Petition for Writ of Certiorari — Pablo Calderon, Petitioner v. United States

No 22-15 3

IN THE

Supreme Court of the Anited States

FILED

MAR 28 2993

OFFICE

SUPREME COU CLERK

PABLO CALDERON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

PABLO CALDERON

7 Old Parish Road

Darien, CT 06820

(203) 613-6748

sxalle@gmail.com

March 28, 2023

- Orme

a

QUESTION PRESENTED

Does a federal district court have habeas corpus jurisdiction when a substantive element of the criminal

charges was not found under the law mandated by federal statute?

ii

PARTIES TO THE PROCEEDING

Pablo Calderon is the petitioner here and was the

plaintiff-appellant below.

The United States is the respondent here and was

the appellee below.

iii

RELATED CASES

United States v. Lillemoe, et al., No. 3:15-CR-25

(JCH), U.S. District Court for the District of

Connecticut. Judgment entered June 14, 2017.

United States v. Calderon et al., No. 17-1956-cr,

United States Court of Appeals for the Second

Circuit. Judgment entered December 38, 2019.

Pablo Calderon v. United States, No. 3:21-CV-742

(JCH), U.S. District Court for the District of

Connecticut. Judgment entered June 27, 2022.

Pablo Calderon v. United States, No. 22-1427, United

States Court of Appeals for the Second Circuit.

Judgment entered November 30, 2022.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED..............cccecsssseeeeseeeeeeenenes i

PARTIES TO THE PROCEEDING ............:cccceeeeeeeee ll

RELATED CASE G . .... -sssscsssssepssecsosievacsoavesysansvsteassueees ii

TABLE OF AUTHORITIES. ...0.....cccccceecssseeeeesteeees vill

INTRODUCTION .............ccccsssceeseesceeeeeecesneeetseneeeeeeees 1

OPINIONS BELOW ............ ccisegassassucssseseszecsstenicasvaennes 5

JURISDICTION ........cccceceeesseeceseeeeesseeeneesneeeeeeeeeeeeneeanas 5

STATUTORY PROVISIONS INVOLVED ................. 5

STATEMENT OF THE CASE .........cceececeeeeeeeteeeeeeeees 7

A. Factual Background...............cceeccceseeseneneeeee 7

B. Indictment and Trial.......... ce eeeee eee eees 10

C. The Second Circuit’s Decision on

Ap pea levsissssscessvevsnsssscaacswsaccsvesvarcanneasauavuwess 11

D. The Decisions on the Habeas Motion....... 14

REASONS FOR GRANTING CERTIORARI ........... 16

I. PETITIONER IS ACTUALLY INNOCENT

UNDER UCC LAW AND THE FAcTs OF THE

CASE 0... eeeeeesesseceeceeeeseneeeessesneaneeeeesesseessesenseneeneeees 18

A. The Obligation to Honor the Letters

Of Credit 0.0... eccccccseseeseseeeeeeeeeeeeereeeeeteeees 19

B. The Interpretation of the UCP 600 is

a Matter of Law............ccccccseseeseeeeseseesseeeees 27

TABLE OF CONTENTS

(Continued)

II. THE SECOND CIRCUIT CoURT DECISION IN

A HISTORICAL CONTEXT ........ccccceccceccesccesceueceuvecs 32

CONCLUSION vecsuscasseswssursovevenmacecuscoesevounswvemecssern: 35

APPENDIX

Appendix A: Order, United States Court of

Appeals for the Second Circuit, Calderon

v. United States, No. 22-1427 (Nov. 30,

202.2) winounssannesincneamuvevenninvaecuoauccesisesasraes App. 1

Appendix B: Opinion, United States Court for

the District of Connecticut, Calderon v.

United States, No. 21-CV-724 (June 27,

2022) srcsnennscnnvsenwcsssrpucasmisnessssceucaasomaaeusssumascts App. 3

Appendix C: Opinion, United States Court of

Appeals for the Second Circuit, United

States v. Calderon et al., No. 17-1956 (L)

(Dec. 3, 2019)... eeeeeeceeeeesessssensrenereeeees App. 18

Appendix D: Opinion, United States Court for

the District of Connecticut, United States

v. Lillemoe et al., No. 15-CR-25 (Mar. 16,

YAO Wl) eee App. 66

Appendix E: 18 U.S.C. § 1848... App. 100

Appendix F: 18 U.S.C. § 1849 we eeeeeee App. 100

vi

TABLE OF CONTENTS

(Continued)

Appendix G: 28 U.S.C. § 1652.0... eeeeeeeee App.

