Petition for Writ of Certiorari — Boswell v. United States

| Supreme Court, U.s,

UF FILED

011536 apr 15 2002

No. OFFICE OF THE CLERK

In the

Supreme Court of the United States

JAMES G. BOSWELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A Writ oF CERTIORARI TO

THE Unrrep States Court oF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Mary Catherine Bonner, Esq.

Counsel of Record

“207 S.W. 12th Court

Ft. Lauderdale, FL 33315

(954) 523-6225

Attorney for Petitioner

Curmey & TaYLor ¢ (202) 393-4141 6 wrres/

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QUESTION PRESENTED

I. The law is clear: all federal criminal prosecutions must

proceed by valid Grand Jury Indictment which places the

defendant on notice of the elements of the crime to which

he must answer. Any fact that increases the penalty for a

crime beyond the prescribed statutory maximum-in this case

quantity of drugs— is an element. All elements also must be

submitted to a jury, and proved beyond a reasonable doubt.

The trial court refused a request that the prosecutors disclose

drug quantity, yet Mr. Boswell’s life sentence was based on a

quantity of drugs twenty-four times that for which defendant

could have been reasonably on notice. These omissions

seriously affected the fairness, integrity, or public reputation

of the judicial process.

APPENDIX

TABLE OF AUTHORITIES

CASES

APPRENDI V. NEW JERSEY. 530 U.S. 466 (2000) ............++.

ARIZONA V. FULMINANTE, 499 U.S. 279 (1991) .........ccecsesseeseeses 12

BEEM V. MCKUNE, 278 F.3D 1108 (10TH Cir. 2002).............. 9, 10

IN RE WINSHIP, 397 U.S. 358, 364 (1970).........ccccccceeecereeeeneeenenees 9

JONES V. UNITED STATES, 526 U.S. 227 (1999)......-..++++. 12, 13, 14

RUSSELL V. UNITED STATES, 369 U.S. 749 (1962).........ccccccsesserees 8

STIRONE V. UNITED STATES, 361 U.S. 212 (1960)..........cccescesesees 8

UNITED STATES V. BENEHALEY, 281 F.3D 423 (4TH CIR.

TRE EET RES Sere 12

UNITED STATES V. COTTON, 255 F. 3D 150 (4TH CiR 2001)......... 8

UNITED STATES V. DOGGETT, 230 F.3D 160 (5TH Cl. 2000),

CERT DENIED, 531 U.S. 1177 (2001) .........cccsccsseseesenseeeeseenenees 5

UNITED STATES V. FIELDS, 242 F.3D 393 (D.C. CIR.)

CLARIFIED ON REH’G 251 F. 3D 1041 (D.C. CircurT 2001)...... 5

UNITED STATES V. GORE, 154 F.3D 34 (2ND CIR. 1998) ............ 14

UNITED STATES V. HISHAW, 235 F. 3D 565 (10TH CiR. 2000),

CERT DENIED 150 L.ED.2D 241, 121 S. CT. 2254 (2001) .......... 5

UNITED STATES V. OLANO, 507 U.S. 725 (1993) ...........0+0++: 14, 15

UNITED STATES V. PROMISE, 255 F.3D 150 (4™ Cir. 2001)(EN

| SiS LS RIS RE eee 5, 8, 10, 11, 12

UNITED STATES V. ROGERS, 228 F. 3p 1318 (11TH CIR 2000)... 5

UNITED STATES V. SANCHEZ, 269 F.3D 1250 (11TH CR.

ag NT 5

UNITED STATES V. STRAYHORN, 250 F.3D 462 (6TH CIR.

DD icersininnistsenlaisieiinchisihianieldaaiiicisc Be 5

UNITED STATES V. THOMAS, 274 F.3D 655 (2ND CIR.

BODE ON AI) a aacacesecnncncanscexsecssscseneeressenesssseeres......... 14, 15

STATUTES

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21 U.S.C. § B41(D)(1)(A) .eseescsssssssssssssssssssesssttesteeeeeeeeccccc.. 14, 15

21 U.S.C. § 841(D)(1)(B) ..sesssccsssssssssseeesesessesssttsstseeseseeeeseecesc 14

21 U.S.C. § BAU(D)(1)(C) .esesssseccsssssessessssssstssssestssseeseeeeeeccccc 12

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CONSTITUTIONAL PROVISIONS

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IN THE

SUPREME COURT OF THE UNITED STATES

JAMES G. BOSWELL

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The petitioner respectfully prays that a writ of

certiorari issue to the Court of Appeals for the Eleventh

Circuit filed November 30, 2001. An application for extension

of time in which to file the instant Petition was granted on

February 19, 2002. This Petition is to be filed no later than

April 15, 2002.

