Petition for Writ of Certiorari — Ouimette v. United States

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(1) Supreme Court, U.S. \

FILED

02 118 yu 192008

oO.

DEtCE OF THE CLepK

IN THE

Supreme Court of the United States

GERARD T. OUIMETTE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RUSSELL R. WEDDELL

Counsel of Record

4 Court Street, Suite 105

Taunton, Massachusetts 0278C

(508) 822-8400

Counsel for Petitioner

Date: July 19, 2002

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

I+ ] oe

QUESTIONS PRESENTED FOR REVIEW

I. Whether the court erred in sentencing

the petitioner to life imprisonment, a term well in ex-

cess of the twenty year statutory maximum for the of-

fense of conviction, under an entirely separate statute

not charged in the indictment, based on the judge’s

findings of aggravating facts, without any jury and not

beyond a reasonable doubt, in violation of the Fifth

and Sixth Amendments as set forth in Apprendi v.

New Jersey.

Il. Whether the recidivism exception of

Almendarez-Torres v. United States should be

overruled.

Ill. Whether the recidivism exception of Al-

mendarez-Torres v. United States is applicable where

petitioner did not “admit” to the prior convictions used

to enhance his sentence, nor were they obtained “pur-

suant to proceedings with substantial procedural

safeguards of their own”, and where the prior convic-

tions were obtained in violation of petitioner’s consti-

tutional nghts.

IV. Whether the “three strikes” portion of 18

U.S.C. §3559(c) is unconstitutional om its face and as

applied in the instant case because it shifts the bur-

den of proof to the petitioner to prove by clear and

convincing evidence that the convictions used to en-

hance his sentence were nonqualifying felonies under

the statute.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .............. 06 i

TABLE OF AUTHORITIES .......cccccscrsccssccccccccosscsscnesces Vv

OPTS TIIIG avescsssescevesssennssouscsensercesensveaseseunessses 1

SURE, TIEN sccccissstiseciesnenccapenseschwentuvianivasansassaness 1

CONSTITUTIONAL PROVISIONS INVOLVED ............. 1

STATEMENT OF THE CASE ........cccccccscsscccccsccscesseeses 1

REASONS FOR GRANTING THE WRIT ............:::000ee 3

I. THE COURT ERRED IN SENTENC-

ING THE PETITIONER TO LIFE IM-

PRISONMENT, A TERM WELL IN

EXCESS OF THE TWENTY YEAR

STATUTORY MAXIMUM FOR THE

OFFENSE OF CONVICTION, UNDER

AN ENTIRELY SEPARATE STATUTE

NOT CHARGED IN THE _ INDICT-

MENT BASED ON THE JUDGE'S

FINDINGS OF AGGRAVATING

FACTS, WITHOUT ANY JURY AND

NOT BEYOND A REASONABLE

DOUBT, IN VIOLATION OF THE

FIFTH AND SIXTH AMENDMENTS

AS SET FORTH IN APPRENDI v. NEW

MET ssaiensstietsadsveninatinsernemseytibgyecins 4,5

Il. THE RECIDIVISM EXCEPTION OF

ALMENDAREZ-TORRES v. UNITED

STATES HAS NO RATIONAL BASIS

AND SHOULD BE OVERRULED. ............ 11

eee

Ill. THE RECIDIVISM EXCEPTION OF

ALMENDAREZ-TORRES v. UNITED

STATES IS NOT APPLICABLE

WHERE PETITIONER DID NOT

“ADMIT” TO THE PRIOR CONVIC-

TIONS USED TO ENHANCE HIS

SENTENCE, NOR WERE THEY OB-

TAINED “PURSUANT TO PROCEED-

INGS WITH SUBSTANTIAL PROCE-

DURAL SAFEGUARDS OF THEIR

OWN”, AND WHERE THE PRIOR

CONVICTIONS WERE OBTAINED IN

VIOLATION OF PETITIONER'S CON-

cos ylps ee. cy er ree 13

A. The Petitioner’s 1958 Plea Was

Not Knowingly, Intelligently, And

ET WII i dadeccdsunieancssccccesese 16

1. Uncontroverted evidence es-

tablishing that the 1958 plea

was not knowing and volun-

SNES: Matiedseocdausnieuvinticcussbideicdsacines 16

2. No presumption of regularity

applies to petitioner’s 1958

SE esches inp tdkkntdbdinasesknidekiiacineseess 17

3. It was a violation of due

process to shift the burden of

proof to the petitioner to

prove the invalidity of the

1958 plea by a preponder-

ance of the evidence. ................. 19

4. The court erred in finding

that petitioner was _ repre-

sented by counsel, or re-

ceived effective assistance of

counsel, at his 1958 plea in

accordance with the Sixth

PST: ST Re 21

a. The petitioner was not

represented by counsel. ...... 21

b. The petitioner did not re-

ceive effective assistance

of counsel as required by

the Sixth Amendment. ........ 22

B. The Petitioner’s 1976 Plea Was

Improperly Used To Enhance Pe-

titioner’s Sentence Because It

Was Not Voluntarily And Intelli-

gently Made With An Under-

standing Of The Nature Of The

Charges, And Because No Fac-

tual Basis Existed For The Plea. ...... 24

1. Factual background. ................. 24

2. The 1976 plea was not made

voluntarily and intelligently

with an understanding of the

nature of the charge. ................. 27

3. No factual basis existed for

GR UE. cbt ttisthaiesicncmetaindenesetens 27

IV. 18 U.S.C. §3559(c) IS UNCONSTITU-

TIONAL ON ITS FACE AND AS AP-

PLIED IN THE INSTANT CASE BE-

CAUSE IT SHIFTS THE BURDEN OF

PROOF TO THE PETITIONER TO

PROVE BY CLEAR AND CONVINC-

ING EVIDENCE THAT THE CONVIC-

TIONS USED TO ENHANCE HIS

SENTENCE WERE NONQUALIFYING

FELONIES UNDER THE STATUTE. ....... 28

CIPREMETN | vistsnntsensintsnbbicehacacuenaediaaaiae 30

FP TUE: svccibinesiunasunswisnissbidanents follows Conclusion

TABLE OF AUTHORITIES

CASES:

Almendarez-Torres v. United States,

CF a Gee CRW secécrencusissabitecteuauaaes passim

Apprendi v. New Jersey, 530 U.S. 466

GRPEPUNE cosuiincnssstsstcsecsdecuneebsehepaenaanaeiun passim

Bishop v. Langlois, 106 R.I. 56, 256 A.2d 20

[ROWED <sesutsnbssiiacctanseadéabibniedclauanaaa 16n, 19

Boykin v. Alabama, 395 U.S. 238 (1969)

sussanthiin pana natedentemnianiaiimmdmananes 7n, 18, 19, 20

Burgett v. Texas, 389 U.S. 109 (1967)

iscisineniatiesibameauneiintiginianaitaiabiauiaeaen 14, 18, 21n, 22

Carnley v. Cochran, 369 U.S. 506 (1962)

yocietenbanasnbensendiulinmiaeuensaaalamecimunits 18, 20, 22

Cooper v. Oklahoma, 517 U.S. 348 (1996) .............. 30

Custis v. United States, 511 U.S. 485 (1994)

snsavenacbodenbudinmmenacuietnieaaihdcesianmdaanaanamae 6n, 7n

Daniels v. United States, 532 U.S. 374 (2001)

ibe Biidebehebbinsbadcodabeudabdebundadeiuaasaeee maaan 6n, 7n

Duncan v. Louisiana, 391 U.S. 145 (1968) ............. 18

alia aaa ai all aa

Gideon v. Wainwright, 372 U.S. 335 (1963)

panceonnseeebeennsnedpacnicbebeeesenlennaeiebetibals 15n, 21n, 22

Harris v. United States, 536 U.S. ___ (2002)

ses esiesinsoeuneueeetoninnesunsebnbeniengnneieenaaiasenis 5,6, 12

Henderson v. Morgan, 426 U.S. 637 (1976) ............ 27

In re Winship, 397 U.S. 358 (1970) .............ccseceeeees 30

Johnson v. Mullen, 120 R.I. 701, 390 A.2d 909

(EDU wessciscnscisenenatncncesseuapaeiauesinamaniamenen 27

Johnson v. Zerbst, 304 U.S. 458 (1938) ................. 18

Jones v. United States, 526 U.S. 227 (1999) ...... 5, 6n

Malloy v. Hogan, 378 U.S. 1 (1964) .............. cece eeee 18

McCarthy v. United States, 394 U.S. 459

GDUMEE sviecisccessoncancqestcemasnemanemenniens 20, 27, 28

Monge v. California, 524 U.S. 721(1998) ................ 13

Mullaney v. Wilbur, 421 U.S. 684 (1975) ................ 30

Ouimette v. State, 2001 WL 1636671 (R.I. 2001)

cert. denied, 536 U.S. ___ (2002) ............ 16, 18

Parke v. Raley, 506 U.S. 20 (1992)

veescodeuuibba vers Neiuennneniauaenaanyinia 17, 17n, 18, 21, 22

Pointer v. Texas, 380 U.S. 400 (1965) .................0. 18

Ring v. Arizona, 536 U.S. ___ (2002) ..................06 5, 6

Santobello v. New York. 404 U.S. 257 (1971) .......... 27

Smith v. O’Grady, 312 U.S. 329 (1941) «0.0... 27 |

vii

State v. Feng, 421 A.2d 1258 (1980) .........:seeeeeeeees 27

State v. Williams, 122 R.I. 32,

404 A. 2d 814 (1979) .....cccceeeceeeeeeeeeeeeeeeeeeenes 27

Strickland v. Washington, 466 U.S. 668 (1984) ...... 23

United States v. Cotton, 2002 U.S. Lexis 3565

(ZOO) ......csesssccccseesssreeeeeeeeeeseeeneeeeesesereceeeeeenns 5

United States v. DeLuca, 137 F. 3d 24

(1st Cir. 1998), cert. denied,

525 U.S. 917 (1998) ........ccceceeeceeeeeeeeeeeeeeres 2,8

United States v. Dueno, 171 F. 3d3

(18t Cir, 1999) ......ccccsceceeeeeeeeeeeeeeeeeceeeeeeeeeees lin

United States v. Gomez-Estrada, 273 F.3d 400

(1st Cir, 2001) ........ccccccceeeeeeeeeeeeeseeeeeseeeeeeeeenens 3

United States v. Longoria, 113 F. 3d 975

(Qt Cir, 1997) .....ccccceseeeeeceeeeeeeeeeeeeseseeeeeeeerees 27

United States v. Tucker, 404 U.S. 443 (1972)

caieciiidelaeiaieibanasaasaaiedcdaibiadaaaaanaanaaandts 14, 24, 28

United States v. Wetterlin, 583 F.2d 346

(7% Cir. 1978), cert. denied .........:.esseeeeees 27, 28

STATUTES AND RULES:

R.I. G.L. 1956 Section 10-9.1-1 ef SEG. ........eeceeeeeees 14

U.S. Const. amend. V .........cccccccccccccceee 1, 2, 5, 10, 19

U.S. Const. amend. VI ...........cceeeeeeeeeeeeeeeneneeeees passim

Lk | en eee 1, 9, 11, 20

“OL Ss 3, 6n, 8

1B U.S.C. GSSSHC) ...cceccscscscecosesececesesessossceceeses passim

18 U.S.C. §3559 (C)(1)(A) c.ccccccecececeesescsceseeseeeeeeee 2, 20

18 U.S.C. §3559 (c)(3)(A) ..eccccccccccscessecseseseecseeeeeeen 29

18 U.S.C. §3559 (c)(2)(F) .cccccccccscscececesesesseeseeeeseseeeeee 9

18 U.S.C. GSSSOICHA) .......cscecececececsccccsceseseseseees 6n, 10

Oe I I gos sssnsssnivcsanionssctasensanonnpsnisaseladtel 7

We I BI seiachctisrnssvscrinedesscninitncnsniininrisorniiosinsin 7n

a ERE 10

Ee 10

BE CEI, I cisessecsecvinecosretiosesssecsasssnssseessosenes 7n

2B U.S.C. §1254(1) ......c.ccccccsssssscssscececececesesecesesssseseres i

Be Ve GRO crvccevssveccscesenecusrcnsesoccassonesseeseses 2, 3, 4

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the

United States Court of Appeals for the First Circuit in

this case.

OPINION BELOW

The Opinion of the United States Court of Appeals

for the First Circuit, dated February 21, 2002, is at-

tached hereto (A. 1la).°

JURISDICTION

This case seeks review of a decision of the United

States Court of Appeals for the First Circuit entered

on February 21, 2002. The jurisdiction of the Court is

invoked pursuant to 28 U.S.C. §1254 (1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V

“No person shall be . . . deprived of life, liberty, or

property, without due process of law...”

United States Constitution, Amendment VI

“In all criminal prosecutions, the accused shall en-

joy the right toa... trial, by an impartial jury... to

be confronted with the witnesses against him... and

to have the assistance of counsel for his defense.”

STATEMENT OF THE CASE

Petitioner was convicted in the United States Dis-

trict Court for the District of Rhode Island of conspir-

ing to use extortionate means to collect extensions of

credit and aiding and abetting the use of extortionate

means to collect extensions of credit in violation of 18

U.S.C. §894, which provides for a maximum term of

* References designated herein as (A. ) are to petitioner’s Re-

cord Appendix.

imprisonment of not move than twenty years.! Peti-

tioner was sentenced, however, to life imprisonment

pursuant to the “three strikes” provision of 18 U.S.C.

§3559(c)(1)(A), an entirely separate statute that was

not charged in the indictment, that no jury has ever

convicted him of violating, and that no trier of fact,

judge or jury, has ever determined that he is guilty of

beyond a reasonable doubt. The enhanced sentence

was based on the sentencing judge’s findings of aggra-

vating facts necessary to establish that both the of-

fense of conviction and two other prior convictions

constituted “serious violent felonies” as that term is

defined within the statute. Following the denial of his

direct appeal and his petition for certiorari, on October

4, 1999, petitioner timely filed a motion to vacate, set

aside or correct his sentence under 28 U.S.C. §2255.

Relying in part on this Court’s decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000), petitioner argued

in his 2255 motion that the district court erred in sen-

tencing him to life imprisonment pursuant to 18

U.S.C. §3559(c) in violation of his rights under the

Fifth and Sixth Amendments, and thus, the sentence

was imposed in violation of the Constitution or laws of

the United States, the court was without jurisdiction

to impose such sentence, the sentence was in excess

of the maximum authorized by law, and was otherwise

subject to collateral attack. Petitioner also argued

that two predicate offenses that provided the basis for

his sentence enhancement were obtained in violation

of petitioner’s constitutional rights, i.e. that the 1958

plea was obtained without the benefit of counsel and

was not voluntarily and intelligently given, and that

the 1976 plea was involuntary and without any fac-

tual basis.

In denying the petitioner’s motion with regard to

the Apprendi issues, the district court ruled that Ap-

1 The factual background of petitioner’s case is set forth in

United States v. DeLuca, 137 F.3d 24 (18 Cir. 1998), cert. denied,

525 U.S. 917 (1998).

prendi does not apply when the sentencing enhance-

ment is based on the fact of a prior conviction. The

district court also rejected the petitioner’s argument

that 18 U.S.C. §3559 was unconstitutional, and fur-

ther ruled that petitioner’s state court convictions

could not be collaterally attacked in a federal sentenc-

ing proceeding, or in §2255 proceedings, except on the

ground that they were uncounseled (A. 14a-15a).

The First Circuit Court of Appeals affirmed, reject-

ing petitioner’s Apprendi based arguments by relying

on its own decision in United States v. Gomez-Estrada,

273 F.3d 400 (1st Cir. 2001) (A. la-2a). In that deci-

sion, the First Circuit stated that it was bound to fol-

low Almendarez-Torres v. United States, 523 U.S. 224

(1998), and that the holding of Almendarez-Torres is

not limited to cases where the defendant admits the

commission of the prior offenses used for sentence

enhancement. The court also held in the instant case

that even if petitioner had the right to collaterally

challenge his 1958 conviction on the ground that it

was uncounseled in accordance with Custis v. United

States, 511 U.S. 485 (1994), such challenge would not

have mattered since petitioner had two other prior

convictions that were counseled (A. 2a).

