Petition for Writ of Certiorari — Daniel Robinson, Petitioner v. United States
Supreme Court briefJun 30, 2023
Ask Donna
What actually matters in this document.
Text
NO:________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2022
DANIEL ROBINSON,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
____________________________________________________________
On Petition for A Writ of Certiorari
To the United States Court of Appeals
For the Third Circuit
____________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
___________________________________________________________
Alison Brill, Esq.
Assistant Federal Public Defender
Office of the Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, Fourth Floor
Trenton, New Jersey 08609
(609) 489-7457
alison_brill@fd.org
Attorney for Petitioner
Daniel Robinson
QUESTIONS PRESENTED
1. Whether this Court’s guidance on constructive amendments in conspiracy
cases is necessary to protect criminal defendants’ Fifth Amendment rights.
2. Whether this Court should set limits on what law enforcement testimony
should be admitted as opinion evidence under Federal Rule of Evidence 701.
PARTIES TO THE PROCEEDING
The caption identifies all parties in this case.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDING ............................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iv
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINION BELOW ........................................................................................................ 2
JURISDICTION............................................................................................................. 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2
A. STATEMENT OF THE CASE .................................................................................. 3
I.
Charges and Procedural History ................................................................... 3
II.
Trial and Jury Charge ................................................................................... 4
III.
Appeal to the Third Circuit Court of Appeals .............................................. 7
B. REASONS FOR GRANTING THE PETITION ....................................................... 9
I.
This Court’s guidance on constructive amendments, particularly for
conspiracy offenses, is necessary to preserve the People’s Constitutional
right not to answer charges that were not presented to the grand jury and
to limit boundless prosecutorial discretion…………………………………………9
a. The Right at Stake………..………………………………….........................9
b. The legal question presented is exceptionally important……...............11
c. This case is an ideal vehicle to resolve this question……………………11
ii
II.
This Court’s guidance on the bounds of lay witness opinion,
particularly from law enforcement officers serving as case agents,
is necessary to create uniform standards for criminal trials………………13
a. Rule 701 permits opinion testimony by lay witnesses only
under certain circumstances……………………………………………13
b. The legal question presented is exceptionally important….............18
c. This case is an ideal vehicle to resolve this question………………..18
CONCLUSION ... …………………………………………………………………………….19
iii
TABLE OF AUTHORITIES
Federal cases
Page
Burks v. United States, 437 U.S. 1 (1978)………………………………………………..10
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)…………………………..18
Ex parte Bain, 121 U.S. 1 (1887) ................................................................................... 9
Hirst v. Inverness Hotel Corp., 544 F.3d 221 (3d Cir. 2008) ...................................... 14
Molina-Martinez v. United States, 578 U.S. 189 (2016) ......................................... 8 n.1
Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) ....................................... 8 n.1
Russell v. United States, 369 U.S. 749 (1962)............................................................... 9
Schmuck v. United States, 489 U.S. 705 (1989) ........................................................... 9
Stirone v. United States, 361 U.S. 212 (1960).................................................... 9-10, 12
United States v. Aguirre-Miron, 988 F.3d 683 (3d Cir. 2021) ............................... 8 n.1
United States v. Bradley, 917 F.3d 493 (6th Cir. 2019) ............................................. 11
United States v. Brooks, 736 F.3d 921 (10th Cir. 2013),
cert. denied 572 U.S. 1109 (2014) ........................................................................ 16
United States v. Casas, 356 F.3d 104 (1st Cir.),
cert. denied 541 U.S. 1060 (2004) ........................................................................ 14
United States v. Clark et al., Appeal Nos. 20-2876, 20-2912, 20-2938,
2023 WL 2400741 (3d Cir. Mar. 8, 2023) .......................................................... 2, 7
United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003) ................................. 15 n.2, 16
United States v. Farr, 536 F.3d 1174 (10th Cir. 2008) ................................................. 9
United States v. Flores–de–Jesus, 569 F.3d 8 (1st Cir.),
cert. denied 558 U.S. 974 (2009) .......................................................................... 14
United States v. Freeman, 730 F.3d 590 (6th Cir. 2013) ....................................... 13-14
iv
United States v. Freeman, 498 F.3d 893 (9th Cir. 2007) ............................................ 16
United States v. Garcia, 413 F.3d 201 (2d Cir. 2005),
cert. denied, 552 U.S. 1154 (2008) ................................................................. 14, 17
United States v. Greenspan, 923 F.3d 138 (3d Cir. 2019) .......................................... 11
United States v. Grinage, 390 F.3d 746 (2d Cir. 2004)............................................... 17
United States v. Haines, 803 F.3d 713 (5th Cir. 2015), cert. denied sub nom.
