Petition for Writ of Certiorari — Assane Faye, Petitioner v. United States

NO:____________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

ASSANE FAYE,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

____________________________________________________________

On Petition for A Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

____________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

___________________________________________________________

Alison Brill, Esq.

Assistant Federal Public Defender

Office of the Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, Fourth Floor

Trenton, New Jersey 08609

(609) 989-2160

alison_brill@fd.org

Attorney for Petitioner

Assane Faye

QUESTION PRESENTED

Does the government heighten its burden of proof at trial by adding a non-statutory

element to the indictment, pursuing its case to include that extra-statutory element,

and then requesting a jury instruction that includes the extra-statutory element?

PARTIES TO THE PROCEEDING

The caption identifies all parties in this case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING ............................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW ........................................................................................................ 2

JURISDICTION............................................................................................................. 2

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

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

REASONS FOR GRANTING THE PETITION ............................................................ 8

I.

Musacchio does not foreclose the argument that sufficiency of the evidence

II.

The Third Circuit’s decision here splits from other Circuits which

recognized that Musacchio did not decide how to resolve a sufficiency

analysis when a non-statutory element is added to the indictment….......10

III.

In ruling that law of the case doctrine was inapposite to the question of

sufficiency review, this Court upended Circuit precedent on the question

presented here ……………………..…………………………………..…………11

IV.

Basing sufficiency review only on the statutory elements, thus striking the

grand jury’s indictment, violates the Fifth Amendment ………..…………13

V.

This case presents an ideal vehicle because the additional non-statutory

element was the prosecution’s theory from charge, through trial, to jury

instructions…………………………………………………….………..…………15

must be judged by the elements in the indictment and jury instructions,

including non-statutory elements …………………………………..………..…8

ii

CONCLUSION ... ……………………………………………………………………………15

APPENDIX

Opinion affirming conviction and sentence,

United States Court of Appeals For the Third Circuit

(Apr. 3, 2018) …………………………………………………………………………….1

Order denying petition for rehearing,

United States Court of Appeals For the Third Circuit

(June 12, 2018)……………....................................................................................10

iii

TABLE OF AUTHORITIES

Cases

Page

Berger v. United States,

295 U.S. 78 (1935) ................................................................................................ 14

Castronuovo v. United States,

S.Ct. No. 16-207; 2016 WL 4363503 (petition for certiorari);

649 Fed. Appx. 904 (11th Cir.) (unpub),

cert. denied, 137 S.Ct. 248 (2016) .................................................................. 10-11

Ex parte Bain,

121 U.S. 1 (1887) .................................................................................................. 13

Malik v. State,

953 S.W.2d 234 (Tex. 1997) ................................................................................. 14

Musacchio v. United States,

136 S.Ct. 709 (2016) ......................................................................................passim

State v. Hart,

301 P.3d 1279 (Kan. 2013)................................................................................... 14

Stirone v. United States,

361 U.S. 212 (1960))................................................................................................ 13-14

United States v. Bedoy,

827 F.3d 495 (5th Cir. 2016) ................................................................................ 10

United States v. Brown,

654 Fed.Appx. 896 (10th Cir.) (unpub.),

cert. denied, 137 S.Ct. 237 (2016) ....................................................................... 10

United States v. Faye,

728 Fed.Appx. 120 (3d Cir. 2018) (unpub.) ........................................................ 6-7

United States v. Guevara,

408 F. 3d 252 (5th Cir. 2005),

cert. denied, 546 U.S. 1115 (2006)....................................................................... 12

United States v. Musacchio,

590 Fed.Appx. 359 (5th Cir. 2014) (unpub.),

cert. granted, 135 S.Ct. 2889 (2015).................................................................... 12

iv

United States v. Romero, 136 F.3d 1268 (10th Cir. 1998),

abrogated by Musacchio, 136 S.Ct. 709 (2016) ................................................... 11

United States v. Staples, 435 F.3d 860 (8th Cir.),

cert. denied, 549 U.S. 862 (2006) ........................................................................ 11

United States v. Tapio,

634 F.2d 1092 (8th Cir. 1980) .............................................................................. 12

United States v. Taylor,

933 F.2d 307 (5th Cir.),

cert. denied, 502 U.S. 883 (1991) ........................................................................ 12

United States v. Wells,

519 U.S. 482 (1997) .............................................................................................. 11

United States v. Woodring,

464 F.2d 1248 (10th Cir. 1972) ............................................................................ 12

United States v. Zanghi,

189 F.3d 71 (1st Cir. 1999),

cert. denied, 528 U.S. 1097 (2000)....................................................................... 12

Statutes

18 U.S.C. § 2 ................................................................................................................... 3

18 U.S.C. § 1030 ............................................................................................................. 8

28 U.S.C. § 1341 ............................................................................................................. 3

28 U.S.C. § 1254(1) ........................................................................................................ 2

29 U.S.C. § 501(c) .................................................................................................... 2-5, 7

Constitutional Provisions

United States Constitution, Amendment V............................................................ 2, 13

v

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

ASSANE FAYE,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

____________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

Petitioner Assane Faye respectfully requests that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for the Third Circuit in

this case.

