Petition for Writ of Certiorari — Roland Adams, aka Peter Brown, aka Harold Whiteker, Petitioner v. United States

Supreme Court briefAug 14, 2021

Ask Donna

What actually matters in this document.

Text

**1

sim.

No.

IN THE

Supreme Court of the United Stows

rriy

ROLAND ADAMS,

Supre

AUG 14 2021

office o

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARY

Roland Adams

9501 Misty River Way

Elk Grove, CA 95624

Tel. (916) 256-8551

Email: roland.adams4@yahoo.com

Pro Se Petitioner

m)G t 7 2BZt

iupsiS=F

■

~^fclerk

QUESTIONS PRESENTED.

1. Whether the district court lacked jurisdiction to enter judgement under 18

U.S.C § 1956(h), where Petitioner was not charged with nor engaged in

“financial transaction in criminal profit’ of $2.1 million, and whether

judgment contravene clearly established Supreme Court law and the Due

Process clause of the 5th and 14th Amendment.

2. Whether the waiver in the Plea Agreement bars Petitioner from

challenging the Court’s Jurisdiction to convict and sentence him for

violation of 18 U.S.C. 18 U.S.C. § 1956 (h) where the State is precluded

by Federal law and the United States Constitution from hailing Petitioner

into court on this charge.

3. Whether the waiver in the Plea Agreement bars Petitioner’s Challenge to

a VOID Judgment where the court exceeded its statutory authority and on

a charge the State cannot constitutionally prosecute.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

,vi

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Vll

STATEMENT OF CASE

SUMMARY OF III, CASE

REASONS FOR GRANTING THE WRIT

CLOSING ARGUMENT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A: Opinion of the United States Court of Appeals

APPENDIX B: Opinion of the United States District Court

APPENDIX C: United States Court of Appeals Order denying Rehearing

TABLE OF AUTHORITIES CITED

CASES

Arbaugh v. Y& H Corp., 546 U.S.500, 506 (2006)

5,„„10

Blackledge v. Perry, 417 U. S. 21 (1974)

Bradshaw v. Stumpf 545 U.S 175,

T47.T6m

Class v. United States, 583 U.S.___(2018)

Dunn v. US, 442 U.S 100 (1979)

16.

Ex parte Seidel, 39 S.W.3d 221, 225(Tx. Crim. App. 2001)

Gautt v. Lewis, 489 F.3d 993 (CA9 2007)

Haynes v. United States, 390 U.S. 85 (1968),

Hill v. Lockhart, 474 U.S 52 (1985)

Holder v. Scott, 396 S.W.2d 906,

Menna v. New York, 423 U.S 61 (1975)

9,11,..13,..18

Old Wayne Mut. L. Assoc, v. McDonough, 204 U. S. 8, 27 S. Ct. 236 (1907)

People v. One 1941 Chrysler Sedan, (1947) 81 Cal. App. 2d 18, 21-22

10.

Stirone v. United States, 361 U.S 212 (1960)

Strickland v. Washington, 466 U.S 694 (1984)

16.

Tollett v. Henderson, 411 U. S. 258 -267

United States v. Broce, 488 U.S. 563, 575 (1989)

6,..8,..9,.18

United States v. Costanzo, No. 18-10291 (9th Cir. 2020)

11.

United States v. Davis, 428 F.3d 802, 805 (CA9 2005)

United States v. Minore, 292 F.3d at 1115 (CA9 2002)

..15

US v. Alferahin, 433 F.3d 1148 (CA9 2006)

U.S V. Bhagat, 436 F.3d 1140 (CA9 2006)

U.Sv. Cotton, 535 U.S 625, 630 (2002)

5....10

U.Sv.DuUBo, 186 F.3d 1177, 1180 (CA9 1999)

8,..11

U.Sv. Karaouni, 379 F.3d 1139 (CA9 2004)

8..11

U.S v. Martin, 526 F.3d 926 (CA6 2008)

U.S v. Pheaster^544 F.2d 353, 369 (CA9 1976)

U.Sv. Santos, 128 S. Ct. 2020(2008)

3,6,9,11,2,18

Valley v. Northern Fire & Marines Ins. Co, 254 U.S. 348, 41 S. Ct. 116 (1920)

Willianson v. Berry, 8 HOW. 945, 540 12 L. Ed. 1170, 1189 (1850)

STATUTES AND RULES

18U.S.C §371.................