Iturres-Bonilla v. United States, 137 S.Ct. 2107 (2017) ......................... 15 n.2, 16
United States v. Johnson, 617 F.3d 286 (4th Cir. 2010)............................................. 17
United States v. Kuehne, 547 F.3d 667 (6th Cir. 2008),
cert. denied 558 U.S. 928 (2009) .......................................................................... 11
United States v. Lee, 359 F.3d 194 (3d Cir.),
cert. denied 543 U.S. 955 (2004) .................................................................... 10 n.3
United States v. McKee, 506 F.3d 225 (3d Cir. 2007) ........................................... 10 n.3
United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)............................................. 15 n.2
United States v Miller, 417 U.S. 130 (1985) ................................................................. 9
United States v Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc) ................................ 8 n.1
United States v. Nixon, 694 F.3d 623 (6th Cir. 2012)................................................. 16
United States v. Suarez, 263 F.3d 468 (6th Cir. 2001)) ................................................ 9
United States v. Vavlitis, 9 F.3d 206 (1st Cir. 1993) .................................................. 10
United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013)........................................... 11
United States v. Williams, 504 U.S. 36 (1992).............................................................. 9
United States v. York, 572 F.3d 415 (7th Cir. 2009)................................................... 16
v
State case
Salcedo v. People, 999 P.2d 833 (Colo. 2000) ........................................................ 15 n.2
Federal statutes
18 U.S.C. § 3231 ............................................................................................................. 2
18 U.S.C. § 3742 ............................................................................................................. 2
21 U.S.C. § 841 .............................................................................................................. 3
21 U.S.C. § 846 .............................................................................................................. 3
21 U.S.C. § 851 ............................................................................................................... 4
28 U.S.C. § 1254 ............................................................................................................ 2
28 U.S.C. § 1291 ............................................................................................................ 2
Rules
Federal Rule of Evidence 602 ...................................................................................... 14
Federal Rule of Evidence 611 ...................................................................................... 15
Federal Rule of Evidence 701 .................................................................. 2, 13-15, 17-18
Federal Rule of Evidence 702 ...................................................................... 2, 14, 15 n.4
Federal Rule of Evidence 1006 .................................................................................... 15
Supreme Court Rule 10(a) ..................................................................................... 12, 18
Supreme Court Rule 13.1 .............................................................................................. 2
vi
Sentencing Guidelines
U.S.S.G. §4B1.1........................................................................................................ 8 n.1
Other Authorities
U.S. Const. amend. V............................................................................... 7, 9, 10 n.3, 12
U.S. Const. amend. VI ................................................................................................... 9
Kendra Oyer, Classifying Constructive Amendment As Trial or Structural
Error, 158 U. Pa. L. Rev. 609 (2010) ................................................................... 10
vii
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 2022
DANIEL ROBINSON,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari
To the United States Court of Appeals
For the Third Circuit
____________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
Petitioner Daniel Robinson respectfully requests that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the Third Circuit in this case.
OPINION BELOW
The order of the Third Circuit denying panel rehearing issued on April 4, 2023 and is
attached at Pet. App. 1. The opinion of the Third Circuit affirming the District Court’s judgment
is unpublished but available at 2023 WL 2400741 (3d Cir. March 8, 2023) (unpub.) and is
attached at Pet. App. 2-6.
JURISDICTION
The United States District Court for the Eastern District of Pennsylvania had jurisdiction
over this federal criminal case pursuant to 18 U.S.C. § 3231. The Court of Appeals had
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. That court denied rehearing on
April 4, 2023. This petition is timely filed within ninety days after the judgment issued. See Sup.
Ct. R. 13.1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides: “No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury . . . nor be deprived of life, liberty, or property, without due process of law . . . .”
Federal Rule of Evidence 701 (“Rule 701”), Opinion Testimony by Lay Witnesses,
provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in
issue; and
(c) not based on scientific, technical or other specialized knowledge within the scope of
Rule 702.
2
A. STATEMENT OF THE CASE
This case presents two important questions regarding unchecked prosecutorial power: to
try a case to a petit jury without matching grand jury allegations and to insert its theory into the
case as fact through its law enforcement witnesses, both with significant consequences for a
defendant’s liberty. These procedural issues arise in the context of a prosecution for a conspiracy
to distribute crack and heroin in Philadelphia, Pennsylvania, with substantive drug counts
charged as well.
I.
Charges and Procedural History
The government filed an 81-count superseding indictment against nine co-defendants.
