Amicus Curiae Brief — United States v. Fanfan

<- .

FILED

| $ ) SEP 9 - 2004

Nos. 04-104 & 04-105 OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

UNITED STATES OF AMERICA, Petitioner,

Vv.

FREDDIE J. BOOKER, Respondent,

~ UNITED STATES OF AMERICA, Petitioner

Vv.

DUCAN FANFAN, Respondent

On Writ of Certiorari to the United States Courts of

Appeals for the First and Seventh Circuits

BRIEF OF THE FEDERAL PUBLIC DEFENDER,

NORTHERN DISTRICT OF TEXAS, AS AMICUS

‘CURIAE IN SUPPORT OF RESPONDENT

’ JRA R. KIRKENDOLL DOUGLAS A. Morris and

Federal Public Defender CARLOS R. CARDONA

Northem District of Texas Assistant Federal Public

Counsel of Record Defenders, and

525 S. Griffin St., Suite 629 K. JOEL PAGE

Dallas, Texas 75202 Research & Writing Attorney

214.767.2746 :

Counsel for Amicus Curiae

_ [BEST AVAILABLE COPY |

QUESTION PRESENTED

Other than the fact of a prior conviction, can a defendant’s

mere admission of facts function as a waiver of constitutional

rights, which would then allow a court to use those facts to

increase the sentence beyond the relevant statutory maximum

sentence that the indictment supports?

il

TABLE OF CONTENTS

QUESTION PRESENTED ....ccccccccsccsccveses il

TABLE OF CONTEINES .. ccccccccessecsesusueune iil

TABLE OF AUTHORITIES ............-... ++: iv-vii

INTERESTS OF AMICUS CURIAE ................ l

SUMMARY OF ARGUMENT ..............-0ee eee 2

A See tt—<‘i_ 3-13

I. Other than the fact of a prior conviction, can a

defendant’s mere admission of facts function as a

waiver of constitutional rights, which would then

allow a court to use those facts to increase the

sentence beyond the relevant statutory maximum

sentence that the indictment supports?

CUONCTATIIUIN wcccccccccscsestesueueeeeeeee 13-15

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States,

Ds cecéccccceocsceess 3-6, 13

Gl ae peedeeeoeecoceses 3-5, 9, 13

mT in one iusepesddeceneoces passim

MMISDD US. 618 (1998)... cc ccceccevsceeee

ee TE Pisbhecensecececs 6, 7,9, 14

wees ebb eeeeseneocesecess 8

TY Dp iseendedeteesocecess 6

Sem ST A24 196 (Pa 1968) nese i

eT com PPR edERGeeUeneccuscoccces 6

eee DP sthebeecestsecceccces 9

IV

Diaz v. United $

PE ED. o canccnesadeccevecees 3-4

Dretke v. Haley,

Pn Cn. |. ceeheedaemaneee 5

b Louisi

UU a tte oe 3

Hamdi v. Rumsfield,

124 S. Ct. 2633 (2004) (plurality) ............ 9

In re Winshi

I goa scr ctilts Baeg at oOo oe 5,9

lowa v. Tovar,

ced cece eee, 3

Johnson v. Zerbst,

ED sp vscdndewadaecis passim

Jones v. United States,

I, «oe coucehucdaedeia 4,5,9

Libretti v. United S

IN «inte cncnwandiineuus 7

McCarthy v. United States,

1+. cscendceeumademmeinine 7

Patton v. United States,

281 U.S. 276 (1930),

overruled on other grounds by,

Williams v. Florida, 399 U.S. 78 (1970) ....... 3

Ri ari

ED. cccc cbeusenedacees 5

United States v. Broce,

A 7

United States v. Cotton,

os cuaaeed 9

United States v. Mezzanatto,

RSA arenes eee 3

United S Rui

ESS Saree ye eer 8

United States v. Vonn,

RRR Sr ee Serer eng mee 9

Woodward v

Ee nee 7

Rules

Oe a Pn nncbkedsdadesidescececss 3

Be PE, CRs bo vdieo cdeccksddacnsedes 7

Fed. R. Crim. P. 11 (2004) ..............0005. 8-10, 12

DGGE cccescecccatcntescesovesase 2

GLEE ecedeccauocceeedseeessseses l

Other Authorities

Sharon M. Bunzel, The Probation Officer

and the Federal Sentencing Guidelines:

Strange Philosophical Bedfellows,

104 Yale L.J. 933 (Jan. 1994) .............. 11

Gary M. Maveal, Articles:

Federal Presentence Reports:

Multitaski :

26 Seton Hall L. Rev. 544 (1996) ........... 11

United States Department of Justice,

C F ¢ Federal Justice Statisti

AEE cocvasdeussesetcoussensse 10

United States Sentencing Commission,

2002 Sourcebook of

Federal Sentencing Statistics, (2002) ...... 10, 14

Jack B. Weinstein, Symposium on

Federal Sentencing: Comment:

4 Trial Judge’s S 11 '

f the Federal S ing Guideli

66 S. Cal. L. Rev. 357 (Nov. 1992) .......... 11

Vil

ic gS == PH TTT TTT

INTERESTS OF AMICUS CURIAE

The Office of the Federal Public Defender, Northern

District of Texas, provides legal representation to over a

thousand indigent individuals each year who the government

has charged with violating federal criminal statutes.' In the

end, the vast majority of our clients decide that it is in their

best interest to plead guilty and are subject to the Federal

Sentencing Guidelines. Accordingly, this Office has a very

high interest in the outcome of this case. This Office

determined that it would be in its clients’ best interests to

address the issue of whether a simple admission of facts,

other than the fact of a prior conviction, can function as a

waiver of constitutional rights. It appears from the caselaw,

commentary, and the known positions of the parties that this

important issue will not be addressed. With that said, the

Office of the Federal Public Defender, Northern District of

Texas, respectfully submits this amicus curiae brief in support

of the Respondents.

1 Letters of consent have been filed with the Clerk. Pursuant to

this Court’s Rule 37.6, amicus curiae states that no counsel for a

party authored any part of this brief, and no person or entity, other

than amicus curiae and their counsel made a monetary contribution

to the preparation or submission of this brief.

|

SUMMARY OF ARGUMENT

This Court’s precedent and the Federal Rules of

Criminal Procedure weigh heavily against allowing a

defendant’s simple admission of facts, which increase the

relevant statutory maximum sentence, to constitute an

adequate waiver of constitutional rights.

This Court has held, however, that a defendant can

waive constitutional rights, such as the bundle of rights

referred to as Apprendi rights. Accordingly, a valid waiver of

Apprendi rights would allow a sentencing court to make a

factual determination that may result in a defendant receiving

a sentence beyond the relevant statutory maximum sentence

that the indictment supports.

Because Respondents and others will thoroughly argue

that Blakely v. Washington, 124 S. Ct. 2531 (2004),

applies to the Federal Sentencing Guidelines and that the

Guidelines remain valid, this brief will not waste this

Court’s time by restating these same arguments. See Sup.

Ct. R. 37.1 (2004).

ARGUMENT

A. Almendarez-Torres v. United States, 523 U.S.

224 (1998) is the basis to the idea that a

simple admission of facts allows a court to

exceed the statutory maximum sentence.

In what is arguably dictum, this Court stated that a

defendant may waive his Apprendi rights by admitting facts.

See Blakely, 124 S. Ct. at 2537. Specifically, “[wJhen a

defendant pleads guilty, the [government] is free to seek

judicial sentence enhancements so long as the defendant

either stipulates to the relevant facts or consents to judicial

factfinding.” Id. at 2541 (emphasis added) (citing Apprendi

v. New Jersey, 530 U.S. 466, 488 (2000); Duncan v.

Louisiana, 391 U.S. 145, 158 (1968)). It is clear that a

defendant may waive, inter alia, constitutional and statutory

rights. See Fed. R. Crim. P. 7(b) (2004);? see also Iowa v.

Tovar, 124 S. Ct. 1379, 1387-90 (2004); United States v.

Mezzanatto, 513 U.S. 196, 200-11 (1995); Johnson v. Zerbst,

304 U.S. 458, 465 (1938);° Patton v. United States, 281 U.S.

276, 312-13 (1930),* overruled on other grounds by, Williams

v. Florida, 399 U.S. 78, 90-94, 102-03 (1970); Diaz v. United

2 This notes the ability to waive the right to an indictment.

3 Approving the waiver of the right to counsel.

4 Approving the waiver of the right to a jury trial.

3

States, 223 U.S. 442, 450-53 (1912).° However, the waiver-

by-admission language in Blakely is inconsistent with this

Court’s precedent.