Appendix H: Colorado Revised Statutes

§ 4-1-3038 (2006) ...ccsececseceseecssesecseeseseeteeeees App.

Appendix I: N.Y.U.C.C. (McKinney 2002)

So, 0s ene App.

Appendix J: Colorado Revised Statutes §§ 4-

5-108, 4-5-107, 4-5-108, 4-5-109, 4-5-111

and 4-5-116 (1996) 00.2... ceececeeceseeeeeeeneeeees App.

Appendix K: 7 C.F.R. § 1493 (1994), subsec-

tions 110 and 120. ... cccswssuswosrewensswaveessaneeses App.

Appendix L: Uniform Customs and Practice

for Documentary Credits Publication no.

600 (“UCP 600”), Articles 14 and 15........ App.

Appendix M: International Standard Banking

Practice for the Examination of Documents Publication No. 681, Excerpt of In-

troduction, Paragraphs 20 and 96............ App.

Appendix N: International Standard Banking

Practice for the Examination of Docu-

ments Publication No. 745, Section A6.... App.

101

101

103

103

112

114

116

118

vil

TABLE OF CONTENTS

(Continued)

Appendix O: Excerpt of Transcript of Trial

Proceedings, Day 17 (Nov. 1, 2016), United

States Court for the District of Connecticut, United States v. Lillemoe et al., No.

