Petition for Writ of Certiorari — Thomas Marmolejos, Petitioner v. United States
Supreme Court briefFeb 8, 2023
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No.
22=6968
IN THE SUPREME COURT OF THE UNITED STATES
FILED
FEB 0 8 2023
JL
THOMAS MARMOLEJOS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
JL
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
JL
PETITION FOR WRIT OF CERTIORARI
JL
Thomas Marmolejos
Reg. No. 48376-054
FCI Otisville
P.O. Box 1000
Otisville, NY 10963
Petitioner--Pro se
■a
QUESTION PRESENTED FOR REVIEW
Can a section 924(c) and 924(j) charge that alleges multiple
predicates
stand when one or more of the predicates no longer
qualifies
as
instructed
the jury that the predicates constituted crimes of
a
crime
of
violence,
and
the
district
court
violence that can serve as predicates for violations of § 924(c)
and § 924(j), and there is no way of knowing whether the guilty
verdict was based on the legal error?
i
RELATED PROCEEDINGS
United States District Court (S.D.N.Y.):
United States v. Marmolejas, No. 99-cr-1048 (Sept. 19, 2002)
United States v. Marmoiejos, No. 05-cv-10693 (Jan. 15, 2021)
United States Court of Appeals (2d Cir.):
United States v. Marmolejas, No. 02-1577 (Oct. 27, 2004)
Marmolejos v. United States
**
IX
No. 21-426 (Nov. 10, 2022)
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED FOR REVIEW
i
RELATED PROCEEDINGS
ii
TABLE OF AUTHORITIES*
v
OPINIONS BELOW
1
JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
2
STATEMENT OF THE CASE
4
REASONS FOR GRANTING THE WRIT
8
ARGUMENT
10
I. MR. MARMOLEJOS'i CONVICTION OF COUNTS SIX AND SEVEN
CANNOT STAND BECAUSE THE JURY WAS ERRONEOUSLY
CHARGED THAT THE "CRIME OF VIOLENCE" ELEMENT WAS
MET IF MR. MARMOLEJOS USED AND CARRIED FIREARMS
DURING AND IN RELATION TO THE CONSPIRACY TO COMMIT
ROBBERY AND EXTORTION CHARGED IN COUNT ONE,
CONSPIRACY TO COMMIT MURDER FOR HIRE CHARGED IN
COUNT TWO, AND MURDER FOR HIRE CHARGED IN COUNT
THREE..................................................................................
10
A. The Conspiracy to Commit Robbery and Extortion,
Conspiracy
to
Commit Murder-for-Hire,
and
Murder-for-Hire Are No Longer Valid "Crimes of
Violence"................. *...................................................
10
1. Davis' Invalidation of § 924(c)(3)(B)'s
Residual Clause......................................................
10
2. The
Conspiracy
to
Commit Robbery and
Extortion, Conspiracy to Commit Murder-forHire, and Murder-for-Hire Are Not Valid
"Crimes of Violence" Under 18 U.S.C. §
924(c)(3)(A)'s Element Clause............................
12
B. Counts Six and Seven Must Be Vacated Because We
Cannot Know if the Verdict Was Based on the
Legal Error...................................................................
14
1. A Jury Verdict Must Be Reversed if it May
Have Been Based on Legal Error and There Is
No Way of Knowing the Basis the Jury Selected
15
iii
TABLE OF CONTENTS-Contimied
PAGE
2. The Jury's Verdict on Counts Six and Seven...
16
C. Mr. Marmolejos Was Harmed By The Erroneous Crime
of Violence Instruction..........................................
17
CONCLUSION
21
PROOF OF SERVICE
22
APPENDIX
iv
TABLE OF AUTHORITIES
PAGE(S)
CASES
Alleyne v. United States,
133 S. Ct. 2151 (2013)
7
Apprendi v. New Jersey,
530 U.S. 466..................
7
Griffen v. United States,
502 U.S. 46 (1991)..................
passim
Grzegorczyk v. United States,
No. 21-5967, 142 S.Ct. 2589.
213 L.Ed.2d 1128 (2022)
13
Johnson v. United States,
135 S. Ct. 2552 (2015)
11
Sessions v. Dimaya,
138 S. Ct 1204 (2018)
11, 12
United States v. Barrett,
937 F.3d 126 (2d Cir. 2019)
12
United States v. Davis,
139 S. Ct. 2319 (2019)....................
passim
United States v. Gomez,
210 F.Supp.2d 465 (S.D.N.Y. 2002)
14
United States v. Marmolejas.
