Petition for Writ of Certiorari — Thomas v. United States

6421575 | Se Oa TE]

DER tL. STEVAS.

TEERK

ELSIE

IN THE

Supreme Court of the United States

OcToBerR TERM, 1984

UNITED STATES OF AMERICA,

Respondent,

¥.

JOSEPH VINCENT THOMAS,

Petitioner,

' PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

B. ALAN SEIDLER

Attorney for Petitioner

118 Main Street

Tappan, New York 10983

(914) 359-3770

QUESTIONS PRESENTED

Was petitioner's prison sentence

cruel and unusual punishment in violation

of the Eighth Amendment of the United

States Constitution, and alternately,

an abuse of discretion by the Trial

Court?

ii

TABLE OF CONTENTS

Page

Questions Presented ......ee¢. i

Table of Authorities ...... eee iii

Opinions Below ..... eecccccece 1

VUPLEGLCTAION ceccoccnccceccece 2

Relevant Constitutional

& Statutory Provisions ....... 2

Statement of the Case ........ 4

Reasons for Granting the

WEEE pee apecesecccccvevccrseces 8

Appendix A

Opinion of the United

States Court of Appeals

for the Third Circuit ... Al

Appendix B

Judgment of the United

States Court of Appeals.. AQ

Appendix C

Judgment of the United

States District Court ... Al2

iii

TABLE OF AUTHORITIES

Page

Cases

Carbo v. United States,

BOP Uses SA CASS1) ccs wcia ae 10

Downey v. Perini, 518 F.

2d 1288, vacated on other

grounds, 423 U.S. 933 (1975).. 9

Leach v. United States,

334 F. 2d 945 (CADC, 1964) ... 15

United States v. Brown,

382 F. 2d 52 (CA3rd, 1967) ,.. 13

United States v. Charles,

460 F. 2d 1093 (CA6th, 1972)... 14

United States v. Daniels,

ae'scigat 8 WR Fede LS | Se: 13

United States v. Fessler,

453 F. 2d 953 (CA3rd, 1972) .. 13

United States v. Holder,

ee

iv

412 F. 2d 212 (Ca2d, 1969) 11

United States v. Moore,

427 F. 2d 38 (CASth, 1970),

cert. denied, 400 U.S. 965 oe ll

United States v. Wiley,

278 F. 2d 500 (CA7th, 1960) | 15

Weems v. United States,

217 U.S. 349 (1910) ; 9

Woosley v. United States,

478 F. 2d 139

(CA8th, 1973) +

Constitution & Statutes

Title 18 U.S.C.A. $2, 5

Title 21 U.S.C.A §841(a)(1) 5

Title 21 U.S.C.A. S846 5

Title 21 U.S.C.A. S848 2,5,9

Title 28 U.S.C.A. §1254 y)

United States Constitution,

Eighth Amendment 4.9.10

re fete ee # &# @ @& @ @ 5 5

Virginia Criminal Code,

§18.2 = 256 6

Page

Other Authority

~

‘

*_eeeefeer°.# #*

Law Review,

SUPREME COURT OF THE

UNITED STATES OF AMERICA

scecececousescesessesesoesoesoes x

UNITED STATES OF AMERICA,

Respondent,

Vv.

JOSEPH VINCENT THOMAS,

Petitioner,

seveceeeoosseessseseneseeseseose x

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINION BELOW

The instant Memorandum Opinion

of the United States Court of Appeals

for the Third Circuit is annexed hereto

as Appendix A; the Judgment and Commit-

ment Order of the United States District

Court is annexed hereto as Appendix

JURISDICTION

This matter is On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit. The Judgment

of that Court was entered February

12, 1985.

The statutory provision conferring

upon this Court jurisdiction to review

the judgment of the Court of Appeals

by Writ of Certiorari is 28 U.S.C.A.

§ 1254.

