Petition for Writ of Certiorari — Carlos Maez, Petitioner v. United States

No. ________

IN THE

Supreme Court of the United States

_____________________

CARLOS MAEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

CARLOS MAEZ, Petitioner

THOMAS W. PATTON,

Federal Public Defender for the Central

District of Illinois

COLLEEN McNICHOLS RAMAIS

Assistant Federal Public Defender

COUNSEL OF RECORD

300 West Main Street

Urbana, IL 61801

Phone:

217-373-0666

E-mail:

thomas_patton@fd.org

colleen_ramais@fd.org

QUESTIONS PRESENTED

The Sixth Amendment requires that no person be convicted of a felony except

on a finding by a jury that the government has proved its case beyond a reasonable

doubt for every element of a crime. Appellate courts agree that conviction in

violation of this provision is error. They disagree, however, on whether to remedy

such errors when applying the fourth prong of the Olano plain error test. United

States v. Olano, 507 U.S. 725 (1993). They further disagree as to which materials

appellate courts can consider when deciding this question.

The fourth prong of Olano asks whether an error seriously affects the

fairness, integrity or public reputation of judicial proceedings.

The questions presented are:

1. Did the Seventh Circuit err in using Mr. Maez’s stipulation to one

element of the offense as proof of another element of the offense,

effectively relieving the government of its burden of proof under the

third prong of the Olano test?

2. Does a conviction following incorrect jury instructions, failure of the

petit jury to make a finding on an essential element of a crime, and an

appellate court’s reliance on facts not shown to the jury, seriously

affect the fairness, integrity or public reputation of judicial

proceedings?

3. In applying the fourth prong of the plain error test from United States

v. Olano to a jury verdict with a missing element, can appellate judges

rely on information that was not presented to the jury in the first

instance?

ii

DIRECTLY RELATED CASES

Court

Case Name

United States Court of Appeals for the

Seventh Circuit

United States v. Maez

19-1287

United States District Court for the

Northern District of Indiana

United States v. Maez

3:16-cr-57

iii

Case Number

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................. ii

INDEX TO APPENDIX ................................................................................................... vi

TABLE OF AUTHORITIES ...........................................................................................vii

PETITION FOR CERTIORARI ....................................................................................... 1

DECISIONS BELOW ........................................................................................................ 1

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

LEGAL PROVISIONS INVOLVED ............................................................................... 2

INTRODUCTION ............................................................................................................. 3

STATEMENT OF THE CASE ......................................................................................... 5

I.

Indictment and Trial ............................................................................. 5

II.

The Seventh Circuit’s Decision Below ............................................... 6

REASONS FOR GRANTING THE PETITION ............................................................ 9

I.

The Fourth Circuit’s decision in United States v. Medley is

at odds with the Seventh Circuit’s decision in United States

v. Maez. .................................................................................................. 9

II.

There is a clear circuit split on Olano’s fourth prong. .............. 14

III.

This Court should resolve the circuit split regarding which

records appellate courts can consider in applying Olano’s

fourth prong......................................................................................... 17

IV.

A.

There is no precedent from the Court concerning the

record of review for Olano’s fourth prong. ........................ 17

B.

The approaches of the Fourth and Seventh Circuits

regarding consideration of post-trial information

provide this Court with a clear contrast. .......................... 19

This case raises important constitutional questions. ..................... 21

iv

V.

This problem will be repeated. ......................................................... 23

VI.

The circuit courts are not resolving the split on their own. .......... 23

VII.

This case is an excellent vehicle to resolve these issues. ............... 24

CONCLUSION ............................................................................................................... 26

v

INDEX TO APPENDIX

Document

Page

Appendix A, Opinion of the U.S. Court of Appeals for the

Seventh Circuit, No. 19-1287

1a

Appendix B, Jury instructions in United States v. Maez, U.S.

District Court for the Northern District of Indiana, No. 16-cr-57

35a

Appendix C, Jury Instructions in United States v. Maez, U.S.

District Court for the Northern District of Indiana, No. 16-cr-57

38a

vi

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................. 13, 22, 23

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ..................................................... 21

Duncan v. Louisiana, 391 U.S. 145 (1968) .............................................................. 21

Johnson v. United States, 520 U.S. 461 (1997) .......................................... 19, 20, 23

Martin v. Hunter's Lessee, 14 U.S. 304, 4 L. Ed. 97 (1816) ................................. 17

Old Chief v. United States, 519 U.S. 172 (1997) ............................................passim

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ........................................................... 22

Rehaif v. United States, 139 S. Ct. 2191 (2019) .............................................passim

United States v. Benamor, 937 F.3d 1182 (9th Cir. 2019) ............................. 16, 19

United States v. Brown, 202 F.3d 691 (4th Cir. 2000) .......................................... 11

United States v. Cotton, 535 U.S. 625 (2002) .............................................. 19, 20, 23

United States v. Gaudin, 515 U.S. 506 (1995) ........................................................ 23

United States v. Green, 973 F.3d 208 (4th Cir. 2020) ................................. 5, 16, 24

United States v. Hollingshed, 940 F.3d 410 (8th Cir. 2019) .......................... 16, 19

United States v. Huntsberry, 956 F.3d 270 (5th Cir. 2020) ........................... 15, 18

United States v. Jones, 960 F.3d 949 (7th Cir. 2020) ....................................passim