112 F. App'x 779 (2004)..................
7
United States v. Pastore,
36 F.4th 423 (2d Cir. 2022)..........
13
United States v. Salmonese,
352 F.3d 608 (2d Cir. 2003)
9, 14, 20
Yates v. United States,
354 U.S. 298 (1957)
4, 15, 17
v
TABLE OF AUTHORITIES-Continued
PAGE(S)
CONSTITUTIONAL PROVISION
U.S. Const, amend. V
.passim
FEDERAL STATUTES
18 U.S-C. §2....................
5
18 U.S.C. §16..................
11
18 U.S.C. §922(k).........
5
18 U.S.C. §924................
passim
18 U.S.C. §1951.............
5
18 U.S.C. §1958.............
5, 7, 13
21 U.S.C. §846................
5
21 U.S.C. §848(e)(1)A)
5
1
2:8 U.S.C. §1254<1:)....
•*
28 U.S.C. §2255.............
1, 7, 8
vi
No.
IN THE SUPREME COURT OF THE UNITED STATES
*
THOMAS MARMOLEJOS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
JU
On Petition For Writ Of Certiorari
To The United States Court of Appeals
For The Second Circuit
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The summary order decision of the court of appeals denying
Mr. Marmolejos' 28 U.S.C. §2255 motion to vacate his convictions
for firearms under 18 U.S.C.
§§924(c) and (j) is available at
2022 U.S. App. LEXIS 31222. Appendix ("App.") la-5a. The decision
from the district court denying the §2255 motion is available at
2021 U.S. Dist. LEXIS 8374. App. 7a-18a.
JURISDICTION
The
summary
order
decision of
the court of
appeals was
entered on November 10, 2022. Rehearing was denied on December
19,
2022.
The jurisdiction of this Court is invoked under 28
U.S.C. §1254 and this petition is timely filed.
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Amendment V to the Constitution
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
18 U.S.C. § 924(c)
(1)(A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by
any other provision of law, any person who, during and
in relation to any crime of violence or drug
trafficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such
crime, possess a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime-(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished be sentenced to
a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced
to a term of imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of
a violation of this subsetion-(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assult weapon, the person
shall be sentenced to a term of imprisonment of not
less than 10 years; or
(ii) is a machinegun or a destructive device, or
is equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.
2
(C) In the case of a second or subsequent conviction
under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of not
less than 25 years; and
(ii) if the firearm involved is a machinegun or a
destructive device, or is equipped with a firearm
silencer or firearm muffler,
be sentenced to
imprisonment for life.
(D) Notwithstanding any other provision of law-(i) a court shall not place on probation any person
convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence or drug trafficking crime during
which the firearm was used, carried, or possessed.
(2) For purposes of this subsection the term "drug
trafficking crime" means any felony punishable under
the Controlled Substance Act (21 U.S.C. 801 et seq.),
the Controlled Substance Import and Export Act (21
U.S.C. 951 et seq.), or the
1
Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.).
(3) For purposes of this subsection the term "crime
of violence" means an offense that is a felony and-(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.
(4) For purposes of this subsection, the term
"brandish" means, with respect to a firearm, to display
all or part of the firearm, or otherwise make the
presence of the firearm known to another person, in
order to intimidate that person, regardless of whether
the firearm is directly visible to that person.
3
STATEMENT OF CASE
Title 18, United States Code, section 924(c)(1)(A) makes it
a crime to use or carry a firearm during and in relation to a
predicate offense—either a "drug trafficking crime" as defined
in §924(c)(2), or a "crime of violence" as defined in §924(c)(3).
18 U.S.C.
§924(c)(1)(A).
The same is required for conviction
under §924(j) (requiring that the death be caused "in the course
of a violation of subsection (c)"). In United States v. Davis,
139 S.
Ct.
2319 (2019),
this Court held that §924(c)(3)(B)'s
residual clause (definition of crime of violence) is void for
vagueness, in violation of the Fifth Amendment's Due Process. Id.
at 2336.
Thus,
§924(c)(3)(A)'s
"element clause"
is
the only
remaining valid definition of a crime of violence for purposes of
the firearms statute. As a result, conspiracy to commit robbery
and extortion, conspiracy to commit murder-for-hire, and murderfor-hire
are
not
valid
predicates
for
§924(c)
and § 924(j)-
Therefore, in order to convict a defendant for violation of any
of these
statutes, the Due Process Clauseof the Fifth Amendment
requires
the juryto find beyond a reasonable doubt
that the
firearm-related conduct was committed during and in relation to a
qualifying predicate ("crime of violence" or "drug trafficking
crime"). Where disjunctive theories of culpability are submitted
to
the jury,
one valid and the other invalid,
and the jury
returns a general verdict, the verdict must be set aside if it is
"impossible to tell which ground the jury selected." Yates vUnited States,
354 U.S.
298,
312
States, 502 U.S. 46, 56-59 (1991).
