Petition for Writ of Certiorari — Karen Mackey, Petitioner v. United States

No._______________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________

KAREN MACKEY,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

_________________________

ON PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

PETITION FOR WRIT OF CERTIORARI

_________________________

BALLI & BALLI LAW FIRM, LLP

P.O. Box 1058

Laredo, Texas 78042-1058

Tel: (956) 712-4999

Fax: (956) 724-5830

Attorneys for Petitioner

/s/ Claudia V. Balli

CLAUDIA V. BALLI

Federal Bar No. 2148716

Texas State Bar No. 24073773

Counsel of Record for Petitioner

/s/ Roberto Balli

ROBERTO BALLI

Federal Bar No. 22668

Texas State Bar No. 00795235

QUESTIONS PRESENTED

I.

The Fifth Circuit erred in holding that a driver's gender may be a factor in

the U.S. Border Patrol's decision to stop and search the person's vehicle and

that the use of gender as a factor in the traffic stop and search does not

violate due process.

II.

The Fifth Circuit erred in holding that a driver's gender may be a factor in

the U.S. Border Patrol's decision to stop and search the person's vehicle and

that the use of gender as a factor in the traffic stop and search does not

violate the fourth amendment's protection against unreasonable searches and

seizures.

i

LIST OF PARTIES

KAREN MACKEY,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

The undersigned counsel certifies that the following listed persons have an

interest in the outcome of this case. These representations are made in order that

the judges of this Court may evaluate possible disqualifications or recusal.

1. Karen Mackey, Petitioner.

2. Claudia V. Balli and Roberto Balli, Counsel for Petitioner.

3. United States of America, Respondent.

4. Carmen Castillo Mitchell, Counsel for Respondent.

5. The Honorable Noel J. Francisco, Jr., Office of the Solicitor General of the

United States.

/s/ Claudia V. Balli

CLAUDIA V. BALLI

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................................ i

LIST OF PARTIES .........................................................................................................ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES CITED .............................................................................. v

OPINIONS BELOW........................................................................................................ 1

JURISDICTION .............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 1

STATEMENT OF THE CASE ........................................................................................ 2

REASONING FOR GRANTING THE PETITION ........................................................ 5

I. THE FIFTH CIRCUIT ERRED IN HOLDING THAT A DRIVER'S

GENDER MAY BE A FACTOR IN THE U.S. BORDER PATROL'S

DECISION TO STOP AND SEARCH THE PERSON'S VEHICLE AND

THAT THE USE OF GENDER AS A FACTOR IN THE TRAFFIC STOP

5AND SEARCH DOES NOT VIOLATE DUE PROCESS ............................................ 5

A. Review Is Warranted Because the United States Fifth Circuit Court Of

Appeals Has So Far Departed From The Accepted And Usual Course Of

Judicial Proceedings, or Sanctioned Such a Departure By A Lower Court,

As To Call For An Exercise Of This Court's Supervisory Power ............................ 5

B. Gender is a Protected Class Under the Equal Protection Clause ..................... 6

C. Relief Sought ........................................................................................................ 7

II. THE FIFTH CIRCUIT ERRED IN HOLDING THAT A DRIVER'S

GENDER MAY BE A FACTOR IN THE U.S. BORDER PATROL'S

DECISION TO STOP AND SEARCH THE PERSON'S VEHICLE AND

THAT THE USE OF GENDER AS A FACTOR IN THE TRAFFIC STOP

AND SEARCH DOES NOT VIOLATE THE FOURTH AMENDMENT'S

PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES ........... 8

iii

A. Review Is Warranted Because the United States Fifth Circuit Court Of

Appeals Has So Far Departed From The Accepted And Usual Course Of

Judicial Proceedings, or Sanctioned Such a Departure By A Lower Court,

As To Call For An Exercise Of This Court's Supervisory Power ............................ 8

B. Relief Sought ...................................................................................................... 11

CONCLUSION .............................................................................................................. 11

PROOF OF SERVICE................................................................................................... 12

APPENDIX .................................................................................................................... 13

INDEX OF APPENDICES

APPENDIX A: Opinion of the Court of Appeals United States of America v.

