Petition for Writ of Certiorari — Rizo v. United States

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01 931 Nov | 02008

OFFICE OF THE CLERK —

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

ABEL Rizo,

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 ABEL RIZO

2222 PONCE DE LEON BLVD, SUITE 500

CORAL GABLES, FLORIDA 33134

TELEPHONE: (305) 444-1400

Il.

IIT.

QUESTIONS PRESENTED FOR REVIEW

Whether the Eleventh Circuit’s refusal to address a

sufficiency argument where the evidence supporting the

Petitioner’s conviction consists solely of accomplice

testimony of individuals cooperating for reductions in

sentences or immunity, whose testimony directly

conflicts with the unbiased eyewitnesses and victims

regarding the critical issue of the Petitioner’s

participation or presence during the offenses, denies a

defendant due process and conflicts with established

precedent holding that an appellate court may reverse a

conviction where evidence consisting of accomplice

testimony is incredible as a matter of law, or is based

upon facts that are either physically impossible or

impossible under the laws of nature?

Whether the language in this Court’s opinion in

Apprendi v. New Jersey, 530 U.S. 466 (2000) providing

that “any fact [other than a prior conviction] that

increases the penalty for a crime beyond the prescribed

statutory maximum” refers to the maximum sentence

prescribed under the United States Sentencing

Guidelines, because as this Court explained in United

States v. R.L.C., 503 U.S. 291 (1992), the Sentencing

Guidelines are statutes?

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. 466 (2000) and/or

Jones v. United States, 526 U.S. 277 (1999), where:

(A) the offenses charged in the Indictment did not

charge the Petitioner with an offense involving five (5)

IV.

VI.

kilograms or more of cocaine in violation of 21 U.S.C.

§ 841,

(B) the trial court did not instruct the jury to determine

the quantity of cocaine, and

(C) Abel Rizo’s sentence was substantially enhanced

based upon the trial court’s factual finding by a

preponderance of the evidence, that the quantity of

drugs attributable to him was over 5 kilograms or more,

pursuant to 21 U.S.C. § 841(b)(1)(A), even through that

statute was not charged in the Indictment?

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 after application of the United

States Sentencing Guidelines, may be increased 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 possess with intent to distribute or

possessed with intent to distribute over 5 kilograms of

cocaine?

Whether the sentencing provisions of statutes such as

Title 18 U.S.C. § 841(b) are unconstitutional because

they permit the quantity of drugs to be determined by

the trial court by a “preponderance of the evidence,”

rather than by the jury “beyond a reasonable doubt?”

Whether a trial court must sentence a defendant whose

drug conviction violates Apprendi v. New Jersey, 530

U.S. 466 (2000) and/or Jones v. United States, 526 U.S.

-ii-

VII.

277 (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?

Whether the proper standard of review is per se

reversible error where an Indictment that 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?

-ili-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ................ i

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CONSTITUTIONAL PROVISIONS

ATED Be ee oak carvk @i hk ok evenehe sees l

. Fifth Amendment to the United States

CD oe rc py tel A ae COA ae |

. Sixth Amendment to the United States

CE Soa ber bb euro k Rea Mee Cees es l

. SET EG 6 te Ck RA EHS 2

° 21 U.S.C. § G41(B) fexcerpt] .... ce cces cence 2

. Pe es eR isn Vacs Oe haeeinds see 5

° Fe Rac ei RG Ee 5

a sae 8

DER Te Se Be Fao oo a ks kee wkseoes ces 9

A. Proceedings in the Courts Below ............ 9

B EE I eos os ec sen sean ws 13

ARGUMENT:

I. The Appellate Court's Refusal to Address a

Sufficiency of the Evidence Issue Where

The Evidence, Consisting of Accomplice

Testimony, Is Incredible as a Matter of

Law, or Based upon Facts That Are Either

Physically Impossible, or Impossible under

the Laws of Nature, Directly Conflicts With

. Prior Precedent, and Denied The Petitioner

SU UIOE ob cvnsn cucawkctan es caucus s 17

Il. THE LANGUAGE IN THIS COURT’S OPINION

IN APPRENDI V. NEW JERSEY, 530 U.S. 466

(2000) PROVIDING THAT “ANY FACT [OTHER

THAN A PRIOR CONVICTION j THAT INCREASE

THE PENALTY FOR A CRIME BEYOND THE

PRESCRIBED STATUTORY MAXIMUM” REFERS

-ivV-

TO THE MAXIMUM SENTENCE PRESCRIBED

UNDER THE UNITED STATE” “"“NTENCING

GUIDELINES, BECAUSE AS “°S COURT

EXPLAINED IN UNITED STATES V. R.L.C.,

503 U.S. 291 (1992), THE SENTENCING

GUIDELINES ARE STATUTES.

ADDITIONALLY, BEFORE INCREASING A

DEFENDANT’S STATUTORY MAXIMUM

SENTENCE ON THE BASIS OF THE QUANTITY

OF ILLEGAL DRUGS A DEFENDANT

CONSPIRED TO POSSESS WITH INTENT TO

DISTRIBUTE OR POSSESSED WITH INTENT TO

DISTRIBUTE, THE PROSECUTION MUST

PROVE AND THE JURY MUST DETERMINE

THE QUANTITY OF ILLEGAL DRUGS BEYOND

A REASONABLE DOUBT TOA JURY. ......... 21

A. “The Sentencing Guidelines Are

DE nhs Fs coy sae ak theese 22

B. The Quantity of Drugs That A

Defendant Intended to Conspire

and/or Possess With Intent to

Distribute Is An Essential Element

of 21 U.S.C. §§ 841 and 846 ....... 26

cG The Failure of an Indictment to

Charge an Essential Element of an

Offense, Requires Reversal of a

RAIS canes oo sow ke hc ca boas 28

CANON. eo Ladi ube stoke deen eek 30

eo we Ee 4 > GER eae yer eer ete 31

Pap OO kos oe ok kbd a ks [separately bound]

-V-

TABLE OF CITATIONS

TABLE OF CASES:

Ake v. Oklahoma,

470 U.S. 68, 78, 105 S.Ct. 1087,

PEED sc eeGs vss veebedeetecvees 20

Almendarez-Torres v. United States,

523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350

bs AOS Ce Sie aE A Sy ne Gc) pe ura 25,28

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

SO eee OE Gs Weiss cept Neb es Vereweawesea passim

Bonner v. City of Prichard,

O61 F.28 1SUS TAT Cir, 1981) o.oo cect ececces: 18

Coppedge v. United States,

369 U.S. 438, 82 S.Ct. 917,

ee ea, ee re 20

Draper v. Washington,

372 U.S. 487, 83 S.Ct.774,

I Sa kG esp 055k er wneveubees 20

Guerra v. Johnson,

BOF.36 SOTO GAORD) coo on vo ec recedes 19

Edwards v. United States,

523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703

SU kis gs CANS Lek ck he COURS Ue we we ks 25

Evitts v. Lucey,

469 U.S. 387, 105 S.Ct. 830,

SS L. BADE EZE CESES) 0... cree wecidcccesecses 20

Jones v. United States,

526 U.S. 277, 119 S.Ct. 1215, 143 L.Ed.2d 311

SE cay Lie ahah ie NW aes Oe Gee eee paes passim

Marcum v. United States,

ee 8: een cape rare eres 19

Mistretta v. United States,

488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714

SE = i Canc Vaccks kates Ceaden behaeeneen 25

-Vi-

Rumsavich v. Borislow,

Se POET CRRIIOOD on 5 ooo vvncccvcccccencs 19

Stirone v. United States,

361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) .... 28

Tillery v. United States,

RG Pe Olt, BOM <n x ov nw o-vic vacccwacscce 18

United States v. Candelario,

240 F.3d 1300 (11" Cir.), .cert. denied, - U.S.-,

. 121 S.Ct. 2535, 150 L.Ed.2d 705(2001). ........... 30

United States v. Casteneda,

ee rr Oe COND oo cc ccev ou accs ceccess 18

United States v. Cotton,

ee Wen Se GN BOOED nc oc ca ccmcesccvccocc. 29

United States v. Gonzalez,

ee Ge ED ooo cis soc 'en ocucenwes 29

United States v. Hester,

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

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

Rr a a 21,22

United States-v. Hughes,

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

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

a a ei 21

United States v. Humphrey,

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

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

OES Fe ele Sener ae 21

United States v. lacovetti,

466 F.2d 1147 (5" Cir. 1972), rev'd

a ee a ees 18

United States v. Jones,

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

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

EE 6S pat eos Cae eu uh beck ness eea wee ae e 22

United States v. Longoria,

Mee EE EA OUUOD a x wc kc nce cacviccce 29,30

-Vil-

United States v. Meester,

Fe WT AC PID vc cicce iccccccciden' 20

United States v. R.L.C.,

503 U.S. 291, 112 S.Ct. 1329, 117

PEED cok cavccsbecstcuetes i,21,22,23,25

United States v. Saulter,

er Ge, GD oct vvceicewcnccosavber 18

United States v. Smith,

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

- US. -, 121 S.Ct. 336, 148 L.Ed.2d 270

IRE rien AP OPE DEED. erw-5g Ah aA de 21

United States v. To,

Be Pe ar I onc bk Soc ck cl cbecoee. 19

United States v. Toler,

SP Sete Ce. 1908) 0. 8 es ees. 20

United States v. Tran,

UND cujcedacctneeretenees 30

United States v. Whitt,

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

- US. -, 121 S.Ct. 423, 148 L.Ed.2d 432

AS RCA age aD EOD Era ig ty Bert ABAD se 21

In re Winship,

397 U.S. 358, 90 S.Ct. 1068,

COU Ge i'n hss bee sc heh es oo vanes 28

-Vili-

OTHER AUTHORITIES:

United States Constitution:

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OPINIONS BELOW

The opinion of the Eleventh Circuit was entered on April 13,

2001. (Pet. App. “1” at 25-46). The Eleventh Circuit’s unpublished

order entitled “On Petition(s) for Rehearing and Suggestion(s) for

Rehearing En Banc,” was eniered on February 27, 2001 (Pet. App.

“1” at 62), and the Eleventh Circuit’s Mandate issued on August 13,

2001. (Pet. App. “1” at 80).

The appeal to the Eleventh Circuit arose from the

Petitioner’s Judgment and Commitment entered on August 26, 1997,

after a jury trial. (Pet. App. “1” at 19-24).

JURISDICTION

The Judgment of the United States Court of Appeals for the

Eleventh Circuit was entered on April 13, 2001. A timely Petition

for Rehearing and Rehearing En Banc, was filed on June 5, 2001, and

on February 27, 2001, the Eleventh Circuit entered an order denying

said Petition. (Pet. App. “1” at 79). Thereafter, on August 13, 2001

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

“1” at 80). The jurisdiction of this Court to review the judgment of

the Eleventh Circuit is conferred under Title 28 U.S.C. § 1254(1) and

Sup.Ct. Rule 10.

STITUTIONAL PROVISION TATUTE

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

a

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.

21 U.S.C. § 841(a) - Unlawful acts

Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute, or dispense, a contrc ‘ed substance; or

(2) to create, distribute, or dispense, or possess with intent to

distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(b) - Penalties - (Excerpt)'

Except as otherwise provided in section 859, 860, or 861 of

this title, any person who violates subsection (a) of this section shall

be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this

section involving--

** *

(ii) 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

of 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 subclauses (I)

through (III);

(iii) 50 grams or more of a mixture or substance described in

clause (ii) which contains cocaine base;

** *

such person shall be sentenced to a term of imprisonment which may

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

' The excerpts include penalties for cocaine only.

Tp pe y

x, 3

bodily injury results from the use of such substance shall be not less

than 20 years or 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 which may not be 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. If any person commits a violation of this subparagraph or of

section 849, 859, 860, or 861 of this title after two or more prior

convictions for a felony drug offense have become final, such person

shall be sentenced to a mandatory term of life imprisonment without

release and fined in accordance with the preceding sentence. Any

sentence under this subparagraph 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 this

subparagraph. No person sentenced under this subparagraph shall be

eligible for parole during the term of imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section

involving--

“se *

(ii) 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;

(II) cocaine, its salts, optical and geometric isomers, and salts

of 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 subclauses (1)

through (III);

(iii) 5 grams or more of a mixture or substance described in

clause (ii) which contains cocaine base;

oe

such person shall be sentenced to a term of imprisonment which may

not be 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

not less than 20 years or more than life, a fine not to exceed the

greater of that 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 which may not be 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 subparagraph 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 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 this subparagraph. No person sentenced under this

subparagraph shall be eligible for parole during the term of

imprisonment imposed therein.

(C) In the case of a controlled substance in schedule I or II,

- + + €xcept as provided in subparagraphs (A), (B), and (D), such

person shall 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

ts

such substance shall be sentenced to a term of imprisonment of not

less than twenty years or 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 on 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 is 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 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 subparagraph 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. § 846 - 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. § 2D 1.1 (Excerpt)

§ 2D1.1. Unlawful Manufacturing, Importing, Exporting, or

Trafficking (Including Possession with Intent to Commit These

Offenses); Attempt or Conspiracy.

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. §

? The excerpts include penalties for cocaine, but not cocaine base.

-

841(b)(1)(A), (b)(1)(B), or (b1(C), or 21 U.S.C. § 960(b)(1),

(b)(2), or (b)(3), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance and

that the defendant committed the offense after one or more prior

convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. §

841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b\(1),

(b)(2), or (b)(3), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance: or

(3) the offense level specified in the Drug Quantity Table set

forth in subsection (c) below.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was

possessed, increase by 2 levels.

(2) If the defendant unlawfully imported or exported a

controlled substance under circumstances in which (A) an aircraft

other than a regularly scheduled commercial air carrier was used to

import or export the controlled substance, or (B) the defendant acted

as a pilot, copilot, captain, navigator, flight officer, or any other

operation officer aboard any craft or vessel carrying a controlled

substance, increase by 2 levels. If the resulting offense level is less

than level 26, increase to level 26.

(3) If the object of the offense was the distribution of a

controlled substance in a prison, correctional facility, or detention

facility, increase by 2 levels.

(4) If (A) the offense involved the importation of

methamphetamine or the manufacture of methamphetamine from

listed chemicals that the defendant knew were imported unlawfully,

and (B) the defendant is not subject to an adjustment under § 3B1.2

(Mitigating Role), increase by 2 levels.

(5) If the offense involved (A) an unlawful discharge,

emission, or release into the environment of a hazardous or toxic

substance, or (B) the unlawful transportation, treatment, storage, or

disposal of a hazardous waste, increase by 2 levels.

(6) If the defendant meets the criteria set forth in

subdivisions (1) to (5) of § 5C1.2 (Limitation on Applicability of

Statutory Minimum Sentences in Certain Cases) and the offense level

-6-

determined above is level 26 or greater, decrease by 2 levels.

