Amicus Curiae Brief — United States v. Cotton

No. 01-687 .

IN THE

SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA,

PETITIONER,

V.

LEONARD COTTON, MARQUETTE HALL, LAMONT THOMAS,

MATILDA HALL, JOVAN POWELL, JESUS HALL, AND STANLEY HALL, JR.,

RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AND

FAMILIES AGAINST MANDATORY MINIMUMS FOUNDATION

IN SUPPORT OF RESPONDENTS

MARY PRICE CLAYTON A. SWEENEY, JR.

FAMILIES AGAINST MANDATORY Counsel of Record

MINIMUMS FOUNDATION SuITE 815

1612 K STREET, N.W., Surre 1400 1528 WALNUT STREET

WASHINGTON, D.C. 20006 PHILADELPHIA, PA 19102- 3604

(202) 822-6700 (215) 732-9093

PETER GOLDBERGER

50 RITTENHOUSE PLACE

ARDMORE, PA 19003-2276

(610) 649-8200

. Attorneys for Amici Curiae*

March 2002

* additional counsel on inside cover

Of Counsel:

DAVID PORTER

Co-Chair, NACDL

Amicus Curiae Committee

801 K STREF~ 10TH FLOOR

SACRAMENT, CA 95814

(916) 498-5700

JOSHUA L. DRATEL

Co-Chair, NACDL Amicus

Curiae Committee

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

14 WALL STREET, 28TH FLOOR

NEW YORK, NY 10005

(212) 732-0707

LISA BONDAREFF KEMLER

Co-Chair, NACDL

Amicus Curiae Committee

ZWERLING & KEMLER, P.C.

108 N. ALFRED STREET

ALEXANDRIA, VA 22314

(703) 684-8000

QUESTIONS PRESENTED BY AMICI CURIAE

1. Are the threshold amounts of controlled substances

which trigger increased maximum sentences under the

various subsections of 21 U.S.C. § 841(b) elements of greater

and lesser offenses, or are they non-elemental sentence-

enhancing facts?

2. Did Apprendi v. New Jersey, 530 U.S. 466 (2000),

authorize the courts to interpret federal criminal statutes as

allowing maximum-sentence-increasing facts previously

construed on the basis of purported congressional intent as

mere “sentencing factors” to be treated instead as if they

were elements of a greater offense without finding them to

be actual elements?

3. May a federal appellate court affirm a concededly

illegal sentence under the plain error rule of Fed. R. Crim. P.

52(b), by treating as “error” not the excessive sentence but

the “failure” of the prosecutor to ask the grand jury to indict

for a more serious offense, so long as the facts necessary to

support the sentence are found by the appeals court,

although never by the jury, to be supported evidence

admitted at trial and/or at the time of sentencing?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED BY AMICI CURIAE ............- i

Py Ge MES © cc cccceceececccesccccscess iv

INTERESTS OF AMICI CURIAE ..... 0.600 0c eee cece eee ]

SUMMARY OF ARGUMENT ...........00000ceeeeeeees 2

GET Udo bbc ndeddkecdéeetccecesecstecceseseces 4

I. yine coe Created a psy and

ount in 21 U.S.C. § 841 as Offense Elernents ...... 6

Il. Petitioner Endorses but Cannot Justify a Novel

Approach Adopted by Most of the Courts of

Appeals, Seeking to Evade the Choice Between

Construing Threshold Drug Amounts as

Elernents of Different Offenses Under § 841(b)

and Recognizing the Statute as Unconstitutional

Se EE Soc cecodes cegadcccocceccceceséas 17

lll. The Holding in Neder v. United States,

527 U.S. 1 (1999), Cannot Be Extended to Allow

a Court of Appeals to Decide that the Evidence at Trial

or Sentencing Was Sufficient to Render “Harmless”

the Defendant’s Conviction and Life Sentence

fora Level of Offense Not Charged in the Indictment

ohn chuc cnduvcééneusésobees 23

CRPCRMEEEY 6 Suh cctecccsdcceccceesescecéocsosoce 29

TABLE OF AUTHORITIES

CASES

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .. “eases . “68 (3666) wet 4

Apprendi v. New Jersey, 1B 17-21

yee (1996) Valley Authority, -

Sith CED «nnn gengeenseeenseeecess

en v. United States, 284 U.S. 299 ta) sae ite 26

v. United States, 284 U.S. 299 (1932) ...... 10

v. United States, 523 U.S. 614 (1998) .... 17, 19, 21

Carter v. United States, 530 U.S. 255 (2000) .......... 6,8

Castillo v. United States,

S90 U.S. 120 (20GB)... cece cccccccccess 6, 9, 13, 18, 21

Chiarella v. United States, 445 U.S. 222 (1980) ......... 27

Cole v. Arkansas, 333 U.S. 196 (1948) ...........5-- 25-28

Cole v. Arkansas, 338 U.S. 345 (1949) ..........-5+- 25-28

Dunn v. United States, 442 U.S. 100 (1979) ...........-- 27

Eaton v. City of Tulsa, 415 U.S. 697 (1974) .........+-- 27

Garner v. Louisiana, 368 U.S. 157 (1961) ............--- 27

Garrett v. United States, 471 U.S. 773 (1980) ..........: 13

Glover v. United States, 521 U.S. 198 (2001) ........... 28

Gozlon-Peretz v. United States, 498 U.S. 395 (1990) ...... 7

Heflin v. United States, 358 U.S. 415 (1959) ...........- 17

Hill v. Wallace, 259 U.S. 44 (1922) ........---+-eeeee 19

Johnson v. United States, 520 U.S. 461 (1997) ....... 23, 24

Jones v. United States,

526 U.S. 227 (1999) ....... see eseeeeees 6, 7, 9, 13, 19, 21

Joplin Merchandise Co. v. United States,

Z9B US. S81 CIDUS) .. 0 cece ce cccescccccccccceceses 12

McCormick v. United States, 500 U.S. 257 (1991) ....... 27

M477 US. 79 (1986) psebeserconees 2, 3, 10, 12,13, 15, 16, =

Miller v. French, 530 U.S. 327 (2000) ..........+-+--+5-

Neder v. United States, 527 U.S. 1 (1999) ... 3, 23, 24, 27, 28

Normandale v. United States,

201 F.2d 463 (Sth Cir. 1953) ..... 2... 2.2 e cece e ee eeee 10

Presnell v. Georgia, 439 U.S. 14 (1978) ...........-+++- 27

Staples v. United States, 511 U.S. 600 (1994) ........... 19

Tinder v. United States, 345 U.S. 565 (1953) ..........- 17

United States v. Acevedo, 891 F.2d 607 (7th Cir. 1989)... 12

United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984) os

1V

United States v. Barnes, 890 F.2d 545 (1st Cir. 1989) .... 12

United States v. Bazan, 807 F.2d 1200 (5th Cir. sooty Son Oe

United States v. Brough, 243 F.3d 1078 (7" Cir. 2001) 20, 21

United States v. land,

iE EE a a a 3, 5, 20-22

United States v. Buishas, 791 F.2d 1310 (7th Cir. 1986) .. 11

United States v. Castaneda, 9 F.3d 761 (9th Cir. 1993)... 24

United States v. Chandler, 125 F.3d 892 (Sth Cir. 1997) ... 8

United States v. Chapple, 985 F.2d 729 (3d Cir. 1993) ... 24

United States v. Coy, 19 F.3d 629 (11 Cir. 1994) ....... 16

United States v. Crockett, 812 F.2d 626 (10th Cir. 1987) .. 11

United States v. Davis, 656 F.2d 153 (5th Cir. 1981) .. 10,13

United States v. Detroit Lumber Co., 200 U.S. 321 (1906) 11

United States v. Doggett, 230 F.3d 160 (5" Cir. 2000) .... 19

United States v. Edwards, 105 F.3d 1179

(7th Cir. 1998), aff'd, 523 U.S. 511 (1998) ...... 22, 24, 25

United States v. Elliot, 849 F.2d 886 (4" Cir. 1988) ...... 10

United States v. Estell, 539 F.2d 697 (10th Cir. 1976) .... 11

United States v. Evans, 333 U.S. 483 (1948) ....... 8, 21, 22

United States v. Gaudin, 515 U.S. 506 (1995) ....... 23, 24

United States v. Grandison,

TORU DGUIGR CO” Cie. 1GBED 2... cccccccccccccce 10, 22

United States v. Jackson, 390 U.S. 570 (1968) ....... 19, 21

United States v. Jacobo, 934 F.2d 411 (2d Cir. 1991) .... 24

United States v. Jenkins, 866 F.2d 331 (10th Cir. 1989) .. 16

United States v. Lewis, 113 F.3d 487 iS Cir. 1997) .. 12,22

United States v. Lopez, 514 U.S. 549 (1995) ............ 19

United States v. McCann,

940 F.2d 1352 (10th Cir. 1991) ................... 12, 16

United States v. McHugh, 769 F.2d 860 (1st Cir. 1985) ... 11

United States v. McQuilken, 78 F.3d 105 (3d Cir. 1996) ... 9

United States v. Moreno, 899 F.2d 465 (6th Cir. 1990) 16, 24

United States v. Morgan, 835 F.2d 79 (5th Cir. 1987) .... 12

United States v. Nordby, 225 F.3d 1053 (9" Cir. 2000) ... 20

United States v. Oakland Cannabis Buyers’ Cooperative,

a 8

United States v. Olano, 507 U.S. 725 (1993) ........... 28

United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) ... 12

United States v. Pope, 561 F.2d 663 (6th Cir. 1977) ..... 1]

United States v. Powell, 886 F.2d 81 (4th Cir. 1989) .. 12, 13

United States v. Promise, 255 F.3d 150 (4" Cir. 2001)

(en banc), petition for cert. pending, No. 01-6398

(docketed Septernber 20, 2001) ....... 8, 10, 15, 18, 20-22

United States v. Richardson, 529 U.S. 813 (1999) ........ 8

Vv

United States v. Richardson, 86 F.3d 1537 (10" Cir. 1996),

cert. denied, 519 U.S. 1030 (1996) EE ET OOO 22

United States v. Rush, 240 F.3d 729 (8" Cir. 2001) ...... 16

United States v. Sanchez, 269 F.3d 1250

(11" Cir. 2001), petition for cert.