Karen Mackey, No. 17-40764 (5th Cir. May 18, 2018 (unpublished)) ............. 14

APPENDIX B: Opinion on Motion to Suppress and Fourth Amendment Claim

of the United States District Court in United States of America v.

Karen Mackey, No. 5:16-CR-00772-001 (S.D. Tex. January 6, 2017) .............. 25

APPENDIX C: Opinion on Motion to Dismiss and Fifth Amendment Due

Process Claim of the United States District Court in United States of

America v. Karen Mackey, No. 5:16-CR-00772-001 (S.D. Tex. January

6, 2017) ............................................................................................................... 33

APPENDIX D: Judgment of the United States District Court in United States

of America v. Karen Mackey, No. 5:16-CR-00772-001 (S.D. Tex. July 26,

2017).................................................................................................................... 43

APPENDIX E: Order Appointing Counsel .................................................................. 50

iv

TABLE OF AUTHORITIES

Page

Statutes and Rules

U.S. CONST. amend. IV ................................................................................................... 2

U.S. CONST. amend. V ..................................................................................................... 1

28 U.S.C. § 1254(1) ......................................................................................................... 1

Supreme Court Cases

Bolling v. Sharpe, 347 U.S. 497 (1954) .......................................................................... 5

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .................................................. 6, 7

Katz v. United States, 389 U.S. 347 (1967) ................................................................... 8

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) .................................................................. 7

Rostker v. Goldberg, 453 U.S. 57 (1981) .............................................................. 6, 7, 10

Terry v. Ohio, 392 U.S. 1 (968) ................................................................................... 8, 9

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ................................................ 10

United States v. Russell, 411 U.S. 423, (1973) .............................................................. 7

United States vs. Whren, 17 U.S. 806 (1996) .............................................................. 5-6

Circuit Opinions

United States of America v. Mackey, _____ F. App'x _____,

2018 WL 22932331 (5th Cir. May 18, 2018) ....................................................... 5

v

OPINIONS BELOW

A copy of the Fifth Circuit’s unpublished opinion issued in this case on May

18, 2018, is attached as Appendix A. A copy the District Court’s written opinions

regarding the motion to suppress and the motion to dismiss are attached as

Appendix B and Appendix C, respectively. A copy the District Court’s judgment is

attached as Appendix D.

JURISDICTION

The jurisdiction of this Court to review the Judgment of the Fifth Circuit

Court of Appeals is invoked in 28 U.S.C. § 1254(1), as an appeal from final

judgment of conviction in the United States Court of Appeals for the Fifth Circuit on

May 18, 2018. Pursuant to Supreme Court Rule 10(a), the United States Fifth

Circuit Court of Appeals has so far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure by a lower court, as to call for

an exercise of this Court's supervisory power.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment to the U.S. Constitution reads as follows:

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.

U.S. CONST. amend. V.

1

Fourth Amendment to the U.S. Constitution reads as follows:

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. IV.

STATEMENT OF THE CASE

On June 21, 2016, Karen Mackey was the subject of a multi-defendant and a

four-count indictment. ROA.42-45. Count One (1) of the indictment charges Karen

Mackey and her co-defendants with conspiracy to transport and attempt to

transport aliens within the United States, in violation of Title 8 U.S.C.

§ 1324(a)(1)(A)(ii) and (v)(I). ROA.42. Counts Two, Three, and Four (2, 3, and 4) of

the indictment charge Karen Mackey and her co-defendants with transporting and

attempting to transport aliens for the purpose of commercial advantage and private

financial gain, in violation of Title 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I). ROA. 4344.

Karen Mackey filed a pre-trial Motion to Suppress Stop and Evidence on July

21, 2016, challenging the validity of the stop of her vehicle. ROA.55-61. Counsel for

the Government filed a response to the Motion to Suppress Stop and Evidence.

ROA.64-83.

A suppression hearing was held on August 26, 2016, before the

Magistrate Judge. ROA.319-515.

At the hearing for the motion to suppress stop and evidence, Border Patrol

Agent Monterojas gave testimony contrary to his written report, summarized in the

2

criminal complaint (ROA.16-23); Agent Monterojas testified that he became "highly

suspicious" because "three females, driving three sedans," drove through the

checkpoint and that's when he decided to search the vehicle of co-defendant Ashley

Flores, the third female to drive through the checkpoint.

