Prologue — Schneiderhan v. United States

Supreme Court, U.S.

FILED ee

05297 JUL12 2005

OFFICE OF THE CLERK

No.

ua In The

SUPREME COURT OF THE UNITED STATES

RICHARD J. SCHNEIDERHAN,

Petitioner

~— V.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert Sheketoff

-Mass. Bar No. 457340

One McKinley Square

Boston, MA 02109

(617)367-3449

Counsel of Record

QUESTION PRESENTED FOR REVIEW

1. Whether it is appropriate to put the burden on the

defendant to demonstrate a reasonable probability that he would

have received a lesser sentence under an advisory guideline

scheme when there is an unpreserved Booker sentencing error.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

OPINIONS BELOW 1

JURISDICTION 1

THE STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED 1

STATEMENT OF THE CASE 1

REASONS WHY THE WRIT

SHOULD BE GRANTED 3

CONCLUSION 4

APPENDIX following page 4

TABLE OF AUTHORITIES

CASES

United States v. Ameline, 409 F.3d 1073

(9th Cir. 2005)

United States v. Antonakopoulos, 399 F.3d 68

(1st Cir. 2005)

United States v. Booker, 125 S.Ct. 738 (2005)

United States v. Crosby, 397 F.3d 103

(2nd Cir. 2005)

United States v. Gonzalez-Huerta, 403 F.3d 727

(10th Cir. 2005)

United States v. Hughes, 401 F.3d 540

(4th Cir. 2005)

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

United States v. Paladino, 401 F.3d 471

; (7th Cir. 2005)

United States v. Pirani, 406 F.3d 543

(8th Cir. 2005)

United States v. Serrano-Beauvaix, 490 F.3d. 50

(1st Cir. 2005)

RULES AND STATUTES

Rule 52 (b) of the Federal Rules of Criminal

Procedure

18 U.S.C. § 3553 (a) (6)

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the First Circuit (App., infra, A2-A18) is reported at 404 F.3d

73 (1st Cir. 2005). The opinion of the United States District

Court for the District of Massachusetts (App., infra, A19-A32)

_ is unreported.

JURISDICTION

The court of appeals entered its judgment on April 13,

2005. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

THE STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Rule 52 (b) of the Federal Rules of Criminal Procedure

provides, “A plain error that affects substantial nghts may be

considered even though it was not brought to the court’s

attention.”

STATEMENT OF THE CASE

A grand jury returned a sealed indictment on November

15, 2000 charging the petitioner Richard J. Schneiderhan,

Edward Duff, and Linda Reardon with conspiracy to cbstruct

justice and obstruction of justice. The case was originally drawn

to the Honorable Judge Harrington. Both Duff and Reardon

pled guilty and were sentenced to terms of probation.

Thereafter, Judge Harrington recused himself on January 24,

2002. The case was redrawn to the Honorable Judge Keeton. In

March of 2003 the petitioner proceeded to trial before Judge

Keeton and a jury. The jury convicted the petitioner of both

counts. )

The petitioner filed a motion for new trial. On June 25,

2003, prior to sentencing, the district court heard oral argument

and then denied said motion. Sentencing then occurred. The

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petitioner was sentenced to concurrent terms of 18 months on

each count to be followed by 36 months of supervised release;

and, the petitioner requested that the Clerk timely file a notice of

appeal. On June 27,2003, the district court filed a written

Memorandum and Order denying the motion for new-trial. The

petitioner timely requested that the Clerk file his notice of

appeal. On April 13, 2005, the First Circuit Court of Appeals

affirmed the district court’s rulings.

The government’s theory of the case was that after the

government secured sealed pen register orders in September of

1999 for the phones of William Bulger and John Bulger,

brothers of the fugitive James “Whitey” Bulger (who had been

indicted in January of 1995), the petitioner, acting on

information he received from his brother-in-law (who received it

from his daughter who saw the work orders on her job at the

telephone company), brought information about the phone

surveillances to the Rotary Variety Store in South Boston to the

attention of Kevin Weeks, and thereby obstructed justice by

making it more difficult to apprehend Whitey Bulger. See

Government’s Opening Statement, Tr.2:22-27. The petitioner,

before his indictment, during the course of two interviews with

Captain Thomas Duffy and Colonel Thomas Foley of the

Massachusetts State Police in April of 2000, admitted his

friendship with Stephen Flemmi and eventually conceded that

he delivered a typed note to the Rotary Variety for Kevin Weeks

indicating that the Bulger phones were the targets of electronic

surveillance. See Tr.3:167; 4:35. Thus, the only issue litigated

to the jury by the defense was whether the petitioner acted

corruptly in so doing.

