Petition for Writ of Certiorari — David Delva, aka Sealed Defendant 4, Petitioner v. United States

No.

IN THE

uprente Court of the Eniteb 'tate

OCTOBER TERM, 2018

DAVID DELVA,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEVEN Y. YUROWITZ

NEWMAN & GREENBERG LLP

950 THIRD AVENUE - 32ND FLOOR

NEW YORK, NEW YORK 10022

TELEPHONE: 212-308-7900

FAX: 212-826-3273

-

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

Petitioner demonstrated below that the district court committed clear error

in upholding the warrantless search of his bedroom. Nevertheless, the divided court

of appeals affirmed the district court's denial of suppression based on its sua sponte

determination that exigent circumstances justified the warrantless entry into

petitioner's bedroom so that officers would have a private space to interview a

witness, a novel and unprecedented application of the exigent circumstances

doctrine. Because the government had never challenged petitioner's assertion in

the district court that exigent circumstances were not present, and never even

argued exigent circumstances in the court of appeals, the court of appeals should

have deemed the issue both waived and then forfeited and reversed, as a number of

court of appeals have found in similar circumstances. At a minimum, given the

fact-intensive nature that an exigent circumstances determination entails the case

should have been remanded to give petitioner an opportunity to demonstrate that in

fact no exigent circumstances were present.

In addition, at trial petitioner was ultimately acquitted of all substantive

charges. Nevertheless, petitioner's sentence was largely driven by that acquitted

conduct. The court of appeals affirmed petitioner's sentence finding that it was

bound by this Court's prior decision in United States v. Watts, 519 U.S. 148 (1997).

Many have questioned whether Watts continues to survive this Court's more recent

Sixth Amendment jurisprudence. Regardless of the determination on that issue,

Watts continued vitality cannot be reconciled with this Court's recent decision in

1

Nelson v. Colorado, 137 S. Ct. 1249 (2017), which held that an acquittal restores the

presumption of innocence and cannot be the basis for any penalty.

This case therefore raises two important questions for this Court's

consideration:

Does a court of appeals commit error when it upholds a warrantless

search on the basis of an exception as to which the government waived

and forfeited its right to assert?

Is a sentence based on acquitted conduct inconsistent with the

presumption of innocence restored by that acquittal, and the Fifth and

Sixth Amendments?

11

TABLE OF CONTENTS

OPINIONS BELOW

.1

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..........................2

STATEMENT OF THE CASE ................................................................................................. 3

REASONS FOR GRANTING THE WRIT.............................................................................8

CONCLUSION..........................................................................................................................22

APPENDICES

Appendix A

Opinion of Court of Appeals

Appendix B

Order of Court of Appeals denying

Petition for rehearing

111

TABLE OF AUTHORITIES

Cases

Arizona v. Gant, 556 U.S. 332 (2009)...................................................................................16

Headley v. Tilghman, 53 F.3d 472 (2d Cir. 1995).............................................................. 10

Helvering v. Gowran, 302 U.S. 238 (1937)..........................................................................10

Hormel v. He] vering, 312 U.S. 552 (1941) ............................................................................9

Jones v. United States, 135 S. Ct. 8(2014).........................................................................21

Nelson v. Colorado, 137 S. Ct. 1249 (2017)......................................................................... 20

Nix. v. Williams, 467 U.S. 431 (1984) .................................................................................. 16

Payton v. New York, 445 U.S. 573 (1980) ...........................................................................11

SEC v. Chenery, 318 U.S. 80 (1943).................................................................................... 17

Sims v. Apfe], 530 U.S. 103 (2000).......................................................................................... 9

Singleton v. Wulff

, 428U.S. 106 (1976)........................................................................ 13,18

Steagald v. United States, 451 U.S. 204 (1981).......................................................... 11, 12

United States v. Aguilera, 591 Fed.Appx. 555 (9th Cir. 2015).......................................13

United States v. Askew, 482 F.3d 532 (D.C. Cir. 2007)..................................................... 9

United States v. Bell, 808 F.3d 926, 929 (D.C. Cir. 2015)............................................... 21

United States v. Booker, 543 U.S. 220 (2005)....................................................................23

United States v. Bouffard, 917 F.2d673 (1st Cir.1990) ................................................... 17

United States v. Canania, 532 F.3d 764 (8th Cir. 2008)( ................................................. 22

United States v. Faust, 456 F.3d 1342 (11th Cir. 2006).................................................. 22