1,-5

18U.S.C. §1956 (h)........

.......1,..3,..4,..5,..6,..7,..9,..12,..13,..15,...17,..18

18U.S.C. §3231 ............

28 U.S.C § 1254(1).........

Fed. Rules Civ. Proc., Rule 60(b)(4),

Fed.R.Crim.P.l 1,.............................

Fed.R.Crim.P. 11 (b)(1).....................

14,.15

Fed.R.Crim.P. 32

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

Rule 28j .................

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARY

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

This case is from a Federal Court.

The Opinion of the United States Court of Appeals appears at Appendix A to

the Petition and is unpublished.

The Opinion of the United States District Court of appears at Appendix B to

the Petition and is unpublished

JURISDICTION

The date which the United States Court of Appeals decided my case was

March 2,2021.

A timely Petition for Rehearing was denied by the United States Court of

Appeals on May 26, 2021, and a copy of the Order denying Rehearing appears in

Appendix C

The Jurisdiction of the U.S Supreme Court is invoked under 28 U.S.C §

1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONSINVOLVED

United States Constitutional Amendment Article III, Section 2

The Fifth Amendment to the United States Constitution

The Sixth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution

STATEMENT OF CASE

On June 17, 2002, Petitioner was arrested and charged in a ten counts

indictment. (Doc.5, 6/20/02). The indictment contained no “loss amount”.

“victims” or “co-conspirators” nor charged any “financial transaction in criminal

pro fits".

Petitioner pled guilty as charged to Count 1 charging conspiracy to commit

an offense in violation of 18 U.S.C §371, and Count 7 charging conspiracy to

commit money laundering in violation of 18 U.S.C. § 1956 (h). The Plea contract

contained no “loss amount' Count 1 or any “financial transaction in criminal

profit' in Count 7, but provided for “Restitution" to be later determined by the

Probation Officer. The Plea provided for criminal forfeiture trial by the court as to

Counts 9 and 10.

At the Taking of Plea Colloquy, Petitioner DID NOT ADMIT to engaging

in “financial transactions in criminal profit” of $2.1 million in Count 7. The

Government promised to prove actual losses to the alleged victims in the event of a

trial stating, “The government would call victims to testify, presenting actual

losses in excess of two point one million dollars

(Doc.67, pg. 23, 8/18/03).

At the September 22, 2003, criminal forfeiture trial on Counts 9 and 10, the

Government failed to call any “victims” to testify or present any evidence of actual

losses

the.

-Plea

Colloquy,

1 :

In October 2003, Petitioner moved to withdraw this Plea Agreement. At the

evidentiary hearing, his Federal Public Defender, testified he was constitutionally

ineffective for failure to advise Petitioner as to the “direct consequences of his

plea” amongst others, and stated that there was a “fair and just” reason to

withdraw the plea (Doc.212, pg. 10-11, 3/19/04). The court denied the motion but

also noted that Petitioner was not informed or aware of the “direct consequences

of his plea”. (Doc.212, pg 82, 3/19/04).

After Pre-Sentencing Investigation Report was prepared, Petitioner filed

Formal Blakeley/Ameline Objections to the $2.1 million “LOSS AMOUNT’

(Doc.89).

At sentencing the government claimed that “the Probation Officer

determined the total loss from the conspiracy to be $2.1 million” (Doc.104, pg. 2),

and that the $1.2 million “restitution” being sought by the government was for

“intended loss” (Doc. 122, pg 10, In 16-18).

The district court did not hold any evidentiary hearing to resolve this dispute

in the Probation Officer’s PSI Report as required by Fed.R.Crim.P. 32. Petitioner

again OBJECTED to both the “Loss Amount” amount at sentencing. (Doc.122, pg

26-31, 3/11/05). The court adopted the PSI Report “without change”.

Petitioner was sentenced on March 11, 2005, based on the disputed $2.1

million, to the statutory maximum of 60 months in Count 1. This disputed $2.1

million was considered as “financial transactions in criminal profit’ in Count 7

resulting in 97 months sentence after enhancement.

On direct appeal, the Ninth Circuit vacated the criminal forfeiture ORDER

from the trial by the judge on Counts 9 and 10 because the use of facts that pre

dated the indictment. The Court held that the district court never determined how

much, if any, Petitioner earned or profited from “the offense of conviction”.