To support the proposition that a defendant may waive

constitutional rights by simply admitting facts that increase

the relevant statutory maximum sentence, Blakely cited a

specific page in Apprendi that discussed Almendarez-Torres

v. United States, 523 U.S. 224 (1998). Blakely, 124 S. Ct. at

2541 (citing Apprendi, 530 U.S. at 488). It cannot be denied,

however, that Almendarez-Torres dealt only with the

situation where a defendant admits to the fact of a prior

conviction and not to facts that increase the relevant statutory

maximum sentence. See Apprendi, 530 U.S. at 487-88; cf.

Blakely, 124 S. Ct. at 2541.

Moreover, Almendarez-Torres represents an

“exceptional departure from the historic practice” of requiring

the government to include in the indictment those facts, other

than the fact of a prior conviction, that increase the statutory

maximum sentence of imprisonment. See Apprendi, 530

U.S. at 487-88. The reasons for this “exceptional departure”

are that a defendant with a prior conviction is presumed to

have enjoyed the full panoply of constitutional rights during

the previous proceedings and that the courts of this country

have traditionally treated recidivism as a sentencing factor.°

5 Approving the waiver of the right to confrontation.

6 “[A] prior conviction must itself have been established through

procedures satisfying the fair notice, reasonable doubt, and jury

trial guarantees.” Jones v. United States, 526 U.S. 227, 249

(1999). “The majority and the dissenters in Almendarez-Torres

4

See Apprendi, 530 U.S. at 487-88; Jones v. United States,

526 U.S. 227, 248-49 (1999); see generally Dretke v. Haley,

124 S. Ct. 1847, 1853-54 (2004); Ring v. Arizona, 536 U.S.

584, 602-09 (2002).

In sum, neither Almendarez-Torres nor Apprendi

condoned a defendant waiving constitutional rights simply by

admitting essential facts that would result in an increase in the

relevant statutory maximum sentence, but that are not related

to the fact of a prior conviction. Thus, this Court has not

sanctioned such a “waiver” and it cannot reasonably be

argued that a defendant can waive Apprendi rights by simply

admitting those facts, unrelated to a prior conviction, that

increase the defendant’s relevant statutory maximum

sentence. Cf. Apprendi, 530 U.S. at 488; Jones, 526 U.S. at

249; In re Winship, 397 U.S. 358, 364 (1970); Johnson, 304

U.S. at 465.’

disagreed over the legitimacy of the Court’s decision to restrict its

holding to recidivism, but both sides agreed that the Court had

done just that.” Id. at 249, n10.

7 This is not to say that a defendant cannot waive or stipulate to

those facts that are only relevant to the defendant’s guilt,

innocence, or sentence within the relevant statutory maximum

sentence; however, such a waiver or stipulation is not so easily

given when the facts are used to increase the relevant statutory

maximum sentence. Cf. Blakely, 124 S. Ct. 2537; Apprendi, 530

U.S. at 490.

B. The requirements for a valid waiver

It is beyond peradventure that a mere factual

admission does not fulfill the requirements of a voluntary and

knowing waiver of Apprendi rights. Cf. Bousley v. United

States, 523 U.S. 614, 618 (1998); Johnson, 304 U.S. at 464-

65; Cordova v. Hood, 84 U.S. 1, 7 (1873).* For nearly 70

years Johnson has held that “‘courts indulge every reasonable

presumption against waiver’ of fundamental constitutional

rights . . . and that we ‘do not presume acquiescence in the

loss of fundamental rights.’ . A waiver is ordinarily an

intentional relinquishment or abandonment of a known right

or privilege.” Johnson, 304 U.S. at 464 (citations omitted).

With that, how can it be said that a defendant’s simple

admission of facts not included in the indictment can serve as

a knowing and voluntary waiver of constitutional rights, a

waiver that then allows a court to increase the relevant

statutory maximum sentence, i.e., sentence the defendant to

an additional term of imprisonment for uncharged conduct?

It cannot.’

8 A “[wlaiver is a thing of intention as well as of action.”

Cordova, 84 U.S. at 7.

