# Petition for Writ of Certiorari — Sanchez-Aran v. United States (Nos. 07-518, 07-528, 07-530)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

es OR ILE D
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nt 07-5360CT 12 2007

ee

IN THE

Supreme Court of the Anited States

Dr. FRANCISCO SANCHEZ-ARAN,

Petitioner,
Vv.

UNITED STATES,
Respondent.

On Petition for a Writ of Certiorari to the
United States
Court of Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

Thomas C. Goldstein* Mark J. Rochon

Patricia A. Millett MILLER & CHEVALIER

Duncan N. Stevens CHARTERED

AKIN GUMP STRAUSS 655 15th St. NW
HAUER & FELD LLP Suite 900

1333 New Hampshire Ave. Washington, DC 20005
Washington, DC 20036 (202) 626-5800

(202) 887-4000

*Counsel of Record

Attorneys for Petitioner

October 18, 2007

_*~__ OFFICE OF THE CLERK

WicsSon-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

QUESTION PRESENTED

Whether the court of appeals erred in holding, in
conflict with the decisions of the Second, Third,
Seventh and D.C. Circuits, that a failure to instruct
a jury on the enactment date of a criminal statute
was not error, when the evidence permitted the jury
to rest its verdict solely on pre-enactment conduct.

il

LIST OF PARTIES TO THE PROCEEDING

The names of all parties to the proceeding in the

United States Court of Appeals for the First Circuit
are:

Lorenzo Munoz-Franco

Dr. Francisco Sanchez-Aran
Ariel Gutierrez-Rodriguez
Wilfredo Umpierre-Hernandez

The United States

TABLE OF CONTENTS

QUESTION PRESENTED cecscscsccoscscescsovesoersenssessooess i
LIST OF PARTIES TO THE PROCEEDING....... ii
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TAB OF AU THORET IES cccvecosessovelecsescvassscovcensios v
FF RPI SEIU concesconsnscosersuvormnivcotoomisariniecoeiesnine 1
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CONSTITUTIONAL AND STATUTORY

PV Be BEEF OIG LG cecscccctciascscceiscevenecescnceeesses 1
STATEMENT OF THE CASE .............ccccecccreceessrones 2

REASONS FOR GRANTING THE PETITION ....7
A. THE CIRCUITS HAVE SPLIT ON AN
IMPORTANT CONSTITUTIONAL ISSUE........ 8

1. Many Circuits Vacate Continuing-
Offense Convictions If It Is Reasonably
Possible That An Ex Post Facto Clause

Ve So cisiccatricccntecestetentcniatadsniccnesnees g
2. Four Circuits Have Drawn Inferences
In The Government’s Favor. ............cesecceceeee 15

B. UNDER THE SECOND, THIRD,
SEVENTH AND D.C. CIRCUITS’ STANDAR!?;,
PETITIONER’S CONVICTIONS MUST BE
Ve I ialiisciihinsdapusiindsinausininitipndiaaatabiaiaheisatinitminnieians 18
1. The First Circuit Did Not Follow The
Second, Third, Seventh and D.C. Circuit’s
PG hiseinsns cnnsissciinieniniiitieebeniaiiieemmminiieinnaniunsiiis 19

2. There Is A Reasonable Possibility That
The Jury Relied Exclusively On Pre-
Enactment Evidence in Convicting
I. siiictesscaatinviiciakesdenbenieaniianitnenncaseninioreses 24
C. THE FIRST CIRCUIT’S DECISION
CONFLICTS WITH THIS COURT’S
FT Geniccristaadeconsibiainbecnbitiamecasestonceosee 26
1. This Court Has Articulated a
Demanding Standard of Review for
Constitutional Errors. .ccescccosccesseccssssesssoveccosces 27
2. The First Circuit’s Ex Post Facto
Clause Analysis Is Inconsistent With This
Court’s Approach to Error Review. ............. 30
D. THIS CONSTITUTIONAL QUESTION IS
IMPORTANT AND RECURRING, AND IS
APPROPRIATELY RESOLVED IN THIS

Ils sisbnpentnigintuvnisocnhciovesexesacabieneaiiecidiinnnbeseniansboain 32
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Appendix A:

Opinion of the Court of Appeals for the First
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Appendix B:

Opinic= and Order of the U.S. District Court
for the District of Puerto Rico ...............000« 92a

Appendix C:
Order of the Court of Appeals for the First

Circuit Denying Rehearing and Rehearing
BE HINES vic cnicceseacsniniscnsinecigiunainisaiiadinidbisesbaiiei 117a

TABLE OF AUTHORITIES

Federal Cases

Blakely v. Washington, 542 U.S. 296 (2004)............ 29
Boyde v. California, 494 U.S. 370 (1990) ................ 27
Calder vu. Bull, 3 U.S. SSC C1 TGS) .ccvccccccieseccccoscecsssees OO
Carmell v. Texas, 529 U.S. 513 (2000) ..................... 33
Chapman v. California, 386 U.S. 18(1966)...... passim
Clemons v. Mississippi, 494 U.S. 738 (1990) ........... 27
Collins v. Youngblood, 497 U.S. 37 (1990)................. 8
County Court v. Allen, 442 U.S. 140 (1979) . 27, 29, 31
Cramer v. United States, 325 U.S. 1 (194d) ............. 29
Cunningham v. California, 127 S. Ct. 856 (2007) ... 29
Dennis v. United States, 384 U.S. 855 (1966) .......... 16
Dobbert v. Florida, 432 U.S. 282 (1977)..............0.08. 33
Fahy v. Connecticut, 375 U.S. 85 (1968) ................4. 28
Francis v. Franklin, 471 U.S. 307 (1985)...........0..... 27
Marks v. United States, 430 U.S. 188 (1977) ........... 29
Miller v. Florida, 482 U.S. 423 (1987)...........0..... 8
Mills v. Maryland, 486 U.S. 367 (1988) .................4. 27
Olden v. Kentucky, 488 U.S. 227 (1988)...............006. 31
Rose v. Clark, 478 U.S. 570 (1986) ................00scceerees 27
Sandstrom v. Montana, 442 U.S. 510 (1979)..... 28, 30
Shepard v. United States, 544 U.S. 13 (2005).......... 29
Street v. New York, 394 U.S. 576 (1969) .......00..... 28
Stromberg v. California, 283 U.S. 359 (1931).......... 29
Sullivan v. Louisiana, 508 U.S. 275 (1993) ..... passim
United States v. Bagley, 473 U.S. 667 (1985)........... 29
United States v. Booker, 543 U.S. 220 (20085) .......... 29
United States v. Brown, 555 F.2d 407 (5th Cir. 1977).
ELEN SSIatS HPN RAEN TO! PRR nor Cee MR en Reer passim
United States v. Calabrese, 825 F.2d 1342 (9th Cir.

RR EM SCA alas eae arn CDS NCVER: bre RB DL PN passim

United States v. Cortez, 757 F.2d 1204 (11th Cir.
SE ESSN oe ea LE DR AON tne ate te ee ET passim

vl

United States v. Duncan, 42 F.3d 97 (2d Cir. 1994)... 8
United States v. Harris, 79 F.3d 223 (2d Cir. 1996)....