No. 01-8100 (Docketed Jan. ff err 6, 10, 11, os

United States v. Smith, 840 F.2d 886 (11th Cir. 1988) .

United States v. Sotelo-Rivera,

931 F.2d 1317 (9th Cir. 1991) Site dé ec dekh Gh ae 12

United States v. Thomas,

274 F.3d 65 (2d Cir. 2001) CC) (ae 17, 19, 20, 22

United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001)

‘sn banc), petition for cert. pen , No. 01-9014

docketed March 15, 2002) ..... 5, 6, 8, 10, 14-16, 19, 28

United States v. Watts, 519 U.S. 148 (1997) ............ 25

United States v. Webster,

750 F.2d 307 (Sth Cir. 1984) ............0. eee eeee 11,12

United States v. Wood, 834 F.2d 1382 (8th Cir. 1987).... 13

United States v. Wright, 742 F.2d 1215 (9th Cir. 1984) 11,12

CONSTITUTION, STATUTES AND RULES

Controlled Substances Act of 1970, Pub. L. 91-513,

Title Il, Oct. 27, 1970,

84 Stat. 1260, as amended............. 2, 6, 7, 10, 11,13

Infant Formula Act of 1980, Pub. L. 96-359,

§ Bc )(2). Sept. 29, 1980, 94 t Penner 14

i n..cocu scuueus soksuaneebaseseaaer 11, 22

2 Use. Dt Kcrendncenddendethbsveswasaenenenie 1]

i i laa a 11

is Ks on acnebiccecdchebesweeuneuue 16

Se ee 2, 3, 5-19, 22

0 ER ee eee ee eran be 8,11

ie ail eal oie ene te ee he 12, 27

eh i le ie i ie i ee a 13

Of EE Re US rere 11

21 U.S.C. § 849 (1970 ed.) (repealed) ............ 7, 8,13

I a a ae 7

I a ci I i a Sa eee ae 8

a alk ad ag ae a nis ae a ie bd cs 8

I i aii kk a a 8

ED ppc cnedcddek ci dnaddnd ease abe’ 1]

DL TE «ooo betecnteksice ohanbaenna see 4-6

vl

EE ere ere ]

PE EER EEE nccocccccecccceccecseseesese l

OTHER AUTHORITIES

] Wayne R. LaFave & Austin W. Scott,

Substantive Criminal Law (1986) .... 6... ces 8

hike FR OS I Bee 10

Se EE 6 occ be ont seceevoeseues 14

116 Cong. Rec. 33633-34 (1970) 2... 6c ccc cee cee 14

ee Toons bc clncecnebesoeeeees 14

132 Cong.Rec. S14301 (daily ed., Sept. 30, 1986) .... 13,15

H.Rep. 91-1444, 91st Cong. 2d Sess. (1970),

[1970] U.S. Code C oh Cong Admin. News 4567 ....... 13,14

H. Rep. 96-936, 96th . 2d Sess. 13 (1980) .......... 14

H. Doc. 98-32, 98th C ma hat Sone. POP errr TT TTTT 14

H. Rep. 99-845, Part I, th Cong., 2d Sess. (1986) ...... 15

Handbook on the Anti- -Drug Abuse Act of 1986

Ps <ccédeheeuehenhotens 66-009 00646 40000 16

M.D. Knoll & Richard G. Singer, "Searching for the 'Tail

of the Dog': Finding ‘Elernents' of Crirnes

in the Wake of McMillan v. Pe lvania,"

22 Seattle Univ. L.Rev. 1057 (1999) 2.0... ccc cece eee 15

S. Rep. 96-916, 96th Cong. 2d Sess. 14 (1980) .......... 14

S. Rep. 98-225, 98th Cong., Ist Sess. 258 (1983) ........ 14

United States Attorney's sR eapgoreeeh alma 16

BRIEF OF AMICI CURIAE NACDL AND FAMM

IN SUPPORT OF RESPONDENTS

INTERESTS OF AMICI CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”), a nonprofit corporation, is the only national bar

association working in the interest of public and private

criminal defense attorneys and their clients. NACDL was

founded in 1958 to ensure justice and due process for

persons accused of crimes; foster the integrity, independence

and expertise of the criminal defense profession; and

promote the proper and fair administration of justice.

NACDL has 10,000 members nationwide -- joined by 80 state

and local affiliate organizations with 28,000 members -

including private criminal defense lawyers, public defenders

and law professors committed to preserving fairness within

America’s criminal justice system. The American Bar

Association recognizes NACDL as an affiliate organization and

awards it full representation in its House of Delegates.

Families Against Mandatory Minimums Foundation

(“FAMM”) is a nonprofit, nonpartisan organization with 22,000

members and 30 Chapters nationwide. FAMM conducts

research, promotes advocacy and educates the public

regarding the excessive cost of mandatory minimum

sentencing. The cost is not limited to public expenditures but

includes the perpetuation of unwarranted sentencing

disparities, disproportionate sentences, and the transfer of

the sentencing function from the judiciary to the prosecution.

FAMM does not argue that crime should go unpunished, but

that the punishment should fit the crime and the culpability

of the offender. FAMM therefore has a special interest in

ensuring that sentencing law and practice result in just

outcomes, and to the extent that mandatory sentences are

required by law, that they be arrived at in a manner

consistent with statutory and constitutional mandates.

Amici have an interest in this case because the issues

presented—both expressly and implicitly—are fundamental

to proper constitutional government.

'No counsel for any party has authored this

no person or entity, other than NACDL and FAMM,

contribution to its preparation or submission. See Rule 37.6 . .

ee tank et ee letters of consent

g

-

;

2

SUMMARY OF ARGUMENT

1. After McMillan v. Pennsylvania, 477 U.S. 79 (1986), and

before Apprendi v. New Jersey, 530 U.S. 466 (2000), the courts

of appeals erroneously attributed to Congress an intent to

establish drug amount in 21 U.S.C. § 841 as a sentence-

enhancing fact. Petitioner affirmatively relies upon, but does

not defend this uniform misinterpretation of 21 U.S.C. § 841.

To the contrary, a proper application of the principles of

statutory construction yo yy _ a ~~

drug amount (and type) to elements of various

greater and lesser Pon F 8 fully defined in 21 U.S.C. §

1(b).

A , Se v. United States, 523 U.S. 224, 234,

235-36 (1998), this Court established a painstaking

methodology for statutory inquiry into whether, without

expressly saying so, Congress made an operative fact in a

criminal statute only a sentence enhancer and not an

element? While Almendarez-Torres derived its methodology

mainly from the circuits’ § 841 precedents, the Almendarez-

Torres statutory analysis, properly applied to § 841 itself,

establishes that Congress intended drug types and amounts

to be offense elements. The prevailing, yet incorrect,

interpretation the courts of appeals arose as a

consequence of inappropriate judicial reliance upon

*The statute conventionally known as 21 U.S.C. §

IV 1998) is referenced as the Controlled Substances Act of 1970,

Pub LOLS 3, Il, $ 401, Oct. 27, 1970, 84 Stat. 1260,

“CSA"). The distinction is pertinent to the t. See, e.g., United

States v. Vazquez, 271 F.3d 93, 111-12 (3d Cir. 2001), petition for cert.

pending, No. 01-9014 (docketed March 15, 2002). Except where essential,

|

sentence within the otherwise-set statutory range, as opposed to “the term

‘sentence enhancement,’” which “describe[d] an increase the

petitioner’ “sentence-enhancing fact”

coeur be aie eatenting epee Ren, esnpeerionty Somers

determination preponderance-of-

a -, & e.g., Pet. Br. at 42. ;

i

ee

3

McMillan v. Pennsylvania in construction of § 841. The

United States a secure an erroneous unanimity in

the lower courts, wi this Court ever reviewing the issue.

The Court must reject that consensus and enforce

Congressional intent in this case.

2. Petitioner atternpts to avoid this statutory issue.

Conceding that the sentence-enhancing interpretation of §

841 raises an issue under Apprendi, petitioner does not offer

a saving construction of the statute. Rather, petitioner relies

upon what would be a new mode of constitutional

adjudication, an invention that authorizes courts to override

the presupposed Congressional intent to create sentencing

factors, thus veo or type and amount to be treated as

offense elements. The Court must reject this approach as a

judicial usurpation of legislative power.

