Reply Brief — Jason Laut, Petitioner v. United States

No. 19-1362

In the

Supreme Court of the United States

________________

JASON LAUT,

v.

Petitioner,

UNITED STATES OF AMERICA,

________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

________________

REPLY BRIEF FOR THE PETITIONER

________________

ERIN E. MURPHY

JOHN CHRISTOPHER KOREVEC

KIRKLAND & ELLIS LLP

Counsel of Record

1301 Pennsylvania Ave., NW KIRKLAND & ELLIS LLP

Washington, DC 20004

555 S. Flower Street

(202) 389-5000

Suite 3700

erin.murphy@kirkland.com Los Angeles, CA 90071

(213) 680-8400

john.korevec@kirkland.com

Counsel for Petitioner

October 28, 2020

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF ............................................................ 1

I.

The Decision Below Squarely Conflicts With

The Decisions Of Several Other Circuits. .......... 2

II. This Case Presents An Excellent Vehicle For

Resolving The Circuit Split. ................................ 8

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

ii

TABLE OF AUTHORITIES

Cases

Martin v. Ohio,

480 U.S. 228 (1987) ................................................ 6

Nelson v. Colorado,

137 S.Ct. 1249 (2017) ............................................. 6

Parke v. Raley,

506 U.S. 20 (1992) .................................................. 6

Pierson v. United States,

140 S.Ct. 1291 (Mem) (2020) ................................. 3

Pierson v. United States,

No. 20-401 (U.S.) .................................................... 9

Sandstrom v. Montana,

442 U.S. 510 (1979) ................................................ 6

Stirone v. United States,

361 U.S. 212 (1960) .................................. 2, 4, 6, 10

United States v. Brandao,

539 F.3d 44 (1st Cir. 2008) .................................... 3

United States v. Choy,

309 F.3d 602 (9th Cir. 2002) .................................. 7

United States v. Dipentino,

242 F.3d 1090 (9th Cir. 2001) ................................ 7

United States v. Floresca,

38 F.3d 706 (4th Cir. 1994) ............................ 1, 3, 5

iii

United States v. Gavin,

583 F.3d 542 (8th Cir. 2009) .................................. 7

United States v. Gregg,

47 F. App’x 1 (D.C. Cir. 2002) ................................ 7

United States v. Haymond,

139 S.Ct. 2369 (2019) ............................................. 8

United States v. Lawton,

995 F.2d 290 (D.C. Cir. 1993) ................................ 5

United States v. Madden,

733 F.3d 1314 (11th Cir. 2013) .......................... 4, 7

United States v. McKee,

506 F.3d 225 (3d Cir. 2007).................................... 8

United States v. Medley,

972 F.3d 399 (4th Cir. 2020) .................................. 8

United States v. Miller,

891 F.3d 1220 (10th Cir. 2018) .............. 4, 7, 10, 11

United States v. Pierson,

925 F.3d 913 (7th Cir. 2019) ........................ passim

United States v. Pryor,

474 Fed. Appx. 831 (2d Cir 2012) .......................... 7

United States v. Randall,

171 F.3d 195 (4th Cir 1999) ................................... 8

United States v. Syme,

276 F.3d 131 (3d Cir. 2002).................................... 3

iv

United States v. Thomas,

274 F.3d 655 (2d Cir. 2001).................................... 3

United States v. Weed,

873 F.3d 68 (1st Cir. 2017) .................................... 8

Weed v. United States,

No. 17-1430 (U.S.) (April 18, 2018) ....................... 8

Other Authority

Brief in Opposition to Petition

Philips v. United States,

No. 06-1602, 2007 WL 2315226 ............................. 7

1

REPLY BRIEF

The government does not and cannot deny that

the courts of appeals are in open and acknowledged

conflict about how the plain error standard should be

applied in constructive amendment cases. Instead,

the government attempts to describe the split as

narrow and of no practical consequence. In fact, there

are few questions more material to a plain error

analysis than whether and to what extent a defendant

must show prejudice, and just how “plain” the error

must be.