ERG PAG MEER TOE NUR E NT LA BOT TERRE Nr NOT eNO 10
United States v. Henson, 848 F.2d 1374 (6th Cir.
STEARNS Nb Ons ae MAE a BY Bie bee Seems eRe PC Rr 16
United States v. Julian, 427 F.3d 471 (7th Cir. 2005),
cert. denied, 546 U.S. 1220 (2006).................... passim
United States v. Mitchell, 49 F.3d 769 (D.C. Cir.
PEE 5. iaicckiivtidcnacedaetinidibi tiene eisai oen 13, 18
United States v. Monaco, 194 F.3d 381 (2d Cir. 1999)
piikcbiieid vesiebiphautucniaopisiadind ioundelciidgttdeegtas dinuiaAeeameut bodes 10
United States v. Munoz-Franco, 487 F.3d 25 (1st Cir.
IN isis. ects vcidnechesiniighitdeietatiplchitnteaauanin vacate l

United States v. Olano, 507 U.S. 725 (1993).... passim
United States v. Scates, No. 86-5621, 818 F.2d 30
(table), 1987 WL 37328 (4th Cir. May 6, 1987)........ 17
United States v. Todd, 735 F.2d 146 (Sth Cir. 1984)...
inhale ibbaig dengtin dats cemented adieeneilgatisnia dada hicinls edeicamea aaahiaaiained dal passim
United States v. Torres, 901 F.2d 205 (2d Cir. 1990)
cilia elo psuenghacsu a haassessssd oat sihalobaiuaeidinpeasdbabamai tanto haat passim
United States v. Tykarsky, 446 F.3d 458 (3d Cir.
I ei hice issnch nnd Arbesdhsw cdlahicdadesesoedstibiasnedemeaioldibas passim
United States v. Williams-Davis, 90 F.3d 490 (D.C.
RN II ssinsbeds ccnwdeestacueshecnadicsocsuckcasabembass 13, 18, 20
United States v. Yates, 354 U.S. 298 (1957)....... 28, 29
Williams v. North Carolina, 317 U.S. 287 (1942).... 28

State Cases
Knowles v. State, 708 So. 2d 549 (Miss. 1998)... 13, 14
People v. Graham, 876 P.2d 68 (Colo. App. 1994) ... 14

People v. Kyle, 111 P.3d 491 (Colo. App. 1994)........ 14
People v. Luman, 994 P.2d 432 (Colo. App. 1999) ... 14
State v. Aho, 975 P.2d 512 (Wash. 1999).................. 14

State v. Hudspeth, 821 P.2d 547 (Wash. App. 1992) ...
Mintiaudiasrcrecenetonbateyahi dengan ueidbanemabadie 14

State v. Ricci, & A.2d 362 (N.J. Super. Ct. App.

Be SOURED va daisies, wdcidlaxvisa hice cu aictaacetea uaa ieee 14
Constitutional Provisions

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Statutes

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Sas Oe BO, BOGS faisiiceisssscc ore 2
Se BR a iibiiccccevuistsvaiveensestee cnn passim
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Wee Te ca eee 5, 7
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Rules

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OPINIONS BELOW

The opinion of the United States Court of
Appeals for the First Circuit is reported at United
States v. Munoz-Franco, 487 F.3d 25 (Pet. App. A).
The opinion of the United States District Court for
the District of Puerto Rico, denying Petitioner's
motion for new trial, is unreported (Pet. App. B).

JURISDICTION

The district court had jurisdiction over this
criminal case under 18 U.S.C. § 3231. The court of
appeals had jurisdiction to review the final judgment
of the district court pursuant to 28 U.S.C. § 1291.
The First Circuit decided this case on May 22, 2007.
A timely rehearing petition was denied by the First
Circuit on July 20, 2007 (Pet. App. C). The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the Constitution,
U.S. Const. art. 1, § 9, cl. 3, states as follows:

No Bill of Attainder or ex post facto Law shall be
passed.

2. The federal bank fraud statute, 18 U.S.C.
§ 1344(a), states as follows:

Whoever knowingly executes, or attempts to
execute, a scheme or artifice--

(1) to defraud a federally chartered or
insured financial institution; or

(2) to obtain any of the moneys, funds,
credits, assets, securities or other property
owned by or under the custody or control of a
federally chartered or _ insured financial

bo

institution by means of false or fraudulent
pretenses, representations, or promises, shall be
fined not more than $ 10,000, or imprisoned not
more than five years, or both.

STATEMENT OF THE CASE!

The First Circuit ruled that a district court’s
failure to instruct a jury on the enactment date of a
criminal statute, when the conduct in question began
well before that enactment date, does not violate the
Ex Post Facto Clause as long as the majority of the
evidence presented at trial related to conduct that
occurred after the statute was enacted. That holding
deepens a split among the circuits on the proper
standard for addressing Ex Post Facto Clause
instructional errors, and improperly resolves against
criminal defendants the ambiguities created by
constitutional errors at trial. The rule adopted by
the Second, Third, Seventh, and D.C. Circuits, and
the rule that is consistent with this Court’s
precedents, is to vacate a conviction if there is a
reasonable possibility that the jury relied on conduct
predating the criminalizing statute. This Court
should grant review to resolve the conflict among the
circuits on this important question of constitutional
law.

1. The bank fraud statute, 18 U.S.C. § 1344,
became law on October 12, 1984. Prior to that, there
was no federal criminal prohibition on bank fraud

itself. Federal law, however, did prohibit mail and
wire fraud. 18 U.S.C. §§ 1341, 1343.

The indictment alleged two bank fraud schemes,
one lasting from June 1980 to May 1990, and the

' Petitioner hereby adopts and joins the petitions of the other
defendants in this matter.

other lasting from December 1981 to May 1990. The
indictment did not allege mail fraud, wire fraud, or
any other general fraud offense that was on the
books prior to October 12, 1984. Section 1344 was
the only fraud provision cited.

2. Throughout the 1980s, Lorenzo Munoz-
Franco and Petitioner Dr. Francisco Sanchez-Aran
were the president and executive vice president,
respectively, of Caguas Central Federal Savings &
Loan, a Puerto Rico thrift.2 Ariel Gutierrez and
Wilfredo Umpierre were officers of Transglobe
Corporation and Modules Manufacturing, Inc.,
companies that received substantial construction
loans from Caguas in the early 1980s and thereafter
acted as contractors for other borrowers. Caguas
also executed construction loans to companies owned
by Francisco Mirandes throughout the 1980s.

One of Caguas’s first loans during the indictment
period to companies led or controlled by Gutierrez
and Umpierre was executed on June 25, 1980 for the
La Marina project.? Another project, Levittown
Plaza, was the subject of a Caguas loan executed on
January 30, 1981, and another loan for the Quintas
de Country Club project was executed on March 31,
1982.4. On these loans, the construction schedule
was not met, and interest payments were taken from
loan proceeds to maintain the repayment schedule.®
In addition, monies were transferred to and from
other projects, and the transferred amounts were

2 JA-T-2387. References are to the record filed with the First
Circuit.

3 JA-T-0079-80.

4 JA-T-0143-44, -0174.

5 JA-T-0085-86, -0089, -0241-42.

used for loan repayments.® The loans were repaid on
October 29, 1984, by the DOW Group (not owned or
controlled by Gutierrez or Umpierre), which obtained
new loans from Caguas and closed out the Gutierrez
loans.? After that date, Gutierrez and Umpierre
(and affiliated companies) had no construction loans
with Caguas; they served as contractors on projects
financed through other borrowers through 1985.
Effective December 31, 1985, Gutierrez sold Modules
to Sergio Camero but remained as an employee of
Modules; he and Umpierre left Modules in December
1986.8

Beginning in the early 1980s, Caguas also
executed loans to companies held by Francisco
Mirandes. For example, loans to Deproco
Corporation, a Mirandes-held company, were
executed for the Reparto Valenciano project on
December 23, 1981, and for the Villas de Gurabo I
project on May 15, 1984.9 Both of those projects fell
behind schedule, and multiple transfers were made
to and from those loans and other Mirandes-held
projects. !°

At various points in 1982 and 1983, Caguas
executed two-party checks payable to Transglobe
Corporation and to various third parties (contractors
and government agencies) in connection with the La
Marina and Quintas de Country Club projects. The
checks in question were ultimately deposited in
Transglobe’s accounts, endorsed by the third-party
payees. It was later alleged that those endorsements

6 See, e.g., JA-T-0093-94, -0162-63, -0178-79.
7 JA-T-0096-99, -0159-60, -0243-44.

§ JA-T-1692-93, -2125-27, -3386-87.

