Petition for Writ of Certiorari — Arvin Terrill Carmen, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

ARVIN TERRILL CARMEN,

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Stephen R. Hormel

Counsel of Record

Hormel Law Office, L.L.C.

17722 East Sprague Avenue

Spokane Valley, WA 99016

Telephone: (509) 926-5177

Facsimile: (509) 926-4318

On Petition:

Bret Uhrich

Walker-Heyes, PLLC

1333 Columbia Park Trail, Ste. 220

Richland, WA 99352

Telephone:(509) 735-4444

QUESTION PRESENTED FOR REVIEW

Introduction.

The Court in Rutledge v. United States, held that the “in concert” element of

a continuing criminal enterprise (CCE) under 21 U.S.C. § 848 “signifies mutual

agreement in a common plan or enterprise” which “requires proof of a conspiracy

that would also violate [21 U.S.C.] § 846” and “conspiracy as defined in § 846 does

not define a different offense from the CCE offense defined in § 848.” 517 U.S. 292,

300 (1996). Therefore, a § 846 conspiracy is a lesser included offense of a § 848

CCE. Id. Rutledge noted that to convict a defendant of a CCE under § 848, “the

defendant must ... commit a series of substantive violations.” Jd. at 298 n.7.

Subsection 848(c) requires that “a continuing series of violations [must be] ...

undertaken by [the defendant] in concert with five or more other persons with

respect to whom [the defendant] occupies a position of organizer, a supervisory

position, or any other position of management.” 21 U.S.C. § 848(c)(2)(A).

The question presented here is:

Can each of the controlled substance act violations that make up “a continuing

series of violations” in a CCE prosecution pursuant to 21 U.S.C. § 848(c) rest on a

finding that the defendant and five or more other persons were part of an agreement

to commit the continuing series of violations?

LIST OF THE PARTIES AND RELATED CASES

The parties to this petition for writ of certiorari are the Petitioner, Arvin

Terrill Carmen; and the Respondent, United States of America.

There are no related cases to this petition.

il

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.................:cccceseecseceeteeeeceeseeeeeseesees i

LIST OF THE PARTIES AND RELATED CASES. ...........cccccccseeeeeee see eteeeeeeees i

TABLE OF CONTENT .......c:scccsscsesseserssnccegecsssensecsecssseepecsseseseseeseesee sessed eae ii

TABLE OF AUTHORITIES... wisssssiassensesssecossnscarcenscnsevscaweaaccvseeccaaenesesnegennesses Vv

PETITION FOR WRIT OF CERTIORARL....0.........ccecscceceeeneeeeeeeeeseteneeeeneeee sees 1

OPINIONS BELOW. wis ssscissercsensiarsasxessatirseaaeveeervarsariscsvesovessanennscconssonsscacsssens 1

JURISDICTION ssssssiccccavecsusscnscvxecinensswsncoeancnneonieeanovnnnsasoneenevagantanenencannon epeessssanis wuss One 1

RELEVANT STATUTORY PROVISION ........0...ccccceeecccsesceesseeseeetesseeeeseeeeeneseeees 1

INTRODUCTION wissssssvnssisicvnans sanessevewunsawanneasessnnnensnnenemonnnnyonciehs bas aesine aes pea 2

STATEMENT OF THE CASES sesisisssccsccssseazsssstnseseisusctencasssrccsnisecovessasnvoevevasenencaceontes 9

REASONS FOR GRANTING THE WRIT .....0.....ccccecccecseeceeesseesenseeseeeserseeseseeneeees 30

I. The Ninth Circuit’s Decision Departs From This Court’s

Articulation Of The “In Concert” Element In Rutledge

And Allowed The Jury To Bypass The “Specific Factual Details”

Required Under Richardson...........ccccceccccceceneceneseuaesenteetneneuaeeenseeenen 30

II. The Ninth Circuit’s Decision Creates Tension With The Third

Circuit’s Decision In United States v. Fernandez and

The Seventh Circuit’s Decision in United States v. Baker ............... 832

III. The Review Of The Record Required Under Strickland

Demonstrates The United States Used The “Where There

is Smoke There Must be Fire” Approach Prohibited Under

Richardson, Undermining Confidence in the Outcome of

Carmen’s Trial in Violation of His Right to Effective

Assistance Of Counsel..............cccceccececeeeeceeeeetneeeseeeeueeeeeeectaeeuenenaeaees 34

IV. This Case Provides An Important Issue And Gives The Court

An Excellent Vehicle To Answer The Question Presented................ 38

CONCLUSION . . sssearscsorsnnaensennonesanssunmcensenenesngasis tGe dell Susans Gueeesieee eUmubTedsaaunenne 40

ill

APPENiX........cccccececececceceeesuetecenenetereeeseeeeeeeeeseeeseeeceseeseeseeeeeeeaeeuneses 42

Ninth Circuit Memorandum........c..cccccccccscuccccecsceesnnccnsueeeneueeeueeeetereees 1

Order Denying Petition for Rehearing and Suggestion

for Rehearing En Bane.......corsecncseedaeaeysdeaideeseis senwiveen oven sabcnweaneseenceescee 5

District Court Order Denying § 2255 Motion and Issuance

of Certificate of Appealability.............cccceseceeceee eects eneeeeeeeeneseseeeeeeensnes 6

Indictment, ..eressenenesendssaedusseses suai Coae VORNNT bts Ge ee ea NNNNT SeNEMN NAN EAORReT INES 11

Jury Instruction No. 7......... cc ccec sce ce cee enesesaeeeeeeneneneeceneeneeeeaeeseneeneens 27

VerdiCheererneareenaneansceneeonrnenag he danas is twanOeT sue oa teCoous Muses ohaalinenel se eeeianwes 29