The Ninth Circuit, sitting en banc, has recently rejected

petitioner's approach, holding instead that Congress

intentionally left to the courts the determination of the

burden of proof and the fact-finder with respect to

and amount in § 841. United States v. Buckland, 277 F.3d

1173 (2002). The Ninth Circuit’s analysis concedes that drug

amount was not intended as a sentence-enhancing fact for

judicial determination. After rejecting the main ground upon

which drug type and amount had been construed as a

sentence-enhancing fact, this analysis never explains why

drug type and amount should be anything other than offense

elements. This approach fails, because it is utterly

unsupported by the Almendarez-Torres analysis. Moreover,

if Congress had the specific intent to be vague the Ninth

Circuit has attributed to it, the statute does not satisfy

constitutional constraints placed upon legislation enacting

federal criminal statutes.

3. Because Congress intended drug amounts to be offense

elements of greater and lesser offenses under § 841(b)(1),

petitioner’s arguments in favor of a rule of harmlessness for

“omission from a federal indictment of a fact that enhances

the statutory maximum sentence,” Pet. Br. at (I), must fail.

The difference between what should have ned below

under the proper construction of § 841 and what did happen

below shows that petitioner’s reliance upon Neder v. United

States, 527 U.S. 1 (1999), is misplaced with respect to both

the omitted instruction to the petit jury and the omitted

_allegation in the indictment. In Neder, an erroneous

interpretation during trial of materiality as a “legal element”

4

merely resulted in the judge rather than the jury finding

wuanetaliy. To affirm here, not only would a judge have to

make a finding that the Constitution assigns to the jury, the

finding wead be on a fact not charged, found at the wrong

stage of the proceedings and on a record created for a

different purpose and under a different standard.

Here, the Court cannot reverse the judgment vacating

respondents’ life sentences without violating due process

and validating a structural error. The erroneous statutory

interpretation prevailing at trial resulted in their convictions

for a lesser-included drug offense, but they were sentenced

for an uncharged and untried greater-inclusive offense.

Moreover, once drug amount is properly construed as an

elernent, it becomes clear that respondents were denied not

only a trial by jury, but also the benefit of the beyond-a-

reasonable-doubt standard of proof, and notice and the

opportunity to be heard under that standard of proof.

The judgment of the court below should therefore be

affirmed.

ARGUMENT

Contrary to the underlying but undefended premise of

petitioner's argument, it is not possible to analyze whether

“error” is “plain,” without first carefully identifying what legal

“error” was supposedly committed, by whom, and when.

Petitioner concedes an error in the sentence, Pet. Br. 16

(district court’s imposition of sentence exceeding 20 years on

each respondent conceded to be “error”), but bases its

arguments on the premise that the error consists in an

omission from the indictment. Pet. Br. 17 (identifying error in

the case as “omission of an element or sentence-enhancing

fact from an indictment,” for purpose of applying Rule 52).

Moreover, petitioner repeatedly suggests that the error either

was or resulted from its own failure to ask the grand jury to

allege the threshold amounts of cocaine and cocaine base in

the indictment. Pet. Br. 12, 23, 25-26, 45-46. Petitioner never

attempts to explain why its failure should be attributed to

respondents (or even the district court). Petitioner never

explains why the omission of drug amounts from the

indictment is ing but its own strategic blunder, as seen

in hindsight, or how that omission is an “error” in any sense

pertinent to analysis under Fed. R. Crim. P. 52. The only

“error” properly under consideration in this case is the

5

imposition of illegal sentences. The question is whether that

error may be excused.

By first construing the statute to determine Congress’

intent in including in 21 U.S.C. §841 specifications of various

drug amounts —- an exercise which this Court has never

previously undertaken — the Court will greatly simplify the

issues necessary to decide this case. Moreover, the Court

can then decide the questions presented standing upon the

bedrock of legal analysis rather than the loose and shifting

sands of real or apparent concessions of “error” offered for

the sole purpose of asking the Court to hold these ill-defined

errors to be “harmless” and “not plain error” under Fed. R.

Crim. P. 52.

Petitioner appears to suggest that any distinction between

an element and a “sentence-enhancing fact” is, after

Apprendi, immaterial for purposes of the application of Fed.

R. Crim. P. 52. Pet. Br. at 16 & n.4, 17, 19, 30-31. Furthermore,

petitioner argues for a rule of harmlessness applicable to

both sentence-enhancing facts and elements. Pet. Br. at 36-

37; see also Pet. at 20-22; Reply Br. on Pet. at 2-3 & n.1. Yet,

Petitioner frames and argues the issues necessarily relying

upon the assumption that drug amount in 21 U.S.C. § 841 isa

sentence-enhancing fact and not an element of the offense.‘

See, e.g., Pet. Br. at (I), 12, 22-24, 38-42.

Contrary to this assumption, amici submit that the Court,

without any need to rely upon the doctrine of constitutional

doubt and irrespective of the rule in Apprendi v. New Jersey,

530 U.S. 466 (2000), must conclude that Congress intended

drug amounts (and drug types) in 21 U.S.C. § 841 as offense

elements always, for all purposes. Accord Vazquez, 271 F.3d

at 107-15 (Becker, Ch. J., concurring); Buckland, 277 F.3d at

‘Petitioner nowhere concedes that drug amount in § 841 is a

congressionally defined offense element. Petitioner's assertion that the

issue is the same whether drug amount is “viewed as an ‘element’ . . . or

as a sentencing factor subject to . . . Apprendi,” Pet. Br. at 16 n.4, plays on

verbal variations among courts applying the same novel mode of

constitutional analysis t supposedly permits courts to contradict a

presupposed congressional intent. See infra, Part Il. Petitioner's claim that

Statutory construction is unnec relies on that analysis and is merely

a restatement of its strategic (but legally and factually dubious) concession

that the Grand Jury Clause S to sentence-enhancing facts (other than

recidivism > Cf. Almendarez-Torres v. United States, 523 U.S.

224 (1998) (offense elements must be alleged, but constitutionally valid

sentence-enhancing facts need not be alleged).

6

1187-95 (Hug, J.). That established, the Court cannot apply

Fed. R. Crim. P. 52(b) in the manner Petitioner advocates.

I. ope Created Drug Type and Amount in 21 U.S.C.

§ 841 as Offense Elements

Petitioner relies, for its necessary contention that drug

amount is a sentence-enhancing fact rather than an element,

upon the unanimous pre-Apprendi cases in the courts of

appeals definitively construing drug amount (and, usually,

drug type) as sentence-enhancing facts. Pet. Br. at 15 (citing

United States v. Sanchez, 269 F.3d 1250, 1266-67 & n.30 (11

Cir. 2001), petition for cert. pending, No. 01-8100 (Docketed

Jan. 15, 2002)). After the sentence-enhancing interpretation

of drug type and threshold drug amounts became settled

precedent in the courts of appeals, this Court decided

Almendarez-Torres v. United States, 523 U.S. 224 (1998). In

that case, the Court established a painstaking methodology

for statutory inquiry into whether, without expressly saying

so, Congress created a "sentenci factor” rather than an

offense element. 523 U.S. at 228-39. A court must “look to

the statute’s language, structure, subject matter, context and

history—factors that typically help courts determine a

statute’s objectives and thereby illuminate its text.”

Almendarez-Torres, 523 U.S. at 228; see also Carter v. United

States, 530 U.S. 255, 272-74 (2000); Castillo v. United States,

530 U.S. 120 (2000); Jones v. United States, 526 U.S. 227,

232-39 (1999). Almendarez-Torres adopted much of its

methodology from the lower court cases construing dng)

and amount as sentence-e ing facts. 523 U.S. at 234-36.

It is, then, no small irony that the Almendarez-Torres analysis

reveals, for the reasons set forth below, that the lower courts’

sentence-enhancing fact interpretation of § 841 is wholly

without foundation.

1. "Congress's failure to include drug type and quantity

within its express sentence-enhancement provisions

indicates its intent to treat these factors as elements of a

crime." Vazquez, 271 F.3d at 111 (Becker, Ch.J., concurring

in heey cf. Jones, 526 U.S. at 233; Almendarez-Torres,

523 U.S. at 249 (Scalia, J., dissenting). When Congress

intended sentence-enhanci factors in the original

Controlled Substances Act (“CSA”) of 1970, it expressly said

so. Congress made prior convictions a basis for increasing

the statutory maximum punishment, CSA § 401(b). Congress

7

then unambiguously and expressly provided that recidivism

was to be determined "after conviction but before

poaneunsemens of sentence," 21 U.S.C. § 851(b) (1994 ed.),

a hearing "before the court without a jury,” albeit with the

fact to be determined "beyond a reasonable doubt." /d. §

851(c)(1). See also 21 U.S.C. § 849 (1970 ed.) (repealed).

In contrast, the CSA of 1970 did not include any similar

provision to create sentence-enhancing factors with respect

to drug type (and no drug amounts appeared). Since drug

type and arnount and prior convictions all appear in § 841(b),

the exclusion fromm § 851 of drug type (and later, drug

amount) demonstrates that Congress chose to treat only prior

convictions as sentence-enhancing facts, with all other

operative facts remaining elements. Gozlon-Peretz v. United

States, 498 U.S. 395, (1990) (Congress presumed in CSA

to act intentionally and purposely in disparate inclusion or

ey

. The language of the Section 841 (entitled "Prohibited

acts A—Penalties" in the Statutes at Large) shows that

subsection 841(b), not subsection 841(a), creates criminal

offenses. It defines those offenses by the elements of drug

type and amount.