4
(1957);
Griffen v.
United
In November 2001, Superseding Indictment S3 99-Cr-1048 (DC)
(the "Indictment") was filed against Mr. Marmolejos and others in
10 counts,
eight of which charged Mr.
Marmolejos.
Count One
charged Mr.
Marmolejos with conspiracy to commit robbery and
extortion,
in violation of 18 U.S.C. §1951; Count Two charged
conspiracy to commit murder-for-hira, in violation of 18 U.S.C.
§1958;
Count
Three
charged
substantive
murder-for-hire,
in
violation of 18 U.S.C. §1958; Count Four charged conspiracy to
distribute and possess with intent to distribute one kilogram and
more of heroin,
in violation of 21 U.S.C.
§846;
Count Five
charged murder while engaged in a major drug conspiracy,
in
violation of 21 U.S.C. §848(e)(1)(A); Count Six charged using and
carrying
firearms
during
and
in
relation
to
the
crimes
of
violence and drug trafficking charged in Counts One through Five,
in violation of 18 U.S.C. §§924(c) and 2; Count Seven charged
using a firearm to commit a murder during and in relation to the
crimes of violence and drug trafficking charged in Counts One
through Five, in violation of 18 U.S.C. § § 924(j) and 2; Count
Eight charged possession of a firearm with an obliterated serial
number, in violation of 18 U.S.C. §§922(k) and 2.
Mr.
Marmolejos pled not guilty,
and his
trial began on
January 14, 2002. At trial, with respect to Count Six the jury
was instructed that in order to find Mr. Marmolejos guilty of
violating §924(c) the jurors first had to find that he committed
a
predicate
offense,
either a "crime of violence" or "drug
trafficking crime." Specifically the court instructed:
5
Count
Six
charges
both defendants
with
knowingly using and carrying firearms during
and in relation to the crimes charged in Counts
one through five. That is, Count Six charges
that . . . Thomas Marmolejos used and carried
firearms during and in relation to the
conspiracy to commit robbery and extortion
charged in Count One, the conspiracy to commit
murder-for-hira . . . charged in Count Two, the
murder-for-hira . . . charged in Count Three,
the narcotics conspiracy charged in Count Four,
The first element the government must prove
beyond a reasonable doubt is that the defendant
you are considering committed a crime of
violence or drug trafficking crime . . .
I instruct you that counts one through three
and five are crimes of violence, and that count
four is a drug trafficking crime . . .
App. 19a-21a, Jury Charge for Count Six, §924(c).
On February 1,
2002,
the jury returned a guilty verdict
against Mr. Marmolejos on all eight counts. In July 2002, the
district court vacated the guilty verdict on Count Fiva--murder
while engaged in a major drug conspiracy—because the jury's
guilty verdict on that count was inconsistent with its finding
with respect to Count Four that the government had failed to
prove that Mr. Marmolejos reasonably could have foreseen that the
conspiracy involved at least one kilogram of heroin. The jury's
general verdict, with respect to Count Six, read as follows:
Using and Carrying a Firearm During and In
Relation to a Crime of Violence and/or a
Narcotic Trafficking Crime
GUILTY X NOT GUILTY
App. 22a-24a, Special Verdict Form. The form did not ask, and the
jury did not indicate, which underlying offenses—conspiracy to
commit robbery and extortion, conspiracy to commit murder-forhire,
murder-for-hire,
or the narcotics conspiracy-predicated
6
the Count Six charge, although it described Count Six as charging
using and carrying a firearm during and in relation to a crime of
violence
"and/or"
a
narcotics
trafficking
crime.
Making
it
impossible to determine which crime or crimes served as the
predicate offense(s) for Mr. Marmolejos' §924(c) conviction.
On September 19,
2002,
the district court sentenced Mr.
Marmolejos to a term of life imprisonment on Counts Two, Three,'*'
and Seven (§924(j)), a concurrent term of 20 years on Counts One
and Four, and a concurrent term of 10 years on Count Eight, plus
a mandatory consecutive 10 years on Count Six
October 27, 2004,
(§924(c)).
On
the Second Circuit affirmed the judgment by
summary order. United States v. Marmolejas, 112 F. App'x 779 (2d
Cir. 2004).