Mr. Robinson was charged with conspiring to distribute more than 280 grams of crack and more
than one kilogram of heroin, in violation of 21 U.S.C § 846 (Count One (including 100 overt
acts)). The government’s theory of prosecution was that the defendants collectively used one
phone to make arrangements and complete drug transactions, sharing the phone and working in
“shifts.” Among other investigative methods, including obtaining toll records and conducting
physical surveillance, the government obtained authorization for a wiretap of the shared phone
for 45 days.
In addition to being charged with conspiring to distribute heroin and crack with his codefendants, Mr. Robinson was charged with thirteen substantive counts in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), which were alleged to have occurred between June 2014 and May 2016:
•
•
•
•
•
•
•
distribution of .29 grams of heroin (Count Three);
distribution and aiding and abetting distribution of 17.68 grams of crack (Count Eight);
distribution of .47 grams of crack (Count Nine);
possession with intent to distribute 11.75 grams of crack, 1.7 grams heroin (Count 10);
distribution of 4.73 grams of crack, .58 grams of heroin (Count 11);
distribution of 12.55 grams of crack and 17.11 grams of marijuana (Count 12)
distribution of a “detectable amount of . . . crack” (Count 32);
3
•
•
•
•
•
•
distribution of a “detectable amount of . . . crack,” (Count 33);
distribution of approximately ten packets of crack (Count 34);
distribution of approximately 15 packets of crack (Count 46);
distribution of .2 grams of crack (Count 50);
distribution of .62 grams of crack (Count 53); and
distribution of .19 grams of crack (Count 61).
Counts 9 and 10 were dismissed on the government’s motion. Crim. No. 19-15, Ecf. No. 302
(E.D.Pa.). Thus, the 11 substantive counts submitted to the jury, all charging distribution,
amounted to distribution of .87 grams of heroin and approximately 40.2 grams of crack.
Daniel Robinson, and two co-defendants – Antoine Clark and Gerald Spruell – proceeded
to trial, while the six other co-defendants pleaded guilty. After a ten-day trial, the jury convicted
all three men on all counts. Because the government filed an Information, pursuant to 21 U.S.C.
§ 851(a), charging prior felony drug offenses, the conspiracy conviction triggered a mandatory
minimum term of 25 years imprisonment. Mr. Robinson filed a motion for acquittal and for a
new trial pursuant to Federal Rules of Criminal Procedure 29 and 33, challenging several issues
including the District Court’s authorization of a precise drug quantity calculation by the
government’s case agent. The District Court denied these motions. The Court then sentenced Mr.
Robinson to a total of 324 months imprisonment and 10 years of supervision.
Mr. Robinson appealed his convictions and sentence to the Third Circuit Court of
Appeals. A panel of the Court (Hardiman, Krause, Matey, JJ.) issued a non-precedential opinion
affirming Mr. Robinson’s convictions and sentences. (Pet. App. 2-6 (Matey, J., authoring)). Mr.
Robinson filed a petition for rehearing which was denied on April 4, 2023. (Pet. App. 1).
II.
Trial and jury charge
The central issue at trial was the legal significance of the co-defendants’ use of a shared
cellular phone over 45 days in the spring of 2016 and what even smaller snapshots of drug
4
distribution could demonstrate about group and individual culpability. The government
presented: toll records of hundreds of thousands of calls on the phone; wiretap recordings from
the phone during a six-week period; evidence of surveillance, evidence of approximately 20
controlled purchases of heroin and crack from the co-defendants; recovered heroin and crack
found during arrests and vehicle stops and seized when search warrants were executed; and the
testimony of a cooperating witness charged as a co-defendant. From this evidence, the United
States Attorney’s Office and agents from the Federal Bureau of Investigation (“FBI”) developed
a process for methodically calculating not an estimate or an extrapolation but an exact amount of
heroin and crack which was attributable to the conspiracy and to each defendant.
This evidence came in, over objection, through what was deemed the “summary”
testimony of FBI Agent Christopher Simpson. To calculate the total amount for which the
conspiracy was responsible, Agent Simpson picked 40 “phone shifts” from the six-week period
of the wiretap surveillance to determine the average amount and type of drugs sold per shift.