CONSTITUTIONALE STATUTORY PROVISIONS

Title 21 U.S.C.A. § 848 provides:

Penalties; forfeiture

"(a)(1) Any person who engages

in a continuing criminal enterprise

shall be sentenced to a term of

imprisonmnet which may not be less

than ten years and which may be up

to life imprisonment, to a fine of

not more than $100,000., and to the

forefeiture proscribed in paragraph

(2); except that if any person engages

in such activity after one or more

prior convictions of him under this

section have become final, he _ shall

be sentenced to a term of imprisonment

which may not be less than 20 years,

and which may be up to life

imprisonment, to a fine of not more

than $200,000. and to the forfeiture

prescribed in paragraph (2).

Continuing criminal enterprise defined

(b) For purpose of subsection

(a) of this section, a person is engaged

in a continuing criminal enterprise

aS Gas he violates any provision

of this subchapter or subchapter II

of this chapter the punishment for

which is a felony, and

(2) such violation is -part of

a continuing series of violation of

this subchapter or subchapter II of

this chapter-

(A) which are undertaken by such

person in concert with five or more

other persons with respect to whom

such person occupies a position of

organizer, a. supervisory position,

or any other position of management;

and

(B) from which such person obtains

substantial income or resources.

STATEMENT OF THE CASE

77e@ 06 anetant matter is On Writ

of Certiorari to the United State

Court of Appeals for the Third Circuit

which affirmed on February 12, 1985,

the judgment of conviction entered

tachi iaaalaam

July 16, 1984, in the United States

Dbaetract Court for the Disetfict of

New Jersey [Hon. John WwW. Bissell,

U.S.D.J.] (Appdx.).

Petitioner was charged in a six

(6) count indictment [Cr. 83-361-01]

filed with the Clerk of the United

States District Court for the District

of New Jersey on December 21, 1983,

aLiGgineg 4° 6 VERLatION:©}6~=~6af.. Title. Zi

UsoeCcAs. BONS3 Titie 21 UsaS.«C.A. SONG;

and four (4) counts of Title 21 U.S.C.A.

SON2 AG? ADs, One Titie 26. .U.8.0.A,

§2, respectively. On June 4, 1984,

petitioner entered a plea of guilty

to Count I aforesaid pursuant to a

plea bargain agreement with the

Government}; said agreement being

approved by the District Court prior

to its entry.

On July 16, 1984, petitioner was

sentenced by Judge Bissell to fifteen

(15) years incarceration to run consec-

utively with a forty (40) year sentence

imposed by the State of Virginia;

Counts II through VI herein being

dismissed by the Court on the

Government's application, and with

the consent of the petitioner.

Petitioner was arrested on or

about January 13, 1982 and indicted

in Pulaski County, Virginia, for

Conspiracies to Distribute and

Manufacture Methaqualone [Virginia

Code Section 18.2 = 256]. On May

19, 1983, after a Virginia State trial

by jury, appellant was sentenced by

the Hon. R. Williams Arthur of the

Circuit Court of Pulaski County,

Virginia, to a net of forty (40) years

incarceration, and fined $25,000.00.

In July of 1984, petitioner exhausted

his Virginia appellate remedies; the

Virginia Supreme Court denying his

—_

petition for appeal from that

conviction.

Petitioner's co-conspirators in

the state prosecution were Samuel

Boardwine, Ronald Boardwine, Gary

Camp, Robert Fitz, and John Ayers.

According to evidence adduced at trial,

the State employed wiretaps on _ said

Ronald Boardwine from November 23,

1981, until January 12, 1982. Fur-

ther evidence indicated that

co-defendant John Ayers travelled

to South Carolina where he met _ the

instant petitioner, and received 50,000

methaqualude tablets. Ayers later

distributed the tablets to co-con-

Spirators as well as to others in

the Pulaski County area. Another

State co-conspirator, Samuel Boardwine,

was in the process of transporting

eight (8) barrels of micro crystal

cellulose when he was’ arrested by

the Virginia State Police, and those |

ingredients and nine thousand dollars

($9,000.) were seized.

Paragraphs. "i". .and “2" of Count

I herein are repetetive of the aforesaid

Virginia indictment. Further, the

Government sought to intoduced_ the

same intercepted telephone conversat-

ions, and oral evidence in the District

of New Jersey as the State of Virginia

employed in its earlier prosecution.

REASONS FOR GRANTING

THE WRIT .