OPINION BELOW

The per curiam unpublished Opinion affirming the

conviction is attached as Appendix la and 2a. The Judgment

and Commitment Order is attached as Appendix 4a et seq.

JURISDICTION

The Order affirming the conviction and sentence was

filed on November 30, 2001. See Appendix 3a. This Court's

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

The United States Court of Appeals for the Eleventh

Circuit had jurisdiction pursuant to 28 U.S.C. Section 129]

and jurisdiction to consider errors in the application of

Guidelines pursuant to Title 18 U.S.C. Section 3742.

The United States District Court for the Northern

District of Florida had jurisdiction pursuant to Title 2] United

States Code Sections 841 and 846; Title 18 United States Code

Sections 924(c) and 2; and Title 18 United States Code

Section 853.

CONSTITUTIONAL PROVISIONS INVOLVED

The question presented involves the Fifth Amendment

to the United States Constitution, which provides, in relevant

part that:

No person shall be held to answer for a

Capital, or otherwise infamous crime, unless

on presentment of indictment of a Grand Jury

-. Nor be deprived of life, liberty, or property

without due process of law...

The question presented involves the Sixth

Amendment to the United States Constitution, which

provides, in relevant part that:

In all criminal prosecutions the accused shall

: . . be informed of the nature and cause of the

accusation . . . and to have the Assistance of

Counsel for his defense.

FEDERAL RULES OF CRIMINAL PROCEDURE INVOLVED

Rule 23. Trial by Jury or by the Court

(a) Trial by Jury. Cases required to be tried by jury

Shall be so tried unless the defendant waives a jury

trial in writing with the approval of the court and the

consent of the government.

3

Rule 52(b) Harmless Error and Plain Error

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed although they were not

brought to the attention of the court.

STATEMENT OF THE CASE

A. Proceedings Below

The United States Court of Appeals for the Eleventh

Circuit, on November 30, 2001, entered its Judgment

affirming, per curiam, the judgment of the United States

District Court for the Northern District of Florida. Appendix

3a.

B. Statement of Relevant Facts

Mr. Boswell was charged in a “reverse sting” where

the Government was “selling” approximately 50 kilograms of

cocaine.

The trial court denied Mr. Boswell’s request that the

Government be required to provide the quantity of drugs at

issue, stating that an Indictment is meant to inform the

defendant of the charges and does so by listing the elements

of the offense. Mr. Boswell was left to “guess” at the amount

of drugs for which he could be held accountable during his

trial preparation.

Only imprecise estimates of drugs bought or sold

during a conspiratorial period of ten years’ time, were

presented at trial.

By instruction, the jury was excluded from the

process of determining whether these estimates were

established beyond a reasonable doubt, yet heard the

Government stress the “element” of quantity and how such

large amounts must of necessity be for the purpose of

distribution in its closing argument.

4

After conviction the PreSentence Report conceded

that there existed an “unknown number of drug transactions”

well as that the evidence of quantity was insufficient; that the

Mr. Boswell was sentenced to Life Imprisonment

(Appendix 4a et Seq) and timely appealed to the United States

Court of Appeals for the Eleventh Circuit, urging that both

the trial and the Sentencing violated the principles enunciated

in Apprendi v. New Jersey. 530 U.S. 466 (2000). The Court

heard oral argument yet per curiam affirmed the conviction

and the sentence.

Additional facts relevant to the issue before this Court

are set out in the section of this presentation entitled

“Reasons for Granting the Writ.”

5

REASONS FOR GRANTING THE PETITION

I. NO CONSTITUTIONALLY VALID CONVICTION

CAN BE OBTAINED NOR SENTENCE IMPOSED WHEN

THE INDICTMENT FAILS TO ALLEGE THE QUANTITY OF

DRUGS FOR WHICH IT CALLS THE DEFENDANT TO

ANSWER; OR FAILS TO ESTABLISH THAT QUANTITY

BEFORE THE PETIT JURY BEYOND A REASONABLE

DOUBT.