(c) DRUG QUANTITY TABLE

Controlled Substances

and Quantity

] ** *

°150 KG or more of Cocaine (or the

equivalent amount of other Schedule I or II

Stimulants);

2 xe &

*At least 50 KG but less than 150 KG of

Cocaine (or the equivalent amount of other

Schedule I or II Stimulants);

3 *k *

*At least 15 KG but less than 50 KG of

Cocaine (or the equivalent amount of other

Schedule | or I] Stimulants);

4 ** *

*At least 5 KG but less than 15 KG of Cocaine

(or the equivalent amount of other Schedule I

or II Stimulants);

5 xk *

*At least 3.5 KG but less than 5 KG of Cocaine

(or the equivalent amount of other Schedule |

or II Stimulants);

6 x * *

*At least 2 KG but less than 3.5 KG of Cocaine

(or the equivalent amount of other Schedule |

or II Stimulants);

7 x * &

*At least 500 G but less than 2 KG of Cocaine

(or the equivalent amount of other Schedule |

or Il Stimulants);

& ne *

*At least 400 G but less than 500 G of Cocaine

(or the equivalent amount of other Schedule |

or II Stimulants);

Base

Offense

Level

Level 38

Level 36

Level 34

Level 32

Level 30

Level 28

Level 26

Level 24

9

ees Level 22

*At least 300 G but less than 400 G of Cocaine

(or the equivalent amount of other Schedule |

or II Stimulants);

oes Level 18

*At least 100 G but less than 200 G of Cocaine

(or the equivalent amount of other Schedule I

or [1 Stimulants);

12 eee Level 16

*At least 50 G but less than 100 G of Cocaine

(or the equivalent amount of other Schedule |

or I! Stimulants);

13 alin dines Level 14

*At least 25 G but less than 50 G of Cocaine

(or the equivalent amount of other Schedule I

or Il Stimulants);

14 "oe Level 12

*Less than 25 G Cocaine (or the equivalent

amount of other Schedule I or [1 Stimulants);

***

IN THE

SUPREME COURT OF THE UNITED STATES

No.

ABEL RIZO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Abel Rizo, 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 April 13, 2001, and Order entered on August 3, 2001,

denying his Petition for Rehearing and Suggestion for Rehearing En

Banc. In his appeal to the Eleventh Circuit, Abel Rizo specifically

argued that the quantity of drugs attributed to him violated Apprendi

v. New Jersey, 530 U.S. 466, 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, i.e., Pet. App. “1” at 38-61).

STATEMENT OF THE CASE

A. Proceedings in the Courts Below:

The indictment upon which Petitioner Abel Rizo was tried

charged Abel Rizo in seven (7) of the sixteen (16) Counts as follows:

Count | charged Abel Rizo and 14 codefendants with

conspiracy to possess with intent to distribute a “detectable amount

of cocaine” in violation of Title 21, U.S.C. § 846. Of the 38 overt

acts set forth in Count I, only one directly mentioned a specific

quantity of cocaine, to-wit: Overt Act 10 alleged that Abel Rizo and

six other coconspirators forced their way into an apartment and

removed two (2) kilograms of cocaine. On the other hand, Overt Act

12 alleged that Abel Rizo and three other coconspirators received

approximately $300,000 “that were the proceeds from the sale of the

twenty-five (25) kilograms of cocaine referenced in paragraph 11

above. However, “paragraph 11° did not even mention that Abe/

Rizo had any involvement in the 25 kilos that were obtained from

Puerto Rico. (R1-246-5, Pet. App. “1” at 5-6).

Count II charged Abe/ Rizo with possession with intent to

distribute an unspecified quantity of cocaine in violation of Title 21

U.S.C. 841(a)(1). (R1-246-9, Pet. App.“1” at 10).

Counts III, VIII, and IX charged Abel Rizo with one Hobbs

Act violation and two attempted Hobbs Act violations in violation of

18 U.S.C. § 1951 - with each failing to allege that any specific

quantity of drugs were taken or attempted to be taken. (R1-246-10,

13-14; Pet. App.“*1” at 10,13-15).

Lastly, Counts IV and X charged using and carrying a

firearm during and relation to a crime of violence and a drug

trafficking crime, in violation of 18 U.S.C. § 924(c). (R1-246-10-11,

14-15; Pet: App. “1” at 11,15-16).

‘Overt Act 11.

>

At trial, the Government never requested a special jury

verdict form for the jury to determine if it found beyond a reasonable

doubt that either Abel Rizo participated in the uncharged acts, or the

quantities of cocaine attributable to him. (R39). Moreover, during

trial, Abel Rizo, argued that he was not guilty of the offenses charged,

and further argued that he did not have constructive possession of the

cocaine involved in the charged offenses (2-25 kilograms) - and

uncharged offenses. (R36-3476; R37-3619-3626).

Again, at sentencing, Abel Rizo submitted written objections

to the PSI Report clearly stating that he was not responsible for the

quantities of cocaine involved in both charged and uncharged acts,

because he was not present and did not participate in said offenses.

(R3-557, 625). However, the District Court only entertained

evidence of whether Abel Rizo participated in two uncharged acts, to-

wit: 25 kilograms involved in the alleged July 1992 cocaine rip-off

involving cocaine from Puerto Rico, and nine (9) kilograms involved

in the alleged Carmelo Robbery in Carol City in late March 1994.

See, pages 10 through 15 of Abel Rizo’s Initial Brief at Pet. App. “2.”

At the conclusion of the sentencing hearing, the District

Court found that the “preponderance of the evidence” showed that

the 9 kilograms were not attributable to Abel Rizo,‘ but that the

Government had produced a preponderance of evidence that the 25

kilograms obtained in July 1992 in the Puerto Rico rip-off were

attributable to Abel Rizo. (1SR4-80-81). With regard to the 25

kilogram Puerto Rico cocaine rip-off, the following testimony was

presented at sentencing:

Abel Rizo’s grandfather testified regarding whether Abel was

present at Mr. Velesquez’ farm during the summer of 1992, rather

than in Hialeah, Florida, where the Government’s cooperating

witness, Jorge Gonzalez claimed Abel was a participant in the Puerto

Rico drug rip-off. (1SR4-15-16,19,23). Although due to the passage

of time from 1992 to the time of his testimony in 1997, Mr.

“Unfortunately, the 9 kilogram reduction in the quantity of drugs did not

lower Abel Rizo’s total offense level. If the Court would have granted Abel's

objection to the 25 kilogram cocaine rip-off from Puerto Rico, Abel's base offense

level under U.S.S.G. 2D1.1(a) would have been Level 28 (2 kg but less ban 3.5 kg).

See, Abel Rizo’s Supplemental Objections at p. 14. (R3-557,625-14).

-10-

Velesquez could not account for every hour of every day in the

month of July, 1992, Mr. Velesquez did recall that his grandson,

Abel, lived on the farm with him in Homestead, Florida, and had his

own room. Further, Abel helped at the farm by trimming and caring

for the 188 avocado trees on the farm in addition to the and hedges

around the farm, and picking the avocados when they reached market

size. (ISR4-17,22-24). Additionally, with regard to the summer of

1992, Abel testified that during a typical day at his grandfather’s

farm,

My grandfather would make me up early or I would

wake up because of the roosters. We had chickens

and a lot of, you know, ducks. Every time in the

morning they would get rowdy because they were

hungry, so they would make noise. I would get up,

get dressed, you know, wash up, and go outside. If

the grass was too, you know, too long, cut it. If it

was a lot of trees and a lot of leaves fell down or

branches, take them out. If somebody wanted

avocados I would go through the trees, start picking

the big ones, and to sell them, especially early in the

season, if you could have some of the avocados to

sell, the price would be higher in the boxes. Then,

you know, when the season starts going through the

avocados price goes down.

(1SR4-55-56).

Further, although Abel Rizo freely acknowledged that he did

leave the farm sometimes to see his girlfriend, he did so for no more

than three hours, and did not see her much, because “she wanted to

get married, and I wasn’t ready to get married. I was going to take

a chance at football. And my coach from high school gave me that

chance that year by introducing me to Coach Davis from Lambuth

University....” (1SR4-56).