21 UG.C. § 848 vcsiiscsscacvexcsaisvawssnsoswensassaenswanens meaneoaesnseeneormamenmennte 31

iv

TABLE OF AUTHORITIES

Case Authority

Barrett v. United States, 607 U.S.--, 146 S. Ct. 482 (2026)... 0... cee eeeeeeeee eee en teen es 39

Carmen v. United States, 2022 WL 256286 (E.D.WA. Jan. 26, 2022).......cccceeee ee eeee 1

Garrett v. United States, 471 U.S. 773 (1985)... ...ccccceteceeeeeeeeneeeeneeeeeeeees 30,31,39,40

Honeycutt v. United States, 581 U.S. 448 (2017)......ccccccccssesceeeeeseeeeeueneeeeeneneeneees 36

Richardson v. United States, 526 U.S. 813 (1999)........cccsseneeeeeeees 7,8,30,32,37,39,40

Rutledge v. United States, 517 U.S. 292 (1996).......:.sseeneeeeeee 5,6,7,30,31,32,36,39,40

Smith v. United States, 568 U.S. 106 (2018)... ....cccccccscec eee eee tenses eeeaenenensneneeee sence 36

Strickland v. Washington. 466 U.S. 668 (1984).......cccccceceeeeeeessseneeeteeeeaeeeens 9,37,38

United States v. Baker, 905 F.2d 1100 (7th Cir. 1990).........ccccceeee eee ee 32,35,36,37,39

United States v. Bass, 310 F.3d 321 (Sth Cir. 2002).........ccecseecseeeceeeeeeeesseeeeeeenees 23

United States v. Bayer, 831 U.S. 532 (1947)........ccecesecceee ene eseneeeeeneneeeeeeeneeer tues 31

United States v. Brantley, 733 F.2d 1429 (11th Cir.1984)......ccciceccceeeeeeeeeee ween eee 35

United States v. Carmen, 2024 WL 5205751 (9th Cir. 2024)... .....cceeeeeeeneeeeeeeeeeeeees 1

United States v. Coles, 558 F. App'x 173 (8d Cir. 2014).......ccec cic eceeee eens eee eee eee ne 36

United States v. Felix, 508 U.S. 378 (1992).......ccccececses ene eeeeeeeeeeueeeeeeeeeeeeeeeees 31,39

United States v. Hall, 843 F.2d 408 (10th Cir.1988)........... ccc cccsee ee eenaee ene eeeeeeaees 35

United States v. Fernandez, 822 F.2d 382 (8d Cir. 1987).........cccceeeee seen 33,34,35,39

United States v. Jones, 801 F.2d 304 (8th Cir. 1986).........ccceeeseeeceeeeeeeeeeeeeneees 12,20

Kramer v. United States, 797 F.3d 493 (7th Cir. 2015)......cccccccseseeeeeeeeneeeeeeee ere ees 36

United States v. Middleton, 673 F.2d 31 (1st Cir.1982).........cccceeeec ene eneseeeeeeeeeneee 35

Vv

United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011)... cece cecceee eee eee eee enenneneeee 36

United States v. Ricks, 802 F.2d 731 (4th Cir.1986)............cecesceeceeeeneeeeeteeuenseeees 35

United States v. Russell, 134 F.3d 171 (879 Cir. 1998).........cccccceeceeeeeeeesseeeeeaees 34,35

United States v. Schuster, 769 F.2d 337 (6th Cir.1985)..........ccccecceeeeeeeeneeeeneeeeneee 35

United States v. Tones, 759 F. App'x 579 (Oth Cir. 2018)... ....cccccecescneeecneneeeeesenenecs 3

United States v. Van Nguyen, 602 F.3d 886 (8th Cir. 2010)..........:ccccceceee ene eeeeeeaes 36

United States v. Young, 745 F.2d 733 (2d Cir.1984).........cccceceseceeeeceueeeeneeenseeenes 35

United States v. Ziskin, 360 F.3d 934 (9th Cir. 2008)..........cccceeceeeeeeeeneeeeeeeeeenenes 36

Statutes

21 U.S.C. § 841... suaicsuciieniteaccnacssmmestssamensinn aaa diit woe ceneeenmamnesnnenennme uponnranne ssa yaeiis IaGeS0RNs 3

21 ULS.C. § 846.0... scccwaiaeisaecs sa uvanaveauunanenrennseewtscasieenamnsenmeneneeneneanunemeg sees 2,7,31,36

21 U.S.C. § 848. .... aswsssssasccasneesssauarememmmenrasasaaiwawmamenonmeemmnensaanee ocee sense ee teees passim

28 U.S.C. 81254. .. .nesnnaskessiauiiehaussesessapecvasnxeosvescceswes punwuswuceswecwsnatumus +..c1veeeeveneseeeseee 1

28 U.S.C. § 2253 -cunssrvenvarenvasesensennsmnvnnpnansescesagnitndhe bey WCRMeUiRseeUReeSN ea ubenaseeeaexesa<s 1

28 U.S.C. § 22.55 cwsswanwersssevesscusnmvasswnsaasnwaneeeswns sccannoncemmameesensesmnnnmanranssssevadd 1,3,5

vi

PETITION FOR WRIT OF CERTIORARI

Petitioner, Arvin Terrill Carmen (hereinafter Carmen), respectfully seeks a

writ of certiorari to review the judgment of the United States Court of Appeals for

the Ninth Circuit affirming the district court’s order denying his motion to vacate,

set aside or correct sentence pursuant to 28 U.S.C. § 2255.

OPINIONS AND ORDERS BELOW

The Ninth Circuit's memorandum decision is not reported and is included in

the Appendix. App. 1-4. The district court’s order is also included in the Appendix.

App. 6-10.!

JURISDICTION

The Court of Appeals entered judgment on December 24, 2024. App. 1. The

order denying the petition for rehearing and suggestion for rehearing en banc was

denied November 26, 2025. App. 5. A motion to extend time to file this petition was

granted to April 25, 2026. This Court has jurisdiction under 28 U.S.C. § 1254(1).