9 The Court has clearly held that “‘[p}resuming waiver from a

silent record is impermissible.’” Boykin v. Alabama, 395 U.S.

238, 242 (1969) (quoting Carnely v. Cochran, 369 U.S. 506, 516

(1962)). Indeed, a simple admission does not “speak” to whether

the person has knowingly and voluntarily waived their

constitutional nghts. Cf. Boykin, 395 U.S. at 242-43.

6

eee

It is no good to say that the defendant’s guilty pleacan

“subsidize” a defendant’s admission such that the admission

would fulfill the requirements of a waiver of constitutional

rights. A “guilty plea is an admission of all the elements of

a formal criminal charge, it cannot be truly voluntary unless

the defendant possesses an understanding of the law in

relation to the facts.” McCarthy v. United States, 394 U.S.

459, 466 (1969) (emphasis added); see United States v.

Broce, 488 U.S. 563, 570 (1989). Because the guilty plea is

directly related to conduct that the government includes in the

indictment, the trial “judge must determine ‘that the conduct

which the defendant admits constitutes the offense charged

in the indictment or information or an offense included

therein to which the defendant has pleaded guilty.’”

McCarthy, 394 U.S. at 467 (emphasis added) (quoting Fed. R.

Crim. P. 11, Notes of Advisory Committee on Criminal Rules

(1966)); see Libretti v. United States, 516 U.S. 29, 38 (1995);

Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)."°

Accordingly, a court cannot piggyback a defendant’s

admission of facts that increase the relevant statutory

maximum sentence onto a plea of guilty; the admitted

conduct was not included in the indictment or information

and cannot be used, absent a sufficient waiver, to increase a

defendant’s relevant statutory maximum sentence. Cf.

Boykin, 395 U.S. at 242-43; McCarthy, 394 U.S. at 466.

Moreover, if allowed, there would be no guarantee that the

defendant was aware of his rights to a jury trial and proof ©

beyond a reasonable doubt with regard to the facts that

10 A “plea of guilty is more than an admission of conduct; it is a

conviction.” Boykin, 395 U.S. at 242 (emphasis added) (citing

Woodward v. State, 171 So. 2d 462, 469 (Ala. 1965)).

7

increase the relevant statutory maximum sentence. Cf.

Johnson, 304 U.S. 464-65."

+d Federal Rule Criminal Procedure 11

The Rules of Federal Criminal Procedure provide

further support for the contention that simple admissions are

insufficient to waive constitutional and statutory rights. See

11 That a guilty plea is a grave and solemn act to be

accepted only with care and discernment has long

been recognized. Central to the plea and the

foundation for entering judgment against the

defendant is the defendant’s admission in open

court that he committed the acts charged in the

indictment. He thus stands as a witness against

himself and he is shielded by the Fifth Amendment

from being compelled to do so— hence the

minimum requirement that his plea be the

voluntary expression of his own choice. .... But

the plea is more than an admission of past conduct;

it is the defendant’s consent that judgment of

conviction may be entered without a trial-- a

waiver of his right to trial before a jury or a judge.

Waivers of constitutional rights not only must be

voluntary but must be knowing, intelligent acts

done with sufficient awareness of the relevant

circumstances and likely consequences.

Brady v. United States, 397 U.S. 742, 748 (1970) (emphasis added)

(citations omitted); see United States v. Ruiz, 536 U.S. 622, 628-29

(2002).

Boykin, 395 U.S. at 243, n.5; Fed. R. Crim. P. 11(b) (2004)."”

Rule 11(b) clearly outlines the proper method for receiving a

defendant’s waiver of rights during a guilty plea. Fed. R.

Crim. P. 11(b). Rule 11(b) includes a plethora of

constitutional and statutory nghts that a sentencing court must

address. Id.’ The fact that Rule 11(b) requires a sentencing

court to personally address the defendant and ensure that the

defendant knows what rights are being waived and that the

waiver is voluntary provides a strong argument that a simple

admission of facts cannot be used against the defendant to

increase the relevant statutory maximum sentence. See id.

In fact, as a matter of practice, no federal judge would

take a guilty plea based solely on a defendant’s factual

admission. Cf. De Jonge v. Oregon, 299 U.S. 353, 362

(1937). Before taking a guilty plea, sentencing judges ensure

that a defendant knows and understands his constitutional and

statutory rights and knowingly and voluntarily waives such

rights. See Fed. R. Crim. P. 11(b). Judges ensure that all of

this has occurred by conducting a colloquy pursuant to Fed.