Moreover, with regard to the alleged uncharged offenses in

late March 1994, Abel Rizo testified that on March 13, 1994, he left

Miami, Florida with his friends from Lambuth University and drove

straight through to Jackson, Tennessee where Lambuth University is.

located. (1SR4-64-65). During the previous week, Abel and his

site

friends were on Spring Break, and drove down to Key Largo, Florida,

to go fishing. (1SR4-64-65). While Abel was in Key Largo, he

bought an engagement ring for his fiancé, Juliana Meadows,’ and had

the date he planned to propose to her engraved inside, “3/14/94.”

(1SR4-66-67). Thereafter, on March 31", after finishing football

practice, Abe/ and Juliana Rizo drove to Birmingham, Alabama.

Abel and Juliana stayed overnight in a hotel, and the next morning,

April 1, 1994, drove to her parents house in Hoover, Alabama.

(1SR4-58-59). When Abel and Juliana arrived at the Meadows’

home, Abel asked her mother and father for Juliana’s hand in

marriage. (1SR4-59). Abel and Juliana spent the weekend with her

parents and their friends. They went to DeSoto Caverns, and

produced the dated tickets together with photographs and souvenirs

from DeSoto Caverns. (1SR4-59-60; Sentencing/Def. Ex. 3-5). On

Sunday, April 3, 1994, Abel and Juliana drove back to Lambuth

University, because Abel had to be in school for football practice on

Monday. (1SR4-59-60).

This testimony was corroborated through the proffered

testimony of the witnesses who appeared to testify, but from whom

the District Court did not permit testimony, and the following

exhibits: Lambuth University transcripts from August 25, 1992 to

April 24, 1996 (1SR4-70); Affidavit of Head Coach Vic Wallace,°

Lambuth University Football Athletic Physical records’ and football

programs.*®

Further, based upon the District Court’s ruling limiting the

type of evidence Abel Rizo could provide regarding both uncharged

* At the time of trial and sentencing, Abe/ and Juliana were married and

Juliana’s last name had changed to Rizo.

* Showing training schedule including March 14, 1994 through April 4,

1994, and Abel Rizo's presence at all training sessions, and weight during that

period. (Sentencing/Def. Ex. 1).

’ Showing that in August, 1992, Abel Rizo was 6'1" and weighed 250

pounds, and in August, 1993, his weight was 255 pounds. (Sentencing/Def. Ex. 2).

* Showing Abel Rizo played games on November 7, 1992 and November

13, 1992 and was listed as weighing 255 to 262 pounds. (Sentencing/Def. Ex. 6-7).

12.

acts (alleged as relevant conduct in the PSI Report) and charged acts,

Abel Rizo proffered the testimony of the witnesses available outside

of the courtroom. (1SR4-50-52). Those proffers together with the

exhibits submitted, established an alibi such that Abel Rizo could not

have participated in the offenses alleged in Counts I, II, III, IV, VIII,

IX and X of the indictment. Exhibits consisting of the medical

records from the Athletic department at Lambuth University and

football programs showed that in 1992 Abel Rizo weighed 250 to 262

pounds, in 1993 weighed 255 pounds, and in 1994 weighed 270

pounds. Thus, during the aforementioned offenses alleged in the

indictment, Abel Rizo weighed 50 to 100 pounds more than the

heaviest participant the victims described. (R13-153-54; R23-1411;

R24-1640; R25-1687-90).

However, the District Court’s reduction in the quantity of

drugs did not lower Abel Rizo’s total offense level, and, accordingly,

as a first offender, Abel received a total sentence of 468 months (39

years) incarceration, and 5 years supervised release. See, Pet. App.

“1” at 19-21.

B. Statement of Facts:

The Government argued at trial that Abel Rizo’s alleged

participation in the offenses was part of a large criminal organization

the Government labeled the “Rizo organization” that stole drugs and

drug proceeds from drug dealers. The Government alleged that from

approximately 1987 through 1994,” Abel Rizo’s father, Evelio Rizo,

Sr., engaged in a conspiracy the object of which was to obtain

narcotics and/or narcotic proceeds, usually by force, from known or

suspected drug traffickers. The narcotics were distributed by the

alleged members of the conspiracy and the participants in the

offenses shared the proceeds. (R1-246; R13-32-6).

At the time of the second superseding indictment, the

Government claimed that throughout the conspiracy, Evelio Rizo, Sr.

was assisted by his two sons, Evelio Rizo, Jr. and Abel Rizo, his wife,

Marta Rizo, and over 15 other indicted individuals who were

* At the beginning of the conspiracy, Abel Rizo was 15 years old, Evelio

Rizo, Jr. was 24 years old, and Evelio Rizo, Sr. was 41 years old. (Rev. PSI-6, 39,

4 137).

at

recruited into the conspiracy. (R1-246). After the trial, two

subsequent superseding indictments were filed naming eleven (11)

previously unindicted coconspirators for a total of 30 coconspirators.

(DKT-132-D.E. 836, DKT-160-D.E. 1040).

The Government claimed that many of the offenses were

planned at the “Rizo residence” at 890 E. 23 Street, Hialeah, Florida,

and that residence was also used to store some of the proceeds from

various rip-offs. (R13-32-26; R20-912-13). In addition, the

Government claimed that the Rizo organization utilized an avocado

farm owned by Abel Rizo 's grandfather in South Dade County to plan

and execute some of the schemes to obtain narcotics. (R13-32-26).

In 1992, Abel’s grandfather lived at the farm. (1SR4-15-16,19,23).

The cooperating accomplice witnesses testified that the

general "modus operandi" of the group was as follows: A member of

the group would obtain information from a friend, associate or

acquaintance about other individuals who distributed narcotics. The

person providing that information was referred to as the "Santo"

(Saint) and would receive a portion of the ultimate proceeds from the

ripoff. The "Santo" would arrange to purchase a quantity of cocaine

from the friend, associate or acquaintance, while other members of

the group would surveil the transaction. (R13-32-26; R20-904, R21-

1140-41). When the transaction was completed, members of the

group would follow the individual whom the "Santo" had paid to

determine where he or she went. The group would then surveil that

place believing it to be the "stash house" where larger quantities of

drugs and/or money were stored. Subsequently, the stash house was

either forcibly broken into by individuals posing as police, or an

individual was forcibly abducted as he or she left the house and

forced to allow the individuals posing as police officers back inside

the house to turn over any drugs and/or money. (R13-32-36).

At trial, Abel Rizo argued and established through the

testimony of Government witnesses that he did not participate in the

offenses he was charged with in the indictment. Specifically, the

testimony of the Government witnesses supported his defense by

showing that he was not present, or supported his defense through

significant misidentifications and contradictions of his alleged

participation. In addition, Abel Rizo also submitted his medical

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records from the Federal Detention Center in Miami reflecting that

in 1997, Abel Rizo was 6'1" and weighed 245 pounds. (R37-3621).

One of the simplest examples that the accomplice testimony

directly contradicted all non-accomplice testimony regarding Abel

Rizo’s “involvement” in the offenses concerned the June 28-29, 1992

Lozano robbery alleged in Counts 2, 3 and 4. The Government

claimed that on the night of June 28, 1992, Miguel Tapia, Juan

Carlos Pelegrino, Barbaro Vasquez, Arnaldo Vivero, Evelio Rizo, Jr.,

and Abel Rizo robbed the Lozano residence.