¥ JA-T-0508-10, -0529.

0 JA-T-0517-18, -0533-35.

had been forged on a few checks.'! Also in 1983, a
Caguas employee determined that a Gutierrez
company had written checks from a Caguas account
for deposit in another bank, and had also written
checks from the other bank for deposit at Caguas—a

"19

practice he characterized as “check kiting.

Following the passage of the Financial
Institutions Reform, Recovery and Enforcement Act
of 1989, Caguas fell out of capital compliance and
was seized in May 1990.'3

3. On November 22, 1995, Petitioner Sanchez-
Aran was indicted in the U.S. District Court for the
District of Puerto Rico (along with Munoz-Franco,
Gutierrez, and Umpierre) on charges of bank fraud
under 18 U.S.C. § 1344, conspiracy under 18 U.S.C.
§ 371 to commit, inter alia, bank fraud, and
misapplication of bank funds under 18 U.S.C. § 657.
Three superseding indictments were returned in
1997 and 1998. The final indictment charged two
separate conspiracies and schemes (one involving
Gutierrez and Umpierre and one involving Francisco
Mirandes, who pleaded guilty before trial) and
alleged acts extending from June 25, 1980 through
May 25, 1990. 22 of the 104 overt acts alleged in the
final indictment occurred prior to October 12, 1984.

At trial, the prosecution offered ample testimony
on the pre-October 1984 conduct described above.
The first several weeks of trial, for instance, were
devoted entirely to the La Marina, Levittown Plaza,
and Quintas de Country Club projects; there was no
testimony about any other projects until more than

1) See, e.g., SA-T-1549-52, -1584-86.
12 JA-T-1774-75.
13 JA-T-2784-87.

two weeks after trial began. Several other witnesses
discussed those projects at length later in the trial.
Much of the one-day testimony of Mirandes
concerned activity on Reparto Valenciano between
1981 and 1984. A Caguas employee testified for
several days about the alleged check-kiting in 1983.
Ten witnesses, in over two weeks of testimony,
testified that their signatures endorsing Caguas
checks over to Gutierrez-related corporations had
been forged, and virtually all of those alleged
forgeries predated 1984.

The jury returned guilty verdicts on all counts
for four of the five defendants. It had not been
instructed on the enactment date of the bank fraud
statute. Petitioner retained new counsel for
sentencing and appeal. His new counsel discovered
that the bank fraud statute had not been enacted
until October 12, 1984, and sought a new trial,
arguing that Petitioner’s convictions violated the Ex
Post Facto Clause. The district court denied the
motion, holding that Petitioner had waived the issue
and that there was no error because post-enactment
evidence was presented. Pet. App. 10la-104a. The
court sentenced Petitioner to 46 #£=months’
imprisonment on conspiracy and bank fraud and a
concurrent 60 months on misapplication. Pet. App.
10a.

4. The First Circuit affirmed. It noted that the
government had conceded most of the “plain error”
analysis, and acknowledged that the courts of
appeals were divided on the Ex Post Facto Clause
issue. Pet. App. 58a-61a. Under the approach taken
by the Second, Third and Seventh Circuits, a
conviction cannot stand if it is reasonably possible
that the jury relied exclusively on pre-enactment

conduct. Pet. App. 60a-6la. By contrast, under the
approach followed by the Ninth Circuit and one Fifth
Circuit panel, a conviction may stand as long as it is
supported by substantial post-enactment evidence.
Pet. App. 58a-59a. The court ostensibly took no
position on this split, opining that Petitioner could
not prevail even under the standard most favorable
to defendants (that of the Second, Third and Seventh
Circuits). Pet. App. 61a. The court then held,
echoing the Ninth Circuit, that the error did not
affect Petitioner’s “substantial rights” because there
was “considerable evidence” of post-enactment
events and because the “majority” of the overt acts in
the indictment were post-enactment. Pet. App. 62a.
The court also found no “transformative event”
distinguishing pre-enactment from post-enactment
conduct—analysis not followed by any other circuit—
and held on that basis that the jury could not have
relied solely on pre-enactment acts. Pet. App. 62a-
63a.

The defendants sought rehearing, but the First
Circuit denied the petitions on July 20, 2007. See
Pet. App. 118a. Petitioner sought a stay of the
mandate pending a certiorari petition, which was
granted.

REASONS FOR GRANTING THE PETITION

This Court should grant review to resolve a
broad and entrenched conflict among the courts of
appeals. As the First Circuit acknowledged (see Pet.
App. 58a-61a), there is substantial disagreement
among the courts of appeals on the standard for
reviewing a district court’s failure to instruct a jury
on the enactment date of a criminal statute, as
required by the Ex Post Facto Clause. The Second,
Third, Seventh and D.C. Circuits, and the Brown

panel of the Fifth Circuit, require reversal if it is
reasonably possible that the jury relied solely on pre-
enactmient evidence and thereby violated the
defendant’s Ex Post Facto Clause rights. By
contrast, the Fourth, Sixth, Ninth and Eleventh
Circuits, and the Todd panel in the Fifth Circuit,
would uphold a conviction if there is substantial
post-enactment evidence, even if the jury was not
instructed on the enactment date. Had this case
arisen in the Second, Third, Seventh, or D.C.
Circuits, the court would have vacated Petitioner’s
convictions because the record establishes a
reasonable possibility that the jury relied exclusively
on pre-enactment evidence. Tracking the Ninth
Circuit's approach, however, the court of appeals
here affirmed the convictions. That decision conflicts
with this Court’s precedents disfavoring judicial
factfinding to uphold a conviction ar.d mandating
that ambiguities in jury verdicts be resolved against
the government. The confusion and uncertainty
arising from this split, together with the importance
of this constitutional question, warrant a grant of
certiorari.

A. THE CIRCUITS HAVE SPLIT ON AN
IMPORTANT CONSTITUTIONAL ISSUE.

The Ex Post Facto Clause of the Constitution
prohibits Congress from criminalizing conduct after
it has occurred, Collins v. Youngblood, 497 U.S. 37,
42 (1990), or from increasing the punishment for a
crime after it is committed. Miller v. Florida, 482
U.S. 423, 429 (1987). The lower courts agree that
the Ex Post Facto Clause is not necessarily violated
by the prosecution of an offense that begins before
but continues after the enactment date of the
statute. See, e.g., United States v. Duncan, 42 F.3d

97, 104 (2d Cir. 1994). In such cases, however, the
jury must rely on post-enactment evidence to find all
elements of the crime; exclusive reliance on pre-
enactment evidence to find any element violates the
Ex Post Facto Clause.

Ordinarily, juries are instructed on the relevant
enactment date, and decide whether the offense is
fully proven post-enactment. When, as in this case,
the jury is not so instructed, courts must determine
whether the error could have resulted in a verdict
that violates the Ex Post Facto Clause. A
widespread conflict has emerged among the courts of
appeals regarding the proper’ standard for
determining whether a jury verdict runs afoul of the
Ex Post Facto Clause’s protections.

1. Many Circuits Vacate Continuing-
Offense Convictions If It Is Reasonably
Possible That An Ex Post Facto Clause
Violation Occurred.

Four circuits have adopted a standard for
reviewing Ex Post Facto Clause instructional errors
that asks whether it was reasonably possible that
the jury relied exclusively on that evidence and
thereby violated the Ex Post Facto Clause.