ROA.333.

Agent

Montejoras further testified that he instructed other agents that he was highly

suspicious that the previous two sedans were "associated" to Flores's smuggling

attempt because "there were three females . . . one after the other. . . . [T]he vehicles

on the inside . . . looked like, . . . a little bit, you know, dirty, you know, trashy

somehow, and . . . the smugglers, you know, use the females, you know to distract

also." ROA.335-336. Monterojas added that he believed it was suspicious that the

females were friendly and polite. ROA.337. However, he later retreated from this

statement when testifying that only driver 1 was friendly.

ROA.367-368.

Monterojas also stated that he believed that the females were not appropriately

dressed to cross the checkpoint:

"It's not the usual, you know, dress code . . . "

ROA. 365. Monterojas testified that after the other agents left the checkpoint to

pursue the first two sedans that crossed the checkpoint, he, Monterojas had no more

involvement with the investigation. ROA.337-338.

Based on the testimony presented at the hearing on the motion to suppress,

Defendant-Appellant Mackey: (1) moved the Court to suppress the stop and the

evidence derived from the stop based the agent's violation of Mackey's Fourth

Amendment protections; and (2) made an oral motion to dismiss the indictment

based on the agent's gender profiling and gender discrimination, a violation of due

3

process under the Fifth Amendment, and a violation of her freedom of expression

under the First Amendment. ROA.494-500, 505-509. Mackey requested the court

grant time to brief the motion to dismiss. ROA.499-500.

On August 31, 2016, Defendant-Appellant filed a motion for leave to file

motion to dismiss the indictment based on a due process violation related to gender

profiling by a border patrol agent.

ROA.87-89.

Simultaneously, Defendant-

Appellant filed her Motion to Dismiss Indictment with Prejudice based on

Government's Violation of Karen Mackey's Due Process Rights (Gender Profiling)

and Violation of Her First Amendment Right of Freedom of Expression. ROA.91100. On August 31, 2016, Defendant-Appellant Mackey also filed Supplemental

Authorities for Motion to Suppress Stop and Evidence. ROA.102-104.

The Magistrate Judge filed his Report and Recommendation stating that

Defendant-Appellant's motion to suppress the stop and evidence be denied.

ROA.190-203, 204-217.

Recommendations.

Mackey filed objections to the Magistrate's Report and

ROA.241-243.

The District Court accepted the Magistrate's

Report and Recommendation. ROA. 251-257.

The Magistrate Judge filed his Report and Recommendation stating that

Defendant-Appellant's motion to dismiss and motion for leave be denied. ROA.218231.

Mackey filed objections to the Magistrate's Report and Recommendations.

ROA.244-247.

The District Court accepted the Magistrate's Report and

Recommendation. ROA. 258-266.

4

On January 12, 2017, Mackey entered a guilty plea to count 1 of the

indictment on the condition that she reserved her right to appeal the District

Court's ruling on the Motion to Suppress Stop and Evidence, the Motion for Leave

to File Out of Time, the Motion for Brady Materials, and the Opposed Motion for

Hearing. ROA.578-589. On July 18, 2017, Mackey was sentenced to 24 months

imprisonment, three years of supervised release and other conditions. ROA.307312.

The Fifth Circuit affirmed the district court in United States of America v.

Mackey, _____ F. App'x _____, 2018 WL 22932331 (5th Cir. May 18, 2018).

REASONS FOR GRANTING THE PETITION

I. THE FIFTH CIRCUIT ERRED IN HOLDING THAT A DRIVER'S

GENDER MAY BE A FACTOR IN THE U.S. BORDER PATROL'S

DECISION TO STOP AND SEARCH THE PERSON'S VEHICLE AND

THAT THE USE OF GENDER AS A FACTOR IN THE TRAFFIC STOP

AND SEARCH DOES NOT VIOLATE DUE PROCESS.

A. Review Is Warranted Because the United States Fifth Circuit Court Of

Appeals Has So Far Departed From The Accepted And Usual Course Of

Judicial Proceedings, or Sanctioned Such a Departure By A Lower Court,

As To Call For An Exercise Of This Court's Supervisory Power.

