Reply Brief — Devan Pierson, Petitioner v. United States

No. 20-401

In the

Supreme Court of the United States

________________

DEVAN PIERSON,

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

________________

ZACHARY A. CIULLO

KIRKLAND & ELLIS LLP

300 N. LaSalle Street

Chicago, IL 60654

ERIN E. MURPHY

Counsel of Record

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

erin.murphy@kirkland.com

Counsel for Petitioner

January 26, 2021

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

Sandstrom v. Montana,

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

Stirone v. United States,

361 U.S. 212 (1960).............................................. 2, 5

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. Cotton,

535 U.S. 625 (2002)................................................ 10

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, 4, 5

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)............................................... 9

United States v. Laut,

790 F.App’x 45 (7th Cir. 2019) ............................ 2, 8

iii

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, 6, 7

United States v. McKee,

506 F.3d 225, 229-32 (3d Cir. 2007) ........................ 7

United States v. Medley,

972 F.3d 399 (4th Cir. 2020).................................... 7

United States v. Miller,

891 F.3d 1220 (10th Cir. 2018)...................... passim

United States v. Pryor,

474 F.App’x 831 (2d Cir 2012) ................................. 7

United States v. Randall,

171 F.3d 195 (4th Cir 1999)..................................... 7

United States v. Syme,

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

United States v. Thomas,

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

United States v. Weed,

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

Other Authorities

Br. in Opp’n, Phillips v. United States,

No. 06-1602, 2007 WL 2315226

(U.S. Aug. 13, 2007) ................................................. 7

Waiver, Weed v. United States, No. 17-1430

(April 18, 2018) ........................................................ 8

REPLY BRIEF

The government does not and cannot deny that

the appellate courts are in open and acknowledged

conflict about how the plain error standard should be

applied in constructive amendment cases. Instead, it

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 Pierson 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, even

though the Seventh Circuit affirmatively held that a

constructive indictment had occurred, it denied relief

because its plain error standard—which it readily

acknowledged is more “demanding” than standards

employed by other circuits—imposes such a “high bar”

that Pierson could not secure any relief for that

constitutional error. App.18, 24, 26-27.

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 either rejected or

did not reach. Of course, this Court is a court of

review, not of first review.

In all events, the

government’s alternative arguments are meritless.

The court below has already determined that the

2

government presented evidence of a separate,

uncharged firearm, allowing the jury to convict on that

separate, uncharged conduct. See App.18. That is, by

definition, a constructive amendment error under

Stirone v. United States, 361 U.S. 212 (1960). Thus,

the first prong of plain error review is satisfied. And

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 not

to have affected the fairness or integrity of judicial

proceedings.

Accordingly, this case presents an

excellent vehicle to resolve the open and

acknowledged circuit split over how the plain error

test applies to constructive amendments.

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 they can both

(1) affirmatively prove that they “probably would have

been acquitted” absent the error; and (2) point to past

precedent that squarely addresses the precise factual

circumstances of the case at hand. App.20-24; accord

United States v. Laut, 790 F.App’x 45, 48 (7th Cir.

2019). 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

constructive amendment affected a defendant’s

substantial rights. While the government attempts to

3

minimize that clear circuit split, the Seventh Circuit

below and many of the authorities the government

itself cites explicitly acknowledged it. See, e.g.,

App.24-26 (identifying three categories of approaches,

while noting that circuits disagree even within those

categories); United States v. Brandao, 539 F.3d 44, 5760 (1st Cir. 2008) (identifying four separate

approaches). And by the Seventh Circuit’s own

estimate, it applies the most “demanding” standard of

all. App.24.

The government attempts to cast the differences

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

BIO.11. But 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 App.25-27.

Despite the government’s contentions, moreover,

even the circuits that require defendants to establish

prejudice do not apply 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

4

different.’” BIO.11 (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.” 891 F.3d at 1237.

Quoting this clarifying language, the court below

acknowledged that the Tenth Circuit’s approach

conflicted with the Seventh Circuit’s approach because

the former “demand[s] less of a showing” of prejudice

from a defendant. App.26.

The other cases the government cites similarly

reflect a deepening circuit split, with several circuits

subjecting defendants to a far less demanding 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”). In short, the circuit split is clear, it is

acknowledged, and it is in need of resolution.

