Opposition Brief — John Shields, Petitioner v. United States

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No. 21-5042

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JOHN SHIELDS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

PAUL T. CRANE

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether the court of appeals permissibly declined to

entertain

a

particular

appellate

argument,

challenging

the

sufficiency of the evidence underlying one of petitioner’s counts

of conviction, whose premise was directly contrary to the position

that petitioner had taken in his motion for judgment of acquittal

on the same count before the district court.

2.

Whether the court of appeals correctly determined that

sufficient

evidence

supported

petitioner’s

conviction

for

conspiring to commit money laundering, in violation of 18 U.S.C.

1956(h).

3.

Whether the court of appeals correctly determined that

the absence of any factual dispute showed that the district court

did not abuse its discretion in declining to hold an evidentiary

hearing

before

denying

petitioner’s

indictment on double jeopardy grounds.

(I)

motion

to

dismiss

the

ADDITIONAL RELATED PROCEEDINGS

United States District Court (W.D. Tenn.):

United States v. Shields, No. 17-cr-20103 (Dec. 3, 2019)

United States v. Shields, No. 17-cr-20151 (Dec. 3, 2019)

United States Court of Appeals (6th Cir.):

United States v. Shields, No. 19-6428 (Apr. 6, 2021)

United States v. Shields, No. 19-6429 (Apr. 6, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-5042

JOHN SHIELDS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-23a) is not

published in the Federal Reporter but is reprinted at 850 Fed.

Appx. 406.

The order of the district court (Pet. App. 24a-32a) is

unpublished.

JURISDICTION

The judgment of the court of appeals was entered on April 6,

2021.

The petition for a writ of certiorari was filed on June 29,

2021.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Western District of Tennessee, petitioner was convicted of

conspiring to distribute and possess with intent to distribute 100

kilograms or more of marijuana, in violation of 21 U.S.C. 841(a)(1)

and (b)(1)(B) (2012) and 21 U.S.C. 846; aiding and abetting the

distribution

and

possession

with

intent

to

distribute

of

marijuana, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2;

and

conspiring

to

18 U.S.C. 1956(h).

commit

money

laundering,

in

violation

of

Pet. App. 42a-43a.

Following a jury trial in the same district, petitioner was

convicted under a separate indictment of conspiring to distribute

and possess with intent to distribute one kilogram or more of

heroin, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A) (2012)

and 21 U.S.C. 846; conspiring to distribute and possess with intent

to distribute 500 grams or more of methamphetamine, in violation

of 21 U.S.C. 841(a)(1) and (b)(1)(A) (2012) and 21 U.S.C. 846;

aiding and abetting the distribution and possession with intent to

distribute of one kilogram or more of heroin, in violation of

21 U.S.C. 841(a)(1) and (b)(1)(A) (2012) and 18 U.S.C. 2; and

conspiring to commit money laundering, in violation of 18 U.S.C.

1956(h).

Pet. App. 34a-35a.

The district court imposed a total sentence of 240 months of

imprisonment in the two cases, to be followed by five years of

3

supervised release.

Pet. App. 36a-37a, 44a-45a.

appeals affirmed in a consolidated appeal.

1.

The court of

Id. at 1a-23a.

In 2013, law enforcement began investigating a street

gang in Tennessee known as the Memphis Peda Roll Mafia (PRM), which

operated as a subset of the California-based Grape Street Crips

gang.

Pet. App. 1a; see 17-cr-20151 Presentence Investigation

Report (PSR) ¶ 1.

The investigation revealed that petitioner was

a member of the Memphis PRM and that he had used connections made

through the gang to foster his own drug supply and distribution

arrangements in Tennessee.

Pet. App. 1a-2a.

The arrangements

involved two separate sets of suppliers and different kinds of

drugs.

First, from 2013 to 2017, petitioner and others distributed

more than 100 kilograms of marijuana supplied by Reginald Wright,

Jr., an associate of the Grape Street Crips.

cr-20151 PSR ¶ 25.

Pet. App. 2a; 17-

Wright mailed the marijuana from California to

Tennessee in packages sent to addresses associated with petitioner

and his confederates.

17-cr-20151 PSR ¶ 23

Petitioner paid for

the drugs by depositing cash into bank accounts specified by

Wright, who would then withdraw the funds in California.

Pet.

App. 2a; Gov’t C.A. Br. 4.

