Reply Brief — Laura Jordan and Mark Jordan, Petitioners v. United States

No. 23-650

In The

Supreme Court of the United States

LAURA JORDAN AND MARK JORDAN,

v.

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITIONERS’ REPLY BRIEF

Brent Evan Newton

Counsel of Record

Attorney at Law

19 Treworthy Road

Gaithersburg, MD 20878

(202) 975-9105

Counsel for Petitioners

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

Page

Table of Authorities ................................................... ii

Reply Brief ..................................................................1

I.

The Fifth Circuit’s Decision Conflicts

with Neder and Hurst v. Florida, 577

U.S. 92, 102 (2016) ........................................1

II.

A Widespread Division Exists Among

the Lower Courts Concerning How to

Apply the Harmless-Error Test Set

Forth in Neder ...............................................6

III. Sabri does not foreclose petitioners’ asapplied challenge to their convictions

under 18 U.S.C. § 666 .................................11

Conclusion ................................................................13

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................................. 7

Bollenbach v. United States,

326 U.S. 607 (1946) ................................................. 4

Chaidez v. United States,

568 U.S. 342 (2013) ............................................... 11

Delaware v. Van Arsdall,

475 U.S. 673 (1986) ............................................... 10

Fischer v. United States,

529 U.S. 667 (2000) ............................................... 11

Hedgpeth v. Pulido,

555 U.S. 57 (2008) (per curiam ............................... 2

Hurst v. Florida,

577 U.S. 92 (2016) ........................................... 1, 2, 3

Neder v. United States,

527 U.S. 1 (1999) ................................................ 1-10

Padilla v. Kentucky,

559 U.S. 356 (2010) ............................................... 11

People v. Merritt,

392 P.3d 421 (Cal. 2017) ......................................... 2

Sabri v. United States,

541 U.S. 600 (2004) ........................................... 1, 11

Skilling v. United States,

561 U.S. 358 (2010) ............................................... 12

State v. Jackowski,

915 A.2d 767 (Vt. 2006)......................................... 10

Stevenson v. United States,

162 U.S. 313 (1896) ................................................. 4

iii

United Broth. of Carpenters & Joiners of America v.

United States,

330 U.S. 395 (1947) ................................................. 4

United States v. Allison,

616 F.2d 779 (5th Cir. 1980) ................................. 12

United States v. Freeman,

70 F.4th 1265 (10th Cir. 2023) ............................... 8

United States v. Kahn,

58 F.4th 1308 (10th Cir. 2023) ........................... 7, 8

United States v. Legins,

34 F.4th 304 (4th Cir. 2022) ................................... 7

United States v. Miller,

527 F.3d 54 (3d Cir. 2008) .................................... 12

United States v. Pizarro,

772 F.3d 284 (1st Cir. 2014) ................................... 7

United States v. Prigmore,

243 F.3d 1 (1st Cir. 2010) ....................................... 9

United States v. Smithers,

92 F.4th 237 (4th Cir. 2024) ................................... 9

United States v. Zhen Zhou Wu,

711 F.3d 1 (1st Cir. 2013) ....................................... 7

Vasquez v. United States,

566 U.S. 376 (2012) ............................................... 11

Statutes

18 U.S.C. § 666 .............................................. 1, 11, 12

18 U.S.C. § 1346 ....................................................... 12

1

REPLY BRIEF

In its brief in opposition (BIO), respondent contends that the issues raised in the petition are unworthy of this Court’s review because (1) the Fifth

Circuit’s decision does not conflict with Neder v.

United States, 527 U.S. 1 (1999); 1 (2) there is “no

meaningful disagreement” among the lower courts

concerning Neder; and (3) Sabri v. United States, 541

U.S. 600 (2004), forecloses petitioners’ as-applied

challenge to their convictions under 18 U.S.C. § 666.

BIO, at 13-30. These arguments lack merit.

I.

The Fifth Circuit’s Decision Conflicts with

Neder and Hurst v. Florida, 577 U.S. 92,

102 (2016).

