Petition for Writ of Certiorari — Jamerl M. Wortham, Petitioner v. United States

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

___________

JAMERL M. WORTHAM,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________

On Petition for a Writ of Certiorari

To the United States Court of Appeals for the Eighth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

LAINE CARDARELLA

Federal Public Defender

Western District of Missouri

Stephen C. Moss

Appellate Unit Chief

1000 Walnut, Suite 600

Kansas City, Missouri 64106

Tel: (816) 471-8282

steve_moss@fd.org

QUESTION PRESENTED

I. Whether a defendant waives appellate review of his Sixth Amendment right to a

unanimous verdict when the government and defense counsel jointly submit a jury

instruction that does not require the jury to agree on an essential element of the

offense.

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TABLE OF CONTENTS

Question Presented......................................................................................................... i

I.

Whether a defendant waives appellate review of his Sixth Amendment

right to a unanimous verdict when the government and defense counsel

jointly submit a jury instruction that does not require the jury to agree on

an essential element of the offense ................................................................ i

Table of Contents ........................................................................................................... ii

Index to Appendix .......................................................................................................... ii

Table of Authorities ...................................................................................................... iii

Petition for Writ of Certiorari ....................................................................................... 1

Opinion Below ................................................................................................................ 1

Jurisdiction .................................................................................................................... 1

Constitutional Provision Invoked ................................................................................. 1

Statement of the Case ................................................................................................... 2

Reason for Granting the Writ ....................................................................................... 3

Conclusion and Prayer for Relief .................................................................................. 5

Appendix ........................................................................................................................ 6

INDEX TO APPENDIX

Appendix A - Judgment of the Eighth Circuit Court of Appeals

Appendix B – Order Denying Rehearing by the Panel

Appendix C – Order Denying Rehearing En Banc

Appendix D – Jury Instruction

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Table of Authorities

Cases

Ramos v. Louisiana, 140 S.Ct. 1390 (2020) .................................................................. 3

United States v. Barrow, 118 F.3d 482 (6th Cir. 1997) ................................................ 4

United States v. Eagle Elk, 820 F.2d 959 (8th Cir. 1987) ............................................ 3

United States v. Hugs, 384 F.3d 762 (9th Cir. 2004) .................................................... 4

United States v. Olano, 507 U.S. 725 (1993) ............................................................ 3, 5

United States v. Tillman, 765 F.3d 831 (8th Cir. 2014) ............................................... 2

United States v. Wortham, 990 F.3d 586 (8th Cir. 2021) ......................................... 1, 2

Statutes

18 U.S.C. § 924 ............................................................................................................... 2

21 U.S.C. § 841 ............................................................................................................... 2

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 2253 ............................................................................................................ 1

Rules

Sup.Ct. Rule 13.3 ........................................................................................................... 1

Sup. Ct. Rule 13.5 .......................................................................................................... 1

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Jamerl M. Wortham respectfully requests this Court to issue a

writ of certiorari to review the opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on March 3, 2021.

OPINION BELOW

The Eighth Circuit’s judgment affirming Mr. Wortham’s conviction and

sentence is reported at United States v. Wortham, 990 F.3d 586 (8th Cir. 2021), and

is included in the Appendix along with copies of the orders denying rehearing.

JURISDICTION

On March 3, 2021, the Court of Appeals affirmed Mr. Wortham’s appeal from

his conviction and sentence, and subsequently denied the timely petition for

rehearing by the panel on April 13, 2021, and rehearing en banc on May 12, 2021.

In accordance with Supreme Court Rule 13.3, this petition for writ of certiorari is

filed within ninety days of the date on which the Court of Appeals entered its final

order. Petitioner invokes the jurisdiction of this Court under 28 U.S.C. § 1254, 28

U.S.C. § 2253 and Sup. Ct. R. 13.3 and 13.5.

CONSTITUTIONAL PROVISION INVOKED

U.S. CONST. amend. VI.

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STATEMENT OF THE CASE

District Court Proceedings

Following a jury trial, Mr. Wortham was convicted of aiding and abetting

distribution of phencyclidine [PCP] in violation of 21 U.S.C. § 841(a)(1)(b)(1)(C) and

using a short-barreled shotgun in furtherance of a drug trafficking offense in violation

of 18 U.S.C. § 924(c)(1)(A), (B)(i). United States v. Wortham, 990 F.3d 586, 588 (8th

Cir. 2018). Prior to trial the parties jointly submitted an instruction for the PCP

distribution offense (Appendix D) that only required the jury to find that PCP was

distributed “to another.” Id. at 589. The evidence at trial, however, established that

PCP was involuntarily distributed by Mr. Wortham’s codefendant to two separate

victims. The district court also failed to instruct the jury that its verdict had to be

unanimous.

