Petition for Writ of Certiorari — Dominguez v. United States

() ‘Supreme Court, U.S.

\ FILED

001569 APR - 9 2008

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2000

EFRAIN DOMINGUEZ,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARCIA J. SILVERS

Counsel of Record for Petitioner

2601 South Bayshore Drive, Suite 601

Miami, Florida 33133

305/854-9666

sae par WAL, Apc igRinenScnbes a ive

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QUESTION PRESENTED

Whether the propriety of initial joinder under Rule 8 of the

Federal Rules of Criminal Procedure is determined on the

face of the indictment alone, as is indicated by this Court’s

decisions in Schaffer v. United States, 362 U.S. 511 (1960)

and United States v. Lane, 474 U.S. 438 (1986) and is the

procedure in the Fifth, Seventh, Eighth and Ninth Circuits,

or instead the government can rely- on allegations and

evidence beyond the indictment to support such joinder, as

is permitted by the First, Third and D.C. (and now the

Eleventh) Circuits?

TABLE OF CONTENTS

Page

QUESTION PRESENTED 6566 (RO A es i

TABLE GF CONTRI 5k kk ce a ee ii

TABLE GE RUF T seu kn ol 6h ae ee iil

CPPS BELOW ...5 er OE ee ee 2

FOI ok is cas ee ee 2

FEDERAL RULE OF CRIMINAL

PROCEDURE INVOLVED 2.0050 sii ce es 2

STATEMENT OF THE CARS on oe ia eee 3

REASON FOR GRANTING THE WRIT ................ 7

I Certiorari should be granted to answer the question

of whether the propriety of initial joinder under Rule

8 of the Federal Rules of Criminal Procedure is

determined on the face of the indictment alone, as is

indicated by this Court’s decisions in Schaffer v.

United States, 362 U.S. 511 (1960) and United

- States v. Lane, 474 U.S. 438 (1986) and is the

procedure in the Fifth, Seventh, Eighth and Ninth

Circuits, or instead the government can rely on

allegations and evidence beyond the indictment to

support such joinder, as is permitted by the First,

Third and D.C. (and now the Eleventh) Circuits. ..... 7

COCR ATTN ois A oe ee eee 13

li

TABLE OF AUTHORITIES

Page

Pacelli v. United States.

588 F.2d 360 (2d Cir. 1978) . oe

Schaffer v. United States,

352 U.S. $11 (1960) ..... | 7, 8,9, 10, 13

United States v. Faulkner.

17 F.3d 745 (5" Cir. 1994)... 5 i eee 1]

United States v. Friedman,

854 F.2d 535 (2d Cir. 1988).............. owiete,

United States v. Grey Bear,

853 F.2d 572 (8" Cir. 1988)(en banc) ...... 10.11.12

United States v. Halliman,

923 F.2d 873 (D.C. Cir. 1991)... -..... oo ix

U/nited States v. Lane,

474 U.S. 438 (1986) ........... ees | ee

United States v. Marzano,

160 F.3d 399 (7 Cir. 1998), cert. denied.

349 U.S. 1175 (1999) ......... iis aces ee

United States v. McGill,

964 F.2d 222 (3d Cir), cert. denied,

WE OID se ub oe oe Dd Se ewe cas 11

United States v. Rawley,

152 F.3d 831 (8" Cir. 1998)... 1]

United States v. Richards,

94 F.Supp.2d 304 (E.D.N.Y. 2000) ........... 11, 12

United States v. Spriggs,

102 F.3d 1245 (D.C. Cir.)(per curiam),

cert. denied, 522 U.S. 831 (1997) ............... 1]

United States v. Talavera,

668 F.2d 625 (1* Cir.), cert denied,

ek i rep rererrr erry Trey ier eo 1]

United States v. Terry

PEE re ee I ok ge erences 1]

Other Authorities

| ere eer rr rere Ty 4,7, 8,9, 10, 11, 12, 13

Ps PU Se ov oe cs Kh oes esaden eee eee 12

UI Oe as oc ee ce once pawn eens 4,9, 10

1V

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2000

No.