_ Subsection (a) makes certain acts unlawful but is

incomplete as a penal statute because it does not provide

punishment. Cf Jones, 526 U.S. at 233-34 (statutory

description of "some very obnoxious behavior" alone fails to

state a crime because it neither concluded with "shall be

guilty of a fel nor "shall be punished [or ‘fined and

imprisoned,’ etc.]"). It is black letter law that a prohibition

‘In its petition, the United States argued that a doctrine of harmle

- dy 4 4 bngae A —_— of essential elements due to mellate

, as prosecutorial errors. Pet. at 21. Amici submit

mp pt a Nt Sy yt of the courts of appeals to

assume that operative facts are facts in the absence

op mp ee 7 SS As the text

of its express provisions shows, Congress is well

em OS Sey 0 eatenseciiancing provision uires no more than

a designation of fact, the time it is to be at issue, the decision maker

and the burden of proof. 21 U.S.C. § 851(b) (1994 ed.); 21 U.S.C. § 849

(1970 ed.) (repealed). Amici submit that, in lieu of

the Almendarez-Torres’ implied sentence-enhancing fact

without a specified penalty creates no crime. | hy >

LaFave & Austin W. Scott Substantive Criminal Law § 1.2(

at ae tien see United States v. Evans, 333 U.S. ies

490-99 (1948). Rather, as the Court recently termed it,

subsection 841(a) creates a “statutory prohibition,” subject to

both civil and criminal enforcement. United States v.

Oakland Cannabis * Cooperative, 532 U.S. 483, 499

(2001); see also id. at 486, 494 n.7.

That § 841(a) merely creates a “statutory prohibition” is

confirmed in § 842, a parallel provision of the CSA

("Prohibited acts B—Penalties" in the Statutes at Sats} It,

too, makes certain acts "unlawful." 21 U.S.C. § 842(a). A

violation of § 842(a), however, "does not constitute a crime"

except as provided in § 842(c)(2). 21 U.S.C. § 842(a), (c)(3)

tt ed.). See United States v. Richardson, 529 U.S. 813, 819

1999). As with § eaite a), the act provides criminal offenses

uD in the case of § 841, these are in §

Subsection (b), in contrast to § 841(a) is complete as a

criminal statute. In its unnumbered preamble, subsection (b)

uses the active voice ("any person who violates subsection

(a) ...."), which the Court deems al offense-defini

lang . Carter, 530 U.S. at 272-73. Subsection (b

expre Pete See Se eae

an element. "violates subsection (a)" |

appears in other sections of the CSA, as arnmende nded TUS. U.S

§§ 849, 859-61. These sections have been amas

construed to define offenses, not 125 3d Be os provisions. See,

eg. United States v. vac og 125 F.3d 896 (5th Cir.

7) (§ 860, which salen) ly incorporates a violation of §

s

841(a), just as does § 841(b greater-inclusive offense of §

Judge Luttig, in the result in United States v. Promise, 255

F.3d 150, 170-72 (4” Cir ao Ge Sane) peliien Avent pentine, No. 01-

6398 ( d September 20 wt KT EE

criminal offense 4 maximum imprisonment.

is such a refuted because the “shall be unlawful” eae

§ 842(a) pty teny — ping ge =

Subsection eee 970, when the maximum

“gy stsnrarcd ty set of facts for its violation 30

years See 21 US.C. § 841(b6)(1 A) (1870 ed.) (as amended and modified

§841(b)(1)(C); cf Vazquez, 271

conc ) (Congress

_-

9

841); United States v. McQuilken, 78 F.3d 105, 108 (3d Cir.

1996) (sarne).

Subsection (b), unlike subsection (a), contains

nt-introducing language, followed by punishment.

1 U.S.C. § 841(b). In fact, with respect to each — a

of paragraph (b)(1), a ee ey

appears twice, in the unnumbered amble following

"violates subsection (a)" and also following the specification

See On We types and amounts. See, e.g., id. §

- (b)(1)(A) two punishment-introducing clauses

7 ina single sentence that reads like a traditionally

d crime. For example:

[A]ny person who violates subsection (a) of this section

shall be sentenced as follows: ... (1)(A) In the case of a

violation of subsection (a) of this section involving— (ii) -

or more of a mixture or substance contai

\detectible amount of [cocaine]; . . . such person shall

sentenced to a term of imprisonment which may not be

less than 10 years or more than life . . . a fine not to

exceed the greater of that authorized by title 18 or

$4,000,000 if the defendant is an individual ..., or both.

21 U.S.C. § 841(b)(1)(C). As with the weapon type in Castillo,

drug type and ammount appear in a single sentence with other

elements, separate from the following complete : sentences

that address traditional ae concerns.’ "These

structural features strong st that the basic of the

entire first sentence is the on of crimes and role of

the rernaining ... sentences is the description of factors (such

as recidivism) that ordinarily pertain only to sentencing."

Castillo, 530 U.S. at 125.

"Like drug type OR Se eae

wien asl tonbeed. As held in (525 US. at 36-7. de jeath and

Bai (oy! oy

4 times in two sentences defining

appears three

consequences of “such a violation” (referring to the

crane ths amin” eng ray aent

injury.

me. i,.. ), in typical offense defining language, increases

pi ~~} AF -— 1X4 |,

section by cultivating a controlled substance on Federal property." 21

U.S.C. § 841(0)6). Conqpens’ using offence coeating language te raise Gnee

10

Reading subsection (b) as the offense defining provision,

it can be seen that Congress created an "efficient double-axis

prosecution scheme, under which each act in violation of

what is now § 841(a) (manufacture, distribute, etc) could be

prosecuted with respect to different drug s." Vazquez,

971 F.3d at 109 (Becker, Ch. J.). Such a reading is consistent

with pre-CSA federal laws, under which offense

elements were narrowly defined so that offenses could be

cumulated. Blockburger v. United States, 284 U.S. 299, 302

(1932) (each sale is a crime); Normandale v. United States,

201 F.2d 463, 464 (Sth Cir. 1953) (each — it separate

element). In fact, before McMillan v. Pennsylvania, 477 U.S.

79 (1986), the court below employed this double axis

prosecution scheme under the CSA. United States v.

Grandison, 783 F.2d 1152, 1156 (4" Cir. 1986) (possession of

each scheduled substance is a se e offense); United

States v. Elliot, 849 F.2d 886, 888-90 (4* Cir. 1988) (each

distribution is separate offense); cf. Promise, 255 F.3d at 175

(Luttig, J., concurring in judgment) (disputing "double-axis’

thesis Coins Congress created 350 different offenses).”

The idea that § 841(a) contains all offense elernents (and that

drug is an intended —— factor) is simply

inconsistent with Congress’ intent to unify federal drug laws

in a single statute without relaxing their preexisting punitive

force. Vazquez, 271 F.3d at 109; United States v. Bavis , 656

F.2d 153, 156-60 (Sth Cir. 1981).

To deem § 841(a)(1) the exclusive offense-creating

provision, lower courts have relied on the subsection

headings "Unlawful acts” and "Penalties" that appear in the

United States Code. See Sanchez, 269 F.3d at 1263-66;

Promise, 255 F.3d at 170-72 (Luttig, J., concurring in

j nt). This reliance is wholly baseless.

Act Congress passed does not contain those headings.

Controlled Substances Act of 1970, Pub. L. 91-513, Title Il, §$§

401-10, Oct. 27, 1970, reprinted in Stat.L. 1466-68, 91st Cong.,

2d Sess.; see also 116 Cong. Rec. 33624-25 (1970). The Office

petitioner contends are Sned enteely 1 eas coetduing sontencing

petitioner's interpretation of § 41 )(1}-(3) as containing sentencing

9 Presumably, — a, believes Congress created “some 350"

sentencing factors an express word saying so. 7

1]

of the Federal Register, National Archives and Records

Services added a reference to "penalties" as a margin note to

the Statutes at . 84 Stat. 1260; see 44 U.S.C. § 729 (1994

ed.). Only the bill number and date is required by law, see

id., and such n notes are mere finding tools for users’

convenience. Cf. United States v. Detroit Co., 200 U.S.

321, 337 (1906) (court syllabus). When the CSA was

reproduced in the United States Code, the editors converted

the in notes into subsection headings. See generally 2

U.S.C. §§ 285a, 285b(1) & (3) (1994 ed.). Because Title 21,

unlike some others, has not itself been enacted into law, the

Statutes at Large, not the United States Code, are the

authoritative source of law. /d. § 285b(3); 2 U.S.C., Supp. IV

a a roy Congress did on enact these headings in the

amendments. Thus,

conte ——_ no subheadings exist in the

. Until 1986, the courts of appeals correctly understood

that Serr defined a variety of related ae offenses in §

841(b). For at least 16 years after Congress passed the CSA

of 1970, the courts of appeals generally treated drug type, and

when it was added as an operative fact, drug amount as

elements of a § 841 offense. See, e.g., United States v. Bazan

807 F.2d 1200, 1206 (5th Cir. 1986)." For e, in 1984,

the court in United States v. Webster, 750 F.2d 307 (5th Cir.

“In the face of the legislative record and petitioner's concession

case that the could mot be salied upon, te Movente Cheat

See, e.g., 21 U.S.C. § 842(c)(2)(A) (1994 ed.) (offense defined under

A ; 21 U.S.C.

a heading ) ° uc a distinct crime entitled

"See also, e.g., United States v. Crockett, 812 F.2d 626. 628-

- , ’ . ’ . ’ 29 .