Second, from 2013 to 2015, petitioner and others distributed

24 kilograms of heroin and 10 kilograms of methamphetamine supplied

by Eric and Calvin Avendano -- two brothers associated with a

branch of the Grape Street Crips.

Pet. App. 1a-3a; see 17-cr-

4

20103 PSR ¶ 37; Gov’t C.A. Br. 42.

The scheme operated similarly

to petitioner’s separate arrangements with Wright.

The Avendano

brothers mailed the heroin and methamphetamine from California to

Tennessee,

and

petitioner

paid

for

the

drugs

by

making

cash

deposits into bank accounts controlled by the Avendanos.

Pet.

App. 2a-3a; Gov’t C.A. Br. 5.

2.

In May 2017, a grand jury in the Western District of

Tennessee returned two separate indictments against petitioner for

the two drug-distribution schemes.

Petitioner pleaded guilty to

the charges in one indictment and was convicted after a jury trial

on the other.

a.

In one indictment, the grand jury charged petitioner,

Wright, and 17 codefendants with various offenses stemming from

the

marijuana

scheme

involving

Wright.

As

relevant

here,

petitioner was charged with conspiring to distribute and possess

with intent to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(B) (2012) and 21 U.S.C.

846; aiding and abetting the distribution and possession with

intent to distribute of marijuana, in violation of 21 U.S.C.

841(a)(1)

and

laundering,

in

18

U.S.C.

2;

and

violation

of

18

Indictment 1-4, 8-11.

conspiring

U.S.C.

1956(h).

commit

money

17-cr-20151

In December 2018, petitioner pleaded guilty

to those charges without a plea agreement.

7.

to

17-cr-20151 PSR ¶¶ 6-

5

In the other indictment, the grand jury charged petitioner,

the Avendanos, and six codefendants with various offenses stemming

from

the

Avendanos.

heroin

and

methamphetamine

scheme

involving

the

Petitioner was charged with conspiring to distribute

and possess with intent to distribute one kilogram or more of

heroin, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A) (2012)

and 21 U.S.C. 846; conspiring to distribute and possess with intent

to distribute 500 grams or more of methamphetamine, in violation

of 21 U.S.C. 841(a)(1) and (b)(1)(A) (2012) and 21 U.S.C. 846;

aiding and abetting the distribution and possession with intent to

distribute of one kilogram or more of heroin, in violation of

21 U.S.C. 841(a)(1) and (b)(1)(A) (2012) and 18 U.S.C. 2; and

conspiring to commit money laundering, in violation of 18 U.S.C.

1956(h).

17-cr-20103 Second Superseding Indictment 1-5, 7, 9-10.

b.

After pleading guilty in the Wright case, petitioner

joined a codefendant’s motion to dismiss the Avendano indictment

on

double

jeopardy

grounds.

Pet.

App.

3a.

The

defendants

contended that the Wright conspiracy and the Avendano conspiracy

were the same conspiracy and that a conviction pursuant to the

Avendano indictment was therefore “barred by double jeopardy.”

17-cr-20103 D. Ct. Doc. 291, at 1 (Jan. 3, 2019); see Pet. App.

3a.

The district court denied petitioner’s motion to dismiss.

Pet. App. 24a-32a.

The court agreed with the government that,

“[d]espite some overlap in time, some common co-defendants and

6

similar distribution methods,” the indictments alleged separate

conspiracies

involving

different

drugs,

“different

drug

suppliers,” “different locations where the suppliers [got] their

drugs,” and “different money laundering techniques.”

27a; see id. at 28a-32a.

Id. at 26a-

And, observing that “the parties did not

disagree about the facts” but rather “only disagreed about the

legal implications of those facts,” id. at 26a n.7, the court also

denied petitioner’s request for an evidentiary hearing.

The court

noted that “the indictments and the parties’ briefs provided

sufficient evidence from which to find by the preponderance of the

evidence the existence of two separate conspiracies.”

Ibid.

Petitioner proceeded to trial on the Avendano indictment.

Pet. App. 3a.

Several of petitioner’s coconspirators testified

against him, explaining in detail how the Avendano conspiracy

operated -- including how petitioner transported and paid for the

heroin

and

methamphetamine.

Id.

at

3a-4a;

see

id.

at

4a

(describing incriminating text messages and calls made between

petitioner and the Avendanos); Gov’t C.A. Br. 9-12.