In 2005, Mr. Marmolejos moved, pursuant to 28 U.S.C. §2255,
to
vacate,
set
aside,
or
correct
his
sentence,
arguing
ineffective assistance of counsel in connection with trial and
sentencing. On September 15, 2006, the district court denied the
motion. Mr. Marmolejos subsequently filed additional challenges
to his conviction and sentence, all of which were denied.
1
The life sentences on the murder-for-hire counts
Two and
Three, exceeds the maximum authorized by the jury's verdict. 18
U.S.C. §1958(a) provides a maximum penalty of 10 years; "if
personal injury results" increases the maximum to 20 years; and a
sentence of death or life "if death results." This Court has held
that any fact that increases statutory maximum must be found by
jury. Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 133 S. Ct. 2151 (2013)(same regarding any fact
triggering statutory minimum sentence). Because Mr. Marmolejos'
jury was not instructed to find, and did not find, that "death
resulted" from the commission of the murder-for-hire offenses,
its verdict convicted him of only a base §1958 offenses and
permitted sentences of only 10 years.
i
7
In June 2020,
the Second Circuit granted Mr. Marmolejos
leave to file a second or successive petition under §2255. In
that petition Mr. Marmolejos argued that, in light of this Court
decision in United States v. Davis, 139 S. Ct. 2319 (2019), his
conviction and sentence on Counts Six and Seven should be vacated
because
the
"residual
clause"
of
§924(c)
has
been declared
unconstitutionally vague and because all his predicate offenses,
with the exception of the narcotics conspiracy offense in Count
Four, no longer qualify as crimes of violence under the "elements
clause" of section 924(c), and the trial record does not provide
sufficient factual basis to conclude that Mr. Marmolejos firearms
convictions were based on the narcotics predicate, and thus, the
jury
may
have
relied
on
the
invalid
predicates
for
those
convictions. On January 15, 2021, the district court denied Mr.
Marmolejos' successive §2255 motion. App. 7a-18a. On November 10,
2022, the Second Circuit affirmed the district court order. App.
la-5a.
On
December
19,
2022,
the
Second Circuit denied the
petition for rehearing. App. 6a.
REASONS FOR GRANTING THE WRIT
Mr.
Marmolejos' convictions under 18 U.S.C.
§§924(c) and
924(j) are unconstitutional and cannot stand in light of this
Court's
decision in United States v. Davis,
(2019).
The indictment alleges
underlying
§924(c)
139 S. Ct. 2319
that there are three offenses
and § 924(j)
counts:
"crimes of violence,"
conspiracy to commit robbery and extortion, Count One; conspiracy
to commit murder-for-hire, Count Two; and murder-for-hire, Count
Three. The district court instructed the jury that the predicate
8
offenses charged in Counts One, Two, and Three constituted crimes
of violence. That instruction was plain error.
In light of Davis, the definition of "crime of violence" in
section 924(c)(3)(B) is void for vagueness in violation of the
Fifth Amendment’s Due Process. Davis, 139 S. Gt. at 2336. As a
result, an offense is now a e.rime of violence only if it falls
within the force claue, i.a», if it has "as an element the use,
attempted use, or threatened use of physical force." 18 U.S.C.
§924(c)(3)(A). Mr. Marmolejos’ predicate offenses, conspiracy to
commit robbery and extortion charged in Count One, conspiracy to
commit murder-for-hire charged in Count Two, and murdar-for-hire
charged in Count Three do not categorically require the use,
attempted use, or threatened use of physical force and do not
qualify
as
crimes
of violence under
the element clause of
§924(c)(3)(A). Because the jury returned a general verdict on the
§924 charges, the erroneous inclusion of the invalid predicates
affected Mr.
Marmolejos’
substantial rights,
and requires the
§924 convictions be vacated. Therefore, if, as hare, multiple
grounds for conviction are submitted to a jury and one or more
rest on "a mistake concerning the law," and if it is impossible
to determine which ground the jury selected, the conviction must
be vacated. Griffen v. United States, 502 U.S. 46, 56-59 (1991);
United States v. Salmonese, 352 F.3d 608, 624 (2d Cir. 2003).
Mr. Marmolejos respectfully urges that all aspects of the
lower court's decision are erroneous and at a variance with this
Court decisions as explained in the argument. This Court should
exercise its supervisor powers over the lower courts and issue
the writ.
9
ARGUMENT
I.