1987); United v. Buishas, 791 F.2d 1310, 1317 (7th Cir. 1986); Unihed

States v. Aad ty Naty 1985); United States v. Wi

742 F.2d 1215, 1220-21 (9th Cir. 1984); United v. Alvarez, 735 F.2d

461, 466-68 11th Cir. 1984); United v. Pope, 561 F.2d 663, 669-70

th te oe Gas i pond -d aviwe

important” under 1970 Act). — ae

12

1984), affirmed a jury verdict and sentence for an indicted

conspiracy to possess 1000 pounds or more of marijuana.

The Webster jury, instructed on lesser included offenses

relating to juana without regard to quantity, had

convicted the defendant of the indicted amount, and the

court considered that conviction binding on the court and

parties. Honoring the verdict, the court rejected challenges

to the sufficiency of the evidence of amount and the failure

to preserve the contraband on grounds inconsistent with a

reading that drug amount is merely a sentencing factor. /d.

at 332. Moreover, the court noted that the quantity recovered

need not exceed the threshold, as to any conspiracy count,

if defendants had agreed to exceed the threshold. Webster,

750 F.2d at 334 n.13. See generally Joplin Merchandise Co. v.

United States, 236 U.S. 531, 535 (1915) (object of conspiracy

must be alleged in charging language of the conspiracy

count). Affirming a jury verdict on such a basis is logical only

if the Court considered marijuana amount an offense

element."

In 1986, this Court decided McMillan v. Pennsylvania, 477

U.S. 79 (1986). "[I]t is fair to say that McMillan began a

revolution in the law regarding the definition of “‘crime.

prendi, 530 U.S. at 518 (Thomas, J., concurring). After

McMillan, the courts of appeals decided that drug type and

amount had become maximum-extending sentencing

enhancers. E.g., United States v. Morgan, 835 F.2d 79, 81 (Sth

Cir. 1987)."* The courts relied upon McMillan's constitutional

"as Webster a drug amount actually possessed does not

ipso facto establish a ora with respect to the co-c

actual agreement. Accord Wright, 742 F.2d at 1220-21; 21 U.S.C. § 846.

Petitioner, however, , ~ Lt. Jy. names Cie Se

conspiratorial object. Rather, isolating “involving” from

ne text of § 841(b), petitioner cites evidence of quantities

actually possessed, without making the necessary connection to

’ actual b a Se ea

841(b)(1 element, petitioner address its accuracy

sommes ts Ea amined camack geapely Gutinne

'*See also, e.g., United States v. Lewis, 113 F.3d 487, 489-92 (3d Cir.

1997); United States v. Patrick, 959 F.2d 991, 995 n.5 (D.C. Cir. 1992); United

States v. McCann, 940 F.2d 1352, 1354, 1358 (10th Cir. 1991); United States

v. Sotelo-Rivera, 931 F.2d 1317, 1319 Cir. 1991); United States v.

Bames, 890 F.2d 545, 551 n.6 (Ist Cir. 1989); United States v. Powell, 886

F.2d 81, 84-85 (4th Cir. 1989); United States v. Acevedo, 891 F.2d 607, 611

(7th Cir. 1989); United States v. Smith, 840 F.2d 886, 888 (1 1th Cir. 1988);

13

hol in conducting their statutory reconstruction of § 841.

Es. nited States v. Moreno, 899 F.2d 465, 472-74 (6th Cir.

1990); Powell, 886 F.2d at 84, 85. True, McMillan held that an

express, legislatively enacted sentencing factor predicate to

mandatory minimum sentences was permitted. But nothing

in the history of the federal drug statute shows that Congress

(without saying so) intended to take advantage of McMillan

and make drug type and/or amount into maximum-extending

sentencing enhancers.

5. The legislative history of the CSA of 1970 shows no

non-recidivist sentencing enhancers were intended in § 841.

Congress expressed no intent in 1970 to make drug type a

sentencing enhancer rather than an element. (Amount was

statutorily irrelevant in the original CSA.) The legislative

history discusses "penalties" corresponding to "violations,"

which is unremarkable in the context of a discussion of a

nal statute. H.Rep. No. 91-1444, 91st Cong. 2d Sess. (1970),

1970] U.S. Code Cong. & Admin. News, at 4567, 4570, 4571,

4574, 4575-79, 4614, 4618. No inference that the report

meant "sentence-enhancing fact” or “sentencing factor”

when it said "penalty" can be drawn. The report subsection

entitled "Criminal Penalties," id. at 4575, leads with a

discussion of the new continuing criminal enterprise offense,

which Congress 7 intended to be a separate offense.

See Garrett v. United States, 471 U.S. 773, 7 (1980); cf.

Jones, 526 U.S. at 237-38 (finding "unimpressive" the

Government's equating of — enhancement" with

"sentencing factor"); Castillo, 530 U.S. at 128-30 (similar)."

The absence of intent to make operative facts (aside

from prior pwn te tone sentencing enhancers under § 841 is

shown by the debates over sections 408 and 409 of the CSA,

21 U.S.C. § 848 (continuing criminal enterprise) and 21 U.S.C.

§ 849 (1970) [repealed] (dangerous special offender

sentencing). Due to constitutional objections foreshadowing

United States v. Wood, 834 F.2d 1382, 1388-90 (8th Cir. 1987).

“The Fifth Circuit has relied on Congress' intent to provide “maximum

flexibility to the ” Davis, 656 F.2d at 159. In context, the cited phrase

— ne Gal te, Ween ae ee

. um sentences

were reintroduced in 1986, it was precisely to remove judicial discretion by

Oe Pe on be* end eness conclusive as to minimum

. Cong.Rec. $14301 (daily ed., 30, 1986).

14

Apprendi, the proposed new continuing criminal enterprise

provision was explicitly changed from a sentence-enhancing

provision into an offense. H. Rep. No. 91-1444, [1970] U.S.

Code Cong. & Admin. News, at 4651 (additional views).

When the CSA came to the House floor, the special

dangerous drug offender sentencing provision was

introduced, vigorously debated (again along lines

foreshadowing ndi) and ultimately added to the CSA.

CSA § 409; 116 Cong. Rec. 33633 (1970); 116 Cong. Rec.

33633-34 (1970); 116 Cong. Rec. 33661 (1970). Yet, even the

author of the sentencing provision agreed that the traditional

ight to trial by Ag wy to the predicate violation of the

CSA. /d. at 3 . The lack of similar debate on § 841

confirms that Congress did not intend to change pre-CSA

practice and re-designate drug type as a sentence-enhancing

fact.

6. The legislative history of post-1970 arnendments shows

that threshold drug amount is an element. In the Infant

Formula Act of 1980, Pub. L. 96-359, § 8(c)(2), Sept. 29, 1980,

94 Stat. 1260, Congress first added a threshold drug amount

(at least 1000 pounds of marijuana) as an operative fact in

the former § 841(b)(6), = ee language

similar to that later contained in subparagraphs (1A) and

(B). Both the House and Senate Reports state, "[i]ndividuals

convicted of trafficking in over 1,000 pounds would be subject

to a maximum 15 year prison sentence and/or a maximum

$125,000 fine." H. Rep. 96-936, 96th Cong. 2d Sess. 13 (1980);

S. Rep. 96-916, 96th Cong. 2d Sess. 14 (1980) (emphasis

added). It can be presumed that Congress used the word

"convicted" advisedly and because it intended amount to be

an element of the offense. See Vazquez, 271 F.3d at 109

(Becker, Ch.J., concurring in judgment).

In 1984, any ees adopted former § 841(b)(1)(A).

Both the Justice Department, which drafted the provision, see

H. Doc. 98-32, 98th Cong. Ist Sess., and the Senate Report

note that, except for marijuana, the prior law did not account

for the important factor of the amount of the involved.

Thus, Congress created "a new angemnane (A) under §

841(b)(1) that would provide, for offenses involving large

amounts of particularly dangerous s, higher penalties

than those now provided under section 841." S. Rep. 98-225,

98th Cong., Ist Sess. 258 (1983). "The use of the plural

‘offenses’ cates Congress's intention to create within a

single statute a multitude of separate crimes depending on

1S

~~ type and quantity." Vazquez, 271 F.3d at 110 (Becker,

Ch.J.); cf Promise, 255 F.3d at 175 (Luttig, J., concurring in

judgment).

In 1986, C ess, using the internal structure of

subparagraph (b) 1)(A) of the 1984 amendments, created

new subparagraphs (b)(1)(A) and (B) and included

mandatory minimum sentences for offenses under those

subparagraphs. Again, the legislative history contains no

discussion referencing sentence-enhancing facts. The

Government was involved in the hearings, and assured

Congress that prosecutors could present evidence of drug

amount passing the sufficiency of the evidence test (which

applies to convictions, not sentencing), by introducing into

evidence testimony about —_ drug transactions, rather than

drugs themselves in the threshold quantities. H. Rep. 99-845,

Part 1, 99th Cong., 2d Sess., at 12 (1986); see also id. at 19

(referring to "person convicted under" subparagraphs

(b)(1)(A) & (B)); 132 Cong. Rec. $14301 (daily ed. Sept. 30,

1986) (Sen. Byrd: finding of guilt removes judicial discretion

reg mandatory minimums). Accord Vazquez, 271 F.3d

at 110 (Becker, Ch.J.). Thus, when Congress gave § 841 the

structure that it substantially retains today, Congress intended

drug type and amount to be elements of § 841 offenses."

