Petition for Writ of Certiorari — Ravelo v. United States

————

(\) “or hore aie

00 965 D&7 200

“CPPICE OFTHE -TLERK

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

TONY RAVELO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTIORARI REVIEW

On Petition for Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

COUNSEL FOR TONY RAVELO

2222 PONCE DE LEON BLVD, SUITE 500

CORAL GABLES, FLORIDA 33134

TELEPHONE: (305) 444-1400

QUESTIONS PRESENTED FOR REVIEW

Whether the Eleventh Circuit’s opinion in the

instant case regarding the enhancement of the

Petitioner’s sentence based upon the quantity of

cocaine involved in the conspiracy, violated

this Court’s holding in Apprendi v. New

Jersey, 530 U.S. _, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000) and/or Jones vy. United

States, 526 U.S. 277, 119 S.Ct. 1215, 143

L.Ed.2d 311 (1999), where: (A) the Indictment

did not charge the Petitioner with conspiring to

import over five (5) kilograms of cocaine, (B)

the trial court directed the jury not to determine

the quantity of cocaine, and (C) the Petitioner

received a life sentence through the application

of the enhanced penalty provisions of 21 U.S.C.

§ 960(b)(1)(B) which require a factual finding

that the Petitioner conspired to import over five

(5) kilograms of cocaine?

Whether an Indictment that does not allege the

minimum quantity of drugs required under the

charging statute fails to set forth an essential

element of an offense, and/or violates the Fifth

Amendment Due Process rights and Sixth

Amendment guarantees of notice and jury trial

by providing that a defendant's maximum

punishment may be increased from a maximum

of 40 years to life imprisonment based solely

upon a finding by a sentencing judge under a

preponderance of the evidence standard,

without notice by indictment and jury trial, that

the defendant had the requisite intent necessary

to establish a that he conspired to import five

(S) kilograms of more of cocaine?

Whether a trial court must sentence a defendant

whose drug conviction violates Apprendi v.

New Jersey, 530 U.S. _, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000) and/or Jones v. United

States, 526 U.S. 277, 119 S.Ct. 1215, 143

L.Ed.2d 311 (1999), to an offense level under

the United States Sentencing Guidelines that is

the lowest possible level for the drug specified

in the indictment and charging statute?

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..... i

TABLE OF CITED AUTHORITIES .......... v1

oo 0. | 8 | Sa a es a re |

ind gs beh wh an dc vas 64 0 wad |

CONSTITUTIONAL PROVISIONS

oo fae GU Ls |. Se 2

° Fifth Amendment to the United

States Constitution .............. p

° Sixth Amendment to the United

States Constitution .............. 2

° 21 U.S.C. § 952(a) [excerpt] ....... 3

° 21 U.S.C. § 960 fexcerpt] ......... 3

° ee ae WE 6-65 o ba ava wae Ss 9

° U.S.S.G. § 2D1.1 [excerpt] ........ 9

STATEMENT? UF THE CASE .............. 11

A. Proceedings in the Courts Below .. 11

B. Statement of Facts ............. 12

ARGUMENT:

I. BEFORE INCREASING A

DEFENDANT’S STATUTORY

MAXIMUM SENTENCE FROM

FORTY YEARS TO _ LIFE

IMPRISONMENT ON’ THE

BASIS OF THE QUANTITY OF

ILLEGAL DRUGS A

DEFENDANT A CONSPIRED

TO IMPORT IN A_ DRY

CONSPIRACY, THE

-lil-

PROSECUTION MUST PROVE

THE QUANTITY OF ILLEGAL

DRUGS BEYOND A

REASONABLE DOUBT TO A

PRE oo ais ah ce ee ee ee 20

Under The Due Process Clause Of

The Fifth Amendment And The

Notice And Jury Trial Guarartees

Ot The Sixth Amendment Any

Fact (Other Than Recidivism),

That Increases The Maximum

Penalty For A Crime, Including

The Quantity of Illegal Drugs

That A Defendant Agreed to

Import, Must Be Charged In An

Indictment, Submitted To A Jury

And Proven Beyond A

Reasonable Doubt ..............

(1) The Quantity of Drugs That

A Defendant Intended to

Import Is An_ Essential

Element of 21 U.S.C. §§

Woe ME OD 6 ckw ee daw de ac

(2) The Failure” of an

Indictment to Charge an

Essential Element of an

Offense, Requires Reversal

ofa Conviction ...........

Alternatively, Where a

Defendant’s Drug Conviction

Violates Apprendi or Jones, the

-1V-

20

Defendant Should Be Resentenced

To The Lowest Level Under the

United States Sentencing

Guidelines for the Drug Specified

in the Indictment and Charging

| er ae rr re 27

COPE LASEE 4s vk ep eee Pere oe sae ees 28

CERTIFICATE OF SERVICE .............. 29

APP oi ae oe eee [separately bound.