United States v. Gonzales, 79 F.3d 413 (5th Cir. 1996)...................................................15

lv

United States v. Lightbo urn, 357 FedAppx. 259 (11th Cir.2009).................................14

United States v. Maez, 872 F.2d 1444 (10th Cir. 1989)...................................................11

United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009) ................................................ 16

United States v. Marts, 986 F.2d 1216 (8th Cir. 1993)....................................................15

United States v. Moss, 963 F.2d 673 (4th Cir. 1992)........................................................ 13

United States v. Noble, 762 F.3d 509 (6th Cir. 2014) ......................................................14

United States v. Stearns, 597 F.3d 540 (3d Cir. 2010).....................................................13

United States v. Stotler, 591 F.3d 935 (7th Cir. 2010)..................................................... 16

United States v. Swptson, 987 F.2d 1510 (10th Cir. 1983).............................................14

United States v. United States District Court, 407 U.S. 297 (1972) .............................. 8

United States v. Watts, 519 U.S. 148 (1997)...............................................................20, 23

United States v. White, 551 F.3d 381 (6th Cir. 2008) ......................................................21

Statutes and Rules

U.S. Sup. Ct. Rule 10(a), 10(c)...............................................................................................18

Other Authorities

James J. Bilsborrow, Sentencing Acquitted Conduct to the Post-Booker Dustbin,

49 Wm. & Mary L. Rev. 289 (2007) ................................................................................20

V

OPINIONS BELOW

The decision of the United States Court of Appeals for the Second Circuit

affirming petitioner's judgment of conviction is reported as United States v. Delva,

858 F.3d 135 (2d Cir. 2017) (Kearse, Winter, Circuit Judges) and (Jacobs, Circuit

Judge, dissenting), a copy of which is annexed hereto as Appendix A.

The unreported order of the United States Court of Appeals for the Second

Circuit, dated September 12, 2017, denying petitioner's petition for rehearing with a

suggestion for rehearing en bands annexed hereto as Appendix B.

JURISDICTION

The judgment of the of United States Court of Appeals sought to be reviewed

was entered on June 1, 2017, and the order of that court denying petitioner's

petition for rehearing was entered on September 12, 2017. Justice Ginsburg

granted petitioner's application to extend his time to file a petition for a writ of

certiorari until February 9, 2018. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. IV.

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const. amend. VI.

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.

U.S. Const. amend. V.

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use,

without just compensation.

2

STATEMENT OF THE CASE

1. In October 2013, petitioner was indicted in the Southern District of New

York in a multi-count indictment principally charging substantive and conspiracy

offenses involving robbery and kidnapping and a substantive charge of brandishing

a weapon. A14, A41-A50.'

There was no dispute at trial that a woman and a man were kidnapped over

the 2012 Labor Day weekend in the Bronx, New York, and that the man, a drug

dealer was assaulted and ultimately his apartment robbed by the kidnappers.

There was also no dispute as to the identity of three of the kidnappers: Trevor Cole,

Dominique Jean Philippe and Gregory Accilien.

Instead, the focus at petitioner's trial was what role, if any, petitioner had in

that kidnapping and robbery. Petitioner, who put on an alibi defense claimed that

he was not present in the Bronx during the events at issue but was instead in the

Crown Heights section of Brooklyn celebrating at the Jamaica Day parade where he

got drunk and he stayed in Brooklyn at a relative's house for several days thereafter

recovering from his hangover. For the most part, the jury appears to have accepted

petitioner's defense, acquitting petitioner of every substantive offense relating to

the kidnapping and robbery. Instead, petitioner was convicted of only conspiracy

offenses, and narcotics and weapons possession offenses arising after the

kidnapping and robbery. Having acquitted petitioner of all substantive offenses

relating to the kidnapping and robbery

1

--

and based on questions during

"A_" refers to the Appendix filed in Court of Appeals, "Doc# refers to documents contained on the

district court's docket reprinted at A1-A40 "App. A" or "App. B" refers to the appendices

accompanying this petition.

3

deliberations

--

there was good reason to believe that the jury's conviction of

petitioner for conspiracy was not for his participation in the actual kidnapping and

robbery but rather for his alleged role in the aftermath of the kidnapping, i.e., its

cover up and sharing in the proceeds.2 Thus, evidence that related to the postkidnapping and robbery conduct was critical. It was that evidence consisting of

certain letters ("the Accilien letters") and petitioner's cell phone that was the

subject of one of the most hotly contested issues below, and the primary issue on

appeal, i.e., whether that evidence should have been suppressed because it was

obtained in the course of a warrantless search.