: Justice Department initially knew ress created

drug type and amount as offense elements, and nonetheless

seized upon and spread the early misinterpretations of the

courts of appeals. Immediately following the 1986

amendments, the Department of Justice published its

‘SAlthough the Court decided McMillan four months before

pesees the 1986 amendments to § 841, nothing in the text or

ory indicates that © ——an and amount in § 841 in

reliance upon McMilla.. Cf , 530 Pu 487 n iS: see also id at

564 (Breyer, J., dissenting ting § 841(b) as an example of

legislative reliance on Mc nm). Rather, the language, structure and

mm apg Sl dee ny deny dy J | tradition of

treating type and amount operative facts in Statutes as

offense elements for determination. See M.D. Knoll & Richard G.

the Wake of Mchillan u Pennsylvania,” 22 Seattle Univ. LRev. 1057 (1999).

Moreover, in 1988 -- after many circuits had begun reversing course and

describing § 841(b) as containing McMillan-esque “sentencing factors"

-- Congress amended § 841(b)(1)(A) (in the third sentence) to

contain an intemal reference to "a violation of this “thus

confirming in the text of § 841(b) itself that the offense, not merely

“sentencing factors," are found

16

understanding of the amendments. Handbook on the

Abuse Act of 1986, at 1-9, 13-17, 20-21 (March 1987).

The 1986 Handbook repeatedly refers to convictions under

the subparagraphs of § 841(b)(1). /d at 3-4, 6-7. The

Department referred to "a ‘lesser included offense’ in which

the quantity of the controlled substance in question is not

specified ....". 1986 Handbook, at 8-9. The Handbook also

"recommends" that to invoke penalties "based upon the kind

and quantity of drug involved in particular offenses,"

prosecutors should = = prove at trial drug type and

amount. /d. at 20. 1986 Handbook distinguished

McMillan as relating to a mandatory minimum provision

expressly to be determined at sentencing. Handbook at 21.

The government’s understanding as demonstrated in the

1986 Handbook is further persuasive evidence of Congress’

determination to identify drug type and amount in § 841(b)(1)

as offense elements. Vazquez, 271 F.3d at 110-11 (Becker,

Ch J., concurring).

Despite its fundamentally sound analysis of type and

amount as § 841 offense elements in the 1986 Han , the

Department of Justice seized upon the early post-McMillan

sentence-enhancing fact cases and adopted and enforced a

national policy to avoid juries and lower its burden of proof

in drug cases.” Thus, the United States secured an erroneous

unanimity throughout the courts of appeal without ever

having the Court address whether Congress intended drug

amount (and drug type) as offense elements.

Because allegations of drug quantity do not merely give

notice of a potential sentence increase but actually constitute

elements of a greater-inclusive offense, omission of those

elements is fatal to claim of judicial power to sentence

the maximum for the lesser offense actually alleged.

This is persuasively dernonstrated in the respondents’ brief

'®See United States v. Coy, 19 F.3d 629 (11 Cir. 1994) (cross-appeal)

United States v. McCann, 940 F.2d 1352 (10™ Cir. 1991) ey

United States v. Moreno, 899 F.2d 465 (6th Cir. 1990) ek ie) nited

$742(b) (rosecuion of cabninel Sppesls requirse personal approval of the

a the Solicitor General, or the ow eee

's Manual § 9-2.170(A)\(1 & 3) (appeals and

mandamus requires level approval). Petitioner con to enforce

implied se fact a of § 841.

See, e.g., United States v. Rush, 240 F.3d 729, 731 (8" Cir. 2001).

—

17

and those unquestioned authorities need not be discussed

here. See, e.g., Heflin v. United States, 358 U.S. 415, 422

(1959); Tinder v. United States, 345 U.S. 565 (1953). On purely

statutory grounds, regardless of Apprendi, the respondents’

sentences are illegal and must be corrected.

Il. Petitioner Endorses but Cannot Justify a Novel

Approach Adopted by Most of the Courts of Appeals,

Seeking to Evade Choice Between Cons

Threshold D Amounts as Elements of Different

Offenses Under § 841(b) and Recognizing the Statute as

Unconstitutional Under Apprendi.

A careful analysis of 21 U.S.C. § 841(b) shows that drug

quantity, when made relevant by the statute as a basis for

increased maximum sentences, is an element of the offense,

because Congress intended it to be such. This interpretation

saves the statute from being declared unconstitutional under

Apprendi v. New Jersey, but the government resists it, perhaps

fearing an avalanche of post-conviction petitions. Cf Bousley

v. United States, 523 U.S. 614 (1998). A large number of

indictments, jury instructions, guilty plea colloquies, and

sentences since the mid-1980s have been premised on the

interpretation that drug quantity was only a “sentencing

factor.” That reliance was fostered by a_ successful

ag ge litigation campaign in all the circuits from 1986 -

999. The circuits, with surprising near-unanimity, have now

endorsed a new interpretation of the statute, compelled

most say by the decision in Apprendi. Those cases, followed

recently by the Second Circuit in United States v. Thomas, 274

F.3d 65 (2d Cir. 2001) (en banc), hold that Apprendi, as a

matter of constitutional law, converted facts formerly

construed as “sentencing factors,” which the jury was

forbidden to consider, into facts that; while not recognized as

elements, were nonetheless to be treated “like elements.”

Those courts, endorsed by the petitioner here (Pet. Br. 15),

thus view the problem as essentially procedural, rather than

as involving the substantive constitutionality of the statute.

This line of analysis is inconsistent with the actual decision

and reasoning in Apprendi, and does not withstand scrutiny.

1. This Court in Apprendi applied the traditional doctrine of

judicial review to invalidate a New Jersey statute that had

been definitively construed to contain a sentence-enhancing

18

fact. See Apprendi, 530 U.S. at 468-69, 476, 491-92, 497. The

Court reviewed the statute exposing the defendant to the

enhanced sentence, rather than reviewing merely the

particular sentence imposed and the procedures applied to

impose it. See id. at 468 (the opinion begins, "A New Jersey

statute ...."); id. at 469 (positing question presented in

statutory terms); id. at 482 (addressing the “legislative

scheme”); id. at 482-83, 483 n.10, 494, 495 (repeatedly

addressing how the statute “exposes” defendants to an

increased statutory maximum sentence).

This Court restated the controlling constitutional principle

in —a terms, consistent with the doctrine of judicial

review: "[I]t is unconstitutional for a legislature to remove

from re the assessment of facts that increase the

prescribed range of penalties ....". Jd. at 490 a

added) (internal quotation marks and citations omitted). The

Court ultimately articulated a substantive constitutional

constraint on legislative power to define criminal oifenses,

and applied that constraint in a case in which the defendant

had waived his trial rights, including the right to a jury trial,

and pleaded guilty. /d. at 469-70. Si put, Apprendi

rendered statutes creating sentence-enhancing facts which

are not elements unconstitutional per se. It did not invite

judges to create a new, legislatively unauthorized system of

jury-guided sentencing.

2. Here, petitioner nonetheless makes no attempt to

construe § 841 to avoid the likely fatal conflict between the

Constitution and Congress’ (supposed) creation of § 841

threshold drug amounts as sentence-enhancing facts. Cf.

Castillo v. United States, 530 U.S. 120, 123-24.(2 (statutory

choice between elements and implied sentence-enhancing

facts is antecedent to constitutional analysis).

Rather, accepting the controlling circuit precedent in the

court below, petitioner relies upon a new doctrine of

constitutional adjudication articulated by some courts of

appeals and supposedly based on Apprendi. This doctrine

finds in Apprendi au ty to contradict congressional intent

to establish drug quantities as sentence-enhancing facts.

This new doctrine would require that drug amount be alleged

in the indictment and submitted to the jury, but only if the

sentence later imposed exceeds the rwise icable

statutory maximum. Pet. Br. at 15-16; see United States v.

Promise, 255 F.3d 150, 156 (4" Cir. 2001) (en banc), petition

for cert. pending, No. 01-6398 (docketed September 20, 2001)

19

(accepting preexisting construction that "Congress intended

these specific threshold quantities to be sentencing factors

rather than elements of aggravated drug trafficking

oifenses"); id. ("Apprendi dictates that in order to authorize

the imposition of a sentence exceeding the maximum

allowable without a jury finding of a specific threshold drug

quantity, the specific threshold quantity must be treated as an

elernent of an aggravated drug trafficking offense"); id. at 186

(Motz, J.) (concurring in, inter alia, Part Il-A, dissenting from

-_ ,

is new mode constitutional adjudication flies in the face

of fundamental tenets of constitutional law and judicial

review. Only Congress can define the elements of a federal

offense. Bousley v. United States, 523 U.S. 614, 620-21 (1998);

Staples v. United States, 511 U.S. 600, 604 (1994). A new

constitutional decision by this Court in a state case cannot

somehow convert what was not an element of a federal

offense into an element.

A court may use avoidance of a constitutional problem as

-a tool of statutory construction,” but not as a justification to

contradict legislative intent. If Congress intended drug type

and amount to be sentencing factors, the courts must honor

that intent in subjecting § 841 to judicial review. See Miller v.