United States v. Lara, 970 F.3d 68 (1st Cir. 2020) .......................................... 15, 18

United States v. Medley, 972 F.3d 399 (4th Cir. 2020) .................................passim

United States v. Miller, 954 F.3d 551 (2d Cir. 2020) ............................................. 15

United States v. Olano, 507 U.S. 725 (1993) ...................................................passim

United States v. Pulliam, 973 F.3d 775 (7th Cir. 2020) ....................................... 24

vii

United States v. Reed, 941 F.3d 1018 (11th Cir. 2019) ................................... 15, 19

United States v. Vonn, 535 U.S. 55 (2002)......................................................... 17, 19

United States v. Ward, 957 F.3d 691 (6th Cir. 2020) ...................................... 15, 19

Statutes

18 U.S.C. § 922(g) ............................................................................................................ 4

18 U.S.C. § 922(g)(1) .............................................................................................passim

18 U.S.C. § 924(a)(2) ....................................................................................................... 3

18 U.S.C. § 924(c) ............................................................................................................ 5

18 U.S.C. § 2113(d).......................................................................................................... 5

18 U.S.C. § 3231............................................................................................................... 5

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

28 U.S.C. § 1291............................................................................................................... 6

Rules

Fed. R. Crim. P. 12(b)(3)(B) .......................................................................................... 6

Fed. R. Crim. P. 52(b) ..................................................................................................... 2

Constitutional Provisions

U.S. Const. amend. V ....................................................................................... 12, 16, 22

U.S. Const. amend. VI ..........................................................................................passim

viii

No. ___________

___________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________________

CARLOS MAEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________________

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

___________________________________________

PETITION FOR CERTIORARI

Petitioner Carlos Maez respectfully petitions for a writ of certiorari to review

the published decision of the United States Court of Appeals for the Seventh Circuit

in this case.

DECISIONS BELOW

The decision of the United States Court of Appeals for the Seventh Circuit is

published at 960 F.3d 949 and appears in Appendix A to this Petition. 1 Pet. App. 1a.

1 The Seventh Circuit decided Mr. Maez’s case in a joint opinion along with

Defendant-Appellants Mathew R. Jones (case no. 19-1768), and Cameron Battiste

The May 23, 2018, spoken and written jury instructions from the United States

District Court for the Northern District of Indiana were not reported, but are

reproduced in relevant part in Appendix B. Pet. App. 35a.

JURISDICTION

The Seventh Circuit entered its judgment on June 1, 2020. This Court has

jurisdiction under 28 U.S.C. § 1254(1). On March 19, 2020, this Court extended the

time within which to file a petition for a writ of certiorari to 150 days. This petition

is filed within 150 days of June 1, 2020.

LEGAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

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

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defence.

U.S. Const. amend. VI.

Federal Rule of Criminal Procedure 52(b) provides:

A plain error that affects substantial rights may be

considered even though it was not brought to the court's

attention.

Title 18 Section 922(g)(1) of the United States Code provides, in relevant

part:

(case no. 19-2049). Both parties are filing petitions for certiorari with this Court,

stemming from the Seventh Circuit’s single opinion.

2

It shall be unlawful for any person – (1) who has been

convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to . . .

possess . . . any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce .

...

Finally, Title 18 Section 924(a)(2) of the United States Code provides, in

relevant part:

Whoever knowingly violates subsection . . . (g) . . . of

section 922 shall be fined as provided in this title,

imprisoned not more than 10 years, or both.

INTRODUCTION

The Constitution guarantees an individual’s right for a grand jury and petit

jury to stand between him and the state’s judgment. U.S. Const. amend. V, VI. As

the Fourth Circuit recognized in United States v. Medley, these constitutional

guarantees afford defendants, and society at large, confidence in the fairness,

integrity, and public reputation of the system. 972 F.3d 399, 416–17 (4th Cir. 2020).

When some courts consider those guarantees inviolate, while others treat them as

mere procedural inefficiencies, confidence in the entire system suffers. With

different rules, the Constitution and laws become subjective, with rules applied

differently based on where the defendant happens to find himself in the country.

This case arises in the context of 18 U.S.C. § 922(g)(1), and Rehaif v. United

States, 139 S. Ct. 2191 (2019). Prior to Rehaif, and at the time of Mr. Maez’s trial,

prevailing Seventh Circuit precedent only required proof of three elements for a

§ 922(g)(1) conviction: a prior felony conviction, knowing possession of a firearm,

and an interstate nexus for the gun. In Rehaif, this Court held that, to sustain a

3

conviction under § 922(g), the government must prove that the defendant knew he

was a prohibited person when he possessed the firearm. 139 S. Ct. at 2194.

Mr. Maez was indicted for violating § 922(g)(1), went to trial before Rehaif,

and his direct appeal was pending when Rehaif was decided. On appeal, he

challenged the sufficiency of his indictment and the jury instructions. Many

defendants across the country had near-identical situations, and raised the same

claims in federal circuit courts.

The results are inconsistent. In the Seventh Circuit, Mr. Maez lost his appeal

because the circuit court held that the jury instruction error in his case did not

seriously affect the fairness, integrity, or reputation of judicial proceedings. This

finding was made under the fourth prong of the plain error standard this Court set

forth in United States v. Olano. Olano laid out a four-pronged test for reversing

unpreserved errors: (1) there must be an error; (2) the error must be “plain” or

obvious; and (3) the error must affect the defendant’s substantial rights. Olano, 507

U.S. at 732. Once the reviewing court establishes these first 3 prongs, it may use its

discretion to correct the error if (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings. Id.