OPINION BELOW

The opinion of the Third Circuit affirming the District Court’s judgment is

unpublished but available at 728 Fed.Appx. 120 (3d Cir. 2018) (unpub.), 2018 WL

1602834, and is attached at App. 1-9.

JURISDICTION

The Third Circuit issued its opinion on April 3, 2018. The Third Circuit

denied rehearing and rehearing en banc on June 12, 2018. That decision is

attached at App. 10-11. This Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides: “No person

shall be held to answer for a capital, or other infamous crime, unless on a

presentment or indictment of a jury . . . nor be deprived of life, liberty, or property,

without due process of law . . . .”

29 U.S.C. § 501(c) states:

Any person who embezzles, steals, or unlawfully and willfully abstracts or

converts to his own use, or the use of another, any of the moneys, funds,

securities, property, or other assets of a labor organization of which he is an

officer, or by which he is employed, directly or indirectly, shall be fined not

more than $10,000 or imprisoned for not more than five years, or both.

2

STATEMENT OF THE CASE

1. This case presents an important question left unanswered by this Court’s

decision in Musacchio v. United States, 136 S. Ct. 709 (2016), how to resolve

a sufficiency challenge where the government has added an extra-statutory

element in the indictment and throughout its prosecution of the case.

2. The procedural question presented by this case arises in the context of a

prosecution for union embezzlement. In 2009, Petitioner Assane Faye

founded the United Security and Police Officers of America (USPOA). In

2015, a nine-count indictment issued charging Mr. Faye with embezzlement

of union funds, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2 (Count

One), false vouchers, in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2

(Count Two), and unemployment fraud, in violation of 18 U.S.C. § 1341

(Counts Three to Nine). Count One alleged Mr. Faye embezzled funds from

the USPOA by directly taking the salary and expenses purportedly being

paid to an outside consultant, his former girlfriend. Count Two alleged Mr.

Faye unlawfully converted union property by collecting mileage

reimbursements when he actually used a rental car, and submitting other

false vouchers. Counts Three through Nine alleged Mr. Faye committed

unemployment fraud by making false representations to New Jersey in his

application for unemployment benefits. Only Count Two is at issue in this

petition.

3. Although 29 U.S.C. § 501(c) does not contain a monetary threshold, the

3

government incorporated the element of a $100,000 threshold into Count Two

of the indictment, charging:

From on or about at least, March 30, 2010 through in or about August

2013, in the District of New Jersey and elsewhere, the defendant,

Assane Faye, while he was an officer of USPOA, a labor organization

engaged in an industry affecting interstate commerce, embezzled,

stole, and unlawfully and willfully abstracted converted to his own use

and the use of others, the moneys, funds, securities, property and other

assets of USPOA, by causing the union to make improper and inflated

reimbursements to Assane Faye, in excess of $100,000.

The $100,000 threshold was not listed as a means of committing the offense.

4. The government did not prove a loss exceeding $100,000 in improper and

inflated reimbursements. Mr. Faye was authorized to be reimbursed for his

organizing expenses in connection with his work for the USPOA. Between

2010 and 2013, Mr. Faye claimed he drove approximately 147,000 miles and

was reimbursed $74,824 for these miles. Mr. Faye submitted claims for

mileage instead of rental expenses when he mostly rented cars for USPOA

work, which the government argued was improper. Mr. Faye also requested

approximately $14,000 in reimbursements for times he was travelling abroad

and not doing work for the union, which he argued was a mistake.

5. The government argued that the loss amount was the cost of mileage

reimbursement with no offsets: $74,824. Mr. Faye argued that car rental

and gas expenses should offset this amount, lessening it to between $37,000

and $57,000. Under either loss calculation, and tacking on $14,000, the

government failed to prove loss exceeding $100,000.

