Petition for Writ of Certiorari — Severa v. United States

SUprem®® Court, U.S.

(1) PILE D

Me

861311 FEB 13 1997

NO. __QFHGE-GF-THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

SHAWN ANTHONY SEVERA,

Petitioner

ok ae

THE UNITED STATES OF AMERICA,

Respondent

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOSEPH A. CONNORS III

Counsel of Record

Texas Bar No. 04705400

605 E. Violet, Suite 3

McAllen, TX 78502-5838

(210) 687-8217

(210) 687-8230 FAX

| ATTORNEY FOR PETITIONER

. February 13, 1997

CERTS:SAS2

QUESTIONS PRESENTED

zs Did the Court of Appeals violate

Petitioner's constitutional rights to due

Process and a fair trial by affirming a

132 month sentence and a felony conviction

where the jury's verdict, as a matter of

law, found Severa guilty only of

"TRANSPORTING MARIHUANA", a misdemeanor

with a maximum sentence of 12 months?

rp Did the Court of Appeals violate

Petitioner's constitutional rights to due

Process and a fair trial on the grand

jury's indictment by affirming a felony

conviction where the jury's verdict, as a

matter of law, constituted the plain error

of a fatal constructive amendment to the

indicted offense and variance from that

necessary for conviction under the

district court's instructions?

CERT6: SAS1 i

PARTIES BELOW

This case's caption contains all

parties' names to the proceedings in the

court below of wrose judgment review is

sought.

ii

2 oma chatted

LE OF

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES

RULES AND STATUTES

FEDERAL CONSTITUTION

OPINION AND ORDERS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING PETITION