The Court of Appeals had jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. §

2253(c). The district court had jurisdiction under 28 U.S.C. § 2255.

RELEVANT STATUTORY PROVISION

Section 848 of Title 21, United States Code, defines a “Continuing Criminal

Enterprise” as follows:

For the purposes of subsection (a), a person is engaged in a continuing

criminal enterprise if—

1 See, Carmen v. United States, 2022 WL 256286 (E.D. WA2022), aff'd, 2024

WL 5205751 (9th Cir. Dec. 24, 2024).

(1) he violates any provision of this subchapter or subchapter II

the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of

this subchapter or subchapter II—

(A) which are undertaken by such person in concert with

five or more other persons with respect to whom such

person occupies a position of organizer, a supervisory

position, or any other position of management, and

(B) from which such person obtains substantial income or

resources.

21 U.S.C. § 848(c); App. 31-32.

INTRODUCTION

Carmen is serving a 50-year term of imprisonment after a jury found him

guilty of engaging in a continuing criminal enterprise (CCE) in violation of 21

U.S.C. § 848, charged in Count 1 of the indictment.? App. 18, 29-30. The jury also

found Carmen guilty of conspiracy to distribute oxycodone hydrochloride (pain pills)

in violation of 21 U.S.C. § 846, charged in Count 2 of the indictment. App. 13-15, 30.

The indictment alleged that the CCE and the conspiracy occurred during

same period - “no later than the year 2008 ... and continuously thereafter up

through and including January 25, 2013.” App. 13. Therefore, Count 1 and Count 2

alleged the same agreement. Id.3

2 21 U.S.C. § 848(a) imposes increased penalties on CCE convictions.

: Although the indictment alleged 30 substantive violations of the Controlled

Substance Act, Carmen was not charged in any of the substantive violations in

Counts 3 through 32. App. 15-23.

2

The conspiracy in Count 2 alleged that Carmen did “combine, conspire and

agree together with” 61 codefendants and others to distribute pain pills. App. 13-15.

The jury found that the conspiracy in Count 2 constituted one of the predicate

violations in “a continuing series of violations” under § 848(c)(2). App. 29.

The jury also found that there was “a continuing series of violations” of the

Controlled Substances Act (CSA), including distribution of pain pills in violation of

21 U.S.C. § 841(a)(1), possession with intent to distribute pain pills in violation of §

841(a)(1) and use of a communication facility in furtherance of drug trafficking

crime in violation of 21 U.S.C. § 843(b). The jury found that each of these violations

of the CSA occurred “[t]hree or more times.” App. 29-30.

After the Ninth Circuit affirmed Carmen’s convictions on direct appeal,‘ he

timely filed a motion to vacate, set aside or correct the sentence pursuant to 28

U.S.C. § 2255. He claimed trial counsel was ineffective for failing to object to the

second element of Jury Instruction No. 7 (Instruction 7). He claimed Instruction 7 in

“defining the term acting in concert[,] improperly included the phrase ‘were part of

an agreement’ which inappropriately expanded the possible violation conduct to

include a conspiracy rather than remaining limited to ‘joint action’ as required by

the [CCE] statute.” App. 9.

The second element of Instruction 7 states:

Second, Defendant CARMEN committed the

violations together with five or more other persons.

4 See, United States v. Tones, 759 F. App'x 579 (9th Cir. 2018) (consolidated

appeal).

The Government does not have to prove that all

five or more of the other persons operated together at the

same time, or that Defendant CARMEN knew all of them.

The Government must prove beyond a reasonable doubt,

however, that Defendant CARMEN and at least “five or

more other persons” were part of an agreement or joint

action to commit the continuing series of violations of the

federal narcotics violations.

App. 28 (emphasis added). Instruction 7 includes two alternative ways the jury

could find CSA violations that constitute “a continuing series of violations:” (1)

“CARMEN and at least ‘five or more other persons’ were part of an agreement; or (2)

“CARMEN and at least ‘five or more other persons’ were part of ... joint action to

commit the continuing series of violations....” Id. (emphasis added).

Using the disjunctive language in defining the “in concert with” element

permitted the jury to find Carmen guilty of the CCE simply if he were part of an

agreement in “a continuing series of violations” with “at least five or more other

persons.” Jd. Instruction 7 did not require the jury to find Carmen committed any

substantive CSA violations “in concert with five or more other persons” that made

up “a continuing series of violations” as required in § 848(c)(2)(A). The “agreement”

part of the instruction allowed the jury to find the other substantive violations

alleged to have been committed by conspiracy, even though only one conspiracyrelated violation was submitted to the jury for consideration. App. at 29.

The question to be resolved is whether Instruction 7 improperly permitted

the jury to convict Carmen of the CCE by simply finding that he “and at least ‘five

or more other persons’ were part of an agreement (a conspiracy) ... to commit the

continuing series of violations....” Id. Instruction 7 did not require the jury to find

that Carmen actually committed any of the other substantive CSA violations that

are listed in the first element of Instruction 7 and in the special findings of the

verdict form as required in § 848(c)(2)(A). App. 27, 29-30. See, Rutledge v. United

States, 517 U.S. 292, 298, 298 n. 7 (1996) (“[a] CCE requires proof of a number of

elements that need not be established in a conspiracy,” including that the defendant

“commit a series of substantive violations.”).

Although the district court agreed that the second element of Instruction 7

overly inclusive, it denied Carmen’s motion. App.9-10. The district court concluded

that the third element in Instruction 7 and the special findings in the verdict form

that required the jury to unanimously find Carmen had a leadership role with at

least five or more other persons, “cured” any defect in the definition of “in concert

with” in the second element of Instruction 7. App. 9, 28, 30.