6. In charging the jury on 29 U.S.C. § 501(c), the District Court used the

4

government’s proposed instructions which added a $100,000 monetary

threshold. First, the District Court charged that the jury must find four

elements:

One, USPOA was a labor organization engaged in industry affecting

interstate commerce; two, the defendant was an officer, representative,

agent or a person employed by USPOA; three, there was a scheme to

embezzle, steal or convert to a personal use the monies or funds of

USPOA; and fourth, the defendant acted knowingly and with intent to

deprive USPO`A and its members of the use of their monies or funds.

At the government’s specific request, the District Court additionally charged

monetary amount as an element of the offense:

Approximate time and monies amounts. As you recall, yesterday I

instructed you with regard to the use of the term on or about set forth

in the indictment. The same can be said about the amounts of money

charged in Counts 1 and 2. If the testimony reflects the sums of money

reasonably near the sums alleged, then that is sufficient to find guilt if

all the other elements have been satisfied.

In sum, although the statute charged four elements, the government added

an additional element of a $100,000 monetary threshold. The jury returned

a guilty verdict on Count Two (and all other counts, as well).

7. In a post-conviction motion for a judgment of acquittal, Mr. Faye argued that

the government heightened its burden by adding the additional element of a

monetary threshold into both the indictment and government-requested jury

instruction. It then failed to prove a loss in excess of $100,000. Mr. Faye

argued that this Court’s decision in Musacchio v. United States, 136 S. Ct.

709, 715 (2016), did not foreclose his argument. The District Court denied

the motion for a judgment of acquittal.

5

8. The District Court sentenced Mr. Faye to 37 months of imprisonment, three

years of supervised release, and $325,533 in restitution.

9. Petitioner timely appealed to the Third Circuit, arguing, inter alia, that the

evidence was insufficient to prove that he had embezzled more than $100,000

through submitting improper vouchers. As he had below, Mr. Faye argued

that this Court’s decision in Musacchio did not decide the precise issue he

raised: whether the government must prove a non-statutory element where it

affirmatively adds that additional element before the grand and petit jury

and this non-statutory element is incorporated into the government’s theory

of the case. Petitioner Faye again explained that this Court, in Musacchio,

decided a more narrow issue: that the government’s burden is not heightened

where an extra-statutory element was erroneously added to the jury

instructions by the District Court, without objection from the government.

10. On April 3, 2018, the Third Circuit affirmed Mr. Faye’s conviction and

sentence.

11. In a non-precedential opinion, a panel of the Third Circuit (Restrepo,

Greenberg, and Fisher, JJ.), determined, inter alia, that the government

sustained its burden on Count Two. United States v. Faye, 728 Fed.Appx.

120 (3d Cir. 2018) (unpub.).

The panel wrote:

The statute provides neither a dollar threshold nor differing degrees of

criminal culpability based on the value of the funds unlawfully

converted. That the District Court instructed the jury as to the amount

alleged in the indictment does not change the fundamental elements of

the offense or the Government’s burden with respect thereto. Even

assuming the jury instructions incorrectly referenced the amount, the

6

Supreme Court in Musacchio v. United States made clear that

sufficiency review is assessed in an erroneous jury instruction. 136 S.

Ct. 709, 715 (2016). There was substantial evidence from which a

rational jury could conclude that Faye’s fraudulent expense vouchers

satisfied the essential elements of 29 U.S.C. § 501(c).

(App. 6). The Third Circuit found that the government did not need to prove

a monetary threshold over $100,000, and that there was significant loss to

the union and no prejudice to Mr. Faye. The Third Circuit found sufficient

evidence that Mr. Faye unlawfully converted union property in violation of 29

U.S.C. § 501(c). (App. 6).

12. On June 12, 2018, the Third Circuit denied Mr. Faye’s petition for rehearing

en banc. (App. 10-11).

7

REASONS FOR GRANTING THE WRIT

This Court should grant the writ of certiorari because the decision below

erroneously disposed of a recurring and important issue: what the government must

prove when it affirmatively adds non-statutory elements to its case in both the

indictment and jury instruction. This issue raises Fifth Amendment grand jury and

due process concerns.

I.

Musacchio does not foreclose the argument that sufficiency of the

evidence must be judged by the elements in the indictment and jury

instructions, including non-statutory elements.

In Musacchio v. United States, this Court framed the question before it as

follows: “whether the sufficiency of the evidence in a criminal case should be

measured against the elements described in the jury instructions where those

instructions, without objection, require the Government to prove more elements

than do the statute and indictment.” 136 S.Ct. at 714. Musacchio was charged with

conspiracy and substantive violations of the Computer Fraud and Abuse Act.

“Diverging from the indictment and the proposed instructions,” the District Court

erroneously instructed the jury that, to convict under 18 U.S.C. § 1030(a)(2)(C), the

defendant had to have acted “without authorization and exceed authorized access.”