MR. MARMOLEJOS'i CONVICTION OF COUNTS SIX AND SEVEN CANNOT
STAND BECAUSE THE JURY WAS ERRONEOUSLY CHARGED THAT THE
"CRIME OF VIOLENCE" ELEMENT WAS MET IF MR. MARMOLE JOS USED
AND CARRIED FIREARMS DURING AND IN RELATION TO THE
CONSPIRACY TO COMMIT ROBBERY AND EXTORTION CHARGED IN COUNT
ONE, CONSPIRACY TO COMMIT MURDER FOR HIRE CHARGED IN COUNT
TWO, AND MURDER FOR HIRE CHARGED IN COUNT THREE
A.
The Conspiracy to Commit Robbery and Extortion,
Conspiracy to Commit Murder-for-Hire, and Murder-forHire Are No Longer Valid "Crimes of Violence"
Count One of the indictment charged Mr. Marmolejos with
conspiracy to commit robbery and extortion; Count Two charged
conspiracy to commit murder-for-hire; Count Three charged murderfor-hire; and Count Four charged a narcotics conspiracy. Counts
Six
and
Seven
charged
Mr.
Marmolejos
with
§924
violations
committed during and in relation to a "crime of violence" or
"drug trafficking crime" as alleged in Counts One, Two, Three,
and Four. The district court instructed the jury with respect to
Count
Six
and
Seven
that
conspiracy
to
commit robbery and
extortion, Count One; conspiracy to commit murder-for-hire, Count
Two; and murder-for-hire, Count Three are crimes of violence.
As discussed below, it was error for the district court to
charge the jury with respect to Counts Six and Seven that Counts
One,
Two,
and Three are crimes of violence for purposes of
§924(c) and §924(j).
1.
Davis'
Clause
Invalidation
of
§924(c)(3)(B)'s
Residual
Section 924(c) provides for a series of graduated, mandatory
consecutive sentences for using and carrying a firearm during and
in relation to a "crime of violence" or "drug trafficking crime."
18 U.S.C. §924(c)(l)(A). The term "crime of violence," in turn,
10
is defined as a felony offense that either "has as an element the
use, attempted use, or threatened use of physical force against
the person or property of another," §924(c)(3)(A) or "that by its
nature, involves a substantial risk that physical force against
the parson or property of another may be used in the course of
committing
the offense."
§924(c)(3)(B).
Subpart (A),
in this
Court's parlance, is the "elements clause"; (B) is the "residual
clause." Davis, 139 S. Ct. at 2324.
Section 924(j)(l) in turn is violated when a person, "in the
course of a violation of subsection (c), causes the death of a
parson through use of a firearm ... if the killing is a murder
(as
defined
in
section
1111)."
A
violation
of
§924(c)
is
therefore a prerequisite for violating §924(j).
In Davis, 139 S. Ct. 2319 (2019), this Court invalidated and
voided
for vagueness
2336.
In its opinion,
invalidated
two
§924(c)(3)(B)'s residual clause.
Id. at
this Court noted that it had already
statutes
"that
bear
more
than
a
passing
resemblance" to §924(c)'s residual clause. Davis, 139 S. Ct. at
2325. First, in Johnson v. United States, 135 S. Ct. 2552 (2015),
this Court struck down a similarly-worded clause of the Armed
Career Criminal Act (ACCA), as unconstitutionally vague.
Next, in Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018),
this Court held unconstitutional a similar clause in 18 U.S.C.
§16's definition of a crime of violence.
Following these decisions,
and affirming that,
"[ijn our
constitutional order, a vague law is no law at all," this Court
ruled that §924(c)(3)(B)'s residual clause is unconstitutionally
11
vague.
Davis,
139 S. Ct. at 2324.
In the Court's words,
the
clause "provides no reliable way to determine which offenses
qualify as crimes of violence." Id. As part of its ruling, this
Court also rejected the government's argument that it could avoid
invalidating
this
clause
by
abandoning
this
Court's
long
standing "categorical" approach and examining the facts of an
underlying predicate offense to determine if it is "violent." See
id.
at 2327.
Instead,
this Court affirmed that courts should
continue to use the categorical approach to decide if an offense
qualifies as a crime of violence for purposes of §924(c). See id.
at 2328-36.
2.
The Conspiracy to Commit Robbery and Extortion,
Conspiracy to Commit Murder-for-Hire, and Murderfor-Hire Are Not Valid "Crimes of Violence" Under
18 U.S.C. §924(c)(3)(A)'s Element Clause
Because
the
residual
clause
unconstitutionally vague," Davis,
at
"§924(c)(3)(B)
is
139 S. Ct. at 2336, for an
offense to qualify as a "crime of violence" it must fit §924(c)'s
element clause, meaning if must have "as an element the use
attempted use, or threatened use of physical force against the
person
or
property
of
another.
18
U.S.C.