Respondent argues that the Fifth Circuit correctly applied Neder’s harmless-error analysis notwithstanding the fact that petitioners at trial contested

the quid pro quo element that the district court

failed to include in the jury instructions’ definition of

“reward”—while, by contrast, Neder did not contest

the “materiality” element omitted from his jury instructions. BIO, at 16-17. Respondent also endorses

the Fifth Circuit’s weighing the supposedly “voluminous” evidence a quid pro quo associated with all

benefits given to Petitioner Laura Jordan (Laura) by

Petitioner Mark Jordan (Mark) against the countervailing evidence that Mark only gave Laura post hoc

“rewards” for her votes. BIO, at 18-20. Respondent

misreads Neder and also fails to account for over a

1 Respondent also argues that there is no “special justifica-

tion” for overruling Neder. BIO, at 24-26.

2

century’s worth of this Court’s precedent prohibiting

such appellate weighing of competing evidence.

A. Neder’s Threshold Requirement for

Harmless-Error Analysis: A Defendant

Did Not “Contest” the Omitted or

Misdefined Element at Trial.

Neder held that its “narrow” rule 2 permits an

appellate court to find an omitted or misdefined element harmless only if both (1) the defendant did not

“contest” the element and (2) the evidence of the defendant’s guilt of the properly-defined element is

“overwhelming.” Neder, 527 U.S. at 15-17; see also

Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam)

(applying Neder to misdefined elements).

Conversely, when a defendant at trial objected to

the omitted or misdefined element in the jury instructions and contested the prosecution’s evidence

of that element—as petitioners did—an appellate

court should not conduct harmless-error analysis. In

that circumstance, an appellate court’s deeming the

error harmless on the ground that court considers

evidence of a properly-defined element to be overwhelming would usurp “the factfinding role reserved

for the jury.” People v. Merritt, 392 P.3d 421, 431

(Cal. 2017) (Liu, J., concurring).

This Court’s decision in Hurst v. Florida, 577

U.S. 92 (2016), confirms petitioners’ interpretation of

Neder. After concluding that the Sixth Amendment

2 See

Neder, 527 U.S. at 17 n.2 (noting that the Court’s

holding only applied to “the narrow class of cases like the present one”).

3

was violated when Hurst’s capital sentencing jury

was not required to find the equivalent of an “element” rendering him eligible for a death sentence—

an element that was not contested by Hurst in the

trial court 3 —this Court remanded for a harmlesserror analysis. In so doing, this Court specifically

described Neder’s harmless-error test as turning on

the fact that the omitted element at Neder’s trial

(like Hurst’s capital sentencing hearing) was “uncontested”:

[W]e do not reach the State’s assertion that

any error was harmless. See Neder v. United

States, 527 U.S. 1, 18-19 (1999) (holding that

the failure to submit an uncontested element

of an offense to a jury may be harmless).

This Court normally leaves it to state courts

to consider whether an error is harmless,

and we see no reason to depart from that

pattern here.

Hurst, 577 U.S. at 102 (emphasis added).

B. An Appellate Court’s Finding of Harmlessness Is Precluded When Any Evidence Could Permit a Rational Juror to

Possess a Reasonable Doubt About the

Omitted or Misdefined Element.

This Court held in Neder that, when a defendant

did not “contest” the omitted (or misdefined) element

at trial, an appellate court still cannot deem the er3 Brief for Respondent, Hurst v. Florida, No. 14-7505, 2015

WL 4607695, at *41.

4

ror harmless unless the prosecution on appeal

demonstrates that there was no evidence at trial

“that could rationally lead to a contrary finding with

respect to the omitted element.” Neder, 527 U.S. at

19. Such an analysis must occur in “typical appellate-court fashion”—meaning an appellate court

should “not become in effect a second jury to determine whether the defendant is guilty.” Id. (citation

and internal quotation marks omitted).

This Court has long held that an appellate court,

when reviewing erroneous jury instructions to determine whether they harmed a defendant’s ability

to defend against the charges, must not weigh competing evidence on appeal, even if appellate judges

consider the prosecution’s evidence to be “overwhelming.”4 Neder did not overrule those cases; it

effectively reaffirmed them. Thus, any evidence offered by a defendant at trial that would permit a rational juror to acquit under correct jury instructions,

even if very weak compared to the prosecution’s countervailing evidence that clearly is sufficient to convict,

forecloses an appellate court’s harmless-error ruling

under Neder.

