Petition for Writ of Certiorari — Tarresse Leonard, Petitioner v. United States
Supreme Court briefFeb 1, 2022
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No. 21-______
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------TARRESSE LEONARD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------MICHAEL HURSEY
MICHAEL HURSEY, P.A.
Attorney for Petitioner
5220 S. University Dr.
Ft. Lauderdale, FL 33328
(954) 252-7458
MHPALaw@bellsouth.net
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Whether the erroneous denial of a timely raised
motion to dismiss an indictment omitting an essential
element is structural error requiring dismissal or is instead subject to harmless-error review.
ii
INTERESTED PARTIES
There are no parties to the proceeding other than
those named in the caption.
RELATED PROCEEDINGS
United States v. Leonard, No. 1:18-cr-20743-RAR (S.D.
Fla.)
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
INTERESTED PARTIES .....................................
ii
RELATED PROCEEDINGS ................................
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES .................................
v
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL PROVISIONS INVOLVED ....
1
STATEMENT .......................................................
2
REASONS FOR GRANTING THE WRIT............
4
I.
The decision below contributes to a longstanding Circuit split ................................
5
A. The decision below also creates a Circuit split regarding whether Rehaifdefective indictments should be subject to the same standard of review as
Apprendi-defective indictments. .........
7
II.
The decision below is wrong. ..................... 10
III.
The Question Presented arises frequently
and will continue to arise. ......................... 16
CONCLUSION..................................................... 17
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX
United States Court of Appeals for the Eleventh
Circuit, Opinion, July 8, 2021 .......................... App. 1
United States District Court for the Southern
District of Florida, Judgment in a Criminal
Case, October 10, 2019 ................................... App. 25
United States District Court for the Southern
District of Florida, Order, October 9, 2019 .... App. 34
United States District Court for the Southern
District of Florida, Docket Orders ................. App. 36
United States Court of Appeals for the Eleventh
Circuit, Order Denying Petition for Rehearing, November 3, 2021.................................... App. 37
v
TABLE OF AUTHORITIES
Page
CASES
Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... passim
Arizona v. Fulminante, 499 U.S. 279 (1991) ..............11
Brown v. United States, 411 U.S. 223 (1973) .............12
Carella v. California, 491 U.S. 263 (1989)..................11
Clemons v. Mississippi, 494 U.S. 738 (1990) ..............11
Crane v. Kentucky, 476 U.S. 683 (1986) ................ 11, 12
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ............12
Gonzalez-Lopez, 548 U.S. 140, 148 (2006) ...... 11, 12, 13
Greer v. United States, 141 S. Ct. 2090 (2021).... 12, 13, 16
Hamling v. United States, 418 U.S. 87 (1974) ............10
Moore v. Illinois, 434 U.S. 220 (1977) .........................12
Neder v. United States, 527 U.S. 1 (1999) ............ 11, 12
Pope v. Illinois, 481 U.S. 497 (1987) ...........................11
Rehaif v. United States, 139 S. Ct. 2191 (2019) .... passim
Rushen v. Spain, 464 U.S. 114 (1983).........................12
Russell v. United States, 369 U.S. 749 (1962) ............10
Satterwhite v. Texas, 486 U.S. 259 (1988) ...................11
United States v. Allen, 406 F.3d 940 (8th Cir.
2005) ..........................................................................9
United States v. Corporan-Cuevas, 244 F.3d 199
(1st Cir. 2001) ............................................................7
United States v. Cotton, 535 U.S. 625 (2002) .............14
vi
TABLE OF AUTHORITIES—Continued
Page
United States v. Davila, 569 U.S. 597 (2013) ............12
United States v. Davis, 139 S. Ct. 2319 (2019)...........15
United States v. Dentler, 492 F.3d 306 (5th Cir.
2007) ..........................................................................6
United States v. Du Bo, 186 F.3d 1177 (9th Cir.