Conviction and sentence were affirmed on both counts 1 and 7. See U. S v. Adams,

189 Fed.Appx. 600 (CA9 2006).

Upon remand, Petitioner’s second motion to withdraw the Plea agreement

was denied. The court entered an Amended Judgment on all counts on May 16,

2007.

While direct appeal was pending the United States Supreme Court in U.S v.

Santos, 128 S.Ct. 2020 (200 interpreted that the word “proceeds” in 18 U.S.C. 18

U.S.C. § 1956 (h), “applies only to transactions involving criminal profits, not

criminal receipts”, and that to establish this element the prosecution needs to show

“only that a single instance of specified unlawful activity was profitable and gave

rise to the [money] involved in a charged transactionId.

Petitioner notified the court of appeals of Santos in a Rule 28j letter on June

23, 2008. The Government did not address Petitioner’s Santos claims in its

Answering Brief. Petitioner further argued in his Reply Brief that Santos

represented an Intervening Change of law that warranted relief from his conviction

and sentence.

Petitioner was never charged with any “financial transaction in criminal

receipts or criminal profit'. Petitioner asked to withdraw his guilty plea because

he was not advised by the district court, as required by Fed.R.Crim.P.l 1, or by his

counsel of the requisite element of “proceeds” embodied in 18 U.S.C. § 1956 (h)

before pleading guilty.

On September 30, 2009, the Ninth Circuit denied Petitioner’s appeal . A

petition for rehearing and rehearing en banc was denied on December 07, 2009.

The Ninth Circuit issued its MANDATE on December 15, 2009.

Upon completion of his sentence, Petitioner filed a Motion to vacate his

conviction and Sentence on multiple grounds including under 18 U.S.C. § 1956 (h)

due to Court lack of jurisdiction. The District Court denied his Petition. The Ninth

Circuit denied his Appeal and his Petition for Rehearing En Banc

This petition for Writ of Certiorari is as result of the district court conviction

and judgment, and the Ninth Circuit denial of appeal, petition for rehearing and

■r-ehoaring-en-baoGr

SUMMARY OF CASE

Petitioner, Roland Adams, was charged with violation of 18 U.S.C § 371

without any “Loss Amount’ and 18 U.S.C. § 1956 (h) without any “Financial

Transaction in Criminal Profit’ and he pleaded guilty as charged. The Probation

Officer Pre-Sentencing Report determined the Loss Amount was $2.1 million

dollars. Petitioner Objected. The district Court adopted this $2.1 disputed “Loss

Amount” for sentencing under 18 U.S.C § 371, the court then adopted this Loss

Amount from the {PSR} as “Financial Transaction in Criminal Profit’ under 18

U.S.C. § 1956 (h).

In Postconviction proceedings, Petitioner moved to Vacate the Conviction

and Sentence of 18 U.S.C. § 1956 (h) on the grounds that the Court lacked

Jurisdiction to enter Judgement and that the conviction and Sentences was VOID.

The District Court denied the Petition on the grounds that the waiver in Plea

Agreement bars any challenge to the sentence and conviction. The Ninth Circuit

denied appeal and rehearing holding that the Plea Agreement was valid.

REASONS FOR GRANTING THE PETITION

REASON 1

THE DENIAL OF PETITION TO VACATE CONVICTION AND SENTENCE

FOR LACK JURISDICTION IS CONTRARY TO CLEARLY ESTABLISHED

SUPREME COURT LAW

LEGAL PRINCIPLES:

A party may raise jurisdictional objections at any time. Arbaugh v. Y & H

Corn., 546 U.S.500, 506 (2006), and defects “requires correction regardless of

whether error was raised in the district court”. U.S v. Cotton, 535 U.S 625, 630

(2002). Petitioner argued that the use of “Loss Amount” of $2.1 million from the

Pre-Sentencing Report as “financial transaction in criminal profit’ under 18

U.S.C. § 1956 (h)was contrary to the statute and clearly Supreme Court established

law in U.S v. Santos, 128 S.Ct. 2020(2008) and thus deprives federal court of

jurisdiction.

The Ninth Circuit decision that the Plea Agreement waiver provision bars

Jurisdictional challenge to a VOID judgment was an error and contravene clearly

established Supreme Court law. Guilty plea does not waive jurisdictional

challenges on a charge “which the State may not constitutionally prosecute.'’'’

United States v. Broce, 488 U.S. 563, 575 (1989).