FACTS

ARGUMENT

CONCLUSION

PRAYER

iii

1ii

24

25

TABLE OF AUTHORITIES

- CASES

Cook v. U.S., 379 F.2d 960 (CAS 1967) 18

Stirone v. U.S., 361 Use. aha

80 S.Ct. 270, 4 L.Ed.2d

a Se ee ria Nea 10

U.S. v. Dakins, 872 F.2d 1061

(CA B.C; THOS 8 ee eee ie 15

U.S. v. Davis, 747 F.2d 440

ae SAD oe eg oe ee ‘ ave a3

U.S. v. Deisch, 20 F.2d 139

(Gne 2eeey ¢ ete est aerior 7° 24

U.S. v. Doucet, 994 F.2d 169

iv 3): | A ee ee eens a a 23

U.S. v. Essex, 734 F.2d 832

(on res 2908) 2 oc 4 2s yo BFR 16

U.S. v. Harrill, 877 F.24 341

(ee. ROR io) ke ee ae ee 11

U.S. v. Harrison, 55 F.3d 163

(ee eee fe 8 ee . sire =

U.S. v. Marineri, 32 F.3d 1209

(CA7 1994) a ee ee ee ee 15

U.S. v. Mears, 614 F.2d 1175

(CA8 1980) ee ae a 17

U.S v. Moreno, 612 F.2d 483

(CA10 1979) ne ge ee oe eee 16

U.S. v. Onick, 889 F.2d 1425

fom BOOP 4 6 kb ie ee ae

ee en eee

iv

U.S. v. Smedes, 760 F.2d 109

WR MUI 56s ae ne ig ek ge 16

7S. wy. Sreen., §5 F...3¢4 1022

CC CREE fiers Cees gs ge SS 24

U.S, v. Straachn, 987 F.2d 232

po Be.) 3: ee arn cee nmr mee

U.S. ¥. Basen, $76 F.2G 589

ee eS ek ee Gene ee ee

U.S. v. White, 972 F.2d 590

(hgh! 6 ee eee

U.S. v. Young, 730 F.2d 221

ae” ST, en i ene oe eA ON 10

RULES AND STATUTES

Be see OO 68 els see Se eS we ee

Se ree Peete tet cs 46 te ee we Se

a Wakes Re 6 ee ee Oe ee

Secs er. 8 eee Oe a ee oe ee

21 U.S.C. 841(a) (1) ie ea ag: i See eee

21 U.S.C. 841(b) (1) (B) . i« a eg Bee ae

a Me RP | Bee ae ee ae ae ee

oe Re Se ee ras ee i

21 U.S.C. 844 (a) . a a: ee ee

ae Web<Gs:. BEwetel s 4 ow. w place ee ee

Fe nr ee er a er ee ve

Federal Rules of Appellate Procedure

PUD ele tee re hele eee ear ae

Supreme Court Rule Le. 6 «ee, he et

FEDERAL CONSTITUTION

Fifth Amendment . ee oe we ee te ee ee

Sixth Amendment OM Ee se ps ae ee ee |

vi

— a oe

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

SHAWN ANTHONY SEVERA, Petitioner

vs.

THE UNITED STATES OF AMERICA, Respondent

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT:

Petitioner, Shawn Anthony Severa

(Severa), respectfully petitions the Court

to issue a writ of certiorari to review

the judgment of the U.S. Court of Appeals

for the Fifth Circuit.

CERT6:SAS1 1

OPINION AND ORDERS BELOW

The unpublished opinion of the Court

Of Appeals is copied in the Appendix at 1-

6. The unpublished judgment of the U.S.

district court is copied in the Appendix

at 9-21.

JURISDICTION

The Court of Appeals issued its

Opinion on October 8, 1996. On November

15, 1996, the Court of Appeals denied as a

petition for panel rehearing Severa's

timely suggestion for rehearing in banc.

That appellate rehearing order is copied

in the Appendix at 7-8. Thus, this

petition was timely filed on February 13,

1997. See Supreme Court Rule 13. T h e

jurisdiction of the Supreme Court is

invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS

The Fifth Amendment in part reads:

No person shall be held to

answer for a_ capital, or

ee ee

otherwise infamous crime, unless

on a presentment or indictment

of a-Grand Jury, ... nor shall

any person be ... deprived of

life, liberty, or property,

without due process of law ....

The Sixth Amendment in part reads:

In all criminal

prosecutions, the accused shall

enjoy the right to a speedy and

public trial, by an impartial

jury of the State and district

wherein the crime shall have

been committed, ... and to have

the assistance of counsel for

his defence.

STATEMENT OF THE CASE

In the southern district of Texas's

Laredo division, the U.S. district court

had jurisdiction under 18 U.S.C. 3231

because on June “5, 1995, Severa was

indicted on three counts for offenses

against federal laws. On August 22, 1995,

a superseding indictment (Appendix at 22-

24) was returned in criminal case no. L:

95-115-S, charging Severa with conspiracy

in violation of 21 U.S.C. 846, 841(a) (1)

and 841(b)(1)(B) (count one); aiding and

CERT6:SAS1 3

abetting possession with intent to

distribute over 100 kilograms, that is,

2115.25 pounds (gross weight), of

Marihuana in violation of - 8.8.2.

841 (a) (1) and 841(b) (1) (B) and 18 es. 2

(Count two); and knowingly Carrying a

firearm during and in relation to a drug-

trafficking crime in violation of 18

U.S.C. 924(c) (1) (count three).

On August 23, 1995, a jury trial

commenced after the district court granted

the government's motion to dismiss count

one of the Superseding indictment. On

August 25, 1995, the jury found Severa not

guilty as to count three and as to count

two, the jury's written verdict (Appendix

at 25) read, "GUILTY CHARGE #2

TRANSPORTING MARIHUANA" °

On December 21, 1995, the district

court (Kazen, J.) sentenced Severa to a

term of 132 months in the custody of the

ia single nh ARR A tedlie aCS

U.S. Bureau of Prisons and assessed a term

of five years supervised release, a fine

of $1,500 and a special assessment of $50

(Appendix 9-21).

In this criminal case, the district

court entered its judgment on December 28,

1995 (Appendix at 9-21). On December 21,

1995, Severa timely filed notice of appeal

of his judgment of conviction and

sentence, thereby vesting the Court of

Appeals with jurisdiction under 28 U.S.C.