There is no better illustration of that than this

case. Had petitioner been convicted in the Fourth

Circuit, the government’s constructive amendment

would have been “error per se,” requiring reversal

“even when not preserved by objection.” United States

v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994). And in

several other circuits, his conviction would have been

far more likely to be reversed. Here, however, the

Seventh Circuit found no need to even decide whether

an error occurred because its plain error standard—

which it readily acknowledged is particularly

“demanding” compared to standards employed by

other circuits—imposes such a “high bar” that

petitioner could not secure relief even assuming the

government did commit constitutional error.

Pet.App.7; see also United States v. Pierson, 925 F.3d

913, 924 (7th Cir. 2019).

It is thus little surprise that the government

spends much of its opposition trying to change the

subject, pressing various alternative grounds for

affirmance that the Seventh Circuit did not reach.

Of course, this Court is a court of review, not of first

2

review. In all events, the government’s alternative

arguments are meritless. Despite efforts to walk back

previous concessions, the government has already

acknowledged that it presented evidence of a separate,

uncharged crime in support of petitioner’s

conviction—allowing the jury to convict on that

separate, uncharged conduct, which is, by definition, a

constructive amendment error under Stirone v. United

States, 361 U.S. 212 (1960). Therefore, the first prong

of plain error review is satisfied. Likewise, the fourth

prong is easily satisfied when, as here, a plain

constitutional error has affected a defendant’s

substantial rights. Indeed, it is hard to see how a

constitutional error that this Court has deemed per se

reversible in the ordinary course could be deemed to

not even affect the fairness or integrity of judicial

proceedings.

Accordingly, this case presents an

excellent vehicle to resolve this open and

acknowledged circuit split.

I.

The Decision Below Squarely Conflicts With

The Decisions Of Several Other Circuits.

The decision below holds that defendants cannot

obtain relief from a constructive amendment error

under plain error review unless the defendant can

both (1) affirmatively prove that he or she “probably

would have been acquitted absent the error”; and (2)

point to past “precedent [that] squarely addresses” the

precise factual circumstances of his or her case.

Pet.App.7-8. Each of those holdings directly conflicts

with the holdings of other circuits.

1. Courts around the country have consistently

and repeatedly recognized that the circuits are split

over what test to apply when determining whether a

3

constructive amendment affected a defendant’s

substantial rights. While the government attempts to

minimize this clear circuit split, many of the

government’s own cited authorities explicitly

acknowledge it. See, e.g., United States v. Pierson, 925

F.3d 913, 924-25 (7th Cir. 2019) (identifying three

categories of approaches, while noting that even

within those categories, the circuits disagree), vacated

on other grounds by Pierson v. United States, 140 S.Ct.

1291 (Mem) (2020); United States v. Brandao, 539

F.3d 44, 57-60 (1st Cir. 2008) (identifying four

separate approaches). And the Seventh Circuit, by its

own estimate, applies the most “demanding” standard

of all. Pierson, 925 F.3d at 925.

The government attempts to cast the differences

as “narrow[]” and “lack[ing] practical significance.”

Those claims are belied by the cases. Both the Second

and Fourth Circuits have squarely held that a

constructive amendment is always per se prejudicial.

See United States v. Thomas, 274 F.3d 655, 670 (2d

Cir. 2001); Floresca, 38 F.3d at 714. While the Third

Circuit has rejected that rule, it places the burden on

the government to rebut a presumption of prejudice.

United States v. Syme, 276 F.3d 131, 154 (3d Cir.

2002). The Seventh Circuit, by contrast, requires the

defendant to prove prejudice—an approach that it has

explicitly acknowledged conflicts with Thomas,

Floresca, and Syme, among others. See Pierson, 925

F.3d 924-25.

That clear circuit split alone is reason enough to

warrant this Court’s review.

And, despite the

government’s contentions, even the circuits that

require defendants establish prejudice do not apply

4

the same standard. For example, the government

claims that the Tenth Circuit aligns with the Seventh

Circuit based on language from Miller saying that a

“defendant must show a ‘reasonable probability that,

but for the error claimed, the result of the proceeding

would have been different.” Opp’n 12 (quoting United

States v. Miller, 891 F.3d 1220, 1237 (10th Cir. 2018)).