REASON 2

SUPREME COURT DECISION IN SANTOS DEPRIVES THE DISTRICT

COURT JURISDICTION TO ENTER JUDGMENT

LEGAL PRINCIPLES:

In U.S v. Santos, 128 S. Ct. 2020 (2008), the Supreme Court held that the

federal money-laundering statute’s prohibition of transactions involving criminal

‘'‘'proceeds'’'’ was ambiguous as it relates to the meaning of °proceeds”. The

Supreme Court then applied the rule of lenity to interpret the statute in favor of the

defendant. Under this interpretation, the term “proceeds” in 18 U.S.C. § 1956 (h)

“applies only to transactions involving criminal profits, not criminal receipts”.

The Court held that to establish the ‘‘‘proceeds'’’’ element, the prosecution needs to

show “only that a single instant of specified unlawful activity was profitable and

gave rise to the money involved in a charged transaction”. Id.

PETITIONER’S CASE:

Petitioner claimed actual innocence of violation of 18 U.S.C. § 1956 (h)

because he was never charged with any “financial transactions in criminal profit'’

or criminal receipt of $2.1 million. The Respondent failed to address Santos in its

all the proceedings in the district Court or the Ninth Circuit because it is

undisputed that there was no actual “financial transaction in criminal profit’ of

$2.1 million. The only response was that Petitioner is barred by the waiver in the

Plea Agreement from ever challenging his Sentence and Conviction no matter how

unlawful or unconstitutional.

The Ninth Circuit clearly erred as a matter of law when it mistakenly

concluded that the waiver in the Plea Agreement was valid and prevented

Petitioner from challenging the district Court’s lack of jurisdiction to sentence him.

Sentencing appeal waiver provision does not waive all claims on appeal. The Ninth

Circuit have held in the past that certain constitutional and statutory claims survive

a sentencing appeal waiver in a plea agreement. “Jurisdiction” challenging the

convicting court is not waived by a guilty plea. U.S v. Pheasier, 544 F.2d 353, 369

(CA9 1976) (“Objection to defect in an indictment are never waived”). Guilty plea

does not waive his jurisdictional challenges on a charge “which the State may not

constitutionally prosecute” United States v. Broce, 488 U.S. 563, 575 (1989). See

also .US v. Du UBo, 186 F.3d 1177, 1180 (CA9 1999) (That a defendant admitted

U.Sv.

the existence of a missing element as part of a guilty plea, is “irrelevant”).

Karaouni, 379 F.3d 1139 (CA9 2004) (“It is fundamental that conduct which is not

penally prohibited become criminal simply because an actor believes his conduct

constituted a crime”).

In Class v. United States, 583 U.S.___(2018), the Supreme Court held that

“A guilty plea, by itself, does not bar a federal criminal defendant from challenging

the constitutionality of his statute of conviction on appeal. This holding flows

directly from the Court’s prior decisions. Fifty years ago, in Haynes v. United

States, the Court addressed a similar claim challenging the constitutionality of a

criminal statute. Justice Harlan’s opinion for the Court stated that the defendant’s

“plea of guilty did not, of course, waive his previous [constitutional] claim.” 390

U. S. 85, n. 2. That clear statement reflects an understanding of the nature of guilty

pleas that stretches, in broad outline, nearly 150 years. Subsequent decisions have

elaborated upon it. In Blackledee v. Perry, 417 U. S. 21, the Court recognized that

a guilty plea bar some “‘antecedent constitutional violations,”’ related to events

(such as grand jury proceedings) that “‘occu[r] prior to the entry of the guilty

plea.’” Id., at 30 (quoting Tollett v. Henderson, 411 U.S. 258 -267). However,

-where—1

^_4o—pro secute—the

defendant, a guilty plea cannot by itself bar it. 417 U. S., at 30. Likewise,

in Menna v. New York, 423 U. S. 61, the Court held that because the defendant’s

claim was that “the State may not convict [him] no matter how validly his factual

guilt is established,” his “guilty plea, therefore, [did] not bar the claim.” Id., at 63,

n. 2.

recent

years,

the

Court

has

reaffirmed

the Menna-

Blackledge doctrine’s basic teaching that “‘a plea of guilty to a charge does not

waive a claim that—judged on its face—the charge is one which the State may not

constitutionally

prosecute.’” United

States v. Broce,

488

U. S.

563

(quoting Menna, supra, at 63, n. 2). Pp. 3-7.