REASONS FOR GRANTING THE WRIT

The basis for the enhancement of petitioner’s

sentence from a maximum of twenty years under the

statute he was convicted by the jury of violating, 18

U.S.C. §894, to life imprisonment under the “three

strikes” provision of 18 U.S.C. §3559(c)(1)(A), was the

sentencing judge’s findings, without any jury and not

beyond a reasonable doubt, of aggravating facts nec-

essary to establish that both the offense of conviction,

and at least two or more convictions on separate prior

occasions, constituted “serious violent felonies” as

a aii

that term is defined within the statute.2 The three

strikes statute was never mentioned in the indictment,

nor were its elements ever presented to the jury for

consideration under a reasonable doubt standard of

proof. Instead, the burden was imposed on petitioner

to prove that the convictions were nonqualifying felo-

nies under the statute.

Petitioner was never afforded an opportunity to

challenge two of the convictions used to enhance his

sentence, one from 1958 and the other from 1976, on

the basis that they were obtained in violation of peti-

tioner’s constitutional rights. The sentencing judge,

and later the First Circuit, ruled that the state court

convictions could not be collaterally attacked in a fed-

eral sentencing proceeding, or in §2255 proceedings,

except on the ground that they were uncounseled.

This case presents the opportunity for the Court to

further define the scope of its decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000), by overruling Al-

mendarez-Torres v. United States, 523 U.S. 224 (1998)

and announcing that the recidivism exception is no

longer viable, or limiting Almendarez-Torres’ applica-

bility to cases where the defendant does not contest

the prior convictions and where they were obtained

“pursuant to proceedings with substantial procedural

safeguards of their own”, and not in violation of a de-

fendant’s constitutional rights.

I. THE COURT ERRED IN SENTENCING THE PE-

TITIONER TO LIFE IMPRISONMENT, A TERM

WELL IN EXCESS OF THE TWENTY YEAR

STATUTORY MAXIMUM FOR THE OFFENSE OF

CONVICTION, UNDER AN ENTIRELY SEPARATE

STATUTE NOT CHARGED IN THE INDICTMENT

BASED ON THE JUDGE’S FINDINGS OF AG-

GRAVATING FACTS, WITHOUT ANY JURY AND

AA eb SOE OBA Rs IO IIR ea

2 Prior to sentencing, petitioner challenged whether the convic-

tions constituted “serious violent felonies” as defined within the

statute.

)

NOT BEYOND A REASONABLE DOUBT, IN VIO-

LATION OF THE FIFTH AND SIXTH AMEND-

MENTS AS SET FORTH IN APPRENDI v. NEW

JERSEY.

In Apprendi v. New Jersey, 530 U.S. 466 (2000),

this Court held that “other than the fact of a prior

conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum’,

whether the statute calls it an element or a sentencing

factor, “must be submitted to a jury and proven be-

yond a reasonable doubt”. Id., at 490; Harris v. United

States, 536 U.S. __ (2002); Ring v. Anzona, 536 U.S.

____ (2002). “In federal prosecutions, such facts must

also be charged in the indictment.” United States v.

Cotton, 2002 U.S. Lexis 3565 (2002), citing Apprendi,

supra, at 476 (quoting Jones v. United States, 526 U.S.

227, 243 n.6 (1999)).

In Apprendi, the Court established that “any fact

extending the defendant’s sentence beyond the maxi-

mum authorized by the jury’s verdict would have been

considered an element of an aggravated crime — and

thus the domain of the jury — by those who framed

the Bill of Rights.” Harris v. United States, 536 U.S.

__.. The Court explained that

The dispositive question ‘is one not of form, but of

effect.” If a state makes an increase in a defen-

dant’s authorized punishment contingent on the

finding of a fact, the fact — no matter how the

state labels it — must be found by a jury beyond a

reasonable doubt. A defendant may not be ‘ex-

posed .. . to a penalty exceeding the maximum he

would receive if punished according to the facts

reflected in the jury verdict alone.’

Ring v. Arizona, 536 U.S. ___ (2002), quoting Apprendi,

supra, at 482-83, 494. The Court concluded that his-

torically, “facts that expose a defendant to a punish-

ment greater than that otherwise legally prescribed

were by definition ‘elements’ of a separate legal of-

fense.” Apprendi, at 483. See also, Harms v. United

States, 536 U.S. __. Thus, if an increase in the

maximum sentence available for the offense of convic-

tion is contingent on the finding of facts — in the in-

stant case, facts establishing that .he offense of con-

viction and two or more prior convictions constituted

“serious violent felonies” as that term is defined in the

statute providing for the enhanced term of imprison-

ment — those facts are “elements” of a separate, ag-

gravated offense, and must be charged in an indict-

ment, and proven beyond a reasonable doubt to a

jury. Apprendi, supra, at 501. See also, Ring v. An-

zona, 536 U.S. __; Harris v. United States, 536 U.S.

In the instant case, proving facts necessary for life

imprisonment under 18 U.S.C. §3559(c) requires

much more than merely proving the existence of prior

convictions. It must be determined that the offense of

conviction was a “serious violent felony” as that term

is defined within the statute, and that defendant had

been convicted on separate prior occasions of two or

more “serious violent felonies”. In this regard, the

3 Under well-established constitutional doctrine, the Constitu-

tion’s full procedural protections, especially the necessity of proof

beyond a reasonable doubt to a jury at trial, apply to elements of

offenses. Apprendi, 530 U.S. at 476-79; Jones v. United States,

526 U.S. 227, 232 (1999) (stating that “elements must be...

proven by the Government beyond a reasonable doubt.”)

4 The petitioner challenged whether any of the offenses were

qualifying felonies within the meaning of the statute. The sentenc-

ing judge ruled that the state court convictions could not be col-

laterally attacked in a federal sentencing proceeding except on the

ground that they were uncounseled, relying on this Court’s deci-

sions in Custis v. United States, 511 U.S. 485 (1994) and Daniels

v. United States, 532 U.S. 374 (2001). The First Circuit affirmed.

This was error. Both Custis and Daniels involved the Armed Ca-

reer Criminal Act (ACCA) which is a different statute than that

under which petitioner was sentenced, i.e., 18 U.S.C. §3559. The

latter statute specifically provides a forum to challenge the predi-

cate offenses at the sentencing hearing unlike the ACCA. See, 18

U.S.C. §3559(c)(4)’s specific reference to, and incorporation of, the

stat

sentencing judge made the following critical findings

of fact as required by the statute.

The sentencing judge was first required to make a

finding whether the crime for which petitioner was in-

dicted, tried and convicted, collection of extensions of

credit by extortionate means, constituted a “serious

violent felony” as defined within the statute. In this

regard, the judge commented that in looking at the

definition section of the statute, specifically 18 U.S.C.

§3559(F)(i), “there are certainly some questions

raised.” (A. 23a). The judge pointed out that the of-

fenses enumerated “are described under the section

by generic name and reference to the federal statute

defining them, and there are offenses that are de-

scribed only by generic name.” (A. 23a) He pointed

out that the offense of conviction was “not included in

the first category, nor is it included in the second

category unless it is encompassed by the generic term

extortion.” (A. 23a) The judge was thus required to

make a determination whether the offense of convic-

tion came “within the ambit of the generic term extor-

tion.” (A. 23a) The judge ultimately found that the of-

fense of conviction did fall within the generic term

“extortion” used in the statute (A. 23a-24a). In so

procedures set forth in 21 U.S.C. §851 by which a defendant who

is subject to a sentence enhancement may challenge the constitu-

tionality of an earlier conviction that is the basis for the enhance-

ment. See also, Custis v. United States, supra, at 492 (“[W]jhen

Congress intended to authorize collateral attacks on prior convic-

tions at the time of sentencing, it knew how to do so’, referring to

21 U.S.C. §851(c)). In addition, the 1958 conviction was unconsti-

tutionally obtained in violation of petitioner’s right to counsel and

the Custis and Daniels opinions specifically state that their hold-

ings do not apply to such situations. As argued hereinafter, no

“presumption of regularity” applies to petitioner’s 1958 conviction

and thus petitioner must be allowed to challenge that conviction in

federal court. Contrast Daniels, supra. Moreover, the petitioner in

Daniels, unlike here, did not place any transcript or other evidence

relating to his plea colloquies before the Court for review, and the

pleas in issue there were given in 1978 and 1981, well after Boykin

v. Alabama was decided.

finding, both the judge, and later the First Circuit i

which affirmed the judge’s finding, were required to

look beyond the label of the offense to the factual

circumstances of the underlying case since, on its

face, the offense of conviction did not necessarily fall

within the generic definition of “extortion”. See, United

States v. DeLuca, supra, 137 F. 3d at 39-40.

The judge next proceeded to determine whether the

petitioner had previously been convicted of two or

more “serious violent felonies” as defined in the stat-

ute. With regard to the petitioner’s 1958 robbery plea,

the judge found that the elements of robbery under

state law are “virtually identical” to those under the

federal statutes specifically referred to in §3559 (A.

25a). The judge acknowledged that under the statute,

robbery may not be considered as a qualifying felony if

the defendant established by clear and convincing evi-

dence that there was no use or threat of use of a fire-

arm or other dangerous weapon (A. 25a). However,

the judge then made a finding based solely on a pre-

sentence report that a firearm was involved, and thus

the robbery offense qualified as a “serious violent fel-

ony” (A. 25a). The judge was thus again required to

look beyond the label of the offense and consider the

underlying factual circumstances of the case in order

to determine that the robbery was a qualifying felony

under the statute. The judge further found that the

robbery qualified, in the alternative, “as an offense

that has as an element the use or threatened use of

physical force against the person of another” or that,

“by its nature, involved a substantial risk that physi-

cal force may be used in the course of committing the

offense.” (A. 25a-26a).5

pi say amin Sali etd

5 This was error. If a defendant established by clear and con-

vincing evidence that no firearm or other dangerous weapon was

used in the offense and no threat of same was involved, and the

offense did not result in death or serious bodily injury to any per-

son, then the robbery could not serve as a basis for sentencing

under the statute.

With regard to petitioner’s 1976 plea for assault

with a dangerous weapon, the judge found this offense

to also qualify under the statute because even though

it was not an enumerated offense, “it has as an ele-

ment the use or attempted use or threatened use of

physical force against the person of another” or “by its

nature involved a substantial risk that physical force

may be used against the person of another in the

course of committing the offense”. (A. 26a).®

The facts found by the judge constituted “elements”

of a separate, aggravated offense that had to be

charged in an indictment and proven beyond a rea-

sonable doubt to a jury. Apprendi, supra. None of that

happened in this case.

First, none of the foregoing facts found by the

judge, nor the prior offenses used to enhance the peti-

tioner’s sentence, were charged in the indictment un-

der which petitioner was convicted, in violation of his

Fifth Amendment nights to due process of law and to a

grand jury indictment. The indictment charged peti-

tioner with violations of 18 U.S.C. §894. The peti-

tioner was sentenced, however, to life imprisonment

under an entirely separate statute, 18 U.S.C. §3559(c).

The latter is not a subsection of the former. Compare,

Almendarez-Torres v. United States, 523 U.S. 224

(1998). 18 U.S.C. §3559(c) prescribes a separate, ag-

gravated crime with its own punishment which is far

more severe than the offense for which petitioner was

indicted, tried and convicted — mandatory life impris-

onment as opposed to twenty years maximum. No-

where in the indictment is 18 U.S.C. §3559(c) referred

to. Nor does the indictment refer to any of the ele-

ments of 18 U.S.C. §3559(c)(2)(F) that must be proven

in order for a term of life imprisonment to be im-

6 Again, this was error for the same reasons stated in footnote

posed.’ The indictment also does not refer to the prior

convictions that were determined by the judge to qual-

ify as “serious violent felonies” under the statute and

used to impose the term of life imprisonment on peti-

tioner. No evidence of any of these elements of the

statute were presented to the grand jury, or the petite

jury for that matter. Finally, 18 U.S.C. §3559(c)(4)

specifically states that the provisions of 21 U.S.C.

§851(a) shall apply to the imposition of sentence un-

der this subsection. 21 U.S.C. §851(a)(2) provides

that “[aJn information may not be filed under this sec-

tion if the increased punishment which may be im-

posed is imprisonment for a term in excess of three

years unless the person either waived or was afforded

prosecution by indictment for the offense for which

such increased punishment may be imposed.” The

statute’s reference to “the offense for which the in-

creased punishment may be imposed” is necessarily

18 U.S.C §3559(c) since the maximum punishment

that may be imposed for an offense under 18 U.S.C.

§894 is twenty years. Thus, no information was enti-

tled to be filed in this case seeking an increased pun-

ishment of life imprisonment as opposed to twenty

years, since, as stated, nowhere in the indictment is

18 U.S.C. §3559(c) referred to.

Second, the aggravating facts found by the judge

were not submitted to any jury for their consideration.

This violation of the petitioner’s Fifth and Sixth

Amendment rights was especially pronounced with

respect to the 1958 robbery and the 1976 assault

charges which, in order for them to be qualifying felo-

nies under 18 U.S.C. §3559(c), must involve additional

elements, i.e., the use of a firearm or other dangerous

weapon, and death or serious bodily injury to a per-

son, which elements were never submitted to the jury

for consideration.

7 An offense of conviction constituting a “serious violent felony”

and final convictions on separate prior occasions of two or more

“serious violent felonies”.

Sie ae ee oe ee ee ee a ae ee

Third, no finding was ever made by any jury, or the

judge for that matter, that the aggravating facts had

been proven beyond a reasonable doubt. In fact, no

such finding was ever made even by a preponderance

of the evidence. The record is devoid of any finding in

this regard. (A. 16a-33a). No evidentiary burden was

placed on the government at all to prove the aggravat-

ing facts necessary to establish that the offense of

conviction, and at least two prior convictions, consti-

tuted “serious violent felonies” as defined in the stat-

ute. No evidence was offered by the government at all.

Instead, the judge relied solely on the presentence re-

port for proof of these elements. The judge also made

no finding that the petitioner was guilty of the prior

offenses beyond a reasonable doubt.

Accordingly, as the sentencing judge, without a jury

and not beyond a reasonable doubt, found aggravating

facts necessary for imposition of a term of imprison-

ment far in excess of the statutory maximum for the

offense of conviction, under a separate statute not

charged in the indictment, this was a violation of peti-

tioner’s rights under the Fifth and Sixth Amendments.

His sentence must therefore be vacated, and the case

remanded for resentencing to a term not to exceed the

maximum penalty under 18 U.S.C. §894, the offense

of conviction.

Il. THE RECIDIVISM EXCEPTION OF ALMEN-

DAREZ-TORRES v. UNITED STATES HAS NO

RATIONAL BASIS AND SHOULD BE OVER-

RULED.

In upholding the district court’s enhancement of

petitioner’s sentence to life imprisonment based in

part on two prior felony convictions, the First Circuit

relied on this Court’s decision in Almendarez-Torres v.

United States and its treatment of recidivism as a

8 In this regard, see United States v. Dueno, 171 F. 3d 3, 7 (1s

Cir. 1999).

“sentencing factor” rather than as an “element” of a

separate offense. In Apprendi, the Court did not ex-

plicitly overrule Almendarez-Torres because Apprendi

did not contest the decision’s validity:

Even though it is arguable that Almendarez-Torres

was incorrectly decided, and that a logical applica-

tion of our reasoning today should apply if the re-

cidivist issue were contested, Apprendi does not

contest the decision’s validity and we need not re-

visit it for purposes of our decision today...

530 U.S. at 488-90 (emphasis added). It should also

be noted that Almendarez-Torres specifically con-

cerned only the sufficiency of the indictment. See, id.,

523 U.S. at 247-48; Apprendi, 530 U.S. at 488.

Petitioner submits that prior convictions used to

enhance a sentence beyond the statutory maximum

for the offense of conviction are elements of a sepa-

rate, aggravated offense that must be charged in an

indictment, submitted to a jury and proven beyond a

reasonable doubt.

