Reply Brief — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)

FILED

—— S.unranes Court, U.S.

GRErs JAN -3 2017

OFFICE OF THE CLERK _

No. 16-424

IN THE

RODNEY CLASS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

JESSICA RING AMUNSON

R. TRENT MCCOTTER*

JENNER & BLOCK LLP

1099 New York Ave. N.W.

Washington, DC 20001

(202) 637-6333

tmecotter@jenner.com

Jan 3, 2017 * Counsel of Record

i

TABLE OF CONTENTS

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REPLY BRIEF FOR PETITIONER. .................0.....0000+0 |

1. The Government Concedes There Is A

Circuit Split On The Question

Pi iinianiinnectinsascnnntinasionbémmiatinntenaian ‘onda 1

Il. The Question Presented Is Important. ........... 3

Ill. This Case Is An Excellent Vehicle. ................. 7

IV. The D.C. Cireuit’s Decision Was

Contrary To This Court’s Precedent............... )

SY cccccinincitiirninictinnninsianbtiisnicguciinesitpennnnasteesiitih 13

ii

TABLE OF AUTHORITIES

CASES

Agostini v. Felton, 521 U.S. 208 (1997)................+ 4,11

Blackledge v. Perry, 417 U.S. 21 (1974).............:cccce0s 1

Brady v. United States, 397 U.S. 742 (1970)............. 11

Haynes v. United States, 390 U.S. 85 (1968)......... 1,10

Massaro v. United States, 588 U.S. 500 (2008)........... 6

Menna v. New York, 423 U.S. 61 (1975) ............0..0000000 1

Parrilla-Fuentes v. United States, 137 S. Ct.

EER RA GA EE ee A 7

Tollett v. Henderson, 411 U.S. 258 (1978) ................. 11

United States v. Broce, 488 U.S. 563 (1989).............. 11

United States v. Knowles, 29 F.3d 947 (5th

a eeliitdinenbiieonia 2

OTHER AUTHORITIES

Brief in Opposition, Muhlenberg v. United

States, No. 16-6135 (U.S. Nov. 23, 2016)................ 8

Brief in Opposition, Parrilla-Fuentes v.

United States, 137 S. Ct. 474 (U.S. Oct. 12,

EET a a 7,8

Fed. R. Crim. P. Rule 11 Advisory

Committee’s Notes to 1983 Amendment .............. 3

Petition, Carrasquillo-Penaloza v. United

States, No. 16-6076 (U.S. Sept. 19, 2016) .............« 8

iii

Petition for a Writ of Certiorari, Muhlenberg

v. United States, No. 16-6135 (U.S. Sept.

I IITTTI iis dclohsccetcatincencionestiininagisectinapadeimiaiieiemmmbunttiniiiaienianial 8

SERRE et ee OR 2

ASS ee anne ee Se 3

U.S. Courts, U.S. Courts of Appeals—

Decisions in Cases Terminated on the

Merits, http://www.uscourts.gov/sites/

default/files/data_tables/stfj_b5_630.2016.p

iii pirsclensschicsiniaiinintesaeiialitionstaladdheeiidatetaanniaditedtanpciiciusnes 6

l

REPLY BRIEF FOR PETITIONER

The government concedes that the courts of appeals

are squarely divided on the Question Presented, and

also acknowledges that the D.C. Circuit’s decision

below rested solely on that issue. The government

further agrees with Petitioner that this Court’s

directly-on-point holding in Haynes v. United States,

390 U.S. 85 (1968), is fully in accord with Petitioner’s

position. These concessions are more than enough to

warrant a grant of a writ of certiorari here.

As discussed below, this case presents a uniquely

strong vehicle through which the Court should resolve

the circuit split regarding the correct interpretation of

this Court’s decisions in Haynes, Blackledge v. Perry,

417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61

(1975), and thereby answer the unsettled question of

whether a_ guilty plea inherently waives all

constitutional challenges to the statute of conviction.

This is an issue of great importance to the orderly and

efficient operation of the criminal justice system.

I. The Government Concedes There Is A Circuit

Split On The Question Presented.