12 “Rule 11 of the Federal Rules of Criminal Procedure requires

a judge to address a defendant about to enter a plea of guilty, to

ensure that he understands the law of his crime in relation to the

facts of his case, as well as his rights as a criminal defendant.”

United States v. Vonn, 535 U.S. 55, 62 (2002) (emphasis added).

13 Because Rule 1 1(b) does not address all of the Apprendi rights,

a colloquy based solely on the current version of Rule 11(b) is

inadequate. Compare Fed. R. Crim P. 11(b) to Hamdi v.

Rumsfield, 124 S. Ct. 2633, 2646-49 (2004) (plurality); United

States v. Cotton, 535 U.S. 625, 627 (2002); Apprendi, 530 U.S. at

482-84, 490, n.15; Jones, 526 U.S. at 243, n.6; In re Winship, 397

U.S. at 364.

R. Crim. P. 11(b). See id. A mere admission of facts is

clearly insufficient. See id.; cf. Johnson, 304 U.S. at 464.

IV. Redeeming Waivers by Admission

In fiscal year 2001, the government prosecuted 82,614

defendants: 89% of these were convicted. United States

Department of Justice, Compendium of Federal Justice

Statistics, 2001, at *55 (Nov. 2003). Of the convicted, 95%

pleaded guilty and 5% lost at trial. Id. (Figure 4.1). Of the

remaining 11% of defendants who were not convicted, the

government dismissed the charges against the vast majority;

statistically, it appears that only 10% of the remaining 11% of

defendants went to trial and won. See id.; cf. United States

Sentencing Commission, 2002 Sourcebook of Federal

Sentencing Statistics, at *20 (2002) (Figure C). It is clear

from these numbers that nearly all of the people that the

government pursues charges against will have the Federal

Sentencing Guidelines applied to their case.

It is common knowledge that these legions of

defendants who plead guilty, must, as part of the plea

colloquy, admit facts related to the charged offenses. On

some occasions the admissions are strictly limited to the

charged offense and specifically track the indictment. On

many other occasions, however, the admissions include facts ;

that go well beyond the elements of the offenses that:

Congress has prescribed.'*

14 Beyond these admissions are the “facts” that a probation officerr

gleans from various “sources” that also increase the relevantt

statutory maximum sentence. For defendants, defense attorneys,,,

and some prosecuting attorneys, this is one of the most aggravatingg

10

i

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;

aspects of the Federal Sentencing Guidelines. The Guidelines

allow a probation officer to “investigate” and then include “facts”

that result in surprise enhancements in the Presentence Report that

neither the government nor the defendant expected. [It is

heartening to read that this Court understands this problem:

Any evaluation of Apprendi’s ‘fairness’ to criminal

defendants must compare it with the regime it

replaced, in which a defendant, with no warning in

either his indictment or plea, would routinely see

his maximum potential sentence balloon . . . based

not on facts proved to his peers beyond a

reasonable doubt, but on facts extracted after trial

from a report compiled by a probation officer who

the judge thinks more likely got it right than got it

wrong.

Blakely, 124 S. Ct. at 2542 (emphasis added).

It is also clear that probation officers periodically act as

quasi-prosecutors by making legal arguments to increase a

defendant’s statutory maximum sentence. See Sharon M. Bunzel,

The Probation Officer and the Federal Sentencing Guidelines:

Strange Philosophical Bedfellows, 104 Yale L.J. 933, 961-65 (Jan.

1994). Even worse, probation officers are sometime seen as the

“Pinocchios in the hands of prosecutorial Geppettos.” The

Honorable Jack B. Weinstein, United States District Judge,

Symposium on Federal Sentencing: Comment: A Trial Judge’s

Second Impression of the Federal Sentencing Guidelines, 66 S.

Cal. L. Rev. 357, 360 (Nov. 1992); see also Gary M. Maveal,

Articles: Federal Presentence Reports: Multitasking at Sentencing,

26 Seton Hall L. Rev. 544, 567-96 (1996).

ll

In those instances, if Blakely applies to the Federal

Sentencing Guidelines and the Guidelines remain valid, a

defendant can admit facts that would allow the sentencing

court to increase the defendant’s sentence beyond the relevant

statutory maximum sentence that the indictment supports.