At the sentencing hearing the district court gave the

petitioner a two level upward adjustment because the court

concluded that “the defendant obstructed the trial proceedings

by false testimony.” See Tr. 6/25/03:32; U.S.S.G. §3C1.1. The

district court, not the jury, concluded, following U.S.S.G. §2J1.2

to U.S.S.G. §2X3.1, that the petitioner was in effect an

accessory after the fact to a Whitey Bulger extortion. See Tr.

6/25/03: 27-28, 30-31. These conclusions led the court to a

guideline range of 18 to 24 months. See Tr. 6/25/03: 40. The

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district court then addressed the petitioner’s motion for

downward departure based on his medical issues. The

government conceded that “[i]t’s an objective fact that he has

medical issues”, but argued that they were not so extraordinary

as to justify a downward departure. See Tr. 6/25/03: 43. The

district court declined to depart and said as follows:

“T recognize my authority under United States v. Koons

and provisions of the Guidelines concerning defendant’s

medical issues, but I find that it is not appropriate in the

circumstances of this case to depart downward in view of the

seriousness of the offenses of which the jury has found the

defendant guilty and the absence of any expression of genuine

remorse for the commission of the crime.” Tr. 6/25/03: 46.

The petitioner’s medical and mental problems were

discussed in some detail in the Presentence Report. Those

problems included a history of heart attack, colon-rectal cancer

which resulted in his having a permanent colostomy bag, and

major depression. See Presentence Report, pp. 27-31. The

district court sentenced the petitioner to the low end of the

guideline range.

REASONS WHY THE WRIT SHOULD BE GRANTED

In the aftermath of the Booker decision the Circuit

Courts have taken widely divergent views on the appropriate

approach to unpreserved Booker errors. In interpreting the plain

error standard of United States v. Olano, 507 U.S. 725, 732-36

(1993) (there must be error, it must be plain, it must affect

substantial rights and seriously affect the fairness of the

proceedings), the problem has emerged with the prejudice

prong. In the First Circuit under United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005), the defendant

must show a “reasonable probability” that the district court

would impose a more favorable sentence under the new

advisory guidelines scheme before remand will be ordered.

In the case at bar, although the petitioner received the

low end of his mandatory guideline range, this standard was

employed to reject the petitioner’s arguments for remand

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[serious medical and mental difficulties and under 18 U.S.C. §

3553 (a) (6) the unwarranted sentencing disparity between the

petitioner and his co-defendants]. The petitioner had urged the

First Circuit to adopt Justice Lipez’s concurrence in United

States v. Serrano-Beauvaix, 400 F.3d. 50, 57 (1st Cir. 2005),

and hold that defendants invoking unpreserved Booker errors

are entitled to a presumption of prejudice on prong three of the

Olano test, which the government can then try to rebut. The

Ninth Circuit (en banc) in United States v- Ameline, 409 F.3d

1073, 1080-81 (2005), reasoned that to decline to find out what

the district court knows unless the defendant can make a

showing of something over which he had no control would

itself undermine the fairness, integrity and public reputation of

the judicial proceedings. Accordingly the Ninth Circuit joined

the Second Circuit’s approach announced in United States v.

Crosby, 397 F.3d 103, 120 (2nd Cir. 2005) (remanding Booker

plain error cases to the district courts to "consider, based on the

circumstances at the time of the original sentence, whether to

resentence, after considering the currently applicable statutory

requirements as explicated in Booker"). See United States v.

Paladino, 401 F.3d 471, 484 (7th Cir. 2005) (retaining

jurisdiction until the district court "states on limited remand

[whether] he would have imposed a different sentence had he

known the guidelines were merely advisory"); but compare,

United States v. Pirani, 406 F.3d 543, 551 (8th Cir. 2005),

United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir.

2005), and United States v. Hughes, 401 F.3d 540, 549 (4thCir.

2005) (taking similar approaches as the First Circuit).

This case provides an opportunity to bring clarity to this

issue and consistency to the lower courts and the question raised

by this case is fundamentally important. Therefore, the Court

should grant certiorari.

CONCLUSION

For the foregoing reasons, this Petition for a Wnt of

Certiorari should be granted.

Respectfully submitted,

By his attorney,

[lite fidlioleRy

Robert L. Sheketoff

Mass. Bar No. 457340

One McKinley Square

Boston, MA 02109

(617)367-3449

Counsel of Record

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court

of Appeals for the First Circuit .................

Opinion of the United States District

Court for the District of Massachusetts ................

United States Court of Appeals,

For the First Circuit

No. 03-2019

UNITED STATES of America,

Appellee,

V.

Richard J. SCHNEIDERHAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

{Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

Robert L. Sheketoff, by Appointment of the Court, for

appellant.

William J. Nardini, Special Attorney, with whom Michael J.

Sullivan, United States Attorney, and John H. Durham

Special Attorney, were on brief for appellee.

April 13, 2005

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