When the buyer did not specify drug amounts, Agent Simpson attributed one bag of drugs to the
call. If no drug type was specified, Agent Simpson alternated between heroin and cocaine in his
calculations. He then set the amount of one quantity of crack to be .2 grams and .03 for heroin,
based on an average of weight in the bags that law enforcement had seized during controlled
buys or arrests. Having assigned values and drug weights and creating criteria for his review, he
estimated averages based on the sample shifts as follows:
Crack
Heroin
Per shift:
6.4325 grams
1.7355 grams
Per week (x 28):
180 grams
48.594 grams
5
Agent Simpson believed the group ran four shifts a day, 7 days a week, for a total of 28 shifts per
week. Using these numbers, Agent Simpson projected that the total volume of sales during the
six-week wiretap period was 1,080 grams of crack and 291.564 grams of heroin. The agent
concluded Mr. Robinson was in the conspiracy for approximately 108 weeks over a two-year
period, from May 2014 to May 2016. Assuming continuous sales and continuous supply during
every week of this period, Agent Simpson determined Mr. Robinson was responsible for
19,452.00 grams of crack and 5,428.00 grams of heroin, approximately 49,000 percent more than
the amount of crack he was actually convicted of distributing and approximately 6,324 percent
more than the amount of heroin he was actually convicted of distributing. Although the
defendants objected to this testimony as speculative, the District Court determined there was a
foundation for the agent’s testimony, and its accuracy could be tested on cross examination. It
would then be up to the jury to credit that testimony and that theory, or not.
Count One of the superseding indictment charged conspiracy to distribute one or more
kilograms of heroin and 280 or more grams of crack and alleged more than 100 overt acts
committed by members of the conspiracy. However, when charging the jury regarding weight or
quantity, the District Court’s instructions broadened the agreement the jury could consider
beyond the distribution of heroin and crack (as charged in the indictment) to any drugs any codefendant possessed with intent to distribute (which was not charged). For example, as to both
the first and second interrogatories for Count One, the District Court instructed the jury to
consider what Mr. Robinson himself “possessed with intent to distribute” or “intended to
distribute,” and also the total amount that the members of the conspiracy “possess[ed] with intent
to distribute” or “intended to distribute.” The government, in its rebuttal closing, to counter the
defense arguments about the weakness of and gaps in the government’s evidence, told the jury in
6
the plainest terms that the case could be resolved on a finding of an agreement that the
defendants possessed the drugs with intent to distribute and no agreement as to distribution. The
government attorney explained:
All we have to show you is that these men possessed with the intent to distribute.
I mean, they could have been sitting in the living rooms with their feet kicked up
on the sofa, literally not distributing a single one of these things just with the
crack piled up behind them and saying, yeah, I’ll be there in five minutes, hang up
the phone laughing, we’re all being like, that’s another guy we’re not going to go
see, and they still will be guilty . . . And the second they’ve got it, they want to
sell it, and they’ve got enough of it, they’re guilty of it. Not how many pounds
you put on the table, how many ounces you show in front of somebody, it’s
what’s going on in their minds that makes them guilty.
The jury returned guilty verdicts on all counts.
III.
Appeal to Third Circuit Court of Appeals
On appeal, Mr. Robinson challenged, inter alia, the summary calculation of drug
responsibility and the constructive amendment of the indictment. Mr. Robinson argued that the
government’s opinion and conclusion that a specific amount of heroin and crack was attributable
to him violated the Rules of Evidence. Mr. Robinson raised that the government’s argument to
the jury in closing, and the District Court’s instruction in charging the jury that they could
consider drugs the defendants possessed with intent to distribute—broader than the indictment
charging only a conspiracy to distribute—amounted to an unconstitutional constructive
amendment in violation of Mr. Robinson’s Fifth Amendment rights.
A panel of the Third Circuit (Hardiman, Krause, Matey, JJ.), in a non-precedential
opinion, affirmed the convictions and sentence. United States v. Clark et al., Appeal Nos. 202876, 20-2912, 20-2938, 2023 WL 2400741 (3d Cir. Mar. 8, 2023) (Pet. App. 2-6). The panel
concluded that Agent Simpson’s testimony, along with 20 controlled drug purchases, Appellants’
coordination of a large resupply of crack (42 grams of cocaine to be cooked into crack), and
7
testimony from a co-defendant, “merely ‘tied together and confirmed what the underlying
evidence had already established.’” (Pet. App. 2-3). The panel dismissed the constructive
amendment argument in a footnote, simply concluding that “[t]here was no constructive
amendment” where the instruction “simply made clear the jury could consider the drugs
Appellants distributed and the drugs they possessed with intent to distribute—all offenses
charged in the indictment.” (Pet. App. 4) (emphasis in original).
Mr. Robinson filed a petition for rehearing, challenging the panel’s ruling on the
constructive amendment and a sentencing error 1 and the Court denied rehearing.
This timely petition follows.
1
The panel also affirmed a sentencing error where the District Court had wrongly calculated the
guidelines. The error stemmed from the District Court finding that Mr. Robinson’s conviction for
conspiracy, which carried a maximum life sentence, triggered the highest career offender
enhancement, and resulted in a base offense level of 37. U.S.S.G. § 4B1.1(b). This was error
because the Third Circuit determined that inchoate offenses do not qualify as “controlled
substance offense[s]” for purposes of the career offender guideline. United States v Nasir, 17
F.4th 459 (3d Cir. 2021) (en banc). Thus, a lower base offense level of 34 should have applied.