However, the victims, Norma Lozano and her brother,

Alvaro Estrada,, described the accomplices (who testified at trial) as

the individuals that broke down the sliding glass door and were

violent inside the apartment - - whereas the accomplices claimed at

trial those acts were done by Abel Rizo. Further, the victims did not

describe anyone fitting the description of Abel as being present. '°

'° Alvaro Estrada described Barbaro Vasquez as one of the men who was

at sliding glass door who was wearing a purple shirt, (R27-2171). Mr. Estrada also

stated that the man in the purple shirt was the individual who pulled out a gun on his

sister, Norma. (R27-2173). Further, Norma Lozano specifically described the man

who put the gun to her head as “medium height, black hair with a mustache, and kind

of medium — I mean, he’s not a very tall man, ... he’s not fat or skinny, just looked

built.” (R27-2143-44). “[H]e was wearing a — blue jeans, he was wearing a purple

shirt, T-shirt, with yellow letters here.” (R27-2148). Moreover, on cross-

examination Ms. Lozano stated that the man with the gun was one of the individuals

that she did positively identify as one of the perpetrators, and, that during her

previous depositions, she “learned that the man who held the gun to [her] head was

a man by the name of Barbaro Vasquez.” (R27-2160).

Both Ms. Lozano and Mr. Estrada described Miguel Tapia as the man who

beat up Mr. Estrada and hit Armalette Rivero, as having light eyes, and clearly being

one of the assailants that were arrested ari@ identified within seven to ten minutes

after the incident. (R27-2153,2163-64). Ms. Lozano also recalled that she had

identified Miguel Tapia as the taller one with the light colored eyes. (R27-2164).

In contrast, accomplice Barbaro Vasquez testified that on the day of the

robbery he was wearing a Laker’s T-Shirt, jeans and a Laker’s cap. (R17-493).

Vasquez confirmed that Abe/ and Evelio Rizo, Jr. were dressed completely in black,

and claimed he observed Evelio Rizo, Jr. and Abel behind the wall of the balcony of

the apartment -- while he was allegedly outside. (R17-493; Govt. Ex. 9). Vasquez

further claimed that he then heard the glass door on the balcony break, and later saw

Abel and Evelio Rizo, Jr. inside the house looking for drugs. (R17-487-88, 492-93).

According to Vasquez, he and Juan Carlos Pelegrino then entered the

ofS.

Another clear example of accomplice testimony directly

conflicting with the testimony of all the victims concerns the De La

Torre Robbery charged in Counts 9 and 10 of the indictment. None

of the victims identified or marked Abel Rizo’s photograph as being

one of the participants - even though they received instructions to

mark every photograph that they may have the “least bit of

suspicion” that it may have been one of the perpetrators. (R24-1654).

However, the victims did identify the other charged participants.

apartment through the front door, and saw that the victims were already grouped in

the living room. (R17-490). Evelio Rizo, Jr. gave Vasquez a revolver and told him

to keep the people in the living room. (R17-491-92).

When the police arrived, Vasquez stated that Abe/ ran out of the apartment

first, Pelegrino ran out second, and that he (Vasquez) was the /ast person to run out

of the apartment. (R17-529, 538). On his way out of the apartment, Vasquez claimed

that he “dropped” the gun. (R17-493-94). Vasquez also confirmed that he was

apprehended by Officer Delgado. (R17-538-39). Vasquez adamantly denied that

he threw a bag of cocaine or the gun at the Officer or that the Officer was knocked

down when he threw something at him. (R17-529-30). However, Officer Delgado

testified he chased the /ast male that ran out of the apartment, and after chasing the

male and commanding him to stop or he would shoot, the male stopped, turned

around, threw a very large paper bag of cocaine and a weapon at the Officer’s chest,

which knocked the Officer down. (R16-435-36). The Officer then tackled and fought

with this individual while he watched at least three other individuals get inside a

white vehicle, “like a Blazer, Cherokee type, and start it up.” (R16-437). Those

individuals were later apprehended. (R16-437). One individual who ran behind the

nursing home, was never apprehended. (R16-437).

In stark contrast to Barbaro Vasquez’ and Officer Delgado’s testimony,

accomplice Miguel Tapia, testified that Barbaro Vasquez was the first to exit the

apartment - not the last male that Officer Delgado arrested. (R17-576). Tapia further

testified he never entered the apartment, because he only functioned as a look-out

from across the street by sitting in a slouched position in a Pathfinder. (R17-598-99).

Tapia also testified that he observed Abel Rizo at the front door of the

residence, rather than at the sliding glass door that Barbaro Vasquez falsely claimed

Abel assisted in breaking into. (R17-597-98). Tapia further expounded that the

only time he had seen Abel Rizo near the sliding glass door, is the time he was

allegedly exiting the apartment after Barbaro Vasquez exited. (R17-598-99).

Tapia, Pelegrino, Vasquez and Arnaldo Vivero were charged and

convicted of the robbery in Dade County Circuit Court before the federal indictments

ensued. (R17-496,577-78).

AG.

(R25-1685-86).'' Only the testimony of Jorge Gonzalez placed

Abel Rizo at this robbery. However, Gonzalez’ testimony

demonstrated he was lying. He claimed the residence was “empty”

of furniture other than in the master bedroom and the child’s room.

(R13-157-60,172-74) -- even though the Government’s Exhibits

showed that the residence was full of furniture. (R28-2326).

Similarly, the testimony of the accomplice witnesses who

testified regarding Abel Rizo’s alleged participation in the Edison

Cano robbery charged in Count 8 directly conflicted with the non-

accomplice eyewitness. Accomplice, Carlos De La Teja, as before,

claimed that, Abe/ Rizo was the violent individual. This time, Teja

claimed that Abel pulled Edison Cano out of his Camero and beat

him up in front of the warehouse where Cano worked. (R20-966).

However, this claim was directly contradicted by Cano, his employer,

Mr. Bush -- as well as by Teja’s own Grand Jury testimony. (R23-

1340-42; R37-3621). Further, Teja’s claim that Abe/ entered and

ransacked the house is also false. The victim, Pedro Sinche, reported

that the assailant were approximately “his size” or 5'8" - not over six

foot like Abel Rizo. (R23-1411-15; R24-1597-1601; R37-3621).

ARGUMENT I :

THE APPELLATE COURT’S REFUSAL TO ADDRESS A SUFFICIENCY

OF THE EVIDENCE ISSUE WHERE THE EVIDENCE, CONSISTING OF

ACCOMPLICE TESTIMONY, IS INCREDIBLE AS A MATTER OF LAW,

OR BASED UPON FACTS THAT ARE EITHER PHYSICALLY

IMPOSSIBLE, OR IMPOSSIBLE UNDER THE LAWS OF NATURE,

DIRECTLY CONFLICTS WITH PRIOR PRECEDENT, AND DENIED THE

PETITIONER DUE PROCESS.

Without any discussion, the Eleventh Circuit swept into the

jury box"? Abel Rizo’s sufficiency argument -- even though the

'' Neither Mercy De La Torre or her son, Juan De La Torre, identified Abe/

Rizo as having been present. (R13-162-64; R25-1685-86). Juan De La Torre, had

the greatest opportunity to observe the perpetrators, because he was taken downstairs

to get water for his mother - yet he did not observe anyone even remotely

resembling or fitting the description of Abe/ Rizo. (R24-1644-47, R25-1685-86).

'? When counsel challenged the appellate court at oral argument that they

were “sweeping ... under the rug” the lies of cooperating accomplices who testified

at

accomplice testimony that supported the verdict, directly and

completely conflicted with the eyewitness testimony of the victims.

As set forth in the Statement of Facts, supra, the unbiased, neutral

eyewitness testimony completely contradicted the accomplice

testimony that implicated Abel Rizo in the three robberies (Lozano,

De La Torre, and Edison Cano robberies) charged in Counts 2,3,4, 8,

9 and 10 of the indictment. Based upon Abel's conviction of those

counts, the District Court sentenced him to an additional 30 years

incarceration. Moreover, those substantive charges were

encompassed in the conspiracy charged in Count |, for which Abel

ws sentenced to and additional 5 years incarceration. Pet. App. “1”

at 21.