TABLE OF CITATIONS

TABLE OF CASES:

Apprendi v. New Jersey,

530 U.S. , 120 S.Ct. 2348, 147

Ri & Fy’ | | rere ae passim

Ex parte Bain,

121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849

EGUUET? Feu cus ce eee eee eee 26

Jones v. United States,

526 U.S. 277, 119 S.Ct. 1215, 143

LB O08 (ISSO) ok cata ewes saan passim

Stirone v. United States,

361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d

FOGLE TEE 60k kine eee 25

United States v. Hester,

199 F.3d 1287 (11" Cir. 2000), rev'd,

- U.S. -, 121 S.Ct. 336, - L.Ed.2d -

Ceae. OG, See Wb eons 21

United States v. Hughes,

213 F.3d 323 (7" Cir. 2000), rev'd,

- U.S. -, 121 S.Ct. 423, - L.Ed.2d -

Ne. G Dee ek bc vans eee eae 21

United States v. Humphrey,

210 F.3d 373 (6" Cir. 2000)(unpub),

rev'd, - U.S. -, 121 S.Ct. 478, - L.Ed.2d -

CRU. 85: Oe sc 5 an eee eee eek 21

United States v. Jones, -

194 F.3d 1178 (10" Cir. 1999), rev'd,

- U.S. -, 120 S.Ct. 2739, 147 L.Ed.2d 1002

LOOe) Ss av Seeds pee 21

-Vi-

United States v. Smith,

215 F.3d 1331 (7" Cir. 2000), rev'd,

- U.S. -, 121 S.Ct. 336, - L.Ed.2d -

CEOS, Ti Ge Wie ve aes ectaereensaaes 21

United States v. Tran,

-- F.3d —, 2000 W.L. 1701651 (2d Cir.

PO: Se cs bp on a oe we ee ca ees 26

United States v. Whitt,

211 F.3d 1022 (7" Cir. 2000), rev'd,

- U.S. -, 121 S.Ct. 423, - L.Ed.2d -

In re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

SOR OSTO) oo cs cee ces PERTIITIre 25

OTHER AUTHORITIES:

United States Constitution:

EE ge a ek ens 2, 24-26

RS cnr ae cea Care 2, 24-26

UNITED STATES CODE:

re hte Fade 0” eee er rae eer ey 3, 23

Ae Mes OE A eo NEA exSe ne eas 3, 24, 26

21 U.S.C. § 960(b)(1)(B) .. 2... eee eee 11, 23, 24

FAG LS 8 pie. SIRs yea aren te 9,11

Be ee WED 5 6 kis So cheek cae es I

tn Ce 2 Sa ap ereree rer 9,27

asda: 0G, Bee CA, NOS ne be ee eee es |

-Vil-

OPINIONS BFLOW

The unreported opinion of the Eleventh Circuit

was entered on July 31, 2000. (Pet. App. 27-43). The

Eleventh Circuit’s unpublished order entitled “On

Petition(s) for Rehearing and Suggestion(s) for

Rehearing En Banc,” was entered on September 8,

2000 (Pet. App. 58), and the Eleventh Circuit's

Mandate issued on September 20, 2000. (Pet. App.

59).

The appeal to the Eleventh Circuit arose from

the Petitioner’s Judgment and Commitment entered on

August 27, 1998, after a jury trial. (Pet. App. at 12-

26).

JURISDICTION

The Judgment of the United States Court of

Appeals for the Eleventh Circuit was entered on July

31,2000. A timely Petition for Rehearing En Banc,

was filed on August 20, 2000, and on September 8,

2000, the Eleventh Circuit entered an order denying

the Petition for Rehearing En Banc. (Pet. App. at 58).

Thereafter, on September 20, 2000, the Eleventh

Circuit issued a Mandate on its Judgment. (Pet. App.

at 59).

The jurisdiction of this Court to review the

judgment of the Eleventh Circuit 1s conferred under

Title 28 U.S.C. § 1254(1) and Sup.Ct. Rule 10.

CONSTITUTIONAL PROVISIONS & STATUTES

U.S. Const., amend V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

U__S. Const. amend VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defence.

reer eeany ae ev e E

21 U.S.C. § 95a)

Importation of Controlled Substances - Excerpt '

(a) Controlled substances in schedule | or II and

narcotic drugs in schedule III, 1V, or V; exceptions

It shall be unlawful to import into the customs

territory of the United States from any place outside

thereof (but within the United States), or to import

into the United States from any place outside thereof,

any controlled substance in schedule I or II of

subchapter I of this chapter, or any narcotic drug in

schedule III, IV, or V of subchapter I of this chapter,

except that . . . [certain listed substances] . .. may be

so imported under such regulations as the Attorney

General shall prescribe. No crude opium may be so

imported for the purpose of manufacturing heroin or

smoking opium.... |

21 U.S.C. § 960. Prohibited acts A - Excerpt *

(a) Unlawful acts

Any person who--

(1) contrary to section 952, 953, or 957 of

this title, knowingly or intentionally imports or

' The exceptions were omitted from this Excerpt. For the full

text of 21 U.S.C. § 952, see Pet. App. at 60-61.

? See, Pet. App. at 60-61.

* Only an except regarding the penalty provisions for cocaine

violations are set forth herein. For the full text, see Pet. App. at 62

-68.

‘.

exports a controlled substance,

(2) contrary to section 955 of this title,

knowingly or intentionally brings or possesses on

board a vessel, aircraft, or vehicle a controlled

substance, or

(3) contrary to section 959 of this title,

manufactures, possesses with intent to distribute,

or distributes a controlled substance,

shall be punished as provided in subsection (b) of this

section.