1999) ........................................................ 5, 6, 7, 8, 10
United States v. Games-Perez, 667 F.3d 1135
(10th Cir. 2012)........................................................15
United States v. Gonzalez-Lopez, 548 U.S. 140
(2006) ..................................................... 11, 12, 13, 14
United States v. Hasting, 461 U.S. 499 (1983) ...........12
United States v. Higgs, 353 F.3d 281 (4th Cir.
2003) ..................................................................... 9
United States v. Lee, 833 F.3d 56 (2nd Cir. 2016) ........9
United States v. Maez, 960 F.3d 949 (7th Cir.
2020) ........................................................................15
United States v. Martinez, 800 F.3d 1293 (11th
Cir. 2015) ......................................................... 4, 6, 14
United States v. Omer, 429 F.3d 835 (9th Cir.
2005) ..........................................................................9
United States v. Pickett, 353 F.3d 62 (D.C. Cir.
2004) .................................................................... 9, 14
United States v. Qazi, 975 F.3d 989 (9th Cir.
2020) ..........................................................................8
United States v. Rankin, 929 F.3d 399 (6th Cir.
2019) ..........................................................................6
vii
TABLE OF AUTHORITIES—Continued
Page
United States v. Resendiz-Ponce, 127 S. Ct. 782
(2007) .........................................................................5
United States v. Robinson, 367 F.3d 278 (5th Cir.
2004) ..........................................................................9
United States v. Salazar-Lopez, 506 F.3d 748
(9th Cir. 2007)................................................ 8, 10, 13
United States v. Sinks, 473 F.3d 1315 (10th Cir.
2007) ..........................................................................7
United States v. Stevenson, 832 F.3d 412 (3d Cir.
2016) ..........................................................................6
United States v. Trennell, 290 F.3d 881 (7th Cir.
2002) ..........................................................................9
United States v. Verrusio, 762 F.3d 1 (D.C. Cir.
2014) ...................................................................... 5, 6
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017).... 10, 11
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V .............................................. 1, 10
U.S. Const. amend. VI ............................................. 2, 10
STATUTES
18 U.S.C. § 922(g)(1) .....................................................2
18 U.S.C. § 924(a) ..........................................................3
18 U.S.C. § 924(c)(1)(A)(i) .............................................2
18 U.S.C. § 924(e)(1)......................................................2
viii
TABLE OF AUTHORITIES—Continued
Page
18 U.S.C. § 3742 ............................................................1
21 U.S.C. § 841(a)(1) .....................................................2
28 U.S.C. § 1254(1) ........................................................1
28 U.S.C. § 1291 ............................................................1
OTHER AUTHORITIES
Wayne LaFave, Jerold Israel, Nancy King, and
Orin Kerr, 5 Crim Procedure, § 19.3(b) (4th ed.
2021) .................................................................... 5, 14
1
PETITION FOR A WRIT OF CERTIORARI
Tarresse Leonard respectfully petitions the Supreme Court of the United States for a writ of certiorari to review the judgment of the United States Court
of Appeals for the Eleventh Circuit, entered in United
States v. Tarresse Leonard, 4 F. 4th 1134 (11th Cir.
2021) on July 8, 2021.
---------------------------------♦---------------------------------
OPINIONS BELOW
The opinion of the Eleventh U.S. Circuit Court of
Appeals is published at 4 F.4th 1134. A copy of the decision is contained in the Appendix (A-1).
---------------------------------♦---------------------------------
JURISDICTION
The decision of the Eleventh U.S. Circuit Court of
Appeals was entered on July 8, 2021. The Eleventh Circuit denied a petition for panel rehearing on November
3, 2021, and the mandate issued on November 15,
2021. This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Eleventh Circuit had jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
---------------------------------♦---------------------------------
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment provides: “No person shall
be . . . subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
2
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law.”
The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right 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.”