15-CR-25 (ICH)... cceccsssssseececceceeeeeeeeers App. 119

Vili

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Allen,

344. U.S. 443 (1953) vesssmesanscanimemeenwnenmmusemenncasenes 15

Cromwell v. Commerce & Energy Bank,

A464 So.2d 721 (ha. 1985) ssvsswzsvsvessvscsvesvevevernasvmeun 24

Dynamics Corp. of Amer. v. Citizens &

Southern Nat. Bank,

356 F. Supp. 991 (N.D. Ga. 1978) ...cceeeeeeeeeeeeeeeeeee 24

Ground Air Transfer v. Westates Airlines,

899 F.2d 1269 (Ast Cir. 1990)... cceecceeeeeeeeeee 24

House v. Bell,

547 U.S. 518 (2006) sescousensusascansenaumamcus. 26

Intraworld Indus. v. Girard Trust Bank,

306 A.2d 316 (Pa. 1975)......... .ceiaisscasvonswaaveansucssoasste 24

Itek Corp. v. First Nat. Bank of Boston,

730 F.2d 19 (Ist Cir. 1984)... eeeeeeeeeeeeeees 24

J. Zeevi & Sons, Lid. v. Grindlays Bank,

37 N.Y.2d 220 (NY Court of Appeals, 1975)......... 18

Kungys v. United States,

A485 U.S. 759 (1988) 00... ceeeecsceeeeeeeeeeeteeeeeeeeeeneneees 2

McCleskey v. Zant,

A99 U.S. 467 (1991) 2.0... eee eeceecccceeeeceeeeeeeeeeeeeeenes 16

Miller-El v. Cockrell,

5387 U.S, 822 (2008) ..........cccccecesseseeececeeceeeeeeeeeeereeeers 3

ix

Murray v. Carrier,

ATT U.S. 478 (1986) cecseccsssseesecssessessessessuestesnesseensen 16

Neder v. United States,

527 U.S. 1 (1999) ............. ssseueauauspainewastonpewecsescarve 2, 19

Roman Ceramics Corp. v. People's Nat. Bank,

714 F.2d 1207 (8d Cir. 1988) ...... ec cccecccceeeeeee enone 24

Sawyer v. Whitley,

B05 U.S. 838 (1992) oo. eeecceceseeeceeeeeeeeeeeeeeeeees 16

Schlup v. Delo,

513 U.S. 298 (1995) ....ecccececcceceeececeeeseeeeeeeeeeeeees 16, 26

Slack v. McDaniel,

529 U.S. 473 (2000) ..cseccsccsessecsecsecsecsessesseseneeseeseeene 3

United States v. Gaudin,

515 U.S. 506 (1995) oe cecccccccceeseeseseeeseeeeseeeeeenees 2

Statutes

18 U.S.C. § 1848 occ cccsccssccsesssesesseceens 7, 10, 19

18 U.S.C. § 1349 oo. eccceeeccceceeeeeeeeeeeenenes 7, 10, 19

28 U.S.C. § 1652 occ 1, 3, 7, 11, 14, 15, 16, 17

AS TSG. § QORB sau veces iianminnverimeenrenaeanai emitite

28 U.S.C. § 2255 oo. cccecccccccccccccccecesseceecceeeeeeeeeeees 6, 14, 16

C.R.S. §§ 4-5-1038, 107, 108, 109 and 116

ee ee Oe ee ee wee 7, 19, 20, 22, 23, 28

C.R.S. §4-1-808 . cccascssswoawieinnnncovanessvenranncsaassncssaaaens 7, 28

N.Y.U.C.C. § 1-205 .. .cscusssssccsesesesecnsavessensaveosins cesar 7, 28

Other Materials

Barnes, James G., & Byrne, James E.,

Revision of U.C.C. Article 5,

50 Bus. Law. 1449 (1995)... cee ceseeeeeeeeeeeneeeees 28

Barnes, James G., Defining Good Faith Letter

of Credit Practices,

28 Loy. L. A. L. Rev. 101 (1994)... eeeeeeeeeee 34

Barnes, James G., Nonconforming

presentations under letters of credit:

Preclusion and final payment,

56 Brook. L. Rev. 103 (1990) ..........cceececeeeeeeeeeeeees 33

International Chamber of Commerce,

International Standard Banking Practice for

the Examination of Documents under

Documentary Credits,

Publication no. 681 (2007)..........c:cccseeeeeeee 27, 29, 30

International Chamber of Commerce,

Uniform Customs and Practice for

Documentary Credits,

Publication no. 600 (2007 rev.) ....18, 14, 22, 27, 29

Trimble, Rufus, The Law Merchant and the

Letter of Credit,

61 Harv. L. Rev. 981 (1948) ..........cceeeeeeeeeeeeees O28 fae

INTRODUCTION

The substantive law of the habeas corpus statute is

stated in very broad terms. It is no more specific than

to state that habeas corpus is a remedy for an applicant who “is in custody in violation of the Constitution

or laws or treaties of the United States” or a remedy

when “circumstances exist that render [the judicial]

process ineffective to protect the rights of the applicant.” Historically, this Court’s interpretations of this

text and its antecedents have varied widely. The differences in views today are as marked as ever. Yet,

reasonable jurists agree on one general proposition,

namely, when a court acts beyond its power, a defendant who complies with the other conditions of the law

may challenge the finality of the court’s judgment in a

habeas corpus proceeding. It is under such circumstances that the courts below passed and affirmed

judgment and the Petitioner filed his habeas corpus

motion.

The power of federal courts derives both from the

Constitution and from Acts of Congress. As with all

law, the Constitution takes precedence. in other

words, an Act of Congress is void, as held by this

Court, if the Constitution provides otherwise. Correspondingly, the Rules of Decision Act, 28 U.S.C.

§ 1652, in force since the first Congress, states that in

civil matters the laws of the several states are the

rules of decision when they apply and when the Constitution or Acts of Congress do not provide

otherwise.! In particular, when determining the

rights and privileges of the parties to a letter of credit,

the courts must apply the law of the state with jurisdiction over the transaction. In Petitioner’s case, the

courts refused to apply state statutory law to determine those rights and privileges and instead relied on

witness testimony contrary to the law. In doing so, the

courts exceeded the power granted by Congress.

Petitioner was convicted of wire fraud and conspiracy to commit wire fraud and bank fraud for deceiving

the confirming banks to honor letters of credit. A substantive element of the charges is the materiality of

an alleged false statement, meaning the statement is

“capable of influencing ... the decision of the decisionmaking body to which it was addressed”. A person may choose when he has the right or privilege to

do so, not when he has the obligation. A decision is a

choice where there are at least two lawful alternatives, not where there is only one. In Petitioner’s case,

the substance of the criminal charges reduces to a

matter of state law.

The appeals court erred in not granting Petitioner’s

motion for a Certificate of Appealability (“COA”). A

court must grant the certificate when the movant has

made a substantial showing of the denial of a constitutional right. The standard is that jurists of reason

would find it debatable whether the motion states a

1 See App. 101.

2 Neder v. United States, 527U.S.1, 16, citing United

States v. Gaudin, 515 U.S. 506, 509, citing Kungys v. United

States, 485 U.S. 759, 770 (internal quotation marks omitted).

valid claim.? The movant need not convince the court

that his claim will prevail. In Petitioner’s case the appeals court summarily ruled that he has not made

such a showing. In other words, according to the appeals court, Petitioner’s constitutional due process

rights do not include being judged under the law mandated by federal statute. This finding is not only beyond debate, it is wrong on its face.