(b) Penalties

(1) In the case ofa violation of subsection (a) of

this section involving--

* * Ox

(B) 5 kilograms or more of a mixture or

substance containing a detectable amount of--

(i) coca leaves, except coca leaves and

extracts of coca leaves from which cocaine,

ecgonine, and derivatives of ecgonine or their

salts have been removed;

(ii) cocaine, its salts, optical and

geometric isomers, and salts or isomers;

(iii) ecgonine, its derivatives, their salts,

isomers, and salts of isomers; or

(iv) any compound, mixture, or

preparation which contains any quantity of any

of the substances referred to in clauses (i)

through (111);

(C) 50 grams or more of a mixture or

substance described in subparagraph (B) which

contains cocaine base;

* *

the person committing such violation shall be

sentenced to a term of imprisonment of not less than

10 years and not more than life and if death or serious

bodily injury results from the use of such substance

shall be sentenced to a term of imprisonment of not

less than 20 years and not more than life, a fine not to

exceed the greater of that authorized in accordance

with the provisions of Title 18, or $4,000,000 if the

defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both. If any

person commits such a violation after a prior

conviction for a felony drug offense has become final,

such person shall be sentenced to a term of

imprisonment of not less than 20 years and not more

than life imprisonment and if death or serious bodily

injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed

the greater of twice that authorized in accordance with

the provisions of Title 18, or $8,000,000 if the

defendant is an individual or $20,000,000 if the

defendant is other than an individual, or both. Any

sentence under this paragraph shall, in the absence of

such a prior conviction, impose a term of supervised

release of at least 5 years in addition to such term of

imprisonment and shall, if there was such a prior

conviction, impose a term of supervised release of at

least 10 years in addition to such term of

imprisonment. Notwithstanding any other provision

of law, the court shall not place on probation or

suspend the sentence of any person sentenced under

a’.

this paragraph. No person sentenced under this

paragraph shall be eligible for parole during the term

of imprisonment imposed therein.

(2) In the case of a violation of subsection (a) of

this section involving--

* *

(B) 500 grams or more of a mixture or

substance containing a detectable amount of--

(1) coca leaves, except coca leaves and

extracts of coca leaves from which cocaine,

ecgonine, and derivatives of ecgonine or their

salts have been removed;

(11) cocaine, its salts, optical and

geometric isomers, and salts or isomers;

(111) ecgonine, its derivatives, their salts,

isomers, and salts of isomers; or

(iv) any compound, mixture, or

preparation which contains any quantity of any

of the substances referred to in clauses (i)

through (111);

(C) 5 grams or more of a mixture or

substance described in subparagraph (B) which

contains cocaine base;

* * *

the person committing such violation shall be

sentenced to a term of imprisonment of not less than

5 years and not more than 40 years and if death or

serious bodily injury results from the use of such

substance shall be sentenced to a term of

imprisonment of not less than twenty years and not

more than life, a fine not to exceed the greater of that

-6-

authorized in accordance with the provisions of Title

18, or $2,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an

individual, or both. If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment of not less than

10 years and not more than life imprisonment and if

death or serious bodily injury results from the use of

such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of twice

that authorized in accordance with the provisions of

Title 18, or $4,000,000 if the defendant is an

individual or $10,000,000 if the defendant is other

than an individual, or both. Any sentence imposed

under this paragraph shall, in the absence of such a

prior conviction, include a term of supervised release

of at least 4 years in addition to such term of

imprisonment and shall, if there was such a prior

conviction, include a term of supervised release of at

least 8 years in addition to such terrn of imprisonment.

Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence

of any person sentenced under this paragraph. No

person sentenced under this paragraph shall be

eligible for parole during the term of imprisonment

imposed therein.

(3) In the case of a violation under subsection

(a) of this section involving a controlled substance in

schedule I or II, gamma hydroxybutyric acid

(including when scheduled as an approved drug

x, 2

product for purposes of section 3(a)(1)(B) of the

Hillory J. Farias and Samantha Reid Date-Rape Drug

Prohibition Act of 2000), or flunitrazepam, the person

committing such violation shall, except as provided in

paragraphs (1), (2), and (4), be sentenced to a term of

imprisonment of not more than 20 years and if death

or serious bodily injury results from the use of such

substance shall be sentenced to a term of

imprisonment of not less than twenty years and not

more than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of Title

18, or $1,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an

individual, or both. If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment of not more than

30 years and if death or serious bodily injury results

from the use of such substance shall be sentenced to

life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the

provisions of Title 18, or $2,000,000 if the defendant

is an individual or $10,000,000 if the defendant 1s

other than an individual, or both. Any sentence

imposing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction,

impose a term of supervised release of at least 3 years

in addition to such term of imprisonment and shall, if

there was such a prior conviction, impose a term of

supervised release of at least 6 years in addition to

such term of imprisonment. Notwithstanding the prior

-8-

sentence, and notwithstanding any other provision of

law, the court shall not place on probation or suspend

the sentence of any person sentenced under the

provisions of this paragraph which provide for a

mandatory term of imprisonment if death or serious

bodily injury results, nor shall a person so sentenced

be eligible for parole during the term of such a

sentence.

* * *

21 U.S.C. § 963. Attempt and Conspiracy

Any person who attempts or conspires to

commit any offense defined in this subchapter shall be

subject to the same penalties as those prescribed for

the offense, the commission of which was the object

of the attempt or conspiracy.