Rather than review the evidence in “typical appellate court fashion,” the Fifth Circuit instead erroneously weighed the evidence supporting an acquittal of quid-pro-quo “bribes” and a conviction of post

hoc “rewards” against what the Fifth Circuit described as “voluminous” prosecution evidence solely

4 See United Broth. of Carpenters & Joiners of America v.

United States, 330 U.S. 395, 407-08 (1947); Bollenbach v. United States, 326 U.S. 607, 614 (1946); Stevenson v. United States,

162 U.S. 313, 314 (1896).

5

of quid-pro-quo exchanges of Mark’s benefits for

Laura’s votes. Pet. 21a.

In petitioners’ case, assuming arguendo that the

second step of the Neder test is even appropriate in

view of the fact that petitioners contested the misdefined element, the record certainly contains sufficient evidence for a rational juror to possess a reasonable doubt about whether the benefits provided

by Mark to Laura were in exchange for her votes as

mayor (as opposed to being offered as post hoc “rewards”). Most importantly, in her testimony Laura

explicitly denied that her votes were in exchange for,

or influenced by, Mark’s benefits and had made up

her mind to vote for the Palisades development before she met Mark. Pet. 15-16. Furthermore, other

evidence—such as Mark’s statement to his then-wife

that providing benefits to Laura was “the least [he]

could do” for Laura’s votes, Pet. 145—support a conviction for post hoc “rewards” without a quid pro quo.

Significantly, respondent, like the Fifth Circuit’s

opinion, fails to mention the government’s explicit

concession in the district court that the evidence at

trial permitted a rational juror to acquit petitioners

of quid-pro-quo bribery while convicting them of

solely of post hoc rewards (with no quid pro quo).

5 Respondent

points to Mark’s statement to his ex-wife

that he “owe[d]” Laura “a lot” because Laura “made [them] a lot

of money” (suggesting a quid pro quo) but fails to mention that

Mark told his ex-wife that it was “the least [he] could do”

(which suggests a post hoc “reward” without a quid pro quo).

BIO, at 19 (emphasis added); see also Pet. 14-15 & n.18 (emphasis added). Like the Fifth Circuit, respondent has failed to

view the evidence in a light most favorable to petitioners—a

requirement in harmless-error analysis.

6

Pet. 16. That concession forecloses harmless-error

review under Neder.

In sum, the Fifth Circuit’s harmless-error analysis conflicts with Neder in two fundamental ways.

First, the court proceeded with a harmless-error

analysis despite the fact that petitioners had “contested” the misdefined element. Second, the Fifth

Circuit erroneously deemed the alternative-theory

error to be harmless based on the circuit judges’ perception that evidence of quid-pro-quo exchanges of

Mark’s benefits for Laura’s votes was overwhelming

compared to the countervailing evidence.

II.

A Widespread Division Exists Among the

Lower Courts Concerning How to Apply

the Harmless-Error Test Set Forth in

Neder.

Respondent first contends that there is “no

meaningful disagreement” among the federal circuit

courts concerning Neder. BIO, at 20-21, 24. Respondent further argues the conflict between the

Fifth Circuit’s decision and decisions of some state

appellate courts applying Neder “is irrelevant because a state court’s adoption of a more stringent

approach to harmless error than the one described in

Neder would not conflict with the uniform Nederbased approach of the federal courts of appeals.”

BIO, at 22 n.2. Respondent is wrong on both points.

7

A.

There Is Disarray About the Meaning of

Neder Among the Federal Circuit

Courts.

As Judge Lipez recognized a decade ago,6 there is

widespread division among the federal circuit courts

concerning Neder—both an inter-circuit split and

several intra-circuit splits. For instance, in some of

their decisions, the First and Fourth Circuits have

held that harmless-error analysis under Neder is not

permitted if a defendant (unlike Neder) “contested”

an omitted or misdefined element at trial. See, e.g.,

United States v. Legins, 34 F.4th 304, 323 (4th Cir.

2022);7 United States v. Zhen Zhou Wu, 711 F.3d 1,

20 (1st Cir. 2013) (“[H]ere, the defendants did contest the prosecution’s [evidence of an omitted element], thus making this case different from Neder.”).

A recent Tenth Circuit decision, United States v.

6 United States v. Pizarro, 772 F.3d 284, 303 (1st Cir. 2014)

(Lipez, J., concurring).