Petitioner neither expressly nor implicitly waived his constitutional claims

by pleading guilty. The claims at issue here do not contradict the terms of the

indictment or the written plea. Petitioner challenges the Government’s power to

criminalize his (admitted) conduct and thereby calls into question the Government

power to “constitutionally prosecute” him. (Quoting Menna, supra, at 61-62, n.

2). A guilty plea does not bar an appeal in these circumstances.

REASON 3

SUPREME COURT LAW IN SANTOS RENDERS JUDGMENT VOID AND

MANDATES CONVICTION AND SENTENCE TO BE VACATED.

A. LEGAL PRINCIPLES:

In U.S v. Santos. 128 S.Ct. 2020 (2008), the Court interpreted that the word

“proceeds” in 18 U.S.C. 18 U.S.C. § 1956 (h), “applies only to transactions

involving criminal profits, not criminal receipts”, and that to establish this

element the prosecution needs to show “only that a single instance of specified

unlawful activity was profitable and gave rise to the [money] involved in a

charged transaction”. In this case Petitioner was never “charged” with any

“transaction” of $2.1 million. “To successfully challenge the district court’s

jurisdiction, a defendant who enters a guilty plea must establish that the

indictmentfailed to charge the element of a federal offense”. U.S v. Martin, 526

F.3d 926 (CA6 2008). A party may raise jurisdictional objections at any time.

Arbaugh v. Y & H Cow., 546 U.S.500, 506 (2006), and defects “requires

correction regardless of whether error was raised in the district court”. U.S v.

Cotton, 535 U.S 625, 630 (2002). Thus, the fact that a judgment is entered

pursuant to stipulation does not insulate the judgment from attack on the ground

that it is VOID. People v. One 1941 Chrysler Sedan (1947) 81 Cal. App. 2d

18, 21-22 [183 P.2d 368].

The Panel’s opinion that the “waiver” in the Plea Agreement bars

Jurisdictional challenges in this instant case was error that must now be

reviewed and corrected. A party may raise jurisdictional objections at any time.

Arbaugh v. Y & H Coro.. 546 U.S.500, 506 (2006), and defects “requires

correction regardless of whether error was raised in the district court”. U.S v.

This Jurisdictional issue can never be waived as a matter of law as it goes to

the critical issue of challenging the “Government’s Power to Prosecute”

Petitioner. Respondent failed to show any evidence of ‘‘financial transaction in

criminal profit of $2.1 million from the Indictment or Plea agreement. The

fact is undisputed that Petitioner did not engage in any “Financial Transaction

in criminal profit of $2.1 million in this case. See; U.S v, Santos, 128 S.Ct.

2020 (2008) and United States v. Costanzo, No. 18-10291 (9th Cir. 2020).

Because all the statutory elements of 18 U.S.C. § 1956(h) missing from this

conviction, the Court lacked jurisdiction to impose sentence. US v. Du U Bo,

186 F.3d 1177, 1180 (CA9 1999) (That a defendant admitted the existence of a

missing element as part of a guilty plea, is “irrelevant). U.S v. KaraounU 379

F.3d 1139 (CA9 2004) (“It is fundamental that conduct which is not penally

prohibited become criminal simply because an actor believes his conduct

constituted a crime”). This conviction must be vacated by this Honorable Court

to prevent the most egregious miscarriage of justice pursuant to Supreme Court

holding in. Menna v. New York. 423 U.S 61 (1975) (“where the state is

precluded by the United States Constitution from hailing a defendant into court

on a charge, federal law requires that a conviction on that charge be set aside

even if conviction was entered pursuant to a counseled plea of guilty''1). Here

Petitioner challenged the very power of the State to prosecute him, therefore the

“waiver” in the Plea Agreement is irrelevant no matter its validity.

PETITIONER’S CASE:

The Ninth Circuit decision not to vacate Petitioner’s conviction and sentence

in light of

Santos

is contrary to law and U.S. Const. Amend, art. Ill, §2.

Petitioner was never charged with or convicted of any “financial transaction in

criminal profits”. Petitioner’s motion to withdraw his guilty plea, on the ground

that he was not advised by the district court as required by Fed.R.Crim.P.l 1(b)(1)

or by his counsel under the Sixth Amendment, of the requisite element of

“proceeds” embodied in 18 U.S.C. § 1956 (h) before pleading guilty was denied.