A forensic

auditor testified that his review of the pertinent bank accounts

“showed that, on dozens of occasions, an individual in Memphis had

deposited $9,000 into the accounts, and that same amount was

quickly withdrawn in California.” Pet. App. 4a. Bank surveillance

videos introduced at trial captured petitioner making large cash

deposits into the listed accounts.

Id. at 5a.

7

An inspector with the U.S. Postal Service testified that he

had identified over 200 suspicious packages while investigating

the Memphis PRM.

Pet. App. 5a.

One of those packages formed the

basis for the aiding-and-abetting count against petitioner.

In

September

2015,

the

Avendanos

placed

a

20-pound

Ibid.

package,

containing two kilograms of heroin sealed inside a metal box, in

the mail to an address provided by petitioner.

Br. 30-31.

Ibid.; Gov’t C.A.

Law-enforcement officers intercepted the package,

removed the heroin, and resealed the package for delivery.

App. 5a.

Pet.

On the morning of September 17, petitioner texted one of

his coconspirators, Jeremy Davis, to pick up the package, and

petitioner provided Davis with a tracking number.

Ibid.

Davis arrived to pick up the package, he was arrested.

When

Ibid.

The jury found petitioner guilty on all four counts.

Pet.

6a.

district

court

consolidated the Wright and Avendano cases for sentencing.

Ibid.

App.

With

the

parties’

consent,

the

The court sentenced petitioner to 95 months of imprisonment in the

Wright case and 240 months of imprisonment in the Avendano case,

to be served concurrently and to be followed by five years of

supervised release.

3.

Ibid.; see id. at 36a-37a, 44a-45a.

The court of appeals consolidated petitioner’s appeals

in the two cases and affirmed in an unpublished opinion.

Pet.

App. 1a-23a; see 19-6428 C.A. Order 1 (Apr. 13, 2020).

As relevant here, the court of appeals first determined that

the

district

court

had

not

abused

its

discretion

in

denying

8

petitioner’s request for an evidentiary hearing on his double

jeopardy claim.

Pet. App. 7a-8a.

The court of appeals observed

that the “‘general rule’ in this circuit is that ‘once a defendant

has put forth a non-frivolous claim of double jeopardy, the court

should hold an evidentiary hearing to resolve any factual disputes

that arise.’”

Id. at 7a (citation omitted).

The court explained,

however, that a defendant must first make “at least some initial

showing of contested facts” to be entitled to such a hearing, and

that

petitioner

omitted).

had

failed

to

do

so

here.

Ibid.

(citation

The court observed that, even on appeal, petitioner did

“not dispute any of the facts upon which the district court based

its decision.”

Id. at 8a.

The court of appeals also rejected petitioner’s challenge to

the sufficiency of the evidence supporting his money-laundering

conviction in the Avendano case.

Pet. App. 11a-18a.

The court

observed that “the evidence showed that [petitioner] deposited

income

from

sales

produced

by

the

previous

drug

shipment

to

reimburse the Avendanos and prompt the next shipment” of drugs.

Id. at 12a (emphasis omitted).

And the court explained that

because the money-laundering statute expressly defines “proceeds”

of illegal activity to “include the gross receipts” from such

activity, ibid. (quoting 18 U.S.C. 1956(c)(9)) (brackets omitted),

petitioner’s

assertion

that

specifically

that

deposited

the

the

irrelevant, ibid. (emphasis omitted).

evidence

funds

failed

were

to

show

“profits”

was

9

The

court

challenge

to

of

the

appeals

additionally

sufficiency

of

the

rejected

evidence

petitioner’s

supporting

his

conviction for aiding and abetting the distribution of heroin on

September 17, 2015.

Pet. App. 16a-18a.

Petitioner had argued on

appeal that he could not have aided and abetted Davis in possessing

heroin with intent to distribute it because Davis never possessed

the heroin that postal inspectors had seized, id. at 17a, and the

government had responded that a rational jury could have found

petitioner guilty based on the evidence that he aided and abetted

distribution of the heroin by the Avendanos, before it was seized,

Gov’t C.A. Br. 31.

The court of appeals, however, observed that

petitioner’s argument was contrary to the position he had taken in

moving for an acquittal in the district court, where he had

accepted that “‘the government had proven that Mr. Davis possessed

heroin with intent to distribute’ on September 17,” Pet. App. 17a

(brackets omitted), while asserting that he did not aid and abet

Davis.