Most circuits align with the Seventh Circuit. The Seventh Circuit held that

Olano’s fairness, integrity, and judicial reputation prong (“Olano’s fourth prong”) is

not met when a person is convicted using jury instructions that omit an essential

element, as long as judges can confidently reach a decision after relying on facts

that juries did not consider. See Pet. App. 17a–23a.

4

If Mr. Maez’s case had arisen in the Fourth Circuit, however, his conviction

would likely have been overturned. There, similar errors were held to seriously

affect the fairness, integrity, and reputation of judicial proceedings. See Medley, 972

F.3d at 403; United States v. Green, 973 F.3d 208, 211 (4th Cir. 2020). The Fourth

Circuit does not rely on facts outside the trial record when applying the fourth

prong of Olano. Medley, 972 F.3d at 418.

Though the split arises under Rehaif and § 922(g), it has implications for

every circuit’s execution of plain error review, whenever courts are confronted with

jury instructions that omit essential elements and a lack of notice to the defendant

that the government has to prove a particular element to secure a valid conviction.

Resolving this split will bring consistency to the application of Olano prong four on

plain error review.

For these reasons, and for those explained below, this Court should grant

certiorari, then vacate Mr. Maez’s conviction using the approach taken by the

Fourth Circuit in United States v. Medley.

STATEMENT OF THE CASE

I.

Indictment and Trial

On October 11, 2017, a federal grand jury in the Northern District of Indiana

charged Mr. Maez by superseding indictment with armed bank robbery, in violation

of 18 U.S.C. § 2113(d), carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c), and being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). Pet. App. 38a–40a. The District Court

had jurisdiction over his case pursuant to 18 U.S.C. § 3231.

5

Mr. Maez pleaded not guilty and went to trial in May 2018. He had not

objected to the sufficiency of the indictment under Fed. R. Crim. P. 12(b)(3)(B). The

jury instructions did not charge the jury with finding Mr. Maez’s knowledge of his

prohibited status. Pet. App. 35a–37a. Mr. Maez did not object to the jury

instructions.

Mr. Maez filed a timely notice of appeal.

II.

The Seventh Circuit’s Decision Below

The Seventh Circuit had jurisdiction over Mr. Maez’s appeal pursuant to 28

U.S.C. § 1291. On appeal, he relied on Rehaif to challenge the indictment and jury

instructions. 2 With respect to the jury instructions, he argued that omitting

§ 922(g)(1)’s knowledge element violated his Sixth Amendment rights. Since he had

not objected in the district court, his claims were reviewed for plain error. Pet. App.

8a–10a. The circuit court applied the plain error test from United States v. Olano.

Olano provides that, where a party has not objected to a claimed error, an appellate

court may reverse where the following four prongs are met: (1) there must be error;

(2) the error must be “plain” or obvious; (3) the error must affect the defendant’s

substantial rights; and (4) the error must seriously affect the fairness, integrity, or

public reputation of judicial proceedings. 507 U.S. at 732.

2 The Seventh Circuit found that the indictment in Mr. Maez’s case tracked the

statutory language closely enough that it was sufficient and, therefore, found no

error. Mr. Maez does not challenge that finding in this petition, though he does not

concede that, given the state of the law when he was indicted and went to trial, he

had notice of the full charge against him.

6

The Seventh Circuit held that the omission of an element from the jury

instructions satisfied the first two Olano prongs. Pet. App. 24a. That is, omitting

the element from the jury instructions was an error (prong one), that was plain, or

obvious (prong two). It held, however, that the error failed to satisfy Olano’s third

prong, concluding that other evidence from trial proved the omitted element. Pet.

App. 24a–25a. Specifically, the court found that three pieces of “undisputed

evidence” before the jury “strongly support[ed] an inference that Maez knew he was

a felon.” Pet. App. 24a. The court cited to the Old Chief stipulation entered into

between the parties that he had “previously been convicted of a felony crime

punishable by more than a year of imprisonment.” Pet. App. 24a–25a. Additionally,

the court found that testimony by Mr. Maez’s daughter that she had no relationship

with him in childhood because he had spent most of that time incarcerated, as well

as testimony from his parole officer that he was on parole at the time of the offense,

both supported an inference that he “knew he had been convicted of at least one

prior felony.” Pet. App. 25a.

Moreover, the Seventh Circuit found that, even if Mr. Maez could show

prejudice at prong three of the test, it would not exercise its discretion to correct the

error under prong four, concluding that “[a]ffirmance in this instance protects

rather than harms ‘the fairness, integrity or public reputation of judicial

proceedings.’” Id. The Seventh Circuit made critical underlying decisions that led to

its ruling. Most importantly, the circuit court held that for the fourth Olano prong,

the panel could rely on the trial records and “a narrow category of highly reliable

7

information outside the trial records,” from the PSR. Pet. App. 23a. This meant that

the appellate panel’s analysis on the missing element relied on facts that the jury

did not see; rather than reviewing a lower decision, the court made a factual finding

in the first instance.