The Second Circuit’s decision in United States v.
Torres, 901 F.2d 205, 224 (2d Cir. 1990), dealt with
this question in the context of the “continuing
criminal enterprise” sentencing enhancement
enacted on October 27, 1986. That provision
requires life imprisonment for a _ “principal
administrator, organizer, or leader” of a criminal
enterprise that obtains gross receipts exceeding $10
million in a_ twelve-month period. 18 U.S.C.
§ 848(b)(1). In Torres, as here, the district court did

10

not instruct the jury on the enactment date. Rather,
it told the jury that it could convict the defendants if
they acted as administrators between June 24, 1986,
and June 23, 1987, and if the enterprise grossed $10
million in that period.'* In reviewing for plain error,
the Second Circuit acknowledged that it was “quite
unlikely that the jury would have found a significant
difference in the character of these appellants’
relationship to, and leadership of, the [enterprise]
before and after October 27, 1986.” 901 F.2d at 228.
Indeed, the only evidence of the enterprise’s
violations was post-enactment; all of the acts
presented at trial occurred in 1987. Id. at 228-29.
Nevertheless, the court held, as long as it was
possible that the jury relied on pre-enactment
evidence for the “administrator” finding, reversal
was required no matter how unlikely such a finding
was, or how likely it was that the jury, suitably
instructed, would have found that the defendants
acted as “administrators” after October 27, 1986. Id.
at 229. Accordingly, the court vacated the
conviction. Id.; cf. United States v. Harris, 79 F.3d
223 (2d Cir. 1996) (where statute required that jury
find “series” of violations and only one of nineteen
acts predated the relevant enactment date, “no
possibility” of exclusive reliance on pre-enactment
conduct); United States v. Monaco, 194 F.3d 381, 386
(2d Cir. 1999) (“A conviction for a continuing offense
straddling enactment of a statute will not run afoul
of the Ex Post Facto clause unless it was possible for

14 The First Circuit stated that Torres was distinguishable
because the defendants there preserved their objection. In fact,
the Torres court noted that the defendants’ objection below
“{did] not suffice to preserve an objection for appeal, absent
plain error.” Pet. App. 60a n.34.

11

the jury, following the court's instructions, to convict
‘exclusively’ on pre-enactment conduct”; no violation
because jury was properly instructed).

The Third Circuit has followed the Second
Circuit’s approach. In United States v. Tykarsky, 446
F.3d 458 (3d Cir. 2006), the defendant was convicted
under a solicitation statute, the minimum sentence
for which was increased on April 30, 2003; of the
nine acts presented at trial, seven occurred after that
date. The court held that, if “a reasonable jury could
have concluded only that the attempted persuasion
or enticement continued past April 30,” then the
conviction could stand. /d. at 480-81. Because it was
possible that the jury did not find the post-April 30
conversations to constitute “enticement = or
persuasion,” there was “at least a possibility that the
jury convicted Tykarsky based solely on _ pre-
[enactment] conduct. ... The most that can be said
here is that it is improbable, rather than impossible,
as a factual matter, that the jury convicted Tykarsky
exclusively on the basis of pre-April 30 acts.” Id. at
482 (emphasis in original). Hence, even though the
majority of the conduct was post-enactment, the
court found plain error and vacated Tykarsky’s
sentence. The court also rejected the government’s
argument that that “judicial fact-finding” was
permissible, holding that the jury, not the judge, was
responsible for finding a _ violation after the
enactment date. /d. at 480 n.18.

The Seventh Circuit has applied the same
analysis. In United States v. Julian, 427 F.3d 471
(7'h Cir. 2005), cert. denied, 546 U.S. 1220 (2006), the
court held that the failure to instruct the jury as toa
statutory enactment date “implicated Julian’s ex
post facto rights.” 427 F.3d at 482. Julian was

12

—

convicted of conspiracy under a provision whose
maximum penalty was increased on October 30,
1998. The jury was never instructed to consider
whether the conspiracy extended past that date, and
the court found that “[i]f a jury, properly instructed
on this point, might have found that the conspiracy
had come to an end before the increased penalty took
effect or that Julian had withdrawn from the
conspiracy before that date,” vacatur was required.
Id. at 482. If “a reasonable jury could only have
concluded that the conspiracy continued beyond the
effective date of the new statute and that Julian
remained a member of the conspiracy beyond that
date,” however, no violation occurred. Id. at 482-83.
There was no dispute that the conspiracy had
continued past October 30, and nothing in the record
indicated an affirmative act by Julian to withdraw
from the conspiracy prior to that date. Jd. at 483.
Hence, “no reasonable jury” could have found
withdrawal, and there was no plain error.!5

'5 The First Circuit attempted to distinguish the Second and
Third Circuits’ decisions from the Seventh Circuit’s holding, see
Pet. App. 61a-62a, but in substance those circuits all conducted
the same analysis The Seventh Circuit looked to the fourth
Olano factor, asking whether permitting the error to stand
would “implicate[] the fairness, integrity, or public reputation
of the judicial process,” whereas the other circuits focused on
the third factor (harm to the defendant's “substantial rights”).
Julian, 427 F.3d at 482. But all three courts asked the same
question: whether the jury could have relied solely on pre-
enactment acts in convicting. Compare Julian, 427 F.3d at 482
(“If a jury, properly instructed on this point, might have found
that the conspiracy [came] to an end before the increased
penalty took effect .. . then the error is one that implicates the
fairness, integrity, or public reputation of the judicial process.”)
with Tykarsky, 446 F.3d at 480 (“To affec{t) substantial rights.
the error must have been prejudicial. Tykarsky has been

13

The D.C. Circuit, in United States v. Mitchell, 49
F.3d 769 (1995), has also looked to the sufficiency of
pre-enactment evidence. At issue in Mitchell was
the same sentencing enhancement considered in
Torres; because all of the violations submitted to the
jury were committed after the relevant enactment
date, the court had “no doubt” that the jury had
found him to have led the criminal enterprise based
on post-enactment acts, and hence found no plain
error. Jd. at 781; see also United States v. Williams-
Davis, 90 F.3d 490, 511 (D.C. Cir. 1996) (discussing,
in preserved-error context, whether’ exclusive
reliance on pre-enactment evidence was “possible”;
no violation because conviction on pre-enactment
evidence required “bizarrely configured jury finding”
the likelihood of which was “zero’”).

One Fifth Circuit decision has adopted the same
legal standard for reviewing Ex Post Facto Clause
appeals. In United States v. Brown, 555 F.2d 407
(5th Cir. 1977), the court addressed a conspiracy that
lasted from 1966 to 1974 and a statute enacted in
October 1970. Even though the majority of the acts
in furtherance of the conspiracy had been committed
after the enactment date, see id. at 412 n.4, the court
found plain error and vacated the convictions. The
court held that assuming that the jury did not rely
on pre-enactment conduct would amount to
impermissibly directing a verdict for the prosecution.
Id. at 421.

Finally, two state supreme courts have also
adopted this approach. In Knowles v. State, 708 So.

prejudiced if there is a reasonable possibility that a jury,
properly instructed on this point, might have found Tykarsky
guilty based exclusively on acts that occurred before the
increased penalty took effect.”) (citation omitted).