Because the drug conviction carried a higher total offense level, 36, than the correctly calculated
career offender total offense level, 34, Mr. Robinson’s total offense level should have been 36,
resulting in a range of 324 to 405 months, not 360 months to life. The panel found that because
the District Court varied downward, there was no “reasonable probability” that it would have
given a lower sentence on remand. This conclusion was erroneous under both Third Circuit and
this Court’s precedent. See Rosales-Mireles v. United States, ––– U.S. ––––, 138 S. Ct. 1897,
1903 (2018); Molina-Martinez v. United States, 578 U.S. 189, 200 (2016); United States v.
Aguirre-Miron, 988 F.3d 683, 689-90 (3d Cir. 2021). Mr. Robinson does not ask that this error
be corrected in his petition for certiorari.
8
B. REASONS FOR GRANTING THE PETITION
I.
This Court’s guidance on constructive amendments, particularly for conspiracy offenses,
is necessary to preserve the People’s Constitutional right not to answer charges that were
not presented to the grand jury and to limit boundless prosecutorial discretion.
a. The Right at Stake
The right of the People to be free from government overreach, overzealous prosecution,
and the intrusion of liberty from being forced to “answer a charge not contained in the indictment
brought against him,” is an “ancient doctrine” and foundational principal “of both . . . the
common law and . . . our Constitution.” Schmuck v. United States, 489 U.S. 705, 717 (1989); see
also United States v. Miller, 417 U.S. 130, 140, 142-43 (1985); Stirone v. United States, 361 U.S.
212, 215-17 (1960); Ex parte Bain, 121 U.S. 1, 10 (1887) (overruled in part on other grounds by
United States v. Cotton, 535 U.S. 625 (2002)). The Founders baked the grand jury protection into
the text of the Constitution to serve as a “buffer or referee between the Government and the
[P]eople.” United States v. Williams, 504 U.S. 36, 47 (1992); see also United States v. Suarez,
263 F.3d 468, 481 (6th Cir. 2001) (calling the grand jury “the Peoples’ main protection against”
unfettered prosecutorial discretion).
The institution of the grand jury further guarantees that the People will be “informed of
the nature and cause of the accusation against” them. United States v. Farr, 536 F.3d 1174, 1179
(10th Cir. 2008) (Gorsuch, J.) (quoting U.S. Const. amend. VI). The grand jury adds an
additional layer of protection by informing the People when “the defense of double jeopardy is
available” in a second prosecution. Russell v. United States, 369 U.S. 749, 781 (1962) (Harlan,
J., dissenting). A constructive amendment of a grand jury indictment violates this doctrine and
leaves the People “at the mercy or control of the court or prosecut[ion]” in violation of the Fifth
Amendment. Id. (majority opinion). Accordingly, this Court declared that “after an indictment
9
has been returned its charges may not be broadened through amendment except by the grand jury
itself.” Stirone, 361 U.S. at 215-16. When the grand jury protection is circumvented by an
unconstitutional constructive amendment, 2 it leaves defendants “vulnerable to repeat
prosecutions for the same offense,” in violation of the Double Jeopardy Clause, 3 because a
defendant may be “convicted of a crime that was not mentioned in . . . [the] indictment [against
them, and] a later grand jury . . . [could] indict the defendant for the very same crime.” Kendra
Oyer, Classifying Constructive Amendment As Trial or Structural Error, 158 U. Pa. L. Rev. 609,
627, 646 (2010); see also United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993) (noting that
“[m]idtrial amendments are deemed prejudicial” partly in order “to prevent reprosecution for the
same offense”).
Even more damaging, when an indictment is unconstitutionally constructively amended,
the impact on a defendant’s right to avoid double jeopardy might not be apparent until many
years later. For example, here, if Mr. Robinson were successful in his challenge to the
sufficiency of the evidence that he conspired to distribute more than one kilogram of heroin and
280 grams of crack, the District Court would have vacated his conspiracy conviction and retrial
would have been barred. Burks v. United States, 437 U.S. 1, 17 (1978) (“Given the requirements
for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to
afford the government an opportunity for the proverbial ‘second bite at the apple.’”). Here,
2
An unconstitutional constructive amendment of the grand jury’s indictment occurs “when
evidence, arguments, or the district court’s jury instructions effectively amend the indictment by
broadening the possible bases for conviction[.]” United States v. McKee, 506 F.3d 225, 229 (3d
Cir. 2007) (quoting United States v. Lee, 359 F.3d 194, 208 (3d Cir. 2004) (internal quotations
omitted and emphasis added).