The facts underlying the suppression stemmed from the following

circumstances. At about 6:00 a.m. on June 4, 2013, approximately 10 Officers, led

by Officers Deloren and Reynolds, went to a second-floor apartment at 832 South

Oak Drive in the Bronx with a warrant to arrest Gregory Accilien for his role in the

alleged robbery and kidnapping. App. A at 8. The officers knocked on the groundfloor outer door and identified themselves as police. Id. At that point one of the

officers saw through the door's window a man believed to be Accilien starting to

descend the stairs only to promptly retreat. Id. The officers then broke through the

door and entered. Id In the second-floor apartment

500 square feet

--

--

which was approximately

they found Accilien, a woman and two children, and three other

men--including petitioner, who at that time was not a suspect in the

2

During deliberations the jury requested a playback of a prison call between Philippe and Delva and

an explanation as to what "progress' means as used [in] Count One, second element

i.e., if a

person learns of unlawful activity and a conspiracy surrounding it after the unlawful act, are they a

co-conspirator?" A595.

.

4

.

.

kidnapping/robbery. Id. at 8-9. During the approximately first two minutes they

were in the apartment, the agents had secured it, handcuffed the men and during

that same time found a handgun and a white powdery substance believed to be

narcotics, all of which was ostensibly in plain view. Id. at 9. The question raised on

appeal surrounded events after the conclusion of that protective sweep.

According to Reynolds and Deloren after the apartment was secured they

brought Accilien into the bedroom and asked him to identify the other people in the

apartment; Accilien identified petitioner as his nephew and the closet in the

bedroom where the gun and narcotics was found as belonging to petitioner. Id at

11. Petitioner initially moved to suppress the gun and narcotics. The testimony

during the suppression hearing revealed that the agents also seized two celiphones

(one of which they later learned belonged to petitioner) and the Accilien Letters.

According to the agents all of these items were in plain view. Id. at 10.

As a result of this testimony petitioner expanded his suppression motion,

initially to include his cellphone and later the Accilien Letters. According to

petitioner these items were seized during a warrantless general search and no

exigent circumstances excused the lack of a warrant. Doc#95 at 5. The government

did not contest petitioner's assertion that no exigent circumstances were present.

Instead, the government's position was that these items were seized in plain view

during "[d]uring a lawful protective sweep." App. A at 10. The district court

adopted the government's position and denied the motion. Id. The district court

conclusion came despite the fact that it had also found that the officers only noticed

5

and seized the letter and two cell phones after the officers had already left the

bedroom from the protective sweep and "at about the same time" that they had

returned to question Accilien. Id. at 11.

In affirming the denial of Petitioner's suppression motion, the Majority

agreed with petitioner that the district court committed clear error when it

concluded that seizure of the cellphone and Accilien Letters was proper under the

protective search doctrine; since at the time of the seizure the protective sweep had

already finished. App. A at 16. Nevertheless, the Majority affirmed on an

argument never made below: "exigent circumstances" consisting of the need to

question Accilien regarding to whom the drugs and gun belonged justified the

warrantless reentry into the bedroom, since it "was objectively reasonable to fear

that if the owner of the drugs and gun were not identified and were allowed to

depart he would likely attempt to escape apprehension or further detection." Id. at

18. And, since there was a "possibility that the drugs and gun did not belong to

Accilien, it was reasonable for the Officers to attempt to have him name the owner

outside of the presence of the other men, in order to facilitate Accilien's candor and

reduce the possibility of intimidation by the owner." Id. at 19.

In these circumstances, given the need to determine

which of the other men in the apartment--if any of them-should be arrested, the Officers' decision to return to the

bedroom, the only unoccupied room other than the

bathroom, in order simply to question Accilien, or to

question any of the other men individually, in order to

determine whom to arrest for possession of the drugs and

the gun, was objectively reasonable. After Accilien

6

11

identified Delva and stated that those items belonged to

Delva, the Officers arrested Delva.

Id. The dissent, would have remanded for further fact-finding:

The government did not argue exigent circumstances in

the district court; the district court did not rule on exigent

circumstances; and the government did not argue exigent

circumstances on this appeal. It follows that Delva's

counsel has not had an opportunity to argue the point,

which has become crucial. It is not as though there would

have been nothing for Delva's counsel to say: no published

circuit opinion has found exigent circumstances in a case

analogous to this one; and even if the bedroom was the

only space for a private interrogation inside the

apartment, an alternative venue may have been the street

or a patrol car.