1291 and 18 U.S.C. 3742.

REASONS FOR GRANTING PETITION

First, it was plain error for the

district court to award Severa a 132 month

sentence when 12 months is the maximum

legislated sentence available after the

jury's written verdict (Appendix at 25)

found Severa "GUILTY CHARGE #2

TRANSPORTING MARIHUANA", a misdemeanor.

CERT6:SAS1 5

Second, it was Plain error after

judicial and Prosecution prodding about

"transporting marihuana", for the jury to

constructively amend the indictment by its

jury verdict which convicted on count two

of "transporting marihuana" without

finding that possession was with intent to

distribute, an element necessary for

conviction.

FACTS

This case involves the transportation

Of marihuana through the Border Patrol

Checkpoint on IH-35 approximately fifteen

(15) miles north of Laredo, Texas (R. at

97-99). At the checkpoint, officers

Searched the trailer Severa had been

driving and discovered marihuana secreted

in the trailer's roof (R. at 103-105).

Severa was the owner of the tractor

(R. at 241, 244), which had a paper plate

registered to William Hodges of Houston,

Texas (R. at 167, 170). That trailer was

one of several trailers sold to Sociedad

de Produccion Rural del Soconosko, a

Mexican company (R. at 249).

Severa was one of several drivers

that had transported the trailers from

Trail Mobile, Inc., in Dallas, Texas to

Hidalgo, Texas before they were to be

shipped later to a Mexican corporation (R.

at 274-276, 282-283).

D.E.A. case agent Colin McNeese

testified Severa had said he was hauling

the trailer for William Hodges to Hockley,

near Houston, Texas; and Severa could not

make a controlled delivery that day (a

Friday) because he was not scheduled to

deliver the trailer until Monday (R. at

273, 464).

Severa testified. His business was

an independent operation known as Scarlett

Trucking Company (R. at 195-197). Larry

CERT6:SAS1 7

Flint hired him to haul the trailers (R.

at 332-342, 303-355, 386). Severa did

not know the trailer had marihuana in the

roof; he did not speed away; and he did

not pass any vehicles before he got

Stopped (R. at 345-346). At the

checkpoint, he explained Mr. Flint had

hired him for the trip (R. at 353-354,

422-423; see also 273, 465). Severa told

the agent he would cooperate in the

trailer's controlled delivery as scheduled

the following Monday, but the agent

refused (R. at 422-423). Severa denied he

knowingly possessed the marihuana (R. at

345-346).

ARGUMENT

Plain error exists in Severa's felony

conviction and sentencing to 132 months in

Custody pursuant to 21 U.S.C. 841(a) (1)

and 841(b) (1) (B). Under the jury's

verdict, Severa should have been sentenced

to no more than the legislative maximum of

one year in custody for simple possession

by transporting under 21 U.S.C. 844. The

higher sentence was 4a denial of a

substantial right, which was not called to

the district court's attention.

Severa's jury found Severa guilty of

an offense necessarily included in the

offense charged, thus unwittingly

exercising the purpose of Rule 31(c) of

the Federal Rules of Criminal Procedure.

“'The purpose of this protection is to

prevent juries from improperly resolving

their doubts in favor of conviction when

one or more of the elements of the charged

offense remain unproven, but the defendant

seems plainly guilty of some offense.'"

U.S. v. Harrison, 55 F.3d 163, 166 (CAS5

1995).

Severa submits that jury's verdict

finding guilt of "transporting marihuana"

CERT6:SAS1 g

(without intent to distribute), was a

result of a constructive amendment of the

Superseding indictment and constituted a

fatal variance with the Superseding

indictment's count two charge of

possession with intent to distribute in

violation of 21 U.S.c. 841(a) (1), and

841(b) (1) (B).