The Supreme Court held in Bolling v. Sharpe, that Equal Protection

requirements apply to the federal government through the Due Process Clause of

the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

The Due Process Clause of the U.S. Constitution protects individuals against

such invidious use of irrelevant individual characteristics by law enforcement. In

United States vs. Whren, the United States Supreme Court held that “the

5

Constitution prohibits selective enforcement of the law based on considerations such

as race.” 517 U.S. 806, 813 (1996). The proper remedy for such discriminatory

application of laws is the Equal Protection Clause. Id. Thus, targeting specific

protected classes of people, even if there is reasonable suspicion of that crime does

not insulate the Government from an equal protection challenge.

During the hearing at the district court, Agent Monterojas freely admitted

that Mackey, Trevino, and Flores were detained because of their gender. ROA.333,

335-336. Because Agent Monterojas freely admitted his discriminatory conduct in

stopping Trevino, Mackey, and Flores, the Government confessed to gender

profiling.

ROA.333, 335-336.

The agents’ behavior, and the Government's

behavior, in this case is so outrageous that it shocks the conscience and it offends

the community’s sense of fair play and decency. Therefore, because the agents’

conduct is so atrocious, it requires that the detention be suppressed along with all

and any evidence and/or statements obtained as a result of Mackey’s detention.

This improper gender profiling violates a person's protections under the Due

Process Clause.

B. Gender is a Protected Class Under the Equal Protection Clause

Gender is a protected class and the Government may make no differences in

gender classification except when “gender realistically reflects the fact that the

sexes are not similarly situated.” Rostker v. Goldberg, 453 U.S. 57, 79 (1981).

The Equal Protection Clause forbids intentional discrimination in the

selection of jurors on the basis of gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S.

6

127, 128–29 (1994).

The Court in J.E.B. reasoned that the State’s reliance on

gender stereotypes in striking jurors ratifies and “reinforces prejudicial views of the

relative abilities of men and women.” Id. at 140. Women have historically been

discriminated against and the Equal Protection Clause prohibits that reasoning.

Id. at 136.

In 2015, the Court held that the Due Process Clause gives any two

individuals the right to marry, regardless of gender, a concept that was unthinkable

in 1981, when Rostker was decided. Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

Where the Government's misconduct is so outrageous that it violates the

principles of "'fundamental fairness, shocking to the universal sense of justice,'

mandated by the Due Process Clause of the Fifth Amendment[,]" dismissal of the

criminal charges is required. United States v. Russell, 411 U.S. 423, 431-432

(1973).

C. Relief Sought

The Court should grant this Writ and order briefing to consider whether

considering a driver's gender in deciding to stop and search the driver's vehicle

violates the driver's protections under the equal protection clause and the due

process clause.

7

II. THE FIFTH CIRCUIT ERRED IN HOLDING THAT A DRIVER'S

GENDER MAY BE A FACTOR IN THE U.S. BORDER PATROL'S

DECISION TO STOP AND SEARCH THE PERSON'S VEHICLE AND

THAT THE USE OF GENDER AS A FACTOR IN THE TRAFFIC STOP

AND SEARCH DOES NOT VIOLATE THE FOURTH AMENDMENT'S

PROTECTION

AGAINST

UNREASONABLE

SEARCHES

AND

SEIZURES.

A. Review Is Warranted Because the United States Fifth Circuit Court Of

Appeals Has So Far Departed From The Accepted And Usual Course Of

Judicial Proceedings, or Sanctioned Such a Departure By A Lower Court,

As To Call For An Exercise Of This Court's Supervisory Power.

The Fourth Amendment provides that the “right of the people to be secure in

their persons, houses, papers and effects, against unreasonable searches and

seizures, shall not be violated . . . .” U.S. CONST. Amend. IV. Consequently, basic

to an individual’s rights under the Fourth Amendment of the United States

Constitution is the principle that the Government may not conduct a search or

seizure without a warrant supported by probable cause.