2. The government fares no better with its

attempt to deny the clear split on what makes a

constructive amendment a “plain” error. BIO.14. The

Fourth Circuit has explicitly held that, “under Stirone,

constructive amendments of a federal indictment are

error per se, and, under Olano, 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 ever could

be an occasion where a court might refuse to overturn

a conviction in a constructive amendment case based

5

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 that

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.” App.23. The government’s

attempts to recast decisions of the Tenth and D.C.

Circuits likewise fail. Compare BIO.15, with Miller,

891 F.3d at 1235 (noting error was plain simply

because “it is settled law in this circuit, as elsewhere,

that ... if an indictment charges particulars, the jury

instructions and evidence introduced at trial must

comport with those particulars”), and 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

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

6

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

Court should resolve that 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 to 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 to 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.”

BIO.13. 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

App.27. That makes the Seventh Circuit an outlier

even among circuits that do conduct 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

7

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 review.

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.” BIO.14. But all

but two of the petitions the government cites were

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, Phillips v. United

States, No. 06-1602, 2007 WL 2315226, at *12-14 (U.S.

Aug. 13, 2007). In the past 13 years, not only has that

prediction proven incorrect, but several more

circuits—including the Seventh Circuit, whose

decision below resolved an intra-circuit split on the

issue—have now weighed in and, in doing so,

deepened the circuit split. See, e.g., App. 24-26; Miller,

891 F.3d 1220; Madden, 733 F.3d 1314; 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 F.App’x 831, 83334, 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).

8

As for the two cases that come from this past

decade, in neither case did the court find that there

actually was a constructive amendment. In the first,

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

Waiver, Weed v. United States, No. 17-1430 (April 18,

2018). In the second, a recent unpublished decision,

the Seventh Circuit did not determine whether a

constructive amendment occurred. Laut, 790 F.App’x

at 48. Here, by contrast, the court below squarely held

that the government violated the Grand Jury Clause

by constructively amending the indictment. See

App.18 (“Following Leichtnam, we find that the

combination of the evidence and jury instructions

added up to a constructive amendment of Pierson’s

indictment.”). The only obstacle to redress of that

constitutional injury was the Seventh Circuit’s

particularly “demanding” plain error standard.

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—after expressly finding

a constructive amendment—and its high bar on plain

error review was dispositive. See App.9. Unable to

deny as much, the government advances several

alternative grounds for affirmance. See BIO.5-7, 1617. But no court has resolved any of the government’s

9

alternative arguments, and as this Court has often

reminded, it is “a court of review, not of first view.”

United States v. Haymond, 139 S.Ct. 2369, 2385

(2019). Accordingly, whether some other grounds that

the Seventh Circuit declined to address might form a

basis 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 case is a

poor vehicle because the Seventh Circuit allegedly

erred in determining that there was a constructive

amendment in the first place. See BIO.5-7. 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 BIO.5-8.

The

government is wrong on that score, but it is free to

make that argument before this Court should it so

choose. The mere fact that the government disagrees

with that aspect of the decision below is hardly a

reason to deny review.

In all events, the government’s argument that

there was no error was expressly rejected by the

Seventh Circuit for good reason: It is belied by the

record. App.14-20. As the Seventh Circuit explained,

if the government wanted to rely on the other firearm,

it could have drafted the indictment broadly, for

example alleging a generic “firearm” and not pleading

the car gun specifically, App.17, 19. 69.

At a

minimum, the government could have proposed a jury

instruction to clear up the ambiguity it created by

10

presenting evidence about both guns. App.19. By

instead “broadening the possible bases for conviction

[on Count 2] from that which appeared in the

indictment” without doing anything to guard against

that risk, the government allowed the jury to convict

based on evidence about an uncharged firearm. See

Miller, 471 U.S. at 138. That is the definition of a

constructive amendment.

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. BIO.16-17.

But as the Tenth Circuit recently observed,

[W]here 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 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

11

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,

ZACHARY A. CIULLO

KIRKLAND & ELLIS LLP

300 N. LaSalle Street

Chicago, IL 60654

ERIN E. MURPHY

Counsel of Record

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

Erin.murphy@kirkland.com

Counsel for Petitioner

January 26, 2021