Santos is squarely on point and mandated the Ninth Circuit to vacate

Petitioner’s conviction and sentence. The money laundering conviction on Count 7

18 U.S.C. § 1956 (h) is particularly egregious and strikes at the core principal

elements of “proceeds”, “knowledge”', “concealment”, “intent” and “transaction”

embodied in 18 U.S.C. § 1956 (h). Because the Indictment contained no “financial

transaction in criminal profits” in Count 7, and Petitioner pleaded guilty as

charged, there is in fact no “actual case” of violation of 18 U.S.C. § 1956 (h)

under U.S. Const. Amend, art. Ill, §2 or any “offense” against the United States

under 18 U.S.C. §3231. The Ninth Circuit should have vacated conviction under

government failed to present evidence that “transaction” was designed to “conceal or disguise the nature, the

location, the source, the ownership or control of the funds”)

Supreme Court law in Menna v. New York. 423 U.S 61 (1975) (“where the state is

precluded by the United States Constitution from hailing a defendant into court on

a charge, federal law requires that a conviction on that charge be set aside even if

conviction was entered pursuant to a counseled plea ofguilty’'’).

The 14th amendment of the United States Constitution gives everyone a

right to due process of law, which includes judgments that comply with the rules

and case law. Petitioner’s conviction on Count 7 violated his 14th Amendment

rights. Petitioner’s conviction of violation of 18 U.S.C. § 1956(h) is VOID as a

matter of law under Santos.

A void judgment is a nullity from the beginning, and is attended by none of

the consequences of a valid judgment. It is entitled to no respect whatsoever

because it does not affect, impair, or create legal rights." Ex parte Seidel, 39

S.W.3d 221, 225 (Tex. Crim. App. 2001), Ex parte Spaulding, 687 S.W.2d at 745

(Teague, J., concurring).

The law is well-settled that a void order or judgment is void even before

reversal", Valiev v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116

(1920) "Courts are constituted by authority and they cannot go beyond that power

delegated to them. If they act beyond that authority, and certainly in contravention

of it, their judgements and orders are regarded as nullities; they are not voidable,

but- simply v-oid^-and-this-ev-en- prior -to- vevj&saL?—Williamson v. Berry, -8 HOW,

945, 540 12 L. Ed. 1170, 1189 (1850). It has also been held that, It is not necessary

to take any steps to have a void judgment reversed, vacated, or set aside, it may be

impeached in any action direct or, collateral.' Holder v. Scott, 396 S.W.2d 906,

(Tex. Civ. App., Texarkana, 1965, writ ref., n.r.e.). A court cannot confer

jurisdiction where none existed and cannot make a void proceeding valid. It is

clear and well-established law that a void order can be challenged in any court",

Old Wayne Mut. L. Assoc, v. McDonough, 204 U. S. 8, 27 S. Ct. 236 (1907).

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of

the subject matter, or of the parties, or acted in a manner inconsistent with due

process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A., U.S.C.A. Const.

REASON 4

THE CONVICTION IS CONSTITUTIONALLY INVALID BECAUSE

PETITIONER WAS NOT INFORMED OF THE CRIMES ELEMENT BEFORE

PLEADING GUILTY AND THUS DEPRIVING DISTRICT COURT

JURISDICTION TO ENTER JUDGMENT

LEGAL PRINCIPLES:

“A guilty plea operates as waiver of important rights, and is valid only if

done voluntarily, knowingly, and intelligently .... Where a defendant pleads guilty

to a crime without haven been informed of the crime’s element, this standard is not

met, and the plea is invalid”. Bradshaw v. Stumvf 545 U.S 175, 183 (2005). The

Court must “inform the defendant of, and determine that the defendant understands

the nature of the charge” before accepting a guilty plea. Fed.R.Crim.P. 11(b)(1);

United States v. Minore. 292 F.3d at 1115 (CA9 2002) (“the district court [must]

advise the defendant of the elements of the crime and ensure that the defendant

understands them")

The Ninth Circuit clearly erred when it divested itself of jurisdiction to

adjudicate this constitutional plain error pursuant to Fed.R.Crim.P. 52(b) and

especially in light of clearly established Supreme Court decision in Santos.