---------------------------------♦---------------------------------
STATEMENT
In May of 2019, a federal grand jury returned a
six-count superseding indictment against several defendants. The indictment charged Mr. Leonard with
possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1); possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(D) (Count 5); and possession of a firearm
in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) (Count 6). (DE 70).
Count 4 alleged that Mr. Leonard “possessed a firearm and ammunition in and affecting interstate and
foreign commerce, having previously been convicted of
a crime punishable by imprisonment for a term exceeding one year, and did so knowingly, in violation of
Title 18, United States Code, Sections 922(g)(1) and
924(e)(1).”
3
Two months after the superseding indictment was
returned, this Court decided Rehaif v. United States,
139 S. Ct. 2191 (2019), on June 21, 2019. Mr. Leonard’s
jury trial opened on June 24, 2019 (DE 120), and
ahead of trial, he adopted his co-defendant’s motion to
dismiss Count 4 of the superseding indictment based
on the just-published Rehaif decision. (DE 112). The
trial court denied the motion to dismiss. When the
three-day trial ended, the jury found Mr. Leonard
guilty as to Count 4 and not guilty on Counts 5 and 6.
App. 26. Ahead of sentencing, Mr. Leonard filed a renewed motion to dismiss, citing the placement of the
word “knowingly” at the end of the charge—modifying
only his possession of a firearm and not his felon status, and therefore omitting a required mens rea requirement. He also pointed out that, contrary to this
Court’s own precedents, the indictment contained no
reference to 18 U.S.C. § 924(a) and accordingly did not
incorporate the statutory mens rea requirement, making it insufficient under Rehaif. (DE 177).
The district court denied the renewed motion to
dismiss. App. 34. On October 10, 2019, it sentenced Mr.
Leonard to 240 months’ imprisonment followed by five
years of supervised release on Count 4. App. 26. Mr.
Leonard appealed.
Reviewing for harmless error, the Eleventh Circuit affirmed. App. 1. The panel acknowledged that
Mr. Leonard’s indictment did not “clearly set out” the
knowledge-of-status element as Rehaif now requires.
App. 1. But it reasoned that the record showed that Mr.
Leonard was a felon. App. 11. Reviewing for harmless
4
error, the panel therefore found that Mr. Leonard could
not meet his burden of proving reversal was required.
App. 14-15.
The panel reviewed for harmless error based on
the Eleventh Circuit’s earlier decision in United States
v. Sanchez, 269 F.3d at 1250, 1273 (11th Cir. 2001)—a
case that involved an omission of an Apprendi element,
not an omission of an essential element of the offense.
The panel decision contained no mention of the Eleventh Circuit’s more recent and more on-point decision
in United States v. Martinez, 800 F.3d 1293, 1294-1295
(11th Cir. 2015), where the court had applied de novo
review and dismissed an indictment that omitted an
essential offense element.
The Eleventh Circuit denied Mr. Leonard’s petition for panel rehearing, Mr. Leonard filed a timely notice of appeal to this Court. App. 37.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE WRIT
The Court should grant certiorari. There is an entrenched Circuit split regarding the appropriate standard of review to apply to an elementally defective
indictment where the challenge is timely raised. There
has been a split on this question for over a decade. The
question presented arises frequently and is likely to
continue arising frequently, and this case is a good vehicle for this Court to answer this question.
5
I.
The decision below contributes to a longstanding Circuit split.
The federal courts of appeals have long disagreed
about the appropriate standard of review to apply to
an elementally defective indictment when the challenge is timely raised. This Court previously granted
certiorari to resolve this split, but then decided the
case on other grounds. See United States v. ResendizPonce, 127 S. Ct. 782 (2007). In Resendiz-Ponce, Justice
Scalia, the lone dissenter, was the only Justice who
needed reach the question that had divided the Circuits—and he clarified that he would find an elementally defective indictment to be structural error. See id.
at 117 (“I would find the error to be structural.”)
(Scalia, J., dissenting). This Court should grant certiorari to finally answer the question it kicked down the
road in Resendiz-Ponce. See Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr, 5 Crim Procedure,
§ 19.3(b) (4th ed. 2021) (“the conflict among the circuits
remains”).
