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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1121

## Text

SUprem®® Court, U.S.
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0283%3A1. Public record. Not legal advice.