French, 530 U.S. 327, 339 (2000) (federal court "cannot press

statutory construction ‘to the point of disingenuous evasion’

even to avoid a constitutional question"); Hill v. Wallace, 259

U.S. 44, 71 (1922) (Taft, Ch.J.) (severabili analysis "does not

give the court power to amend the act"). Judicial review is

limited to upholding or striking down the provision enacted

by Congress. See United States v. Jackson, 390 U.S. 570,

572-82 (1968) (voiding death penalty provision applicable

"This constitu novel approach prevails, at least with respect to

submission of thres drug amounts to the and

linguistic variations, in every circuit except the Ninth -B-,

United States v. Thomas, 274 F.3d 655, 663 (2d Cir. 2001 = banc);

United States v. Sanchez, 269 F.3d 1250, 1265 & q }

gant meg be 01-8100 (docketed Jan. 15, ); id. at 1267-

70; United States v. Vazquez, 271 F.3d 93, 96 Cir. 2001) (en banc)

petition for cert. pending, No. 01-9014, docketed 15, ); id. at 98-

99; United States v. Doggett, 230 F.3d 160, 163-65 (S" Cir. 2000).

"See, e.g., United States v. Lopez, 514 U.S. 549, 562 (1995); Ashwander

v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) » de

concurring); see also Jones v. United States, 526 U.S. 227, (1999).

20

only to those exercising right to jury trial; rejecti

Government's extra-statutory procedural overlays).

The Promise- approach, despite its apparently broad

acceptance, flatly violates these fundamental principles. Cf.

Promise, 255 F.3d at 165 (Wilkinson, Ch.J., concurring in part)

("The creation of new offense elements out of a statute's

traditional sentencing factors works a serious infringernent

on the powers of a co-equal branch of government," and is

"to the general detriment of popular governance").

3. The Ninth Circuit in United States v. Buckland, 277 F.3d

1173 (9th Cir. 2002) (en banc), reached essentially the same

result by a path which is analytically inconsistent with the

Promise approach. See id. at 1179 (declining request to

“sever Congress’s alleged intent from the statute and .. . fill

the resulting void with the new procedure mandated by

Apprendi”); id. at 1182 (overruling United States v. Nordby,

225 F.3d 1053 (9" Cir. 2000), its post-Apprendi analog to

Promise). Instead, Buckland recognized the possibility that if

Congress intended to create threshold drug amounts as

sentence-enhancing facts, the statute would be

unconstitutional under Apprendi. Id. at 1179. Expressly to

avoid this outcome, the court construed the statute anew. /d.

at 1179-82.

According to Buckland, § 841 does not run afoul of

Apprendi because Congress did not expressly say judges

must determine drug amount by a preponderance of the

evidence. Instead, the court reasoned, Congress intentionally

left the fact-finder and the burden of proof undefined, for

courts to determine later. Buckland, 277 F.3d at 1179-80

(following United States v. Brough, 243 F.3d 1078 (7 Cir.

2001)). Buckland nonetheless declined to decide whether

Congress intended threshold drug amounts to be “elements”

or “sentencing factors,” reading Apprendi to substitute an

“effect” test in lieu of “semantical hair splitting” between

elements and sentencing factors.’ Finding that Congress

intended “to ramp up the punishment for controlled

substance offenders based upon the and amount of

illegal substance involved in the crime, held that

“Brough purported to determine that maintained a distinction

between “elements of the offense” and events . . . on which the

pocscenter wiles to cola GREE SEES Brough, 243 F.3d at

080 (emphasis original). This is nothing but evasion of Apprendi's

21

drug and amount must be treated for purposes of

proof and verdict like “any other material fact in a

criminal case.” /d. at 1182-83.

Buckland’s whole-cloth statutory construction is deeply

flawed. Apprendi holds unconstitutional any statute that

would increase the maximum sentence without assuring the

protections associated with elements. Apprendi, 530 U.S. at

494. At the same time, the Court’s controlling statutory

precedents pose a choice between construing a concededly

maximum-extending fact in a federal criminal law as either

an element or a sentencing factor. Castillo, 530 U.S. at 121

(2000) (“offense elements . . . or sentencing factors); Jones

v. United States, 526 U.S. 227, 239 (2000) (“an elernent of an

offense rather than a sentencing consideration”).

_ In light of the choice posed, Buckland’s analysis is

inco te. On the one hand, Buckland rejects the primary

basis upon which other courts rely for hol that

amount is a sentence-enhancing fact. 577 F.3d at 1188

( that “unlawful acts” and “penalties” headings do not

Don ~ — statute); a , 255 F.3d at 170-71

, J, cone statut analysis on

headings). Yet, Duckiond, like Bough, never suggests

another reason why drug type and amount s d be

considered anything but elements.

_ Buckland’s determination that Congress deliberately

intended to leave to the courts the allocation of the burden of

proof and the identity of the fact-finder raises separate

constitutional concerms:

It is one thing [for a court] to fill a minor gap in a statute

-- to extrapolate from its = design details that were

inadvertently omitted. It is quite another thing to create

from whole cloth a complex and completely novel

procedure and thrust it upon unwilling defendants for the

sole purpose of rescuing a statute from a charge of

unconstitutionality.

Jackson, 390 U.S. at 580. Congress must define the contours

of federal criminal offenses, Bousle. 523 U.S. at 620-21, and

the courts cannot revise an allocation of authority between

judge and jury which is py or implicit in a criminal

statute. Jackson, 390 U.S. at 572-82 (rejecting government's

attempt to save a statute through extra-statutory procedural

overlays). While Buckland is correct that U States v.

Evans, 333 U.S. 483 (1948), undermines sentence-

enhancing interpretation of drug amount, 577 F.3d at 1181,

22

Evans also defeats a construction based upon a specific

congressional intent to leave the contours of § 841 for judicial

determination. See Evans, 333 U.S. at 486 (Constitution limits

the Court in supplying the undefined in criminal statutes).

One of the principal flaws of the statute in Evans was its

ty as to the allowable unit of prosecution. /d. at

490-91 ( to resolve the "scope and quality of the

forbidden acts” able in each count because it "would

be to in an essentially legislative manner for the

defini and specification of the criminal acts, in order to

make a judicial determination of the scope and character r+

the penalty"). D and amount are too intimate

related 4% Bm hg unit of prosecution to have been

validly left to the courts for further definition. | Compare

United States v. Grandison, 783 F.2d 1152, 1156 (4" Cir. 1986)

(“Congress intended the possession of each scheduled

substance to be a different offense”), with United States v.

Edwards, 105 F.3d 1179, 1181 (7th Cir. _— ("a ny

substance" is element; types amounts go to

sentencing em the pam hey hm aff'd, 523 U.S. 511

1998).

Sooenene uchtand’s tabaany enaigiie te Gatectivn, and tee

Promise-Thomas aproach constitutes a judicial usurpation of

legislative power, the Court should reject the petitioner's

position and affirm the judgment of the Fourth Circuit on

statutory grounds.

This Court’s construction 841 is particularly needed to ameliorate

an untenable stuao ot cect) presented by this case Due to a switch

in the courts of appeals after > Aten me

from construing drug as an element sentence-

86 F.3d 1537, 1552-53 (10 Cir. 1996) (collecting cases), cert. denied, 519

U.S. 1030 es et extended sentences because it

is not an See, e.g., Lewis, 113 F.3d at 489-92.

lil. The Holding in Neder vo. United States, 527 U.S. 1

Petitioner proposes to extend Neder v. United States, 527

U.S. 1 (1999), to the context of drug ammount omitted from the

indictment in a controlled substances case. ,Pet. Br. at 18-22.

In this atternpt, petitioner affirmatively, if subtly, relies upon

Neder to gloss over the barely acknowledged, additional

problem in this case that drug amount was not included in

the instructions to the petit jury. Pet. Br. at 20-21; see also id.

at 23-24. There are, however, fundamental differences

between the context in which the new llate

interpretation of materiality as an offense elernent for jury

determination in Neder applied and the context in which the

new appellate interpretation of drug amount as an offense-

distinguishing element applies. Petitioner’s reliance upon

Neder is misplaced with respect to both the omitted

instruction to the petit jury and the omitted allegation in the

indictment.

The change in law Neder addressed—from materiality as

a “legal elernent” to an ordinary offense element—occurred

in a unique procedural context. See Neder, 527 U.S. at 14

(“this case arose in the legal equivalent of a laboratory test

tube”). At the time of trial in Neder, materiality concededly

was an offense element. Neder, 527 U.S. at 8; Johnson v.

United States, 520 U.S. 461, 464 (1997); United States v.

Gaudin, 515 U.S. 506, 509 (1995). Widespread precedent had

held, however, that it was a “legal” elernent, to be decided by

the judge rather than the jury. Gaudin, 515 U.S. at 516-21.

Nonetheless, the prosecution still offered evidence at frial to

prove the elernent. See Neder, 527 U.S. at 16 (evidence of $5

million in unreported income); Johnson, 520 U.S. at 464

( defendant’s unsuccessful objection to proof of

mate during the trial); Gaudin, 515 US. at 508

or presented trial testimony on materiality). The

strict court in Neder determined the legal element of

under a standard. See

Neder, 527 U.S. at 9 (“Neder was tried . . . under the correct

standard of proof”); cf. Gaudin, 515 U.S. at 510 n.1 (some

24

courts did not require beyond-a-reasonable-doubt standard

for legal shementa). The materiality element constituted a

necessary part of the verdict of guilt. Johnson, 520 U.S. at 464

(district court included binding instructions on materiality ©

j ); Gaudin, 515 U.S. at 508 (sarne); Neder, 527 U.S.