14

2d 549 (Miss. 1998), the statute was amended on
July 1, 1995 to delete a required element of the
crime. The defendant was convicted of an offense
that ran from May 1993 to December 1995. On
appeal, he argued that the failure to instruct on the
enactment date violated the Ex Post Facto Clause
(an objection apparently preserved below), and the
Mississippi Supreme Court vacated the conviction.
The court concurred with other state courts’ holdings
that a failure to instruct the jury on the enactment
date of a continuing offense violates the Clause, even
if “some of the unlawful conduct occurred after the
new law became effective.” Jd. at 554-56. In State v.
Aho, 975 P.2d 512 (Wash. 1999), the relevant statute
was enacted on July 1, 1988, and the defendant was
convicted for conduct running from January 1987 to
December 1982 for one offense and to August 1995
for another. The Washington Supreme Court
vacated the conviction (despite the defendant’s
failure to preserve the issue), holding that the failure
to instruct the jury on the significance of the July 1,
1988 enactment date made it “possible that Aho has
been illegally convicted based upon an act or acts
occurring before the effective date.” Id. at 516.'6

16 See also People v. Kyle, 111 P.3d 491, 506 (Colo. App. 1994)
(sentencing enhancement improperly applied when jury could
have relied on pre-enactment conduct); People v. Luman, 994
P.2d 432, 437 (Colo. App. 1999) (same); People v. Graham, 876
P.2d 68, 72 (Colo. App. 1994) (same); State v. Ricci, 593 A.2d
362, 364-65 (N.J. Super. Ct. App. Div. 1991) Gury should have
been instructed that July 1, 1987 was effective date of “kingpin”
statute enhancing penalties, since defendant was charged with
crime lasting from August 1986 through August 1987; “we can
not be sure” that jury would have found that defendant led
conspiracy after July 1, and error was plain); State v. Hudspeth,
821 P.2d 547, 547 (Wash. App. 1992) (“[BJecause the jury was

15

Accordingly, in the Second, Third, Seventh and
D.C. Circuits, and in Mississippi and Washington,
courts have set a clear standard: a conviction must
be vacated if the elements of the offense were
established by pre-enactment evidence, such that the
jury could have returned a conviction based solely on
that evidence. In those jurisdictions, courts do not
require further proof that such reliance was the more
likely outcome, or that post-enactment acts were
qualitatively different from pre-enactment conduct.
Only when it is not reasonably possible for a jury to
have rendered its decision based exclusively on pre-
enactment evidence will those courts uphold a
verdict. Accordingly, had Petitioner’s case arisen in
any of these jurisdictions, his conviction would have
been vacated on appeal.

2. Four Circuits Have Drawn Inferences In
The Government’s Favor.

The Fourth, Sixth, Ninth and Eleventh Circuits
have taken the opposite tack. Those courts look to
the nature and volume of post-enactment events and
uphold convictions whenever that evidence was
sufficient to support a jury verdict, regardless of
whether the verdict could reasonably have rested
exclusively on pre-enactment evidence.

In United States v. Calabrese, 825 F.2d 1342
(1987), the Ninth Circuit upheld a conviction based
on evidence post-dating the relevant enactment date.

The defendant had been convicted of conspiracies
that began in October 1982 and November 1983;

not instructed to indicate when the offenses occurred, we
cannot reject the possibility that Hudspeth was convicted of
violating a statute that was not in effect at the time the
offenses occurred”; vacating though objection not preserved).

16

both ended in November 1984. /d. at 1346. The
relevant statute was enacted on October 12, 1984,
and the Ninth Circuit held that there was
“substantial evidence” to support a jury finding that
the conspiracy extended beyond that date, without
discussing whether it was possible that the jury did
not so find. Jd. (One defendant had raised the issue
at sentencing, but not at trial. Jd.)

The Sixth Circuit adopted a similar test in
United States v. Henson, 848 F.2d 1374 (1988),
where it concluded that, although all of the overt
acts set forth in the indictment occurred before a fine
enhancement provision went into effect on January
1, 1985, the provision was nonetheless applicable
because “there was evidence of other acts that were
performed in furtherance of the conspiracy after
December 31, 1984.” Id. at 1386. Like the Ninth
Circuit, the Sixth Circuit in Henson offered no
reason to believe that the jury must have relied—or,
even, was more likely to have relied—on the evidence
of post-enactment conduct. The existence of that
evidence in the record was sufficient.!?

The Eleventh Circuit has embraced the same
test. In United States v. Cortez, 757 F.2d 1204 (11th
Cir. 1985), the court considered a conspiracy that

‘7 Both the Sixth Circuit in Henson and the Ninth Circuit in
Calabrese also suggested that the problem can be assumed
away, reasoning that a guilty verdict on a continuing offense
necessarily means a conclusion that the offense lasted for the
full duration stated in the indictment. 848 F.2d at 1385; 825
F.2d at 1346. No other circuits appear to have endorsed that
view, and it is inconsistent with this Court’s holdings that the
government need not prove all of the overt acts alleged in an
indictment to obtain a conspiracy conviction. See, e.g., Dennis
uv. United States, 384 U.S. 855, 863 n.8 (1966).

17

began in the fall of 1979 and extended through
November 1980 and a statute that was enacted on
September 15, 1980. That court held that “[e]nough
activities of the conspirators continued after § 955a’s
enactment so that even if the jury had been
instructed by the trial court as to the date of
enactment and to consider only activities thereafter,
there is no doubt that the jury would have decided
the case the same way.” Id. at 1207.

The Fourth Circuit followed this approach in
United States v. Scates, No. 86-5621, 818 F.2d 30
(table), 1987 WL 37328 (May 6, 1987), holding that,
where one out of three acts occurred after the
effective date of a sentencing enhancement, there
was no Ex Post Facto Clause violation even though
the jury was not instructed on that enactment date.
The court noted Scates’s argument (not preserved
below) that “the jury may have convicted him solely
on the basis of events occurring prior to the effective
date of the act,” 1987 WL 37328 at *3, but affirmed
his conviction without addressing that possibility.

Finally, one panel of the Fifth Circuit adopted
this standard in United States v. Todd, 735 F.2d 146
(1984). The defendants there were convicted of a
conspiracy that began before the effective date of a
sentencing enhancement. Id. at 149. The jury was
not instructed on the significance of the date, but the
court found no plain error as to the Ex Post Facto
Clause violation because “[mlost of the evidence
focused on events” occurring after that statutory
date. Id. at 150. Notably, the same was true of the
evidentiary record for the Fifth Circuit’s earlier
decision in Brown, supra. Yet the panel in Brown
found plain error. The Fifth Circuit thus has a

18

longstanding and unresolved internal conflict on this
question.

Unlike the Second, Third, Seventh and D.C.
Circuits, therefore, the Fourth, Sixth, Ninth and
Eleventh Circuits do not consider whether the jury
verdict could reasonably have rested on _ pre-
enactment evidence. In the latter courts, the
existence and volume of post-enactment evidence is
controlling.

This conflict is entrenched. The First and D.C.
Circuits have denied requests for rehearing en banc,
and the split has persisted for more than twenty
years. All of the circuits with criminal dockets other
than the Eighth and Tenth Circuits have now
addressed the issue. This Court’s review is therefore
needed to resolve the dispute.

B. UNDER THE SECOND, THIRD, SEVENTH
AND D.C. CIRCUITS’ STANDARD,
PETITIONER’S CONVICTIONS MUST BE
VACATED.

The First Circuit acknowledged the split of
authority among the circuits, but concluded that
Petitioner would fail under either standard. In so
holding, the court misapprehended the test followed
by the Second, Third, Seventh and D.C. Circuits and
its effect in this case. In those circuits, if there is a
reasonable possibility that the jury relied solely on
the pre-enactment acts alone, the conviction must be
vacated. That standard was met here.!8

'8 Trial counsel in this case did not request an instruction on
the enactment date, and the First Circuit accordingly reviewed
for plain error. Virtually every significant decision on this
issue has been in that context, as set forth above
(unsurprisingly, as it would be unusual for a district court to

19

1. The First Circuit Did Not Follow The
Second, Third, Seventh and _ D.C.
Circuit’s Analysis.

The First Circuit’s analysis relied on the relative
quantities of pre- and post-enactment evidence,
mirroring the analysis of the Fourth, Sixth, Ninth,
and Eleventh Circuits. The differences between the
First Circuit’s approach and that of the Second,
Third, Seventh, and D.C. Circuits are clear and
sharp.

In Torres and Tykarsky, the Second and Third
Circuits unequivocally held that a failure to instruct

refuse to instruct the jury on a statutory enactment date). The
government conceded three of the four elements of plain error
on appeal: error occurred, it was “clear or obvious,” and letting
it go uncorrected would “seriously impair the fairness,
integrity, or public reputation of judicial proceedings.” See
United States v. Olano, 507 U.S. 725, 732-36 (1993). The only
question in dispute here was whether the error influenced the
verdict and thereby affected Petitioner’s “substantial rights.”
See id. at 734. The other plain error decisions on this issue
have likewise turned on whether the failure to instruct affected
the verdict. Accordingly, this Court need only resolve the
dispute over when an uninstructed jury’s verdict violates
“substantial rights” to harmonize the law in this area.