1. The government concedes, as it must, that the

courts of appeals are deeply split on the question of

whether, by pleading guilty, a defendant inherently

waives his right to challenge the constitutionality of his

statute of conviction. See BIO 11-12. Citing the very

same cases that Petitioner presented, see Pet. 15-17,

the government notes that the D.C., First, and Tenth

Circuits flatly forbid such challenges on appeal, see BIO

2

11. Again citing the same cases relied on by Petitioner,

see Pet. 18-21, the government next acknowledges that

the Third, Sixth, Seventh, Eighth, Ninth, and Eleventh

Circuits have ruled to the contrary and allow at jeast

certain constitutional challenges to the statute of

conviction, with the Seventh and Eighth Circuits

distinguishing between facial and as-applied claims.

See BIO 11-13.!

The government also concedes that the D.C.

Circuit’s decision below rested exclusively on this exact

question, with the D.C. Circuit relying on its

established precedent to hold that Petitioner’s guilty

plea inherently waived his right to raise any

constitutional challenge to his statute of conviction. See

BIO 5-6. The deep split presented by this case is more

than enough on its own to warrant granting a writ of

certiorari. See Sup. Ct. R. 10(a).

Not only does the government concede a well-

developed split, but the government also asserts that

the caselaw from six circuits is “contrary [to] authority

from this Court.” BIO 12; see also id. at 9,11. The

government claims that these circuits’ decisions—

which sometimes label certain constitutional challenges

as “jurisdictional”—cannot be “reconciled” with this

Court’s caselaw indicating that the constitutionality of

a criminal statute “is not a question of subject-matter

| The government appears to dispute the precedential value of the

Fifth Circuit’s published decision in United States v. Knowles, 29

F.3d 947 (5th Cir. 1994), but the government later admits that the

“Fifth Circuit follows the ... decision {in Knowles]” as binding.

BIO 12 n.3.

3

jurisdiction.” BIO 9. The government’s allegation that

numerous circuit courts are disregarding this Court’s

precedent regarding jurisdiction is yet another reason

to grant certioran here. See Sup. Ct. R. 10(c).

II. The Question Presented Is Important.

The government’s arguments that the Court should

not grant the writ despite the existence of the circuit

split are meritless.

1. The government first suggests that this Court

need not resolve the split because the 1983

amendments to Rule 11 of the Federal Rules of

Criminal Procedure were meant to overrule circuit

courts that had adopted Petitioner’s interpretation of

Blackledge and Menna. See BIO 7. That is wrong.

Rule 11’s commentary made clear that the

modifications to Rule 11 “should not be interpreted as

either broadening or narrowing the Menna-Blackledge

doctrine or as establishing procedures for its

application,” because Rule 11 “has no application to

such situations.” Fed. R. Crim. P. 11 Advisory

Committee’s Notes to 1983 Amendment; Pet. 24.

Further, the government’s own brief shows that the

circuit split has arisen after 1983, defeating any

implication that the modifications to Rule 11 somehow

mooted or modified this issue. See BIO 11-13.

2. The government next argues that the circuit

courts themselves should sort out the split. See BIO 13

(arguing that circuits’ disagreements with this Court’s

precedent “should be addressed in the first instance by

the courts of appeals themselves”). This makeweight

4

argument ignores the sheer number of circuits that

would have to go en banc to reverse their binding

decisions, given that there is, at a minimum, a 6-3

circuit split. The government’s argument also

completely misunderstands the nature of the split,

which exists because the lower courts cannot agree on

the correct interpretation of this Court’s rulings in

Haynes, Blackledge, and Menna. It is this Court’s

prerogative—not the circuits’—to clarify and re-

interpret prior Supreme Court decisions. See Agostini

v. Felton, 521 U.S. 208, 237-38 (1997).

3. The government also argues that the Question

Presented arises only in a rare set of circumstances and

therefore is “of limited practical importance.” BIO 17-

18. This claim is completely defeated by the fact that

the government’s own brief cites no less than 15 on-

point circuit cases issued just since 1993. See BIO 11-

13.2

4. The government next asserts that the split is not

worth resolving because defendants like Petitioner

would perhaps lose on the merits of their underlying

2 To the extent the government suggests that future prosecutors

ean avoid this issue by drafting better plea agreements, see BIO

17, such an argument disregards the fact that several circuits hold

that a facial challenge to a statute implicates the court’s

jurisdiction, see Pet. 20-21, meaning that such claims cannot be

waived regardless of how artfully the government drafts its pleas.