§924(c)(3)(A).
A
conspiracy can never fall within §924(c)(3)(A)'s "element clause"
because
a
"conspiracy's
elements
are
met
as
soon
as
the
participants have made an agreement." Sessions v. Dimaya, 138 S.
Ct. 1204, 1219 (2018). In light of this Court decision in Davis,
the
Second Circuit has
subsequently held
that conspiracy
to
commit robbery and extortion and conspiracy to commit murder-forhire are no longer valid "crimes of violence" predicates for
§924. See United States v. Barrett, 937 F„3d 126, 127-28 (2d Cir.
12
2019); United States v. Pas-tore, 36 F.4th 423, 428-29 (2d Cir.
2022).
Further,
the government concedes that Mr.
Marmolejos
substantive murder-for-hire conviction cannot serve as a valid
§924 predicate because the jury was not asked to find that the
offense resulted in personal injury or death. See Brief for the
United States,
No.
21-426 at 32.;
see also, e.g., Brief for
United States in Grzegorczyk v. United States, No. 21-5967, 142
S. Ct. 2589, 213 L.Ed.2d 1128 (2022)(Government conceding that,
after Davis, a federal murder-for-hire conviction was not a crime
of violence under §924(c)). The Solicitor General in that case
explained that the murder-for-hire, 18 U.S.C. §1958(a):
require[s] only that a defendant travel in, or
use a facility of, interstate commerce with the
requisite criminal intent; it does not require
that a defendant actually enter info a murderfor-hire agreement, that he carry out or
otherwise attempt to accomplish his criminal
intent, or that the contemplated murder be
attempted or accomplished by another person • • •
Travel in interstate commerce or use of a
facility of interstate commerce with the
requisite criminal intent need not, as a
categorical matter, involve the use, attempted
use, or threatened use of physical force under
Section 924(c)(3)(A).
Brief of United States at 9, Grzegorczyk, No. 21-5967, 142 S. Ct.
2580, 213 L.Ed.2d 1128.
Mr.
Marmolejos'
predicate offenses,
conspiracy to commit
robbery and extortion, conspiracy to commit murder-for-hire, and
murder-for-hire fell under §924(c)(3)'s residual clause, which is
now void vagueness, and §924(c)(3)A)'s element clause. Thus, Mr.
Marmolejos' §924 convictions and sentences violate due process of
law.
13
B.
Counts Six and Seven Must Be Vacated Because We Cannot
Know if the Verdict Was Based on the Legal Error
Reversal of Mr. Marmolejos' conviction of Counts Six and
Seven are required because there is no way of knowing whether the
guilty verdict was based on the legal error. Griffen v. United
States, 502 U.S. 46, 56-59 (1991); United States v. Salmonese,
352 F.3d 608, 624 (2d Cir. 2003).
The
jury
was
instructed
that
Mr.
convicted of Counts Six and Seven:
Marmolejos
could
be
if he used and carried a
firearm during and in relation to the crimes charged in Count
One-conspiracy
conspiracy
hire;
to
commit
robbery
and
to commit murder-for-hire;
extortion;
Count
Two-
Count Three-murder-for-
Count
Four-narcotics conspiracy; and Count Five-murder
while engaged in a drug conspiracy, 2 "crime of violence or drug
trafficking crime." The district court further told the jury, "I
instruct you that counts one through three and five are crimes of
violence, and that count four is a drug trafficking crime." App.
19a-21a.
There is no error in the instruction that the narcotics
conspiracy charged in Count Four, is a drug trafficking crime
that may serve as a predicate for prosecutions under §924(c) and
§924(j). But it was plain error to instruct the jury that it
could
use
conspiracy
the
conspiracy
to
commit
to commit murder-for-hire;
robbery
and
extortion;
and murder-for-hire as
"crimes of violence," and therefore as predicates for violations
2
The district court vacated Count Five on inconsistency grounds.
See United States v. Gomez, 210 F.Supp.2d 465,479 (S.D.N.Y.
2002).
14
of §924(c) and §924(j), absent findings necessary to render the
predicates
as
crimes
of
violence
within
the
meaning
of
§924(c)(3)(A)'s element clause.
The
verdict
form did not require
the jury
to
indicate
whether its finding of guilty on Counts Six and Seven were based
on the conspiracy to commit robbery and extortion predicate, the
conspiracy to commit murder-for-hire predicate, the murder-forhire predicate the drug trafficking predicate, or all. App. at
24a.
Because the jury instructions and verdict form allowed the
jury
to
convict based on this legal error,
and because the
verdict form does not indicate whether the legal error was in
fact the basis for the convictions,
the convictions must be
vacated.