The district court, however, granted a certificate of appealability. App. 9-10,

The court concluded “that jurists of reason may differ with the Court’s conclusion

regarding use of the disjunctive in the definition of in ‘concert with’ in Instruction

No. 7.” Id.

The Ninth Circuit affirmed the district court’s order denying Carmen’s § 2255

motion. App. 1-4. The Ninth Circuit said:

The “plain meaning of the phrase ‘in concert’

signifies mutual agreement in a common plan or

enterprise.” Rutledge v. United States, 517 U.S. 292, 300

(1996). The jury instructions were consistent with that

meaning. Conspiracy is a lesser included offense of

engaging in a continuing criminal enterprise, as § 848

5

also requires that the defendant, inter alia, commit a

series of substantive violations, act as a supervisor or

organizer of the criminal enterprise, and obtain a

substantial income. Jd. at 299 n.7. Read as applying §

848’s “in concert” element only, the challenged portion of

the instruction appears consistent with the “mutual

agreement” meaning ascribed to that element by

Rutledge.

App. 2-3.

The Ninth Circuit also agreed with the district court that the third element

in Instruction 7 and the special findings in the verdict form “cured” any defect in

the second element of Instruction 7, reasoning that both “required the jury to find

that Carmen ‘acted as an organizer, supervisor or manager of the five or more

[other] persons ... in furtherance of the [CCE].” App. 3. The Ninth Circuit stated:

“We ... agree with the district court that ‘any overbreadth in the definition of ‘in

concert with’ was cured by detailed language’ in other portions of the jury

instructions that independently required such conduct.” Jd. (quoting App. 9).

The district court and the Ninth Circuit’s rationale is flawed. The third

element of Instruction 7 relating to the defendant’s role is distinct from the “in

concert” element in section 2 of Instruction 7. The second element of Instruction 7

allowed the jury to find that Carmen committed the requisite number of CSA

violations constituting “the continuing series of violations” if the jury simply found

he “and at least ‘five or more other persons’ were part of an agreement ... to commit

the continuing series of violations.” App. 28 (emphasis added). The jury was not

required to conduct a detailed review of the evidence to determine if Carmen

actually committed specific substantive violations of the Controlled Substances Act

6

(CSA) “in concert with five or more other persons” for which the jury could then

determine if Carmen “occupie[d] a position of organizer, a supervisory position, or

any other position of management.” 21 U.S.C. § 848(c)(2)(A).

The Court has rejected to an interpretation of § 848 that permits “a jury to

avoid discussion of the specific factual details of each violation.” Richardson v.

United States, 526 U.S. 813, 819 (1999). In Richardson, the Court held that each

individual violation making up a series of violations are separate elements of a CCE

on which the jury must be unanimous. Jd. at 824. Such interpretation requires a

jury to “focus on the specific factual detail” from evidence to identify specific

substantive violations the may constitute “a series of violations.” Jd. at 819. In this

case, allowing the jury to convict Carmen based on a conspiracy type agreement to

commit the series of violations, permitted the jury to avoid discussing specific

details of the evidence to determine if Carmen committed the requisite number

substantive CSA violations “in concert with five or more other persons” as required

in § 848(c)(2).

In Rutledge, the Court held that “a guilty verdict on a § 848 charge

necessarily includes a finding that the defendant also participated in a conspiracy

violative of § 846, conspiracy is therefore a lesser included offense of CCE.” 517 U.S.

at 307. The logical extension of this principle is this - any agreement between two or

more persons to violate any substantive provision of the CSA is subsumed by a

jury’s guilty verdict on the CCE charge. If true, how is it then that a defendant may

be convicted of a CCE simply on a finding that the defendant “and at least five or

more other persons were part of an agreement” to commit CSA violations that

constitute “a continuing series of violations”?

The jury was also allowed to avoid identifying any person or persons, if any,

that consisted of “five or more other persons” who participated “in concert with”

Carmen in specific substantive violations of the CSA for which the jury could then

determine if Carmen “occupie[d] a position of organizer, a supervisory position, or

any other position of management” as required under § 848(c)(2)(A). See,

Richardson, 526 U.S. at 819. Given the conspiracy in Count 2 listed 61

coconspirators, Instruction 7 permitted the jury to convict Carmen of the CCE based

on the sheer number coconspirators alleged in the agreement in Court 2, without

the jury finding Carmen committed any substantive CSA violations “as part of a

continuing series of violations ... in concert with five or more other persons” as

required in § 848(c). App. 18-15 and 28.

This case presents the Court an ideal opportunity to establish uniform

application of § 848 among the lower federal courts. A CCE conviction should not

rest on finding the defendant, with five or more other persons, were part of an

agreement to commit a series of substantive CSA violations. Resolution to the

contrary would permit a jury to avoid finding that the defendant actually committed

any substantive violations of the CSA “in concert with five or more other persons.”

If the Court resolves the question as Carmen seeks, such resolution would

establish that Carmen’s trial counsel’s performance was constitutionally deficient

for failing to object to the overly broad language in the second element of

Instruction 7. Strickland v. Washington. 466 U.S. 668, 687 (1984) (the support a

claim of ineffective assistance of counsel, “the defendant must [first] show that

counsel’s performance was deficient.”).

Then it must be determined if the deficient performance prejudiced Carmen’s

defense. Id. “Second, the defendant must show that the deficient performance

prejudiced the defense.”). To determine whether prejudice is established requires

consideration of “the totality of evidence before the judge or jury.” Jd. at 695. “When

a defendant challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have a reasonable doubt

respecting guilt.” Jd.

This petition contains a detailed recitation of the evidence at Carmen’s trial.

Should the Court resolve the question presented favorably and determine trial

counsel’s performance was constitutionally deficient under Strickland, there is a

reasonable probability that “the factfinder would have a reasonable doubt,

respecting [Carmen’s] guilt.” Id.