Stirone v. U.S., 361 U.S. 212, 80

S.Ct. 270, 4 L.Ed.2d 252 (1960), held that

at trial the charges contained in an

indictment may not be broadened or altered

through an implied or explicit amendment,

except by the grand jury itself. Such

constructive amendments, which are

reversible error per se, occur when the

jury is permitted to convict upon a

factual basis different than an essential

element of the offense charged. Mee at

217-218; U.S.-v. Young, 730 F.2d 221, 223

(CA5 1984).

10

Although "possession of marihuana" is

necessary to be able to transport that

marihuana, "transporting marihuana" is not

an offense to be found in the federal

Statutes.

woes W. Marrii), @77 £.2€ 341, 344

(CA5 1989), held that a conviction based

on an offense not charged in the

indictment, including the enlargement of

an indictment by instructions to the jury,

breaches the Fifth Amendment guarantee of

the U. S. Constitution that no one may be

prosecuted for a felony except upon

indictment by a grand jury.

In the present case the indictment

was broadened, and a wrongful conviction

allowed, by the prosecutor's consistent

argument in opening and closing that

Severa was charged with-having transported

the marihuana (R. at 81, 1. 3-4; 517, 1.

23-24). The district court also

CERT6:SAS1 11

contributed to the constructive amendment

of the indictment by instructing the jury

as follows:

ey HAD A - RELATIONSHIP TO

COMMITTING A DRUG OFFENSE; THAT

IT WAS THERE TO HELP PROTECT OR

HELP MAKE SMOOTHER THE

TRANSPORTATION OF NARCOTICS (R.

at 5465, 2.°5-7), °° eo 3 fo ie

ONLY CHARGE AGAINST HIM, AT

LEAST WITH RESPECT TO THE

MARIJUANA, IS, DID HE KNOW...

WHEN HE AGREED TO MOVE’ THE

TRAILER FROM ONE POINT TO

ANOTHER, DID HE KNOW THAT IN

THAT TRAILER WAS AN _ ILLEGAL

CARGO AND, THEREFORE, DID HE

KNOWINGLY AGREE TO MOVE IT ON

THE HIGHWAY WITH THE INTENT TO

DELIVER IT TO SOMEBODY ELSE (R.

Gt 36fs 2s B* dars

The ultimate proof on this issue is

the fact that the jury's verdict found

Severa guilty of "transporting marihuana"

and not of possession with intent to

distribute as charged in the indictment.

By so finding, the jury in essence found

Severa not guilty of count two as charged

in the indictment and guilty of

12

nies

"transporting marihuana", a lesser charge

to that included in the indictment.

After jury deliberation, the district

court received the jury’s verdict and upon

noticing that the phrase "GUILTY CHARGE #

TWO TRANSPORTING MARIHUANA" had _ been

written in by the jury foreman, asked only

the foreman if he meant that as a finding

of guilt in count two, to which the

foreman replied "THAT’S CORRECT" (R. at

S76; 23 (10-17)

Thereafter all twelve jurors were

polled individually each replying that it

(the verdict as submitted) was their true

and correct verdict. The jurors were then

admonished and dismissed (R. at 571-575).

Severa’s attorney, after the

dismissal of the jury, asked to see the

verdict form and questioned the validity

of the verdict. The district court called

for the jury, but not before one of

Severa's attorney had spoken with one of

the jurors (R. at 576-578). Only eleven

jurors appeared on the recall (R. at 580,

1. 6) and the district court proceeded to

poll the foreman. Mr. Cruz responded

Orally, and the other ten jurors responded

by nodding (the court reporter assuming it

was in the affirmative), that they

discussed all the technical elements of

possession with knowledge, of marihuana,

with the intent to distribute (R. at 581).

Severa submits that the attempt by

the district court to clarify the verdict

was improper. A verdict is final if

deliberations are over, the result is

announced in open court, and the jury is

polled and no dissent is registered. v.s.

v. White, 972 F.2d 590 (CAS 1992).