In any event, the government has been aware of this split for

years and—as shown by this very case—prosecutors apparently

have not become any more skilled at drafting their way around the

split.

5

constitutional challenges even if they were permitted to

raise them under Blackledge/Menna. See BIO 16-18.

The government’s argument is both irrelevant and

wrong. Because the D.C. Circuit did not reach the

merits below, the ultimate success of Petitioner’s

underlying constitutional claims is not before this

Court. Rather, this Court is faced only with the narrow

question of whether a constitutional challenge to a

statute inherently survives a guilty plea—a question of

great importance to the criminal justice system.

In any event, the government’s argument

disregards the significant collateral benefits of

resolving the Question Presented. Establishing a

uniform rule on which issues survive a guilty plea

would promote a more efficient and orderly criminal

justice system, thereby preserving scarce appellate

court resources and providing predictability for

defendants and prosecutors alike. Because of the

current confusion over the _ interpretation of

Blackledge/Menna, the courts often expend significant

resources reviewing the parties’ full merits briefs and

then preparing for oral argument, resulting in a great

drain of time even when the government ultimately

“wins.” Establishing a uniform national rule would

ensure that proper claims (such as Petitioner’s) receive

full consideration, while improper claims are quickly

dismissed, saving precious court resources. See Pet. 24.

Further, the government is incorrect to suggest

that defendants like Petitioner will prevail less

frequently than other criminal defendants. In fact, in

the cases Petitioner cited where the circuit court

6

ultimately addressed the underlying constitutional

merits, the defendant prevailed in over 7% of them—

which is actually higher than the 4.8% overall reversal

rate of federal convictions on direct appeal.*

Considering that 95% of criminal convictions are

obtained via guilty pleas, see Pet. 22, even a 7% success

rate would equate to hundreds of meritorious claims

that circuit courts are erroneously forgoing.

This Court should grant the petition and establish a

uniform and predictable national rule, which would

benefit prosecutors, defendants, and the lower courts

alike. See Pet. 23-24.

3 Compare Pet. 17-23 (citing United States v. Knowles, 29 F.3d

947, 952 (5th Cir. 1994)), with U.S. Courts, U.S. Courts of

Appeals—Decisions in Cases Terminated on the Merits,

http:?//www.uscourts.gov/sites/default/files/data_tables/stfj_b5_630

.2016.pdf (for 12-month period ending June 30, 2016, 573 criminal

cases were reversed, out of 11,873 total criminal ceses terminated).

4 The government also suggests that constitutional challenges to

the statute of conviction should be raised in a 28 U.S.C. § 2255

motion. See BIO 18. However, this would subject defendants to a

Catch-22. On direct appeal, the government would argue that the

constitutional claims can be raised only in habeas—and then when

the defendant filed a habeas petition, the government would argue

that the claims were procedurally improper because they had not

been presented on direct appeal. See Massaro v. United States,

538 U.S. 500, 504 (2003). The government’s suggestion would also

result in a further waste of judicial resources by forcing courts to

address claims in a collateral setting that easily could have been

resolved on direct appeal.

7

III. This Case Is An Excellent Vehicle.

The government’s arguments about the suitability

of this case to resolve the Question Presented are easily

disposed of—and actually highlight that Petitioner’s

ease is a superior vehicle because it lacks the

procedural complications that plagued other cases

raising a similar Question Presented.

1. The government first notes that this Court

recently denied certiorari in Parrilla-Fuentes v. United

States, No. 16-5055, 187 S. Ct. 474 (2016), and suggests

that the Court “should do the same here.” BIO 6.

However, Parrilla-Fuentes is easily distinguishable.

As the government’s brief in opposition noted, the

Blackledge/Menna issue was irrelevant in that case

because the defendant’s ability to appeal was

independently barred by an express term in his guilty

plea specifically waiving his right to directly appeal his

underlying conviction. BIO 3, Parrilla-Fuentes, No.

16-5055 (U.S. Oct. 12, 2016).