INTRODUCTION

There was no substantive opinion entered by the

Court of Appeals, hence the reasoning and logic behind their

affirmance can only be surmised.

The most logical conclusion is that that court

recognized that there was error but refused to find that the

error affected the integrity or reputation of the judicial

process. (See Circuit analysis of such issues in, for instance,

United States v. Sanchez, 269 F.3d 1250 (11" Cir. 2001)(en

banc).

No matter the explanations given, the facts here speak

loudly: the Petitioner is serving a Life Sentence arrived at

only by virtue of violation of the Constitution. He implored

the Court to require the Government to tell him the quantity

of drugs involved in the accusation and what quantity of

those drugs it attributed to him. The Court’s reply clearly

held that quantity was not an element of the crime. The law

is now clear that drug quantity is an element of a Title 21

offense.’

'l. See, for instance, United States v. Thomas, 274 F.3d 655 (2™ Cir.

2001)(en banc), and the cases cited therein, including United States v.

Promise, 255 F.3d 150 (4" Cir. 2001)(en banc); United States v Strayhorn,

250 F.3d 462 (6” Cir. 2001); United States v. Fields, 242 F.3d 393 (D.C. Cir.)

Clarified on reh’g 251 F. 3d 1041 (D.C. Circuit 2001); United States v.

Hishaw, 235 F. 3d 565 (10” Cir. 2000), cert denied 150 LEd.2d 241; 121 S.

Ct. 2254 (2001); United States v. Doggett, 230 F.3d 160 (5" Cir. 2000), cert

denied, 531 U.S. 1177 (2001); United States v. Rogers, 228 F. 3d 1318 (11"

Cir 2000), abogated on other grounds by United States v. Sanchez, supra,

6

When Mr. Boswell first learned of the quantity which

the PreSentence Investigation Report was attributing to him,

he objected, asked the Court to disregard the Guidelines and

urged that a Life Sentence was cruel and unusual punishment

considering the insufficient nature of the evidence presented

at trial. In other words he asserted that he could not be

sentenced for a quantity of drugs for which he had no notice

and which was not established beyond a reasonable doubt

before the jury. The fact that he did not utilize a particular

formula to assert these objections does not speak to the fact

that the parties and the trial court were well aware of the

substance of the objections.

He could have done no more. If he were indicted

today, quantity would be included in the Indictment because

it ts an element of the crime. Yet, because the Government

failed in its duty to include an element in the Indictment; and

because the trial court traveled on an incorrect interpretation

of the law, Mr. Boswell is serving a sentence of natural life.

Mr. Boswell was convicted of a crime for which he

was not charged and was sentenced on no more than a guess

at estimated drug quantity. This is, at a minimum, plain error

which seriously affected the fairness, integrity or public

reputation of the judicial process.

A. Omission of an essential element of the crime

Apprendi, supra forbids the trial court from usurping

the role of a petit or a grand jury. The Constitution defines

those roles: the grand jury must find that the defendant

“probably” committed the crime only after measuring his

conduct against the statutory elements of the crime; and no

citizen may be convicted of a crime unless a jury has found

adversely to him on every element of the crime for which he

is accused. All Circuits which have addressed the issue have

found that, under Apprendi, quantity of a controlled

substance is an element of federal drug offenses.

and United States v. Nordby, 225 F. 3d 1053 (9” Cir. 2000).

a Lie REM ae,

7

1. Before the Grand Jury

The Government failed in its duty to advise the Grand

Jury of all elements of the crimes upon which it sought

indictment. This is not one of the “technicalities” so often

referred to by those unschooled in the law. It speaks to the

very safeguard of having a citizen panel stand between the

accuser and the accused to ascertain whether the charges

should be brought.

The Grand Jury process also serves another function

which cannot be overemphasized; that of providing notice of

the crime for which the defendant is called to answer. See

discussion infra.

Here the individuals arrested were, according to the

Government’s evidence, preparing to purchase fifty kilograms

of cocaine from the Government. Common sense would

dictate that the indictment returned would speak to these

fifty kilograms.