STATEMENT OF THE CASE

A. Underlying Trial Evidence.

The government’s case against Carmen centered around a number of gang

members from Los Angeles, California, the Eight Trey Gangster Crips (Eight

Treys), who between the years 2008 and 2013, migrated to Spokane, Washington, to

unlawfully sell oxycodone pain pills for profit. (8-ER-354-429; 4-ER-446-529; 21-ER-

4471).5 The government relied heavily on the testimony of two gang members who

were also charged in Count 1 with the CCE, namely, Gilbert Madison and Sharita

Horn. Madison and Horn’s testimony established that other gang members traveled

to Spokane to conduct their own pill businesses and to make their own profit. Their

testimony established that the illegal trafficking by members of the gang had six

different phases. The evidence also established that Carmen did not organize,

supervise or manage the other Eight Treys who traveled to Spokane to sell pills

throughout the period alleged in the indictment.

A. Gilbert Madison (3-ER-354-429; 4-ER-446-600; 5-ER-616-763).

Phase 1 - “taxation without representation.” (4-ER-568)

Madison (Lil Sidewinder) testified Kevin Miles (Nino/No) contacted him in

the Summer of 2009 because he believed Carmen (School Boy)é had “a lock” on the

“pill hustle” in Spokane. [8-ER-376]. Miles was an associate member of the Eight

Treys. He learned that Carmen had the ability to make two to three times more

profit in the “pill hustle” in Spokane, as compared to Los Angeles. Id. at 375-76,

378.

Miles reached out to Madison for help in getting involved in the pill “hustle”

in Spokane. (3-ER-372-76). Miles was already in the “pill hustle” in Los Angeles

: There were 21 total excerpts of record file with the Ninth Circuit. They are

referenced in this petition as “1-ER” through “21-ER.”

6 Members of the Eight Trey Gangster Crips referenced each other by their

individual nicknames, “monikers.” This petition identifies the individual gang

members by their birth names and, in some instances, followed by their moniker.

10

(LA) and wanted to get a footing in Spokane. Miles wanted Madison to travel to

Spokane. Id. at 377-78.

Madison contacted Carmen who also wanted Madison to come to Spokane

because of Madison’s contacts in LA. Because Madison could not travel to Spokane

at first, Carmen requested Glen Turner (YD) to cone to Spokane.

Miles paid for Turner’s travel expenses. Jd. at 379-80. Madison’s testimony

did not establish that Turner and Carmen distributed pills together after Turner

arrived in Spokane. Id. at 379-81. In fact, Madison testified that Turner came to

Spokane with Miles’s pills. (4-ER-575). During this period, Turner was “working for

Miles,” not Carmen. Id. at 576. DEA Agent Sullivan’s investigation established that

Turner was Miles’s associate. (8-ER-258-59).

In the Summer of 2009, Madison and others were selling pills for Carmen,

but he did not name the others and gave no details. Jd. at 381. Madison also

identified other Eight Treys that were “freelance,” selling pills “on their own.” Id.

Madison testified that “when [he] first came [to Spokane,] [Carmen] didn’t know”

that Mile’s provided pills for Madison to sell. Id. at 385. Madison came to Spokane

“with [Miles’s] money [and] [he] was backing [Madison] financially.” Id. (4-ER-572).

After Madison arrived in Spokane, he learned that Carmen would tax him

and others between $5.00 and $15.00 per pill that he and the others sold. (3-ER-

383). Carmen did not (“strong arm”) the others to pay a tax. (4-ER-567-68) (“no arm

11

got twisted to pay the taxes.”).7 Carmen simply “provided a safe way” the other

Eight Trey dealers could sell their own pills “without getting apprehended.” Jd. at

568. Carmen provided Madison a way to “avoid financial strife.” Id. at 566. Carmen

never “taxed [Miles]” because Miles came to Spokane after Joseph Shorts

(uncharged) started the “big house.” Id. at 567; see also, “the ‘big house,” infra.

Madison established that Carmen did not instruct other Eight Trey dealers

how to sell their drugs; Carmen did not set prices for pills the other dealers sold;

Carmen did not dictate the manner of payment; and Carmen did not control the

other dealers’ customers.8

Madison testified that “everybody got their own ... terminology on what they

use to call the pills” such as “[s]kittles, beans, opanas 2, bananas.” (4-ER-468).

Carmen did not provide the lingo or language for dealers to use. Id.? Madison

offered no specific details on actual sales by Carmen, nor did he offer any specifics

on the other Eight Treys who were taxed by Carmen.

Phase 2 - the “big house”

In October or November 2009, several pill dealers met to discuss Carmen’s

taxation, including Madison, Miles, Turner, Donald Lynch, Shorts, Mayo

(uncharged) and Harry Johnwell (Peanut). (8-ER-385-86). All except Madison

7 See, e.g., United States v. Jones, 801 F.2d 304, 309 (8th Cir. 1986) (use of

force to collect drug proceeds is indicative of CCE activity).

8 See, Jones, 801 F.2d at 309 (defendant instructed on language to use when

referring to drugs over the phone, set the prices for resale, “dictating whether the

sales would be cash or credit,” and directing'who the underlings “could sell the

drugs to.)

7 See, footnote 8.

12

decided to “leave School boy alone,” “not be taxed” and move to the “big house,” a

six-bedroom home in Spokane rented by Shorts. (8-ER-387-90). These dealers could

use Short’s phone to contact customers. Shorts had as many customers as Carmen.

Id. at 390.

Madison established that the other Eight Trey dealers were working for

themselves. Carmen did not direct the other dealers’ sales, price, nor did he control

their customers or operations.

Phase 3 - Eight Trey pill dealers “co-existing.”

When Madison chose not to live in the “big house,” he resided with Carmen.

Madison explained that he “could sell [his own] pills through [Carmen’s] fades at a

faster rate.”!° Jd. Carmen did not tax Madison. Id.