This Court should grant certiorari in this case for

several reasons. First, by applying state law to the

facts of this case, Calderon makes a showing of actual

innocence. By ignoring state law, denying his habeas

motion and not issuing a COA, the courts below have

endorsed a “miscarriage of justice”, the precise thing

habeas law is designed to avoid.

Second, this Court should stop the courts below and

renowned defense counsel alike from disregarding the

Rules of Decision Act. When major actors in the legal

community ignore a fundamental statute defining

state sovereignty respect for the law is compromised.

By not granting certiorari, this Court would miss an

opportunity to promote the needed respect inside and

also outside of the legal community, in particular, for

the jurisdiction of state laws.

Third, the decision below also contradicts the long

and well-established law in the civil litigation of letter

of credit disputes. All 50 states have adopted the Uniform Commercial Code (“UCC”) Article 5 on letters of

credit. Relevant to this case are the States of New

3 See Slack v. McDaniel, 529 U.S. 473, and Miller-El v.

Cockrell, 537 U.S. 322.

York and Colorado that have adopted the language of

the model code virtually verbatim. The rejection of

state laws by the Second Circuit Court sets a dangerous precedent which this Court should flag and correct.

Fourth, this Second Circuit Court decision negatively affects trade, both domestic and international.

Letters of credit are the most common form of payment in international commercial sales. Most letters

of credit related to U.S. exports and imports are subject to the law of New York State, home of the premier

U.S. dollar financial center. By overruling blackletter

and statutory law, the Second Circuit Court undermines confidence in, and the stability of, the rule of

law in commercial markets.

The facts here are not in dispute. This case presents

a clean question of law whether courts have the power

to set aside the law mandated by statute and decide

questions of law based on witness testimony. Calderon’s case satisfies all the other requirements of the

habeas statute, therefore the decision to be reviewed

here, whether to grant the COA, hinges on Calderon’s

constitutional rights and whether the courts’ want of

power arguably satisfies the substantive requirements of the habeas statute.

Another notable feature of this case is that one of

the findings by the appeals court is probative under

state law that indeed the confirming banks had the

obligation to honor defendants’ presentations. By reversing the restitution ordered by the trial court, the

appeals court implicitly found that one of the two conditions for the obligation to honor exists. The other

condition is the undisputed fact that defendants’

presentations were complying on their face. Though

the question presented in this petition relates to the

power of the courts, not the merits of the case, the

merits are relevant to the decision to be reviewed if

this petition is granted, namely, the issuance of a

COA.

OPINIONS BELOW

The order of the U.S. Court of Appeals for the Second Circuit denying a Certificate of Appealability is

unreported. App. 1-2. The earlier opinion of the district court denying the motion pursuant to 18 U.S.C. §

2255 and declining to issue a Certificate of Appealability is unreported. App. 3-17. The earlier opinion of

the U.S. Court of Appeals for the Second Circuit is reported at 944 F.3d 72. App. 18-65.

JURISDICTION

The Second Circuit issued its order on November

30, 2022. App.1-2. On February 15, 2023, Justice Sotomayor extended the time to file this petition until

March 30, 2023. No. 22A748. This Court has jurisdiction under 28 U.S.C. § 1254(1)

STATUTORY PROVISIONS INVOLVED

e 28U.S.C. § 2253 provides in relevant parts:

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a district judge, the final order shall be subject to review, on appeal, by

the court of appeals for the circuit in which the

proceeding is held. ...

(c) (1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be

taken to the court of appeals from— ...

(B) the final order in a proceeding under section

2255. ...

(c) (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made

a substantial showing of the denial of a constitutional right.

(c) (8) The certificate of appealability under paragraph (1) shall indicate which specific issue or

issues satisfy the showing required by paragraph

(2).

28 U.S.C. § 2255 provides in relevant part:

(b) Unless the motion and the files and records of

the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the

court finds that the judgment was rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to

collateral attack, or that there has been such a

denial or infringement of the constitutional

rights of the prisoner as to render the judgment

vulnerable to collateral attack, the court shall

vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a

new trial or correct the sentence as may appear

appropriate.