U.S.S.G. § 2D1.1°

§ 2D1.1. Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with

Intent to Commit These Offenses); Attempt or

Conspiracy. See, Pet. App. at -

* The text of U.S.S.G. § 2D1.lcovering cocaine offenses is

reproduced in Petitioner’s Appendix at pp. __-

-9-

IN THE

SUPREME COURT OF THE UNITED STATES

No.

TONY RAVELO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Tony Ravelo, Defendant and Appellant in the

courts below, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeal for the Eleventh Circuit entered in

this case on July 31, 2000, and Order entered on

September 7, 2000, denying his Petition for Rehearing

and Suggestion for Rehearing En Banc. Said Petition

specifically requested a rehearing as to the quantity of

drugs attributed to Ravelo in light of this Court’s

opinions in Apprendi v. New Jersey, 530 U.S. __, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000) and/or Jones v.

United States, 526 U.S. 277, 119 S.Ct. 1215, 143

L.Ed.2d 311 (1999). (See, Pet. App. at 27-43).

-10-

STATEMENT OF THE CASE

A. Proceedings in the Courts Below:

The second superseding indictment upon which

Petitioner Ravelo was tried, like all earlier

indictments, alleged in Count I that the defendants .

conspired to import an unspecified “measurable

amount” of cocaine in violation of Title 21 U.S.C. §

952, all in violation of Title 21 U.S.C. § 963.°

After the trial court instructed the jury, inter

alia, that the Government was not required to prove

the actual amount of cocaine that was the subject of

the offense, the jury convicted Ravelo of the

conspiracy to import.’ (R11-797). The trial court

subsequently sentenced Ravelo on August 26, 1998,

under U.S.S.G. Criminal History Catetory I, to life

imprisonment pursuant to Title 21 US.C., §

960(b)(1)(B), based upon the trial court’s finding by

* Second Superseding Indictment filed on October 30, 1997.

(Pet. App. at 7-11).

° The sentencing provisions for Sections 952 and 963 are set

forth in Title 21 U.S.C., § 960. (See Pet. App. at 62-68).

’ At trial, Ravelo counsel presented an entrapment defense, and

additionally argued that he was not guilty because the proof at trial

showed multiple conspiracies, because he withdrew or terminated

the initial conspiracy for 800 to 1,000 kilograms, and was further

coerced and placed under duress to continue to engage in a smaller

conspiracy involving 300 to 365 kilograms of cocaine. (R10-549-

54, R10-561-66).

ihn

a

a “preponderance of the evidence,” that Ravelo

intended to and agreed to import over five (5)

kilograms of cocaine. (R1-159, R12-80-81).

Without oral argument, the court of appeals

affirmed Ravelo’s conviction and sentence,® and

denied his Petition for Rehearing and Suggestion for

Rehearing En Banc, in which Ravelo urged the

Eleventh Circuit to apply this Court’s rulings in

Apprendi and Jones to the trial court’s findings

regarding the quantity of cocaine attributable to

Ravelo. (Pet. App. at 27-43).

B. Statement of Facts:

On April 19, 1996, while working as a

confidential informant using the name _ Elogio

Dominquez, Jesus Vasquez met with Orlando

Concepcion at the warehouse of New Wave Marina in

* See Eleventh Circuit opinion at sections “H” and “I.” (Pet

App. at 39-42). Ravelo argued at sentencing and in his brief that

he should be held responsible for a lesser quantity of drugs,

because the case involved a dry conspiracy in where Ravelo

ceased activity before the commission of substantive act of

importation was committed, which was over one year before his

arrest. The original indictment charging the dry conspiracy was

filed on September 19, 1996, and the United States did not seek an

arrest warrant for Rave/o until thirteen months later in November,

1997. Twelve days after the arrest warrants were issued in

Alabama, Ravelo was arrested in Miami, Florida, where he

resided. (R1-7,8,9,10, Pet. App. at 1-11).

-¥%.

Miami, Florida.’ During this meeting, Concepcion

told Jesus Vasquez that he was looking for a way to

transport cocaine into the United States. (R6-

57,58,102).

On April 22, 1996, Jesus Vasquez again met

with Orlando Concepcion, and explained the general

plan for importing cocaine from Panama. (R8-289).

Guerrero said that he could use a company boat to

bring the drugs into the country, and they agreed that

Concepcion would introduce Guerrero to his partner.

(R8-289).

The next day, Concepcion introduced Jesus

Vasquez to Tony Ravelo at the New Wave Marina.

(R6-61-64; R8-289). Miguel Cabal was present at the

marina, and they discussed preparations for the

importation of cocaine from the Republic of Panama.

(R6-63,64).

Thereafter, during another meeting at the New

Wave Marina, Jesus Vasquez introduced a second

cooperating informant, Joel Guerrero, to Orlando

Concepcion and Mr. Ravelo. (R6-65). Guerrero was

using the name Rauol Rodriguez. (R6-102). During

this meeting, further plans were discussed for the

transportation of the cocaine. The plans called for

Guerrero’s bosses to provide a 165 foot vessel with a

“ramp” for the loading of a smaller cocaine laden boat

* The actual name for the marina was the New Way Marina,

and it was located at 3582 N.W. 82™ Street, Miami, Florida.