But in the very next sentence in Miller, the Tenth

Circuit clarified that “[a] reasonable probability ...

should not be confused with[ ] a requirement that a

defendant prove by a preponderance of the evidence

that but for error things would have been different.”

Id.

(citations and internal quotations omitted).

Quoting this clarifying language, the Seventh Circuit

acknowledged that the Tenth Circuit’s approach

conflicted with that of the Seventh Circuit by

“demand[ing] less of a showing” from a defendant.

Pierson, 925 F.3d at 925.

The other cases the government cites similarly

reflect a deepening circuit split that includes far more

lenient standards concerning a defendant’s burden.

See, e.g., United States v. Madden, 733 F.3d 1314,

1323 (11th Cir. 2013) (finding prejudice whenever a

court “cannot say ‘with certainty’ that with the

constructive amendment, [the defendant] was

convicted solely on the charge made in the

indictment”).

2. The government fares no better with its

attempt to deny the clear split on what makes a

constructive amendment a “plain” error. Opp’n 16.

For example, the Fourth Circuit has explicitly held

that “under Stirone, constructive amendments of a

federal indictment are error per se, and under Olano,

5

must be corrected on appeal even when not preserved

by objection.” Floresca, 38 F.3d at 714. While Floresca

left unanswered the question of whether there could

ever be an occasion where a court might refuse to

overturn a conviction in a constructive amendment

case based on the fourth prong of the plain error test,

it made no such reservation concerning the second

prong—i.e., whether an error is “plain”. Id. at 712.

To the contrary, Floresca made clear that “it is

utterly meaningless to posit that any rational grand

jury could or would have indicted ... because it is plain

that th[e] grand jury did not, and, absent waiver, a

constitutional verdict cannot be had on an unindicted

offense.” Id. The government fails to explain how this

approach can possibly be reconciled with the Seventh

Circuit’s demand that a defendant show that the

specific facts of a case “lend themselves to clear

application of [the] circuit’s precedent” just to prove

that an error was “plain.” See Pierson, 925 F.3d at

923. The government’s attempts to recast decisions of

the Tenth and D.C. Circuits likewise fail. Compare

Opp’n 16-17, with Miller, 892 F.3d at 1235 (noting

error was plain simply because “it is settled law in

th[e] circuit, as elsewhere, that ... if an indictment

charges particulars, the jury instructions and

evidence introduced at trial must comport with those

particulars”); United States v. Lawton, 995 F.2d 290,

294 (D.C. Cir. 1993) (explaining that error was plain

simply because instructions “clearly outlined a

substantially broader field of potential criminality”

than the indictment).

That a constructive amendment is constitutional

error per se has been clear since at least this Court’s

6

decision in Stirone. See Stirone, 361 U.S. 212. And

courts like the Fourth, Tenth, and D.C. Circuits

recognize that there is no need to conduct a quasihabeas/qualified immunity analysis to determine

whether such an error is “plain.” The Seventh Circuit

and others do not, and demand a higher showing. This

Court should resolve this circuit split.

3. Unable to deny the division among the circuits,

the government tries to minimize its practical

importance. But the difference between requiring a

defendant prove prejudice and requiring no prejudice

showing at all is obvious. So too is the difference

between making prejudice the defendant’s burden to

prove versus the government’s burden to disprove.

Indeed, this Court has often granted certiorari to

resolve issues concerning who bears what burden of

proof in criminal cases. See, e.g., Nelson v. Colorado,

137 S.Ct. 1249 (2017); Parke v. Raley, 506 U.S. 20

(1992); Martin v. Ohio, 480 U.S. 228 (1987);

Sandstrom v. Montana, 442 U.S. 510 (1979).

The government does not seriously suggest that

there is no practical difference between requiring a

defendant prove prejudice and treating an error as per

se prejudicial. Instead, it claims that the Second and

Fourth Circuits “appear to apply a more demanding

standard than the Seventh Circuit for finding

constructive amendments in the first place.”