Warrantless

seizures

are

“per

se

unreasonable

under

the

Fourth

Amendment—subject only to a few specifically established and well-delineated

exception.” Katz v. United States, 389 U.S. 347, 357 (1967). One such exception

comes from Terry v. Ohio, 392 U.S. 1 (968). The Terry Court held that under the

Fourth Amendment, it is “reasonable” for a law enforcement officer without a

warrant to temporarily detain and question a person when the officer has a

“reasonable suspicion” that the person is about to engage in, or is engaging in,

criminal activity. Terry, 392 U.S. at 16. An officer can stop and briefly detain a

person only to investigate if and only if the officer has a reasonable suspicion,

8

supported by articulate facts, that a criminal activity may be afoot, even if the

officer lacks evidence rising to the level of probable cause. Terry, 392 U.S. at 29.

In the case of Mackey, the U.S. Border Patrol Agents stopped Mackey

because she was a female driving through the checkpoint, another female in a sedan

drove by before her, and a female in a sedan drove into the checkpoint after her. At

the hearing in the district court, the prosecutor and the agents repeatedly testified

to and made reference to the gender of the drivers and referred to them as

"females," thus confessing their reason for targeting Mackey and the other drivers,

for example:

(1) "Here we have three sedans with three solo females, . . . "

ROA.387

(opening statement).

(2) " . . . do you see a lot of single females driving through the checkpoint at

1:00 a.m. in the morning?" ROA.395-396 (witness examination).

(3) "I'll just note for the record it's a silver sedan with a female driver."

ROA.399 (witness examination).

(4) "It's also a silver sedan with a female driver."

ROA.399 (witness

examination).

(5) " . . . it is a . . . brownish sedan with a female driver; . . . "

ROA.400

(witness examination).

(6) "Did [Agent Guevara] tell that they were all three female drivers?"

ROA.448 (witness examination).

9

(7) " . . . having three female solo drivers at that time of night on 83, is that

usual, unusual?" ROA.448-449 (witness examination).

(8) " . . . is it usual to see single female drivers . . . "

ROA.481 (witness

examination).

(9) "Just having one single, female driver is unusual; having three show up

right after the other . . . " ROA.493 (closing argument).

The Court held in Brignoni-Ponce that ethnicity cannot be the one factor

giving rise to reasonable suspicion of criminal activity. United States v. BrignoniPonce, 422 U.S. 873, 886 (1975). Whereas in Brignoni-Ponce, the officers relied on

Mexican ancestry of the occupants of a vehicle to stop the vehicle (Id. at 885-86), the

agents in Mackey's case used gender alone to target Mackey and her co-defendants.

ROA.401.

The Brignoni-Ponce Court held that neither Mexican ancestry nor the

officer’s belief that the occupants were undocumented satisfied the constitutional

minimum for an investigatory stop. Id. at 886. Therefore, the Court held that a

roving Border Patrol stop relying on the apparent Mexican ancestry of the

occupants was illegal under the Fourth Amendment and must be suppressed. Id. at

885–86. Just like race, the Supreme Court has held that gender is a protected class.

Rostker, 453 U.S. at 79. Consequently, the fact that the agents in Mackey's case

admitted to having pursued Mackey based on her gender is insufficient to justify

the stop of Mackey’s automobile, given that: (1) it has no objectively reasonable

connection to criminality, (2) it is a violation of Mackey's protections against

10

unreasonable searches and seizures under the Fourth Amendment to the

Constitution; and (3) it is a violation of Mackey's due process rights under the Fifth

Amendment to the Constitution.

B. Relief Sought

The Court should grant this Writ and order briefing to consider whether

considering a driver's gender in deciding to stop and search the driver's vehicle

violates the driver's protections against reasonable searches and seizures under the

Fourth Amendment.

CONCLUSION

The Court should grant this Writ and order briefing to consider whether

gender profiling in conducting a traffic stop is a violation of a person's protections

under the Fourth Amendment and the Fifth Amendment to the U.S. Constitution.

Date: August 13, 2018.

Respectfully submitted,

BALLI & BALLI LAW FIRM, LLP

P.O. Box 1058

Laredo, Texas 78042-1058

Tel: (956) 712-4999

Fax: (956) 724-5830

Attorneys for Petitioner

/s/ Claudia V. Balli

CLAUDIA V. BALLI

Federal Bar No. 2148716

Texas State Bar No. 24073773

/s/ Roberto Balli

ROBERTO BALLI

Federal Bar No. 22668

Texas State Bar No. 00795235

11