Mr. Boswell, however did not rest on this assumption,

but rather asked the trial court to require the Government to

disgorge its well-kept secret: what quantities of contraband

were they attributing to Mr. Boswell. This simple and logical

request was denied and Mr. Boswell was required to prepare

for trial without knowing that the Government would throw

its net far and wide and would not be satisfied even when the

quantity of 1215 kilograms was reached. The trial court

announced the law under which it was proceeding: An

indictment is merely meant to inform the defendant of the

charges . . . [and] satisfies the above standard by listing the

elements of the offense.

Now we are presented with the uncontroverted

proposition that quantity is an element of the offense yet the

conviction and sentence remain.

Any person charged with a crime by the United States

has an absolute right to be placed on notice of the crime and

8

its established elements in order to defend himself.

Stirone v. United States, 361 U.S. 212 (1960) is

instructive. Stirone granted relief when proof at trial on an

essential element departed from the manner of the allegation.

Here we have a situation where an element of the crime is

knowingly kept from the grand and petit juries and then

“found” by the trial court. Furthermore, Russell v. United

States, 369 U.S. 749 (1962) teaches that we cannot assume

that the grand jury would have returned an indictment

charging the threshold drug quantity. “To allow the court to

make a subsequent guess as to what was in the minds of the

grand jury at the time they returned the indictment would

deprive the defendant of a basic protection which the

guaranty of the intervention of a grand jury was designed to

secure.” Promise, supra, citing to Russell at 770.

Before this Court currently is United States v. Cotton,

No. 01-687 which presents the issue of omission from an

Indictment of quantity of drugs. The Government concedes

as it must that after Apprendi its Indictments must charge

threshold drug quantities and must establish those quantities

beyond a reasonable doubt to a trial jury. See, cases gathered

on this proposition in the original appellate decision to be

found at United States v. Cotton, 255 F. 3d 150 (4” Cir 2001).

2. Before the trial jury.

It is clear that the Constitution as well as Rule 23 of

the Federal Rules of Criminal Procedure require that all

federal crimes be tried by Indictment unless the defendant

waives such right; the trial court approves; and the

Government consents.

Here, Mr. Boswell was denied a jury trial on the

element of quantity of the controlled substances, hence his

conviction cannot stand for this reason alone.

It is clear that the Due Process Clause protects “the

accused against conviction except upon proof beyond a

9

reasonable doubt of every fact necessary to constitute the

crime... In re Winship, 397 U.S. 358, 364 (1970).

Compliance with Winship protects a defendant's

interest in being free from unjustified loss of liberty; from the

stigmatization resulting from conviction; and it engenders

community confidence in the criminal law by giving

“concrete substance” to the presumption of innocence. Id.,

at 363-364.

It Constitutionally follows that the Government at trial

must establish each of the elements beyond a reasonable

doubt, and then, and only then, can a conviction or sentence

be based upon these findings.

Clearly the failure to submit an element to the jury

could be easily “overlooked” if the trial court had the ability

to substitute its own judgment for that of the jury. This

substitution of the court’s judgment for that of the grand and

petit juries is exactly what is proposed when courts look to

standards such as “no rational jury could fail to find” certain

quantities.

The Tenth Circuit recently held, in Beem v. McKune,

278 F.3d 1108 (10" Cir. 2002) that, despite the ease with

which the particular trial court could “fill in” the missing

element from “common knowledge,” taking judicial notice of

any element of a crime was prohibited.

The Tenth Circuit framed the issue as “whether [the

defendants] may be sentenced and imprisoned for crimes for

which they were not charged, tried or convicted.” Id., at 1109.

The two defendants in these separate cases were tried, inter

alia, for indecent liberties with a child and aggravated assault

as to Beem and rape as to Henson.

After success on appeal, the Kansas courts remanded

both Beem’s and Henson’s cases for resentencing on a

different crime—aggravated incest. The State argued that the

sentences were proper because the primary elements of due

Defendants did not proffer a defense regarding the missing

elements and their juries were not instructed as to all

elements . .. The only conceivable way we can permit [the

sentences] to stand is to take judicial notice of the essential

element of kinship—an impermissible endeavor.” Id., at 1112.

The instant case is analogous. Mr. Bosweil was tried

on a charge which the trial court ruled was complete. Now it

is apparent that an element was missing-that was not

submitted to the jury and decided by them. The court is not

now free to substitute its judgment for that of the jury.