Petitioner submits that the decision

CAAA o OAS, MORE eA wah eae

of the United States Court of Appeals

for the Third Circuit sanctioned the

departure by the United States District

Court for the District of New Jersey,

from accepted and usual judicial

ee

proceedings with regard to sentencing

pursuant to Title 21 U.5.CsA. Fess.

Petitioner maintains his sentence

was cruel and unusual punishment ‘in

violation of the Eighth Amendment

of the United States Constitution,

and alternately, an abuse of discretion

by the Trial Court.

A sentence so severe as to be

cruel and unusual within the meaning

of the Eighth Amendment of the United

States Constitution cannot stand.

Weems v. United States, 217 u.S. 349

(1910); Downey vv. Perini. 518 F. 24

1288, vacated on other grounds, 423

U.S. 832 44975). Petitioner, a man

in his mid thirties, with a wife and

child, a record of employment, and

no prior criminal history other than

the aforesaid Virginia conviction,

received a fifteen (15) year Federal

10

sentence consecutive to a forty (40)

year Virginia sentence for essen-

tially the same criminal acts within

the same time frame. The consecutive

sentence is cruel and unusual punishment

per se, and must be set aside.

However should this Court ‘reach

the conclusion that the aggregate

of fifty five (55) years is not cruel

and unusual within the meaning of

the Eighth Amendment, then petitioner

urges this Court to review the excessive

nature of his sentence, in the exercise

of its supervisory power over. the

administration of justice in the lower

federal courts, and to review’ the

duration of that sentence imposed

by the District Court, even though

the duration of the sentence does

not exceed the statutory maximum.

Carbo v. United States, 364 U.S. 611

ee ee ee re Cee ee

11

(1961); United States v. Holder, #12

F. 2d 212 (CA2d, 1969); United States

ve. Moore, 427 F. 2d 38 (CA5th, 1970),

cert. denied, 400 U.S. 965.

In deliberating upon its’ sentence

the District Court erroneously concluded

that petitioner fled Virginia while

being prosecuted, travelled to New

Jersey, and then extended his illegal

business to California. That conclusion

is not supported by any view of the

facts, the record in the case, or

the Pre Sentence Report. The District

Court further stated with regard to

petitioner's barbituate activity:

",... for this Court to merely,

because of the fact that we

are dealing with a ten year

minimum here, to impose’ the

minimum because of its private

deterrent effect seems to

me would be to ignore the

message of Congress with regard

to the significance of criminal

conduct of this kind."

Petitioner submits that the Court

\ 12

erred in believing that Congress

mandated any sentence greater’ than

the minimum for activity of this kind,

and despite the instant Court

recognizing the private deterrent

effect a ten (10) year sentence would

have in cases involving the _ dist-

ribution of quaaludes. The record

in this case, and before Congress,

is barren of

the District

Furthermore, there i

before Congress or in

supporting

Court's

evidence for

statement.

s no evidence

the record to

support the additional statement of

the District Court that the instant

crime:

eeee 18 a serious one, not

that within the very maximum

of the range involved here,

but far from the minimum as

well.

Congress has set no

and if this statement

ae ee ET

such guidelines,

is merely the

ei elle lA Fs Ok te weit ier ae

oe

13

philosophy of the sentencing Court,

than the Court wrongly sentenced the

crime primarily, and the petitioner

secondarily. The District Court clearly

abused its discretionary sentencing

power, and acted upon a mistaken view

of the facts and the law.

Abuse of discretion is a sufficient

predicate on which to base _ direct

appellate review of sentences imposed

by the District Court within statutory

guidlelines. United States v. Brown,

382 F. 2d 52 (CA 3rd, 1967); United

states v. Fessler, %53 F. 2d 953 (CA

3rd, 1972).

In United States v. Daniels, 446

F. 2d 967 (1971), the Court of Appeals

for the Sixth Circuit recognized that

the process of sentencing was not

wholly immunized from judicial review

solely because the sentence fell within

14

permissible statutory limits. The

Court stated that the exercise of

the sentencing court's discretion

would be subject to appellate review

under limited circumstances, such

as improper consideration of certain

factors, improper reliance upon certain

false information, or gross abuse

of discretion by failing to evaluate

relevant information before sentencing.