Orlando Concepcion’s automotive and truck shop is at 2503 N.W.

27" Avenue, Miami, Florida. (R7-147; R10-541).

“4.

onto the larger vessel. (R6-65-66).

At another meeting during the latter part of

May, 1996, Concepcion and Ravelo requested

Vasquez to install motors on a 33 foot Donzi pleasure

boat. (R6-66). According to Vasquez, the Donzi

vessel was to be used for the transportation of the

cocaine from Panama. (R6-67). During this meeting,

a trip was also planned for Ravelo and Guerrero to

travel to Mobile, Alabama to meet with undercover

Agent James Tanner of the United States Customs

Service. (R6-68-69). Agent Tanner was posing as

Jamie Rivera, the owner of a small cargo freight

company that had 150 to 200 foot vessels operating

along the Gulf Coast and in Central and South

America. (R7-160-61).

On May 23, 1996, Ravelo and Guerrero flew to

Mobile, Alabama airport to meet with Agent Tanner,

who was accompanied by Special Agent Soto. (R7-

158). After meeting at the airport, they went to a

restaurant for lunch where they had a casual meeting,

discussing their backgrounds and general boating

topics. (R6-160). Mr. Ravelo portrayed himself to the

undercover agents and informant as an experienced

smuggler. (R7-162).

This meeting continued at the Ramada Inn

Hotel in a room that was being both audio and video

taped.’ During this meeting, Ravelo continued to

'° Over defense counsel’s continuous objections, only a portion

of this transcript was played to the jury. (R7-163-66,168, Govt Ex.

11, 11T). ;

sth.

portray himself as an experienced smuggler. Tanner

asked for an advance of $35,000 for expense money,

and Ravelo stated he could give him $50,000. (R7-

188) However, no such amounts were ever delivered

to Agent Tanner. At the conclusion of the May 23"

meeting, undercover Agent Tanner drove Ravelo and

the informant to the airport. (R7-190).

After Ravelo and Guerrero returned to Miami,

Florida from the trip to Mobile, Jesus Vasquez stated

that he met with Orlando Concepcion and Concepcion

told him that “everything was taken care of” and that

a second vessel, allegedly containing hidden

compartments under the floors, had to be finished in

order to do the trip. (R6-70,71). Vasquez explained

that Concepcion, Miguel Cabal and Ravelo were

working on this second boat. (R6-71, 73). Vasquez

provided a sketch of this boat to Agent Tanner which

Vasquez’ daughter drew. (R6-72; R7-146; Govt. Ex.

1).

Around June 12, 1996, Agent Tanner sent

sketches of the deck, top view and side view of the

cargo vessel to Ravelo. (R7-191-92; Ex. 27). On July

12, 1996, after receiving the sketches, Ravelo told

Tanner over the telephone that he needed larger scale

drawings. (R7-194). When Tanner said that he did

not have anything larger, Ravelo said that he would

work with what he had. (R7-194). Thereafter, on July

26, 1996, Tanner sent Ravelo photographs of the

cargo vessel. (R7-194).

Ravelo testified at trial that he did not work on

the vessel during the summer, (R10-559), and avoided

-15-

undercover Agent Tanner’s calls, even though the

endeavor was supposed to be completed in July, 1996,

because he did not want to go through with the deal.

(R10-561-64). Rather, Ravelo explained that he spent

the summer doing fatherly things with his son. (R10-

559).

Ravelo further testified at trial that as a result of

his failure to complete the deal in the summer, during

a meeting with informant Joel Guerrero in September,

1996, Guerrero told Ravelo that he has put him

[Guerrero] on the spot with people who are not “pussy

footing around.” Guerrero warned Ravelo that these

people were “for keeps,” and would “go to any length

or extent to get even” if Ravelo failed to perform.

Guerrero further told Ravelo that he caused Tanner to

incur a lot of expense, made them “get this vessel,

you’ve seen their face. You can recognize them at any

given time. And they are very mad because they are

now believing that you may be a snitch or a

Government informant of some kind.” (R10-566).

Guerrero conveyed that Tanner stated that if Ravelo

did not complete the job, that he “is going to take

action against Mr. Guerrero, my family and myself

[Ravelo].” Id.

Also in September, 1996, Vasquez went to the

New Wave Marina warehouse, and observed a

Gulfstream fishing boat that Alejandro Torres brought

to the warehouse. (R6-79-81, Govt. Ex. 5). At the

time Torres delivered the Gulfstream boat, only

Concepcion and Cabal were present. (R6-81).

According to Vasquez, the Gulfstream boat was at the

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warehouse for approximately one week, and during

that time, it was simply polished. (R6-82).

The next conversation Agent Tanner had with

Mr. Ravelo was on September 23, 1996. Ravelo, who

was in Miami, called Tanner in Mobile, Alabama and

engaged in a short conversation for the purposes of

setting up another meeting. (R7-197-99; Govt Ex.

12,12T).

Thereafter, on October 1, 1996, the informant,

Guerrero, and Ravelo traveled to Mobile to meet with

- Agent Tanner. (R7-201). Upon arriving, Tanner, who

was wearing a body recorder, drove Guerrero and

Ravelo to a restaurant. (R7-201).'!