After weighing the evidence before the jury and the inculpatory evidence

from the PSR, the circuit court held that Mr. Maez could not satisfy Olano prong

four on the error in the jury instructions. Pet. App. 25a. The court added

information from the PSR about Mr. Maez’s criminal history to the evidence

presented in trial, noting that he had been convicted of at least 5 felonies, and

sentenced to more than a year in prison at least three times. Id. Adding the PSR to

information the jury did see, the panel was “confident” that Mr. Maez knew he was

a felon. Id.

8

REASONS FOR GRANTING THE PETITION

There are three circuit splits in this case. First, the Fourth Circuit and

Seventh Circuit are split as to how to weigh a stipulation under Old Chief as

evidence of a defendant’s state of mind when he possessed a firearm, and what

weight to give other “uncontested evidence” of knowledge, when a defendant is not

on notice that the government must prove knowledge of his status.

Second, the courts are split as to how Olano prong four applies to incomplete

or incorrect jury instructions. The split concerns vital questions of the constitutional

rights to have questions of fact decided by a jury. The scope of those guarantees

must be consistent across the country.

Third, there is a split as to what information an appellate court may rely

upon when reviewing a jury’s decision under Olano’s fourth prong. Specifically, can

circuit courts’ factual analyses rely on material that the juries did not see?

On all three questions, the Fourth Circuit’s decision in United States v.

Medley is incompatible with the Seventh Circuit’s decision in Maez.

I.

The Fourth Circuit’s decision in United States v. Medley is at odds

with the Seventh Circuit’s decision in United States v. Maez.

The Fourth Circuit decided Medley about eight weeks after the Seventh

Circuit decided Maez, but adopted almost none of the Seventh Circuit’s approach. In

Medley, the Fourth Circuit reviewed a trial conviction for a violation of 18 U.S.C.

§ 922(g)(1). 972 F.3d at 402. Like Mr. Maez, Mr. Medley’s trial took place before

Rehaif, and his direct appeal was pending when Rehaif came out. Medley, 972 F.3d

at 402.

9

In Medley, the court identified two errors: 1) the indictment did not mention

knowledge of his prohibited status, and 2) the jury instructions did not require a

finding on knowledge of his prohibited status. Id. at 404. Medley even shared

factual similarities with Maez, including an Old Chief stipulation to a prior

conviction, and prior charges and sentences on his PSR, including serving a more

than decade-long sentence. See Pet. App. 25a, and Medley, 972 F.3d at 414, 417.

Medley’s claimed errors also mirrored those made by Mr. Maez. Medley

sought relief for violation of his Fifth Amendment right to grand jury indictment,

claiming that the flawed indictment did not give him notice of the government’s

allegations. Medley, 972 F.3d at 406-407. He also claimed that failure to instruct the

petit jury on an essential element warranted relief, because it violated his Sixth

Amendment right to have a jury determine facts beyond a reasonable doubt. Id. at

411. Last, just like Mr. Maez, Mr. Medley did not object to the indictment or jury

instructions in district court, so the Fourth Circuit reviewed his appeal for plain

error. That required application of Olano’s four-prong test. Id. at 405.

The Fourth Circuit found that both errors satisfied the first two Olano

prongs. As to the jury instruction claim, the court acknowledged that, where there

is “overwhelming evidence” as to Mr. Medley’s knowledge of his prohibited status,

the error would not affect his substantial rights. See Medley, 972 F.3d at 413.

However, the court concluded that “where, as here, we do not have a contested

element ‘because the element emerged as a consequence of a change in the law after

trial,’ . . . it is inappropriate to speculate whether a defendant could have challenged

10

the element that was not then at issue.” Id. (quoting United States v. Brown, 202

F.3d 691, 700 (4th Cir. 2000)). The court noted that, due to settled circuit law at the

time of trial, “any attempt to contest [Medley’s] lack of knowledge would have been

futile,” just as it would have been for Mr. Maez. Medley, 972 F.3d at 413; Pet. App.

7a (acknowledging that “Rehaif changed governing law”). Though the government

in Medley argued that it would have easily proven the defendant’s knowledge of his

prohibited status, the court concluded that, at the time the case was tried, “Medley’s

knowledge of his prohibited status was orthogonal to the issues raised at trial,” and

to speculate as to how he would have defended against an element not at issue

would represent “an untoward leap of logic.” Medley, 972 F.3d at 413. The Seventh

Circuit, by contrast, took seemingly no account of the futility of introducing

evidence contesting Mr. Maez’s knowledge of his status, but proceeded directly with

an evaluation of the trial record. Pet. App. 24a–25a.

However, even the approaches taken to the trial record diverged. The Fourth

Circuit considered the evidence presented at trial and held that it was

inappropriate to construe knowledge of felon status from an Old Chief stipulation,

as this “would render the Supreme Court’s language in Rehaif pointless.” Medley,

972 F.3d at 414. Conversely, the Seventh Circuit pointed to Mr. Maez’s stipulation

that, at the time he possessed the firearm, he had “previously been convicted of a

felony crime punishable by more than a year of imprisonment,” as evidence

supporting the conclusion that he knew he was a felon, as “a felony conviction is a

life experience unlikely to be forgotten.” Pet. App. 24a–25a. Moreover, the facts that

11

Mr. Maez was on parole and had spent much of his daughter’s youth incarcerated

do not necessarily point to his knowledge or understanding of any prior convictions

and certainly does not provide the overwhelming evidence of Mr. Maez’s mental

state, particularly where he had no incentive or notice that he could introduce

counter evidence. See Pet. App. 25a. By relying on a stipulation to one element of

the offense as “powerful circumstantial evidence” of another element, one which Mr.