The court of appeals stated that, “[a]lthough specificity

of grounds is not required” when moving for judgment of acquittal

under Federal Rule of Criminal Procedure 29, “where a Rule 29

motion is made on specific grounds, all grounds not specified are

waived.”

Ibid. (quoting United States v. Dandy, 998 F.2d 1344,

1357 (6th Cir. 1993), cert. denied, 510 U.S. 1163 (1994)).

declined to entertain petitioner’s appellate theory.

And it

10

ARGUMENT

Petitioner contends (Pet. 6-9) the court of appeals erred in

declining to entertain his sufficiency-of-the-evidence claim on

aiding and abetting, and that other courts of appeals are divided

on

the

appropriate

approach

when

a

defendant’s

specific

insufficiency arguments in the district court do not include one

that

he

raises

on

appeal.

This

case,

however,

involves

an

appellate argument directly contrary to the defendant’s position

in

district

court

and

thus

does

not

disagreement in the courts of appeals.

squarely

implicate

any

This case also would not

be a suitable vehicle for addressing petitioner’s first question

presented because he would not be entitled to relief even under

the standard of review he seeks.

Petitioner separately contends

(Pet. 9-15) that no reasonable jury could have convicted him of

conspiring to commit money laundering and that the district court

erred in declining to hold an evidentiary hearing before denying

his motion to dismiss the Avendano indictment on double jeopardy

grounds.

The court of appeals correctly rejected those factbound

challenges, and its unpublished decision does not conflict with

any decision of this Court or of any other court of appeals.

The

petition for a writ of certiorari should be denied.

1.

Petitioner contends (Pet. 6-9) that the court of appeals

erred in declining to entertain his sufficiency-of-the-evidence

challenge to his aiding-and-abetting conviction, asserting that

other courts of appeals apply plain-error review to sufficiency

11

arguments that were not among the specific ones the defendant made

in the district court.

But petitioner fails to identify any

circuit in which he would have been entitled to plain-error review

where the argument he sought to advance on appeal was not only new

but directly “opposite” (Pet. App. 17a) a position he had taken in

the

district

court.

In

any

event,

petitioner’s

sufficiency

challenge is meritless and would not warrant relief even if plainerror review applied.

a.

Federal Rule of Criminal Procedure 29 provides that a

defendant

may

move

for

a

judgment

of

acquittal

“[a]fter

the

government closes its evidence or after the close of all the

evidence” on the grounds that “the evidence is insufficient to

sustain a conviction.”

motions

need

not

Fed. R. Crim. P. 29(a).

specify

grounds

for

“While Rule 29

acquittal,

it

is

well

established that Rule 29 motions raising particular grounds fail

to preserve appellate review of other grounds not raised.”

United

States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021); see, e.g.,

United States v. Maynard, 984 F.3d 948, 961 (10th Cir. 2020)

(“Although specificity of grounds is not required in a Rule 29

motion, where a Rule 29 motion is made on specific grounds, all

grounds not specified are waived.”) (citation omitted); United

States v. Maez, 960 F.3d 949, 959 (7th Cir. 2020) (“A motion under

Rule

29

that

makes

specific

arguments

waives

issues

not

presented[.]”), cert. denied, Nos. 20-6129, 20-6226, and 20-6227

12

(June 21, 2021); United States v. Osborne, 886 F.3d 604, 618 (6th

Cir. 2018) (same).

The Sixth Circuit has declined to review such unpreserved

Rule 29 arguments, as it did in this case.

Pet. App. 17a; see,

e.g., Osborne, 886 F.3d at 618 (declining to review sufficiency

challenge where the defendant “made a motion for judgment of

acquittal on specified grounds, and those grounds did not include

the claim that is on appeal”); United States v. Dandy, 998 F.2d

1344, 1357 (6th Cir. 1993) (similar), cert. denied, 510 U.S. 1163

(1994). The court has explained that the “specification of grounds

in [a Rule 29] motion is an indication that counsel has evaluated

the record and has these particular reasons for his motion,” Pet.

App. 17a (quoting Dandy, 998 F.2d at 1357), thus warranting a

conclusion that the defendant has deliberately foregone any other

arguments that could have been raised but were not.

Cf. United

States v. Olano, 507 U.S. 725, 733 (1993) (distinguishing waiver

from “[m]ere forfeiture”). The Sixth Circuit will, however, review

new sufficiency arguments when doing so would avoid a “manifest

miscarriage of justice.”