That is not the case here. The D.C. Circuit correctly

held that Petitioner’s guilty plea “lack/s/ ... an explicit

waiver” of his right to directly appeal his conviction or

the judgment against him. Pet.App.4a (emphasis

added). That omission is especially important given

that Petitioner’s plea further contained an integration

clause stating that there were no “understandings” or

“promises” between Petitioner and the government

“other than those contained in writing herein.” D.C.

Cir. J.A.159 (emphasis added). The government never

argues otherwise, and accordingly it is undisputed that

8

the terms of Petitioner’s plea do not independently bar

his constitutional challenges, unlike in Parrilla-

Fuentes.®

2. Also unlike Parrilla-Fuentes, Petitioner’s case

presents properly preserved as-applied and facial

challenges. See Pet. 25-26.6 While conceding that

Petitioner raised an as-applied Second Amendment

challenge below, the government suggests that it is not

“clear” whether Petitioner's separate vagueness

challenge was facial. BIO 14-15. That is wrong. The

government candidly admits that the “government’s

own brief [at the D.C. Circuit] apparently treated the

vagueness argument as facial.” BIO 15. The

government cannot create a vehicle issue simply by

attempting to disclaim its own prior position.

The government also argues that the vagueness

challenge was not sufficiently briefed at the district

court, though it concedes the issue was fully briefed in

the D.C. Circuit. See BIO 16. The record does not

° The two pending cases that the government cites are

distinguishable for the same reason. Ser BIO 61.1. The guilty

pleas in Carrasquillo-Penaloza v. United States, No. 16-6076 (U.S.

Sept. 19, 2016), and Muslenberg v. United States, No. 16-6135

(U.S. Nov. 23, 2016), both contained express waivers of the

defendant's right to directly appeal thcir convictions. Pet. 2,

Carrasquillo-Penaloza, No. 16-6076; BIO 3, Muhlenberg, No. 16-

6135.

5 See BIO 4, Parrilla-Fuentes, No. 16-5055. The government’s

other two cases likewise failed to preserve both types of

challenges. See Pet. i, Carrasquillo-Penaloza, No. 15-6076; B1O

14, Muhlenberg, No. 16-6135.

9

support the government’s theory. At the district court,

Petitioner repeatedly argued that he had no clear

warning as to the boundaries of the Capitol Grounds,

see D.C. Cir. J.A.39, 65, and the government responded

with numerous briefs attempting to explain why the

incomprehensible language of the statute was actually

“clear.” See, e.g., D.C. Cir. J.A.124, 130-38; Pet. 7.7

Accordingly, unlike the government’s cases,

Petitioner’s case presents an excellent vehicle because

it raises both facial and as-applied claims that were

squarely before the lower courts, and (as the D.C.

Circuit itself held) those claims are not independently

barred by any waiver clause in Petitioner’s guilty plea.

See Pet.App.4a.

IV. The D.C. Circuit’s Decision Was Contrary

To This Court’s Precedent.

The government spends the vast majority of its

brief arguing the merits of the Question Presented,

attacking the reasoning of the circuits that agree with

Petitioner, while praising the circuits that disagree.

See BIO 6-14. By focusing its fire so heavily on the

merits, the government only highlights that the

Question Presented is important and that Petitioner’s

case is an excellent vehicle through which to resolve it.

7 In any event, this Court would not need to address the merits of

Petitioner’s underlying constitutional challenges, which would be

remanded for consideration in the first instance by the D.C.

Circuit.

10

In any event, the government’s discussion of the

merits is off-base. It repeatedly ignores or dismisses

this Court’s precedent, offering a view of what the

government believes the law should be, rather than

what this Court has actually held.

1. As Petitioner argued, several circuits are

ignoring this Court’s decision in Haynes v. United

States, 390 U.S. 85 (1968). This Court can resolve the

split by granting the Petition and reaffirming the

holding in Haynes, which is directly on point and

rejected the government’s position regarding waiver.

See BIO 9-10. As the government admits, in Haynes “a

defendant had raised in district court, before pleading

guilty, an as-applied constitutional challenge to the

statute under which he had been charged, and the

[Supreme] Court permitted the renewal of that

challenge on appeal.” BIO 9-10.

