# Petition for Writ of Certiorari — Boswell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1736%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 813 ## Text | 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/ ()) \) r i 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 ies hal RO ED RR ITY, 2 Ie II scsi sscinssnininssbinpasionsnsenheninicisdlsdetensese on. css 2 ORR SU iariesecicnistseniastslsserdesattadarsecnigee se 2 RI Re UID oinstcsnsbcheincninetacutpinsdcbcacnsie cats as 2 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 a a eS 2 OI OR eciestiisieniiciaiiannicinaie a dae eo 2 aticcttt icc gO OT 1 Ae BM vssssirisncsirriasiiesiactemeeccecincensiieceaiccietl 2 RULES NB i ssiisciiceritnsriceacthbcestacasrcneuneana ice ~ ay ce lovey eee CONSTITUTIONAL PROVISIONS CEE, COORD. LI B cscceceesininnttiisinsnesisitenniinintnnnitininnssistnnisisiitaaaiian CES COCBRRE. RTIIII, © scrinninteinicinsinnsnctcannntnntiisisipneiusiiiiutaninnitshieiiiia 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1736%3A1. Public record. Not legal advice.