United States v. Price, 134 F.3d 340,

350 (1998) (defendant waived Rule 29 arguments by failing to renew

his motion for acquittal at the close of evidence), cert. denied,

525 U.S. 845 (1998); see, e.g., United States v. Meade, 677 Fed.

Appx. 959, 975 (6th Cir. 2017) (applying miscarriage-of-justice

standard to unpreserved Rule 29 argument, where defendant properly

made a Rule 29 motion on other grounds); United States v. Watson,

13

620 Fed. Appx. 493, 504 (6th Cir. 2015) (same), cert. denied, 137

S. Ct. 332 (2016); United States v. Guadarrama, 591 Fed. Appx.

347, 351-352 (6th Cir. 2014) (same); cf. United States v. MartinezLopez, 747 Fed. Appx. 326, 331 (6th Cir. 2018) (same, although

stating that some “ambiguity” exists in circuit case law as to

applicable standard), cert. denied, 139 S. Ct. 1166 (2019).

Contrary to petitioner’s suggestion (Pet. 9), several other

courts of appeals likewise afford only limited review to Rule 29

arguments raised for the first time on appeal, if the defendant

relied on other specific grounds in the district court. See, e.g.,

United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012)

(“[W]hen a defendant chooses only to give specific grounds for a

Rule 29 motion, all grounds not specified are considered waived

and are reviewed under

* * *

[a] ‘clear and gross injustice’

standard.”) (citation omitted); United States v. Chong Lam, 677

F.3d 190, 200 & n.10 (4th Cir. 2012) (explaining that, “[w]hen a

defendant raises specific grounds in a Rule 29 motion, grounds

that are not specifically raised are waived on appeal,” but stating

that an exception may exist for any “‘manifest miscarriage of

justice’”) (citation omitted); United States v. McDowell, 498 F.3d

308, 312 (5th Cir. 2007) (noting that, when “a motion for judgment

of acquittal insufficiently preserves a claim, [appellate] review

is only for a manifest miscarriage of justice”).

Other courts of appeals have applied the plain-error standard

of review to Rule 29 arguments raised for the first time on appeal,

14

after the defendant relies on specific other grounds in a Rule 29

motion in the district court.

See United States v. Williams, 974

F.3d 320, 361 (3d Cir. 2020), petitions for cert. pending, No. 207796 (Apr. 15, 2021), No. 20-7889 (Apr. 21, 2021), and No. 20-7868

(Apr. 26, 2021), and cert. dismissed, 141 S. Ct. 2170 (2021);

United States v. Samuels, 874 F.3d 1032, 1036 (8th Cir. 2017);

United States v. Baston, 818 F.3d 651, 663-664 (11th Cir. 2016),

cert. denied, 137 S. Ct. 850 (2017); United States v. Hosseini,

679 F.3d 544, 550 (7th Cir.), cert. denied, 568 U.S. 1011 and 568

U.S. 1055 (2012); United States v. Goode, 483 F.3d 676, 681 (10th

Cir. 2007); United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir.

1998).

The Ninth Circuit has applied both approaches.

Compare

United States v. Graf, 610 F.3d 1148, 1166 (2010), with Lopez,

4 F.4th at 719 & n.19.

This

case,

however,

does

not

squarely

implicate

any

disagreement among the courts of appeals because it involves a

determination that petitioner’s argument was not only unpreserved,

but also directly contrary to the position that petitioner had

taken in moving for an acquittal in the district court.

On appeal,

petitioner argued that insufficient evidence existed to support

his conviction for aiding and abetting the distribution of heroin

by his associate, Davis, on the theory that Davis never came into

actual or constructive possession of the package of heroin that

petitioner tasked him with picking up.

C.A. Br. 26-28.

Pet. App. 17a; see Pet.

In the district court, however, petitioner had

15

taken “the opposite position” and had “explicitly stated that he

thought ‘the government had proven that Mr. Davis possessed heroin

with intent to distribute’ on September 17, 2015,” while asserting

that the evidence failed to show that petitioner had aided or

abetted Davis.

Pet. App. 17a (brackets omitted); see 17-cr-20103

Trial Tr. 28, 31 (July 22, 2019).

Petitioner

circumstances.

does

not

identify

any

case

involving

similar

Nor does petitioner identify any court of appeals

in which he would have been entitled to plain-error review of such

an argument.