The other relevant provisions are:

e 18 U.S.C. §§ 1348, 13849, reproduced at

App. 100,

e 28 U.S.C. § 1652, reproduced at App. 101,

e C.R.S. §4-1-303, relevant parts and Official

Comments reproduced at App. 101-102,

e N.Y.U.C.C. § 1-205, relevant part reproduced at

App. 103,

e C.R.S. §§ 4-5-103, 107, 108, 109 and 116, relevant parts and Official Comments are reproduced at App. 103-112,

e the sections of N.Y.U.C.C. article 5 corresponding to the sections of C.R.S. above which are virtually verbatim copies of the Colorado statute.

STATEMENT OF THE CASE

A. Factual Background

From 2008 to 2010 Calderon and his co-defendant,

Brett Lillemoe, participated in the GSM-102 Export

Credit Guarantee Program (“Program”) of the United

4 The factual background presented here is derived from

the parties’ submissions and the uncontroverted evidence

presented at trial.

States Department of Agriculture (“USDA”). With the

purpose of promoting U.S. agricultural exports to select countries lacking sufficiently strong credit ratings, the Program provides financial guarantees for

loans related to the export sales. A technical requirement of the Program is that the loans finance letter of

credit payments due to U.S. banks by foreign banks.

Every year the USDA allocates the amount of available guarantees per country and per product. App. 27.

During the first couple of decades of its existence,

participation in the Program was essentially restricted to financially sophisticated agricultural exporters. The majority of qualifying exports were sold

by exporters who did not participate in the Program

because they lacked the banking expertise required to

do so. Sensing opportunity, exporters with the financial knowhow devised a method, called the “third

party’, “financial intermediation” or “structured

transaction” model to allow a bigger share of exporters

to benefit from the Program. App. 69-70. USDA vetted

this business model and approved it, welcoming the

extended reach of the Program that these transactions

allowed. As relevant to this case, the courts below

found nothing illegal in this transaction model. App.

28. In 1999 Lillemoe and others set up a small partnership to compete for structured transactions. Calderon joined Lillemoe’s partnership in August of 2008.

To participate, the Program requires that the export sale be paid by a letter of credit and that the Program guarantee secure a loan by a U.S. bank to an

approved foreign bank to finance the payment under

the letter of credit. The Program participant is the

beneficiary of the letter of credit and, when he makes

a complying presentation to the U.S. confirming bank,

he is paid the value of the exports covered. When the

U.S. confirming bank honors the presentation, it is assigned the guarantees that secure the loans to the foreign bank. ‘I'he documents presented by the beneficiary to the confirming bank are essentially the documents required by the USDA to present a loss claim if

and when the foreign issuing bank fails to pay the

loan. Upon such failure, the U.S. confirming bank exercises the guarantees. A key document required in a

loss claim is a copy of an original bill of lading documenting each shipment of covered goods.

As part of a structured transaction, the Program

participant obtains copies of original bills of lading

from the shipper of the exported goods. Lillemoe concededly altered a few of those copies of bills of lading

and Calderon, knowing of the changes, presented

them to the U.S. confirming banks. The changes consisted of whiting out “copy non-negotiable” stamps

and replacing them with “original” stamps. The relevant characteristics of the products and the shipments

were not misrepresented in the copies presented to the

confirming banks.

In two of the several transactions underlying the

conspiracy charge, Lillemoe concededly changed by

one day the onboard dates of the copy bills of lading.

Yet Calderon was not involved in any aspect of those

transactions. He learned of them after they were consummated.

10

A critical and undisputed fact is that the defendants’ presentations were strictly complying on their

face with the conditions of the letters of credit.

B. Indictment and Trial

In February 2015, the government charged Calderon with a 23-count indictment alleging that he had

defrauded the U.S. confirming banks, CoBank and

Deutsche Bank. See App. 3-7. The indictment also alleged that Calderon’s transaction model was unlawful. The trial court disagreed with the latter proposition on the structure of the transactions, but it also

denied Calderon’s motion to dismiss finding that the

materiality of the alleged false statements made to the

banks was a matter for a jury to decide. See also App.

70.

The jury acquitted Calderon on all counts but the

conspiracy count (18 U.S.C. §1349, App. 100-101) and

one wire fraud count (18 U.S.C. §1343, App. 100) related to one presentation to CoBank. After the jury’s

verdict Calderon moved for a judgment of acquittal, or

alternatively, a new trial. The motion was denied.