Binding precedent in the Eleventh Circuit clearly provides

that “the uncorroborated testimony of an accomplice is sufficient to

support a conviction ... ifit is not on its face incredibile or otherwise

unsubstantial” United States v. lacovetti, 466 F.2d 1147,1153 (5"

Cir. 1972), cert. denied, 410 U.S. 908 (1973)(emphasis added)." See

also, Tillery v. United States, 411 F.2d 644 (5" Cir. 1969).

Accordingly, “when testimony is so unbelievable on its face that it

defies physical laws....” an appellate court may intervene and declare

the testimony incredible as a matter of law. United States v.

Casteneda, 951 F.2d 44, 48 (5" Cir. 1992)(internal quotation marks

and citation omitted).

Other districts have also recognized this or similar analysis.

See, United States v. Saulter, 60 F.3d 270, 275 (7" Cir. 1995)(same),

Brooke v. United States, 385 F.2d 270, 279 (D.C. Cir. 1967(found

process where jury forced to pick and choose evidence “so attenuated

as to strain credulity to the breaking point”). See also, n. 14, infra.

As outlined in the Statement of Facts herein, the accomplice

testimony created a tissue of lies that could not be kept straight, nor

can it be reconciled with the unbiased eyewitness and victim

against Abel Rizo in order to obtain reductions in sentences or no charges at all, the

court responded “we’re sweeping it into the jury box.”

"The Eleventh Circuit, in the en banc decision, Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11 Cir. 1981), adopted as precedent decisions of

the former 5" Circuit rendered prior to October 1, 1981

-18-

. testimony. “Credibility choices” require a finder of fact to choose

that certain witnesses are truthful, while others are mistaken or

outright liars.'* In order to sustain the verdict against Abel Rizo, a

trier of fact would have to conclude that all the unbiased

eyewitnesses and victims misidentified a man of “medium height,

black hair with a mustache, and kind of medium male weighing

wearing a purple shirt, (R27-2143-44, 2171) for a 6 foot-one, 250

—pound football player completely dressed in black. (R13-153-54;

R23-1411; R24-1640; R25-1687-90; R37-3621). Further, in order to

accord credibility to the accomplice testimony, the trier of fact would

have to further believe that the arresting police officer lied when he

stated that the testifying accomplice he arrested threw two kilograms

of cocaine at him, knocking him to the ground. Additionally, the

trier of fact would have to believe that the eyewitnesses, victims and

the police officer had a compelling motive to lie, and the cooperating

accomplices did not. Such conclusions defy logic and reason, and,

likewise could not be found by a reasonable jury.'* Thus, the only

logical reason for the jury’s failure to reconcile such contradictory

testimony is their confusion with the testimony of physical crimes in

which the Abel Rizo was lumped in with the rest of the “Rizo” family

- rather than being individually considered. See note 16.

Thus, the verdict was only supported by accomplice

'* See, Rumsavich v. Borislow, 154 F.3d 700 (7" Cir.1998)(at bench trial,

judge determined based upon “multiple reasons” that one of the witnesses,

Rumsavich, lied and forged Borislow’s and Notary’s signature, and that Borislow

was truthful); Guerra v. Johnson, 90 F.3d 1075 (5" Cir.1996)(during a motion for

new trial based upon the failure of the prosecution to divulge Brady evidence, the

judge determined that the officers lied and the eyewitness was truthful when she

testified, after the trial, that she told the officers during her pre-trial statements that

the defendant’s accomplice shot the victim police officer, and not the defendant

Guerra); and Marcum v. United States, 452 F.2d 36 (5" Cir.1971)(in Federal Tort

Claim Act case, trial judge was justified in finding experienced diver’s testimony to

be more credible than observations of deceased’s teenage friends as to where body

submerged, because the teenagers testified that the body went down near a strong

current of an open lock valve. However, the diver found the body 15 to 20 feet from

the valve and the current of the open lock valve had no effect beyond 2 to 3 feet).

'S United States v. To, 144 F.3d 737, 743 (11" Cir.1998)reasonable

inferences and credibility evaluations are resolved in favor of jury’s verdict).

-19-

testimony that was incredible as a matter of law, or based upon facts

that are either physically impossible, or impossible under the laws of

nature. Accordingly, the Fifth Amendment due process clause

requires appellate courts to re-evaluate such incredible accomplice

testimony in order to assure that an accused is properly convicted of

an offense. Simply disposing of sufficiency arguments through

“standards of review” or deference to a confused jury that failed to

reconcile critical evidence of a defendant’s participation in a crime,

as a justification to ignore the obvious conflicts between the biased

accomplice witnesses and neutral eyewitnesses and victims, results

in a complete denial of due process. An appellate court must review

sufficiency arguments de novo. United States v. Toler, 144 F.3d

1423,1426 (11" Cir. 1998). Where, as here, an appellate court

refuses to examine the record and even attempt to reconcile the

obvious inconsistencies regarding the guilt or innocence of one

man,'* such is no different than being denied due process by not

providing transcripts to the indigent, or denying a criminal defendant

the right to effective assistance of counsel on appeal. Cf, Draper v.

Washington, 372 U.S. 487, 449, 83 S.Ct.774, 780, 9 L.Ed.2d

899(1963)(refusal to provide transcript denies due process); Evitts v.

Lucey, 469 U.S. 387, 401-02, 105 S.Ct. 830, 839, 83 L.Ed.2d 821

(1985); Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917,

921, 8 L.Ed.2d 21 (1962), Ake v. Oklahoma, 470 U.S. 68, 78, 105

S.Ct. 1087, 1094, 84 L.Ed.2d 53 (1985)(“The private interest in the

accuracy of a criminal proceeding that places an individual’s life or

liberty at risk is almost uniquely compelling.”).

Therefore, this Court should accept certiorari review to

resolve the inherent conflict in the Eleventh Circuit’s refusal to

address the sufficiency issue, and to prevent a man’s life and liberty

'© If Abel Rizo had been acquitted of some, but not all counts, the

Government could argue that such demonstrates that the jury did make

individualized determinations as to each count, and each defendant. However, all

the defendants were convicted of all counts, and there is no indicaiton that the jury

was able to compartmentalize the evidence. Cf., United States v. Meester, 762 F2d

867, 883 (11" Cir. 1985)(“To establish prejudice from spill-over effect, the

Appellant would have to demonstrate jury’s inability to make individualized

determinations as to each defendant”).

-20-

from being deprived without due process.

ARGUMENT II

THE LANGUAGE IN THIS COURT’S OPINION IN APPRENDI V. NEW

JERSEY, 530. U.S. 466 (2000) PROVIDING THAT “ANY FACT [OTHER

THAN A PRIOR CONVICTION] THAT INCREASES THE PENALTY FOR

A CRIME BEYOND THE PRESCRIBED STATUTORY MAXIMUM”

REFERS TO THE MAXIMUM SENTENCE PRESCRIBED UNDER THE

UNITED STATES SENTENCING GUIDELINES, BECAUSE AS THIS

COURT EXPLAINED IN UNITED STATES V. R.L.C., 503 U.S. 291

(1992), THE SENTENCING GUIDELINES ARE STATUTES.

ADDITIONALLY, BEFORE INCREASING A DEFENDANT’S STATUTORY

MAXIMUM SENTENCE ON THE BASIS OF THE QUANTITY OF

ILLEGAL DRUGS A DEFENDANT CONSPIRED TO POSSESS WITH

INTENT TO DISTRIBUTE OR POSSESSED WITH INTENT TO

DISTRIBUTE, THE PROSECUTION MUST PROVE AND THE JURY

MUST DETERMINE THE QUANTITY OF ILLEGAL DRUGS BEYOND A

REASONABLE DOUBT TO A JURY..