[I]f the legislature defines some core crime and

then provides for increasing the punishment of

that crime upon a finding of some aggravating

fact—of whatever sort, including the fact of a prior

conviction—the core crime and the aggravating

fact together constitute an aggravated crime, just

as much as grand larceny is an aggravated form of

petit larceny. The aggravating fact is an element

of the aggravated crime. Similarly, if the legisla-

ture, rather than creating grades of crimes, has

provided for setting the punishment of a crime

based on some fact .. . that fact is also an ele-

ment.

Apprendi, supra, at 501 (Justice Thomas, with whom

Justice Scalia joined, concurring). See also, Harris v.

United States, supra, 536 U.S. __. (Justice Thomas,

with whom Justice Stevens, Justice Souter, and Jus-

tice Ginsburg joined, dissenting). “[T]here is no ra-

tional basis for making recidivism an exception.” Al-

mendarez-Torres, supra, at 258 (Justice Scalia, with

whom Justice Stevens, Justice Souter, and Justice

Ginsburg joined, dissenting). See also, Monge v. Cali-

fornia, 524 U.S. 721, 741 (1998) (the holding of Al-

mendarez-Torres was “in my view a grave constitu-

tional error affecting the most fundamental of rights”

(Justice Scalia, with whom Justice Souter and Justice

Ginsburg joined, dissenting)). The time has come for

this Court to overrule Almendarez-Torres.

Ill. THE RECIDIVISM EXCEPTION IS NOT APPLI-

CABLE WHERE PETITIONER DID NOT “ADMIT”

TO THE PRIOR CONVICTIONS, NOR WERE

THEY OBTAINED “PURSUANT TO PROCEED-

INGS WITH SUBSTANTIAL PROCEDURAL

SAFEGUARDS OF THEIR OWN”, AND WHERE

THEY WERE OBTAINED IN VIOLATION OF PE-

TITIONER'S CONSTITUTIONAL RIGHTS.

The recidivism exception, if at all viable, is only ap-

plicable where a defendant admits to the earlier con-

victions and does not challenge their accuracy, and

there is certainty that the convictions were entered

pursuant to proceedings with substantial procedural

safeguards of their own to ensure that they were not

obtained in violation of the defendant’s constitutional

rights:

Because Almendarez-Torres had admitted the

three earlier convictions for aggravated felonies—

all of which had been entered pursuant to pro-

ceedings with substantial procedural safeguards

of their own—no question concerning the right to

a jury trial or the standard of proof that would ap-

ply to a contested issue of fact was before the

Court.

Both the certainty that procedural safeguards at-

tached to any “fact” of prior conviction, and the

reality that Almendarez-Torres did not challenge

the accuracy of that “fact” in his case, mitigated

the due process and Sixth Amendment concerns

otherwise implicated in allowing a judge to deter-

mine a “fact” increasing punishment beyond the

maximum of the statutory range.

Apprendi, at 488. See also, United States v. Tucker,

404 U.S. 443, 449 (1972); Burgett v. Texas, 389 U.S.

109, 115 (1967)(convictions obtained in violation of a

defendant’s constitutional rights cannot be used

against a person either to support guilt or enhance

punishment for another offense). Such is not the case

here. Petitioner’s 1958 and 1976 pleas were improp-

erly used to enhance his sentence because they were

not “admitted” by petitioner and were not “entered

pursuant to proceedings with substantial procedural

safeguards of their own”, and were obtained in viola-

tion of petitioner’s constitutional rights, as demon-

strated hereinafter.

1958 Plea.

On October 22, 1958, the petitioner was arraigned

in the Superior Court of Rhode Island on a charge of

armed robbery and pleaded not guilty. The petitioner

returned to the Superior Court on December 12, 1958,

and a plea of nolo contendere was entered to the

armed robbery charge. On January 12, 1959, the Su-

perior Court sentenced and committed the petitioner

to six years imprisonment in the state prison.

On September 14, 1998, in response to his sen-

tence enhancement in the United States District

Court, the petitioner applied to the Rhode Island Su-

perior Court to vacate the nolo contendere plea entered

in 1958 by filing an application for post conviction re-

lief pursuant to R.I. G.L. 1956 Section 10-9.1-1 et seq.

On March 16, 1999, the Superior Court conducted

an evidentiary hearing on the petitioner’s motion. At

the hearing, no stenographic transcript of the 1958

plea hearings was available.2 The petitioner testified

that he never hired a lawyer to represent him and was

never advised by the court that he had a right to have

a lawyer represent him, or that any lawyer had been

appointed to represent him (A. 38a, 39a, 40a, 4la,

42a).!0 In fact, he never spoke to a lawyer between his

arraignment and when he was sentenced (A. 39a,

40a, 42a, 49a, 68a). He was never asked any ques-

tions by the court and was not advised that by plead-

ing guilty he was waiving certain constitutional rights,

nor was he asked to waive any rights (A. 41a, 43a).

The clerk entered the plea on his behalf and he never

spoke (A. 40a, 43a, 66a-67a). The petitioner also tes-

tified that he was innocent of the robbery charge (A.

98a, 68a, 70a).

The State offered no evidence to rebut or challenge

any of these facts (A. 7la, 72a, 73a). The Superior

Court found that the State was unable to directly re-

but or challenge the petitioner’s evidence. Notwith-

standing this, the court found that petitioner’s evi-

dence was not sufficient to overcome the “presumption

of regularity” that attaches to final judgments, or to

meet his evidentiary burden of proving that his plea

was not entered willingly or knowingly. The court

thus denied the petitioner’s motion to vacate the 1958

plea.

The petitioner appealed the decision of the Superior

Court to the Supreme Court of Rhode Island. On De-

cember 14, 2001, the Rhode Island Supreme Court

affirmed, finding that in collateral proceedings attack-

ing the validity of a conviction used for purposes of

sentence enhancement, the “presumption of regular-

* The facts set forth herein are taken from the transcript of pe-

titioner’s testimony at a hearing in Superior Court in Rhode Is-

land, 3/16/99, on petitioner’s application for post-conviction re-

lief. The transcript is included in the Appendix submitted

herewith.

10 The plea was given prior to the Supreme Court’s decision in

Gideon v. Wainwright, 372 U.S. 355 (1963).

ity” attaches to a final judgment of conviction notwith-

standing the absence of a record, and that defendant

had failed to prove that his 1958 conviction was not

knowing and voluntary by a preponderance of the evi-

dence. The court further found that petitioner was

represented by counsel at his 1958 plea hearing, and

had failed to demonstrate that his counsel was ineffec-

tive. Ouimette v. State, 2001 WL 163667 (R.I. 2001),

cert. denied, 536 U.S. ___ (2002).

A. The Petitioner’s 1958 Plea Was Not

Knowingly, Intelligently, And Voluntarily

Made.

1. Uncontroverted evidence establish-

ing that the 1958 plea was not know-

ing and voluntary.

No stenographic transcript of the 1958 plea hearing

is available. At the evidentiary hearing in Superior

Court on petitioner’s motion to vacate the 1958 plea,

petitioner testified that when the plea was entered he

was eighteen years old and had the benefit of a lim-

ited, seventh or eighth grade education (A. 36a, 38a).

He had no prior exposure to the Superior Court (A.

37a).11_ He never hired a lawyer to represent him and

11 The Superior Court’s finding that defendant had prior ex-

perience with the criminal justice system prior to making the 1958

plea was erroneous. After petitioner argued this in his brief to the

Supreme Court of Rhode Island, the State conducted its own in-

vestigation which revealed that petitioner did not in fact have prior

experience with the criminal justice system such that he would

have been aware of the implications of a nolo plea the time of his

1958 plea hearing, and so stated in its brief and at oral argument.

The Rhode Island Supreme Court did not note this in its opinion,

apparently believing this fact to be of no consequence to its deci-

sion. In any event, prior experience with the criminal justice sys-

tem at a time when the procedures followed in accepting pleas are

acknowledged to have been constitutionally deficient, [see, Bishop

v. Langlois, 106 R.I. 56, 63 (1969)], it is submitted, lends no sup-

port to a finding that petitioner’s plea at a later time was “knowing

and intelligent” based on the petitioner’s prior experience.

ee SS eS Oe ee

was never advised by the Court that he had a right to

have an attorney represent him, or that any lawyer

had been appointed to represent him (A. 38a, 39a,

40a, 41a, 42a). He never spoke to any lawyer between

his arraignment and when he was sentenced (A. 39a,

40a, 42a, 5la, 68a). He was never asked any ques-

tions by the court and was not advised that by plead-

ing guilty he was waiving certain constitutional rights,

nor was he asked to waive any rights (A. 41a, 43a).

The clerk entered the plea on his behalf and he never

spoke (A. 40a, 43a, 66a-67a). The petitioner also tes-

tified that he was, in fact, innocent of the robbery

charge (A.58a, 68a, 70a).

This evidence was uncontroverted. The State of-

fered no evidence to rebut or chal) snge any of these

facts, despite being invited to do su by the trial court

on four separate occasions (A. 71a, 72a, 73a). Indeed,

the trial court specifically found that the State was

unable to directly rebut or challenge the petitioner’s

evidence.

2. No presumption of regularity applies

to petitioner’s 1958 plea.

Despite the petitioner’s uncontroverted evidence,

the Superior Court, relying on this Court’s decision in

Parke v. Raley, 506 U.S. 20 (1992), found that the pe-

titioner had not presented sufficient evidence to over-

come the “presumption of regularity” that attaches to

criminal convictions and final judgments and denied

petitioner’s motion to vacate the 1958 plea. In affirm-

ing that decision, the Supreme Court of Rhode Island

stated, in pertinent part: .

Although, as Ouimette points out; Raley’s plea

was entered in 198612 years after Boykin collo-

quies became mandatory, we remain satisfied

that, in collateral proceedings attacking the valid-

12 The pleas in issue in Parke v. Raley, 506 U.S. 20 (1992),

were entered in 1979 and 1981, not 1986.

ity of a conviction used for the purposes of sen-

tence enhancement, the presumption of regularity

attaches to a final judgment of conviction, not-

withstanding the absence of a record. . . In the

present case, without question, the presumption

of regularity governs our consideration of the va-

lidity of Ouimette’s 1958 plea...

Ouimette v. State, 2001 WL 1636671 (R.I. 2001). In so

holding, the court overextended this Court’s decision

in Parke v. Raley with a result that directly conflicts

with prior decisions of this Court, specifically Boykin

v. Alabama, supra; Burgett v. Texas, 389 U.S. 109

(1967); and Carnley v. Cochran, 369 U.S. 506 (1962).

The “presumption of regularity” does not apply to a

plea that was given in 1958, eleven years before

Boykin v. Alabama was decided, where the record is

silent concerning waiver. Unlike the 1979 and 1981

pleas in Parke v. Raley, here Boykin colloquies had not

been “required for nearly a quarter century”, and were

not “well established” in 1958. Parke v. Raley, supra,

at 30, 31. In fact, at the time the petitioner’s plea was

entered, his federal constitutional rights to trial by

jury, to confront one’s accusers, and his privilege

against compulsory self-incrimination had not yet

been recognized as applicable to the states. See, Dun-

can v. Louisiana, 391 U.S. 145 (1968); Pointer v.

Texas, 380 U.S. 400 (1965); Malloy v. Hogan, 378 U.S.

1 (1964). It “defies logic”, therefore, to presume that

the petitioner was advised of such rights or to pre-

sume that he was asked to waive same and did so. Cf.

Parke v. Raley, supra, at 31. On the contrary, it is

reasonable to presume that he was not advised of

rights he did not yet possess and thus did not waive

same. Burgett v. Texas, supra, at 114-15; cf. Parke v.

Raley, supra, at 31. As this Court stated in Johnson

v. Zerbst, 304 U.S. at 458, 464 (1938): “courts indulge

every reasonable presumption against waiver of fun-

damental constitutional rights and we do not presume

acquiescence in the loss of fundamental rights. A

ohn abl BOA nh Jaa “Ay? ges

waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege.”

The Supreme Court of the State of Rhode Island,

where the plea was given, has acknowledged that at

the time petitioner’s plea was given, “defendants were

rarely informed by the court or, for that matter coun-

sel, of the effect upon their constitutional rights of a

plea of nolo contendere or guilty”. Bishop v. Langlois,

106 R.I. 56, 63 (1969). Accordingly, there can be no

“presumption of regularity” in this case, and the court

erred in relying on same to uphold the validity of peti-

tioner’s 1958 plea.

Furthermore, as there is a silent record, and no

presumption of regularity applies, the plea is pre-

sumptively void. Boykin v. Alabama, supra, at 242-

44. Coupled with the petitioner’s uncontroverted evi-

dence that he was never advised that by pleading

guilty he was waiving certain constitutional rights and

was never asked to waive any such rights, the fact

that petitioner had no prior experience with-the-crimi-

nal justice system, and that petitioner was never af-

forded assistance of counsel during his 1958 plea

hearing, as demonstrated hereinafter, his 1958 plea

cannot stand and must be vacated.

3. It was a violation of due process to

shift the burden of proof to the peti-

tioner to prove the invalidity of the

1958 plea by a preponderance of the

evidence.

The Rhode Island Supreme Court held that peti-

tioner had the burden of proving that his plea was not

entered willingly and knowingly, and had failed to

overcome the presumption of validity of the plea by a

preponderance of the evidence. 2001 WL 1636671 at

4. Petitioner submits that it was a violation of due

process to shift the burden of proof to petitioner to

prove the invalidity of the 1958 plea by a preponder-

ance of the evidence.

: |

In Carnley v. Cochran, 369 U.S. 506 (1962), the

Court held that no burden can be imposed upon an

accused to demonstrate waiver of counsel unless the

record reveals that the accused intelligently and un-

derstandingly acquiesced to the waiver. Id. at 516-17.

In Boykin v. Alabama, supra, the Court held that the

same standard must be applied in determining

whether a guilty plea is voluntarily made. 395 U.S. at

242.

In the instant case, the record is silent concerning

the petitioner’s waiver of his constitutional rights. The

court below, however, placed the burden of proof on

the petitioner to overcome the presumption of regular-

ity that attaches to pleas that have become final. As

demonstrated above, no presumption of regularity ap-

plies in the circumstances of this case. And because

no waiver of constitutional rights can be presumed

from a silent record, it was a violation of due process

to place the burden on the petitioner to prove the ab-

sence of a knowing and intelligent waiver by a pre-

ponderance of the evidence. Carnley v. Cochran, su-

pra, at 516-17. In addition, the petitioner testified

that he was never advised of the constitutional protec-

tions that he was waiving by pleading nolo contendere,

nor was he asked to waive any such rights. This evi-

dence was uncontradicted.

Thus, as the record is silent, and the uncontra-

dicted evidence produced by petitioner established

that the 1958 plea was not knowing and voluntarily, it

was obtained in violation of due process and is there-

fore void. McCarthy v. United States, 394 U.S. 459,

466 (1969).

Finally, the petitioner’s 1958 conviction was an

“element” of a separate offense, 18 U.S.C. §3559 |

(c)(1)(A), for which he was sentenced to life imprison- |

ment — a term well beyond the statutory maximum

for the offense he was actually indicted for, tried and

convicted by the jury, ie., 18 U.S.C. §894. It was thus

the State’s burden to prove beyond a reasonable doubt

each and every “element” of that offense, including

that the 1958 conviction was obtained by constitu-

tional means. Accordingly, it was a violation of due

process for the Rhode Island Supreme Court to rely on

a presumption of regularity to shift the burden of

proof to the petitioner to demonstrate the invalidity of

the 1958 conviction by a preponderance of the evi-

dence where the record was silent. See, Parke v.

Raley, supra, at 37-39 (Blackmun, J. concurring);

Boykin v. Alabama, supra; Apprendi v. New Jersey,

supra.