At times when Carmen was attending college classes, he would call Madison

to meet customers at various places and Madison would either sell Carmen’s pills or

sell his own pills. Id. at 391. Madison’s testimony established that he and Carmen

had a partnership during this period. Madison and Carmen’s partnership lasted

about a month or two before Madison returned to LA in December 2009. Madison

returned to LA to help Carmen and Miles find sources of pills in LA. Jd. at 390-92;

(4-ER-585). Neither directed Madison’s activities in LA. Id.

In “the early stages” from “2008 to 2010,” there were multiple “crews” selling

pills in Spokane. (4-ER-572). Although Madison did not consider his association

with Carmen as a “crew” - they “were working together.” Jd. at 573. He said that

2 “Fade” is a customer who buy pills from the dealer. (5-ER-617).

13

these other “crews” were “co-existing.” Id. at 572. “They have their plugs [and]

Carmen has his plugs.” /d. 572-73.1!

Nocomie Moore had a crew that included Katriel Bulley (Ra Ra) (uncharged),

Roderick Govan (D3) (uncharged) and other Eight Treys not charged in the

indictment. (4-ER-573-74). Miles had a crew that included Madison and Turner.

Turner eventually recruited Donald Lynch (Young Moe/Flossy), who in turn,

brought his partner, Deandre Meighan (Flacco), to Spokane. Id. at 574-77. Lynch

had his own “plugs.” Id. at 577. Meighan’s girlfriend, Ashley Arredondo, also sold

pills with Meighan. Id. at 578.

- From the “big house,” Shorts provided a service to Miles, Johnwell, Mel

(uncharged), Turner, and Lynch. Shorts “offered a way of selling pills...” “Everybody

came up [to Spokane] with their own pills under the assumption that [Shorts] would

get rid of them for him,” Jd. at 578.

Phase 4 - “a pause for a moment.”

There is a gap in Madison’s testimony about Carmen between early 2010,

after Madison returned to LA, through mid-2011. During that period, Madison and

Carmen had a falling out, therefore, “there was a pause for a moment where

[Carmen] and [Madison] didn’t see eye to eye... [and] [they] didn’t do the business

at hand.” (8-ER-399). Carmen eventually reached out to Madison to “rekindle[]”

their relationship. Jd. 399. Carmen asked for help in selling his pills. Id. at 397-98.

a “Plug” is the individual dealer’s source of pills. (8-ER-231).

14

In mid-2011, Madison sent Richard Haynes (Tiny Sodi/TS) to Spokane to

work with Carmen and to run his own business. Jd. at 397-400. Madison and

Carmen split R. Haynes’s travel expenses. Id. 398.12 Madison was providing R.

Haynes with pills, “a little over a year.” Id. at 411.13 R. Haynes had access to 10,000

pills a month. Jd. Carmen wanted in on the pills Madison provided to R. Haynes. Id.

Madison testified that R. Haynes was the person Madison was dealing with

“until [Carmen] was able to come to LA.” Jd. at 412. Carmen moved back to LA

“around Christmas of 2011.” Jd. Carmen wanted to find “a doctor ... a main source.”

Id. At this time, Mercede’s Reeves moved Carmen’s pill in Spokane. Id. at 413.

Phase 5 - the “free-for-all.”

After R. Haynes arrived, Alex James (Tiny Menace), Maurice Shelmon

(Young Ant), Tahei Moore (Baby Football) and Inaliel Lisbey (Tiny Football) all

came to Spokane to help R. Haynes run his business. Id. at 401-02. Madison

m9 66

explained that, after R. Haynes arrived in Spokane, the “pill game” “opened wide

open.” Id.

In 2011, Lisbey got into the pill game in Spokane after Lynch “brought him

in.” Id. at 405. Lisbey did not need to speak to Carmen for permission to come to

Spokane because “he hooked up with TS [R. Haynes]” who was “his own individual.”

Id.

az “R. Haynes” is used for Richard Haynes and “T. Haynes” is used for Tyemar

Haynes, both charged in the Indictment. App. 11.

18 Madison also testified that he was providing pills to Nocomie Moore and

Carmen wanted Madison to “deal with him.” Jd. at 411-12.

15

Lisbey, a North Side Eight Trey, and other Norther Siders were involved

with Lisbey’s “pill game.” Jd. 402-05. Other “north siders” came to Spokane to sell

pills. Id. 402-05. Between 2011 and 2018,” everybody started coming up.” Jd. at 406.

“[I]t blew up ... it was a free-for-all.” Id.

B. Sharita Horn (6-ER-1007-29; 7-ER-1049-1239; 8-ER-1264-1471;9-ER-

1495-1517).

Phase 6 - “crews” and “independent contractors.”

In May 2011, R. Haynes recruited Sharita Horn (School Girl/Star) and offered

her $500.00 to travel to Spokane with pills to assist him. (6-ER-1018-20). David

Colbert (Bone) provided Horn with the pills. Jd. at 1018. Haynes’ girlfriend, Terrai

Traylor, took Horn to the airport. Id. at 1020.

R. Haynes instructed Horn on what to do when she arrived in Spokane. Jd. at

1022; (8-ER-1332). R. Haynes, Carmen and Horn went to an apartment where Horn

gave the pills to R. Haynes. (6-ER-1022); (8-ER-1332). R. Haynes paid Horn. Id. at

1023. Carmen was not present as he had previously left the apartment before the

exchange. (6-ER-1022-23); 8-ER-1334).

The next day, Horn saw R. Haynes pack money in a bag. (8-ER-1335).

Carmen was not present. /d. Horn then returned to LA and gave the cash to R.

Haynes’ girlfriend, Traylor. (6-ER-1024-25); (8-ER-1336).

On her second trip, Horn gave James the pills. (6-ER-1027): (8-ER-1337-38).

She met Carmen and Mercedes Reeves the next day at an apartment. (6-ER-1027);

(8-ER-1338-39). Reeves put money in a bag to take back to LA to give to R. Haynes.