It is respectfully Suggested that Mr. Boswell should

not be sentenced on this faulty Indictment. However, if

sentencing is appropriate, it must be to a period calculated on

what the jury actually found: a quantity of cocaine.

3. Failure to clearly delineate the elements of an offense-

notice—creates a substantial disincentive for the defendant

to explore the nuances of this “irrelevant” evidence.

Why is notice such an important component of

preparation of a defense? We may begin with the

contest waged on the amount of drugs. See, for instance,

Promise, supra.

Most importantly, at sentencing Promise did not contest the

quantity of drugs the presentence report recommended be

attributed to him, nor did he dispute the finding by the

district court ...

11

Finally, and critically, the record clearly demonstrates that

Promise’s decision not to dispute the finding of the specific

threshold drug quantity . . . was not the result of lack of

notice . . . . Prior to trial, the Government filed an information

contending that Promise was accountable for more than 50

kilograms ....

Promise, supra, at 164.

The defendant has the right and defense counsel has the

duty to contest the Government's case. One of the finest

mechanisms for ascertaining the truth of a witness’ testimony

is cross examination.

Here the defense was given a disincentive to cross

examine on quantity of drugs in spite of the fact that in many

cases the memories of the witnesses about these quantities

were so outlandish as to defy believability. However, defense

counsel was offered no meaningful choice. His request for the

particular amount of drugs was denied and the trial court

made it clear that quantity was its purview not something

with which the jury should or could be concerned. In other

words quantity was declared irrelevant.

If quantity is an element, it must be tested for truth just

as are all other relevant factual assertions. If quantity is

something for only the judge’s consideration, utilizing a

standard other than reasonable doubt, then testing the factual

assertions of these Government witnesses is an irrelevant

exercise in futility-one which can only harm the defendant.

It is unquestioned that cross examination of

Government informant witnesses about quantity was a losing

proposition for defense attorneys because of the state of the

law. It was irresponsible-perhaps malpractice— for a trial

attorney to “haggle” with an informant, for instance, about

whether there were two or three kilograms of cocaine in the

box. By doing so he or she would be “admitting” that there

were at least two kilograms thus “admitting” to the crime and

leaving the certainty of harsh punishment to the Guidelines.

12

B. Omission of an essential element of the crime divests the

sentencing court of jurisdiction to impose a sentence except

under the lowest non-designated amount or in the

alternative creates structural error.

1. Absence of jurisdiction

Although Courts of Appeal who have considered this

issue have taken the position that failure to submit quantity

to a grand or petit jury is error, they have not found it to be

structural error. They rather analyze the concepts of

preserved and plain error.

However, Mr. Boswell would submit that the failure to

include quantity in the Superceding Indictment-even after

Jones v. United States, 526 U.S. 227 (1999), can only be

explained by a realization that the Government knew that it

could not prove quantity beyond a reasonable doubt but

rather knew that it would stand a better chance of garnering

a life sentence under the lower standard utilized by a

sentencing judge.

We are guided by this Court’s decision in Arizona v.

Fulminante, 499 U.S. 279 (1991). It teaches that if the error

affects the very framework in which a trial proceeds, reversal

is automatic.

In a recent discussion in the dissent to United States

v. Benehaley, 281 F.3d 423 (4" Cir. 2002), Judge Luttig

reasoned that the reasoning of Promise, supra, “leads

inexorably to the conclusion that the actual convictions

under section 841, and not merely the sentences imposed .. .

are invalid, whenever merely ‘a quantity’ of controlled

substance is charged in the underlying indictment. Jd., at 426

Judge Luttig continues that utilizing Title 21 U.S.C.

Section 841(b)(1)(C) as a catch all is incorrect. “...it follows

that an indictment that alleges only ‘a quantity’ of the drug in

question does not charge a section 841 offense at all.” Jd.

13

C. Even if structural error is not found, the instant error

was preserved and should be analyzed thusly.

Since this Court’s decisions in Jones and Apprendi

at least 2354 decisions have been rendered by the various

federal court of the land in some way referencing this

watershed change in the law.

There remains no question that drug quantity is an

element of a drug trafficking crime. If quantity were removed

from the matrix of Mr. Boswell’s sentencing, he could receive

no greater than a twenty year guideline sentence. This

Apprendi error increases his guideline sentence by

increasing this twenty year term to a term of natural death.