Maez had no notice the government had to prove, improperly relieves the

government of its burden of proof as to an entire element of the offense. The Fourth

Circuit’s decision recognizes the prejudice suffered by a defendant where the district

court failed to instruct the jury that it had to find the defendant knew his

prohibited status and the government failed to present sufficient evidence on that

point at trial. Medley, 972 F.3d at 415.

As to prong four of the Olano test, both the Fourth and Seventh Circuits

addressed a fundamental question: Would affirmance of the conviction despite these

errors seriously affect the fairness, integrity, or public reputation of judicial

proceedings? Medley, 972 F.3d at 416; Pet. App. 25a. Again, they reached opposite

conclusions.

The Fourth Circuit held that the Fifth and Sixth Amendment concerns raised

by the jury’s non-consideration of an essential element were “just as important to

protecting the fairness, integrity, and public reputation of our judicial proceedings.”

Id. at 416. Noting that all facts must be given to a jury and proven beyond a

reasonable doubt, the Fourth Circuit held that the “most important element” of the

12

right to a jury trial is having “the jury, rather than the judge, reach the requisite

finding of guilty.” Medley, 972 F.3d at 417 (internal citations omitted); see also

Apprendi v. New Jersey, 530 U.S. 466 (2000).

Crucial to these determinations were two analytical decisions. First, for

purposes of Olano prong four, the Fourth Circuit did not rely on information that

the juries did not see, even though it acknowledged that there was “substantial

post-trial evidence supporting Medley’s knowledge of his prohibited status,”

including a 16-year prison term for second-degree murder. Id. at 417. For the

Fourth Circuit, reliance on post-trial evidence to affirm Medley’s conviction would

be to “usurp the role of both the grand and petit juries and engage in inappropriate

judicial factfinding.” Id. at 418 (emphasis added). The circuit court acknowledged

that affirmance would be “convenient” and even that “it may appear . . . that the

Government could have proven the additional element . . . .” Id. at 418. However,

the court refused to proceed with this “judges know best” approach. Id. It held that

such a “level of judicial factfinding” would “cast a defendant’s constitutional rights

aside and trample over the grand jury and petit jury’s function.” Id.

The second analytical step that the Fourth Circuit employed on the fourth

prong was evaluating the errors in the aggregate, as opposed to taking them one-byone. Id. at 417. As the Fourth Circuit saw it, without notice of a state of mind

allegation, or notice that the factfinder would consider whether he contested his

state of mind, the defense had no incentive “to contest that element during pretrial,

trial, or sentencing proceedings.” Id. at 417. In other words, Medley had no burden

13

to carry on the knowledge element, and the government should not be awarded that

element by default. 3 In its “substantial rights” inquiry under Olano prong three, the

court held that

Here, the errors occurred at the inception of the

Government’s case against Medley and continued

throughout. Put another way, the error was not just a

single, simple procedural error—but a combination of

errors that tainted many of the basic protections that

permit us to regard criminal punishment as

fundamentally fair.

Medley, 972 F.3d at 415. Though that comment applied Olano prong three, it

applies equally to prong four.

In summarizing its Olano prong four holding, the Fourth Circuit held that

“too much went wrong here,” to permit affirmance:

Sustaining Medley’s conviction under the present

circumstances would deprive Medley of several

constitutional protections, prohibit him from ever

mounting a defense to the knowledge-of-status element,

require inappropriate appellate factfinding, and do

serious harm to the judicial process.

Medley, 972 F.3d at 403.

II.

There is a clear circuit split on Olano’s fourth prong.

The Fourth Circuit is in stark opposition to the other circuits, including the

Seventh Circuit below, on how to apply Olano prong four to these constitutional

3 In Mr. Maez’s case, though the indictment was not as flawed as Mr. Medley’s, the

same principles still apply: Mr. Maez functionally had no notice that the

government had to prove the requisite mental state, and had he attempted to

introduce evidence as to his lack of knowledge of his prohibited status would have

been futile, given settled circuit law at the time. See Medley, 972 F.3d at 413.

14

violations. It is an intolerable conflict with such significant constitutional rights at

issue.

Like Maez and Medley, at least the First, Second, Fifth, Sixth, Eighth, Ninth,

and Eleventh Circuit Courts have applied Olano prong four to a § 922(g)(1) trial

conviction where the indictment or jury instructions, or both, lacked an essential

element. See United States v. Lara, 970 F.3d 68, 87-90 (1st Cir. 2020) (jury

instructions lacked essential element, judges made findings of fact from materials

jury did not see; plain error review fails at Olano’s fourth prong); United States v.

Ward, 957 F.3d 691, 694-695 (6th Cir. 2020) (indictment lacked essential element,

jury instructions lacked essential element, judges made findings of fact from

materials jury did not see; plain error review fails at fourth prong); United States v.