EFRAIN DOMINGUEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Petitioner, Efrain Dominguez, respectfully petitions for a writ

of certiorari to review the judgment and opinion of the United States

Court of Appeals for the Eleventh Circuit entered in this case on

September 13, 2000.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Eleventh Circuit entered in this case on September 13, 2000 is

reported st 22© F.2d 1235 and is reproduced in the Petitioner’s

Appendix hereto at App. | at 1. The Order of the Eleventh Circuit

Court of Appeals denying the Petitioner’s Petition for Rehearing and

Suggestion for Rehearing En Banc entered in this case on January 9,

2001 is not yet reported and is reproduced in the Petitioner’s

Appendix hereto at App. 2 at 1.

JURISDICTION

The Opinion of the Court of Appeals for the Eleventh Circuit

was entered on September 13, 2000. See App. | at 1. The Order of

the United States Court of Appeals for the Eleventh Circuit denying

the Petitioner’s Petition for Rehearing and Suggestion for Rehearing

En Banc was entered on January 9, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

FEDERAL RULE OF CRIMINAL PROCEDURE

INVOLVED

Rule 8 of the Federal Rules of Criminal Procedure provides:

(a) Joinder of Offenses. Two or

more offenses may be charged in the

same indictment or information in a

separate count for each offense if the

offenses charged, whether felonies or

misdemeanors or both, are of the

same or similar character or are

2

based on the same act or transaction

or on two or more acts or

transactions connected together or

constituting parts of a common

scheme or plan.

(b) Joinder of Defendants. Two

or more defendants may be charged

in the same indictment or information

if they are alleged to have

participated in the same act or

transaction or in the same series of

acts or transactions constituting an -

offense or offenses. Such defendants

may be charged in one or more

counts together or separately and all

of the defendants need not be

charged in each count.

TA ENT OF THE CASE

Petitioner Dominguez was charged by superseding

indictment with 28 counts of conspiracy to possess cocaine with

intent to distribute, in violation of 21 U.S.C. § 846; conspiracy to

money launder, in violation of 18 U.S.C. § 1956(h); money

laundering, in violatiorof 18 U.S.C. § 1956(a)(1)(A) and (B); use

of a telephone facility in commission of a felony, in violation of 21

U.S.C. § 843(b) and (d); and mortgage fraud, in violation of 18

U.S.C. § 1014.’ The superseding indictment broke down into two

' The indictment also sought forfeiture of any property constituting, or

derived from, any proceeds of Dominguez’s alleged violations of 21 U.S.C. §

846, 21 U.S.C. § 843 (6) and (d), 21 U.S.C § 1956(h), and 21 U.S.C. §

1956(a)(1). The government dismissed the forfeiture counts at the end of the

3

sets of charges: those relating to an alleged cocaine conspiracy

(Counts 1-24), and those alleging that Dominguez committed

mortgage fraud by submitting falsified tax returns in order to

influence two banks to refinance mortgages. (Counts 25-28).

There was nothing on the face of the superseding indictment

that tied these two sets of allegations together. The closest the

indictment came was a mention in the cocaine conspiracy count that

drug activity took place at a specific apartment building. However,

there was absolutely no indication in the mortgage fraud counts that

this particular building was the subject of any of the loans allegedly

obtained by fraud. There was nothing in the indictment to tie that

apartment building to the alleged mortgage fraud. Notably, one of

the alleged mortgage frauds occurred almost two years after the

alleged drug conspiracy had ended.

Dominguez filed a pre-trial motion to sever the mortgage

fraud charges under Rules 8(a) and 14 of the Federal Rules of

Criminal Procedure. In response, the government claimed these

offenses were all part of a common scheme or plan. The

government alleged, without evidentiary support, that the mortgage

fraud charges “arise out of and directly result from the defendant’s

narcotics trafficking activity.” The government also claimed,

without evidentiary support, that “the vast majority of the evidence

that will be admitted at trial to prove all of the mortgage fraud

counts will necessarily be admitted in the narcotics case to establish

defendant’s inexplicable wealth in light of his meager legitimate

trial and they are not at issue in this appeal. -

4

income.” The district court denied the motion to sever. Defense

counsel renewed the motion to sever repeatedly during trial.

