should have done a

better job and not made the photos initially visible to Barlow. Id.

Agent Labno then shows Barlow a black and white version of the First

Photo Lineup. Doc. 417 at 1231:2-8. Barlow circles Toby's photo. Id. at

1231:11-14. Agent Labno omits this identification in his report.

14. Agent Labno only produced the color photo of Toby used with Barlow after

his arrest—the other five photos were lost. Doc. 419 at 45:15-23.

Barlow's Identification Equivocation

In June, Barlow meets another ATF agent at his proffer and says he is

only 40% sure he identified the correct photo, and uncertain he could identify

his shooter. Doc. 420 at 1742:5-7,

During his grand jury

testimony, Barlow flips again and identifies Toby. Doc. 420 at 1742:7-12, p.

Q$QW: Barlow hopes his testimony will lower his drug sentence. Doc. 417 at

1129:21-1130:4.

Barlow's Trial Identification

Barlow testified at trial that while high, in the few seconds he peered

through the peephole, he recognized the black hatted man as Toby. Doc. 417

at 1113:2- 10. He did not see the face of the man with the gray hoodie. Id. at

1113:13-18. No DNA was found on the door or peephole. Doe. 418 at 1371:3-13.

The CI Is Shot

On April 2, 2014, the CI and his brother, Mark Ringswald, are shot

while sitting in the Cl's car outside his apartment. The CI picks Kelsey Jones

from a photo lineup as the shooter. Doc. 416 at 773:14-16. Mark's wife is in the

car and she identifies co-Defendant Mario Whitfield as the driver of the red

minivan carrying Kelsey Jones. Id. at 922:3-16. Kelsey Jones is arrested a few

days later. Doe. 415 at 755:22-756:6. Toby is never identified or placed at the

scene.

Agent Labno arrests Toby a few weeks later. Doc. 416 at 802:21-803:24.

The ATF finds no guns in the three locations Toby frequents. Doc. 419 at

67:15-69:4.

The Third Superseding Indictment

A grand jury returns a 15-count third superseding indictment against

Toby and co-Defendants Kelsey Jones and Whitfield. Doc. 216. Toby pleads

guilty to Counts One through Seven and not guilty to Counts Eight through

Twelve. Doc. 379,

Fields pleads guilty to Counts 1 and 9 and alters his previous testimony

to blame Toby at trial, in exchange for 25% off the low end of his Sentencing

Guideline range. Doc. 381; Doc. 414 at 267:4-14. Fields is sentenced to 117

months' imprisonment. Doc. 381. Fields does not appeal.

Kelsey Jones has a jury trial on Counts 1, 7, 10, 13, and 14. He blames

Toby for the drug conspiracy and the two shootings. Doc. 418 at 1422:211424:12, 1438:25-1440:19. He is found guilty on all counts and sentenced to

420 months in prison. Doc. 437. Kelsey Jones appeals. United States v. Kelsey

Jones, No. 16-3975.

Whitfield is found guilty after a bench trial (conducted with Toby) on

Count 15, accessory after the fact. Doc. 216. He blames Toby for enlisting his

help. Doc. 419 at 17:11-22. His prison sentence is 84 months. Doc. 399. An

Anders brief has been filed. United States v. Whitfield, No. 16-2676.

Pre-Trial Motion

Toby moved to suppress Barlow's eyewitness identification. Doc. 170.

The district court denied the motion. 0$W.,dVA 1. The district court found the

Oak Park police did not have a description of Toby and that Barlow's

description of the shooter was dark skinned and clean shaven. yj2AJ

"Given that the law enforcement officers did not have an accurate description

of the shooter until after the Oak Park Police officers designed the photo

lineup, Defendant cannot successfully claim that they created the lineup

based on the description." Id.

The Bench Trial

The bench trial of Toby and Whitfield was held after Kelsey Jones' jury

trial. The court examined Barlow's apartment where the shooting occurred.

Doc. 419 at 1561-1562. The court looked through the peephole and found faces

outside were discernable. Id. at 1562:7-8. The court found Toby guilty on

Counts 8, 9, 10, 11, and 12. Doc. 317. For Count 9, the court found Toby

knowingly possessed a firearm in furtherance of the March 26, 2014 drug

transaction. Doc. 420 at 1733:16-22,

The court alternatively

found Toby aided Fields' knowing possession of a gun in furtherance of a

crime. Id. at 1734:1-4,

The court also found Counts 10, 11, and

12 pertained to Toby's involvement in the Barlow shooting. Id. at 1739:20-22,

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REASONS FOR GRANTING THE PETITION

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

1Ob,

Date:

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.