Huntsberry, 956 F.3d 270, 283–286 (5th Cir. 2020) (jury instructions lacked

essential element, judges made findings of fact from materials jury did not see;

plain error review fails at fourth prong); United States v. Miller, 954 F.3d 551, 558560 (2d Cir. 2020) (jury instructions lacked essential element, judges made findings

of fact from materials jury did not see; plain error review fails at fourth prong);

United States v. Reed, 941 F.3d 1018, 1021-1022 (11th Cir. 2019) (indictment lacked

essential element, jury instructions lacked essential element, judges made findings

of fact from materials jury did not see; plain error review fails at third and fourth

prong); United States v. Hollingshed, 940 F.3d 410, 415–417 (8th Cir. 2019) (jury

instructions lacked essential element, judges made findings of fact from materials

jury did not see; plain error review fails at third and fourth prong); United States v.

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Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019) (judges made findings of fact from

materials jury did not see; plain error review fails at third and fourth prong).

The foregoing appeals all came up in the context of § 922(g) jury convictions

that predated Rehaif, and suffered from errors that were plain at the time of review.

Each circuit court reviewed the Rehaif claims for plain error. Each court found

“error” that was “plain,” and had to decide whether the Fifth and or Sixth

Amendment violations seriously affected the fairness, integrity, or respect for

judicial proceedings under Olano’s fourth prong. Medley and Green, the two

reported Fourth Circuit cases, stand in conflict with the other decisions. United

States v. Medley, 972 F.3d 399 (2020); United States v. Green, 973 F.3d 211 (2020).

Dissenting from the Fourth Circuit’s decision in Medley, Judge Quattlebaum

highlighted exactly this split, and the opposing results for identical circumstances.

Medley, 972 F.3d at 426 (Quattlebaum, J., dissenting). Judge Quattlebaum

specifically cited Maez and noted that “every other circuit—literally, every one”

conflicts with the Medley ruling on Olano’s third and fourth prongs. Id. at 426.

Similarly situated defendants, like Mr. Maez and Mr. Medley, are getting opposite

results in different circuits.

While different results are sometimes acceptable, important constitutional

issues like jury rights must have consistency. See Martin v. Hunter's Lessee, 14 U.S.

304, 347–48, 4 L. Ed. 97 (1816) (noting “the importance, and even necessity of

uniformity of decisions throughout the whole United States, upon all subjects

within the purview of the constitution . . . The public mischiefs that would attend [a

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disjointed interpretation of the Constitution] would be truly deplorable . . . .”). Mr.

Maez and Mr. Medley suffered identical violations of their petit jury rights. This

Court should clarify whether these are serious constitutional violations, or just

procedural hiccups.

III.

This Court should resolve the circuit split regarding which records

appellate courts can consider in applying Olano’s fourth prong.

A.

There is no precedent from the Court concerning the record of

review for Olano’s fourth prong.

There is also a split on whether, when considering the fourth prong of the

Olano test for jury verdicts, appellate courts can rely on materials that were never

presented to the jury, an issue that has arisen in each circuit that has grappled

with Rehaif challenges to jury verdicts. This Court has permitted unfettered

consultation of the record for plain error review of guilty pleas. United States v.

Vonn, 535 U.S. 55, 74–75 (2002) (“in assessing the effect of Rule 11 error, a

reviewing court must look to the entire record, not to the plea proceedings, alone.”).

But when applying Olano’s fourth prong 4 to trial errors, this Court has not given

the circuits instruction.

The Seventh Circuit acknowledged the split, and lack of clarity, stating:

The circuits have taken different approaches to the record

for plain‐error review of jury verdicts in light of Rehaif.

[The Sixth, Eleventh, Eighth, and Ninth Circuits] have

freely consulted materials not before the jury—in

particular, criminal histories from defendants’

presentence investigation reports (PSRs)—without

discussing the propriety of thus expanding the record . . .

The Second Circuit took a more cautious approach . . .

4 It is also unclear whether Vonn applies to Olano prong three’s “substantial rights”

analysis for trials.

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[and the] Fifth Circuit acknowledged this issue but

declined to take a side . . . .

Pet. App. 17a (Emphasis in original). The Seventh Circuit elected to restrict itself

to the trial record and a narrow category of highly reliable

information outside the trial records: the defendants’

prior offenses and sentences served in prison, as reflected

in undisputed portions of their PSRs.

Pet. App. 23a.

Other circuit courts have also noted that this Court has never ruled on this

issue. After Maez, but before Medley, the First Circuit grappled with this question

in Lara:

[The] evidence [of past convictions and thus, knowledge],

it is true, is not in the trial record. We note, however, that

we regularly take judicial notice of such state court

records given their presumed reliability . . . Moreover, the

Supreme Court has never suggested that we are

categorically barred from taking into account evidence not

introduced at trial in considering whether an

instructional error satisfies the fourth prong of plain error

review.

970 F.3d at 88-89. The Fifth Circuit decided similarly to the First, by highlighting

the split and lack of controlling precedent, but ultimately settled on taking judicial

notice of the defendant’s state court records. Huntsberry, 956 F.3d at 286.

The Sixth and Eleventh Circuits relied on Vonn, notwithstanding its

applicability to guilty pleas, as opposed to trials. Both cited Vonn, then implicitly

extended it to trial errors, without extensive discussion. Ward, 957 F.3d at 695 &

n.1; Reed, 941 F.3d at 1021. Similarly, the Eighth and Ninth Circuits essentially

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extended Vonn to trials, but without citation to Vonn or discussion of the extension.

Hollingshed, 940 F.3d at 415–16; Benamor, 937 F.3d 1189.