App. A. at 23. Significantly, the Majority's conclusion that the letters and cellphone

were found during the questioning of Accilien was by no means certain to even the

district court. Thus, the district court noted that the discovery of the letters

occurred not during the questioning of Accilien but "[alt about the same time" as the

questioning of Accilien. Id. at 11. In fact, the agent testified that it had been

discovered during the course of a "general search." A140.3

2. As noted previously, petitioner was acquitted of the substantive offenses of

kidnapping, robbery, and brandishing a firearm in furtherance of the

kidnapping/robbery. Nevertheless, in calculating petitioner's USSG range and

sentencing him, the district court sentenced petitioner as if he had been convicted of

those offenses. On appeal petitioner challenged the reasonableness of his sentence

A140: "Q. Were you at that point when you recovered the letters conducting a general search? A.

Yes."

7

which was based largely on conduct for which he had been acquitted. The court of

appeals affirmed reasoning that under Watts "a jury's verdict of acquittal does not

prevent the sentencing court from considering conduct underlying the acquitted

charge, so long as that conduct has been proved by a preponderance of the

evidence." App. A at 22. And, although petitioner had asked the Second Circuit not

to follow Watts "we are bound by that decision." App. A at 22.

Petitioner's rehearing petition was denied without explanation. App. B.

REASONS FOR GRANTING THE WRIT

I.

-.

This Court has previously noted that the exceptions to the warrant

requirement are "few in number and carefully delineated." United States v. United

States District Court, 407 U.S. 297, 318 (1972). Had the Second Circuit upheld the

warrantless search in this case after the issue was preserved and fully briefed, the

result would still have been mistaken, but it would have at least been procedurally

justifiable. Here, the grounds relied on by the Second Circuit were neither raised in

the district court nor argued or briefed in the Court of Appeals. Instead, after

concluding that the district court committed clear error in denying suppression

based on a protective sweep, the Second Circuit sua sponte came up with its new

rule of law, i.e., the need to enter a bedroom to interview a witness to quickly

determine the ownership of seized contraband (narcotics and a gun) is an exigent

circumstance obviating the need for a warrant, based on a record that never focused

on that issue.

If correct, it would mean not only that "the Fourth Amendment is a dead

letter in our Constitution" (United States v. Askew, 482 F.3d 532, 548 (D.C. Cir.

2007) (Edwards, CJ. dissenting));4 but, would also unfairly award the government's

conduct here, i.e., finding no waiver from the failure to challenge petitioner's

assertion in the district court that exigent circumstances did not exist but then

getting the benefit of petitioner's inability to rebut a contrary determination in the

court of appeals. As this Court has observed:

our procedural scheme contemplates that parties shall

come to issue in the trial forum vested with authority to

determine questions of fact. This is essential in order that

parties may have the opportunity to offer all the evidence

they believe relevant to the issues which the trial

tribunals alone competent to decide; it is equally essential

in order that litigants may not be surprised on appeal by

final decision there of issues upon which they have had no

opportunity to introduce evidence.

Sims v. Apfel, 530 U.S. 103, 108-109 (2000) (quoting Hormel v. Helvering, 312 U.S.

552 (1941)).

In similar circumstances a number of appellate courts have found that the

government's failure to independently raise as issue can result in a waiver or

forfeiture of the issue and therefore an improper basis for upholding the denial of a

suppression motion. Not only are the courts of appeals hopelessly divided on this

issue, but the Second Circuit's decision is inconsistent with this Court's own

precedent.

Ultimately, the en bane D.C. Circuit saw the wisdom of Judge Edwards' observations and

resurrected the Fourth Amendment's protections. 529 F.3d 1119, 1122 (D.C. Cir. 2008) (Fourth

Amendment is violated when following a Terry stop that produces nothing, officers conduct a

warrantless search solely to facilitate its investigation).

In affirming petitioner's conviction the Second Circuit paid no regard to

issues of waiver or forfeiture. Instead, the court simply noted that its reliance on

exigent circumstances was proper since "We are free to affirm on any ground that

finds support in the record, even if it was not the ground upon which the trial court

relied," App. A at 16 (citing Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995).

Headley relied on this Court's decision in Helvering v. Goan, 302 U.S. 238 (1937).