See also, 33 University of Pittsburgh

Law Review, 917, 927; United States

v. Charles, 460 F. 2d 4«=6—.1093, (CA

6th,1972), Cholding that there was

nothing in the record to support the

District Court's attempt to justify

his "severe" sentence by finding

defendant's beliefs to be insincere];

Woosley v. United States, 478 F. 2d

139 (CA 8th, 1973), [mechanical and

automatic sentencing formulas are

15

inappropriate]; also similarly, United

States v. Wiley, 278 F. 2d 500 (CA

7th, 1960); Leach v. United States,

334 F. 2d 945 (CADC, 1964).

Petitioner's sentence was an abuse

of discretion by the District Court,

and unsupported in its conclusions,

and should be reviewed as an error

of constitutional proportion. The

failure of the United States Court

of Appeals for the Third Circuit to

reverse that sentence must be addressed

by the United Supreme Court by granting

the Writ.

CONCLUSION

For the foregoing reasons, a writ

of certiorari should issue to review

the judgment of the United States

Court of Appeals for the Third Circuit.

16

Respectfully submitted,

B. Alan Seidler

Attorney for Petitioner

118 Main Street

Tappan, New York 10983

(914) 359-3770

APPENDIX

Al

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-5546

UNITED STATES OF AMERICA

Vv.

JOSEPH VINCENT THOMAS, a/k/a "Vinny

Thomas,"

a/k/a “Vincent Marlin," a/k/a "Joseph

Quest"

On Appeal from the United States

District Court for the District of

New Jersey Trenton (D.C. No.

83-00361-01)

District Judge: Honorable John WwW.

Bissell

Submitted Under Third Circuit Rule

12(6)

February 7, 1985

Opinion Tiled February 12, 1985

Before: GARTH, BECKER, AND ROSENN,

Circuit Judges

MEMORANDUM OPINION OF THE COURT

ROSENN, Circuit Judge.

The Government charged the

defendant, Joseph Vincent Thomas,

in a six count indictment with violating

21 U.S.C. §848 (knowingly and

intentionally engaging in a continuing

criminal enterprise) in concert with

at least six other persons, conspiracy

to distribute and possess with intent

to distribute controlled substances,

the substantive counts charging

violations of 21 UsS.0. S§68itarti?.

Following an unsuccessful effort between

Wesel

us athe sa anid. Mh le

A3

the defendant and the Government to

enter into a cooperative plea agreement,

the defendant retracted his original

plea of not guilty and entered a plea

of guilty pursuant to a non cooperat-—

ive plea agreement with the Government

to count I charging’ the violation

of 21.U.$S.C. $848.

At sentencing, defense counsel

addressed all factual matters in the

presentence report, correcting or

giving the defendant's version of

all controverted facts in the report.

The district court explained that

he firmly er that the defendant

should be sentenced for tne crime

to which. he pled guilty "and not [for]

some other unproven incidents." After

an eloquent plea from defense counsel

to have sentence imposed concurrent

with a 40 year sentence presently

g

A4¥

being served by the defendant under

a state sentence in Virginia, a plea

for leniency from the defendant

personally and from his mother, the

court felt constrained to impose a

15 year sentence of imprisonment to

run consecutive to the sentence imposed

under the law oof £Virginia. In

accordance with the plea agreement,

the Government dismissed the remaining

counts of the indictment.

1 Under the terms of the plea

agreement, the Government took no

position with the court as to whether

the sentence should be concurrent

or consecutive.

AS

The ‘defendant appeals contending

that the sentence imposed was cruel

and unusual and violated the Eighth

Amendment of the United States

Constitution and, alternately,

constituted an abuse of discretion

by the district court. In addition,

defendant contends that the district

court imposed its sentence on the

basis of false and incomplete

information. After carefully reviewing

the briefs and record, we affirm.

The sent¢ncing decision is a

function traditionally vested in the

trial court and, "if within statutory

limits, is generally not subject to

review." United States v. Tucker,

4O4 U.S. 443, 447 (1972). In sentencing

this defendant, the district court

carefully considered the personal

A6

circumstances of the defendant = and

his family, the seriousness of the

crime, and imposed a term of 15 years

under a statute prescribing a minimum

sentence of 10 years and a maximum

sentence of life imprisonment. The

defendant's argument that the sentence

is cruel and unusual punishment per

se" because it is consecutive to a

40 year sentence imposed by the State

of Virginia is unsupported by authority.