7 This case was tried before a jury in June 1998. The evidence

of the two categories of charges did not overlap at trial. Evidence

of the drug-related charges consisted primarily of intercepted

conversations and testimony from alleged co-conspirators who were

cooperating with the government. No drugs were found in

Dominguez’s possession or introduced into evidence at trial. In

contrast, the evidence of mortgage fraud involved documents and

testimony from loan officers and tax preparers. This was a

completely different set of evidence and a completely different cast

of characters from those involved in the alleged drug conspiracy.

The evidence at trial did not show a link between the alleged

drug conspiracy and the alleged mortgage fraud or that Dominguez’s

unexplained wealth from the alleged drug conspiracy provided the

motive for allegedly falsifying the tax returns to obtain loans. There

was no evidence that Dominguez was living beyond his means.

Indeed, the whole idea behind the mortgage fraud counts was that

Dominguez needed money to avoid losing the properties which he

was seeking to refinance--the very opposite of unexplained wealth.

The evidence showed that Dominguez used false tax returns for the

mortgage applications simply because he never filed returns for those

years. This was not a case where the narcotics proceeds were the

same funds the government claimed were not disclosed on fraudulent

tax returns. The tax returns had nothing to do with the drug

conspiracy.

The jury returned a verdict of guilty on all counts except the

money laundering counts. Over defense objection, the district court

accepted a partial verdict. The government then moved to dismiss

the money laundering counts. Thereafter, the district court

sentenced Dominguez to 188 months’ imprisonment and five years’

supervised release.

On appeal, the United States Court of Appeals for the

Eleventh Circuit affirmed Petitioner Dominguez’s conviction on

September 13, 2000, reported at 226 F.3d 1235, holding that the

drug-related and mortgage fraud-related charges were properly

joined under Rule 8(a) of the Federal Rules of Criminal Procedure.

The court recognized that “the indictment in this case does not

explicitly allege any connection between the two groups of

charges....” 226 F.3d 1235, 1239. However, the court held that

whether joinder is proper under Rule 8 is not to be determined on

the face of the indictment alone. The court looked beyond the

indictment to the trial evidence and concluded that the trial evidence

supported the government’s position that concealing income from

the alleged drug activity was the motive for the mortgage fraud and,

therefore, joinder was proper under Rule 8.

Petitioner Dominguez petitioned the court for rehearing and

suggested a rehearing en banc. That petition was denied by order

dated January 9, 2001.

REASON FOR GRANTING THE WRIT

I.

Certiorari should be granted to

answer the question of whether the

propriety of initial joinder under Rule

8 of the Federal Rules of Criminal

Procedure is determined on the face

of the indictment alone, as is

indicated by this Court’s decisions in

Schaffer v. United States, 362 US.

511 (1960) and United States y.

Lane, 474 U.S. 438 (1986) and is

the procedure in the Fifth, Seventh,

Eighth ard Ninth Circuits, or instead

the government can rely on

allegations and evidence beyond the

indictment to support such joinder, as

is permitted by the First, Third and

D.C. (and now the Eleventh)

Circuits.

The Eleventh Circuit’s Opinion in this case adopted a new

interpretation of Fed.R.Crim.P. 8 that conflicts with this Court’s

decisions in Schaffer v. United States, 362 U.S. 511 (1960) and

United States v. Lane, 474 U.S. 438 (1986), the. Fifth, Seventh,

Eighth and Ninth Circuits, and the text and purpose of Rule 8 itself

According to the Eleventh Circuit’s interpretation of Fed.R.Crim.P.

8, the propriety of initial joinder under Fed.R.CrimP. 8 is not

7

determined on the face of the indictment alone. More specifically,

the Eleventh Circuit held that the drug-related and mortgage fraud-

related charges in the indictment herein were properly joined under

Fed.R.Crim.P. 8(a). The Eleventh Circuit recognized that “the

indictment in this case does not explicitly allege any connection

between the two groups of charges....”. 226 F.3d 1235, 1239.

However, the court held that, if the face of an indictment does not

show that joiner is proper under Fed.R.Crim.P. 8, a district court

considering a pre-trial Rule 8 severance motion should nevertheless

look beyond the indictment to evidence proffered by the government

before trial which the government claims is the basis for joinder and

a Court of Appeals considering a claim of misjoinder under Rule 8

should look beyond the indictment to the evidence adduced during

the trial. 226 F.3d at 1241. The Eleventh Circuit additionally held

that the only time that a court should look to the face of the

indictment alone when considering the propriety of joinder is when

the face of the indictment itself shows that joinder is proper but the

evidence adduced during trial shows that joinder was improper. /d.