3
See U.S. Const. amend. V (“[N]or shall any person be subject for the same offense to be twice
put in jeopardy of life or limb ....”).
10
though, the government could then bring a new indictment charging conspiracy for possession
with intent to distribute. The government could argue that Mr. Robinson had not previously been
charged with a conspiracy with possession with intent to distribute as its object and then offer a
similar prosecution to the instant prosecution. Permitting Mr. Robinson’s conspiracy conviction
based on a constructive amendment to stand would permit myriad problematic scenarios for
future defendants.
Yet, lower courts do not show serious concern for the great risk of double jeopardy and
have broadly rejected defendants’ constructive amendment claims. See, e.g. United States v.
Greenspan, 923 F.3d 138, 152 (3d Cir. 2019) (finding that even if the government constructively
amended the indictment in closing, there was no need to address it because it was not
prejudicial); United States v. Bradley, 917 F.3d 493, 503 (6th Cir. 2019) (finding no constructive
amendment because “the overt-acts section of the indictment” was “directly incorporate[d]” by
“the charge in the indictment”); United States v. Kuehne, 547 F.3d 667, 685-86 (6th Cir. 2008)
(holding that there was no constructive amendment even though “jury instructions broadened the
basis upon which . . . [the defendant] could have been convicted” and “the government offered
evidence of more firearms than were listed in the indictment.”); United States v. Vernon, 723
F.3d 1234, 1264 (11th Cir. 2013) (finding no constructive amendment although the “jury
instruction did not . . . match . . . the indictment” (internal quotation omitted).
Here, the District Court permitted the government to argue in closing that Mr. Robinson
could be convicted of conspiracy to possess with intent to distribute certain drugs, although he
was only charged with conspiracy to distribute. The District Court, in its quantity instruction,
also broadened the basis for possible conspiratorial liability. Permitting this plain constructive
amendment to stand sets a dangerous precedent that dismantles the wall of safety that the
11
institution of the grand jury provides to the People and their inherent right to liberty. This is a
recurring issue which warrants review and this Court’s intervention and guidance is necessary.
b. The legal question presented is exceptionally important.
This case presents a question of exceptional importance because it effects the limits of
prosecutorial overreach and discretion, as well as a defendant’s Fifth Amendment grand jury
right in every federal criminal trial. When constructive amendments are broadly permitted and
found to be nonprejudicial, the institution of the grand jury is a hollow one at best. A decision
from this Court setting a clear standard for determining the limits of constructive amendment is
especially necessary because the lower courts have made a general practice of rejecting
defendants’ meritorious constructive amendment claims, an unfortunate departure from this
Court’s previous guidance on the issue. See S. Ct. R. 10(a); see, e.g., Stirone v. United States,
361 U.S. 212 (1960).
c. This case is an ideal vehicle to resolve this question.
This case presents a clean vehicle to decide this question for two primary reasons. First,
the indictment was constructively amended mostly by the government’s argument. This Court
can pinpoint exactly where the bases for conviction were broadened. This is unlike an indictment
that has been constructively amended by evidence, where the record would be debatable as to
what the evidence did or did not show. Second, the government’s argument added a new object
for the conspiracy that is also a substantive criminal offense, possession with intent to distribute
drugs. With these substantive criminal offenses at issue, each with its own elements, it is easier
to distinguish the differences between the properly charged object (distribution) and the
improperly added object (possession with intent to distribute). There is not an issue of spillover
of evidence on related conduct.
12
II. This Court’s guidance on the bounds of lay witness opinion, particularly from law
enforcement officers serving as case agents, is necessary to create uniform standards
for criminal trials.
Here, there was scant discussion in the record of how Agent Simpson’s methodical
calculation regarding drug quantity was admissible under the Rules of Evidence. He had testified
as the agent-in-charge throughout the trial, specifically on six of the eight days of trial testimony.
On the eighth and last day of trial testimony, which began with a qualified DEA expert on
narcotics trafficking and coded language, Agent Simpson testified about the drug amount for the
conspiracy. Over objection, the Court ruled that this summary testimony had a foundation and
could be challenged on cross-examination. Post-verdict challenges to the testimony were also
rejected. The agent offered an opinion as to guilt through a methodical assessment of various
issues of importance including defining the scope and life of the conspiracy. This opinion
unfairly gave the government an additional bite at the apple by allowing it to introduce its theory
before summation. This testimony was admitted in violation of Rule 701 and this Court’s
intervention and guidance, long sought by criminal defendants, is essential.
a. Rule 701 permits opinion testimony by lay witnesses only under certain circumstances.
The Rule provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) not based on scientific, technical or other specialized knowledge within the scope of
Rule 702.