The Eleventh Circuit’s affirmance of Abel Rizo ’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 and Jones. 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 must

be submitted to a jury, and proved beyond a reasonable doubt.” /d.,

120 S.Ct. at 2362-63.

This Court has reversed and remanded numerous drug cases

for reconsideration in light of Apprendi.'’ Like the cases this Court

'? 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, - U.S. -, 121

S.Ct. 336, - L.Ed.2d - (Oct. 16, 2000); United States v. Hester, 199 F.3d 1287 (11"

‘ite

has reversed and remanded for further consideration, the jury has not

found the quantity of drugs applicable to the defendant for the

offenses charged. 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 the language in Apprendi supra, referring to the

“prescribed statutory maximum,” refers to the maximum sentence

prescribed under the United States Sentencing Guidelines, because

as this Court explained in United States v. R.L.C., 503 U.S. 291

(1992), the Sentencing Guidelines are statutes?

(b) Whether Apprendi and/or Jones require the complete

reversal of a conviction due to lack of jurisdiction?

(co) Whether Apprendi and Jones remove jurisdiction from the

district court to sentence a defendant for whom the jury was not

instructed to find the quantity of drugs?

(d) Whether Apprendi and Jones render all sentencing statutes

unconstitutional that permit a trial court to determine by a

“preponderance of evidence” essential elements of the offense not

charged in the indictment and found by a jury beyond a reasonable

doubt? and,

(e) Assuming that this Court’s holdings in Apprendi, and/or

Jones, only require a 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?

A. The Sentencin ideli r “

The United States Sentencing Guidelines are clearly a

creature of statute that impose upper and lower limits on a sentencing

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).

-22-

court. This Court has previously rejected the Government’s attempt

to argue that an “authorized” sentence only refers to the penalty

provisions in the charging statute, rather than the limitations imposed

through the Sentencing Guidelines in United States v. R.L.C., 503

U.S. 291, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992). In R.L.C. this

Court held that the penalty provisions of the charging statute setting

_forth the maximum possible penalty are not to be given primacy over

the maximum possible penalty permissible under the Sentencing

Guidelines. R.L.C., 503 U.S., at 298, 112 S.Ct., at 1334.

The district court in R.L.C. found that R.L.C., a juvenile,

committed an act of juvenile delinquency within the meaning of 18

U.S.C. § 5031, because his acts would have been the crime of

involuntary manslaughter in violation of 18 U.S.C. §§ 1112(a) and

1153 if committed by an adult. The maximum sentence for

involuntary manslaughter under 18 U.S.C. § 1112(b) was three years.

At R.L.C.'s dispositional hearing, the district court granted the

Government's request to impose the maximum penalty for

respondent's delinquency and accordingly committed him to official

detention for three years.

Despite the manslaughter statute's provision for an adult

sentence of that length, the United States Court of Appeals for the

Eighth Circuit, vacated R.L.C.'s sentence and remanded for

resentencing, after concluding that 36 months exceeded the cap

imposed by 18 U.S.C. § 5037(c)(1)(B) upon the period of detention

to which a juvenile delinquent may be sentenced. 915 F.2d 320

(1990).

The government filed a petition for certiorari review to the

Supreme Court, arguing -- as the Government has in most post-

Apprendi cases -- that the maximum penalty authorized under the

statute refers to the charging statute; not the maximum under the

Sentencing Guidelines. This Court rejected the Government’s

argument as follows:

The Government suggests a straightforward enquiry

into plain meaning to explain what is "authorized."

It argues that the word "authorized" must mean the

maximum term of imprisonment provided for by the

statute defining the offense, since only Congress can

24.

"authorize" a term of imprisonment in punishment

for a crime. As against the position that the

Sentencing Guidelines now circumscribe a trial

court's authority, the Government insists that our

concern must be with the affirmative authority for

imposing a sentence, which necessarily stems from

statutory law. It maintains that in any event the

Sentencing Commission's congressional

authorization to establish sentencing guidelines does

not create affirmative authority to set punishments

for crime, and that the Guidelines do not purport to

authorize the punishments to which they relate.

But this is too easy. The answer to any

suggestion that the statutory character of a specific

penalty provision gives it primacy over

administrative sentencing guidelines is that the

mandate to apply the Guidelines is itself statutory.

See 18 U.S.C. § 3553(b). More significantly, the

Government's argument that “authorization”

refers only to what is affirmatively provided by

penal statutes, without reference to the Sentencing

Guidelines to be applied under statutory mandate,

seems to us to beg the question. Of course it is true

that no penalty would be "authorized" without a

statute providing specifically for the penal

consequences of defined criminal activity. The

question, however, is whether Congress intended the

courts to treat the upper limit of such a penalty as

"authorized" even when proper application of a

statutorily mandated Guideline in an adult case

would bar imposition up to the limit, and an

unwarranted upward departure [503 U.S. 298] from

the proper Guideline range would be reversible

error. § 3742. Here it suffices to say that the

Government's construction is by no means plain.

The text is at least equally consistent with treating

"authorized" to refer to the result of applying all

-24-

Statutes with a required bearing on the sentencing

decision, including not only those that empower

the court to sentence but those that limit the

legitimacy of its exercise of that power. This,

indeed, is arguably the more natural construction.

R.L.C., 503 U.S. 291,298, 112 S.Ct. 1329, 1334 (emphasis added).

Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d

714 (1989)."®

Almendarez-Torres v. United States, 523 U.S. 224, 118

S.Ct. 1219, 140 L.Ed.2d 350 (1998) does not proscribe the

application of the Apprendi or Jones to the Sentencing Guidelines,

because Almendarez-Torres only concerned recidivism as a

sentencing factor of Title 8 U.S.C. § 1326, and did not require the

'’ While Apprendi itself concerned only the New Jersey hate crime statute,

there are numerous suggestions in the majority, concurring, and dissenting opinions

that the case's scope may be quite broad indeed. Justice Thomas's concurrence

argued that any fact that alters the range of punishments to which a defendant is

exposed must be found by a jury, see id. at 2379-80, acknowledging that his

proposed rule might invalidate the Sentencing Guidelines themselves. See id. at

2380 n. 11. Justice Scalia's concurrence maintained that “all the facts which must

exist in order to subject the defendant to a legally prescribed punishment must be

found by the jury." /d. at 2367. Justice O'Connor's dissent expressed concern that

the Court's holding "will have the effect of invalidating significant sentencing reform

accomplished over the past three decades." /d. at 2394, And Justice Breyer, a key

figure in the development of the Sentencing Guidelines, lamented that "the rationale

that underlies the Court's rule suggests a principle ... that, unless restricted, threatens

the workability of every criminal justice system (if applied to judges) or threatens

efforts to make those systems more uniform, hence more fair (if applied to

[sentencing] commissions)." /d. at 2402.

The majority responded to these allegations simply by noting that "[t}he

Guidelines are, of course, not before the Court. We therefore express no view on the

subject beyond what this Court has already held. See, e.g., Edwards v. United

States..." Id. [523 U.S. 511, 118 S.Ct. 1475] at 2366 n. 21. Edwards, the only case

cited by the majority, was quoted for the proposition that "a maximum sentence set

by statute trumps a higher sentence set forth in the Guidelines." 523 U.S. 511, 515,

118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). The Court did not cite Mistretta v. United

States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the case that originally

upheld the constitutionality of the Sentencing Guidelines, nor did it address the

holding in R.L.C., that the Sentencing Guidelines are a statute and that the statutory

character of a specific penalty provision such as 21 U.S.C. § 841, does not give it

primacy over administrative sentencing guidelines.

-25-

sentencing court to find any other fact, such as the quantity of drugs

attributable to the defendant.

As a result, this Court’s holding in Apprendi, that "[o}ther

than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed Statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt," applies

to the statutory maximums set forth in the United States Sentencing

Guidelines if such are lower than the maximums set forth in the

charging statute. 120 S.Ct. at 2362-63 (emphasis added).