4. The court erred in finding that peti-

tioner was represented by counsel, or

received effective assistance of

counsel, at his 1958 plea in accor-

dance with the Sixth Amendment.

a. The petitioner was not repre-

sented by counsel.

The petitioner was not represented by counsel at

his 1958 plea hearing. The Rhode Island Supreme

Court’s finding that “during testimony petitioner ad-

mitted to having been represented by counsel during

the plea hearing” is simply not true.!3 Instead, it

represents a tortured reading of petitioner’s testimony.

The petitioner never testified that he was represented

by a lawyer. Rather, the petitioner testified that he

never hired a lawyer, that the court never advised him

that it had appointed a lawyer to represent him, and

that he never spoke to any lawyer between his ar-

raignment and when he was sentenced on the robbery

charge (A. 38a-42a, 51a). The petitioner acknowl-

13 Although footnote 5 of the court’s opinion is confusing, it

would appear that the court relied in part on a “presumption of

regularity” in finding that petitioner was represented by counsel.

Since the plea was given in 1958, five years before Gideon v.

Wainwright was decided, no presumption that petitioner was af-

forded the right to counsel would apply. No such presumption is

proper in any event. See, Burgett v. Texas, supra, at 114-15.

m |

edged that there was a lawyer in the courtroom when

he appeared in Superior Court on December 12, 1958,

whom petitioner never met previously, never spoke to,

and never saw again (A. 40a-42a), and that there were

“a couple of guys” standing next to him at his appear-

ance on January 12, 1959 (A. 43a). None of these in-

dividuals ever identified themselves to the petitioner or

to the court as attorneys representing the petitioner,

however. In fact, there was no evidence that anyone

purported to actually “represent” the petitioner on ei-

ther occasion of his appearances in Superior Court.

This evidence was uncontroverted. The State of-

fered no evidence that the petitioner was represented

by counsel or that he waived his right to counsel. The

record is silent in this regard, and waiver cannot be

presumed from a silent record. See, Carnley v. Coch-

ran, 369 U.S. 506 (1962). Moreover, at that time peti-

tioner’s federal right to counsel had not yet been rec-

ognized as applicable to the states. Thus it is

reasonable to presume that the petitioner did not

waive a right he did not yet possess. See, Parke v.

Raley, 506 U.S. 20, 31 (1992).

In these circumstances, where the conviction at is-

sue occurred before Gideon v. Wainwright, 372 U.S.

355 (1963), and where the record does not show that

petitioner was represented by, or that he waived his

right to counsel, the petitioner’s conviction is pre-

sumptively void. Burgett v. Texas, 389 U.S. 109

(1967). The burden was on the State to prove the va-

lidity of the conviction, and as the State offered no

evidence to rebut the presumption of invalidity, the

plea must be vacated.

b. The petitioner did not receive ef-

fective assistance of counsel as

required by the Sixth Amend-

ment.

Even accepting the court’s erroneous finding that

petitioner was represented by counsel at the 1958

Pe ee ee ae ee ae |

hearing, it is readily apparent that petitioner did not

receive effective assistance of counsel as guaranteed

by the Sixth Amendment. In view of the uncontro-

verted evidence that no attorney explained to the peti-

tioner what “nolo contendere” meant or that petitioner

was pleading guilty, never advised him what the

criminal charge was that was brought against him or

the facts of the case, never advised him of the ele-

ments of the crime of robbery, never advised him of

the effect or consequences of his plea, never advised

him that by pleading guilty he was waiving certain

constitutional rights, and in fact, never spoke to the

petitioner at all, it cannot seriously be contended that

petitioner received effective assistance of counsel.!4

“That a person who happens to be a lawyer is present

at trial alongside the accused . . . is not enough to sat-

isfy the constitutional command.” Strickland v. Wash-

ington, supra, at 685.

A defendant whose attorney’s “assistance” is as

woefully inadequate as here is no better off than one

who has been denied counsel altogether. In the cir-

cumstances of this case, where the evidence demon-

strates unequivocally that petitioner did not receive

“effective” assistance of counsel, or any assistance of

counsel for that matter, and where the record is silent

and thus no factual basis for the plea is shown, preju-

dice must be presumed. Strickland v. Washington, su-

pra, at 692. When these circumstances are consid-

ered with the petitioner’s unchallenged testimony that

he was innocent of the offense with which he was

charged, prejudice was, in any event, clearly estab-

lished. Finally, it cannot be said that a plea under

these circumstances could be voluntary and intelli-

gent, and thus, petitioner submits, prejudice is irrele-

14 The court’s statement that “Ouimette utterly failed to intro-

duce any evidence that his counsel was ineffective, nor has he es-

tablished that counsel’s performance was so deficient as to

amount to a denial of counsel’, is ludicrous in the face of this tes-

timony.

vant. United States v. Tucker, 404 U.S. 443, 447 2.5

(1972).

1976 Plea.

On September 15, 1976, the petitioner entered a

plea of nolo contendere in the Superior Court to

charges of assault with a dangerous weapon and con-

Spiracy to commit assault with a dangerous weapon.

The Superior Court sentenced the petitioner to three

years, suspended, and four years of probation.

The 1976 plea of nolo contendere was not voluntar-

ily and intelligently made with an understanding of

the charges, and no factual basis existed for the plea.

A. The Petitioner’s 1976 Plea Was Improp-

erly Used To Enhance Petitioner’s Sen-

tence Because It Was Not Voluntarily

And Intelligently Made With An Under-

standing Of The Nature Of The Charges,

And Because No Factual Basis Existed

For The Plea.

1. Factual background.

On September 15, 1976, the petitioner appeared

before a justice of the Superior Court and entered

pleas of nolo contendere to charges of assault with a

dangerous weapon and conspiracy. During the collo-

quy with the court, the prosecutor was asked to de-

scribe the evidence that he was prepared to produce in

support of the charged offenses. He initially pointed

out that his decision to amend the charge was based

in part on the victims’ complete absence of any will-

ingness to cooperate with the investigation into the

matter and refusal to be witnesses. The description

that followed described conduct by other inmates

charged as co-defendants. The prosecutor specifically :

stated “[A]t no time did any witnesses observe this de- |

fendant actually have physical contact with the two

victims.” (A. 77a). He also made no reference to any

evidence that would have established any conspirato-

rial agreement between the petitioner and these other

men to engage in the assault as charged, or any evi-

dence establishing the petitioner’s culpability as a

principal other than his mere presence at the scene

and motive (A. 77a-77a).

Subsequently addressing the petitioner, the court

did not recite the elements of the charged offenses or

attempt to explain same, nor did the court interrogate

the petitioner as to any of the elements. Instead, the

court created its own version of events which incul-

pated the petitioner, acknowledging that the prosecu-

tor had not stated anything about any agreement be-

tween the petitioner and the other inmates that would

have established his involvement in a conspiracy to

engage in the assault, or the petitioner’s responsibility

as a principal (A. 78a). The court then asked the peti-

tioner if that was pretty much the way it happened.

The petitioner responded in the negative, stating, “Well

no, actually I went over there to bang him in the

mouth, but it didn’t work out that way.” (A. 78a). Ob-

viously frustrated with the petitioner’s failure to ac-

cept the factual basis, the court then said:

Well you realize by tendering this affidavit that

you're admitting it happened that way and that it

got out of hand, that you encouraged your friends

to go out there and help administer this beating

and that you agreed to go out there and give him a

beating. The fact that it got out of hand is besides

the fact. That’s what the effect of your asking me

to accept the nolo plea means, do you understand

that?

(A. 78a-79a). The petitioner agreed that that would be

the effect of the affidavit. He never agreed, however, to

those facts which the court developed on its own to

Satisfy the factual basis requirement.

In subsequently explaining the basis for his sen-

tence recommendation, the prosecutor again alluded

to the factual basis for the plea and said the following

significant things:

1) We have no witnesses who can put Mr.

Ouimette in direct physical contact with any

of the victims.

2) Beyond [defendant’s presence], and the fact

that we have a motive for the attack, we have

very little other evidence against this man.

3) If we had gone to trial it is the considered

opinion of myself and the police officers who

worked on this case that there would be a very

good likelihood that this man would be found

guilty of some charge. However, there was a

very good chance that he would be found

guilty of a charge, only a misdemeanor, a

lesser included offense...

(A. 8la-82a). Once again, the prosecutor referred to

no evidence that would have established the peti-

tioner’s participation in any conspiracy, and acknowl-

edged the absence of any evidence establishing peti-

tioner’s guilt as a principal other than mere presence

and motive.

Following that turn of events, petitioner’s counsel

then described his understanding of the facts:

There was no conspiracy in the sense of a plot-

ted plan, scheme and contrived, planning and

meeting of the minds of four inmates . . . There

certainly was an abundant time for that two-

minute walk around the - - - to have the elements

of conspiracy met... But my client wants to rep-

resent to the Court that during that period, al-

though there may have been a mutual intent to go

there and use some force on Mr. Meo, not deadly

force, but some force on Mr. Meo, they did not ca-

pitulate or sit down and plan a cold-blooded bru-

tal beating. Once they did get to that area Mr. |

Ouimette, as the evidence - - - the state them-

selves would show - - - did nothing to actively par-

take in abusing either of those two individuals .

(A. 84a-85a). Defense counsel’s summation also con-

tained no reference to facts demonstrating petitioner’s

guilt as a conspirator or as a principal.

2. The 1976 plea was not made volun-

tarily and intelligently with an un-

derstanding of the nature of the

charge.

The judge who presided over the 1976 plea hearing

later acknowledged that he did not recite the elements

of the offenses charged nor did he interrogate the peti-

tioner as to each element. (A 93a-94a). See, United

States v. Wetterlin, 583 F.2d 346, 350-51 (7% Cir.

1978)(conspiracy is not a self-explanatory legal term

or so simple in meaning that it can be expected or as-

sumed that a lay person understands it); United States

v. Longoria, 113 F.3d 975, 977 (9th Cir, 1997). Peti-

tioner’s counsel never represented that he had ex-

plained the elements of the charged offenses to the pe-

titioner, and the petitioner repudiated the factual

scenario that was proposed by the judge. In these cir-

cumstances, it cannot be said with ‘any degree of as-

surance that the petitioner received “real notice of the

true nature of the charge against him.” Henderson v.

Morgan, 426 U.S. 637, 644-45 (1976), quoting Smith v.

O’Grady, 312 U.S. 329, 334 (1941). Thus, the peti-

tioner’s plea was invalid because it was not made vol-

untarily with an understanding of the nature of the

charges. McCarthy v. United States, supra, 394 U.S.

459. Accordingly, it was improperly used to enhance

petitioner’s sentence.

3. No factual basis existed for the plea.

It is well settled in Rhode Island that Superior

Court Rule 11 requires that a factual basis for each

essential element of the crime be shown. State v.

Feng, 421 A.2d 1258, 1269 (R.I. 1980); State v. Wil-

liams, 122 R.I. 32, 37, 404 A.2d 814 (1979); Johnson

v. Mullen, 120 R.I. 701, 390 A.2d 909 (1978). See

also, Santobello v. New York, 404 U.S. 257 (1971).

naeeeeenne >

In neither the prosecutor’s recitation, nor defense

counsel’s version of the events, is reference made to

sufficient evidence demonstrating that the petitioner

was part of a conspiracy or that he participated in the

assault. United States v. Wetterlin, supra, at 351-352;

United States v. Tucker, 425 F.2d 624 (4% Cir.

1970)(generalized admissions or statements by defen-

dant’s counsel do not meet Rule 11’s requirement that

the court be satisfied that there is a factual basis for

the plea). The court’s creation of facts to satisfy Rule

11’s factual basis requirement was improper because

it was not supported by the evidence as demonstrated

by the prosecutor’s description of the evidence that he

was prepared to produce. United States v. Wetterlin,

supra, at 353 n.10, citing McCarthy v. United States,

supra, at 465. More importantly, the court’s hypo-

thetical scenario was rejected by the petitioner. As no

factual basis existed for the petitioner’s 1976 plea, it

was invalid and improperly used to enhance peti-

tioner’s sentence.

IV. THE FEDERAL THREE STRIKES STATUTE, 18

U.S.C. §3559(c), IS UNCONSTITUTIONAL ON

ITS FACE AND AS APPLIED IN THE INSTANT

CASE BECAUSE IT SHIFTS THE BURDEN OF

PROOF TO THE DEFENDANT TO PROVE BY

CLEAR AND CONVINCING EVIDENCE THAT

THE CONVICTIONS USED TO ENHANCE HIS

SENTENCE WERE NONQUALIFYING FELONIES

UNDER THE STATUTE.

The sentencing judge found that the offense of con-

viction in this case was a qualifying felony under the

federal three strikes statute, 18 U.S.C. §3559(c), and

that petitioner had been convicted on separate prior

occasions of two or more qualifying felonies. In this

regard, the judge did not require the government to

prove the aggravating facts necessary to establish that

the offense of conviction and the prior offenses consti-

tuted “serious violent felonies” within the meaning of

the statute, or even that the petitioner had committed

the prior offenses. No evidentiary burden was placed

on the government at all.

The three strikes statute contains a disqualification

provision with respect to certain otherwise qualifying

convictions that states as follows:

(3) Nonqualifying felonies.

(A) Robbery in certain cases. Robbery, an at-

tempt, conspiracy, or solicitation to commit

robbery; or an offense described in paragraph

(2)(F)(ii) shall not serve as a basis for sentenc-

ing under this subsection if the defendant es-

tablishes by clear and convincing evidence

that —

(i) no firearm or other dangerous weapon

was used in the offense and no threat of use

of a firearm or other dangerous weapon was

involved in the offense; and ,

(ii) the offense did not result in death or se-

rious bodily injury (as defined in section

1365) to any person.

18 U.S.C. §3559(c)(3)(A). The judge acknowledged

that under the statute, the 1958 robbery would not be

considered a qualifying felony if the petitioner estab-

lished by clear and convincing evidence that there was

no use or threat of use of a firearm or other dangerous

weapon (A. 25a).15 Relying simply on the presentence

report, however, the judge found the 1958 robbery

and the 1976 assault to be qualifying felonies.

Petitioner submits that the burden of proof portion

of §3559(c)(3)(A) violates due process by shifting the

burden to petitioner to prove that his 1958 and 1976

pleas were nonqualifying felonies under the statute.

As set forth hereinabove, the aggravating facts found

by the judge were elements of a separate, aggravated

offense. Due process requires that the government

1S The petitioner’s 1976 assault plea also would not have con-

stituted a strike under the statute if the petitioner proved by clear

and convincing evidence that it was a nonqualifying felony.

bear the burden of proving all elements of the crime

beyond a reasonable doubt. In re Winship, 397 U.S.

358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975).

To have required the petitioner to negate by clear and

convincing evidence elements of the separate aggra-

vated offense for which he was sentenced to life im-

prisonment, while the government bore no burden of

proof at all, was a violation petitioner’s right to due

process. The error is pronounced when considered

with the fact that both the sentencing judge and the

First Circuit ruled that petitioner could not collaterally

challenge his state court convictions at his federal

sentencing proceeding. [See, footnote 4, supra.] Ac-

cordingly, petitioner requests that this Court rule that

it was constitutionally impermissible to place the bur-

den on the petitioner to negate by “clear and convinc-

ing evidence” the elements of the separate, aggravated

offense for which he stands sentenced to life impris-

onment.

Furthermore, petitioner submits that it was funda-

mentally unfair to sentence him to life imprisonment

based on two convictions, one from 1958 and the

other from 1976, that were obtained in violation of pe-

titioner’s constitutional rights as hereinbefore set

forth. Neither of those convictions should have been

allowed to be used to enhance petitioner’s. sentence.

See, Cooper v. Oklahoma, 517 U.S. 348 (1996).

CONCLUSION

Based on the aforementioned arguments and au-

thorities, petitioner respectfully requests that this

Court review this case by writ of certiorari.