1. Quantity objection was preserved.

It is clear that the defense did all that it could in

preserving the quantity error: it asked that the Government

be required to quantify the amounts of cocaine and advise

each defendant as to the quantity which he would be held

liable; it objected to the PreSentence Investigation Report’s

haphazard conclusion as to quantity; and further argued that

the Eighth Amendment was violated when a person was

sentenced based on inaccurate drug quantity. The

Government, even after Jones, argued at sentencing that

approximation of drug quantities was sufficient for —

sentencing purposes.

2 Plain error is patent and seriously affects the

fairness, integrity, or public reputation of this judicial

proceeding.

In the event that the defense objections as to the

missing element are found to be insufficient, plain error

exists. i

A three-plus step analysis is necessary to determine

plain error. “...there must be (1) error, (2) that is plain, and

(3) that affects substantial rights.” Once plain error is

established, as it clearly is in Mr. Boswell’s case, a court will ©

14

then exercise discretion to notice such omission if “(4) the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725 (1993). Fed. R. Crim. Pro. 52(b).

discretion, factually supported by trial testimony. He

received a sentence at the bottom of his guidelines of 292-365

months.

Thomas preserved his objection to quantity by, inter

alia, contesting the quantity of drugs as one which should

have been submitted to the jury under Jones v. United States,

526 U.S. 227 (1999), although his position was rejected.

Boswell with equal force, objected to the calculation of

quantity based on no more than vague trial testimony and

argued that a life sentence based on this conviction was a

violation of the Eighth Amendment.

The Thomas court quickly disposed of the first three

Olano categories of error. Because the sentence was based

on the factual findings by the trial court of quantity of drugs,

and because that finding placed the defendant outside the

The Thomas court stated that it could find error

which affected Thomas’ substantial rights in two ways: either

15

the defendant was sentenced to a greater penalty than

authorized by Congress or the defendant was improperly

convicted. After discussing both potential errors, the Court

found that the third Olano prong was met under either

theory-the error adversely affected the defendant's

substantial rights.

In Mr. Boswell's trial, although quantity of drugs was

a primary theme of the trial, no amounts of drugs were

alleged nor was quantity submitted to the jury, nor was there

sufficient testimony to establish beyond a reasonable doubt

any judicial “estimates.” The sentence received by Mr.

Boswell reflects a quantity of drugs twenty-four times that at

issue in the “negotiations” between the Government and co-

defendant Merold. The prejudice is patent.

After the first three prongs of plain error are met, as

they clearly are here and were in Thomas, the Court must

decide whether it will notice the plain error. Olano teaches

that such error should be noticed only where the error

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Thomas at 671 (internal citations

omitted).

Thomas, like Boswell, did not stipulate to quantity of

drugs thereby removing him from the line of cases where the

fact improperly found is “essentially uncontroverted.” Jd.

Both Boswell and Thomas squarely placed the fairness of

utilizing quantity in the proposed way into controversy, thus

the plain error seriously affe ted the fairness of the judicial

proceedings. Id.

The Thomas court also found that the error affected

the public reputation of the judicial proceedings whether one

analyzed the problem as an error in sentencing or an error in

the conviction.

It is respectfully submitted that fair minded members

of the public would conclude that Mr. Boswell’s trial was not

conducted with the fairness which should be associated with

16

an accusation which can remove a man from his home and

hearth for the rest of his life; that this lack of fairness affected

the integrity required of this solemn process and that if such

case were to stand, this judicial proceeding would be

impugned in the eyes of the citizenry.

3. A class of individuals is being created who must

unjustly suffer the consequences of the Government's failure

to allege and the Court’s duty to properly instruct on the

law.

It is without question that the uniform practice, now

seen as Constitutionally mandated by Apprendi, is to include

quantity as an element of the offense in an Indictment and to

prove quantity beyond a reasonable doubt in a jury trial.

However, the fact that Courts of Appeal are finding

that this error is plain but are finding-after the fact and

without benefit of jury input-that no prejudice flows

therefrom is creating a separate class of citizens: those who

were convicted pre-Apprendi absent proof of all essential

elements of the crime alleged whose convictions remain vital

solely because the court has supplanted the jury process with

its own conclusions. This clearly violates a citizen's rights

protected by the Sixth Amendment.