On one side of the split are the D.C. Circuit and
the Ninth Circuit, which both dismiss indictments that
omit essential elements of the offense, provided the issue is timely raised. See United States v. Du Bo, 186
F.3d 1177, 1179-1181 (9th Cir. 1999) (en banc); United
States v. Verrusio, 762 F.3d 1, 11 (D.C. Cir. 2014).
In Du Bo, the Ninth Circuit held that “if properly
challenged prior to trial, an indictment’s complete
failure to recite an essential element of the charged
offense is not a minor or technical flaw subject to
6
harmless error analysis, but a fatal flaw requiring dismissal of the indictment.” 186 F.3d at 1179. The court
in Du Bo reasoned that “applying harmless error to a
timely challenge would make a pretrial motion charging the insufficiency of the indictment self-defeating,”
id. at 1180 n.3 (cleaned up), and also that imposing a
harmless-error standard “would allow a court to guess
as to what was in the minds of the grand jury at the
time they returned the indictment.” Id. at 1179.
In Verrusio, the D.C. Circuit applied de novo review to an indictment that allegedly omitted an essential offense element, but ultimately concluded that the
indictment there was not defective. See 762 F.3d at 13.
On the other side of the split are the Third, Fifth,
and Sixth Circuits, which have held that indictments
missing an essential element of the offense should be
reviewed for harmless error, even when the objection
is timely raised. See United States v. Stevenson, 832
F.3d 412, 427 (3d Cir. 2016); United States v. Dentler,
492 F.3d 306 (5th Cir. 2007); United States v. Rankin,
929 F.3d 399, 404 (6th Cir. 2019). The decision below
tentatively adds the Eleventh Circuit to this category—but also creates an intra-Circuit split given the
court’s earlier decision in Martinez. See Part III, infra.
See also Martinez, 800 F.3d at 1294-1295 (dismissing
elementally defective indictment without conducting
harmless-error analysis).
A third category of courts reviews elementally defective indictments for harmless error or plain error
when the issue is raised for the first time on appeal.
7
These courts have not spoken on the appropriate
standard when an issue is raised pretrial. The First
and Tenth Circuits are in this category. See United
States v. Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir.
2001) (reviewing for harmless error where omission of
essential element raised on appeal, after guilty plea);
United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir.
2007) (reviewing forfeited claim for plain error). And if
they spoke on that question, the result might be different—the D.C. Circuit also applies a harmless-error
standard when the omission is first raised on appeal,
see United States v. Jabr, 4 F.4th 97, 103 (D.C. Cir.
2021), and the Ninth Circuit has said that “untimely
challenges of an indictment are reviewed under a more
liberal standard.” Du Bo, 186 F.3d at 1180 n.3.
This Court should grant certiorari on the question
that has split the D.C. and Ninth Circuits from the
Third, Fifth, Sixth, and now Eleventh Circuits: the appropriate standard of review for elementally defective
indictments when the objection is timely raised.
A. The decision below also creates a Circuit split regarding whether Rehaifdefective indictments should be subject
to the same standard of review as
Apprendi-defective indictments.
The decision below creates another split on whether
Rehaif-defective indictments have the same standard
of review as Apprendi-defective indictments.
8
Until the decision below, the Ninth Circuit was the
only federal circuit to address a Rehaif error raised before trial, and it found that such errors are structural.
The Ninth Circuit so held, even while recognizing that
Du Bo—its en banc decision that first established the
automatic dismissal rule—may not sweep as broadly
as it once did.
In United States v. Qazi, 975 F.3d 989 (9th Cir.
2020), the Ninth Circuit found that a Rehaif error in
an indictment triggered Du Bo’s automatic-dismissal
rule. This is significant because the Ninth Circuit
had previously limited Du Bo’s reach by reviewing for
harmless error an indictment that omitted an Apprendi1 element, reasoning that Du Bo’s logical underpinnings did not carry over to the sentencing context.