7 Respondent contends that the Fourth Circuit has not re-

quired the omitted or misdefined element to be “uncontested”

for the error to be deemed harmless and, instead, has approvingly cited the decisions of several other circuit courts, which,

in applying Neder, asked only whether the evidence of the

omitted element was “overwhelming.” BIO, at 21-22. Legins

contradicts respondent’s position. In Legins, the Fourth Circuit,

in finding an omitted element in jury instructions to be harmless, required both that the omitted element was “uncontroverted” at trial and that the evidence of that element was

“overwhelming.” Legins, 34 F.4th at 323-24. The Fourth Circuit’s citation in Legins to the decisions of other circuit courts

was merely to establish that the other courts applied harmlesserror analysis to errors under Apprendi v. New Jersey, 530 U.S.

466 (2000)—not for the purpose of adopting the specific harmless-error analyses of those courts. Legins, 34 F.4th at 322.

8

Kahn, 58 F.4th 1308 (10th Cir. 2023), similarly conflicts with the Fifth Circuit’s approach:

Where an element of an offense is contested

at trial, as it was here, the Constitution requires that the issue be put before a jury—

not an appellate court. See Neder, 527 U.S.

at 18-19. . . . For this court to now essentially retry the case on appeal and opine on

what verdict the jury would have reached if

it had been properly instructed asks too

much of an appellate court. This is particularly true here, where we would be determining Dr. Kahn’s subjective intent on a cold

record. This court will not wade into the evidence to now apply the correct instructions—

that is the jury’s prerogative.

Id. at 1319; but see United States v. Freeman, 70

F.4th 1265, 1282 (10th Cir. 2023) (“[W]e reject

Freeman’s assertion that, pursuant to Neder, the

omission of an element in the jury instructions cannot be harmless if the element was contested at trial.”).

In addition, concerning the second part of the

Neder test (which the Fifth Circuit applied despite

the fact that petitioners had contested the misdefined element), the Fifth Circuit’s “voluminous”evidence approach clearly is at odds with other

Fourth Circuit decisions that have assessed harm

even when a defendant contested an omitted or misdefined element. Those decisions found harm if

there was “any” evidence on which a rational juror

could have had a reasonable doubt about an omitted

element, even if scant or weak compared to the pros-

9

ecution’s countervailing evidence from the appellate

judges’ perspective.

See, e.g., United States v.

Smithers, 92 F.4th 237, 251-52 (4th Cir. 2024) (“True,

much of the [defendant’s] testimony wasn’t particularly convincing, as weighed against the prosecution’s evidence. And a jury might very well not have

believed Smithers’ testimony that he was acting with

a legitimate medical purpose. But copious evidence

of a defendant’s guilt does not necessarily make an

instructional error harmless.”). That approach differs significantly from the Fifth Circuit’s approach in

petitioners’ case.

The First Circuit—in cases in which a defendant

(unlike Neder) had contested an omitted or misdefined element—has alternatively assessed the evidence of the element but has refused to engage in

the type of “overwhelming” (or “voluminous”) evidence analysis conducted by the Fifth Circuit. See

United States v. Prigmore, 243 F.3d 1, 22 (1st Cir.

2010) (“[T]he contested nature of the testing evidence in this case might well suffice to distinguish it

from Neder in and of itself. In any event, while the

government’s evidence of the purpose behind the testing was strong, the competing evidence was not inherently incredible. That effectively ends the matter.”)

(emphasis added). Because the evidence at trial

permitting an acquittal of quid-pro-quo bribery and

a conviction of post hoc rewards was not “inherently

incredible,” the alternative-theory error in petitioners’ case cannot be deemed harmless.

As the foregoing discussion demonstrates, the

federal circuits are in widespread disarray concerning Neder.

10

B. Several State Appellate Courts’ Decisions Add to the Division Among the

Lower Courts.

Respondent does not appear to dispute that some

state appellate courts have rendered decisions applying Neder that conflict with the Fifth Circuit’s decision in petitioners’ case. See BIO, at 22 n.2. Nevertheless, respondent contends such a conflict is unimportant because the state courts are free to apply a

“more stringent” harmless-error test. Id.

Respondent’s position would make sense if any of

the state court decisions cited in the petition (Pet.