Even in the rare case where an instruction on the
enactment date is requested but not given, and the review is
thus for harmless error rather than plain error, the required
analysis is substantively the same. ‘The “substantial rights”
inquiry under Olano is identical to the harmless-error inquiry
prescribed by Federal Rule of Criminal Procedure 52 for
preserved errors. Compare Mitchell, 49 F.3d at 781 (in plain-
error inquiry, discussing whether jury “could have” convicted
based solely on pre-enactment acts) with Williams-Davis, 90
F.3d at 511 (in preserved-error setting, discussing whether
exclusive reliance on pre-enactment conduct was “possible” and
following Mitchell’s analysis). The only difference is that,
under plain error, the defendant bears the burden of
persuasion. Olano, 507 U.S. at 734.

20

the jury on the Ex Post Facto Clause cannot be held
harmless under plain-error analysis merely on the
ground that most of the evidence post-dated the
statutory enactment date. Yet that was precisely the
reasoning offered by the First Circuit. See Pet. App.
62a. In Torres, for instance, the question for
sentencing purposes was whether the defendant
acted as a leader or organizer of a criminal
enterprise after the relevant date. All of the
enterprises acts in question. occurred post-
enactment, and the Second Circuit found it “quite
unlikely” that the defendant assumed such a role
and then abandoned it before the enterprise
committed any criminal acts. 901 F.2d at 228.
Nevertheless, because it was “possible” that the
jury’s verdict rested on such a finding, the sentence
was vacated on appeal. Id.

Similarly, in Tykarsky, seven of the nine acts
presented at trial post-dated the statute, yet the
Third Circuit found a “reasonable possibility” that
the jury relied exclusively on one of the two pre-
enactment acts and vacated the conviction. 446 F.3d
at 482. Like the Second Circuit, the Third Circuit
found the Ex Post Facto Clause error to be plain even
though most of the evidence supported a conviction
on proper grounds: “The most that can be said here
is that it is improbable, rather than impossible, as a
factual matter, that the jury convicted Tykarsky
exclusively on the basis of pre-April 30 acts.” Id.
(emphasis in original). See also Julian, 427 F.3d at
482 (Seventh Circuit holding that, “fiJf a jury,
properly instructed on this point, might have found
that the conspiracy had come to an end before the
increased penalty took effect or that Julian had
withdrawn from the conspiracy before that date,” the

21

ond

conviction must be vacated) (emphasis added);
Williams-Davis, 90 F.3d at 511 (D.C. Circuit,
addressing whether it is “possible” that verdict
rested on pre-enactment conduct); Brown, 555 F.2d
at 412 n.4, 421 (Fifth Circuit, vacating conviction
even though majority of overt acts occurred after the
enactment date).

The First Circuit’s analysis cannot be reconciled
with the holdings of those Circuits. The court was
only able to uphold the conviction by holding that the
“majority” of the evidence presented at trial and the
“bulk” of the allegations considered in its sufficiency
analysis were post-enactment, and that there was
“considerable” evidence of post-enactment conduct.
Pet. App. 62a. The court further noted that
“relatively few” (22 out of 104) of the acts set forth in
the indictment occurred before October 12, 1984. /d.
On that basis, the court concluded that the jury did
not rely exclusively on pre-enactment evidence. Id.

The contrast between this case and Tykarsky, in
which the Third Circuit vacated a sentence even
though seven of the nine acts were post-enactment,
is stark. Although the ratio of pre-enactment to
post-enactment acts was virtually identical in these
two cases, the courts reached opposite results. See
446 F.3d at 482. The Second Circuit’s holding in
Torres is even more inconsistent with the First
Circuit’s approach, since all of the evidence in Torres
post-dated the enactment. 901 F.2d at 229.
Accordingly, that the majority of the evidence in this
case related to post-enactment conduct was not by
itself sufficient, under those circuits’ standard, to
support a finding that the jury’s exclusive reliance on
pre-enactment conduct was “impossible.” See, e.g.,
446 F.3d at 482.

22

- The First Circuit also noted that it saw “nothing
to differentiate appellants’ pre-enactment conduct
from subsequent conduct,” because certain key
government witnesses testified about both pre- and
post-1984 transactions and there was. no
“transformative event” prior to October 12, 1984.19
Pet. App. 62a. Again, whatever the merits of this
view, it cannot be reconciled with the approach
adopted by the Second, Third, Seventh, and D.C.
Circuits, who do not require a “transformative event”
in their plain-error analysis.2° Indeed, in Torres, the
Second Circuit specifically noted the absence of such
an event, finding it “quite unlikely that the jury
would have found” a meaningful distinction between
pre- and post-enactment conduct. 901 F.2d at 229.2!

19 That many government witnesses testified about both pre-
and post-enactment conduct did not make it “implausible that
the jury would find such testimony compelling only for” pre-
enactment acts. Pet. App. 62a. The jury need not have
believed any witness’s testimony for one period and not for
another because those witnesses were testifying about different
transactions in the different time frames.

20 The Seventh Circuit did focus on withdrawal from the
conspiracy in Julian, finding no withdrawal and affirming on
that ground. 427 F.3d at 483. The duration of the continuing
offense in that case was not at issue, however. The only dispute
was whether the jury could have found that the defendant
withdrew from the conspiracy. Jd. To show withdrawal, a
defendant must prove an “affirmative act to defeat or disavow
the criminal aim of the conspiracy.” In light of that “high
evidentiary threshold,” the court concluded that “no reasonable
jury” would have convicted the defendant based on his pre-
enactment conduct. Jd. Outside the factual context of that
case, therefore, the Julian decision does not dictate a
“transformative event” analysis.

21 Even if the First Circuit’s “transformative event” analysis
were appropriate, reversal would still be required because there
were, in fact, “transformative events” near or prior to the

23

Hence, the First Circuit’s analysis conflicts with
the standard adopted by the Second, Third, Seventh
and D.C. Circuits. The First Circuit did not
demonstrate that a jury verdict based solely on pre-
enactment evidence was “impossible,” or even that
such a _ verdict was particularly “improbable.”
Rather, the court reasoned that such an outcome was
less hkely than a verdict based on post-enactment
evidence—a holding that mirrored the Fourth, Sixth,
Ninth and Eleventh Circuits’ approach. See, e.g.,
Pet. App. 62a (“considerable” post-enactment
evidence); compare Calabrese, 825 F.2d at 1346
(“substantial evidence”); Cortez, 757 F.2d at 1207
(“[e]nough activities of the conspirators’); Todd, 735
F.2d at 150 (“most of the evidence”). Like those
courts, the First Circuit focused on the volume and
sufficiency of the post-enactment evidence and did
not address whether’ pre-enactment' evidence,
standing alone, could have supported the convictions.
It also assumed, unsupported by precedent, that the
jury could not have distinguished pre-enactment
from post-enactment conduct because there was no
pre-enactment “transformative event.” The First
Circuit’s decision therefore deepened and
underscored the split among the Circuits.

enactment date that could easily have “differentiated” pre-
enactment from post-enactment conduct in the jury’s view,
notably the end of Gutierrez’s direct construction-loan
borrowing relationship with the bank.

24

2. There Is A Reasonable Possibility That
The Jury Relied Exclusively On Pre-
Enactment Evidence in Convicting
Petitioner.

Had the First Circuit followed the Second, Third,
Seventh and D.C. Circuits’ analysis, it would have
vacated Petitioner’s convictions. There was more
than enough pre-enactment evidence in the record to
pose a reasonable possibility that the jury relied
exclusively on such evidence.