See United States v. Salazar-Lopez, 506 F.3d 748 (9th
Cir. 2007) (also declining to apply Du Bo’s automatic
dismissal rule because Apprendi claim was raised
post-trial rather than pre-trial and defendant was only
seeking sentencing relief ).
The Ninth Circuit is not the only Circuit to hold
that a different standard applies when an indictment
is defective under Apprendi. The D.C. Circuit has also
stated an affirmative view that an indictment that
omits an essential offense element need not be subject
to the same standard of review as an indictment that
omits a sentencing factor under this Court’s decision
1
See Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact
that increases the maximum penalty must be charged in an indictment).
9
in Apprendi. See United States v. Pickett, 353 F.3d 62,
68 (D.C. Cir. 2004).
To this effect, five Circuits have reviewed Apprendidefective indictments for harmless error without considering whether the same standard would apply to an
indictment that omits an essential element of the
crime. See United States v. Higgs, 353 F.3d 281, 304307 (4th Cir. 2003); United States v. Allen, 406 F.3d
940, 943-945 (8th Cir. 2005); United States v. Robinson,
367 F.3d 278, 285-286 (5th Cir. 2004); United States v.
Trennell, 290 F.3d 881, 889-890 (7th Cir. 2002); United
States v. Lee, 833 F.3d 56, 70 (2nd Cir. 2016). And some
judges have lumped these cases into the same category
as those dealing with indictments that omit essential
elements, without ever considering there could be a difference. See, e.g., United States v. Omer, 429 F.3d 835,
841-842 (9th Cir. 2005) (Graber, J., dissenting from denial of en banc). Until the decision below, the Eleventh
Circuit was in this category. See United States v.
Sanchez, 269 F.3d at 1250, 1273 (11th Cir. 2001). This
confusion among the Circuits further illustrates the
need for this Court to grant certiorari.
The decision below contained no discussion of the
difference between “indictments defective for the omission of Apprendi factors” and those defective for the
omission “of essential elements.” Pickett, 353 F.3d at
68. It contained no analysis regarding the difference
between Rehaif errors raised pre-trial and those raised
post-trial, and no analysis regarding the difference between the sentencing context and the indictment context.
10
II.
The decision below is wrong.
This Court should grant certiorari because the
Eleventh Circuit’s decision is wrong. The Grand Jury
Clause of the Fifth Amendment mandates that every
offense element be charged in a federal indictment.
Hamling v. United States, 418 U.S. 87, 117 (1974). The
Eleventh Circuit’s opinion acknowledged that Mr. Leonard’s indictment did “not clearly set out” a required element. App. 1. The decision below erred, however, by
applying a harmless-error standard instead of treating
the indictment’s omission of an essential element as
structural error. This case presents a good vehicle for
the Court to establish that an indictment’s omission of
an essential offense element is structural error.
In this Court, “an error has been deemed structural if the effects of the error are simply too hard to
measure.” Weaver v. Massachusetts, 137 S. Ct. 1899,
1908 (2017). And that is eminently the case here:
“[T]he question of whether a grand jury might have indicted on an additional element [is] not amenable to
harmless error review.” Salazar-Lopez, 506 F.3d at
753. Applying harmless-error review in these circumstances “would allow a court to ‘guess as to what was
in the minds of the grand jury at the time they returned the indictment.’ ” Du Bo, 186 F.3d at 1179 (citing Russell v. United States, 369 U.S. 749, 770 (1962)).
This guessing would “deprive the defendant of a
basic protection that the grand jury was designed to
secure,” Russell, 369 U.S. at 770, resulting in “fundamental unfairness”—another indication of structural
11
error. See Weaver v. Massachusetts, 137 S. Ct. at 1908
(errors are structural if they result in fundamental
unfairness, but “can count as structural even if the error does not lead to fundamental unfairness in every
case”).