The actions of the courtroom deputy

Clerk in file stamping the verdict form

and docketing the verdict is immaterial to

14

CO

the question of when a verdict is

"recorded". When a poll is requested, the

verdict becomes final and "recorded" when

the twelfth juror's assent to that verdict

is made on the record. U.S. v. Dakins,

872 F.2d 1061, 1065 (CA D.C. 1989). Where

no poll is requested or taken, the verdict

becomes final and unalterable and is

"recorded" when the jury has dispersed,

completing its discharge. Us ee F

Marineri, 32 F.3d 1209, 1213 (CA7 1994)

The jury cannot further deliberate once

the final verdict has been recorded. U.S.

v. Straach, 987 F.2d 232, 242 (CAS 1993).

In the present case, the verdict of

"GUILTY CHARGE R TWO TRANSPORTING

MARIHUANA" had been recorded when, during

polling, the 12th juror assented to that

verdict. Invalid was the district court's

subsequent attempt to resolve the

ambiguity in the verdict by later

CERT6:SAS1 15

improperly re-polling only eleven jurors,

after the court had first dispersed the

jury and the jury had talked to other

persons.

To allow Severa's conviction to stand

on the re-polling of only eleven jurors

after the verdict's recording constitutes

a violation of Severa's fundamental right

tO a unanimous verdict. See U.S _ v,.

Moreno, 612 F.2d 483 (CA10 1973)? Gey.

smedes, 760 F.2d 109 (CA6 7900)? 4S YY.

Essex, 734 F.2d 832 (CA D.c. 1984); and

U.S. v. Ulich, 976 F.2d 509 (CA9 1992).

To question only the foreman, Severa

Submits was improper’ to Clarify the

ambiguity. Upon noticing the verdict was

"at the very least ambiguous and/or a

determination of guilt of a lesser offense

and not guilty on the offense charged in

count two," the proper procedure the

district court should have followed was

16

not to question only the foreman as was

done, but to instead permit the jury to

resume deliberation and allow correction

of its verdict before the re-reading of

the verdict and final polling of the jury.

See U.S. v. Mears, 614 F.2d 1175, 1179

(CA8 1980).

Severa also submits the unanimous

jury's verdict of "GUILTY CHARGE # TWO

TRANSPORTING MARIHUANA" cannot be treated

as mere surplusage. Severa is aware of

case law where additional comments on the

verdict form have been treated as

surplusage.

In U.S. v. Davis, 747 F.2d 440, 442

(CA8 1984), the comment “we the jury

believe that Davis was used by the

witnesses that testified against him", was

treated as surplusage for it did not

qualify the verdict or rendered it

equivocal or ambiguous. Any uncertainty

CERT6:SAS1 a7

as to the verdict was removed by the

polling and each juror's response that

Davis was guilty.

Cook _v. U.S., 379 F.2d 966, 970 (CAS

1967), and cases cited therein, stand for

the proposition that where the jury finds

the defendant guilty as charged in the

indictment and, without more, simply

requests leniency, that request should be

treated as surplusage. In Cook, however,

the request for leniency was not a simple

request but there was strong suggestion

during the polling that there would have

been no agreement as to the verdict unless

the recommendation of leniency was also

accepted. The effect of that

recommendation, steadfastly adhered to

during jury polling, was to nullify the

verdict. In other words, there is no

verdict as long as there is- any

uncertainty or contingency to the finality

18

of the jury's determination. Id., at 970.

Severa submits that his case can be

distinguished from those in which the

jury's comment was treated as surplusage.

In Davis, supra, there was no uncertainty

or contingency on the jury's determination

of guilty on the offense charged in the

indictment, and neither was the comment a

condition on the finding of guilt as in

Cook. In the present case however, the

jury's comment "GUILTY CHARGE # TWO,

TRANSPORTING MARIHUANA", renders the

verdict vague, ambiguous, and uncertain in

that transporting marihuana was not the

offense charged and was a finding of

guilty on a constructive amendment of the

indictment invited by the prosecution and

the district court. The polling of twelve

jurors and subsequent re-polling of only

eleven jurors did not’ resolve the

ambiguity. The jury should have been

CERT6:SAS1 19

required to continue its deliberation

before the verdict was officially recorded

for the last time.