A (disitict court instructed that materiality on tax and bank

fraud charges, although alleged, were ee the

court se ely found at trial that materiality had been

proved). In Neder, the difference between the district

court’s erroneous “legal elements” interpretation and the

interpretation adopt yb pet. Hh ~

elernents theory the jury did not decide materiality the j

once the comect construction of Ge statute is recognized,

neither the error in the sentence nor the “error” in the

indictment and jury can be excused under Neder. The

present case oc in a vastly different procedural

context. At the time of trial, unanimous circuit precedent

construed drug amount as a “sentencing factor.” Pet. Br. at

15, 48. The defendant could not successfully defend at trial

issue at all—let alone one for the jury. See, e.g.,

tbcbod Seatee v. Moreno, 899 F.2d 465, 472-74 (6th Cir. 1990}

(jury conviction on lesser-included drug amount, and

ofa greater-inclusive amount, does not ——— a

district court s statutory amount determinations for

2'In Neder, Court limited its discussion of structural error, and its

- a eee cmos review, t matenlailty under Gon tax tuned

oetwe. it at8, 15-20. As the Court remanded the remaining counts to the

consideration of whether the instructions were

25

v. Edwards, 105 F.3d 1179, 1181 (7th Cir.) ("a controlled

substance" is the element; drug — and amounts go to

sentencing under the s ense), affd on other

grounds, 523 U.S. 511 (1 . At sentencing, the burden of

proof was a mere pre rance of the evidence. See

United States v. Watts, 519 U.S. 148, 156 (1997).

With threshold drug amounts determined to be offense

elements, the wrong decision-maker not made the

— yoy mg hep nee ee of proof, at

wrong time; the then-prevai udicatory frarmework

was completely different from, and lnsondinent with, the one

Congress intended.

In Cole v. Arkansas, 333 U.S. 196 (1948) (Cole /), this Court

established that an llate court could not affirm a

sentence for one ense based upon an appellate

conclusion that the record established the defendants were

guilty of a distinct, related offense. Rather, due process

requires that a defendant be both charged and tried and

convicted of a particular offense before any court may render

or affirm a judgment based upon it.

Cole | implicated three related statutory offenses under an

Arkansas strike-violence law. The Cole petitioners’ co-

defendant was convicted of an offense under § 2 of the law

defined as acting in concert with another, assembling where

a labor dispute existed and using violence to prevent a

person from prefer), Id. at 198; see also Cole v.

Arkansas, 338 U.S. , 346 (1949) (Cole IJ). Petitioners

themselves were convicted of a distinct offense under § 2 of

the law, defined as acting in concert with another to

—— encourage or aid “any such unlawful assemblage”

— the in the other § 2 offense).

Cole /, 333 U.S. at 197-98. The Arkansas supreme court

affirmed on the ground that the information had charged and

evidence showed defendants committed a distinct, related

offense under a different section: § 1 of the law, defined as

using violence or threatening violence to prevent or atte

ay nt a person from lawfully working. /d. at 198, 199-

n.

The Court determined that the jury charge did not include

a finding on the use or threat of nce element of § 1. /d.

26

at 199.” But the Court acknowledged that, on appeal, the

state suprerne court held that ny te in the language of

§ 2 alleged the actual use of violence (necessary for a

conviction under § 1). /d. at 200, 201. The Court nonetheless

held that the course of proceedings violated due process:

If, as the State Supreme Court held, petitioners

were with a violation of § 1, it is doubtful

both that the information fairly informed them of

that charge and that they sought to defend

themselves against such a charge; it is certain

that they were not tried for or found guilty of it. \t

is as much a violation of due process to send an

accused to prison following conviction of a

charge on which he was never tried as it would

be to convict him upon a charge that was never

made.

01 (ernphasis added). The Court therefore reversed

5 ee to the state courts for further proceedings. /d.

’ rr titioners’

convictions on remand, the case returned to the Court. Cole

I], 338 U.S. at 347. The “more subtle and far-reaching

concern in Cole I] was that “the trial court and the appellate

court adopted contrasting interpretations of . . . section [2].

_..” Id. at 348. In the face of a serious constitutional

challenge to the aiding-an-assemblage offense in § 2, the

state supreme court construed § 2 to require the accused

to aid the assemblage with the intent that violence be used.

or mere sence at an assemblage where unlawful

- nn oceuned. Id. at 349. The Court stated that, were

this so, “the result [on remand] was a repetition of the earlier

error.” /d. at 348. The Court, however, concluded from the

trial record that the petitioners in fact had been properly tried

27

and convicted for the alleged § 2 offense, including the intent

element, and affirmed.

With drug amount as an offense-defining element, Cole /

requires the conclusion that extending Neder to this case

would violate due process.“ Just as the elernent of actual

violence in Cole / defined the related § ! offense and was not

submitted to the jury, the agreement here to threshold drug

amounts defined a related but unc d conspiracy offense

under 21 U.S.C. § 846 and was not submitted to the jury.

The rule in Cole //, that an appellate court cannot add an

element to a crime to save a statute and affirm a judgment

based upon the element added on appeal, survives Neder,

illustrates the special circurnstances underlying Neder’s rule,

and cautions against injudicious extensions of the Neder

holding. The defendant in Neder, despite the reservation of

the “legal element” to the judge, was charged and tried (if

not properly convicted) under the sarne elements upon which

the Court affirmed. Neder, 527 U.S. at 9. The “legal element”

construction rejected on appeal in Neder, like an instruction

erroneously describing an element at the conclusion of the

trial, involved error limited to the jury instructions alone,

without any collateral impact on the issues at stake at trial,

the burden of proof, or the incentives of trial participants. See

Neder, 527 U.S. at 9-10; id. at 11-13. Moreover, the trial record

created under the burden of proof applicable to elements

can ay inference on appeal fron the trial record that

the defendant contested and presented such evidence as he

“This Court has cen canny Gist cn conetinte cnet

violates due process a judgment based an

or set of facts for —ty pire > tried and

McConnick v. United States, U.S. 257 (1991) (untried and factual

rounds cannot conviction); Chiarella v. United , 445 US.

£22, 2870.21 (1980) (ferent legal ); Dunn v. United States, 442 U.S.

100 (1979) and cannot conviction);

Presnell v. , U.S. 14 (1978) (untried factor cannot

support death sentence); Eaton v. City of Tulsa, 415 U.S. 697 (1974)

—* and acts of cannot support conviction);

amer v. Louisiana, 368 U.S. 157, 164 (1961) (uncharged and untried

criminal trespass offense cannot support sentence).

*When an element distinguishes between offenses, a defendant has no

incentive to object—indeed, incentive not to object—that the

eee to expose him to a more serious

28

could, or would on retrial. Cf. id. at 19 (“defendant did not,

and apparently could not, bring forth facts contesting the

omitted element”).

In contrast, adding an elernent on appeai that was never

at issue in the trial alters, after the fact, the very frarnework of

the trial. Here, the unanimous circuit precedent construing

drug amount as a sentence-enhancing fact and not an

elernent affirraatively establishes that defendants received no

relevant notice that they must, or even could, contest drug

amount at trial, even when drug amount was alleged as it

was here in the original, superseded indictment. CY. Pet. Br.

at 24. Moreover, any inference on appeal from the record

would be unsupported judicial speculation as to

what choices defendants would have made, with notice,

under an increased prosecutorial burden of proof at trial and

under a completely different adjudicatory framework. Cf.

Pet. Br. at 19 (relying on Neder review of trial evidence); id. at

24 (contending that sentencing. evidence can establish

robable cause for indictment).” As in Cole / and Cole //

potentially), the change in interpretation in this case

involved tional, ive errors defeating notice and the

opportunity to be heard, as well as a record inadequate for

appellate review. Thus, extending Neder to this case to affirm

a sentence based upon an ed and untried aggravated

offense would validate structural error and, independently,

violate due process.”

surely

v. United States, 521 U.S. 198 (2001), and affirming the sentences

sarily affect “the faimess, integrity or of

seamen ,” United States v. Olano, 507 U.S. 725, (1993), because

t would constitute an independent violation of due process. Cole /, 333

.S. at 201. The plain error rule must look to the ” of the

proceedings amang persons who are well-versed in values.

29

CONCLUSION

Amici acknowledge that the stakes in this case are

potentially very high; under any standard of review, the

fairness, —— ¥ and public reputation of judicial

p-oceedings are directly at stake. Amici submit that those

interests will be best secured by enforcing nd intent

that drug threshold amounts (and drug types) be § 841(b)

offense elements, notwithstanding the burden the lower

courts may now face due to their previous failure to do so.

For the foregoing reasons, as well as those advanced in

the briefs of the respondents, NACDL and FAMM support

respondents in seeking affirmance of the judgment below

vacating their illegal sentences.

Respectfully submitted,

Mary Price Clayton A. Sweeney, Jr.

Families Against Mandatory Counsel of Record

Minimums Foundation Suite 815

1612 K Street, N.W., Suite 1400 1528 Walnut Street

Washington, D.C. 20006 Philadelphia, PA 19102-3604

(202) 822-6700 (215) 732-9093

Peter Goldberger Of Counsel:

90 Rittenhouse Place David Porter

Ardmore, PA 19003-2276 Co-Chair, NACDL

Amicus Curiae Committee

(610) 649-8200 801 K Street, 10th Floor

Sacramento, CA 95814

(916) 498-5700

Joshua L. Dratel Lisa Bondareff Kemler

Co-Chair, NACDL Amicus Co-Chair, NACDL

Curiae Committee Amicus Curiae Committee

Law Offices of Zwerling & Kemler, P.C.

Joshua L. Dratel, P.C. 108 N. Alfred Street

14 Wall Street, 28th Floor Alexandria, VA 22314

New York, NY 10005

(703) 684-8000

(212) 732-0707