22-23 n.22)8 had invoked state law in support of the

harmless-error analysis. But none did so. Instead,

they all cited Neder—which thus adds to the inconsistent approaches in the lower courts about what

the U.S. Constitution requires in an appellate court’s

harmless-error analysis of an element omitted from,

or misstated in, jury instructions. See Delaware v.

Van Arsdall, 475 U.S. 673, 678 n.3 (1986) (unless a

state appellate court makes a “plain statement” that

its harmless-error analysis of a federal constitutional

violation was based on state law, this Court will assume the harmless-error ruling was based on federal

law). Therefore, in deciding whether to grant certiorari, this Court should consider the division among

8 See also State v. Jackowski, 915 A.2d 767, 773 (Vt. 2006)

(rejecting the dissenting judges’ argument that the jury instruction error was harmless under Neder, and concluding that

“Where, as here, intent is the central—and only—issue, and the

defendant presents minimally sufficient evidence rebutting intent, we cannot say that an erroneous jury instruction on that

issue amounts to harmless error.”).

11

federal and state appellate courts. See, e.g., Chaidez

v. United States, 568 U.S. 342, 34 (2013) (“We granted certiorari . . . to resolve a split among federal and

state courts on whether Padilla [v. Kentucky, 559

U.S. 356 (2010),] applies retroactively.”).

***

Finally, although presented in the specific context of a misdefined element in jury instructions,

this case also presents the Court an opportunity to

provide much-needed broader guidance on the role of

“overwhelming evidence” in harmless-error analysis

more generally—something the Court attempted to

do in granting certiorari in Vasquez v. United States,

No. 11-199, only to dismiss the petition as improvidently granted after oral argument. See 566 U.S.

376 (2012).

III.

Sabri does not foreclose petitioners’

as-applied challenge to their convictions

under 18 U.S.C. § 666.

Respondent contends that this Court’s decision

in Sabri v. United States, 541 U.S. 600 (2004), forecloses petitioners’ as-applied challenge. BIO, at 2728. Respondent errs. Sabri only addressed whether

§ 666 is “facially” unconstitutional. Petitioners challenge to § 666 is based on a specific ground not addressed in Sabri—that, when a defendant’s alleged

bribery offense did not cause and was not intended

to cause the spending of any government funds (local,

state, or federal), Congress lacks the power to punish

such conduct under the Spending Clause. The lack of

any funds being put at risk results in an unconstitutional application of § 666. See Fischer v. United

States, 529 U.S. 667, 689 n.3 (2000) (Thomas, J., dis-

12

senting, joined by Scalia, J.) (stating that “[i]f Congress attempted to criminalize acts of theft or bribery based solely on the fact that—in circumstances

unrelated to the theft or bribery—the victim organization received federal funds,” such a statute would

be unconstitutional).

Respondent also claims that petitioners’ case is a

“poor vehicle” to review their as-applied challenge to

their § 666 convictions because it was not preserved

for appeal. Respondent points to the fact that the

issue was raised for the first time in a post-trial motion for judgment of acquittal under Federal of Criminal Procedure 29(c) and not raised in a pretrial motion to dismiss under Rule 12(b)(3). BIO, at 29-30.

Respondent errs.

It is well-established that a claim of insufficient

evidence is properly preserved for appeal even if is

raised for the first time in a post-trial Rule 29(c) motion. See United States v. Allison, 616 F.2d 779, 78384 (5th Cir. 1980); United States v. Miller, 527 F.3d

54, 60-61 (3d Cir. 2008). Petitioners’ as-applied constitutional challenge to their § 666 convictions

properly was raised as a claim of insufficient evidence—with the predicate argument being that,

properly construing the statute to avoid unconstitutional application, § 666 does not cover their conduct.

Cf. Skilling v. United States, 561 U.S. 358, 399-413

(2010) (assessing a constitutional challenge to the

honest-services wire fraud statute in the context of

the petitioner’s claim that his conduct did not violate

the statute); id. at 413 (“It is therefore clear that, as

we read [18 U.S.C.] § 1346 [to avoid an unconstitutional application], Skilling did not commit honestservices fraud.”).

13

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

April 19, 2024

Respectfully submitted,

Brent Evan Newton

Counsel of Record

19 Treworthy Road

Gaithersburg, Maryland 20878

(202) 975-9105

brentevannewton@gmail.com

Counsel for the Petitioners