The practical effect of this opinion is that while a district

court can deny a Rule 8 motion pretrial, it cannot grant a Rule 8

motion pretrial unless the government confesses error. Essentially,

the Eleventh Circuit’s opinion reads Rule 8 out of the Federal Rules

of Criminal Procedure.

Furthermore, the Eleventh Circuit’s opinion conflicts with

this Court’s decisions in Schaffer v. United States, 352 U.S. 511

(1960) and United States v. Lane, 474 U.S. 438 (1986) in which this

Court acknowledged that Rule 8 is a pleading rule, to be applied

before trial solely by examining the allegations in the indictment. In

Lane, 474 U.S. at 447, this Court explained and discussed its earlier

decision in Schaffer, supra, as follows:

In Schaffer v. United States, 362

U.S. 511, 80 S. Ct. 945, 4 L.Ed 2d

921 (1960), three different groups of

defendants were charged with

participating in separate criminal acts

with one other group of three

defendants.. The indictment also

charged all the defendants with one

overall count of conspiracy, making

joinder under Rule 8 proper. At the

close of the Government’s case,

however, the District Court

concluded there was insufficient

evidence of conspiracy and dismissed

that count. The court then denied a

motion for severance after

concluding that defendants failed to

show prejudice from the joint trial;

the Court of Appeals affirmed. This

Court recognized that “the charge

which originally justified joinder

turn[ed] out to lack the support of

sufficient evidence.” /Jd., at 516, 80

S. Ct. at 948. Essentially, at that

point in the trial, there was a clear

error of misjoinder under Rule 8

standards. Nevertheless, the

Schaffer Court held that once the

Rule 8 requirements were met by

the allegations in the indictment,

severance thereafter is controlled

entirely by Federal Rules of Criminal

a

Procedure 14, which requires a

showing of prejudice. /d., at 515-

516, 80 S. Ct. at 947-948. (emphasis

added).

Thus, “Schaffer holds that, [under Rule 8], the validity of the joinder

is to be determined solely by the allegations in the indictment.” See

United States v. Grey Bear, 863 F.2d 572, 576 (8" Cir. 1988)(en

banc). If the allegations in the indictment demonstrate that joinder

is proper, only then is after-the-fact evidence reviewed to determine

whether or not joinder is nonetheless prejudicial under

Fed.R.Crim.P. 14. Thus, under Schaffer, supra, facts beyond those

set out in the indictment are reviewed not to determine misjoinder

but only to determine prejudice.

Furthermore, in United States v. Lane, 474 U.S. 438 (1986),

this Court reaffirmed that Rule 8 addresses the propriety of initial

joinder as set forth in the indictment. See id. at 446-49. This Court

then addressed the proper standards for post-trial review of

misjoinder under Rule 8. The Court held that reversal for misjoinder

under Rule 8 is required where “the misjoinder results in actual

prejudice because it ‘had substantial injurious effect or influence in

determining the jury’s verdict.’” Jd. at 449 (citation omitted).

Again, this Court looked at evidence beyond the indictment,

including the evidence at trial, only to determine if the prejudice

from Rule 8 misjoinder required vacating the convictions and not to

determine the propriety of joinder under Rule 8.

Moreover, since there is a conflict among the circuits as to

whether or not the propriety of joinder under Fed.R.Crim.P. 8 is

determined solely by the allegations in the indictment, this issue is

10

PE ere em |

ripe for review by this Court. In the Fifth, Seventh, Eighth and

Ninth Circuit Courts of Appeals, the propriety of joinder under Rule

8 must appear on the face of the indictment. United States vy.

Faulkner, 17 F.3d 745, 758 (5" Cir. 1994); United States vy.

Marzano, 160 F.3d 399, 401 (7 Cir. 1998), cert. denied, 525 U.S.

1171 (1999); United States v. Rawley, 152 F.3d 83 1, 848 (8 Cir.