Again, Johnson and its progeny pellucidly hold that in order

for the admission to act as a valid waiver of rights, the

government must procure a sufficient waiver as part of a plea

agreement that would then allow the sentencing court to make

a factual determination based on those admitted facts; the

sentencing court must then perform a proper plea colloquy

informing the defendant of the waiver of constitutional rights

regarding those specific factual admissions. Cf. Johnson, 304

U.S. at 464-65; Fed. R. Crim. P. 11.

Admittedly, the admission and adequate waiver

become problematic in the arena of one-count indictments

that do not include “specific offense characteristics.” If a

single count formed the sum total of the defendant’s criminal

conduct, the defendant would have no incentive to increase

the relevant statutory maximum sentence. The government

In a defense attorney’s eyes, the best result of applying

Blakely to the Federal Sentencing Guidelines will be reducing a

probation officer’s impact in determining the offense-level and

allowing the prosecuting and defense attorneys to come to an

agreement as to a defendant’s “enhancements” and relevant

statutory maximum sentence. When this occurs, a defendant will

truly know what offense level he or she is bargaining for and then

we can all truthfully say that the defendant has knowingly and

voluntarily waived constitutional rights.

12

could resolve this, however, by superceding the indictment to

include the guideline “elements” or by offering the defendant

some consideration for admitting the facts and signing an

adequate waiver.

In a multi-count indictment, this is less of a problem.

In such a case, the defendant usually receives some

consideration for the guilty plea in the form of a reduction in

charges, which usually results in a lower guideline range. As

part of the bargain, the government could insist that the

defendant admit specific facts that will increase the relevant

statutory maximum sentence and further insist that the

defendant sign a waiver of constitutional rights related to the

specific admitted facts and subsequent sentence.

CONCLUSION

Blakely, citing Apprendi, discussing Almendarez-

Torres does not support the proposition that a defendant can

waive constitutional nghts by simply admitting facts, which

are not facts related to a prior conviction, that increase the

relevant statutory maximum sentence. Any such statement is

contrary to this Court’s precedent. The defendant, however,

can admit facts in conjunction with a valid waiver of

enumerated rights that will allow the judge to increase the

relevant statutory maximum sentence. As part of this

procedure, the sentencing court must fully inform the

defendant of the rights being waived and the results of such

a waiver. Only then will a defendant knowingly and

voluntarily have waived constitutional and statutory rights.'*

15 ‘A majority of criminal convictions are obtained

after a plea of guilty. If these convictions are to be

13

Cf. Boykin, 395 U.S. at 242-244; Johnson, 304 U.S. at 464.

The bottom line is that the application of Blakely to

the Federal Sentencing Guidelines, when combined with

admitted facts and valid waivers, will result in defendants

actually receiving the guideline range that they bargained for:

this would be real “truth in sentencing.””*®

insulated from attack, the trial court is best advised

to conduct an on the record examination of the

defendant which should include . . . an attempt to

satisfy itself that the defendant understands the

nature of the charges, his right[s] . . . , the acts

sufficient to constitute the offenses for which he is

charged and the permissible range of sentences.’

Boykin, 395 U.S. at 244, n.7 (emphasis added) (quoting

Commonwealth ex. rel. West v. Rundle, 237 A.2d 196, 197-98 (Pa.

1968)).

16 The Sentence Commission notes that 47.9% of its 6,290

appeals before the Circuit Courts of Appeal, which is 3,014

appeals, were filed strictly for perceived sentencing errors.

Sentencing Commission, 2002 Sourcebook of Federal Sentencing

Statistics, at *101 (2002) (Table 55). It cannot be denied that

giving the defendant the sentence bargained for would dramatically

reduce the number of appeals, thus saving significant judicial

resources.

14

Respectfully submitted,

Ira R. Kirkendoll

Counsel of Record

Federal Public Defender

Northern District of Texas

525 Griffin Street, Suite 629

Dallas, Texas 75202

214.767.2746

Douglas A. Morris

Assistant Federal Public Defender

Carlos R. Cardona

Assistant Federal Public Defender

K. Joel Page

Research and Writing Attorney

Counsel for the Amicus Curiae

15