Goan a civil case decided 80 years ago and before the enactment of the Federal

procedural rules does not support the weight the Second Circuit would assign to it.

Indeed, Gowran is support for at least a remand in this case to permit petitioner to

challenge the factual determination that exigent circumstances apply. Goan, 302

U.S. at 247 ("If the Court of Appeals had accepted the theory, it would have been

open to the taxpayer to urge, in view of the new issue presented, that he should

have the opportunity to establish before the Board additional facts which would

affect the result. As we accept the new theory, leave is granted Gowran to apply to

the lower court for that purpose.") (emphasis added).

In contrast to Second Circuit's decision here, the Tenth Circuit in nearly

similar circumstances refused to consider a ground (exigent circumstances) that had

never been raised by the government. United States v. Maez, 872 F.2d 1444 (10th

Cir. 1989). In Maez, the defendant moved to suppress evidence seized during a

warrantless search. The district court denied the motion. The defendant appealed

arguing that the search was improper based on Payton v. New York, 445 U.S. 573

(1980). The Tenth Circuit agreed. For the first time on appeal, the government

10

argued that even if a warrant was necessary Payton permitted a warrantless search

if exigent circumstances were present. According to the government, the record was

sufficient to support such a claim. The Tenth Circuit however declined to consider

the government's "belated" argument. In the view of the Tenth Circuit, a

determination of "exigent circumstances" requires specific findings of fact which had

never been made and it was not an appellate court's role to make such a

determination. The Tenth Circuit found that such a result was compelled by this

Court's prior precedents in both Payton and Steagald v. United States, 451 U.S. 204

(1981). Thus, in Payton, this Court noted that while exigent circumstances

arguably existed it would not consider those grounds since none of the lower courts

had relied on exigent circumstances to justify the search, and this Court would not

make such a determination. 445 U.S. at 583. Similarly, in Steagald, the

government argued for the first time on appeal that the record failed to show that

the petitioner, arrested in a third party's house, had a reasonable expectation of

privacy in the home. Because the claim had never been raised below, this Court

declined to remand for factual findings on the issue:

[Tihe Government was initially entitled to defend against

petitioner's charge of an unlawful search by asserting that

petitioner lacked a reasonable expectation of privacy in

the searched home, or that he consented to the search, or

that exigent circumstances justified the entry. The

Government, however, may lose its right to raise factual

issues of this sort before this Court when it has made

contrary assertions in the courts below, when it has

acquiesced in contrary findings by those courts, or when it

has failed to raise such questions in a timely fashion

during the litigation. We conclude that this is such a

11

case. The Magistrate's report on petitioner's suppression

motion, which was adopted by the District Court,

characterized the issue as whether an arrest warrant was

sufficient to justify the search of "the home of a third

person" for the subject of the warrant. The Government

never sought to correct this characterization on appeal,

and instead acquiesced in the District Court's view of

petitioner's Fourth Amendment claim.

451 U.S. at 209 (emphasis added). Finally, the Tenth Circuit noted that not only

did the government never argue exigent circumstances but the defendant

specifically argued below that exigent circumstances did not exist and the

government never disputed that argument. Petitioner likewise specifically argued

in the district court that exigent circumstances did not exist, and the government

never challenged it.

Other circuits have also found waivers in similar circumstances. For

example, in United States v. Aguilera, 591 Fed.Appx. 555 (9th Cir. 2015), the Ninth

Circuit reversed the district court and granted suppression of evidence obtained by

the warrantless search of a cell phone. The Ninth Circuit rejected the government's

attempt to invoke the "independent source" doctrine for the first time on appeal

based on its finding that such an argument was waived by the failure to raise it in

the district court. The Ninth Circuit gave no consideration whether plain error

should apply. See also United States v. Stearns, 597 F.3d 540, 551-52 and n. 11 (3d

Cir. 2010) (government's concession in the district court that the defendants had

standing to assert Fourth Amendment claim constituted a "waiver" of that issue

which the Court would not independently revisit and specifically rejecting the

12

approach of the Second Circuit which held that "a reviewing court may revisit the

issue even if no party raises it on appeal."); United States v. Moss, 963 F.2d 673

C'

(4th Cir. 1992) (suppressing evidence and refusing to consider argument raised for

the first time on appeal that the defendant had no reasonable expectation of privacy

in the searched structure since the "general rule, for very good reasons, is that

except in exceptional circumstances, 'a federal court does not consider an issue not

passed upon below.") (quoting Singleton v. WuJ.11 428 U.S. 106, 120 (1970; United

States v. Lightbourn, 357 Fed.Appx. 259, 264 (11th Cir.2009) (although defendant

was merely a passenger and not an owner of automobile and therefore lacked

standing to challenge search the government "has waived the issue of standing by

failing to raise the issue in the district court.").