Here, Petitioner likewise raised his constitutional

challenges to the statute before he pleaded guilty, see

Pet. 6-7, but the D.C. Circuit refused to consider

Petitioner’s constitutional claims, directly contrary to

Haynes. The government never argues that this Court

has overruled Haynes. The best the government can

muster is that Haynes should not be followed because,

in the government’s opinion, this Court allegedly “did

not analyze” the issue sufficiently before reaching its

holding. BIO 10.8 Needless to say, that is not a valid

® The government also argues that Haynes pre-dates the

modifications to Rule 11, see BIO 9-10, but again that argument

disregards the fact that the circuit split has arisen after the Rule

11 modifications were issued in 1983. See Part IL.1, supra. The

11

reason for lower courts to disregard the binding

decision in Haynes.

2. The government next suggests that United

States v. Broce, 488 U.S. 563 (1989), silently overruled

or modified the Blackledge/Menna rule. See BIO 6-7.

This suggestion is especially bewildering because Broce

itself stated that the “decisions in Blackledge ... and

Menna ... halve] no application to the case at bar.”

Broce, 488 U.S. at 574. The government’s theory also

ignores the fact that the circuit split has intensified in

the years after this Court issued Broce. See Pet. 15-21;

BIO 11-13.

3. The government next tries to defend the D.C.

Circuit’s decision as being consistent with this Court’s

decisions in Tollett v. Henderson, 411 U.S. 258 (1973),

and Brady v. United States, 397 U.S. 742 (1970), see

BIO 6-7, but the government does not offer a single

word in response to Petitioner’s argument that Menna

unequivocally rejected the D.C. Circuit’s and the

government’s interpretation of Tollett and Brady:

“Neither Tollett ... nor ... Brady ... stand for the

proposition that counseled guilty pleas inevitably

‘waive’ all antecedent constitutional violations.”

Menna, 423 U.S. at 62 n.2; Pet. 27.

Adopting in full the D.C. Circuit’s position, the

government next claims that Blackledge and Menna do

not apply here because in those cases, “the very act of

government also disregards the rule that lower courts are bound

by this Court’s decisions until] this Court sees fit to overrule them.

Agostini, 521 U.S. at 237-38.

12

haling the defendants into court completed the

constitutional violation{s}!” of double jeopardy and

vindictive prosecution, meaning the defendants did not

even need to appear to defend themselves. BIO 8

(quoting United States v. Miranda, 780 F.3d 1185, 1190

(D.C. Cir. 2015)). The government fails to offer any

response to Petitioner’s argument refuting this exact

point. See Pet. 30. Jeopardy does not attach merely

because the government files a second indictment, and

even a successful claim of vindictive prosecution does

not relieve a defendant from his obligation to appear in

court. See id. (citing Crist v. Bretz, 437 U.S. 28, 38

(1978); United States v. Hollywood Motor Car Co., 458

U.S. 263, 267-68 (1982)).

Accordingly, merely haling a defendant into court a

second time cannot possibly “complete” a violation of

the double jeopardy clause or amount to a successful

claim of vindictive prosecution. The government’s and

D.C. Cireuit’s rationale is nothing more than an

attempt to label Blackledge and Menna as sui generis

decisions that lack any underlying rationale.

The correct inquiry under Blackledge/Menna is

whether the defendant’s claim—if successful—would

forever prevent any trial from taking place. See Pet.

27-28. Petitioner’s constitutional challenges easily meet

that test, and accordingly he should have been allowed

to raise them on appeal. /d. at 28.

** *

The government concedes that the circuit courts are

directly divided on the Question Presented and that the

13

D.C. Circuit below rested its holding solely on that

same issue. Petitioner's case is a perfect vehicle

because it raises both facial and as-applied claims, and

also because Petitioner’s guilty plea does not contain an

independent waiver of his right to directly appeal his

conviction. Pet.App.4a.

Resolving this split and providing a uniform rule

will benefit not only defendants and the government,

but also the lower courts themselves, which are in

complete disarray about which constitutional

challenges must receive full merits consideration.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JESSICA RING AMUNSON

R. TRENT MCCOTTER*

JENNER & BLOCK LLP

1099 New York Ave. N.W.

Washington, DC 20001

(202) 637-6333

tmecotter@jenner.com

* Counsel of Record