16

(6-ER-1028); (8-ER-1340-41). There were no discussions about pills and she had

“{jJust casual conversation” with Carmen. Id. at 1029.

Horn traveled to Spokane about “once a month.” (6-ER-1026). Either R.

Haynes, David Colbert (Bone) or Traylor would provide her with the pills,

depending on whether R. Haynes was in LA or in Spokane. Id.; (7-ER-1070). If R.

Haynes was in LA, Horn would deliver the pills to James. (6-ER-1027).

When Carmen visited Horn at her apartment, they “casually talked{,]

[t]Jalked about pills - [h]ow much they were going for.” (7-ER-1070-71). Carmen,

however, was not present when Haynes told her how much profit he could make

from the pills she brought to Spokane. Id. at 1071-72,

While in Spokane, Horn watched Carmen and Haynes sell their pills for a

period of time. (7-ER-1082-83). In the Summer of 2011, she helped both R. Haynes’s

and Carmen sell pills, making $2.00 per pill. Jd. at 1079-80. She stayed with R.

Haynes at his girlfriend’s apartment. Jd. at 1080. Horn did not give any specific

details about specific narcotic violations committed by Carmen. (7-ER-1075-82).

Near the end of 2011, Horn began bringing her own pills to sell. Jd. at 1083.

She stayed with R. Haynes in his apartment. She used his cell phone to contact his

customers to sell pills. Jd. at 1083-84. As her business grew, she and R. Haynes

began staying in hotels, and then moved into another apartment. Id. at 1086-87.

Carmen would visit “just to hang out[,] ... drink[,] ... smoke marijuana [and] play

video games.” Id. 1091-92.

17

R. Haynes, James and Horn stayed at this first apartment and “a lot of other

co-conspirators females that came up [to Spokane] for R. Haynes at the time....” Jd.

at 1089. R. Haynes and Horn stored pills and money in the second apartment. Id. at

1092-93. Carmen would stop by just to visit. Id. at 1092.

In October 2012, Horn and R. Haynes moved their operation to a house “off

Mission and Lacey” in Spokane. (8-ER-1283 and 1863). Besides R. Haynes and

Horn, James, Lisbey and Bobby Wines (T Crazy) used the Lacey home to store their

money and drugs. (8-ER-1283).

Like Madison, Horn testified that certain Eight Treys “hung together” in

Spokane as a “crew” and some Eight Treys operated as “independent contractors” in

the “pill hustle.” (8-ER-1351-56). These pill dealers “made their individual money.”

Id. at 1349. The dealers kept their sources and customers from the other dealers

“[b]ecause that’s how each dealer they made their money.” (7-ER-1049-51).

“Nocomie Moore had her own crew,” including Bulley (uncharged) and Govan

(uncharged). (8-ER-1351). Moore was “a pretty big player” in the pill game. Jd. at

1352. Horn knew that Miles had his own crew. Jd. Turner had his own crew. Id. She

knew that Lynch “made a lot of money on selling pills.” (7-ER-1053).

Horn’s crew included R. Haynes, James, Colbert, Wines and James Ward. Id.

at 1053-54, 1058. Shelmon had a “lose crew.” (8-ER-1356).

Horn hung out with Donald Wright and described him as an “independent

contractor.” Id. at 1054-55. Lisbey was an “independent contractor.” (8-ER-1355).

18

Johnwell was an “independent contractor.” Id. at 1355-56. Rufus Warnock (Bam)

was an “independent contractor.” (7-ER-1058 and 8-ER-1373).

Although Horn and Reeves were good friends, Reeves worked solely with

Carmen. (8-ER-1362). Horn conducted her business for herself and helped R.

Haynes in his business. Id. Horn’s testimony did not tie the other “crews” nor the

“independent contractors” to Carmen. Nor did she offer specific details that

established specific narcotics violations committed by Carmen with any of the

separate crews nor with any of the independent contractors.

The government called two witnesses who bought pills from Carmen,

Brandon Werner and Daniel Hunka. Werner and Hunka were independent

purchasers of pills, independent from each other, independent from the other Eight

Trey distributors, and both independently sold the pills they purchased. Their

testimony established that neither were tied together nor did they act “in concert”

with each other with Carmen. Neither one of them was organized, supervised or

managed by Carmen.

C. Brandon Werner (unindicted) (9-ER-1565-1625).

To begin with, Werner's testimony about when he obtained pills from Carmen

is questionable. He had a difficult time remembering dates. (9-ER-1569).

Carmen’s trial counsel established that Werner did not meet Carmen until

the end of 2010 or early 2011. Id. at 1616. Werner testified that he first met Carmen

in community college at the end of 2010. Jd. Werner could not remember dates,

stating, “it’s kind of hazy so I don’t remember all the dates.” Id.

19

If Werner had not met Carmen until the end of 2010 or early January 2011,

then Werner’s testimony about obtaining pills from Carmen or Reeves prior to that

time in the Summer of 2010 is not true, and the only person Werner could have

bought pills from before Werner’s first arrest in early 2010 was Miles who Werner

set up to be arrested by law enforcement.

Werner testified he met Carmen through a friend. Jd. at 1568-70. He began

receiving from 2 to 5 pills from Carmen. Jd. Eventually, Carmen started fronting

him pills.!4 Jd. Werner started getting about five to ten pills at a time, and then it

progressed to “20 at a time.” Id. at 1573. Sometimes he would receive pills from

Reeves. Id. at 1574. This relationship lasted about six months. Id.