Respectfully submitted,

Russell R. Weddell

Counsel of Record

4 Court Street, Suite 105

Taunton, Massachusetts 02780

(S08) 822-8400

Counsel for Petitioner

APPENDIX TABLE OF CONTENTS

APPENDIX A

Judgment of the United States Court of Appeals

for the First Circuit, dated February 21,

ST SLaaRMRLRCENRARiehRaeseeesanscrsoesacsscesenesccses

Memorandum and Order of the United States

District Court for the District of Rhode

Island, dated June 21, 2001 .......................

APPENDIX C

Transcript of Testimony, dated February l,

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APPENDIX D

Transcript of Testimony, dated March 16, 1999

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APPENDIX E

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APPENDIX F

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APPENDIX A

United States Court of Appeals

For the First Circuit

No. 01-2066

GERARD T. OUIMETTE,

Petitioner, Appellant,

UNITED STATES,

Respondent, Appellee.

Before

Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

JUDGMENT

Entered: February 21, 2002

Petitioner’s application for a certificate of

appealability is denied essentially for the reasons

stated in the district court’s Order of June 21, 2001,

and the appeal is terminated. We add only the

following observations.

1. Even assuming that retroactivity is not a

bar in this instance, we squarely rejected petitioner’s:

Apprendi-related arguments in United States v.

Gomez-Estrada, 273 F.3d 400 (1st Cir. 2001).

y & Even assuming, contrary to its plain

language, that 18 U.S.C. § 3559(c}(4) incorporates all

of the procedural safeguards of the Controlled

Substances Act, 21 U.S.C. § 851, petitioner’s 1958

and 1976 convictions fall outside the five-year

limitations period of § 851l(e). His statutory argument

therefore fails.

3. Because petitioner has three prior

convictions, at least two of which were counseled, he

would have had the requisite “three strikes” at

sentencing even had he made a collateral challenge to

the maximum extent allowed by Custis v. United

States, 511 U.S. 485 (1994).

4. Even assuming that the district court

should have considered petitioner’s two supplemental

claims, petitioner fails to make a substantial showing

of the denial of a constitutional right. The DeLuca,

Jr., tape does not negate the evidence that one day

after the Satin Doll incident, well within the time

period charged in the indictment, “Ouimette

instructed Gellerman to collect the $5,000 fine from

Duxbury.” United States v. DeLuca, 137 F.3d 24, 30

(Ist Cir. 1998), cert. denied, 525 U.S. 917 (1998). The

convictions relating to the Duxbury extortion would

stand whether or not petitioner initiated the $5,000

demand. As for the Dumont tape, Ms. Dumont did

not identify any testimony -- let alone perjured

testimony -- concerning the petitioner that she may

have given under coercion. in fact, she allegedly

testified that she “didn’t know nothin’ when [she] got

up on the stand.”’ This is consistent with her trial

testimony that she did not positively identify the

petitioner in the basement of the Satin Doll.

Moreover, “[t]he Satin Doll incident, lasting about ten .

minutes, was witnessed in part by three Satin Doll

dancers,” DeLuca, 137 F.3d at 30 (emphasis added),

one of them Ms. Dumont.

5. Even on direct examination, “i]t is not

error to inform a jury of the contents of a plea

agreement.” United States vy. Dockray, 943 F.2d 152.

156 (Ist Cir. 1991) (citing United States v. Munson,

819 F.2d 337, 344-45 (Ist Cir. 1987). The

prosecutor, however, referred to the district court as

the “final arbiter” of the witness’s truthfulness. We

nonetheless find no prejudice to the petitioner

because the defense’s cross examination clarified the

special circumstances under which the court may

have occasion to assess the witness’s credibility.

6. Given the weight of the evidence against

the petitioner, including his videotaped demand for

$50,000 and his recorded threat that, if Paul Calenda

failed to make a payment by Monday, “maybe [by]

Tuesday he’s going to get a shot,” DeLuca, 137 F.3d at

29, we are not persuaded that prejudice resulted from

counsel’s alleged failure to allow petitioner to testify to

his reasons for being “outrage[d]” at Calenda during

certain of his recorded conversations.

By the Court:

Richard Cushing Donovan, Clerk

By: JANICE M. O’NEIL

Chief Deputy Clerk.

CertifiedCopies: JudgeErnestoTorres

David DiMarzio, Clerk

CC: Gerard T. Ouimette

Russell R. Weddell

James H. Leavey, Esq.

Donald C. Lockhart, Esq.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

GERARD OUIMETTE

v. CA No. 99-489-T

UNITED STATES OF AMERICA

MEMORANDUM AND ORDER

Ernest C. Torres, Chief Judge.

Gerard Ouimette has filed a motion to vacate,

set aside or correct sentence under 28 U.S.C. § 2255.

For the reasons that follow, the motion is denied.

Background

A jury found Ouimette guilty of one ceunt of

conspiracy to collect extensions of credit by

extortionate means, a violation of 18 U.S.C. § 894, and

two counts of aiding and abetting the collection of

extensions of credit by extortionate means, violations

of 18 U.S.C. §§ 2 and 894. On each of the three

counts, Ouimette was sentenced to concurrent terms

of life imprisonment without parole pursuant to the

“three strikes” provision of 18 U.S.C. § 3559(c)(1)(A).

Following denial of his direct appeal and his petition

for certiorari, United States v. DeLuca, 137 F.3d 24

(1st Cir.), cert. denied, 525 U.S. 917 (1998), Ouimette

filed the instant § 2255 motion.

Although Ouimette’s motion was not received by

the Court until more than one year after the Supreme

Court denied certiorari, the government, apparently

does not dispute that the motion was deposited in the:

— ——————

es a ae

prison mail system within the one-year limitation

period specified by § 2255 and; therefore, was timely

filed. See Morales-Rivera v. United States, 184 F.3d

109 (1*t Cir. 1999) (motions pursuant to 28 U.S.C. §

2254 and 2255 considered filed when deposited in

prison’s mail system).

In his motion, Ouimette makes numerous

claims as to why his sentence should be vacated.

Many of those claims do not rise to the level of

constitutional violations or other violations that would

be cognizable under § 2255. The claims may be

grouped into six categories:

Insufficiency of the indictment

Prosecutorial misconduct

Witness issues

Erroneous jury instructions

Sentencing errors

Ineffective assistance of counsel.

FR Serr}

The first five claims will be referred to collectively as

the claims of “trial errors.”

Several weeks after his motion was filed and

after the one-year limitation period set forth in § 2255

had expired, Ouimette sought to “supplement” his §

2255 motion by adding claims (the “supplemental

claims”) that James “Slugger” Gellerman, a

government witness, testified falsely at trial; and that

Bobby Jo Dumont, another government witness, was

coerced by the government into giving false testimony

before the grand jury.

Discussion

a The “Supplemental Claims”

Since Ouimette’s supplemental claims, in effect,

sought to amend his § 2255 motion, they are governed

by Rule 15 of the Federal Rules of Civil Procedure.

United States v. Barrett, 178 F.3d 34, 46 (1* Cir.

1999), cert. denied, 528 U.S. 1176 (2000). Accord,

United States v. Thomas, 221 F.3d 430 (34 Cir. 2000).

Thus, whether those claims are time barred turns on

whether they “relate back” to the date on which

Ouimette’s § 2255 motion was filed.

The “relation back” of amendments to pleading

is governed by R. 15(c) which provides:

amendment of a pleading relates back to the

date of the original pleading when

(1) relation back is permitted by the

law ‘that provides the statute of limitations

applicable to the action, or

(2) the claim or defense asserted in

the amended pleading arose out of the conduct,

transaction, or occurrence set forth or

attempted to be set forth in the original

pleading

xk**

Since subsection (c) (1) does not apply to §

2255 motions, Davenport v. United States, 217 F.3d

1341, 1344 n.7 (11% Cir. 2000), cert. denied, __—~-U.S.

121 S.Ct. 1232 (2001) , the issue, in this case, is

whether Ouimette’s supplemental claims arise out of

the “conduct, transaction or occurrence” set forth in

his original motion. An amendment to a § 2255

motion does not relate back” if it “add[s] new claims or

. . . insert[s) a new theory into the case.” Thomas, 221

F.3d at 431. In order to “relate back,” an “untimely

claim must have more in common with the timely filed

claim than the mere fact that they arose out of the

same trial and sentencing proceedings.” Davenport,

217 F.3d at 1344. Accord, United States v. Pittman,

209 F.3d 314 (4% Cir. 2000); United States v. Duffus,

174 F.3d 333 (3" Cir. ), cert. denied, 528 U.S. 866

(1999); United States v. Craycraft, 167 F.3d 451 (8%

Cir. 1999). Otherwise, amendments “would be

tantamount to judicial rescission of [§ 2255’s} statute

of limitations period.” United States v. Esipinoza-

Saenz, 233 F.3d 501, 505 (10% Cir. 2000) (citing

Pittman, 209 F.3d at 318).

Neither of Ouimette’s two supplemental claims

arise out of the same “conduct, transaction or

occurrence” as the claims made in his initial § 2255

motion. Both supplemental claims do more than

simply clarify or amplify the claims contained in the

initial § 2255 motion. They present new claims that

are distinct from and unrelated to the original claims.

Thus, the supplemental claims are barred by the one-

year statute of limitations imposed by § 2255.

II. The Original Claims

Since the claims of “trial error” were not raised

on appeal, Ouimette is procedurally barred from

making those claims, now, unless he establishes

either “cause” excusing that failure and “prejudice”

resulting from it; or, alternatively, that he is “actually

innocent.” E.g., Brache v. United States, 165 F.3d 99,

109 (1st Cir. 1999) (quoting Murray v. Carrier, 477

U.S. 478, 485, 496 (1986)). ;

The ineffective assistance claims are not

procedurally barred because, ordinarily, such claims

cannot be raised on appeal. Knight v. United States,

37 F. 3d 769, 774 (1% Cir. 1994). In order to prevail on

an ineffective assistance claim, a defendant must

establish: (1) that the attorney’s representation fell

below an objective standard of reasonableness; and (2)

that the defendant was prejudiced by counsel’s

deficient performance. Strickland v. Washington, 466

U.S. 668, 688, 694 (1984).

A. Adequacy of Representation

In this case, the two classes of claims overlap

because Ouimette’s ‘cause” for not raising his “trial

error” claims on appeal appears to rest on the

suggestion such failure was attributable to counsels’

deficient performance.

A petitioner bears the burden of identifying the

specific acts or omissions that constitute counsels’

allegedly deficient performance. See Lema v. United

States, 987 F.2d 48, 51-52 (1* Cir. 1993). See also

Barrett v. United States, 965 F.2d 1184, 1186 (1* Cir.

1992). It is not enough to present bald assertions or

unsupported conclusions. See David v. United States,

134 F. 3d 470, 477 (1* Cir. 1998).

The adequacy of counsel’s performance is

evaluated “in light of the circumstances as- they

existed at the time of trial.” Strickland, 466 U.S. at

689. The standard applied is a highly deferential one.

“[The] court must indulge a strong presumption that

counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the

defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might

be considered sound trial strategy’.” Id. (quoting

Michael _v. Louisiana, 350 U.S. 91 (1955)). The

attorney’s judgment need not be right so long as it is

reasonable. United States v. McGill, 11 F.3d 223, 227

(1st Cir. 1993).

B. The Alleged “Trial Errors”

Obviously, counsel cannot be branded deficient

for failure to pursue claims that lack merit. See

United States v. Cronic, 466 U.S. 648, 656 n.19

(1984) (right to effective assistance of counsel does not

require the “useless charade” of presenting a meritless

defense.) Therefore, in determining whether

Ouimette’s failure to raise his “trial error” claims on

appeal is excused by counsels’ allegedly substandard

performance, the threshold question is whether there

is any merit to those claims. In each case, the answer

is no. Therefore, Ouimette has not satisfied even the

first prong of the Strickland test.

(1) Sufficiency of the Indictment

~ Ouimette claims that the indictment was

deficient in two respects. First, he argues that Count

I, which charged conspiracy to collect extensions of

credit by extortionate means, did not provide sufficient

notice of the crime charged and that Counts III and V,

each of which charged collection or attempted

collection of extensions of credit by extortionate

means, failed to adequately recite the facts underlying

those charges. Second, Ouimette argues that Counts

III and V failed to apprise him that he, also, was

charged with aiding and abetting the offenses

~ described in those counts.

An indictment satisfies an accused’s right to be

informed of the nature of the accusation against him if

it recites sufficient fact and describes the offense

charged with enough particularity that the accused is

able to prepare a defense. United States v. Serino,:

10a

835 F.2d 924, 929 (1 Cir. 1987) (quoting Hamling.v.

United States, 418 U.S. 87, 117 (1974)).

In this case, the indictment easily passes that

test. Ouimette’s claim of inadequate notice,

apparently, is based on the redacted version of the

indictment that was provided to the jury for its use

during deliberations and not on the actual indictment.

In order to avoid any unfair prejudice to the

defendants, the redacted indictment omitted

approximately 1 % pages of overt acts that were

alleged in the actual indictment. Those allegations

were more than enough to inform Ouimette of the

charges against him and the basis for them. The

same is true with respect to the aiding and abetting

charges contained in Counts III and V. Those counts

expressly allege violations of 18 U.S.C. § 2 which

defines the offense of aiding and abetting. That

explicit reference was enough to apprise Ouimette that

he had been charged with aiding and abetting.

Indeed, “aiding and abetting is an alternative charge

in every count, whether explicit or implicit.” United

States v. Oreto, 37 F. 3d 739, 751 (1*t Cir. 1994).

Since there is no merit to Ouimette’s claims

that the indictment was flawed, counsels’ failure to

raise those claims at trial or on appeal was not

objectively unreasonable. See United States v. Cronic,

supra.

(2) Prosecutorial Misconduct

Ouimette cites what he claims were several

instances of prosecutorial misconduct during his trial.

These claims require little discussion because they

rest, almost entirely, on inaccurate or unsupported

assertions.

lla

For example, Ouimette claims that the

prosecutor improperly vouched for the credibility of

James Gellerman, a key government witness, by giving

the impression to the jury that the Court and

government were guaranteeing the truthfulness of

Gellerman’s testimony. That claim is based on the

presentation of evidence regarding a plea agreement

under which the government promised to recommend

a more lenient sentence in exchange for truthful

testimony by Gellerman. The mere fact that the plea

agreement was admitted into evidence and that

testimony was elicited establishing Gellerman’s

understanding of the requirement that he testify

truthfully did not amount to impermissible vouching.

“It is not error to inform a jury of the contents of a

plea agreement, nor is it improper for the government

to call attention to a witness’ motivation for testifying.”

United States v. Dockray, 943 F.2d 152, 156 (1st Cir.

1991) (citing United States v. Sutherland, 929 F.2d

765, 775-76 (1% Cir. 1991)); United States v. Munson,

819 F.2d 337, 344-45 (1st Cir. 1987); and, United

States v. Martin, 815 F.2d 818, 821-23 (1st Cir. 1987)).

Ouimette also claims that the government failed

to disclose a cooperation agreement that it had with

Paul Calenda, one of the extortion victims, that would

have required Calenda to testify at trial. The

government denies that any such agreement existed

and Ouimette has failed to proffer any evidence that

such an agreement existed.

Finally, Ouimette claims that the government

failed to correct what it knew to be false testimony by

Paula Coppola, another government witness,

regarding several matters unrelated to the charges

against Ouimette. Once again, Ouimette has not

established, or even presented any evidence, that

Coppola’s testimony was false or that the government

knew it. Indeed, at trial, Ouimette had ample.

12a

opportunity to challenge Coppola’s testimony and, in

his memorandum, Ouimette acknowledges that his

trial counsel did a very effective job of attacking

Coppola’s credibility.

(3) Prejudicial Comments

Next, Ouimette claims that he was denied his

due process right to a fair trial because he was

unfairly prejudiced by comments made by Coppola

and by the government’s failure to call Robert Buehne

as a witness after the prosecutor had referred to

Buehne in his opening statement.

Coppola’s comments consisted of references to a

brief liaison she had with Ouimette “after he got out of

jail”; an unsuccessful attempt to telephone him the

following June “after he went back to jail” and a

statement that a late night visit by Ouimette shortly

after her husband’s death caused her to fear for her

safety.