PETITIONER’S CASE:

The district court failed to comply with Rule 11(b)(1) by not advising

Petitioner of the elements of “Proceeds” or “Transactions” or “knowledge” or

“intent” embodied in 18 U.S.C. § 1956 (h) or that Petitioner understood the nature

of the charge in Count 7 before accepting the plea. There was no “money involved’

or any “charged transaction” in the indictment as required by the Statute under

Santos. The court’s failure to inform Petitioner of the elements of the offense

before accepting the plea constitutes “plain error” under Minore, 292 at 1117

(quoting Piano. 507 U.S at 732) and mandates vacation of the plea. “A defendant’s

due process rights are unquestionably implicated when his purported conviction

rest on anything less than a finding ofguilt as to all elements of the crime". U.S v.

Alferahin. 433 F.3d 1148 (CA9 2006).

Furthermore, Petitioner was denied his Sixth Amendment right to counsel

for not including the elements of the offense. Petitioner argued in light of Santos

that counsel’s performance fell below objective standard of reasonableness under

Strickland v. Washington, 466 U.S 694 (1984). Petitioner would never have

pleaded guilty but for counsel’s error which led to his detriment. Hill v. Lockhart

474 U.S 52 (1985). Petitioner was subjected an egregious miscarriage of justice

because counsel led him to plead guilty when he is in fact there was no legally

charged offense. This counsel’s conduct falls below the minimal legal standard of

constitutional justice.

This Honorable Court should grant the writ, vacate the judgment pursuant to

Bradshaw v. Stumpf, 545 U.S 175, 183 (2005).

REASON 5

THE USE OF $2.1 MILLION FROM THE PRE-SENTENCING REPORT

CONSTRUCTIVELY AMENDMENED THE INDICTMENT AND THUS

DEPRIVING THE COURT OF JURISDICTION TO SENTENCE PETITIONER

UNDER 18 U.S.C. § 1956 (hi

LEGAL PRINCIPLES:

Under the Fifth Amendment a defendant must stand trial only on charges

made in the indictment. U.S. Const. Amend. 5. Stirone v. United States, 361 U.S

212 (1960) (“a court cannot permit a defendant to be tried on charges not made in

the indictment''). Dunn v. U.S, 442 U.S 100 (1979) (“Few constitutional principles

are more firmly established than a defendant’s right to be heard on the specific

charge for which he is accused’'). Constructive amendment mandates per se

reversal. U.S v. Bhaeat, 436 F.3d 1140 (CA9 2006). The Sixth Amendment

guarantees the Right to Notice. Gautt v. Lewis, 489 F.3d 993 (CA9 2007). A plea

may be set aside on direct appeal.”. Fed.R.Crim.P. 11(e). United States v. Davis,

428 F.3d 802, 805 (CA9 2005).

The Indictment charges on Count 7 18 U.S.C. 18 U.S.C. § 1956 (h) did not

charge Petitioner with $2.1 million in “financial transaction in criminal profit’.

The conviction and sentence therefore violated Petitioner’s due process right. The

Ninth Circuit clearly erred when it held that this was barred by the waiver in the

Plea agreement. This constitutional claim is not waived by the Plea agreement.

The use of the Pre-Sentencing Report disputed “Loss Amount’ as “financial

transaction” representing the jury verdict violates Petitioner’s due process rights to

be held to answer only to the charges in the indictment.

Because Petitioner was

not charged with any “financial transaction in criminal profif1 of $2.1 million,

the district court lacked jurisdiction to enter judgment. Stirone, supra.

This Honorable Court should grant the writ, vacate conviction pursuant to

the Fifth and Sixth Amendments.

CLOSING ARGUMENT

The Ninth Circuit overlooked this Court’s interpretation of “proceeds” in

Santos, and the [undisputed fact] there was no “charged transaction in criminal

profit'’ of $2.1 million in Count 7 of the indictment as required by the Statute

under 18 U.S.C. § 1956 (h). The Ninth Circuit also misunderstood the law that,

Guilty plea does not waive jurisdictional challenges on a charge “which the State

may not constitutionally prosecute.'’'’ United States v. Broce, 488 U.S. 563, 575

(1989). The Ninth Circuit erred when it failed to set aside conviction pursuant to

Supreme Court law in Menna v. New York, 423 U.S61 (1975) (“where the state is

precluded by the United States Constitution from hailing a defendant into court on

a charge, federal law requires that a conviction on that charge be set aside even if

conviction was entered pursuant to a counseled plea of guilty’'’). The money

laundering alleged does not qualify as an ACTUAL OFFENSE under U.S. Const.

Amend, art. Ill, §2.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DATE

ROLAND ADAMS

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.