Opposition Brief — John Shields, Petitioner v. United States
Supreme Court briefOct 8, 2021
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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.