Appeal to the Eighth Circuit

On appeal before the Eighth Circuit, the court affirmed Mr. Wortham’s

conviction and sentence. The court declined to review whether the jury instruction

violated Mr. Wortham’s Sixth Amendment right to a unanimous verdict because

defense counsel and the government jointly proposed the instruction at issue. Id.

The court held that when a defendant specifically requests a particular instruction,

he cannot later assert on appeal absent an objection that the instruction was given

in error. Id. (citing United States v. Tillman, 765 F.3d 831, 836 (8th Cir. 2014)).

Because counsel for Mr. Wortham did not object to the tendered jury instruction

before the district court, the court declined to review his challenge to the

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instruction.

REASONS FOR GRANTING THE WRIT

The judgment of the Eighth Circuit Court of Appeals has decided an

important question of federal law in a way that significantly departs from the

criteria for waiver this Court enumerated in United States v. Olano, 507 U.S. 725

(1993).

Waiver is the “intentional relinquishment or abandonment of a known right.”

Id. at 733. Olano instructs that whether a particular right is waivable depends on

the right at stake, whether the defendant must participate personally in the waiver,

whether certain procedures are required for waiver, and whether the defendant’s

choice must be particularly informed or voluntary. Id. (citing 2 W. LaFave & J.

Israel, Criminal Procedure § 11.6 (1984)).

A review of this criteria demonstrates the Eighth Circuit’s holding below

cannot be squared with Olano. The right at stake, the Sixth Amendment right to a

unanimous jury verdict, is paramount. Just last year, the Supreme Court held that

the Sixth Amendment right to a unanimous verdict is “fundamental to the

American scheme of justice” and applies to the States under the Fourteenth

Amendment. Ramos v. Louisiana, 140 S.Ct. 1390, 1397 (2020). This Court’s holding

in Ramos follows other caselaw that holds the Sixth Amendment right to a

unanimous jury verdict is non-waivable. See, e.g. United States v. Eagle Elk, 820

F.2d 959, 961 (8th Cir. 1987).

Mr. Wortham did not personally participate in submitting the joint jury

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instructions, which were filed unilaterally by the government. The government filed

a “Notice of Instruction Conference” but that title is misleading to the extent it

implies an actual hearing or meeting that involved Mr. Wortham, who was detained

before trial. Mr. Wortham never attended the conference between the parties and

had no opportunity to participate in the process of submitting joint jury instructions

to the district court. This practice is commonplace as a defendant has no right to be

present at a proceeding that “involves only a conference or hearing on a question of

law.” Fed. R. Crim. P. 43(b)(3).

The Eighth Circuit prescribes no procedures that must be followed in order to

find a defendant has waived his Sixth Amendment right to jury unanimity. The

only requirement pertains to defendant’s counsel. Once defendant’s counsel (or the

government in the case of a jointly submitted instruction) submits a jury instruction

and fails to object to it at trial, the defendant waives the right to seek appellate

review of that jury instruction, whether the defendant knows it or not.

The Eighth Circuit does not even require that defendant’s counsel

understand or be aware of the issue being waived. But see United States v. Hugs,

384 F.3d 762, 766-67 (9th Cir. 2004) (declining to find waiver because record did not

establish defense counsel was aware of erroneous jury instruction); United States v.

Barrow, 118 F.3d 482, 491 (6th Cir. 1997) (declining to find waiver pertaining to

jointly submitted instructions because “government was as much at fault for

inviting the error as the defendant since the parties stipulated to the same

instructions”). The Eight Circuit’s “strict liability” approach to applying waiver to

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jointly submitting jury instructions is inconsistent with the criteria this Court

formulated in Olano.

Because the district court’s procedure for filing the joint jury instructions

pertained exclusively to the attorneys, the record here cannot show Mr. Wortham’s

waiver of his right to a unanimous verdict was particularly informed or voluntary.

Each Olano factor refutes a finding that Mr. Wortham waived his Sixth

Amendment right to a unanimous jury verdict. Based on Olano, this record cannot

establish Mr. Wortham intentionally relinquished or abandoned his Sixth

Amendment right to a unanimous jury verdict. Based on the importance of the right

at issue, this Court should review the lower court decision to rectify the Eighth

Circuit’s failure to adhere to Olano.

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, Mr. Wortham respectfully requests this Court

grant his petition for certiorari.

Respectfully submitted,

/s/Stephen C. Moss

STEPHEN C. MOSS

Appellate Unit Chief

Federal Public Defender’s Office

Western District of Missouri

1000 Walnut, Suite 600

Kansas City, Missouri 64106

steve_moss @fd.org

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APPENDIX

Appendix A - Judgment of the Eighth Circuit Court of Appeals

Appendix B – Order denying Rehearing by the Panel

Appendix C – Order denying Rehearing En Banc

Appendix D – Jury Instruction

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