Fuerthermore, it misconstrues the

terms of the eighth amendment. As

the Supreme Court noted in Rummel

v. Estelle, %&5 U.S. 263, 275 (1980),

the amendment is directed to punishment

that is cruel and unusual in kind,

not in degree. The limitations on

sentencing are imposed by Congress

and the district court very nearly

confined itself to the bottom of the

ns a i i ae Se HO

A7

range explicitly provided for this

offense.

As for defendant's alternative

argument that the district court abused

its discretion, we see no merit in

it. The district court painstakingly

explained to the defendant and counsel

that it was imposing sentence on the

basis of the defendant's own criminal

acts and in accordance with the

statutory terms mandated by Congress.

The record demonstrates a carefully

reasoned exercise of judicial discretion

by a very concerned and _ = sensitive

judge.

The defendant's contention that

the court imposed sentence on the

basis of false and incomplete

information is frivolous and without

foundation. The Government completely

complied with its plea agreement with

A8

the defendant at sentencing.

The judgment of the district court

will be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

Ag

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-5546

UNITED STATES OF AMERICA

Vv.

JOSEPH VINCENT THOMAS, a/k/a "Vinny

Thomas,"

a/k/a “Vincent Marlin,” a/k/a “Joseph

Quest"

On Appeal from the United States

District Court for the District of

New Jersey Trenton (D.C. No.

83-00361-01)

District Judge: Honorable John WwW.

Bissell

Submitted Under Third Circuit Rule

Al0

12(6)

February 7, 1985

Opinion Filed February 12, 1985

Before: GARTH, BECKER, AND ROSENN,

Circuit Judges

JUDGMENT

This cause came on to be heard

on the record from the United States

District Court for the Disrtict of

New Jersey and was submitted under

the Third Circuit Rule 12(6) on February

7, 1985.

On consideration whereof, it is

now here ordered and adjudged by this

court that the judgment of the district

court entered on July 16, 1984, be

and the same is hereby affirmed.

Attest:

Sally Mrvos /s/

All

Clerk

Certified as a true copy and issued

in lieu of formal mandate on March

6, 1985.

Test: M. Elizabeth Ferguson /s/

Chief Deputy Clerk, U.S. Court of

Appeals for the Third Circuit

Dated: February 12, 1985

UNITED STATES DISTRICT COURT

for the DISTRICT OF NEW JERSEY

United States of America

vs.

JOSEPH VINCENT THOMAS

Cr. 83-361-01

JUDGMENT AND -PROBATION/COMMITMENT

ORDER

COUNSEL

In the presence of the attorney

for the government the defendant apeared

in person on this date, July 16, 1984,

with counsel, B. Alan Seidler, Esq.

PLEA

GUILTY, and the Court being

satisfied that there is a factual

basis for the plea TO COUNT I.

FINDING & JUDGMENT

Defendant has been convicted as

charged of the offense of 21:848

Continuing Criminal Enterprise.

Al3

SENTENCE OR PROBATION ORDER

The court asked whether defendant

had anything to say why judgment should

not be pronounced. Because no

sufficient cause to the contrary was

shown, or appeared to the court, the

court adjudged the defendant guilty

as charged and convicted and ordered

that: The defendant is hereby committed

to the custody of the Attorney General

or his authorized representative for

imprisonment for a period of fifteen

(15) years to run consecutively with

sentence imposed by the State of

Virginia.

ORDERED COUNTS 25354%,5, and 6

be dismissed on government's

application.

COMMITMENT RECOM-

MENDATION

The court orders commitment to

the custody of the Attorney General

and recommends,

JOHN W. BISSELL, U.S.D.J. /s/

Date 7/18/84

It is ordered that the Clerk deliver

a certified copy of this judgment

and commitment to the U.S. Marshal

or other qualified officer.

CERTIFIED AS A TRUE COPY ON

This date 7-18-84.