The jury's verdict and Severa's above

reading of it should come as no surprise

to either the government or the district

court. Much of the juried trial of this

case was about whether or not Severa

knowingly transported marihuana. See

examples below. In opening statement, the

Prosecutor said (R. at 517, 1. 23-24):

"HE'S JUST CHARGED WITH TRANSPORTING IT

KNOWINGLY."

Without objection (R. at 555), the

district court instructed the jury (R. at

3933-534, 1. 23-6, 19-22; 535, 1. 21-25;

936, 1. 14-24; 538, 1. 16-24; 539, 1.

23-224; 540, 1. 9-10, 12-13; 545, 1. 1-7;

547, 1. 6-14):

SO LET'S TALK ABOUT THE FIRST

ONE, WHICH IS LABELED COUNT TWO.

IT IS A CRIME TO KNOWINGLY AND

INTENTIONALLY HAVE IN YOUR

20

. ee . oes

POSSESSION CERTAIN CONTROLLED

SUBSTANCES, AND MARIJUANA IS ONE

OF THEM. I'LL INSTRUCT YOU THAT

AS A MATTER OF LAW, MARIJUANA IS

ONE OF THOSE SUBSTANCES WHICH

COMES UNDER THIS PROVISION. IT

IS A CRIME TO KNOWINGLY AND

INTENTIONALLY BE IN POSSESSION

OF MARIJUANA WITH THE INTENT TO

TO DISTRIBUTE IT, AND THAT'S

WHAT HE'S CHARGED WITH IN THIS

COUNT NUMBER TWO. **** I MEAN,

NOBODY IS DISPUTING THE EVIDENCE

THAT, IN FACT, WHAT WAS IN THERE

WAS MARIJUANA AND THERE IS NOT

ANY REAL SERIOUS DISPUTE THAT

THE GENTLEMAN WAS IN POSSESSION

OF IT. **** SO THE IDEA HERE

IS THAT YOU CAN FIND, UNDER THE

LAW, THAT IF A GENTLEMAN IS THE

SOLE OPERATOR AND INDEED THE

OWNER OF THE TRUCK AND HE IS

PULLING A TRACTOR AND IN THE

TRACTOR IS MARIJUANA, THAT HE IS

IN POSSESSION OF THE MARIJUANA.

eeen THERE'S TWO KINDS OF

MARIJUANA VIOLATIONS. ONE IS

WHAT WE CALL "SIMPLE

POSSESSION", THAT YOU HAVE IT

BUT YOUR INTENT IS SIMPLY TO

TAKE IT HOME AND SMOKE IT.

THAT'S WHAT'S CALLED "SIMPLE

POSSESSION". THIS KIND OF

POSSESSION, THAT HE'S CHARGED

WITH, IS CALLED "AN INTENT TO

DISTRIBUTE IT", AND THAT SIMPLY

MEANS THAT THE GOVERNMENT IS

ALLEGING THAT HE HAD THE INTENT

NOT TO TAKE IT HOME TWO THOUSAND

POUNDS FOR SMOKING IT BUT RATHER

WAS INTENDING TO DISTRIBUTE IT.

HE WAS INTENDING TO DELIVER IT

CERT6:SAS1 21

SOMEBODY ELSE. THAT'S ALL THAT

MEANS. **** OF COURSE, THAT'S

SOMETHING YOU CAN CONSIDER AS

PART OF THE TOTAL PACKAGE, THAT

HE WAS IN POSSESSION OF IT AND

HE WAS THE DRIVER AND IT WAS HIS

TRUCK AND SO FORTH, BUT THAT

ALONE IS NOT ENOUGH. THE

GOVERNMENT HAS TO GO BEYOND THAT

AND SHOW THAT NOT ONLY WAS HE IN

POSSESSION OF IT, BUT HE KNEW

IT. AND THAT WHY ALL THE REST

OF THIS INFORMATION, WHICH YOU

MAY, AT TIMES, HAVE THOUGHT WAS

STRANGE OR NOT STRANGE, BUT ALL

THE REST OF THIS IS WHAT REALLY

COMES DOWN TO IT. seee | 20M,

THE GOVERNMENT ONLY HAS TO PROVE

THAT HE KNEW HE WAS CARRYING A

CONTROLLED SUBSTANCE. **** IN

FACT, THE POUNDAGE ITSELF IS NOT

AN ELEMENT eee WAS THERE

MARIJUANA AND WAS THERE A

MEASURABLE AMOUNT. eaee BUT

THAT'S WHAT YOU HAVE TO DECIDE.