Cf. United States v. Wells, 519 U.S. 482, 488 (1997)

(reciting the rule, applied in many courts of appeals, that “a

party may not complain on appeal of errors that he himself invited

or provoked the district court to commit”) (brackets, citation,

and ellipsis omitted).

In the absence of any clear conflict in

the specific circumstances of a complete switch like the one at

issue

here,

the

unpublished

decision

below

neither

warrants

further review nor would provide a suitable vehicle for addressing

the first question presented in the petition.

b.

This case would also be an unsuitable vehicle in which

to address petitioner’s first question because he has failed to

demonstrate that the result below would have been different had

the court of appeals reviewed his sufficiency claim for plain

error.

(1)

To establish reversible plain error, a defendant must show

error;

(2)

that

is

clear

or

obvious;

(3)

that

affected

substantial rights; and (4) that seriously affected the fairness,

16

integrity, or public reputation of judicial proceedings.

507 U.S. at 732; see Fed. R. Crim. P. 52(b).

Olano,

“Meeting all four

prongs” of the plain-error test “is difficult, ‘as it should be.’”

Puckett v. United States, 556 U.S. 129, 135 (2009) (citation

omitted).

Petitioner

cannot

meet

that

standard

here.

Petitioner

exclusively focuses (Pet. 8) on whether Davis -- as the purported

principal -- ever committed a complete offense by actually or

constructively possessing the heroin before it was seized by postal

inspectors.

But the charge here encompassed aiding and abetting

the distribution of heroin by the Avendanos as well.

See Gov’t

C.A. Br. 31 (explaining that petitioner’s “actions to aid and abet

the

Avendanos’

distribution

occurred

prior

to

the

postal

inspectors’ seizure of the package”); see also 17-cr-20103 Second

Superseding Indictment 7 (Count 6); 17-cr-20103 D. Ct. Doc. 471,

at 21-28 (July 24, 2019) (jury instructions).

As the government

explained below, the record contained ample evidence from which a

rational trier of fact could have found that petitioner aided and

abetted the Avendanos’ distribution of heroin.

In particular, the

evidence showed that petitioner provided the Avendanos with a

delivery address for shipping heroin from California to Tennessee

-- an address for Davis’s mother-in-law, which petitioner received

from Davis.

Gov’t C.A. Br. 30-31.

It also showed that petitioner

called Davis the morning of September 17, 2015, to tell him that

17

the package had arrived and to provide him with a tracking number.

Ibid.

2.

Petitioner

separately

contends

(Pet.

9-11)

that

the

court of appeals erred in rejecting his sufficiency challenge to

his

conviction

for

conspiring

to

commit

money

laundering.

According to petitioner, the court “fail[ed] to draw a distinction

between the ‘laundering transaction’ and the ‘criminal conduct

generating the proceeds to-be-laundered.’”

omitted).

Pet. 11 (citation

Petitioner misreads the decision below.

The money laundering provision at issue requires proof that

the defendant engaged in a financial transaction that “involve[d]

the

proceeds

1956(a)(1),

of

specified

unlawful

with

“proceeds”

defined

activity,”

to

include

receipts” of such activity, 18 U.S.C. 1956(c)(9).

18

U.S.C.

the

“gross

The court of

appeals observed that the evidence showed that the “proceeds” at

issue here were derived “from sales produced by the previous drug

shipment,” Pet. App. 12a, and petitioner does not argue otherwise.

Petitioner

deposited

those

proceeds

of

drug

sales

into

bank

accounts controlled by the Avendanos to repay them for “front[ing]”

the drugs and to prompt further shipments.

Ibid.

“plainly violate[s] the money laundering statute.”

Such a scheme

Id. at 12a-

13a; see United States v. Tolliver, 949 F.3d 244, 248 (6th Cir.)

(per curiam) (explaining that “a drug dealer using the proceeds of

a drug transaction to purchase additional drugs and consummate

18

future sales” is a “paradigmatic example” of money laundering)

(citation omitted), cert. denied, 140 S. Ct. 2838 (2020).

The distinction petitioner would draw (Pet. 10-11) between

the decision below and the Fifth Circuit’s decision in United

States v. Harris, 666 F.3d 905 (2012), is unsound.

In Harris, the

Fifth Circuit recognized that funds derived from prior drug sales

may constitute “proceeds” under the money-laundering statute.

id. at 907-910.

See

On the particular facts of that case, however,

the court concluded that the government had failed to establish

that the funds deposited by the defendant to pay for drugs were

themselves “proceeds of drug trafficking.”