1998); United States v. Grey Bear, 853 F.2d 572, 573-577 (8" Cir.

1988)(en banc); United States v. Terry, 911 F.2d 272, 276 (9* Cir.

1990). In the First, Third and D.C. Circuits, and now the Eleventh

Circuit, a court can determine the propriety of joinder under Rule 8

by looking beyond the indictment to the government’s

representations and evidence. United States v. Talavera, 668 F.2d

625, 629 (1" Cir.), cert denied, 456 U.S. 978 (1982); United States

v. McGill, 964 F.2d 222. 240-4] (3d Cir), cert. denied. 506 U.S.

1023 (1992): United States v. Spriggs, 102 F.3d 1245, 1255 (D.C.

Cir.)(per curiam), cert. denied, 522 U.S. 83] (1997). The law

concerning this issue in the Second Circuit is unsettled. Compare

United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988)(“In

evaluating the defendant’s claims of misjoinder under Rule 8(b) ...

our task is limited simply to determining whether the indictment

properly alleged their participation in a RICO conspiracy.”), with

Pacelli v. United States, 588 F.2d 360, 367 n. 20 (2d Cir.

1978)(“necessary linkage” between coconspirators, while possibly

absent from the face of the indictment, could be “established by the

evidence presented at trial”). The other circuits do not appear to

have addressed the issue. Some courts have expressly

acknowledged that there is a conflict in the circuits as to whether or

not the propriety of joinder under Rule 8 is determined solely by the

allegations in the indictment. See United States y. Halliman, 923

F.2d 873, 883 n. 7 (D.C. Cir. 1991); United States v. Richards, 94

1]

F.Supp.2d 304, 308-09 (E.D.N.Y. 2000). Petitioner contends that,

the Fifth, Seventh, Eighth and Ninth Circuit Courts of Appeals have

adopted the better reasoned view.

In addition, it is noteworthy that Fed.R.Crim.P. 8 is in the

section of the Rules of Criminal Procedure entitled “Indictment and

Information.” Rule 8(a) refers to permitting two or more offenses

to be “charged in the same indictment ... if the offenses charged ...

are of the same or similar character or are based on the same act or

transaction....” Rule 8(b) refers to permitting defendants to “be

charged in the same indictment ... if they are alleged to have

participated in the same act or transaction....” (Emphasis added).

Rule 8 itself thus refers solely to the indictment’s allegations and

charges as the basis for determining the propriety of joinder. Rule

8, on its face, is plainly about pleading rather than proof. See e.g.

Grey Bear, supra, 863 F.2d at 576.

It is also important to note that a severance motion must be

raised pretrial. Fed.R.Crim.P. 12(b). District courts faced with the

Eleventh Circuit’s opinion herein will not know how to handle Rule

8 motions. Under the Eleventh Circuit’s new interpretation, the

government’s proffered explanation, without any evidence to

support it, is sufficient to deny severance. Furthermore, because the

Eleventh Circuit opinion herein makes the evidence presented at trial

relevant to the determination of Rule 8 joinder, a district court

considering a pre-trial severance motion based upon Rule 8 must

wait to see what evidence is presented at trial. Thus, the practical

effect of the Eleventh Circuit’s opinion is that, while a district court

can deny a Rule 8 motion pretrial, it cannot grant a Rule 8 motion

pretrial unless the government confesses error.

12

aT. Sree nr

In the event that this Court grants this petition and holds that

the propriety of joinder under Fed.R.Crim.P. 8 must appear on the

face of the indictment, the Petitioner contends that the trial court

erred in denying his motion to sever the drug-related counts from the

mortgage fraud-related counts because, as previously explained,

there is simply nothing in the indictment to tie the drug-related

counts to the mortgage fraud-related counts, or vice versa.

CONCLUSION

Petitioner Efrain Dominguez respectfully requests that this

Court grant his Petition for Writ of Certiorari for all of the foregoing

reasons, including that the Eleventh Circuit’s opinion herein conflicts

with this Court’s decisions in Schaffer v. United States, 362 U.S.

511 (1960) and United States v. Lane, 474 U.S. 438 (1986), the

Fifth, Seventh, Eighth and Ninth Circuits and the text and purpose

of Fed.R.Crim.P. 8 itself.

13