Ibid. The statute and the indictment only charged this offense with the disjunctive

“or,” and the prosecution had only proceeded on a theory that Musacchio acted

“without authorization.” Musacchio then challenged the sufficiency of the evidence

supporting his conviction, alleging that the government had failed to prove the

8

additional element - that he had exceeded authorized access - upon which the jury

was instructed.

This Court unanimously held that a mere uncorrected error in the District

Court’s instructions to the jury does not change the analysis of sufficiency of the

evidence: judicial review should be based on the elements of the charged crime. This

Court concluded the elements of the crime were proven and the defendant had an

adequate opportunity to defend himself on the charges. Id. at 715-16.

The facts in Musacchio differ from what occurred here. In Musacchio, a mere

erroneous jury instruction did not change the sufficiency analysis. In this case,

both the indictment and government’s proposed jury instruction, which the District

Court used, as well as the government’s theory of the case at trial, added a nonstatutory element to the offense: a $100,000 threshold. The factual scenario

presented by this case was foretold in footnote 2 of the Musacchio opinion:

In resolving the first question presented, we leave open several matters.

First, we express no view on the question whether sufficiency of the evidence

at trial must be judged by reference to the elements charged in the

indictment, even if the indictment charges one or more elements not required

by statute. Second, we do not suggest that the Government adds an element

to a crime for purposes of sufficiency review when the indictment charges

different means of committing a crime in the conjunctive. Third, we also do

not suggest that an erroneous jury instruction cannot result in reversible

error just because the evidence was sufficient to support a conviction.

136 S. Ct. at 718 n.2 (emphasis added).

This case squarely presents the first issue identified by Justice Thomas, and

Petitioner Faye asks this Court to accept this case for resolution of this critical

issue.

9

II.

The Third Circuit’s decision here splits from other Circuits which

recognized that Musacchio did not decide how to resolve a sufficiency

analysis when a non-statutory element is added to the indictment.

The Third Circuit relied on Musacchio for the proposition that sufficiency

analysis is not measured by jury instructions but instead by the statutory elements.

It failed to recognize that Musacchio dealt with a District Court’s uncorrected error

in its final instruction, (see App. 7), and not where the government affirmatively

and continuously adds a non-statutory element to its case. The decision below

splits from other Circuits that have recognized what Musacchio did not address. For

example, in United States v. Brown, the defendant, a jail superintendent in a civil

rights prosecution, argued that that the indictment’s reference to “cruel and

unusual punishment” required the government to prove the victims were convicted

inmates, and it failed to do so. 654 Fed.Appx. 896 (10th Cir.) (unpub.), cert. denied,

137 S.Ct. 237 (2016). The defendant only challenged the government’s case as

deficient on appeal and so the Tenth Circuit rejected the sufficiency challenge on

plain error review. It found that this Court’s footnote reserving on the issue of an

extra-statutory element in the indictment adding to the government’s burden was

not enough to establish plain error. 654 Fed.Appx. at 907. Similarly, in United

States v. Bedoy, the Fifth Circuit also found that Musacchio did not foreclose a

sufficiency challenge where the indictment had heightened the government’s

burden, but found the government presented sufficient evidence of the nonstatutory element. 827 F.3d 495 (5th Cir. 2016). See also Castronuovo v. United

States, S.Ct. No. 16-207; 2016 WL 4363503 (petition for certiorari) (asking this

10

Court to resolve the issue left open in Musacchio); 649 Fed. Appx. 904 (11th Cir.)

(unpub.), cert. denied, 137 S.Ct. 248 (2016).

III.

In ruling that law of the case doctrine was inapposite to the question of

sufficiency review, this Court upended Circuit precedent on the

question presented here.

In Musacchio, this Court determined that the Circuit Courts had mislabeled

holding the government to a higher burden as the law of the case. 136 S.Ct. at 716.

When it was simply a matter of erroneous jury instructions, prior Circuit decisions

had used law-of-the-case doctrine to require the government, on sufficiency review,

to prove the additional non-statutory element. See United States v. Staples, 435

F.3d 860, 866-67 (8th Cir.) (holding government must prove the elements charged to

the jury), cert. denied, 549 U.S. 862 (2006); United States v. Romero, 136 F.3d 1268,

1272-73 (10th Cir. 1998) (same), abrogated by Musacchio, 136 S.Ct. at 716. As this

Court recognized in Musacchio, the law-of-the-case doctrine is “something of a

misnomer when used to describe how an appellate court assesses a lower court’s

rulings . . . [because an] appellate court’s function is to revisit matters decided in

the trial court.” 136 S.Ct. at 716. Moreover, it makes sense to reject that doctrine

when the government has merely not objected when an additional element is

erroneously added: law of the case is an equitable remedy whose purpose is to

prevent the government from arguing on appeal a position which it abandoned

below. See United States v. Wells, 519 U.S. 482, 487-88 (1997).