In determining whether an error is structural, this
Court has “divided constitutional errors into two classes.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148
(2006). The first is “trial error, because the errors occurred during presentation of the case to the jury and
their effect may be qualitatively assessed in the context of other evidence presented in order to determine
whether [they were] harmless beyond a reasonable
doubt.” Id. (emphasis added) (internal quotation marks
and citation omitted). And then there are “structural
defects,” which “defy analysis by harmless-error standards because they affect the framework within which
the trial proceeds.” Id. (internal quotation marks and
citation omitted).
Unlike errors deemed subject to harmless-error
review, an elementally defective indictment does not
concern an error that occurred “during the presentation of the case to the jury,” and could therefore be subject to harmless error review. Arizona v. Fulminante,
499 U.S. 279, 307 (1991). Cf. Neder v. United States, 527
U.S. 1 (1999) (jury instructions); Clemons v. Mississippi, 494 U.S. 738 (1990) (sentencing stage of capital
case); Satterwhite v. Texas, 486 U.S. 259 (1988) (sentencing stage of capital case); Carella v. California, 491
U.S. 263 (1989) (jury instruction); Pope v. Illinois, 481
U.S. 497 (1987) (jury instruction); Crane v. Kentucky,
12
476 U.S. 683 (1986) (erroneous exclusion of defendant’s
testimony); Delaware v. Van Arsdall, 475 U.S. 673
(1986) (restriction on defendant’s right to cross-examine witness); United States v. Hasting, 461 U.S. 499
(1983) (improper comment on defendant’s silence at
trial); Rushen v. Spain, 464 U.S. 114 (1983) (defendant’s right to be present at trial); Moore v. Illinois, 434
U.S. 220 (1977) (admission of evidence); Brown v.
United States, 411 U.S. 223 (1973) (admission of out-ofcourt statement); United States v. Davila, 569 U.S. 597
(2013) (plea discussions).
Given this line of cases, not surprisingly this Court
found in Greer v. United States, 141 S. Ct. 2090, 2100
(2021) that Rehaif errors that occur in jury instructions or at plea colloquies are not structural error. To
rule otherwise would have contravened its decision in
Neder, 527 U.S. at 710 (concerning failure to submit an
element to the jury). But that case presented a materially different question than the one presented here,
given the line this Court has drawn between “trial errors” and “structural defects.” See Gonzalez-Lopez, 548
U.S. 140, 148 (2006).
The Eleventh Circuit therefore erred in assuming
that the Court’s decision last year in Greer answers
the question presented by this case. The decision below
reasoned that “The Supreme Court has made clear
that a Rehaif omission . . . need not be structural.” App.
13. Yet all this Court clarified in Greer was that a Rehaif error that occurs during the trial or plea process is
not structural. That holding followed this Court’s
structural-error precedents. But holding that Rehaif
13
error in an indictment is not structural error contradicts the same precedents.
This error is apparent by the fact that the test
stated by the Court in Greer is impossible to apply at
the indictment stage. The Court in Greer held: “a Rehaif error is not a basis for plain-error relief unless the
defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a
felon.” Id. Presumably the same or a similar standard
applies to non-forfeited claims. But such a standard
would be impossible to apply at the indictment stage.
Imposing that test if the Rehaif error occurs in the indictment, rather than in jury instructions or at plea
colloquies, makes no sense.
Worse yet, imposing such a standard will discourage timely objections. In these scenarios, “subjecting
timely objections to harmless error analysis would destroy any incentive on the part of a defendant to object,
since objecting would indicate an awareness of the
missing element and hence the harmlessness of the
omission.” Salazar-Lopez, 506 F.3d at 753-754.
This Court should grant certiorari to correct these
errors and to establish a clear rule. Because it is impossible to discern what a grand jury would have
done had an indictment been elementally sufficient,
an elementally deficient indictment has “consequences
that are necessarily unquantifiable and indeterminate,” and thus “unquestionably qualifies as structural
error.” Gonzalez-Lopez, 548 U.S. at 149. A grand jury
14
decision to indict based on a defective indictment does
not “concern the conduct of the trial at all.” Id. “Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an
alternate universe.” Id.