Had Boswell been awaiting trial in 2002, his

Indictment would have been precise; the witnesses who

testified against him would have been vigorously cross-

examined on “weight” and their “recollections” of “about”

thus and such would easily have been rejected by a rational

jury. He should not suffer due to the failure of the accusation

and trial processes.

17

CONCLUSION

THEREFORE, Petitioner JAMES G. BOSWELL,

requests of this Court that it GRANT its Petition for Writ of

Certiorari to the United States Court of Appeals for the

Eleventh Circuit.

RESPECTFULLY SUBMITTED,

MARY CATHERINE BONNER, ESQ.

Counsel of Record

207 S.W. 12th Court

Ft. Lauderdale, FL 33315

(954) 523-6225

Attorney for Petitioner

la

(Any footnotes trail end of each document)

IN THE UNITED STATES COURT OF APPEAL

FOR THE ELEVENTH CIRCUIT

No. 99-13818

D.C. Docket No. 99-00015 CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES G. BOSWELL, TERRY GLASSCOCKk,

Defendants-Appellants.

No. 00-11482

D.C. Docket No. 99-00015-CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES G. BOSWELL, TERRY GLASSCOCK,

Defendants-Appellants.

No. 00-12169

D.C. Docket No. 99-0001-CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

eicceccinnteecmnsiilimngchictlpteicaas i cai a aE is a SPS go ition ig

EE SRN SY ERA REY eS

2a

JAMES G. BOSWELL, TERRY GLASSCOCK,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Florida

(November 30, 2001)

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and

MORENO,, District J udge.

PER CURIAM:

AFFIRMED. See Circuit Rule 36-1.

Footnotes

‘Honorable Federico A. Moreno, U.S. District Judge for the

Southern District of Florida, sitting by designation.

3a

IN THE UNITED STATES COURT OF APPEAL

FOR THE ELEVENTH CIRCUIT

No. 99-13818

D.C. Docket No. 99-00015 CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES G. BOSWELL, TERRY GLASSCOCK,

Defendants-Appellants.

‘ No. 00-11482

D.C. Docket No. 99-00015-CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES G. BOSWELL, TERRY GLASSCOCK,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

attached opinion included herein by reference, is entered as

_. the judgment of this Court.

Entered: November 30, 2001

For the Court: Thomas K. Kahn, Clerk

By: McCombs, Elaine

4a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA AT GAINESVILLE

UNITED STATES OF AMERICA,

v.

JAMES BOSWELL

JUDGMENT LJ A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Case Number: 1:99CR00015-001(S)

John Harralson, Louisville, Kentucky

Defendant’s Attorney

Filed September 23, 1999

THE DEFENDANT:

x was found guilty on count(s) One, Two and Three

(06/21/99) after a plea of not guilty.

Date

Title & Offense Count

Section NatureofOffense Concluded Number(s)

21 U.S.C. § Conspiracy to

841 and Possess with Intent to

846 Distribute Cocaine 03/11/1999 One

18 U.S.C. § Carrying a Firearm

924(c) During and in

Relation to a Drug

Trafficking Crime 03/11/1999 Two

21 U.S.C.

853 Criminal Forfeiture 03/11/1999 Three

The defendant is sentenced as provided in pages 2 through 8

of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

Tae CUA aval MAE og Rk ES bau) astaithanaser tae anata Oakes Seda

5a

IT IS FURTHER ORDERED that the defendant shall notify

the United States Attorney for this district within 30 days of

any change of name, residence, or mailing address until all

fines, restitution, costs, and special assessments imposed by

this judgment are fully paid.

Defendant's 09/17/1999

Soc. Sec. No.: 404-04-9234 Date of Imposition

of Judgment

Defendant’s Date of Birth: . 01/13/1967

Defendant's USM No.: 06988-033

i Defendant's Residence Address.

115 Three Pines Road

Lebanon KY 40033

x WR ng ateaswes batasbulhenasec le nnas a on Lile fede aa aarAC APRON Te athe Se aan a

i Defendant's Mailing Address:

115 Three Pines Road

KY 40033

Honorable Maurice M. Paul

Senior U.S. District Judge

IMPRISONMENT

The defendant is hereby committed to the custody of the

United States Bureau of Prisons to be imprisoned for a total

term of Life.

As to Count One and Sixty (60) months imprisonment as to

Count Two to run consecutive to each other.