At trial, Agent Tanner acknowledged that

during this October 1, 1996 meeting, Ravelo

abandoned the 800 to 1,000 kilogram conspiracy, and

discussed a new venture involving approximately 350

kilograms and using smaller boats. (R7-210,245).

Tanner explained that he and Ravelo discussed

other details of the new smaller smuggling venture,

such as Tanner’s price to transport the cocaine ‘iden

vessel, the use of a blonde individual on the boat who

would not look Spanish, alternative sources of

cocaine, and the weather and sea conditions in

Mobile, Alabama. (R7-211-217). | According to

Tanner, Ravelo also mentioned that he had a vessel

that belonged to “Alex” that could be used in the

''Over Ravelo’s objection, only a portion of the recorded

conversations were admitted and played before the jury. (R7-202-

206; Govt Ex. 14, 14T).

a.

venture as a decoy vessel. (R7-218). Ravelo also told

Tanner that Alex had nothing to do with the

smuggling venture. (R7-222).

At the conclusion of the meeting, Agent Tanner

drove Ravelo and the informant, Joel Guerrero, back

to the airport. During the ride, Ravelo provided

$15,000 for the expenses that Tanner had incurred

thus far. (R7-222; Govt. Ex. 13). Ravelo also

indicated that he would be traveling to Panama to

finalize the deal, and would thereafter return to

Mobile within “ten days,” because he wanted to see

the marina where the boat he was bringing from

Miami would be launched. (R7-223). However, Mr.

Ravelo never returned or called Agent Tanner. (R7-

224,226,231).

Thereafter, Vasquez testified'’® that on

November 5, 1996, he met with Torres, Concepcion

and informant Guerrero at the New Wave warehouse

and “gave strict orders for Orlando [Concepcion] to

get in touch with Tony [Ravelo].” (R6-84). In

addition, Vasquez claimed that November 5, 1996,

Alex Torres told him and Guerrero that the Gulfstream

boat would be going to Panama. (R6-85).

Afterwards, Concepcion contacted Ravelo, and tivn

“they took the boat away.” (R6-84). However,

Vasquez acknowledged that he never saw who

removed the boat. (R6-84).

12 However, Mr. Vasquez had no recollection of the events

during that meeting, and, over the defendants’ objections,

refreshed his recollection from the notes. (R6-82-84).

Ad.

On November 14, 1996, Agent Tanner called

Ravelo to find out what was going on, and Ravelo said

that he was going back to Panama to get the load

ready. According to Tanner, prior to this call, he

(Tanner) tried to reach Ravelo several times in

Panama and left messages for him in Miami. (R7-224;

Govt. Ex. 15,15T). Moreover, after Tanner made this

call, Ravelo never attempted to contact him again.

(R7-231).

Testimony of Special Agent, Joseph Goulet

Attrial, Agent Goulet testified that he examined

three vessels seized at the time of the arrest of the

defendants on October 29, 1997 — 13 months after the

original indictment was filed. (R1-1,23,29). The

Government offered no testimony or evidence to show

that one of the vessels, a “Star Fire,” which was seized

from defendant Torres’ property at the time of his

arrest on October 29, 1997, was part of the conspiracy

charged in the instant indictment. Based upon this

lack of evidence, defense counsel vigorously objected

to any testimony regarding the Star Fire.'°

'3Defense counsel also asserted that the Government failed to

provide any notice as required under Federal Rule of Evidence

404(b) that any such evidence would be offered at trial. (R9-424).

Nevertheless, the District Court denied defense counsel’s

objections, ruling that such was not 404(b) evidence. (R9-424).

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ARGUMENT I

BEFORE INCREASING A DEFENDANT’S

STATUTORY MAXIMUM SENTENCE FROM

FORTY YEARS TO LIFE IMPRISONMENT ON

THE BASIS OF THE QUANTITY OF ILLEGAL

DRUGS A DEFENDANT A CONSPIRED TO

IMPORT IN A DRY CONSPIRACY, THE

PROSECUTION MUST PROVE THE

QUANTITY OF ILLEGAL DRUGS BEYOND A

REASONABLE DOUBT TO A JURY.

A. Under The Due Process Clause Of The Fifth

Amendment And The Notice And Jury Trial

Guarantees Of The Sixth Amendment Any

Fact (Other Than Recidivism), That

Increases The Maximum Penalty For A

Crime, Including The Quantity of Illegal

Drugs That A Defendant Agreed to Import,

Must Be Charged In An _ Indictment,

Submitted To A Jury And Proven Beyond A

Reasonable Doubt.

The Eleventh Circuit’s affirmance of Ravelo’s

conviction and sentence, and denial of his Petition for

Rehearing and Rehearing En Banc, directly conflict

with the decisions of this Court in Apprendi v. New

Jersey, 530 U.S. _, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000) and Jones v. United States, 526 U.S. 277, 119

S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Apprendi,

this Court squarely held that “other than the fact of a

prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum

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must be submitted to a jury, and proved beyond a

reasonable doubt.” /d. - U.S. at_, 120 S.Ct. at 2362-

63.

After the Eleventh Circuit affirmed Ravelo’s

conviction and sentence and denied his petition for

rehearing and suggestion for rehearing en banc, this

Court reversed and remanded numerous drug cases for

reconsideration in light of Apprendi.'* See note 14

below. Like the cases this Court has reversed and

remanded for further consideration, the indictment in

this case failed to charge the threshold amount of

cocaine necessary to support the enhanced penalty

provisions of the charging statute, and the jury

'* The following drug cases were reversed and remanded for

further consideration in light of Apprendi: United States v.