The question presented by this case is also one left
unanswered by this Court’s decision in United States
v. Cotton, 535 U.S. 625 (2002), which held that forfeited
Apprendi claims are to be reviewed for plain error, but
“did not address the standard of review applicable
when a challenge to the pleading had been timely presented in the trial court.” Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr, 5 Crim Procedure,
§ 19.3(b) (4th ed. 2021). As commentators have observed, “[t]he application of the plain error standard to
an essential-elements defect not properly raised below
does not invariably require that a harmless error
standard, rather than an automatic reversal standard,
be applied to an essential-elements defect that was
properly raised and preserved for appellate review.” Id.
And, as discussed above, “the Supreme Court in Cotton
was dealing with an indictment defective for the omission of a sentencing factor under Apprendi [ ], not the
omission of an element as in the present case.” Pickett,
353 F.3d at 68. See Part I.A, supra.
The decision below was also at odds with the Eleventh Circuit’s own decision in United States v. Martinez, 800 F.3d at 1294-1295, where the court, on
remand from this Court, applied de novo review to an
elementally defective indictment. This further highlights the need for this Court to provide clarity.
15
Finally, if the decision below expressed doubt as to
whether the indictment was defective, that doubt was
misplaced. Mr. Leonard’s indictment did not list all the
elements of the offense. The indictment only alleged
that Mr. Leonard “possessed a firearm, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, and did so
knowingly.” By its plain language, the indictment did
not sufficiently allege knowledge of felon status. The
phrase “did so knowingly” modifies possession; it cannot be construed as also referring to knowledge of status. See United States v. Maez, 960 F.3d 949, 965-966
(7th Cir. 2020) (finding plain error where “knowingly”
came after the fact of the prior felony conviction and a
typical reader would not apply it to the earlier clause
set off by commas).
Moreover, the indictment failed to cite § 924(a)(2),
making it defective under Rehaif, 139 S. Ct. 2191. It is
clear from Rehaif that § 924(a)(2) and § 922(g) must be
read in tandem. The government’s failure to reference
§ 924(a)(2) in Mr. Leonard’s indictment indicates that
the grand jury did not consider the statutory mens rea
requirement. It also violated Mr. Leonard’s Sixth
Amendment right to notice, because the maximum
penalty and the acts that constitute the crime are unclear. See United States v. Davis, 139 S. Ct. 2319, 2333
(2019). This is because § 922(g) is insufficient as a
stand-alone charge: it has no penalty or listing of the
elements to convict. See United States v. Games-Perez,
667 F.3d 1135, 1142-1146 (10th Cir. 2012) (Gorsuch, J.,
concurring) (section 922(g) doesn’t send anyone to
16
prison for violating its terms; that job is left to
§ 924(a)(2)).
This Court should grant certiorari to correct these
errors.
III. The Question Presented arises frequently
and will continue to arise.
The time is ripe for this Court to weigh in on this
question, which has divided the Circuits for over a decade. Letting this question percolate longer will not
help, as everything that can be said on the matter has
been said. The case law contains many blurred distinctions—between Apprendi errors and essential-element
(Rehaif and related) errors; and between the difference
between errors timely raised ahead of trial and those
raised later in proceedings. The time for clarity is now.
This question arises frequently and is likely to continue arising frequently in the wake of this Court’s decisions in Rehaif, 139 S. Ct. 2191, and Greer, 141 S. Ct.
at 2100.
---------------------------------♦---------------------------------
17
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MICHAEL HURSEY
MICHAEL HURSEY, P.A.
Attorney for Petitioner
5220 S. University Dr.
Ft. Lauderdale, FL 33328
(954) 252-7458
MHPALaw@bellsouth.net
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