The prosecution spent significant amounts of
time at trial presenting evidence of acts prior to
October 12, 1984. In particular, three of the seven
construction loans that were the subject of the
Gutierrez bank fraud count—Transglobe La Marina,
Levittown and Country Club—were _ executed
between 1980 and 1982 and were paid off in October
1984. There was extensive discussion of each of
those loans at trial. Government witnesses testified
at length about lack of progress on the construction
projects, payments of interest from loan proceeds,
and transfers of funds from other projects into and
out of the loans.22. The prosecution made it even
more likely that the jury would rely on this evidence
by emphasizing it repeatedly in its brief closing.”

22 See, e.g., JA-T-0083-97, -3173D-31731 (excerpts from La
Marina testimony); JA-T-0143-59, JA-T-2886-2903 (Levittown);
JA-T-0174-0244, -1196 (Country Club).

23 See, e.g., JA-T-3593 (defendants “failed to build the required
number of houses” on La Marina, Levittown and Country Club
projects), -3594 (“No houses were ever built or installed” on La
Marina and “the Levittown project, Transglobe phase, in which
very little houses were built, millions were disbursed by
Caguas”), -3595 (La Marina. Country Club and Levittown
houses “not built, even though millions of dollars were
disbursed”), -3678.

25

On the Mirandes bank fraud count, while there
was less pre-enactment activity, the jury could have
relied on that activity to return a guilty verdict. In
particular, there was extensive testimony about pre-
enactment conduct relating to the Reparto
Valenciano loan, executed in December 1981."4
There was similar testimony about the Villas de
Gurabo loan, executed early in 1984.25

Significant amounts of trial time were devoted to
other allegations of pre-enactment conduct. In
particular, the prosecution called ten witnesses,
spending more than two weeks of trial, to suggest
that the defendants had forged _ third-party
endorsements of two-party checks. Virtually all of
that evidence predated October 12, 1984.26 Another
prosecution witness claimed that the defendants
were responsible for “check kiting” in 1983.27 Again,
the prosecutor amplified the likelihood of the jury
relying on these pre-enactment acts by emphasizing
them at closing.?8

Moreover, the prosecution itself directed the
jury’s attention to conduct that predated the fraud
statute’s enactment. The prosecutor told the jury

24 See, e.g., JA-T-0507-19 (pre-1984 disbursements and
transfers), -2290-96 (1981 discussions between Mirandes and
bank officers about the handling of the loan), -1328-29
(increases to and disbursements from the. loan prior to
enactment).

25 See, e.g., JA-T-0529-33.

*6 See, e.g., JA-T-1550-59 (1982), -1583-86 (1982), -2013-18
(1982-83), -2382-83 (1981), -2343-44 (1982), -2067-71 (1982).

27 See, e.g., JA-T-1768-86.

28 See, e.g., JA-T-3634-35 (“In the years of 1982 and 1983...
there has been evidence with regard to forged endorsements on
checks missing from La Marina and Levittown Plaza projects.
Transglobe phases.”), -3678-80, -3575-76, -3687.

26

during rebuttal that “it is sufficient [for a guilty
verdict] that the evidence in the case establish[es]
beyond a reasonable doubt that the offense was
committed on a date reasonably near” the inception
of the alleged conspiracy.?? In that light, and in light
of the pre-enactment evidence presented throughout
the trial and emphasized by the prosecution at
closing, it is likely that the jury relied on that
evidence; the only question is whether it also relied
on post-enactment evidence in returning bank fraud
convictions. Nothing in the record indicates that it
did, and there is a reasonable possibility that it did
not.

Hence, fairly viewed, the record contains more
than enough pre-enactment conduct for the jury to
have rested solely on such conduct in returning its
verdicts. The Second, Third, Seventh, and D.C.
Circuits would to be plain, and would have vacated
Petitioner’s convictions.

C. THE FIRST CIRCUIT'S DECISION
CONFLICTS WITH THIS COURT'S
PRECEDENTS.

The court in this case, like the Fourth, Sixth,
Ninth and Eleventh Circuits, deemed constitutional
error harmless (under the plain-error standard) by
relying on the volume of properly admitted evidence
and resolving doubts in favor of the government.
This Court has repeatedly criticized that approach,
holding that the volume of legitimate evidence in the
record is irrelevant and that ambiguities arising
from constitutional error should be resolved against
the prosecution. The court’s willingness. to
substitute itself for the finder of fact also runs afoul

*9 JA-T-3667-68.

27

of this Court’s precedents cautioning against judicial
factfinding.

1. This Court Has Articulated a
Demanding Standard of Review for
Constitutional Errors.

Under both the plain and harmless error
standards, a conviction must be vacated if there is a
“reasonable possibility’ that constitutional error
affected the verdict.2° Chapman uv. California, 386
U.S. 18, 23 (1967). The Court has often applied the
Chapman analysis, or a variation thereof, in
analyzing error in the context of improper, or
improperly withheld, instructions. See, e.g., Clemons
uv. Mississippi, 494 U.S. 738, 753 (1990); Boyde v.
California, 494 U.S. 370, 380 (1990); Mills uv.
Maryland, 486 U.S. 367, 376 (1988); Rose v. Clark,
478 U.S. 570, 584 (1986); Francis v. Franklin, 471
U.S. 307, 320 (19885).

When constitutional error occurs, the volume of
properly admitted evidence is ordinarily immaterial.
The Court “has held it irrelevant in analyzing a
mandatory presumption ... that there is ample
evidence in the record other than the presumption to
support a conviction.” County Court v. Allen, 442
U.S. 140, 160 (1979). Courts may not deem errors

30 As noted above, virtually every case addressing this issue has
done so in the plain-error context and has found that the
analysis turns on whether the error affected the verdict, an
inquiry that the Court in Olano characterized as the “affecting
substantial rights” prong of plain-error review. 507 U.S. at 738.
Because the “affecting substantial rights” analysis is
substantively the same as the harmless-error test developed by
this Court, see Olano, 507 U.S. at 734, the Court’s harmless
error precedents are fully relevant.

28

harmless simply on grounds that there was sufficient
legitimate evidence to support the verdict:

The inquiry, in other words, is not whether, in a
trial that occurred without the error, a guilty
verdict would surely have been rendered, but
whether the guilty verdict actually rendered in
this trial was surely unattributable to the error. .
.. The most an appellate court can conclude [in
this case] is that a jury would surely have found
petitioner guilty beyond a reasonable doubt - not
that the jury's actual finding of guilty beyond a
reasonable doubt would surely not have been
different absent the constitutional error. That is
not enough.

Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993);
see also Fahy v. Connecticut, 375 U.S. 85, 86-87
(1963) (“We are not concerned here with whether
there was sufficient evidence on which the petitioner
could have been convicted without the evidence
complained of. The question is whether there is a
reasonable possibility that the evidence complained
of might have contributed to the conviction.”), The
mere existence of properly admitted evidence in the
record, therefore, even in substantial quantities, is
not sufficient to excuse constitutional error.