App. 66-99.

Calderon was sentenced to 5-months’ incarceration,

three years of supervised release and more than $63

thousand forfeiture. The district court also ordered defendants to pay jointly and severally more than $18

million in restitution to the USDA for reimbursing the

U.S. banks following a foreign bank’s default.

11

C. The Second Circuit’s Decision on

Appeal

On appeal, defense counsel failed to substantially

argue the relevance of state law in this case. See

United States v. Calderon et al., no. 17-1956, 2d Cir.,

Doc. No. 228. Calderon, pro se, in his reply brief explained in length the state law, the Uniform Commercial Code Article 5 of Colorado and New York States.

He did not invoke the Rules of Decision Act, however.

App. 101. See United States v. Calderon et al., no. 17-

1956, 2d Cir., Doc. No. 282. The opinion of the appeals

court did not discuss state law at all, implicitly setting

it aside. App. 18-65.

In addressing the materiality of the alleged false

statements, the court relied on witness testimony that

Lillemoe’s changes, without more, gave the confirming banks the right to dishonor the presentations. “Co-

Bank representative Holly Womack and Deutsche

Bank representative Rudolph Effing testified that

their respective banks would have declined to go

through with the transactions at issue had they

known about the specific alterations the defendants

made to the bills of lading.” App. 41. Yet the court

5 Lillemoe argued that the contractual language the

Uniform Customs and Practice, n.600, the widely accepted trade

code for letters of credit, “has the force of law” but did not refer

to the pertinent section of UCC. See infra on UCC Article 1. He

did not consider state law that specifies the rights and

obligations of the parties. Calderon, represented by counsel, very

briefly mentioned sections of UCC addressing the rights and

obligations of parties. See United States v. Calderon et al., no. 17-

1956, 2d Cir., Doc. No. 231. He did not elaborate.

12

recognized the undisputed fact that the documents as

presented “appeared” to comply. App. 40.

Relying on witness testimony, the court also found

that the unaltered bills of lading were not complying,

both in the case of altered stamps and altered onboard

dates. App. 41 (‘testimony of Womack that if the confirming bank ‘didn’t have a copy of an original on

board, original bill of lading’ [sic] it ‘wouldn’t have

paid the funds.”; “testimony of Womack that she

would not have accepted the unaltered bill of lading

prior to the defendants’ date change”).

The court also invoked evidence of Lillemoe’s statements to support the theory that before altering the

stamps, the bills of lading were not complying and

that “the banks could have and would have rejected

nonconforming documents”, t.e. that the misrepresentations were material. App. 42.

The court also rejected the defendants’ claims that

they did not contemplate any harm to the U.S. banks

concluding that “[t]he Government presented a great

deal of evidence that the defendants’ submission of falsified, non-compliant documents exposed the victim

banks to the risk of ‘actual harm or injury’ on multiple

dimensions.” App. 48. This finding actually consists of

two assertions. First, the unaltered documents were

not complying. And second, the documents presented,

though complying on their face, were not complying

for purposes of honor by the confirming banks and

consequently the banks had the right to dishonor.

In support of the court’s theory it does not refer directly to the text of the trade code applicable here, the

13

Uniform Customs and Practice for Documentary

Credits (“UCP”) Publication no. 600 (“UCP 600”) , or

to the text of UCC. Rather the court relies exclusively

on witness testimony and (erroneously) to the law in

preceding opinions. For example, the court states that

“the modifications to the bills of lading exposed the

banks to risk of default or non-reimbursement from

the foreign banks” and refers to CoBank’s Womack

testimony. App. 44. The court also states that “the

modifications increased the risk that the USDA would

decline to reimburse the banks”. App. 45. and refers to

the testimony of USDA employee Jonathan Doster

and government rebuttal expert James Byrne referring to the on-board dates of the bills of lading.

The only part of the trial court’s judgment that the

appeals court did reverse was the restitution including the restitution to the USDA for reimbursing the

U.S. banks following a foreign bank’s default. App. 57-

65. Regarding the risk “that the USDA would not reimburse the banks for their losses because the transactions were not compliant with the GSM-102 program requirements’, the court found that it did not

“arguably materialize”. App. 61-62. Which is to say

that all the transactions which did lead to loss claims

were compliant with the Program, the shipments and

the unaltered documents qualified, and the guarantees were valid. That includes the transaction of the

wire fraud count and all the transactions underlying

the conspiracy charge save one with changed dates

(the Radiance). In that transaction, the court asserts,

the defendants (including Calderon) changed onboard dates of the bills of lading, when in fact the only

14

evidence at trial was that Calderon could have learned

of the changes well after the transaction was consummated. App. 29. In that instance, the court simply repeated the government’s conclusory claims.