Still other circuits have found that a waiver could be excused where the

government meets the plain error standard. For example, in United States v.

Noble, 762 F.3d 509, 527-528 (6th Cir. 2014), the Sixth Circuit held that the district

court erred when it refused to suppress evidence obtained from defendant Noble

finding that officers lacked reasonable suspicion to stop and frisk a defendant. The

court was then faced with an "awkward problem" since Noble's codefendants joined

in that suppression motion but never explained "how the frisk of Noble impacts

their Fourth Amendment rights." 762 F.3d at 526. Nevertheless, the Sixth Circuit

reversed their convictions as well because the government never raised the standing

The decisions by these appellate courts not to grant even plain error review is undouctedly based

on the view that where an "issue is fact-intensive

plain error review is not appropriate." United

States v. Swptson, 987 F.2d 1510 (1.0th Cir. 1983) (refusing to consider government's plain view

argument raised for the first time on appeal).

. . -

13

issue in either the district court or in its opening appellate brief. Noting that the

appellate courts were divided on this issue, the Sixth Circuit adopted the "majority

view' that where the government fails to raise a ground for the denial of

suppression in the district court the objection is subject to waiver. The Sixth Circuit

also concluded, however, that once the issue is waived it can only raise it for the

first time on appeal if it meets the plain error standard. Where the government

fails to raise it in its opening brief, however, it forfeits the issue completely.

Because the government failed to raise standing in its opening brief as well, the

Sixth Circuit found the issue to have been forfeited and reversed the codefendant's

conviction. See also United States v. Gonzales, 79 F.3d 413, 419 (5th Cir. 1996)

(government forfeits Fourth Amendment standing argument where defendant

provides facts in district court supporting an inference of standing and government

did not raise the issue). Similarly, in United States v. Marts, 986 F.2d 1216, 1220

(8th Cir. 1993), the Eighth Circuit found that the government forfeited its right to

raise the inevitable discovery doctrine where it failed to raise the issue in either the

district court or on appeal. In affirming the district court's suppression of evidence

based on a violation of the knock and announce rule, the majority refused to

consider the dissent's suggestion that no suppression was required based on the

inevitable discovery doctrine. In the view of the Marts majority:

e

14

A case should not be reversed on appeal on a ground not

raised in the district court or in this court. It is well

settled that a party cannot shift its theory of recovery in

this court, and the district court is not obligated to search

the record for unraised issues ignored by counsel.

Here, it is significant that the government did not raise

this issue below and has not raised this issue on appeal.

986 F.2d at 1220.

Finally, a few appellate courts have adopted a rule similar to that of the

Second Circuit here, i.e., sua sponte considering an alternative ground for

affirmance never raised by the government. Thus, in United States v. Stotler, 591

F.3d 935 (7th Cir. 2010), in a 2-1 decision the Seventh Circuit affirmed the district

court's refusal to suppress evidence. On appeal the defendant argued that

suppression of evidence seized from his truck was required under Arizona v. Gant,

556 U.S. 332 (2009) since he had no access to his truck at the time of his arrest.

The Seventh Circuit agreed that Gant would have required suppression but it

nonetheless affirmed either because search of the vehicle was permitted under the

automobile exception or the evidence seized would have inevitably been discovered

since in the Court's view "the evidence would have undoubtedly been discovered a

little later." 591 F.3d at 940. In so holding, the majority rejected the argument

made by the dissent that

the government has never argued that admitting the

evidence from this search was permissible based on

inevitable discovery It is the government's burden to

prove the elements of this doctrine, Nix. v. Williams, 467

U.S. 431, 444 (1984); United States v. Marrocco, 578 F.3d

627, 638 (7th Cir. 2009), and it made no record on this

point in the district court. Nor, as I have noted, has the

15

government even bothered to argue inevitable discovery

on appeal. It is axiomatic that arguments not raised on

appeal are waived.