But Circuit Courts did not only label their decisions under law of the case in

the scenario that this Court rejected in Musacchio. They also used it to hold the

11

government to a higher burden when it added an extra-statutory element to the

charging document. See, e.g., United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir.

1999), cert. denied, 528 U.S. 1097 (2000) (holding government to higher burden

under law of case doctrine unless the more stringent jury instruction was “patently

incorrect” and the indictment had stated the correct standard); United States v.

Guevara, 408 F. 3d 252, 258 (5th Cir. 2005) (adopting Zanghi), cert. denied, 546

U.S. 1115 (2006). The Fifth Circuit, in Musacchio, had relied on this distinction,

finding that the indictment had only stated the statutory elements and so the

government needed only to prove the statutory elements. See United States v.

Musacchio, 590 Fed.Appx. 359, 362 (5th Cir. 2014) (unpub.) (citing Guevara), cert.

granted, 135 S.Ct. 2889 (2015). See also United States v. Taylor, 933 F.2d 307 (5th

Cir.), cert. denied, 502 U.S. 883 (1991); United States v. Tapio, 634 F.2d 1092 (8th

Cir. 1980); United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972) (all holding

government to higher burden on mens rea where the government had charged this

extra-statutory element in the indictment).

This Court, in Musacchio, did not foreclose that adding a non-statutory

element to a charging document could make the government’s burden more

stringent. While it would be incorrect to hold the government to a higher burden

in the name of law of the case doctrine, there is good reason to hold the government

to a higher burden: in some cases, to do otherwise would violate the Fifth

Amendment.

12

IV.

Basing sufficiency review only on the statutory elements, thus

striking the grand jury’s indictment, violates the Fifth Amendment.

The grand jury’s charge represents the crime charged for purposes of

sufficiency review.

Because, here, the indictment added an extra-statutory

element, measuring the sufficiency of evidence at trial only according to the

statutory elements violates Petitioner Faye’s right to be tried only on charges

presented in an indictment returned by a grand jury.

See 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....”); Ex parte Bain, 121 U.S.

1 (1887) (ruling that after an indictment has been returned, its charges may not be

broadened through amendment except by the grand jury itself). In Bain, the trial

court ordered that some of the grand jury’s allegations be stricken from the

indictment so that Bain might be convicted without proof of those particular

allegations. This Court reasoned that changing the indictment to strike the grand

jury’s allegations made it so that “it was no longer the indictment of the grand jury

who presented it. Any other doctrine would place the rights of the citizen, which

were intended to be protected by the constitutional provision, at the mercy or

control of the court or prosecuting attorney.”

121 U.S. at 13.

In Stirone v. United States, this Court expounded upon this historic right:

The very purpose of the requirement that a man be indicted by grand jury is

to limit his jeopardy to offenses charged by a group of his fellow citizens

acting independently of either prosecuting attorney or judge. . . . Thus we

measure the proof against the “essential element[s] of the crime charged.”

The terms of an indictment can raise the bar of proof for the government to a

higher level than the bare minimum required by the terms of a criminal

statute because the terms of the indictment specify the “crime charged.”

13

361 U.S. 212, 216-18 (1960). State court decisions further explain why and how the

government can be held to the burden it affirmatively creates. See also State v.

Hart, 301 P.3d 1279, 1289 (Kan. 2013) (explaining requirement that the

government is bound by the charging document “permit[s] the development of a

defense to meet [the] accusation[s]”); Malik v. State, 953 S.W.2d 234, 240 (Tex.

1997) (explaining that the “hypothetically correct jury charge for the case” is a

charge that “accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried”). In cases where the government increases its

burden before the grand and petit jury, and pursues its case base on that

heightened burden, it is fair that the “crime charged” for purposes of sufficiency

review includes extra-statutory elements.

Permitting Petitioner Faye to be convicted on lesser charges than found by

the grand jury constructively amends the indictment and deprives him of “such a

basic right [that it] is far too serious to be treated as nothing more than a variance

and then dismissed as harmless error.” Stirone, 361 U.S. at 217-18 (citing Berger

v. United States, 295 U.S. 78 (1935)).

14