As noted above, the Fourth Circuit did not rely on post-trial information in

Medley, finding that it would “usurp the role of both the grand and petit juries and

engage in inappropriate judicial factfinding.” Medley, 972 F.3d at 418 (emphasis

added). Thus, the approach to this issue varies dramatically depending on where a

defendant finds himself hauled into court.

B.

The approaches of the Fourth and Seventh Circuits regarding

consideration of post-trial information provide this Court with

a clear contrast.

In Medley, the Fourth Circuit only relied on evidence that the jury saw. See

Medley, 972 F.3d at 417-418 (acknowledging the weight of “post-trial” evidence, but

declining to act on it). An important part of Medley’s approach is its treatment of

United States v. Cotton, 535 U.S. 625 (2002), and Johnson v. United States, 520 U.S.

461 (1997). In both Cotton and Johnson, this Court resolved Olano’s fourth prong by

reference to “one-sided and overwhelming” evidence that the jury saw. See Cotton,

525 U.S. at 633 (testimony on missing element was “overwhelming”); Johnson, 520

U.S. at 470 (evidence on missing element was “overwhelming”).

The Fourth Circuit noted:

As revealed by those decisions, a defect in an indictment

or a jury instruction will generally not be corrected at

Olano’s fourth prong when the record evidence related to

the defective part of the indictment or instruction is

“overwhelming” and “essentially uncontroverted.”

Medley, 972 F.3d at 417 (Emphasis in original). The court went on to note that, in

the case of a Rehaif error, evidence of defendant’s knowledge was only

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uncontroverted because the defendant did not know he had to contest the evidence

on knowledge of status. Id. at 417–18. Reliance on post-trial information to pass the

“overwhelming” bar would have further muddled the issue. Specifically, by failing to

raise the missing element in the indictment and by failing to submit overwhelming

evidence to the jury, the government took away the defendant’s incentive to

controvert it. Id. The circuit court did not want to shift the burden and punish the

defendant for not fighting an allegation that was never made, or to answer a

question for the jury that was never asked.

Conversely, in Maez, the Seventh Circuit assigned no significance to Mr.

Maez’s lack of true notice, which deprived him of an opportunity to present evidence

as to a lack of knowledge of his status. Though the court held that Mr. Maez could

not meet prong three of the Olano test, due to “overwhelming evidence” before the

jury, it did so using inappropriate inferences. Pet. App. 24a–25a; supra at Sec. I. As

to the fourth prong, however, the Seventh Circuit held that the PSR was dispositive,

invoking Mr. Maez’s checkered past, without consideration of the fact that he would

have had no reason to introduce any evidence that contravened an assumption of

his knowledge. Pet. App. 25a. If Medley correctly applied Cotton and Johnson to this

situation, the Seventh Circuit should have declined to weigh PSR evidence

supporting the knowledge-of-status element that remained “essentially

uncontroverted,” because Mr. Maez “had no reason to contest that element during

pre-trial, trial, or sentencing proceedings.” Medley, 972 F.3d at 417.

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It is important to recall the chronology between Maez and Medley. Maez was

decided mere weeks before Medley. The Fourth Circuit had every opportunity to

follow Maez by relying on post-trial information. In Medley, the Fourth Circuit had

significant PSR evidence of Mr. Medley’s prior convictions, including a 16-year

sentence for second degree murder. Medley, 972 F.3d at 416. As the Medley dissent

noted, “if ever there were a case” to look at things the jury did not see, Medley was

the case. Id. at 420 (Quattlebaum, J., dissenting) (also noting that no other circuits

took the Fourth Circuit’s approach).

By rejecting the Seventh Circuit’s approach to post-trial evidence, the Fourth

Circuit took a hard line on what it would, and would not, rely upon when applying

Olano’s fourth prong. It is the only circuit to draw this line, and conflicts with the

Seventh Circuit’s decision in Maez.

IV.

This case raises important constitutional questions.

A constitutionally sound jury trial is a bedrock guarantee of our Constitution.

The jury-trial guarantee reflects ‘a profound judgment

about the way in which law should be enforced and justice

administered . . . The Sixth Amendment represents a

“deep commitment of the Nation to the right of jury trial

in serious criminal cases . . . .”

Codispoti v. Pennsylvania, 418 U.S. 506, 515–16 (1974) (citing Duncan v. Louisiana,

391 U.S. 145, 156 (1968)). More recently, Justice Sotomayor has written that “the

right to put the State to its burden, in a jury trial that comports with the Sixth

Amendment, before facing criminal punishment” is “among the most essential”

constitutional protections. Ramos v. Louisiana, 140 S. Ct. 1390, 1409 (2020)

(Sotomayor, J., concurring).

21

In the Fourth Circuit, Olano’s fourth prong compels courts to enforce

individuals’ constitutional protections, even when it is easier for an appellate panel

to assume what a jury would do. Justice Scalia has also defended the inefficiency

attendant to jury guarantees, because the Constitution went out of its way to vest

guilt and innocence decisions with juries, not judges:

[T]he guarantee that “[i]n all criminal prosecutions, the

accused shall enjoy the right to ... trial, by an impartial

jury,” has no intelligible content unless it means that all

the facts which must exist in order to subject the

defendant to a legally prescribed punishment must be

found by the jury.

Apprendi, 530 U.S. at 499 (Scalia, J., concurring) (citing U.S. Const. amend. VI).