591 F.3d at 944. In United States v. Bouffard, 917 F.2d 673, 677 (1st

Cir.1990), the First Circuit adopted a middle ground approach sua sponte

considering a ground not only never raised by the government but one that it

conceded did not apply, but remanding to the district court for further fact finding

because "[c]onsiderations of fundamental fairness warrant remand in order to afford

the defendant an opportunity to attempt to establish the requisite expectation of

privacy." The Majority rejected the dissents view that considering issues not

addressed by the parties "is not a proper role for our court to assume." Id. at 679.

There is good reason to reject the minority view of the Second Circuit and

apply a waiver/forfeiture rule where the government fails to timely raise the issue.

As this Court noted in SEC v. Chenery, 318 U.S. 80 (1943), "where the correctness

of the lower court's decision depends upon a determination of fact which only a [fact finder] could make but which has not been made, the appellate court cannot take

the place of the [fact -finder]." 318 U.S. at 88. Here, the district court had no reason

to consider whether exigent circumstances existed since it had already concluded,

albeit mistakenly, that the items had been seized during a protective sweep. While

the Majority attempted to cobble together facts which it found supported a finding

of exigent circumstances it ignored numerous gaps in the record all of which would

have undermined the Majority's conclusiop and none of which were in the record:

16

Whether it was necessary to enter petitioner's Fourth Amendment

protected bedroom to interview Accilien rather than to do so in a) the

downstairs vestibule b) immediately outside the apartment, or c) a

patrol car on the street.

Even assuming that it was necessary to make a warrantless entry into

Delva's bedroom, whether a warrant permitting such entry could not

have been obtained over the telephone?

Even assuming a telephone warrant could not have been obtained,

whether the officers were limited to conducting the purportedly exigent

interviews, or despite the fact that a protective sweep had already been

performed were the officers also then permitted to stroll about the

bedroom and survey it to examine everything that was supposedly in

plain view?

Again assuming that such a plain-view survey was permitted was the

Accilien letters found during the course of the interview, or as the

agent testified during a subsequent "general search"?6

If any of these questions were answered in petitioner's favor, suppression

would have been required and would likely resulted in the reversal of petitioner's

conviction. The district court never considered these questions based on its

conceded erroneous determination that the items was seized during a prior

protective sweep. And, the Majority rather than give petitioner the opportunity to

address these questions and elicit evidence in support of his arguments improperly

and implicitly acted as a fact-finder rejecting them all. Singelton v. Wulff,428

U.S.106, 119-121 (1976) (reversing judgment of court of appeals for improperly

resolving issue against a party that never had the opportunity to do so; such an

6

Indeed, at trial, at the suggestion of the district court the government withdrew its attempt to offer

other items seized that day precisely because they had been seized that day during a general search.

A441-442.

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action is "an unacceptable exercise of its appellate jurisdiction" since "injustice was

more likely to be caused than avoided by deciding the issue without petitioner's

having had an opportunity to be heard." Even if a court can address issues not

passed on below, it is only "where the proper resolution is beyond any doubt").

Petitioner's ability to vindicate his rights under the Fourth Amendment

should not turn on the Circuit in which it was made. And, he was certainly entitled

to an opportunity to address the validity and the applicability of the Court's newlycrafted exception before it was thrust upon him as a means of denying his

constitutional right to be free from warrantless searchs. This important and

recurring issue is ripe for this Court's review. U.S. Sup. Ct. Rule 10(a), 10(c).

II.

This case presents another issue of extreme importance relating to the use of

acquitted conduct at sentencing. In sentencing petitioner the district court stated

that its sentencing determination was based on the view that petitioner was on the

scene during the commission of the robbery and kidnapping. The district court's

finding was directly contradicted by the jury's verdict acquitting petitioner of

substantive robbery, substantive kidnapping and brandishing a firearm in

connection with those offenses. Had the jury credited either Accilien (the

government's principal witness) or the government's contested DNA evidence on

which the district court so heavily relied it would have convicted petitioner of those

offenses. Petitioner's USSG calculation without the acquitted conduct (Doc#249 at

36) produced a sentencing range of slightly more than 10 years a fraction of either

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the life sentence calculated under the guidelines by the district court or the 30 years

actually imposed.

In United States v. Watts, 519 U.S. 148 (1997), this Court held that "a jury's

verdict of acquittal does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence." Id. at 157. The Court reasoned that an acquittal

means only that conduct was not proved beyond a reasonable doubt. Id. at 155. In

rejecting petitioner's challenge to his sentence the Second Circuit found that it was

bound by Watts.

