# Petition for Writ of Certiorari — Rizo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1084

## Text

-~eme Lour

D

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
FARR Cerra ed CEMENT sob cv cncctecccdeccesecss vi
CEA 5 wh ob Goin ccs Va wecévhes Coc lebecs l
6 sds oh eek is vecasnn suse in l
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

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

-14-

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0855%3A1. Public record. Not legal advice.