Opp’n 14. That claim is hard to reconcile with the fact

that no defendant in the Seventh Circuit has obtained

relief under the Seventh Circuit’s self-described more

“demanding” approach in more than two decades. See

Pierson, 925 F.3d at 924-25. That makes the Seventh

Circuit an outlier even among circuits that have

7

conducted a prejudice analysis, which reinforces that

the Seventh Circuit was correct to describe its

approach as the most “demanding” in the nation. See,

e.g., Miller, 891 F.3d at 1231-38 (granting relief on

plain error); Madden, 733 F.3d at 1319-23 (same);

United States v. Choy, 309 F.3d 602, 607-08 (9th Cir.

2002) (same); United States v. Dipentino, 242 F.3d

1090, 1095 (9th Cir. 2001) (same); United States v.

Gregg, 47 F. App'x 1, 3 (D.C. Cir. 2002) (same). In all

events, if the circuits really are in disagreement over

what is required to prove a constructive amendment,

then that just reinforces the need for this Court’s

intervention.

Finally, the government claims that this “circuit

conflict has existed for decades, and this Court has

repeatedly denied petitions for writs of certiorari

raising these and similar conflicts.”

Opp’n 15

(collecting cases). But all but one of the petitions the

government cites was filed well over a decade ago, at

a time when the government was arguing that the

split was likely to resolve itself. See, e.g., Br. in Opp’n,

Philips v. United States, No. 06-1602, 2007 WL

2315226, at *12-14. In the past 13 years, not only has

that prediction proven incorrect, but several more

circuits—including the Seventh Circuit, which

resolved an intra-circuit split on the issue in Pierson—

have now weighed in and, in doing so, deepened the

circuit split. See, e.g., Pierson, 925 F.3d 913; United

States v. Miller, 891 F.3d 1220 (10th Cir. 2018); United

States v. Madden, 733 F.3d 1314 (11th Cir. 2013);

United States v. Gavin, 583 F.3d 542 (8th Cir. 2009).

Meanwhile, the Second, Third, and Fourth Circuits

have reaffirmed their rules even as other circuits have

rejected them. See, e.g., United States v. Pryor, 474

8

Fed. Appx. 831, 833-34, n.5 (2d Cir 2012); United

States v. McKee, 506 F.3d 225, 229-32, n.3 (3d Cir.

2007); United States v. Randall, 171 F.3d 195, 210 (4th

Cir 1999); see also United States v. Medley, 972 F.3d

399, 406-10, n.4 (4th Cir. 2020).

As for the lone case that comes from this past

decade, that was a case in which the First Circuit

determined that there was no constructive

amendment at all, and thus had no occasion to discuss

anything about how the plain error standard applies.

See United States v. Weed, 873 F.3d 68, 74-75 (1st Cir.

2017). That likely explains why the government saw

no need even to file a brief in opposition, and this

Court did not request one. See Weed v. United States,

No. 17-1430 (April 18, 2018). In short, this split is

real, it is consequential, and it necessitates this

Court’s resolution.

II. This Case Presents An Excellent Vehicle For

Resolving The Circuit Split.

This case presents an excellent vehicle to resolve

the questions presented. The Seventh Circuit resolved

this case on plain error alone—assuming without

deciding that there was an error—and its high bar on

plain error review was dispositive. See Pet.App.7-8.

Unable to deny as much, the government instead

advances several alternative grounds for affirmance.

See Opp’n 6-9, 17-18. But no court has resolved any of

the government’s alternative arguments, and as this

Court has often reminded, it is “a court of review, not

of first review.” United States v. Haymond, 139 S.Ct.

2369, 2385 (2019) (internal quotations omitted).

Accordingly, whether some other grounds that the

Seventh Circuit declined to address might form a basis

9

for sustaining petitioner’s conviction can be sorted out

by the Seventh Circuit in the first instance in the

event this Court concludes that the Seventh Circuit

applied the wrong legal standard.