Werner said that one time Carmen got upset because he learned Werner

bought pills from another source and told Werner to “[jJust go through him.” Jd. at

1574-77. Carmen found out Werner bought pills from Miles and told Werner not to

go to other people.!5 Id. 1578. Nonetheless, Werner continued to buy pills from

Miles.

a “Fronting” is when the dealer provides the buyer the drugs for redistribution

on credit with an agreement the buyer would pay for the drugs after resale. Jones,

801 F.2d at 308. In Jones the government agreed that “evidence of fronting drugs,

without more, would be insufficient to support the ‘control’ element of the CCE

statute. Id.; see also, United States v. Possick, 849 F.2d 332, 336 (8th Cir. 1988)

(same); United States v. Ward, 37 F.3d 243, 248 (6th Cir. 1994) (“We agree with the

Eighth Circuit that ‘the mere ‘fronting’ of cocaine alone is insufficient to support a

finding of a managerial relationship....””) (quoting Possick, 849 F.2d at 336) (citing

Jones, 801 F.2d at 308).

= This testimony is unreliable because Miles had been set up by Werner,

arrested and no longer dealing when Werner met Carmen at the end of 2010 or

early 2011. (9-ER-1616).

20

Sometime in early 2010, Werner was arrested selling pills. Jd. at 1580. He

made an agreement with State law enforcement that he could avoid going to jail if

he cooperated. Jd. at 1580-81. Werner said he first tried to set Carmen up with a

controlled buy, but he could not reach him. !¢ [d. at 1583. Werner was able to set up

Miles by conducting two controlled buys for law enforcement. Id. at 1583-84. Miles

was arrested. Id. at 1585.

Werner entered treatment in June or July 2010, about a week after Miles’s

arrest. Id. He relapsed about a month after his discharge. Jd. at 1585-86. He

testified that Carmen contacted Werner and they met at the Burlington Coat

Factory. Id. at 1586.17 He said Carmen introduced Werner to “Swag” (R. Haynes)

and gave Werner four phone numbers and said he could deal with Haynes. Id. at

1586-87.

Carmen told Werner he “wasn’t going to deal with pills anymore.” Jd. 1588.

Werner never called the phone numbers for R. Haynes. Id. at 1588-89.

Sometime in summer 2010, Werner “ran into Reeves and Horn at the mall.

Id. at 1589.18 They exchanged phone numbers and he started buying pills again. Id.

at 1589-90. He also started receiving pills from R. Haynes and Shelmon after calling

and ordering them from Horn. None of Werner’s activities with Horn, R. Haynes or

Shelmon involved Carmen. Id.

16 See, footnote 15.

17 See, footnote 15.

= Horn testified that Reeves worked solely with Carmen. Id. at 1362.

Therefore, Werner’s testimony received any pills from Reeves in Summer 2010 is

not believable because he did not meet Carmen until late December 2010 or early

January 2011. (9-ER-1616).

21

Werner testified he dealt with Reeves for a while, however, Reeves got upset

at Werner for calling Horn. !9 /d. at 1591. As a result, Werner stopped buying pills

from Reeves. Id. Reeves never fronted Werner pills. Jd. at 1594.

In 2012, Werner started receiving pills from “Chill,” after Horn introduced

Chill to Werner. Jd. at 1592. Chill never fronted Werner pills, but Horn did. Id. at

1594. Again, none of the activities with Chill, Horn and Werner involved Carmen.

D. Daniel Hunka(10-ER-1882-1972).

Hunka testified that he started obtaining pain pills for resale from Moore,

Bulley (uncharged) and Govan (uncharged). Carmen was not connected to Moore’s

group. Hunka bought exclusively from Moore’s group in April through June 2011.

(10-ER-1891). He then met Sasha and started buying pills from her. Id. at 1892-93.

After two months of buying pills from Sasha, she introduced Hunka to

Carmen. This was near the end of the Summer of 2011. Id. 1893-94. Hunka started

buying pills from Carmen “probably once every three, four days.” Id. at 1896.

Sometimes he bought the pills from Reeves. Hunka’s arrangement with Carmen

and Reeves lasted “a few weeks.” Id. at 1897.

Hunka established a short-term buyer-seller relationship with Carmen and

Reeves near the end of Summer 2011. Jd. Carmen never “fronted” pills for Hunka,

and he never directed Hunka’s resale of pills.2°

19 See, footnote 18.

a The Fifth Circuit joined “the other circuits that have held expressly that a

buyer-seller relationship, by itself, i.e., in the absence of some other indicia of

management, supervision or organization, is insufficient to establish liability under

22

Eventually, Hunka found out that the phone used by Sasha and Carmen

belonged to R. Haynes. Jd. Consequently, when Hunka tried to get a price reduction

from R. Haynes, Carmen said, “if you my fade, I would do it; but you're not my

fade.” Id. at 1901.

Hunka established that R. Haynes’ phone was monitored by Carmen or

James when Haynes was in California. Id. at 1901, 1904-95, 1923-24, 1946. From

the Summer of 2011 to August 2012, Hunka used R. Haynes’s phone to buy pills. Jd.

at 1902-03. Hunka testified he “dealt with Swag [R. Haynes] ... the whole time.” /d.

at 1903.

Hunka testified that R. Haynes “was his primary source.” Jd. at 1945. Again,

Hunka learned that the phone used by Sasha and Carmen was R. Haynes’s “fade

phone.” Jd. Hunka also testified that he was buying pills, not only from R. Haynes

and his group, but also from Moore and her group from April 2011 through August

2012. Id. at 1047. In other words, Haynes’s group, with his fade-phone, was not the

exclusive source of pills for Hunka’s operation. Hunka established he had “two

sources” of pills during this period. Id.

Hunka’s testimony, at best, established that Carmen was helping R. Haynes.

He did not organize, supervise nor control any of Hunka’s illegal activities.

Hunka was arrested in August 2012. (10-ER-1911). After his release from

jail, his sources were Chill and Shelmon. Jd. at 1911-12.

E. The Couriers.

the CCE statute.” United States v. Bass, 310 F.3d 321, 328 (5th Cir. 2002)

(emphasis in original).

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