Humphrey, 210 F.3d 373 (6th Cir.2000)(unpublished)(trial court

properly calculated of amount of cocaine), rev'd, 121 S.Ct. 478, -

L.Ed.2d - (Nov.13, 2000); United States v. Whitt, 211 F.3d 1022

(7" Cir.2000)(sustained trial court’s findings regarding quantities

of drugs based upon witness testimony at trial), rev'd, - U.S. -, 121

S.Ct. 423, - L.Ed.2d - (Nov. 6, 2000); United States v. Hughes,

213 F.3d 323 (7" Cir. 2000)(same), rev'd, - U.S. -, 121 S.Ct. 423, -

L.Ed.2d - (Nov. 6, 2000); United States v. Smith, 215 F.3d 1331

(7" Cir. 2000)(type and quantity of drugs sentencing factors),

rev'd, - US. -, 121 S.Ct. 336, - L.Ed.2d - (Oct. 16, 2000); United

States v. Hester, 199 F.3d 1287 (11" Cir.2000)(amount of

marijuana involved not an element of offense that gov’t had to

prove beyond a reasonable doubt), rev'd, - U.S.-, 121 S.Ct 336, -

L.Ed.2d - (Oct. 16, 2000); United States v. Jones, 194 F.3d 1178

(10" Cir. 1999)(a sentencing judge can consider quantities of

drugs not charged in information or indictment or proven at trial

when determining sentence, and quantities proven at trial do not

dictate mandatory minimum), rev'd, - U.S. -, 120 S.Ct. 2739, 147

L.Ed.2d 1002 (2000).

re

instructions and verdict form failed to direct the jury

to make a factual finding beyond a reasonable doubt

as to the quantity of drugs that Ravelo conspired to

import.'* (R1-1,4,17; Ct. Ex. 1-3). Accordingly, at the

minimum, this Court should reverse and remand this

case for further consideration in light of Apprendi and

Jones.

However, this case also presents this Court with

the following issues of national importance:

(a) Whether this Court’s holding in

Apprendi supra, and/or Jones supra, requires the

complete reversal of a conviction due to lack of

jurisdiction? and,

(b) Assuming that this Court’s holdings in

Apprendi, supra, and/or Jones, supra, only require a

'SThe jury instructions in the instant case specifically removed

the issue of the quantity of drugs from the jury’s consideration.

The charge instructed the jury that it only had to find a

“measurable amount” of cocaine was involved in the offense, but

not more than 800 kilograms of cocaine, as the Indictment

charged. The charge provided:

The Government is not required to prove the

actual amount of the controlled substance that was

the object of the alleged conspiracy. The

Government must prove beyond a reasonable doubt,

however, that a measurable amount of the controlled

substance was, in fact, the object of the alleged

conspiracy.

(R1-118-15)(emphasis added).

As a result, the jury charge did not require the jury to

determine whether a “measurable amount” of cocaine was “5

kilograms or more,” -- as is necessary to impose the greater

penalty provisions of 21 U.S.C. § 960(b)(1)(B).

yy ™

ee

the trial court to resentence a defendant whose

conviction was obtain in violation thereof, whether

the trial court must resentence the defendant to an

offense level under the United States Sentencing

Guidelines that is the lowest possible level for the

drug specified in the indictment and charging statute?

(1) The Quantity of Drugs That A Defendant

Intended to Import Is An Essential Element

of 21 U.S.C. §§ 952 and 960.

In Jones v. United States, 526 U.S. 227, 119

S.Ct. 1215, 143 L.Ed.2d 311 (1999), this Court noted

that

under the Due Process Clause of the

Fifth Amendment and the notice and jury

trial guarantees of the Sixth Amendment,

any fact (other than prior conviction) that

increases the maximum penalty for a

crime must be charged in an indictment,

submitted to a jury, and proven beyond a

reasonable doubt.

Id., at 243, n. 6, 119 S.Ct. 1215.

The federal carjacking statute examined in

Jones, set forth a choice of three maximum penalties,

two of which were dependent on proof of facts that

did not need to be present in the indictment or decided

by the jury. 526 U.S. at 229, 119 S.Ct. 1215. The

basic statute provided a fine or imprisonment of not

more than 15 years for the offense of carjacking, §

2119(1), but if serious bodily injury resulted, the

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maximum time in prison was 25 years, § 2119(2), and

if death resulted, the maximum was life imprisonment,

§ 2119(3).

Similarly, in the instant case, Title 21 U.S.C. §

960(b)(1), requires a factual finding to determine if

the violation of the applicable statute set forth in

subsection (a) involved 5 kilograms or more of

cocaine under subsection (b)(1)(A), or over 500 grams

but less than 5 kilograms of cocaine under subsection

(b)(1)(B). See, Pet. App. at 62-68.

Furthermore, like the indictment in Jones's case,

which made no reference to the subsections of the

statute, nor did it charge either that the defendant had

inflicted serious bodily injury on the victim or death,

the indictment herein wholly fails to identify the

penalty provisions imposed after trial. Ravelo’s

Indictment not only failed to identify which paragraph

of section 960 the government sought to impose, it

failed to cite to section 960 altogether, and further

failed to state any specific quantity of cocaine that

Ravelo conspired to import. (R1-17).