The holding in Watts cannot be reconciled with this Court's recent decision in

Nelson v. Colorado, 137 S. Ct. 1249 (2017). In Nelson, this Court held that reversal

of a conviction by an appellate court on either direct or collateral review entitles a

defendant to reimbursement by the state for any restitution or fine previously paid.

Under Colorado's Exoneration Act only "an innocent person who was wrongly

convicted" could recover any restitution or fines where the "conviction has been

overturned for reasons other than insufficiency of evidence or legal error unrelated

to actual innocence." 137 S. Ct. at 1254. This Court held that the Act violated due

process since once a conviction is erased for any reason, "the presumption of their

innocence was restored." Id. at 1255. Watt's holding that an acquittal is irrelevant

for purposes of sentencing because it is not an exoneration clashes with Nelson's

holding that an acquittal restores the presumption of innocence, a fact which Nelson

held precludes any penalty from being sustained against the defendant.

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Indeed, independent of Nelson, jurists and commentators have repeatedly

questioned the continued validity of Watts in light of this Court's more recent Sixth

Amendment jurisprudence. See, e.g., Jones v. United States, 135 S. Ct. 8 (2014)

(Scalia, J., dissenting from denial of cert. (this Court should find "that any fact

necessary to prevent a sentence from being substantively unreasonable—thereby

exposing the defendant to the longer sentence—is an element that must be either

admitted by the defendant or found by the jury. It may not be found by a judge.");

United States v. Bell, 808 F.3d 926, 929 (D.C. Cir. 2015) (per curiam) Willett, J.,

concurring in denial of reh'g en banc) ("[Tihe time is ripe for the Supreme Court to

resolve the contradictions in Sixth Amendment and sentencing precedent, and to do

so in a manner that ensures that a jury's judgment of acquittal will safeguard

liberty as certainly as a jury's judgment of conviction permits its deprivation.");

United States v. White, 551 F.3d 381, 391 (6th Cir. 2008) (Merritt, Martin,

Daughtrey, Moore, Cole, and Clay, JJ., dissenting) ("[T]he use of acquitted conduct

at sentencing defies the Constitution, our common law heritage, the Sentencing

Reform Act, and common sense."); United States v. Canania, 532 F.3d 764, 776-77

(8th Cir. 2008) (Bright, J., concurring) Na] judge violates a defendant's Sixth

Amendment rights by making findings of fact that either ignore or countermand

those made by the jury" and the Due Process Clause of the Fifth Amendment since

consideration of 'acquitted conduct' undermines the notice requirement that is at

the heart of any criminal proceeding."); United States v. Faust, 456 F.3d 1342 (11th

Cir. 2006) (Barkett, J., concurring) ("I join the majority in affirming Faust's

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conviction, but concur in its sentencing decision only because I am bound by Circuit

precedent

.

.

.

sentence enhancements based on acquitted conduct are

unconstitutional under the Sixth Amendment, as well as the Due Process Clause of

the Fifth Amendment"); see also James J. Bilsborrow, Sentencing Acquitted

Conduct to. the Post-Booker Dustbin, 49 Wm. & Mary L. Rev. 289, 322 (2007)

("Compared to the sentencing practices struck down in Apprencli, Blakely, and

Booker, the consideration of acquitted conduct appears even more egregious. In

those three cases, the

.

.

.

constitutional problem simply centered upon the fact that.

with respect to the issues in question, the jury had not rendered any decision at all.

In contrast, when a judge bases a sentence upon acquitted conduct, the facts have

been considered by the jury and rejected. In a perverse reversal of procedural roles,

the judge effectively nullifies the jury.").

Because Watts "presented a very narrow question regarding the interaction

of the Guidelines with the Double Jeopardy Clause, and did not even have the

benefit of full briefing or oral argument" (United States v. Booker, 543 U.S. 220, 240

n.4 (2005) (merits opinion)) it is somewhat understandable that it is in tension with

so many of this Court's other rulings. It should be reevaluated now.

IE

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CONCLUSION

For the foregoing reasons, Mr. Delva respectfully requests that the Petition

for Writ of Certiorari be granted.

RESPECTFULLY SUBMITTED,

Steven Y. Y rowitz

Newman & Greenberg LLP

950 Third Avenue 32nd Floor

New York, New York 10022

TELEPHONE: 212-308-7900

FAX: 212-826-3273

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ATTORNEY FOR PETITIONER

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