D. The Decisions on the Habeas Motion

After judgment by the appeals court, Calderon petitioned for rehearing and then petitioned this Court for

a writ of certiorari. Case no. 20-176. Both petitions

were denied. Calderon adduced the Rules of Decision

Act for the first time in his first petition to this Court.

On May 25, 2021, Calderon filed a motion pursuant

to 28 U.S.C. § 2255 at the trial court for the first time.

The following day, Calderon self-surrendered to federal prison. The court later ordered the respondent to

show cause. Calderon’s motion complied with the statutory time limit, the only additional requirement of

the motion. Among other arguments, Calderon’s first

argument is that Rules of Decision Act mandates the

application of UCC to determine the rights and privileges of the parties to a letter of credit and that on direct review the appeals court failed to do so. Further,

Calderon showed that if state law is applied, he is actually innocent of both charges of conviction. He also

invoked UCC § 1-303(c), which states that the interpretation of a trade code like UCP 600, is a matter of

law. He showed that under UCP 600, expert witness

James Byrne’s key testimony is false as a matter of

6 Lillemoe, represented by counsel, also petitioned this Court and his petition was also denied. Case no. 20-163. Lillemoe did not discuss state law

in his petition.

15

law. He referred to uncontroverted trial evidence contrary to key testimony by the USDA witness, explicitly

cited by the court on appeal. See Calderon v. United

States, no. 3:21-cv-724-JCH, D. Conn., Doc. no. 1-1.

On June 27, 2022, the district court denied the habeas motion and declined to issue a COA. App. 3-17.

In its order it explicitly rejected Calderon’s arguments, with one critical exception: the court did not

address the Rules of Decision Act. It ignored the issue

altogether, thereby implicitly rejecting the statute’s

mandate to apply state law to the key civil question,

the determination of rights and privileges of parties to

a letter of credit.

The district court rejected Calderon’s arguments

reasoning that he had raised them before and that

they were procedurally barred. App. 12-16. The court

erred in this finding for two reasons. First, Calderon

did not invoke the Rules of Decision Act on direct appeal.” The point of repeating the arguments in habeas

proceedings was for the court to acknowledge the

mandate of the Act and apply UCC as opposed to the

appeals court’s choice of setting UCC aside. Yet, the

court. ignored Calderon’s now exnlicit claim that, state

law is mandated by statute.

Second, Calderon made a valid showing of actual

innocence and a failure to hear his claims would a

7 Central to the arguments in the Petition for Certiorari on

direct appeal, no. 20-176, is the Rules of Decision Act. But this

Court denied the Petition without any statement of the reasons

therefor. The denial has no weight in subsequent habeas

proceedings. Brown v. Allen, 344 U.S. 443 (1953), 489-497.

16

constitute a “miscarriage of justice”. which is sufficient to overcome the assumed procedural hurdles.

Murray v. Carrier, 477 U.S. 478 (1986), 496, McCleskey v. Zant, 499 U.S. 467 (1991), 494-495, Sawyer v.

Whitley, 505 U.S. 333 (1992), 338-339, Schlup v. Delo,

513 U.S. 298 (1995), 313-332. The district court rejected Calderon’s actual innocence claim because he

presents no new facts in his habeas motion. App. 16.

But the court erred again because the requirement of

new facts is for second or successive proceedings, not

for the first. 28 U.S.C. § 2255 (h) (‘A second or successive motion must be certified as provided in section

2244 by a panel of the appropriate court of appeals to

contain (1) newly discovered evidence...”)

On July 8, 2022, Calderon filed a notice of appeal

for a COA. In his motion he reproduces most of the

arguments he made at district court. The first constitutional claim he lists is the courts’ failure to apply

state law as mandated by the Rules of Decision Act

and that under state law, the undisputed facts show

his actual innocence. See Calderon v. United States,

Case No. 22-1427, 2d Cir., Doc. no. 25-1. The appeals

court summarily denied the motion. App. 1-2.