The lower courts in Jones held that the

additional facts that triggered § 2119(2) and (3) were

nonetheless sentencing factors, but the Supreme Court

reversed, holding that the Fifth Amendment Due

Process Clause of the Fifth Amendment and Sixth

Amendment notice and jury trial require any fact other

than a prior conviction”® that increases the maximum

penalty for a crime must be charged in an indictment,

'6Ravelo had no prior conviction.

-24-

submitted to a jury, and proven beyond a reasonable

doubt." Id., at 243, n. 6, 119 S.Ct. 1215. /d. at 249,

119 S.Ct. 1215.

(2) The failure of an Indictment to Charge an

Essential Element of and Offense, Requires

Reversal of a Conviction.

The requirement that an indictment contain all

the elements of the offense provides a defendant with

notice and protection from double jeopardy. See

Const. Amd V (“nor shall any person be subject for

the same offense to be twice put in jeopardy of life or

limb”); Const. Amd. VI (“the accused shall enjoy the

right ... to be informed of the nature and cause of the

accusation”). An indictment also “limit[s] [the

defendant’s] jeopardy to the offenses charged by a

group of his fellow citizens acting independently of

either prosecuting attorney or judge.” Stirone v.

United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4

L.Ed.2d 252 (1960). Furthermore, the Due Process

Clause "protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is

charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct.

1068, 25 L.Ed.2d 368 (1970).

Recently, the Second Circuit examined this

issue in the context of the federal firearm statute

where the defendants plead guilty to the simple

firearms offense, but were enhanced one conviction

for discharge of a firearm and imposed a 10 year

-25-

consecutive sentence for violation of § 924(c) in

connection with a different bank robbery. Instead of

merely reversing for resentencing, the court remanded

for resentencing or reindictment. United States v.

Tran, - F.3d -, 2000 W.L. 1701651 (2d Cir., Nov. 15,

2000). The indictments in Tran charged the

defendants with a simple § 924(c) firearms offense, to

which the defendants plead guilty. /d. at 10.

Recognizing that the notion that an indictment is a

prerequisite to jurisdiction over a criminal case in the

federal courts is long established, the Second Circuit

held that the district court acted outside its jurisdiction

in sentencing the defendants for the enhanced firearms.

offenses not charged in their indictments. Tran, at 6,

10, citing, Ex parte Bain, \2\ U.S. 1, 7 S.Ct. 781, 30

L.Ed. 849 (1887)(indictment found by a grand jury

indispensable to the power of the court to try

defendant for crime charged)..

Similarly, the indictment the grand jury

returned against Ravelo in the instant case, failed to

set forth any notice that the enhanced penalty

provisions of § 960 by either citing to the statute or

specifying the quantity of cocaine that the grand jury

found that Ravelo conspired to import. Accordingly,

the district court was without jurisdiction to try or

sentence Ravelo, because the grand jury did not

charge Ravelo with an essential element of the offense

charged.

-26-

B. Alternatively, Where a Defendant’s Drug

Conviction Violates Apprendi or Jones, The

Defendant Should Be Resentenced To The

Lowest Level Under The United States

Sentencing Guidelines For The Drug

Specified in the Indictment and Charging

Statute.

As set forth in the points above, in instances

such as the instant case where the Indictment fails to

allege the penalty provision which would provide the

trial court with jurisdiction to impose a minimum

mandatory sentence or the quantity of drugs specified

in said statute, then the tral court is without

jurisdiction to sentence (as well as convict), the

defendant.

In the event this Court does not rule that the

indictment must be dismissed, the Petitioner submits

that inasmuch as the petit jury found him guilty of a

cocaine conspiracy for an unstated quantity of

cocaine, that the trial court would only have authority

to sentence him to the lowest quantity of cocaine

specified in the United States Sentencing Guidelines.

Accordingly, Ravelo submits that the highest

base offense level applicable, would be a level 12.

See, Pet. App. at 86.

a.

CONCLUSION

For all the foregoing reasons, therefore, Tony

Ravelo respectfully submits that this Court should

grant this Petition for Certiorari.

d,

Cri

RHONDA A. ANDERSON, ESQ.

RHONDA A. ANDERSON, P.A.

Counsel for Tony Ravelo

2222 Ponce De Leon Boulevard

Suite 500

Coral Gables, Florida 33134

Florida Bar No. 708038

Telephone: (305) 444-1400

Facsimile: (305) 444-1487

-28-

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact

copy of the foregoing was mailed via U.S. Mail, this

6" day of December, 2000, to: Solicitor General,

Department of Justice, 10" and Constitution Avenue,

N.W., Washington, D.C. 20530; and Charles A.

Kandt, Esq., Assistant U.S. Attorney, 63 South Royal

Street, Riverview ip uite 600, Mobile, Alabama

36602.

UC

ONDA A. ANDERSON, ESQ.

onda A. Anderson, P.A.

Counsel for Tony Ravelo :

2222 Ponce De Leon Boulevard

Suite 500 |

Coral Gables, Florida 33134 |

Florida Bar No. 708038 |

Telephone: (305) 444-1400

Facsimile: (305) 444-1487

—

-.