The comments were nothing more than passing

references made by Coppola in an effort to fix the time

at which certain events occurred. Once _ those

comments were made, counsel was confronted with a

difficult tactical decision. Since it is unlikely that

those comments would have warranted a mistrial,

counsel had two choices. He could move to strike the

statements and ask- for a cautionary instruction

thereby running the risk of calling undue attention to

the comments.! Alternatively, he could “let sleeping

dogs lie” and focus the jury’s attention on the issues

on the case. Under the circumstances, it cannot be

said that counsel’s decision was an unreasonable one.

1 During the charge conference, the Court inquired as to

whether the defense sought an instruction on the subject. Defense

counsel stated that he did not. Tr. (10/24/95) at 28-29.

l3a

In any event, given the weight of the other evidence

against Ouimette, it is difficult to see how Ouimette

was prejudiced by counsel’s decision.

It is even more difficult to see how Ouimette’s

counsel could be faulted for the government’s failure

to call Buehne as a witness. As already noted,

Ouimette bears the burden of identifying the specific

acts or omissions that constitute counsel’s allegedly

deficient performance. See Lema, supra. However,

Ouimette has failed to explain what, if anything, he

contends that counsel could have or should have done

to force the government to call Buehne as its witness.

Nor has Ouimette demonstrated that he was

prejudiced by the government’s failure to call Buehne.

There is no indication that Buehne’s testimony would

have been favorable to Ouimette and the limited

references made in the government’s opening

statement to Buehne’s involvement in the events

underlying the charges against Ouimette were amply

supported by the testimony of other witnesses.

If Ouimette’s claim is that counsel should have

pursued the matter by requesting a “missing witness”

instruction, the answer is that counsel did so.

However, this Court denied that request and the First

Circuit affirmed on the ground that Buehne’s

testimony would have been merely cumulative.

DeLuca, 137 F.3d at 38.

(4) Jury Instructions

Ouimette claims that the Court erred in

instructing the jury that conviction on the extortion

counts required proof that Ouimette had acted

“knowingly and willfully” when the indictment alleged

only that he acted “knowingly.”

l4a

It is difficult to understand how Ouimette

claims to have been prejudiced by the alleged error. If

anything, instructing the jury that the government

had to prove something more than what was required

would have been advantageous to Ouimette. In any

event, Ouimette appears to have confused the Court’s

charge on extortion with the charge on aiding and

abetting.

Ouimette also claims that the Court erred in

not providing the jury with a definition of “extortionate

extension of credit” contained in 18 U.S.C. § 891(6).

However, Ouimette was charged with a violation of §

894 and the term “extortionate extension of credit” is

used to describe violations of § 892(a).

Since there is no merit to either of these claims,

Ouimette’s counsel cannot be deemed ineffective for

failing to raise or pursue them. See Cronic, 466 U.S.

at 656 n.19; Vieux v. Pepe, 184 F.3d 59, 64 (1% Cir.

1999), cert. denied, 528 U.S. 1163 (2000).

(5) Sentencing Errors

Next, Ouimette claims that the Court erred in

sentencing him to life in prison without the possibility

of parole pursuant to 18 U.S.C. § 3559(c) because he

did not have prior convictions for “two or more serious

violent felonies.” 18 U.S.C. § 3559(c)(1)(A)(1). Ouimette

does not dispute that he had three prior convictions

for robbery, conspiracy to commit murder and assault

with an dangerous weapon. However, Ouimette argues

that none of those offenses are “violent felonies;” and,

even if they are, § 3559(c) is unconstitutional. Both

arguments were made by Ouimette’s counsel at the

time of sentencing and rejected by this Court.

Ouimette also argues, for the first time, that

two of the convictions resulted from guilty pleas that.

15a

the government failed to prove were voluntary and

intelligent and that his counsel was ineffective for not

challenging them on those grounds. That argument,

too, fails because the Supreme Court has made it

clear that the state court conviction cannot be

collaterally attacked in a_ federal sentencing

proceeding except on the ground that it was

uncounseled. See Custis v. United States, 511 US.

485, 487 (1994). In fact, the Supreme Court has

barred such challenges even in § 2255 proceedings.

See Daniels v. United States, __s«>U.S. __, 121 S.Ct.

1578 (2001).

C. The Ineffective Assistance Claim.

Ouimette’s “ineffective assistance” claim is

based on cou. -'s failure to present or pursue the

alleged “trial errors”. Since the Court already has

determined that counsel’s performance with respect to

those matters was not objectively unreasonable, this

claim, too, fails.

Conclusion

For all of the foregoing reasons, Ouimette’s

motion to vacate, set aside or correct his sentence is

denied.

IT IS SO ORDERED:

/s/ Ernest C. Torres

Ernest C. Torres

Chief Judge

Date: June 21, 2001

16a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

kek k kkk kkk kkk kkk ke eee! CRIMINAL ACTION

USA * NO. 95-029T

Government *

* THURSDAY,

VS. * FEBRUARY 1, 1996

GERARD OUIMETTE °

Defendant

kKKEKKKKKKKRKRKRKKKRKRKRKK KK Providence, RI

HEARD BEFORE THE HONORABLE ERNEST C.

TORRES DISTRICT JUDGE

(SENTENCING)

A-P-P-E-A-R-A-N-C-E:

For the Government: James H. Leavey, Esquire

and

Kenneth P. Madden, Esquire

For the Defendant: Richard M. Egbert, Esquire

and

Louis F. Robbio, Esquire

Court Reporter: Judith L. Montie

215 Federal Building

Providence, RI,02903

17a

[2] THURSDAY, FEBRUARY 1, 1996

SENTENCING

THE COURT: Good morning.

ALL: Good morning, Your Honor.

THE CLERK: The matter before the Court is

criminal action 95-29, United States of America

versus Gerard T. Ouimette.

THE COURT: Before we begin, I certainly would

expect this proceeding will be concluded this morning

but just in case it’s my understanding, Mr. Egbert,

you no longer have a problem this afternoon? | know

you had a commitment this afternoon.

MR. EGBERT: That’s correct.

THE COURT: All right. This matter is here for

sentencing. Mr. Ouimette having previously been

found guilty by a Jury of one count of conspiracy to

collect extensions of credit by extortionate means and

two counts of collection of extensions of credit by

extortionate means.

Mr. Ouimette and Mr. Egbert, have you both

had an opportunity to read the presentence report and

to discuss it with each other?

MR. EGBERT: Yes, Your Honor.

THE COURT: Mr. Ouimette, is that [3] correct?

DEFENDANT OUIMETTE: Yes.

THE COURT: Now, based on my review of the

presentence report it does not appear that there are

any factual issues in dispute. I know counsel have

raised a number of objections based on application of

those facts to the guidelines. For example, whether

Mr. Calenda received a body injury, whether Mr.

Duxbury received a body injury, whether there was

restraint used, what Mr. Ouimette’s role in the offense

was and whether they should be an upward departure

based on under representation of criminal history but

there did not appear to be any factual issues, is that

correct?

18a

MR. EGBERT: The factual issues were

contested at trial, Your Honor. You heard them at

trial.

THE COURT: Yes.

MR. EGBERT: A recontest of those issues at

this time is not an issue it seem to me. They are in

contest in the sense that Mr. Ouimette at all times

had relied on his not guilty plea and has not admitted

or agreed to any of those facts nor does he admit to

them at this [4] juncture.

THE COURT: I was referring not so much to the

prosecution version but as to the rest of the

presentence report?

MR. EGBERT: That is correct.

THE COURT: It seems to me, counsel, and if

you disagree you can explain to me why, that the first

issue that ought to be addressed here is whether

Section 3559, the so-called three strikes statute,

mandates a life sentence in this case. If it does, then

it would appear there is no reason to consider the

guideline issues because the guidelines themselves

and the case law as you know provide that a

mandatory minimum sentence takes precedence over

any penalty provided in the guidelines. Obviously, if

the three strikes statute does not mandate a life

sentence, then we would neéd to go through the

guidelines calculations. Does anybody disagree with

that?

MR. LEAVEY: The Government does not

disagree with that.

MR. EGBERT: I think I disagree in this sense.

And it’s that this Court is not the final arbiter of

whether or not 3559 applies and [5] the law is scant

as we know on 3559. There being to my knowledge

only one case that’s come out of the Circuit Court of

Appeals in both defining the statute and its history.

So were this Court to find, for example, that 3559

applies and another Court, the Court of Appeals or the

Supreme Court disagrees with this Court, then we.

19a

would have to undergo at that time a resentencing for

which the Defendant quite frankly I think is entitled to

have now. I think to leave it open would create both

double jeopardy issues, double sentencing issues,

continuous prosecution issues and the like. So I

think this Court and I would ask this Court to resolve

the sentencing issues that are extant in this case

today so that there be a full and complete record of

that for a single sentencing proceeding for which the

Defendant is entitled under statute and rule. And if

then, again, if all of that upon review is upheld and

3559 is upheld, if the Court so finds, that of course

would be the precedent sentence. If we did the other,

sentencing issues which would make up guideline

questions and the like would be resolved.

THE COURT: The problem with that, [6] Mr.

Egbert, that if the Court should find that 3559

applies, then the Court would be required, not only

applies but if it requires a life sentence, then that

would be the sentence the Court would impose and

there would be no guidelines sentence and even if that

determination was wrong and the Court made the

guidelines calculations, there would be guidelines

sentence. It would have to be remanded for

sentencing anyway.

MR. EGBERT: The guidelines calculations

would be made however and ruled on by the Court.

THE COURT: Only I suppose what the range

_ would be.

MR. EGBERT: Well, we may be talking the same

words in different language. The issue of base offense

level, role issues and issues of aggravation or

mitigation within the guidelines and all of objections

that we have made to the presentence report would be

resolved by the Court at a sentencing proceeding

today and although you would issue a sentence, it

seems to me, you would make your rulings on the

sentencing issues and all that would be left would be,

were [7] it to be remanded for example, and the Court.

>| Ge

20a

of Appeals would agree with this Court’s sentencing

ruling, all that would then cccur is a sentence within

the guideline range as finally established but all of

those guidelines issues and all of those sentencing

issues would have been acted upon and the Defendant

would have had the right to appeal them if at all with

his direct appeal in this case and not to rely on a

subsequent overruling or interpretation of 3559 by an

appellate Court causing a full resentencing but more

than the resentencing a determination of guideline

issues and the presentence report. I don’t know

whether they would be minimum mandatory or not in

the case that the Court is permitted to avoid or

abandon its obligations to determine the sentencing

guidelines in the case.

And just for the record on behalf of Mr.

Ouimette it is our position that you do so today and

that any failure to do so would be prejudicial to him

and cause him harm in the future.

THE COURT: Mr. Leavey, do you have anything

to say on this? .

MR. LEAVEY: Your Honor, I would [8] have no

objection to what Mr. Egbert proposes but I do think it

is a waste of the Court’s time. if the Court were to find

that life imprisonment applies, it goes to the First

Circuit. If the First Circuit disagrees, it has got to

come back here anyway. At that point the Court

could make a determination then as to the base

offense ievel, the appropriate sentence and the

Defendant would still have his right to appeal those

sentencing issues. I know of no right that he would

have to have issues decided that don’t have to be

_ decided at this point.

THE COURT: It seems to me, Mr. Egbert, you

haven't persuaded me that my original inclination

wasn’t correct. I don’t know what would be

accomplished by going through the guidelines

calculations at this point. As you say, the Court

would make determinations as to the applicable.

2la

guideline range at most. That is the most the Court

could do now. If it finds that 3559 mandates a life

sentence, then Mr. Ouimette would have to be

sentenced under that section and he has a right to

appeal his sentence. I don’t know how he would

appeal any interlocutory determinations the Court

might have [9] made as to some of the guidelines

calculations and even if that were the case, the case

would have to come back for sentencing anyway under

the guidelines. So I will start anyway with the 3559

issues and see where that takes us.

In that connection, I do want to acknowledge

that I have received memos from counsel, both

counsel in this case. I'll ask the Clerk to make those

memos a part of the file at the conclusion of this

proceeding. The memos were very helpful. I thank

counsel for them.

Now, as far as the 3559 issues are concerned, it

seems to me that the Defendant’s objections fall into

three categories. The first category is essentially

whether Section 3559 applies in this case. That is to

say whether the offenses of conviction in this case are

serious violent felonies and whether the Defendant

has been previously convicted of, at least, two other

serious violent felonies. Three have been alleged in

the information - conspiracy to murder, assault with a

dangerous weapon and robbery. That first category it

seems to me encompasses arguments five and six in

the Defendant’s memorandum. :

[10] The second category of objections go to the

constitutionality of section 3559. And that would

include objections one, three, four, seven and eight in

the Defendant’s memorandum.

And the last category would include, would

roughly I think be summarized as whether Section

3559, assuming that it applies and that it’s

constitutional, whether it requires a life sentence.

And that would deal with objections two and nine in

the Defendant’s memorandum.

22a

So I think the logical starting point is with the

first category. Does Section 3559 apply here? Are the

offense in question serious violent felonies within the

meaning of that statute. As I say, I have read your

memoranda. You don’t need to repeat anything that’s

in the memoranda but if counsel would like to amplify

on anything that you have said, I certainly would like

to hear what you have to say. Mr. Egbert.

MR. EGBERT: Your Honor, | frankly, again,

think our memorandum covers the issues. I have

spoken with Mr. Robbio and Mr. [11] Ouimette, not to

any advantage to repeat that what’s already been

stated in writing to the Court. Our positions are

described there. I don’t believe we have anything to

add to them either factually or otherwise.

THE COURT: All right.

Mr. Leavey, what does the Government have to

say on that?

MR. LEAVEY: Your Honor, the Government

agrees with Mr. Egbert as to the procedure. We feel

we have responded in the memorandum submitted to

the Court and we have nothing to add.

THE COURT: All right. The statute Section

3559(c)(2) and (c)(3) are the relevant provisions here.

(c)(2)(F)(i) or (c)(2)(F) defines serious violent felony.

Subsection I enumerates a number of crimes that fall

within that category and for present purposes the

crimes enumerated include murder as described in

Section 111 of the US Code or conspiracy to murder.

Robbery as described in Section 2111, 2113, and

2118, and extortion. Subsection 2 of (F) provides that

any other offense that is punishable by more than ten

years [12] and either has as an element the use or

attempted use or threatened use of physical force

against the person of another or by its nature involves

a substantial risk that physical force against a person

of another may be used in the course of committing

the offense would also qualify as serious violent

felonies.

23a

I guess I have to begin with the offenses of

conviction. Because the statute says that the

mandatory life sentence applies if a person is

convicted of a serious violent felony and has been

convicted on separate prior occasions of two or more

serious violent felonies. So both the offense of

conviction and at least two other offenses of which the

Defendant was previously convicted must be serious

violent felonies.

As to the offense of conviction or offenses of

conviction, conspiracy to collect extensions of credit

by extortionate means and collection of extensions of

credit by extortionate means, if we look first of all to

determine whether they are enumerated offenses

under (F) sub one, there are certainly some questions

raised. As I have indicated, the [13] offenses under

subsection (F) are described both by generic name and

reference to the Federal statute defining them and

they are also offenses that are described only by

generic name. The collection of an extension of credit

by extortionate means is not included in the first

category, nor is it included in the second category

unless it is encompassed by the generic term

extortion.

Now, in construing that statute what extortion

means as used in the statute, whether it encompasses

the offenses of conviction in this case, the Court has

to give the term its commonly accepted meaning and

furthermore in this case the statute expressly provides

that a serious violent felony refers to the enumerated

offenses by whatever designation. So the question is

whether notwithstanding its title or designation,

violations of Section 894 come within the ambit of the

“generic term extortion. It seems to me the answer to

that question has to be yes. First of all, the offenses,

at least, the substantive offenses in this case require

proof that extortionate means were used to obtain

something from another [14] person. And in essence

that makes it equivalent to what is commonly known

24a

as the crime of extortion; in other words, it’s a form of

extortion and it seems to me that it comes within the

generic term extortion that’s specifically enumerated

in subsection I. But even if it doesn’t, there is no

question, I don’t believe, that it does qualify as a

serious violent felony under subsection Il. _ It is

punishable by more than ten years in prison. The

statutory penalty is twenty years. And furthermore it

has as an element the use, attempted use or

threatened use of physical force against the person of

another. In other words, conviction of the substantive

extortion counts required proof that extortionate

means were used and extortionate means are defined

for purpose of that statute as the use or threatened

use of violence to harm another person.