Fed.R.Evid. 701. Subsections (a), (b), and (c) are fundamental requirements: if a witness's
testimony fails to meet any one of them, it is not admissible. United States v. Freeman, 730 F.3d
13
590, 596 (6th Cir. 2013); Hirst v. Inverness Hotel Corp., 544 F.3d 221, 225 (3d Cir. 2008). Every
witness except for an expert can only testify if they have personal knowledge. Fed.R.Evid. 602.
But the drafters of the Rules built in some flexibility because “[w]itnesses often find
difficulty in expressing themselves in language which is not that of an opinion or conclusion.”
See Fed.R.Evid. 701 advisory committee's note (1972 Proposed Rules) (explaining a witness’s
lay opinion should put “the trier of fact in possession of an accurate reproduction of [an] event”
and not “amount to little more than choosing up sides”). Similarly, the Second Circuit has
explained that:
eyewitnesses sometimes find it difficult to describe the appearance or relationship of
persons, the atmosphere of a place, or the value of an object by reference only to
objective facts, [so] the law permits such witnesses to testify to their personal perceptions
in the form of inferences or conclusory opinions. . . . In short, Rule 701 represents no
departure from Rule 602: ‘A witness may not testify to a matter until evidence is
introduced sufficient to support a finding that the witness had personal knowledge of the
matter.’ Rather, Rule 701 simply recognizes lay opinion as an acceptable ‘shorthand’ for
the ‘rendition of facts that the witness personally perceived.’
United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005), cert. denied, 552 U.S. 1154 (2008)
(citation omitted). In sum, Rule 701 was not drafted as an end-run around other rules but merely
a recognition of how people think and speak.
Opinion testimony under Rule 701 does not allow witnesses to testify on matters about
which they have no personal knowledge or that are based on hearsay. United States v. Flores-deJesus, 569 F.3d 8, 16-20 (1st Cir.), cert. denied 558 U.S. 974 (2009). Nor does opinion testimony
under Rule 701 permit witnesses to stray into matters reserved for the jury, such as opinions
about a defendant’s guilt or a witness’s credibility. See United States v. Casas, 356 F.3d 104,
119-20 (1st Cir.), cert. denied 541 U.S. 1060 (2004).
Case agents, the principal law enforcement witnesses, present a challenge to consistent
application of Federal Rules of Evidence 701 (lay witness) and 702 (expert), and also the scope
14
of Federal Rules of Evidence 1006 and 611(a). The case agent leads and coordinates the
investigation, corresponds with all other law enforcement, coordinates arrests, participates in
proffers, testifies before the grand jury, helps prepare for trial, testifies at trial, often sits at
counsel table, and is almost always excluded from the rule prohibiting witnesses to remain in the
courtroom. A case agent may testify multiple times throughout a trial to help tie a case together,
move a trial along, and sometimes help a jury decipher extensive testimony or records. On the
witness stand, a case agent need not be qualified as an expert to report his extensive law
enforcement training and experience. These multiple roles of case agents, and thus multiple
avenues for personal observation, are all permissible areas for testimony.
But case agents often stray into the impermissible: presenting the government’s theory of
the case as evidence under the guise of personal observation under Rule 701. This method to
determine drug quantity is incredibly powerful testimony. Indeed, here, the jury specifically
asked to see Agent Simpson’s “40-day wiretap analysis.” Jurors were given Agent Simpson’s
two-page summary, and they returned with another question about how often the agent guessed
on what the drug count/type was in his analysis. And here, the government relied on Agent
Simpson’s analysis in its summation. Also, here, this analysis became the exact drug calculation
submitted by Probation in its Presentence Investigation Report. And, finally, here, the District
Court adopted this analysis at sentencing.
Had Agent Simpson put forth this precise methodology with criteria, averages, and
estimates as an expert, the defendants would have received more procedural protection below. 4
4
And Rule 702 does not cure the inherent danger of the case agent’s dominance in a case either.
Despite its utility, a thin line also separates proper expert testimony from “the illegitimate and
impermissible substitution of expert opinion for factual evidence [where the] officer expert
transforms into the hub of the case, displacing the jury by connecting and combining all other
testimony and physical evidence into a coherent, discernible, internally consistent picture of the
15
Indeed, various circuit courts give district court instructions when case agents testify in a dual
role as both fact and expert witness. The Ninth Circuit advises that courts take precautionary
measures to ensure the jury understands how to properly evaluate a witness’s dual roles. See
United States v. Freeman, 498 F.3d 893, 902-04 (9th Cir. 2007) (holding case agent not
categorically barred from testifying as both an expert and percipient witness, “provided that the
district court engages in vigilant gatekeeping” and that “jurors are aware of the witness’s dual
roles” and the bounds of each type of testimony). Similarly, the Fifth Circuit requires district
courts to clearly demarcate dual-role witnesses’ expert and lay testimony as part of their broader
duty to be “vigilant gatekeepers.” See United States v. Haines, 803 F.3d 713, 732 (5th Cir. 2015).