1.
A Jury Verdict Must Be Reversed if it May Have Been
Based on Legal Error and There Is No Hay of Knowing
the Basis the Jury Selected
A conviction must be vacated if it potentially rest on a
legally erroneous basis. In Yates v. United States, 354 U.S. 298
(1957),
this Court considered a general guilty verdict for a
twin-object conspiracy. One of the objects was unsupportable. Id.
at 304-11. This Court held that the general verdict must be set
aside if it "is supportable on one ground, but not on another,
and it is impossible to tell which ground the jury selected." Id.
at 312.
Yates*
holding
was
narrowed
by
this
Court decision in
Griffen to apply only in situations where there is legal error in
one of the bases of conviction. Griffen, 502 U.S. at 56. Under
15
Griffen, a conviction must ba affirmed on a sufficiency challenge
if there is sufficient evidence "with respect to any one of the
acts charged," but it must still be reversed if one of the
grounds submitted to the jury was "a mistake concerning the law"
and it is impossible to determine which ground the jury selected.
Id. at 56-58.
That is precisely what happened in Mr. Marmolejos' case.
2. The Jury's Verdict on Counts Six and Seven
The district court instructed the jury that the conspiracy
to
commit
robbery
and
extortion
charged
in
Count
One,
the
conspiracy to commit murder-for-hire charged in Count Two, and
the
murder-for-hire
charged
in
Count
Three,
are
"crimes
of
violence" for purposes of Counts Six and Sevan. The district
court therefore told the jury that it could find Mr. Marmolejos
guilty of Counts Six and Seven if he used and carried the firearm
during and in relation to either the conspiracy to commit robbery
and extortion charged in Count One,
the conspiracy to commit
murder-for-hire charged in Count Two, the murder-for-hire charged
in Count Three,
or the narcotics conspiracy charged in Count
Four. App. 19a-21a.
Three of the alternative options for conviction erroneously
assumed for the jury that the conspiracy to commit robbery and
extortion,
the conspiracy
to commit murder-for-hire,
and the
murder-for-hire were crimes of violence for purposes of §924(c)
and §924(j).
The
verdict
form did not require
the jury
to indicate
whether it based its conviction of Counts Six and Seven on the
16
conspiracy to commit robbery and extortion charged in Count One,
the conspiracy to commit murder-for-hirs charged in Count Two,
the murder-for-hire charged in Count Three, the drug conspiracy
charged
in
Count
Four,
or
all.
The
verdict
form makes
it
impossible to tell which of the four predicates the jury relied
upon.
Such uncertainty gives rise to the possibility that the jury
could have predicated its guilty verdict on the section 924(c)
and 924(j) charges by relying on any one one of the invalid
crimes of violence, but not the narcotic conspiracy.
Without being able to determine whether the judgment of
conviction was based on the legal error—the district court's
instruction to treat the conspiracy to commit robbery and
extortion charged in Count One, the conspiracy to commit murderfor-hire charged in Count Two, and the murder-for-hire charged in
Count
Three
as crimes
of violence as
a matter of
law--the
convictions on Counts Six (§924(c)) and Seven (§924(j)) must be
vacated. Yates, 354 U.S. at 312; Griffen, 502 U.S. at 56-57.
C.
Mr. Marmolejos Was Harmed By The Erroneous Crime of
Violence Instruction
Although the narcotics conspiracy charged in Count Four does
qualify as a predicate for purposes of §924(c) and §924(j), the
jury did not return a special verdict unanimously tying that
charge to the §924(c) and §924(j) convictions. The government
never argued that the narcotics conspiracy was the foundation of
the §924 charges and never alleged that Mr. Marmolejos was a drug
dealer, a money launderer, or otherwise a regular member of any
narcotics organization. Neither the evidence, trial record nor
17
the law permit a finding that the jury predicated the §924
charges upon the narcotics offense. It is impossible to conclude
that the inclusion of the invalid predicates was harmless and did
not affect Mr. Marmolejos' substantial rights.
As
demonstrated
at
trial,
Mr.
Marmolejos'
various
convictions stem from being part of a murder-for-hire team, hired
by the Reyes heroin organization solely to murder two persons,
Johan Pena-Perez ("Profesor") and Nilton Duran ("Barbita"). Juan
("Junior") Matos Reyes wanted the two man killed because they had
turned
against
the
organization
by
robbing
one
of
its own
apartments and taking one or two kilograms of heroin, between
$30,000 and $100,000 in cash, a beeper that the organization's
drug customers used to contact the organization and place heroin
orders, and for ruining his drug trafficking operation causing
the Reyes heroin organization to disband. App. 25a-37a, Trial
Transcript-Testimony of Robinson Reyes.