».4 The defendant is remanded to the custody of the

United States Marshal.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on

supervised release for a term of 5 year(s).

3

5

x

s

;

=

6a

As to Count One and 3 years as to Count Two, to be served

concurrently to each other.

The defendant shall report to the probation office in the

district to which the defendant is released within 72 hours of

release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state, or

local crime.

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of a

controlled substance. The defendant shall submit to one drug

test within 15 days of release from imprisonment and at least

two periodic drug tests thereafter, as directed by the

probation officer.

4 The defendant shall not possess a firearm as defined

in 18 U.S.C. § 921. (Check, if applicable.)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised

release that the defendant pay any such fine or

restitution that remains unpaid at the

commencement of the term of supervised

release in accordance with the Schedule of

Payments set forth in the Criminal Monetary

Penalties sheet of this judgment.

The defendant shall comply with the standard conditions that

have been adopted by this court (set forth below). The

defendant shall also comply with the additional Conditions

on the attached page (if indicated below).

1)

2)

10)

11)

12)

13)

7a

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

the defendant shall report to the probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of

the probation officer,

the defendant shall support his or her dependents and

meet other family responsibilities; -

the defendant shall work regularly at a lawful

occupation unless excused by the probation officer

for schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer ten

days prior to any change in residence or employment;

the defendant shall refrain from excessive use of

alcohol;

the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless granted

permission to do so by the probation officer;

the defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and shall

permit confiscation of any contraband observed in

plain view of the probation officer;

the defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by

a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the

court;

as directed by the probation officer, the defendant

shall notify third parties of risks that may be

8a

occasioned by the defendant's criminal record or

personal history or characteristics, and shall permit

the probation officer to make such notifications and

to confirm the defendant’s compliance with such

notification requirement.

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall not own or possess a firearm, dangerous

weapon or other destructive device.

The defendant shall participate in drug and alcohol

counseling, testing, treatment and screening, as deemed

appropriate by the probation officer.

The defendant shall provide the probation officer access to

all required financial information and documents as long as

any portion of the defendant’s fine is unpaid.

The defendant shall support his dependant children and meet

other family responsibilities. In the absence of an existing

court order setting an amount of support, the defendant shall

contribute 25% of his net income to the support of his minor

child.

The defendant shall not own or be employed at any business

licensed to sell alcoholic or other intoxicating beverages.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary

penalties in accordance with the schedule of payments set

forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals $200.00 $4,000,000.00

The above tine includes costs of incarceration and/or

supervision in the amount of $

9a

The defendant shall pay interest on any fine of more than

$2,500, unless the fine is paid in full before the fifteenth day

after the date of judgment, pursuant to 18 U.S.C. § 3612(f). All

of the payment options on Sheet 5, Part B may be subject to

penalties for default and delinquency pursuant to 18 U.S.C. §

3612(g).

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution: (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal monetary -

penalties shall be due as follows:

D4 in full immediately or

ADDITIONAL FORFEITED PROPERTY

(h) A 1.77 acre tract, being on Mays Chapel Road, located

in Marion County, Kentucky.

(c) Tracts “A”, XVI, and XIX, of the Lanham Property

Division of record in Plat Cabinet 1, Slide 159, in the Marion

County Court Clerks Office,

(d) 33.97 acres, more or less, located in Marion County,

Kentucky.

(f) Bank account at Farmer’s National Bank, 136 West

Main Street, Lebanon, in the name G. Boswell, Account

Number 0001078704.

(g) | Abank account at the Campbellsville National Bank,

1405 East Broadway, Campbellsville, Kentucky, 4271c, in the

name of James C. Boswell, Account Number 360728-3.

(h) A bank account in Springfield State Bank, 125 East

Main Street, Springfield, Kentucky, 40069, in the name of

10a

James G. Boswell, Account Number 493201.

STATEMENT OF REASONS

The court adopts the factual findings and guideline

application in the presentence report.

Guideline Range Determined by the Court:

Total Offense Level: 44

Criminal History Category: III

Imprisonment Range: Life Imprisonment

Supervised Release Range: 3 to5 years

Fine Range: $25,000.00 to $4,000,000.00

4 The sentence is within the guideline range, that range

does not exceed 24 months, and the court finds no

reason to depart from the sentence called for by the

application of the guidelines.