It also meets the alternative requirement of

subsection II as a crime that by its nature involves a

substantial risk that physical force against the person

of another may be used in the course of committing

the offense. Certainly, the collection of an extension of

[15] credit by extortionate means by its nature

involves such a risk simply because, as I have said, it

is defined to include the use or the threatened use of

violence or harm to another person. In fact in this

case as the evidence indicated, it actual did involve

the actual use of physical force against the person of

another, both Mr. Calenda and Mr. Duxbury. So on

either count, it seems to me that the offenses of

conviction are serious violent felonies within the

meaning of the statute.

The next question would be whether the

Defendant was previously convicted of two or more

other serious violent felonies. As I have stated, the

three felonies that the Government relies on are

conspiracy to murder, robbery, and assault with a

dangerous weapon. Those were all offenses of which

Mr. Ouimette was convicted in the State Court.

As far as the conspiracy to murder is

concerned, murder and conspiracy to murder are.

25a

enumerated offenses. They are, specifically,

enumerated under subsection (F) sub I. That is exactly

what Mr. Ouimette was convicted of. Now, the

conviction was in the [16] State Court but the statute,

specifically, includes state offenses by whatever

designation. There is no question that he was

convicted in the State Court of a conspiracy to murder

and under Rhode Island Law, that offense is

punishable by life imprisonment. The definition under

Rhode Island Law is essentially the same as the

definition under the comparable Federal statute,

Section 1111. So certainly that offense qualifies as a

serious violent felony.

As to the robbery, again, robbery is one of the

specifically enumerated offenses under subsection (F)

sub I and, again, that is exactly what the Defendant

was convicted of in the State Court as indicated in

paragraph forty of the presentence report. The

elements under State law are virtually identical to

those under the Federal statutes referred to which

define various kinds of robbery for Federal purposes.

There is an escape provision that robbery may not be

considered if the Defendant establishes by clear and

convincing evidence that there was no use or threat of

use of a firearm or other dangerous weapon but it is

plain from the record here that a firearm was involved

and there [17] has been no rebuttal of that. So I find

that the robbery offense, which I should also note is

punishable under State law by not less than ten years,

would also qualify as a serious violent felony as a

specifically enumerated offense.

In addition, like the conspiracy to murder it

seems to me that the robbery would also qualify under

the alternative definition under subsection II as an

offense that has as an element the use or threatened

use of physical force against the person of another.

One of the elements of robbery is that there must be -

26a

some threat that enables the person to take whatever

it is that is being taken and also because of that,

robbery by its nature involves a substantial risk that

physical force may be used in the course of

committing the offense. So robbery certainly seems to

me qualifies as a predicate offense.

It may be redundant, but the third offense

relied on by the Government assault with a dangerous

weapon certainly is not an enumerated offense. And

therefore it is not a serious violent felony unless it

meets the alternative definition under subsection II.

[18] Once, again, it seems to me that this offense

qualifies under that section. It has as an element the

use or attempted use or threatened use of physical

force against the person of another and that is the

essence of assault with a dangerous weapon. It also

qualifies under the alternative definition under

subsection II as being an offense by its nature involves

a substantial risk that physical force may be used

against the person of another in the course of

committing the offense. Furthermore under Rhode

Island Law assault with a dangerous weapon is

punishable by a term of not greater than twenty years.

So it also meets the requirement that it is an offense

punishable by the ten years or more.

So as far as the statutory arguments are

concerned, I find that the statute does on its face, at

least, apply in this situation. We then turn to the

question of the constitutionality of the statute.

Mr. Egbert, do you have anything to add to

what you have stated in your memorandum?

MR. EGBERT: No. ,

[19] (PAUSE)

MR. EGBERT: one moment.

(PAUSE)

27a

MR. EGBERT: Once again, Your Honor, with

the concurrence of both counsel and the Defendant,

we have a written brief which outlines our objection to

the constitutionality of the statute and-rely on it.

THE COURT: All right.

Mr. Leavey, do you have anything to add?

MR. LEAVEY: No, Your Honor. The Govern-

ment has nothing in addition to that put into the

memo.

THE COURT: I will try my best to briefly

summarize the constitutional arguments made by the

Defendant as I understand them. The first is that the

three strikes statute violates the Eighth Amendment;

that is to say that it amounts to cruel and unusual

punishment because the punishment is dispropor-

tionate to the punishment that would otherwise be

imposed under the “guidelines for the offense of

extortion and I am using that as a shorthand term, for

the offenses of which the Defendant has_ been

convicted in this case. —.

[20] The response to that I think is pretty well

set forth in the Government’s memorandum and what

little case law there is on the subject. Generally

speaking, Congress has the prerogative of prescribing

the level of Punishment to be imposed for crimes.

That’s the function of a legislative body/to make a—

determination as to what penalty ought to be exacted

for committing particular crimes. There may be very

limited circumstances under which the penalty

prescribed by the statute may be held to violate the

Eighth Amendment and the only cases that really tend

to support that seem to be in the area of capital

punishment cases. Capital punishment is considered

to be so distinguishable from incarceration of

whatever duration that there have been isolated

instances. I think one case that know of where the

Court has said that there may be an Eighth

Amendment problem in applying the statutorily

prescribed penalty but this not one of those cases.

28a

Certainly life in prison is a very severe sentence for

extortion but as the Government has cited in its

memorandum, there are a number of cases that have

held that life sentences for even lesser offenses [21] do

not run afoul of the Eighth Amendment. So I don't

believe that this case rises to the level of an Eighth

Amendment violation.

The next constitutional argument is that a life

sentence here would violate the Fifth Amendment.

That it constitutes double jeopardy because it would

punish the Defendant again for prior convictions; in

other words, it’s more than-a mere enhancement and

it’s, in effect, additional punishment for the previous

convictions. The answer to that, again, has been

provided by both the Supreme Court and by the

Eighth Circuit in the Farmer case and it is that the

Defendant is not being punished under the three

strikes law for previous offenses. He would be

punished for the offenses of conviction in this case.

The previous offenses are simply taken into account in

fixing the penalty in this case and the Courts

including the Supreme Court have consistently

rejected the contention that statutes providing

enhanced penalties for recidivists expose Defendants

to double jeopardy. So! reject that argument as well.

‘The next argument is an ex post facto

argument. It is that application of [22] 3559 would

violate Article one Section nine of the ex post facto

clause because it retrospectively changes. the

consequences of the punishments imposed for past

acts. As I have already indicated, the law does not

impose a punishment for past acts or prior offenses. it

enhances the penalty for the offense of conviction in

this case. There is no ex post facto problem if it is

analyzed in those terms because this offense was

committed after the three strikes statute was enacted.

The statute was adopted on September 13, 1994. The

offenses in this case post date the enactment of that

statute. I think there certainly would be a problem if.

29a

the three strikes statute had been adopted after the

date of the offense in this case but it was not.

So therefore the Defendant was certainly on

notice of the possibility of an enhanced penalty and

had an opportunity to avoid the enhance penalty by

refraining from committing another serious violent

felony because the three strikes statute was enacted

before these offenses were committed.

The next argument is that [23] application of

_ the three strikes statute would deny the Defendant

due process and under the Sixth and the Fourteenth

Amendments or to put it another way that he would

have deprived of effective assistance of counsel with

respect to the prior offenses because he was not

advised that the consequences of pleading guilty to

those offense could expose him to a life sentence

under the three strikes statute. In effect, it seems to

me that what that argument is Saying is that the right

to effective assistance includes the right to be advised

with respect to the possible impact that conviction

might have on a sentence for a future crime that the

Defendant might choose to commit if the legislature

should later enact a statute providing for enhanced

penalties for those future crimes and it seems to me

that stretches the notion of effective assistance of

counsel way beyond its limits. I don’t think that there

is any effective assistance of counsel issue implicated

under these circumstances.

The last constitutional argument that the

Defendant has raised is that the statute under which

Mr. Ouimette was convicted in this case, Section 894

is itself [24] unconstitutional because the offense it

describes does not have a substantial affect on

interstate commerce and therefore, there is no Federal

jurisdiction in this case. There is no authority cited

for that proposition other than the | guess it was the

Lopez case that dealt with the firearms around the

schools. I think this is clearly distinguishable from

the Lopez case because the legislative history of the

30a

statute indicates that Congress found there to be a

significant affect on interstate commerce that these

so-called loan sharking activities had a significant

impact on interstate commerce and that provides the

necessary jurisdictional basis for the statute. So I

reject that argument as well.

Now, there are two other arguments. I may

have a little more difficulty fairly summarizing them

but one is, as I understand it, is argument number

two that a life sentence under the statute is

discretionary, not mandatory and that seems to be

based on the contention that the word shall as used in

the statute really means may. That seems to me to be

a very tortured reading of the plain language of [25]

the statute. It seems to me the word shall clearly

makes it mandatory if the statute is applicable.

The other argument is that the three strikes

statute is inconsistent with the guidelines and the

spirit of the guidelines and I think the short answer to

that is that the statute supersedes the guidelines.

There is ample case law and the guidelines themselves

recognize the fact that in the case of a conflict between

a mandatory minimum prescribed by the statute and

the sentence that would otherwise be imposed under

the guidelines, the mandatory minimum governs and

certainly one can argue and I think probably in many

cases with some merits, that these mandatory

minimums may not be wise. In some cases one could

argue they may not be fair but Congress certainly has

the power to prescribe them and when Congress does

so, they supersede the terms of the guidelines. So |

reject that argument as well.

Is there anything further before we proceed to

the allocution stage?

MR. LEAVEY: I don’t believe so.

THE COURT: Mr. Egbert?

[26] MR. EGBERT: Not that I know of, Judge.

THE COURT: Mr. Ouimette, at this time, you

have the right to address the Court and say anything:

3la

that you think ought to be taken in account in

imposing sentence. Is there anything that you would

like to say?

. DEFENDANT OUIMETTE: Well, Your Honor, I

am sure that whatever I say isn’t going to change the

outcome of account at this point but I just would like

to say one thing. As long as in this country there is

no other way to judge the truth except by what we

hear from the stand and Mr. Leavey and his office

continues to abuse their discretion which they have

the discretion to give lie detector tests to whoever joins

the witness protection program, that there are going to

be abuses and as long as there are abuses, people like

me are going to get hurt. That’s all I've got to say.

Excuse me, one thing more. If he agrees to give

Duxbury, Calenda, Buehne, Paula Coppola, and

Gellerman a lie detector test, any one of them passes,

I'll drop my appeal. One, just one.

[27] THE COURT: Mr. Egbert, do you have

anything to say on behalf of Mr. Ouimette?

MR. EGBERT: Your Honor, I have only things to

Say in the event the Court doesn’t determine that this

is a statutorily required mandatory sentence. Now,

that you've apparently made your rulings in that

regard, I am not prone to waste any air and to argue

on Mr. Ouimette’s behalf if the Court has determined

the sentence, as you have, that must be imposed in

this case is the mandatory life sentence.

I could go on at great length as many of

colleagues have and did before Congress as to the

efficacy of the statute which blindly permits these

kinds of impositions of sentence and permits the

United States Government through its prosecutors’

- Office to be determinator of who, when and where gets

those sentences and to use a statute such as this to

use as a club or bludgeon to extract testimony much

of which I am afraid will end up being lies from

witnesses or Defendants who are faced with life if they

choose to file it or not. :

note Ee

32a

So those are all arguments and messages which

I am hopeful as this process [28] goes will lead

Congress to make some sense out this kind of

sentencing scheme but if you ruled, as you have, that

your sentence is required by Congress then our only

place to go is the Court of Appeals and the Supreme

Court. To say something on his behalf to you after

such a ruling is in fact wasting air which I am not

likely to do.

THE COURT: All right.

Mr. Leavey, do you have anything to say?

MR. LEAVEY: No, Your Honor. I believe that

the Court has indicated it has no discretion. We feel

even if the Court did have discretion life imprisonment

would be an appropriate sentence in this case.

(PAUSE)

THE COURT: All right. Mr. Ouimette, would

you stand up please while the court imposes sentence.

As you recognize, Mr. Ouimette, there is no

suspense left here. The Court has ruled that the

statute applies and the statute requires a life sentence

and therefore I hereby commit you to the custody of

the Bureau of Prisons on the counts of conviction,

one, three [29] and four for a period of life without

parole. Those sentences to be served concurrently

with one another.

I am not going to impose any fine on any of

those counts because it appears from the presentence

report that you don’t have any assets with which to

pay a fine. I am required to impose a special

assessment on each count in the amount of fifty

dollars.

You may be seated, Mr. Ouimette, and again as

I am sure you know, you have the right to appeal your

conviction and the Court’s sentence. If you cannot

afford the cost of an appeal, you may petition the

Court to apply for permission to appeal without:

33a

payment of costs. If you do wish to appeal, as I am

sure you know, Mr. Egbert has probable told you, you

must file your appeal within ten days or you might be

considered to have forfeited your right to appeal. So

those are things you can discuss with Mr. Egbert

following the conclusion of this proceeding.

Do you have anything further, .Mr. Leavey?

MR. LEAVEY: I don’t believe so.

[30] THE COURT: Mr. Egbert, do you have

anything further?

Court will be adjourned.

34a

APPENDIX D

STATE OF RHODE ISLAND AND PROVIDENCE

PLANTATIONS

PROVIDENCE, Sc. SUPERIOR COURT

STATE OF RHODE ISLAND

VS. 75-1436

GERARD T. OUIMETTE

HEARD BEFORE

THE HONORABLE JUSTICE PFEIFFER

MARCH 16, 1999

APPEARANCES:

STEPHEN REGINE, ESO.

SPECIAL ASSISTANT ATTORNEY GENERAL

FOR THE STATE

JOHN F. CICILLINE, ESQ.

FOR THE DEFENDANT

INDEX

PAGE

GERARD T. OUIMETTE

Direct examination by Mr. Cicilline 3

Cross-examination by Mr. Fowler 14

Redirect-examination by Mr. Cicilline 47

35a

EXHIBITS

I.D FULL

1 31 33

2 47

3 95

4and5 96

... we could, please.

[2] MR. CICILLINE: If I could identify for the record

that PM 98-4646 involves a 1958 plea on indictment

29046. Application for post-conviction relief was filed

in that case September 14, 1998. I’m sorry. In 75-

1436 there was a motion to vacate filed on February

18, 1991. In November of 1998 the defendant moved

to amend the motion to vacate to a petition for post-

conviction relief. So there are two post-conviction

reliefs on the seventy-five application. There is a

transcript of September 15, 1976. It is the defendant’s

position the transcript supplements the record for the

purpose of that post-conviction relief application. On

the 1958 case testimony is necessary.

THE COURT: Okay. Then turning to the PM 98-

4646 case why don’t we proceed with that. Can we

have the transcript marked as it relates to the other

case once we have concluded this testimony?

MR. CICILLINE: The transcript is appended to

the application.

THE COURT: The State has no objection to the

authenticity of the being considered with respect to

that second application as recited by Mr. Cicilline?

MR. FOWLER: I haven't seen it, Your Honor,

but I assume it’s the same transcript that I have.

MR. CICILLINE: It’s the hearing before Judge

Needham.

[3] MR. FOWLER: The hearing before Justice

Needham on September 15, 1976, I have no objection

to that. ,

36a

THE COURT: Okay. Thank you. Mr. Cicilline,

you wish to have testimony presented by the

defendant.

MR. CICILLINE: Yes, Your Honor.