The government also argues that this is a poor

vehicle because the Seventh Circuit did not resolve

whether there was an error in the first place. See

Opp’n 6-9. In fact, that makes this a particularly good

vehicle because it confirms that the plain error test

was dispositive. Further, the government argues that

analysis of the first prong of the plain error test—i.e.,

whether there was an error—is inextricably

intertwined with the analysis of the second prong—

i.e., whether the error was plain. See Opp’n 6-9. But

that argument is just a variation on the Seventh

Circuit’s view of the “plain” prong, as the government

is essentially arguing that there cannot be an error

(plain or otherwise) absent prior precedent addressing

virtually the same facts. See Opp’n 6-10. If that test

is correct, then this Court can affirm, for the Seventh

Circuit has already concluded that petitioner loses if

constructive amendment claims are subject to some

sort of quasi-habeas/qualified immunity standard. If

it is wrong, then the Court can reverse and remand for

reconsideration under the correct test. Either way,

the absence of a ruling on the error question is no

obstacle to resolution of the questions presented. 1

1 That said, if this Court would prefer to resolve the questions

presented in a case where the lower court concluded that there

was a constructive amendment, it could grant the recently filed

petition in Pierson, the case in which the Seventh Circuit first

articulated its unusually “demanding” plain error standard, and

hold this petition pending resolution of that one. See Pierson v.

United States, No. 20-401 (U.S.). There, the court concluded that

10

In any event, the government’s argument that

there was no error is belied by the record and the

government’s own admissions. See, e.g., Gov’t C.A. Br.

18 (conceding that government relied on evidence of

57 tampered vials found during a separate,

uncharged, and unresolved 2014 tampering crime to

help prove the “extreme indifference” prong of Count

38); Oral Argument 18:06 (noting that “[the

government] did in fact combine the 54 [sic] [from

2014] and the 24 [sic] vials [from 2015] in that

argument”). By “broadening the possible bases for

conviction [on Count 38] from that which appeared in

the indictment,” the government allowed the jury to

convict on an entirely separate product tampering

crime. See Miller, 471 U.S. at 138. That is the

definition of a constructive amendment. See id. (“As

the Stirone Court said, the issue was ‘whether

[Stirone] was convicted of an offense not charged in the

indictment.’” (quoting Stirone, 361 U.S. at 213)).

The government alternatively suggests that even

if there was a plain error that affected petitioner’s

substantial rights, he still should not get relief under

the fourth prong of the plain-error test because the

error did not seriously affect the fairness, integrity, or

public reputation of judicial proceedings. Opp’n 17-19.

But as the Tenth Circuit recently observed, “where a

constitutional error has affected the defendants’

substantial rights, thus satisfying the third prong of

the plain error test, it is ordinarily natural to conclude

that the fourth prong is also satisfied and reversal is

there was a constructive amendment, but then concluded that the

error did not satisfy the plain-error test. See Pierson, 925 F.3d at

922.

11

necessary in the interest of fairness, integrity, and the

public reputation of judicial proceedings. Not to

reverse to correct the error is to ignore the injury the

defendant suffered from the violation of his or her

constitutional rights.”

Miller 891 F.3d at 1237

(citation omitted). United States v. Cotton did not

displace that rule, but rather involved a unique set of

“essentially uncontroverted” facts that are simply

inapposite here. 535 U.S. 625, 629-34 (2002). Indeed,

the argument that a constructive amendment does not

affect the fairness or integrity of a judicial proceeding

is fundamentally irreconcilable with Stirone’s holding

that a constructive amendment is reversible error per

se, which likely explains why even the Seventh Circuit

did not embrace that argument.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted,

ERIN E. MURPHY

JOHN CHRISTOPHER KOREVEC

KIRKLAND & ELLIS LLP Counsel of Record

1301 Pennsylvania

KIRKLAND & ELLIS LLP

Avenue, NW

555 S. Flower Street

Washington, DC 20004

Suite 3700

(202) 389-5000

Los Angeles, CA 90071

erin.murphy@kirkland.com (213) 680-8400

john.korevec@kirkland.com

Counsel for Petitioner

October 28, 2020