Prior to the disbandment of the Reyes heroin organization
Mr.
Marmolejos
organization
was
not
a
and was
not
involved in
member
or
participant
of
the
the organization drug
trafficking operation. It is just as clear that Mr. Marmolejos
did not have knowledge of the organization's heroin distribution
operations--the amounts, the drugs, the nature of the drugs, and
type of drugs. Junior Reyes' chief operatives in.the organization
were Andres Peralta, Robinson Reyes, Diego Mojica, Johan PenaPerez,
between
and Nilton Duran.
Reyes'
drug
Id. at 25a-28a. No other connection
operation
alleged, much less proved.
18
and
Mr.
Marmolejos
was
ever
The
Court
of
court's
order,
erroneously
determined
compensation
for
acceptance
of
Appeals
panel,
in
the
affirming
the district
that
Marmolejos I
murder
Mr.
established
his
involvement in the narcotics conspiracy which overlaps with the
evidence of his involvement in the Hobbs Act conspiracy, the
conspiracy to commit murdar-for-hire, and the murder-for-hire.
Therefore,
the evidence supporting those convictions was
inextricably
intertwined
with
the
evidence
supporting
the
narcotics conspiracy, But the record does not admit of such a
finding.
The only evidence presented by
the government with
respect to the compensation for the murder was the testimony of
Robinson Reyes, a member of the Reyes heroin organization, who
testified about the money. As this testimony indicates, there was
in fact no acceptance of compensation for the murder by Mr.
Marmolejos. App. 38a-40a. And, as noted by the panel, "Other than
Marmolejos' acceptance of compensation for the murder, there was
no
evidence
of
conspiracy." App.
his
further
at 4a.
Thus,
contact
with
the
narcotics
there is no evidence of Mr.
Marmolejos' involvement in the narcotics conspiracy to establish
support for purposes of §924 convictions. Therefore, evidence
supporting those convictions was not inextricably intertwined
with the evidence supporting the narcotics conspiracy conviction.
It
is
association
undisputed
that
Mr.
with
Reyes
heroin
the
Marmolejos
had
no
previous
organization
nor
was
he
involved in the organization's drug trafficking operation. Mr.
Marmolejos t first contact with the Reyes organization was on May
25, 1998, when the team he was part of was hired for the specific
19
purpose to commit a murder-for-hire, weeks after the robbery and
the disbandment of the Reyes heroin organization. App. at 37a
In charging
the jury with the
law it was to apply in
reaching its verdict on the §924 charges, the district court
specifically instructed the jury that: "As is made clear from the
indictment,
Count Six concerns 9-millimeter and 10-millimeter
firearms that were allegedly used and carried on or about May 26,
1998 in the Southern District of New York." App. at 20. The
district court's instruction evidence that the firearms were used
and carried during and in relation to the May 26, 1998 murder,
further demonstrating that Mr. Marmolejos'
924(j)
convictions
rested
on
the
section 924(c) and
murder-for-hire
offenses.
Nothing in the jury instructions suggest that the firearms were
used
and
carried
during
and
in
relation
to
the
narcotics
conspiracy.
Given the instructions and the evidence that was developed
at trial, the jury likely concluded that Mr. Marmolejos used and
carried a firearm during and in relation to the murder-for-hire
offenses,
but not
evidence
of
Mr.
the narcotics conspiracy.
Marmolejos
in
the
records
As
there is no
of
any
sort of
wrongdoing other than being involved in a murder-for-hire. It is
doubtful that the jury would have convicted Mr. Marmolejos of the
§924(c) and §924(j) counts if it had only been instructed on the
narcotics predicate. At minimum, it is impossible to say that the
legally erroneous inclusion of the conspiracy to commit robbery
and extortion, the conspiracy to commit murder-for-hire, and the
murder-for-hire as §924(c) and §924(j) predicates was harmless
20
beyond a reasonable doubt. That in turn requires that Count Six
and Seven be vacated. See Gri££en, 502 U.S. at 56-59; Salmonese,
352 F.3d at 264.
CONCLUSION
A writ of certiorari should be granted and this Court should
review and reverse the decision below, and the case remanded for
further proceeding in light of the position expressed herein.
RespectfuJJ^y'^submitL^d,
'Thomas Marmolejos
Reg. No. 48376-054
FCI'Otisville
P.0. Box 1000
Otisville, NY 10963
Petitioner-Pro se
February 28, 2023
21
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.