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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1039

## Text

() ‘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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1067%3A1. Public record. Not legal advice.