The Tenth Circuit has explained various ways to minimize dangers of agents’ overview
testimony, including limiting it to a high-level of generality and not allow second-hand testimony
of incriminating information gleaned during the investigation. United States v. Brooks, 736 F.3d
921, 934 (10th Cir. 2013), cert. denied 572 U.S. 1109 (2014). The Seventh Circuit requires a
“properly structured direct examination” to distinguish fact versus opinion. See, e.g., United
States v. York, 572 F.3d 415, 425 (7th Cir. 2009). The Sixth Circuit requires cautionary
instructions. See, e.g., United States v. Nixon, 694 F.3d 623, 629 (6th Cir. 2012). No protections
were offered here, and, as expected, defense counsel could not make any real headway on crossexamination either. See United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003) (explaining
defendant’s guilt.” United States v. Mejia, 545 F.3d 179, 190-91 (2d Cir. 2008); cf. United States
v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003) (explaining expert who is also fact witness carries
aura of special reliability and trustworthiness and improperly bolsters other witnesses); United
States v. Haines, 803 F.3d 713, 730 (5th Cir. 2015) (cautioning the use of dual-role testimony);
Salcedo v. People, 999 P.2d 833, 840 (Colo. 2000) (recognizing the inherent dangers of dual-role
testimony, and the risk of misleading the jury where expert testimony was intermingled with fact
testimony).
16
that expert testimony by a fact witness or case agent can inhibit cross-examination because an
opinion is less easily contradicted than a factual matter).
This law enforcement drug-weight-and-criminal-responsibility analysis came in freely,
without any meaningful inquiry into the Rules of Evidence, nor any limiting structure or
cautionary instructions. But a clear standard should be established by this Court to manage the
admissibility of lay opinion law enforcement testimony pursuant to Rule 701. For example, a
helpful standard would be that a witness has “firsthand knowledge or observation,” only when he
personally participated in or observed the events about which such opinion is being offered. This
opinion may not be based upon information gathered by the witness through after-the-fact
investigation, including witness interviews, examinations of paper and electronic documents and
records, and listening to and viewing audio or video recordings of past events in which the
witness did not personally participate. See, e.g., United States v. Johnson, 617 F.3d 286, 293 (4th
Cir. 2010) (“Agent Smith admitted that he did not participate in the surveillance during the
investigation, but rather gleaned information from interviews with suspects and charged
members of the conspiracy after listening to the phone calls. His post-hoc assessments cannot be
credited as a substitute for the personal knowledge and perception required under Rule 701.”).
Such a standard would prevent the broad, sweeping conclusions that are too often admitted at
trials and unfairly permit the government to explicitly argue its case through the presentation of
its witnesses. Cf. Garcia, 413 F.3d at 214 (“If such broadly based opinion testimony as to
culpability were admissible under Rule 701, ‘there would be no need for the trial jury to review
personally any evidence at all.’” (quoting United States v. Grinage, 390 F.3d 746, 750 (2d Cir.
2004))).
17
b. The legal question presented is exceptionally important.
This case presents a question of exceptional importance because it affects virtually every
federal criminal trial in which an agent testifies about their opinion as a lay witness pursuant to
Rule 701. Ultimately, because case agents’ testimony is an inevitable and featured component of
most criminal trials, courts must be vigilant to ensure that lay opinion testimony, particularly the
most consequential aspects, fits within the Rules of Evidence. Lay opinion law enforcement
testimony, which substitutes argument into the factual record, undermines due process at its core.
A decision from this Court setting a clear standard for the permissible bounds of lay opinion
testimony is especially necessary because there is both intra- and inter-circuit conflict and
general inconsistency on this issue. See S. Ct. R. 10(a).
c. This case is an ideal vehicle to resolve this question
This case presents an ideal vehicle to address the issue because the testimony came in
without any limitation. Thus, this case provides a clean slate to contemplate minimum procedural
protections and ensure that district courts play the same gatekeeping role as they do with expert
witnesses. Cf. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993) (holding that
trial courts have an obligation to ensure that expert testimony “is not only relevant, but reliable”).
18
CONCLUSION
For the foregoing reasons, Petitioner Daniel Robinson respectfully requests that the Court
grant his Petition for a Writ of Certiorari.
Respectfully submitted,
s/ Alison Brill
ALISON BRILL
Assistant Federal Public Defender
Dated: June 30, 2023
19
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.