Accordingly, inasmuch as the jury did not find “beyond a

reasonable doubt” the quantity of drugs attributable to Abel Rizo as

to Counts | and 2 of the indictment,'® the maximum possible

sentence for the Petitioner under the Sentencing Guidelines for those

would consist of a base offense level of 12 with a sentencing range

of 15 to 21 months, as provided for a 25 gram level set forth in

Section 2D1.1 of the United States Sentencing Guidelines.”°

B. The Quantity of Drugs That A Defendant Intends to

Conspire and/or Possess with Intent to Distribute Is An

Essential Element of 21 U.S.C. §§ 841 and 846,

To comport with the Fifth and Sixth Amendments, a criminal

indictment must (/) contain all of the elements of the offense so as

to fairly inform the defendant of the charges against him, and (2)

enable the defendant to plead double jeopardy in defense of future

prosecutions for the same offense. In Jones, this Court noted that:

"Count | charged conspiracy to possess with intent to distribute cocaine

in violation of 21 U.S.C. §846, and Count 2 charged possession with intent to

distribute cocaine in violation of 21 U.S.C. §841(a)(1).

'* Even if this Court “assumes” that the jury determined “beyond a

reasonable doubt” that Abe/ Rizo conspired or intended to distribute the 2 kilograms

set forth in Overt Act 10 - even though they were never instructed to do so, such

would only increase Mr. Rizo 's offense level to 26 for 63 to 78 months incarceration.

However, this Court should not fall prey to mistakenly attributing to Abel Rizo the

25 kilograms mentioned in Overt Act 12, because those allegations only state that

$300,000 was delivered - not that the kilograms were possessed. Moreover, Overt

Act 11, which contains the allegations regarding which defendants conspired and

possessed with the intent to distribute said 25 kilograms - does not allege that Abe/

Rizo was involved. See, Pet. App. | at 5-6, and Argument II, Part B, infra.

-26-

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, 18 U.S.C. § 2119(1), but if serious bodily

injury resulted, the 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. § 841, 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).

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 failed to allege the drugs the

Government sought to hold Abel Rizo attributable for at trial or

sentencing.

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, submitted to a jury, and proven beyond a reasonable

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

Additionally, the indictment herein wholly fails to identify

the penalty provisions imposed after trial. Abel Rizo ’s indictment not

2.

only failed to identify which portion of § 841(b) the government

sought to impose, it failed to cite to § 841(b) altogether.

Additionally, as argued above, only Overt Act 10 of Count I alleged

2 kilograms of cocaine as to Abel, Hence, the District Court

completely lacked jurisdiction based upon its failure to allege a

penalty provision in the indictment, or only provided the trial court

jurisdiction to try Abel for the 2 kilograms properly charged.

C, 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

infotmed 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).

Inasmuch as the lack of jurisdiction may be raised at any

time,”' this issue was timely raised, and requires reversal of the

*'The Apprendi Court did not address the indictment issue because the

Presentment Clause of the Fifth Amendment has not been made applicable to the

States via the Fourteenth Amendment. See Apprendi at 477 n. 3, 120 S.Ct. 2348.

However, in Apprendi, the Court contrasted the state prosecution before it with the

federal prosecution challenged in Almendarez-Torres, supra. See Apprendi, 530

U.S. at 477 n. 3, 120 §.Ct. 2348. In Almendarez-Torres, the Supreme Court stated

that if 18 U.S.C. § 1326(b)(2) “constitute[d] a separate crime, then the Government

must write an indictment that mentions the additional element." See 523 U.S. at 226,

118 S.Ct. 1219. More importantly, the Apprendi Court explicitly adopted as its

holding "the opinion that we expressed in [Jones v. United States, 526 U.S. 227, 119

S.Ct. 1215, 143 L.Ed.2d 311 (1999) }." /d. at 490, 120 S.Ct. 2348. In Jones, a case

involving a federal prosecution, the Court stated that the Fifth and Sixth

-28-

conviction and sentence imposed herein. /d. See United States v.

Gonzalez, 259 F.3d 355, 359 (5" Cir .2001 (explained that because

of the jurisdictional nature of the error, evidence of the drug quantity

at trial or the defendant's acknowledgment of the quantity was

irrelevant and could not cure the grand jury's lack of notice of the

quantity element, which was an element only because it was used to

enhance the sentence). See id. at 360 n. 3. See also, United States v.

Cotton, 261 F.3d 397 (4" Cir. 2001)(same).

Moreover, the Fifth Circuit held in Gonzalez, where an

indictment does not allege a drug quantity, the evidence adduced at

trial supporting the trial court’s finding of drug quantity is “not

relevant,” and may not be used to enhance a defendant’s sentence

beyond what it charged in the indictment. /d.

The Fifth Circuit’s holdings in United States v. Longoria,

259 F.3d 363 (5" Cir.), and Gonzalez, supra, comport with the

Apprendi. As Justice Stevens stated in the lead opinion in Apprendi,

it “*is unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of penalties to

which a criminal defendant is expose.’” 120 S.Ct., at 2363 (quoting

Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 1228

(1999)(Stevens, J., concurring)). Thus, as the dissenting justices

explained, Apprendi would require:

any fact (other than prior conviction) that has the

effect, in real terms, of increasing the maximum

punishment beyond an otherwise applicable range

must be submitted to a jury and proved beyond a

reasonable doubt... The principle thus would apply

not only to schemes like New Jersey’s, under which

a factual determination exposes the defendant to a

sentence beyond the prescribed statutory maximum,

but also to all determinate-sentencing schemes in

which the length of a defendant's sentence within

Amendments require that "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." 526 U.S. at 243 n. 6, 119 S.Ct. 1215

(emphasis added)

-29-

the statutory range turns on specific factual

determinations (e.g., the Federal Sentencing

Guidelines).

Apprendi, \20 S.Ct. at 2391 (O’Conner, J., with whom Rehnquiest, C.J.,

Kennedy and Bryer, JJ., join, dissenting\emphasis added). See also,

United States v. Tran, 234 F.3d 798 (2d Cir., 2000)(remanded for

district court to determine if court lacked jurisdiction where fact

necessary for firearm enhancement was not charged in indictment),

and e.g., United States v. Longoria, 259 F 3d 363 (5" Cir.)( failure of

indictment to charge a drug quantity and specific reference to 21

U.S.C. 841(b)(1)(D) deprived the district court of jurisdiction to

sentence defendant to more than 5 years incarceration), rehrg en

banc granted, 262 F.3d 455 (5" Cir., 2001).

Similarly, the indictment the grand jury returned against Abel

Rizo in the instant case, failed to set forth any notice regarding the

enhanced penalty provisions of § 841(b) by either citing to the statute

or specifying the quantity of cocaine that the grand jury found that

Abel Rizo possessed or conspired to possess. Accordingly, the

district court was without jurisdiction to try or sentence Abel,

because the grand jury did not charge him with an essential element

of the offenses as to each count.

Nevertheless, some circuit courts have required defendants

to either satisfy a plain error standard, or a harmless error standard

after passing a stringent test to prove that a constitutional objection

was raised. See, United States v. Candelario, 240 F.3d 1300 qi"

Cir.2001). Such a burden conflicts with the Fifth and Sixth

Amendments to the U.S. Constitution.

NC ION

For all the foregoing reasons, therefore, Abel Rizo

respectfully submits that this Court should grant this Petition for

Certiorari.

Respectfully submitted,

RHONDA A. ANDERSON, ESQ.

2222 Ponce De Leon Boulevard, Suite 500

Coral Gables, Florida 33134

Florida Bar No. 708038

Tele: (305) 444-1400, Fax: (305) 444-1487

-30-

~ CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the

foregoing was mailed via U.SAMail, this 10" day of November, 2001,

to: Solicitor General, Defartmenj/f Justice, 10" and Constitution

DA A. ANDERSON, ESQ.

Coynsel for Abel Rizo

a.