Conversely, the Seventh Circuit’s opinion in Maez illustrates how, in other

circuits, Olano’s fourth prong has been reduced to a vehicle to ensure the most

efficient result, no matter what the jury saw nor what constitutional violations may

have occurred. Violations of individuals’ Fifth and Sixth Amendment rights are less

troublesome in those circuits, because the government can always fall back on

judges’ hypotheses about how a trial would have gone, with different allegations, if

the juries had only seen different evidence.

When the government must defend constitutional violations of this

magnitude, there should be consistent standards across the country. It cannot be

that depriving individuals of notice and the right to a jury’s judgment is

inconsequential in the Seventh Circuit and elsewhere, but it does “serious harm to

the judicial process” in the Fourth Circuit. See Medley, 972 F.3d at 403.

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V.

This problem will be repeated.

The circuit split over which evidence can be considered in deciding whether

affirmance harms the fairness, integrity, or public reputation of judicial proceedings

under the fourth prong of the Olano test will resurface as long as courts continue to

hold jury trials. Though prosecutors, judges, and defense attorneys do their best,

there will always be forfeited indictment challenges, misstated or omitted elements,

and unintentional constitutional violations. In short, there will always be plain

error review and a need to apply Olano’s fourth prong to a jury verdict.

This issue arose in Cotton, when this Court’s decision in Apprendi affected

pending appeals for drug quantities. 535 U.S. at 628–29. It came up in Johnson,

when this Court’s decision in United States v. Gaudin, 515 U.S. 506 (1995), affected

pending appeals on the issue of materiality in perjury prosecutions. 520 U.S. at 464.

It came up here, when Rehaif affected a bevy of pending appeals of convictions

pursuant to 18 U.S.C. § 922(g). See Pet. App. 3a. It will come up again, and courts

will face the question of which parts of the record on appeal are to be considered. It

is only a matter of time.

The Seventh Circuit and the Medley dissent noted that there is a split on

what information to review. This Court should settle the question.

VI.

The circuit courts are not resolving the split on their own.

The Seventh Circuit and Fourth Circuit are not moving towards a unified

theory. Medley, itself, came out in full knowledge of Maez, and the Medley dissent

explicitly cited Maez. 972 F.3d at 427 (Quattlebaum, J., dissenting). Later, the

Fourth Circuit recommitted itself to the Medley decision, in United States v. Green,

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973 F.3d 208 (2020). For its part, the Seventh Circuit recommitted itself to Maez

after Medley and Green. United States v. Pulliam, 973 F.3d 775 (7th Cir. 2020). In

Pulliam, the Seventh Circuit again held that an incomplete indictment and

incorrect jury instructions did not warrant plain error relief because the judges

were “confident” of what the grand jury and jury would have done, in a different

trial with different evidence. Id. at 782.

Absent a decision from this Court, it appears that, at the least, the Fourth

and Seventh Circuits will continue their divergent paths on how to apply Olano’s

fourth prong.

VII.

This case is an excellent vehicle to resolve these issues.

This case represents a good vehicle for review, for several reasons. First, it

allows this Court to address the appropriate inferences to draw from Old Chief

stipulations, which has surfaced in many plain error cases applying Rehaif.

Second, this case also tackles the fourth prong of the plain error test and, as

such, is representative of the many cases that have turned on Olano’s fourth prong

since Rehaif. It is clear that Mr. Maez was not on notice that the government must

prove that he knew of his status, and the jury instructions clearly did not reference

all of the § 922(g)(1) elements. Since the Seventh Circuit relied on the PSR, this

Court can squarely address what to do with post-trial evidence when applying

Olano prong four to jury verdicts and indictments.

Moreover, the Seventh Circuit methodically considered each step it took in

making its Olano prong four decision. Rather than elide the preliminary decisions

on the way to Olano, the Seventh Circuit considered each issue that Mr. Maez

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raised, and weighed how it would apply those rules. It walked through what

evidence to review, the precise nature of the constitutional errors, and application to

the specifics of Mr. Maez’s case. It also noted specific places where it lacked

definitive direction from this Court, highlighting the scope of the appropriate record

to review when considering a plain error challenge after a trial. Pet. App. 16a-23a.

The Fourth and Seventh Circuits are starkly opposed on how to apply Olano’s

fourth prong, which concerns fairness, integrity, and respect for judicial

proceedings. They reach their opposite applications by taking different approaches

to the constitutional rights at issue in this case. They are also split on the proper

record courts can review in grappling with this question. Mr. Maez’s claims are

representative of others in his position. They will be repeated the next time this

Court issues a decision that affects elements of a crime.

This Court should grant the petition, and remand for the Seventh Circuit to

adopt the Fourth Circuit’s approach to resolving Olano prong four.

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CONCLUSION

For the foregoing reasons, the Court should grant the petition for a writ of

certiorari.

October 28, 2020

CARLOS MAEZ, Petitioner

THOMAS W. PATTON,

Federal Public Defender for the

Central District of Illinois

s/ Colleen McNichols Ramais

COLLEEN McNICHOLS RAMAIS

Assistant Federal Public Defender

COUNSEL OF RECORD

300 W. Main St.

Urbana, IL 61801

Phone:

217-373-0666

E-mail:

thomas_patton@fd.org

colleen_ramais@fd.org

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