REASONS FOR GRANTING CERTIORARI

This Petition concerns the denial of a Certificate of

Appealability. Under 28 U.S.C. § 2253 (c)(2), a COA

may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”

Calderon’s § 2255 motion is the first in this case. The

motion was timely filed on May 25, 2021, and the district court ordered the respondent to show cause.

17

Calderon v. United States, case no. 3:21-cv-724-JCH,

Doc. no. 4. With a showing described above, Calderon

fulfills all the requirements of § 2258.

In denying Calderon’s habeas motion and a COA,

the district court’s order did not acknowledge that the

Rules of Decision Act requires questions of civil law be

decided according to state law because, here, no superseding law provides otherwise. By refusing to apply

mandated law, the court acts without legal jurisdiction, beyond the powers granted by the Constitution

and the Acts of Congress. There is no dispute that

every citizen has the constitutional due process right

to be judged according to law mandated by federal

statute, t.e. by a court acting within its powers.

There are two main reasons why this Court should

grant the writ of certiorari here. First, Calderon reasonably interprets the UCC applied to the very facts

found at trial. Under UCC, Calderon shows that he is

actually innocent of all charges. By ignoring UCC,

denying his habeas motion and not issuing a COA, the

courts below have arguably endorsed a “miscarriage

of justice”, the precise thing habeas law is designed to

avoid.

Second, by disregarding letter of credit law the

courts below set a dangerous precedent that affects international trade. Letters of credit are the payment

mechanism of the vast majority of international sales

transactions. In particular, the letters of credit of

many of U.S. imports and exports are subject to the

jurisdiction and the law of New York State, home of

the premier financial center for U-.S.-dollar

18

denominated transactions.’ A precedent of the Second

Circuit Court which in effect overrules blackletter and

statutory law based on considerations foreign to commercial practice, undermines confidence in, and the

credibility of, the rule of commercial law and the jurisdiction of New York State.

The rest of this Petition reproduces Calderon’s arguments which show his actual innocence under UCC

and addresses some history of letter of credit law.

I, PETITIONER IS ACTUALLY INNOCENT UNDER

UCC LAw AND THE FACTS OF THE CASE

All 50 States of the United States have adopted the

latest revision of the model UCC Article 5 promulgated by the National Conference of Commissioners

on Uniform State Law (““NCCUSL’). In particular,

Colorado State enacted the code in the year 1996 and

New York State in the year 2000. The letters of this

case are governed by the UCC of these two states that

adopted the model text virtually verbatim in the sections cited below. Wherever the Colorado Revised

Statutes Title 4 Article 5 is cited, the corresponding

section of the New York Uniform Commercial Code

(“NYUCC”) applies to the letters of credit governed by

New York law.

8 “A vast amount of international letter of credit business

is customarily handled by certain New York banks whose

facilities and foreign connections are particularly adaptable to

this field of operation’. J. Zeevi & Sons, Lid. v. Grindlays Bank,

37 N.Y.2d 220 (NY Court of Appeals, 1975)

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A. The Obligation to Honor the Letters

of Credit

The letters of credit of this case were confirmed by

CoBank, located in Denver, Colorado, and Deutsche

Bank AG, New York Branch, located in New York,

New York. As there is no agreement otherwise, the

banks’ liabilities in these transactions are governed by

UCC Article 5 of the respective states. C.R.S. § 4-5-

116(b). App. 111.

As the letters of credit are explicitly subject to UCP

600, those rules take precedence over the UCC except

for the “nonvariable” provisions specified in C.R.S. §

4-5-1038(c). C.R.S. § 4-5-116(c) at App. 111 and C.R.S.

§ 4-5-103(c) at App. 103. Among the nonvariable provisions are the rights and obligations of the parties to

the letters of credit specified in the code. C.R.S. § 4-5-

103(a). App. 103.

Calderon was convicted of wire fraud and conspiracy to commit wire and bank fraud. 18 U.S.C. §§ 1348,

1349. App. 100. A substantive element of the charges

is that the alleged misrepresentations be “material”,

that they be “capable of influencing a decision of the

decisionmaking body to whom it is addressed”. Neder,

527 U.S. at 16. In this case the alleged decision was

whether the confirming banks would honor defendants’ presentations that included the altered bills of

lading. App. 40. Therefore, the question is whether the

confirming banks had the privilege to dishonor the

presentations, in which case the banks had a decision

to make, or had the obligation to honor, meaning that

there was no lawful alternative but to honor. The

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