Id. at 910; see United

States v. Gross, 661 Fed. Appx. 1007, 1022 (11th Cir. 2016) (per

curiam) (“While Harris stands for the proposition that a mere

payment in exchange for controlled substances cannot be considered

money laundering, the payment in Harris did not involve proceeds

because the drug transaction was not completed until after the

money

exchanged

hands.”).

Here,

in

contrast,

the

evidence

supported a jury finding that petitioner engaged in financial

transactions using funds “obtained from the sales of illegal

narcotics.”

3.

Pet. App. 12a.

Finally,

petitioner

contends

(Pet.

11-15)

that

the

district court abused its discretion when it declined to hold an

evidentiary hearing before denying his pre-trial motion to dismiss

the Avendano indictment on double jeopardy grounds.

The court of

19

appeals correctly determined otherwise, and its fact-dependent

determination does not warrant further review.

On appeal, petitioner did not address “the merits of his

double jeopardy claim,” but instead simply asserted that the

district court should have held an evidentiary hearing so that his

claim could “‘be further explored.’”

Pet. App. 7a-8a.

The court

of appeals explained, however, that to be entitled to such a

hearing under circuit law, petitioner was required to make “at

least

some

initial

(citation omitted).

showing

of

contested

facts.”

Petitioner failed to do so.

Id.

at

7a

The district

court had found that the parties “did not disagree about the

facts,” id. at 26a n.7, and petitioner did not challenge that

finding on appeal.

In addition, as the court of appeals observed,

petitioner did “not dispute any of the facts upon which the

district court based its decision.”

Id. at 8a.

And even now,

petitioner does not identify any contested facts in his petition

to this Court.

Cf. Pet. 14-15 (faulting the district court for

crediting the allegations in the indictment and the government’s

pre-trial briefing, without identifying any disputed fact).

Petitioner errs in arguing (Pet. 12-15) that the decision

below conflicts with decisions of the Third, Fifth, and Eleventh

Circuits.

According to petitioner, “the rule has developed in the

Third, Fifth and Eleventh Circuits that when a defendant advances

a non-frivolous claim that his guilty plea to a conspiracy count

operates

as

a

double

jeopardy

bar

to

a

prosecution

under

a

20

subsequent indictment for conspiracy, the burden shifts to the

government to prove by a preponderance of evidence that the counts

charge separate crimes.”

Pet. 13.

that precise approach here.

But the district court applied

See Pet. App. 27a-32a (articulating

the same standard and finding that “the government [h]as satisfied

its burden of proving by a preponderance of evidence the existence

of two separate conspiracies”).

No decision cited by petitioner

stands for the proposition that a district court is obligated to

hold an evidentiary hearing even when the parties do not dispute

the relevant facts, and common sense militates against imposing

such a requirement.

In United States v. Inmon, 568 F.2d 326 (1977), the Third

Circuit merely stated, in accord with the decision below, that an

evidentiary hearing must be held “if there is a factual dispute,”

id. at 331 (emphasis added), which was not the case here.

In

United States v. Bennefield, 874 F.2d 1503 (1989), the Eleventh

Circuit observed that an evidentiary hearing “may be required” if

materials

proffered

frivolous

double

by

the

jeopardy

government

claim

“fail

in

response

to

establish

to

a

non-

that

two

separate crimes are charged,” id. at 1505-1506, without suggesting

that a hearing would be required even in the absence of any

disputed facts.

And in United States v. Atkins, 834 F.2d 426

(1987), the Fifth Circuit concluded that a hearing was required to

explore disputed facts in that case, while stating that a defendant

generally “will not be allowed to present any evidence outside of

21

that contained in the indictments” when the indictments themselves

are

“sufficiently

detailed

and

specific,

and

rule

out

the

reasonable possibility of a double jeopardy violation,” id. at

442.*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

PAUL T. CRANE

Attorney

OCTOBER 2021

Petitioner errs in relying (Pet. 15 n.2) on Corral v.

United States, 562 Fed. Appx. 399 (6th Cir. 2014), which addressed

the circumstances in which an evidentiary hearing is required in

post-conviction proceedings under 28 U.S.C. 2255, see 562 Fed.

Appx. at 405. In any event, any intracircuit conflict would not

warrant this Court’s review. See Wisniewski v. United States, 353

U.S. 901, 902 (1957) (per curiam).

*

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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