IN OTHER WORDS, NOT ONLY WAS

THERE A GUN THERE, NOT ONLY WAS

HE CARRYING A GUN IN THE TRUCK

AND NOT ONLY DID HE KNOW IT, BUT

DID IT HAVE... DO YOU THINK IT

PLAYED A PART IN... DO YOU THINK

IT HAD A RELATIONSHIP TO

COMMITTING A DRUG OFFENSE; THAT

IT WAS THERE TO HELP PROTECT OR

HELP MAKE SMOOTHER THE

TRANSPORTATION OF NARCOTICS.

**** SO THE ONLY CHARGE AGAINST

HIM, AT LEAST WITH RESPECT TO

THE MARIJUANA, Is, DID HE

KNOW... WHEN HE AGREED TO MOVE

THAT TRAILER FROM ONE POINT TO

ANOTHER. DID HE KNOW THAT IN

22

THAT TRAILER WAS AN _ ILLEGAL

CARGO AND, THEREFORE, DID HE

KNOWINGLY AGREE TO MOVE IT ON

THE HIGHWAY WITH THE INTENT TO

DELIVER IT TO SOMEBODY ELSE. SO

YOU'RE NOT HERE TO JUDGE ANYBODY

ELSE. ALL WE WANT IS YOUR

VERDICT, EITHER WAY, AS YOU SEE

FIT UNDER THESE INSTRUCTIONS AND

UNDER THE EVIDENCE, ON THOSE TWO

COUNTS FOR THIS DEFENDANT.

It is well settled that reversible

error occurs when either the district

court or the prosecution amend the grand

jury's non- surplusage parts of the

indictment during a trial. * ae 2

Doucet, 994 F.2d 169 (CAS 1993). After

those various above described courtroom

amendments so Severa was being also

prosecuted herein for the lesser included

offense of "knowing transportation of

possessed marihuana, a controlled

substance" in violation of 21 U.S.C. Sec.

844 (a), all this case's parties and the

courts must accept the jury's compromised

but rational verdict of "GUILTY CHARGE #2

CERT6:SAS1 23

TRANS PORTING MARIHUANA, " rather than

"guilty as charged" oon Count 2 as

suggested by the district court's verdict

form and that court's other proper jury

instructions (R. at 550, 1. 11-19).

TO support a simple possession

conviction, the evidence must show knowing

possession of a controlled substance.

U.S. v. Steen, 55 F.3d 1022, 1030-1032

(CA5 1995). The district judge normally

expressly instructs the jury that if it

did not find defendant guilty of knowing

possession with the intent to distribute,

the jury could find guilt of the lesser

included charge of simple possession. See

U.S. v. Onick, 889 F.2d 1425, 1430-1433

(CA5 1989); U.S. v. Deisch, 20 F.2d 139

(CA5 1994).

CONCLUSION

For the foregoing reasons, the

Supreme Court should find plain error(s)

24

below which require the reversal of all

judgments below and the remand of the

cause to the district court for

resentencing of Severa to no more than the

one year statutory maximum under 21 U.S.C.

Sec. 844 (a).

PRAYER

Severa prays a writ of certiorari

issue.

Respectfully submitted by

Petitioner's Attorney,

OSEPH A. CONNORS III

Texas Bar No. 04705400

605 E. Violet, Suite 3

McAllen, Texas 78502-5838

(210) 687-8217

(210) 687-8230 FAX

Filed: February 13, 1997

CERT6:SAS1 25