Where one of several possible grounds for a
conviction is legally defective, this Court has held
that the conviction cannot stand. See, e.g.,
Sandstrom v. Montana, 442 U.S. 510, 526 (1979)
(‘(W]hen a case is submitted to the jury on
alternative theories the unconstitutionality of any of
the theories requires that the conviction be set
aside.”); Street v. New York, 394 U.S. 576, 586-87
(1969) (“[A]ppellant's conviction must be set aside if
we find that it could have been based solely upon his

29

words and that a conviction resting on such a basis
would be unconstitutional.”); Yates v. United States,
354 U.S. 298, 312 (1957) (vacating conspiracy
conviction because “it is impossible to tell which
ground the jury selected”); Cramer v. United States,
325 U.S. 1, 36 n.45 (1945); Williams v. North
Carolina, 317 U.S. 287, 292 (1942); Stromberg uv.
California, 283 U.S. 359, 368 (1931)

Finally, the Court has repeatedly disapproved
judicial displacement of the jury’s factfinding role.
In recent years, it has repeatedly done so in the
sentencing context. See Cunningham v. California,
127 S.Ct. 856, 871 (2007); Shepard v. United States,
544 U.S. 13, 25-26 (2005); United States v. Booker,
543 U.S. 220, 246-47 (2005); Blakely v. Washington,
542 U.S. 296, 309 (2004). At other times, the Court
has expressed concern about appellate courts’ finding
of substantive facts in order to uphold a jury verdict.
See, e.g., Sullivan, 508 U.S. at 280 (“The Sixth
Amendment requires more than _ appellate
speculation about a hypothetical jury's action,”);
United States v. Bagley, 473 U.S. 667, 707 n.7 (1985)
(harmless error analysis may not “substitute the
reviewing court's judgment of the facts .. . for that of
the jury”); Marks v. United States, 430 U.S. 188, 196
n.12 (1977) (appeals court’s factual judgment as to
element of offense “not an adequate substitute for
the decision in the first instance of a_ properly
instructed jury’).

This Court, in short, has repeatedly emphasized
that harmless constitutional errors are the
exception, not the rule. Under Chapman,
constitutional error is not harmless if there is a
“reasonable possibility” that it affected the verdict;
under Allen and Sullivan, courts cannot simply point

30

to substantial legitimate evidence in the record and
assert on that ground that constitutional errors are
harmless; and under Yates and Sandstrom, when one
among many justifications for a jury verdict is
defective, that is sufficient to overturn a conviction.
Generally, doubts are to be resolved in the
defendant’s favor and judicial factfinding on appeal
disfavored; this Court has been reluctant to assume
that the jury ignored the presumption and relied
only on lawful grounds, or that a significant volume
of proper evidence justifies an assumption that the
jury did not rely on the improper evidence.

2. The First Circuit’s Ex Post Facto Clause
Analysis Is Inconsistent With This
Court’s Approach to Error Review.

The analysis embraced by the First Circuit here,
and by the Fourth, Sixth, Ninth and Eleventh
Circuits, conflicts with these precedents.
Specifically, contrary to Sullivan, the focus in those
decisions on whether the post-enactment evidence
was sufficient to support the jury’s verdict inverts
the “affecting substantial rights” inquiry under
Olano. Rather than vacating convictions due to the
possibility that a violation occurred, those decisions
affirm if it was possible that the violation did not
occur. See, e.g., Pet. App. 62a (“considerable” post-
enactment evidence); Calabrese, 825 F.2d at 1346
(“substantial”); Cortez, 757 F.2d at 1207 (“enough”).
That might be appropriate in a sufficiency-of-the-
evidence analysis, but it is inappropriate for
considering constitutional error, even in the plain-
error setting. Nor, under this Court’s precedents, is
it proper in this setting for lower courts to weigh the
relative volume of pre-enactment and_ post-
enactment evidence and conclude that the jury must

31

have relied on the larger pile of documents. See Pet.
App. 62a (“relatively few” of the overt acts in the
indictment preceded October 12, 1984); id. (“(T]he
bulk of our sufficiency analysis details conduct
occurring after the enactment date.”); Todd, 735 F.2d
at 150 (“[mjost of the evidence” post-enactment);
compare Allen, 442 U.S. at 160 (that there is “ample
evidence in the record other than the presumption to
support a conviction” is irrelevant).

To determine whether a constitutional violation
is harmless (or “affects substantial rights” under
Olano), courts must examine the record to assess the
likely impact of the violation. See, e.g., Olden uv.
Kentucky, 488 U.S. 227, 232-33 (1988). Here,
determining whether the jury could have relied on
pre-enactment evidence required an analysis of what
that evidence was, how it related to other evidence in
the record and functioned within the prosecution's
case, and how it was treated at trial. The First
Circuit failed to undertake that analysis. It asserted
in cursory fashion that Gutierrez and Umpierre
“remained employed by the company” after the
enactment date and that “their culpable conduct .. .
continued uninterrupted after the sale of the
company. Pet. App. 63a. In other words, rather
than explain why there was no “reasonable
possibility” of exclusive reliance on pre-enactment
acts, the court simply restated the undisputed fact
that the conduct continued past the enactment date.
Id. Such “analysis” is insufficient to meet the
Chapman standard. It is significant as well that the
First Circuit never concluded beyond a reasonable
doubt that the jury did not rely exclusively on pre-
enactment evidence, as Chapman requires. 386 U.S.
at 24.

EE NN OL ae NN,

32

Nor did the First Circuit’s assertion that “the
government presented overwhelming evidence of
appellants’ conduct, the majority of which occurred
after October 12, 1984,” support a finding that the
error did not affect Petitioner’s substantial rights.
Pet. App. 62a. Even on its face, the decision did not
establish that there was “overwhelming” post-
enactment evidence. The court opined that all of the
conduct taken together was overwhelming, but it
found only that the majority of the evidence post-
dated the enactment date. Furthermore, the court
misapplied this Court’s “affecting substantial rights”
analysis, repeatedly suggesting that the jury would
have convicted the defendants even without the pre-
enactment evidence. That is not the relevant
inquiry. The Court held in Sullivan that the
question is “not whether, in a trial that occurred
without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict
actually rendered in this trial was_ surely
unattributable to the error.” 508 U.S. at 279.

The First Circuit’s approach to this issue,
especially its focus on the sufficiency of post-
enactment evidence, conflicts with many of this
Court’s precedents. Those conflicts warrant this
Court’s review.

D. THIS CONSTITUTIONAL QUESTION IS
IMPORTANT AND RECURRING, AND IS
APPROPRIATELY RESOLVED IN THIS
CASE.

The question of how to review general jury
verdicts resting on evidence that spanned the
enactment of a pertinent statute is one of paramount
importance. The issue implicates the first and most
fundamental aspect of Ex Post Facto Clause

33

prohibitions—the bar to prosecution for acts that
were not criminal when committed. Calder v. Bull, 3
U.S. 386, 391-92 (1798). The Framers viewed that
protection as essential. TId.; see also Carmell uv.
Texas, 529 U.S. 513, 521-25 (2000). The question
thus goes to the heart of the “substantial personal
rights” protected by the Clause. Dobbert v. Florida,
432 U.S. 282, 293 (1977).

The Court has not yet addressed the Ex Post
Facto Clause’s applicability to a law that is enacted
in the middle of a course of conduct. The question
arises often, however. The modern criminal code is
replete with offenses that can continue over a course
of years, including the various conspiracy and fraud
statutes, and it is not uncommon for the relevant law
to change over those extended periods. When juries
are not informed about the change (either because
the parties neglect to do so or because the changed
law related to a sentencing enhancement that was
not considered at the trial), the problem of
ambiguous verdicts arises.

This case is an appropriate vehicle for resolving
this important question. Most of the circuits have
now addressed this question, so the issue is ripe for
this Court’s review. The First Circuit was fully
aware of the split, discussed it at length, and
explained the basis for its holding. Substantial
amounts of pre-enactment evidence were presented
at trial, so there is no question that the verdict could
have violated the Ex Post Facto Clause—and if the
First Circuit's approach was improper, the result
must be the vacatur of Petitioner's convictions.
Defendants’ protections against Ex Post Facto
Clause violations should not depend on where the
prosecution takes place.

34

CONCLUSION

For the foregoing reasons, the petition for a writ
of certiorari should be granted.

Respectfully submitted,

Thomas C. Goldstein* Mark J. Rochon

Patricia A. Millett MILLER & CHEVALIER

Duncan N. Stevens CHARTERED

AKIN GUMP STRAUSS 655 15th St. NW
HAUER & FELD LLP Suite 900

1333 New Hampshire Ave. Washington, DC 20005
Washington, DC 20036 (202) 626-5800
(202) 887-4000

*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1612%3A1. Public record. Not legal advice.