GERARD T. OUIMETTE, after having been

duly sworn testified as follows:

DIRECT EXAMINATION BY MR. CICILLINE:

> O FOF OF OF OFOFHOPOPO

> OF O

Mr. Ouimette, where were you born?

Providence, Rhode Island.

And in what year?

1940.

And who did you live with during your young life?

Please.

Who was your family during your young life?

Providence.

What was your family? What constituted your

family?

My mother, father, sisters and brothers.

And did your father live with you throughout your

life? When did your father die?

1948. I believe I was eight years old.

Okay. And do you recall what your father’s

employment was? [4]

He drove somebody.

Truck driver?

No, I think cars. He drove for some politician and

then he drove cabs.

During 1940 on, 1958, October of 1958, what was

your education?

I didn’t like school so it couldn’t have been much.

Seventh, eighth grade, whatever. I didn’t get along

in school well.

So you had no education beyond the seventh or

eighth grade?

Not really.

Okay. Between 1940 and October of 1958 were

you employed?

Yeah. I worked at Loutitt laundry for a while. That

was between ’57 and ’58.

OFOF OF ©

FO FOPFO>O> OFOF OF OFO>

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37a

Between 1940 and October of 1958 had you been

to the juvenile court? _

Yeah, a few times.

And had you ever been charged with a crime of

robbery?

No.

No?

Never.

Prior to October of 1958 did you take any classes

in the juvenile justice system, formal educational

class?

Prior to 1958?

Yes. [5]

No.

Had you-ever been to the Superior Court before

October of 1958?

No.

Sometime in 1958 you were arrested, is that

right?

Right.

Do you remember the date?

Not really.

It was prior to October 22nd when you were

arraigned in Superior Court, is that right?

Right, yeah.

Were you brought to the police station?

Right.

And who was there when you got there?

You mean the police?

No. In terms of other arrestees?

Well, I saw two bags on the table and when I got

into the cell block Bobby Kandos was there.

Was there anyone else arrested at that time?

Not in my case. But there were two other guys

that are recognized, Bobby Capuano and Bobby

Charpeneau.

Were they known to be associates of Kandos?

Yeah. [6]

38a

Now, the next day you were charged with this

offense, is that right?

Right.

Did you have a lawyer at the time you were

charged in District Court?

No.

On October 2274 you appeared in Superior Court,

October 22, 1958, is that right?

Right.

And who was your co-defendant in that case?

Bobby Kandos.

How old were you on the date that you were

charged with this offense?

I had to be eighteen.

And do you know how old Kandos was?

He was a little older than me.

When you appeared in the Superior Court on that

arraignment date did you have a lawyer?

No.

Had you made any efforts to hire a lawyer before

that?

No.

Do you recall whether or not a plea of any kind

was entered on that day? This is your first

appearance in Superior Court?

No, I think--oh, no. the judge says I’m going to

enter [7] a plea of not guilty.

Okay. And where did you go from there?

I went to the can.

All right. Did you see Robert Kandos while you

were in prison?

Yes. ;

Did you have any discussions with him about the

case?

Yeah.

What were those discussions?

Well, I said to him Bobby, what’s going on over

here? What am I doing in this case. What am I

doing in trouble with you? And he started to avoid -

OF OF OFOYF ODFYOYF OF AYP O

rOr OF OFO P

39a

me. He said, well, listen I can't explain nothing

now but down the road I will take care of things.

Don’t worry about it. I’m going to get a lawyer and

I’m going go get you out of trouble so, Okay. He

lives on one side. I live on the other side of the

; block. And in 1958 you didn’t get out much so I

didn’t really get much of a chance to talk to him.

Q All right. While you were in prison after October

22, 1958, did you ever see a lawyer while you were

there?

No.

| Were you given a copy of the indictment?

No.

Were you shown any discovery of any kind? [8]

No.

Did you in fact know the specifics of what you had

been charged with?

No.

Did the name Betty Kirzner mean anything to

you?

No.

Did you know what the legal definition of robbery

was at that time, the elements that constitute it?

No.

On December 12t of 1958 you were returned to

the courthouse?

Right.

Is that right?

Yeah.

Had you seen a lawyer up to that point?

No.

It was in this very courthouse?

Yeah.

And you were down in the cell block?

It might have been in this courtroom.

Were you down in the cell block?

Yes.

While you were down in the cell block did a lawyer

come down and talk to you? :

OFOFOFOPOFPOY> OF OD OF OFOFO>D>

)

SFOPrPOPrPOPrP OPOF ODF OY OF ADP

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40a

No. [9]

Were you shown a copy of an indictment on that

day?

No.

Did you have a discussion about the facts of your

case with anyone on that day?

No.

Did anyone discuss with you what the crime of

robbery was before you came into the courtroom?

No.

Did there come a time you were brought up into

the courtroom, is that right?

Yeah.

And do you recall who the judge was?

Joslin. *

When you walked into the courtroom at that

moment had you hired a lawyer?

No.

All right. Was there a lawyer there?

Yes.

What happened while you were in the courtroom?

Now this is on the 12% of December?

Yes.

The clerk said Your Honor this is nolo contendere

and first of all your name Gerard Ouimette. This is

nolo contendere. The judge said nolo contendere.

Okay. We will put it off until the twelfth of next

month and I [10] went back downstairs.

Did you know what the words nolo contendere

meant on December 12, 1958?

No.

Did you have any lawyer to explain to you what

those terms meant?

No.

While you were in court on that day, December

12, 1958, did your lawyer or the judge or the

prosecutor say what the elements were for the

crime of robbery?

No.

O > OF OF OF OF O> O >

OF OF OF O>

4la

Did anyone including the court, your lawyer or the

prosecutor discuss possible defenses to the crime

of robbery?

No.

Were any facts involving the actual crime of

robbery with which you were charged discussed

on that day?

No, not one.

Did anyone tell you what the penalty for robbery

was?

No.

Were you ever asked on that date ‘to Waive any

rights?

No. [11]

Did anyone tell you that a plea of nolo contendere

was equivalent to a plea of guilty?

No.

Did anyone tell you that by pleading nolo you were

giving up your right to a trial?

Did anyone tell you by pleading nolo you were

giving up your right-to be represented by a lawyer

at a trial?

No.

Did anyone tell you that if you had a trial you

could present witnesses in your own defense and

testify if you wished?

No. Z

Did anyone tell you by pleading nolo you were

waiving all of that?

No.

Did anyone tell you you had a right to appeal a

conviction after trial?

No.

Now after you finished that proceeding in the

court that day where were you brought?

Back to the can.

When you went back to the -- you say the can,

you mean the prison?

rOror OY

>rOFOrOr OFOPF O

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42a

Yeah.

When you went back to the prison that day did

you see a lawyer?

No. [12]

Did you ever see that lawyer again?

No, I never saw him, no.

Do you remember who the lawyer was?

I don’t even know who he looks like if he walked in

the courtroom today. If he walked in the

courtroom today I wouldn’t know what the guy

looks like.

This was certainly someone that was not retained

by you?

No, I didn’t have any money.

And did the court appoint a lawyer for you?

Not that they told me.

Now when you returned to the prison you didn’t

see a lawyer yet?

No.

How about Kandos, did you see him then?

Yeah.

And did you have some discussions with him?

Yeah.

And what were they about?

He just said that--I said, Bobby, what am I doing

over here? What’s going on with this case? What

am I doing here? What’s going on? And I asked

him about this nolo thing. He said don’t worry

about it. It means I don’t admit nothing. You're

going to go to trial. I got a bigger headache. I gota

rape case. But I’m going to get you out of trouble. I

got you a lawyer. Don't [13] worry about it. I’m

waiting and waiting for this lawyer to come and

see me.

On January 12% of 1959 you were brought back

to the Superior Court, is that right?

Right.

And was it the same judge that you had seen on

December 12t? |

rPO?rOr CO POPrPOrF OF OF CO >O >

O >

43a

Yes.

On that occasion was the lawyer present?

I can't tell you because I don’t what the guy looked

like, you know. I don’t know. There was a couple

of guys standing next to me but nobody said I’m

your lawyer, you know.

All right. Were you told on that date that you

weren't going to have a trial?

No.

Were you told anything about rights you were

waiving?

No.

Were you told anything about the penalty for

robbery?

No.

Were you asked any questions at all?

None.

What actually occurred on January 12t?

The clerk said again Your Honor this is nolo plea

contendere. The judge said okay nolo contendere.

I [14] sentence you six years ACI and that’s it. I

turned around and --

Before the judge pronounced sentence were you

given any opportunity to speak on your behalf?

No.

Were the facts explained to you that day?

Nothing.

After you got the six years where did you go?

Back to the can.

MR. CICILLINE: That’s all I have.

THE COURT: Mr. Fowler, questions?

MR. FOWLER: Yes.

CROSS-EXAMINATION BY MR. FOWLER:

Mr. Ouimette, you said at the time that you took

this plea you only had a seventh grade education,

is the correct?

About that.

So you never graduated from high school?

OFOPrPOYF OFO P

44a

No. I took the GED about 1970. Maybe 75, ’74.

I’m not sure. Around there.

And did you get your GED?

Yeah.

In fact not only did you get your GED, you took

some college courses, didn’t you?

No, I was tutored. [15]

You were tutored?

Yes.

You didn’t take any college courses?

Not that I can remember.

Back in September--on September 15% of 1976

when you were before Justice Needham in

Providence Superior Court do you recall being

asked, Mr. Ouimette, How far did you go in school

and you replied I took a few college courses, do

you remember that?

I remember I was tutored by college students. But

if you call that a course, you know, that’s what I

meant. I took the SAT just prior to that, too. I was

looking to go to college actually.

You stated that you had been in juvenile court a

few times, isn’t that correct?

Yeah.

When you went into the juvenile court do you

recall having some kind of exchange with the

judge before they did anything with you?

Well, actually when you got to juvenile when you--

this is in the ‘50’s now. The only times |! can

remember when I went in front of the judge, which

he was a judge, you sat at a table like this. There

was a couple of people there and they said well,

you know, we got to send you back to the training

school. That was it, you know. [16] You had no

rights. You had nothing. I had no lawyer. So I

mean when | got arrested in ’58 I figured this is

like the juveniles. You go in. You get accused of

something and they put you in the can.

OF OFOF OF OFO>?>

rFOPrOFrOPr> OF O

45a

And you testified, did you not, that before October

of 1958 when you appeared in Superior Court on

the robbery charge you had never been to court

before?

I don’t believe I was ever in Superior Court.

Were you in District Court?

I think I had a couple of--I had a fight or two.

Do you recall when you were arrested on the

robbery charge what the date was?

Not really, no.

Do you recall being put in prison on October 22nd

of 1958?

Yeah.

Was that with respect to the robbery charge?

Yeah.

And Mr. Kandos was also charged with that

robbery, isn’t that correct?

Right.

On August 1* of 1958 almost three months before

being arrested for this robbery do you remember

being in Sixth Division District Court charged with

a simple assault by the Providence police? [17]

I remember being in a restaurant one night and

Some guy come in and bumped me and I hit him a

punch and he hit his head in the juke box. I think

that’s the case you're talking about.

So my question to you do you remember being in

court for that charge?

I remember just getting arraigned.

Do you recall pleading to that charge and

receiving thirty days to serve?

Not really, no. I think I did get thirty days for it.

You don’t recall pleading to it in court?

No. What was the date, sir?

On August 1+ of 1958?

What date was the plea?

August 1* of 1958.

I pleaded the same day I got arrested--that I got

arraigned.

> O

Oo F&F OF OF OF O FOP O

O >

46a

Is that air to say you plead the same day?

It might have been. I remember being in court for

the assault.

At about three and a half weeks later on August

30t do you recall being back in court in Sixth Di-

vision District Court on a Providence police charge

of a misdemeanor larceny and pleading to that

charge for a [18] thirty day concurrent sentence?

That’s possible, yeah.

Do you recall that today?

Yeah, I say that I remember going to the lower

court, yeah.

Were you represented by a lawyer in either of

those cases?

I don’t think so.

Do you recall being represented by the Public

Defender?

Possibly, but I don’t remember.

Do you recall discussing those cases with an

attorney before you pled to them?

I’m trying to think. I don’t think I had a lawyer.

So you're telling us today that you have no

recollection of having a lawyer?

No, I just don’t remember having a lawyer. |

remember being there.

Do you remember being there? You remember

pleading to those cases? You're not disputing

that?

Yeah.

Mr. Ouimette, since October of 1958 you have

been in Providence Superior Court a number of

times, haven’t you?

Yes.

You entered pleas of nolo contendere to a number

of [19] different cases, haven’t you?

I pleaded to the possession of burglary tools. I had

a master key. Somebody developed it trying to sell

to the Russian people and I pleaded again with

> Or OP Or OF O

> O

OF OP

47a

Jack on a gun case for assault. They were guilty

pleas. I don’t know if they were nolo pleas.

You have also been to Providence Superior Court

for trials on certain cases, haven't you?

Yes.

In fact you have been convicted in Providence

Superior Court before, haven't you?

Twice, yeah.

Do you recall being before the Providence Superior

Court in July of 1965 and receiving a sentence of

fifteen months at ACI suspended?

‘Um-hum.

With three years probation for possession of

burglary tools?

That was the master key I told you about it, yeah.

Is that fair to say that was the master key that

they had found on you that fit George’s T.V. store

on Eddy Street? Do you recall that?

Well, the cops said I kicked the window in or

something. Either I was going through the front

door or I was going to kick the window in. [20]

We're talking about the same case?

Jack said they considered a master key a burglary

tool so I had to plead to it.

So on August 31s of 1965 do you recall having

that fifteen months suspended sentence revoked

and being sent to the ACI for fifteen months based

on a Warwick Police Department report that you

were involved in an incident with Ronald Sweet at

the rear of the Gordon Junior High School in

Warwick?

Yeah.

Isn't it also true the substantive charge was

dropped? That case was later dismissed?

Right.

On January 17% of 1968 do you recall being

charged with possession of a firearm while you

were in a private club in Providence and arrested

by Detective Vincent Vespia?

>O>

O >

48a

Honest Vinny.

Do you recall that?

They bargained with Corrine Grande. He lied so

much. Let me explain one thing about that case if

I can.

THE COURT: Go right ahead.

I went on a motion for illegal entry with Mr. Vinny

Vespia. I want to tell you his testimony was all in

contempt. He said that he walked in the door and

Mr. Anthony Caruso was cleaning the gun. He

pushed the [21] gun to me and I! pushed it out of

the way. That was the hearing. During the trial a

year later Mr. Vespia said when he walked in the

door Mr. Caruso was cleaning the gun. I took the

gun off Mr. Caruso turned around and pointed at

him and threw it over my shoulder. That’s how I

got found guilty if you want to talk about the case.

That’s all on record.

In spite of that isn’t it fair to say on May 28 of

1958 you were found guilty after trial to the

charge of possession of a firearm after having a

prior conviction of a crime of violence and--

1958?

And you were sentenced to five years at the ACI,

isn’t that correct?

Right. And the robbery case prevented me from

testifying in my own defense because I had the

robbery case in 1958.

On July 14% of 1969 isn’t it also true that you

were found guilty after trial on a Providence

charge of assault on a uniformed police officer and

you received a three year suspended sentence with

three years probation?

Another honest guy who was indicted five years

later for fourteen breaking and entries. If the jury

would have known his character then you think

they would have found [22] me guilty of assault

when he hit me in the head with a blackjack.

Come on.

Or OF O > or O YP O > OFO > O

49a

Is that a yeah?

The same cop that said I assaulted him hit me in

the head with a blackjack and then years later got

indicted for fourteen breaking and enterings and

got off the force. Indicted and charged.

Mr. Ouimette, do you remember my question?

Yes, sir.

My question to you is you were found guilty after

trial and sentenced to three years suspended,

three years probation?

Absolutely.

On June 4% of 1971 did you plead nolo to

possession of a firearm and received two years at

the ACI?

The guns were in my house. I had a bullet in my

foot. I had people trying to kill me, sir.

You were found to be in possession of a .45 caliber

pistol, isn’t that correct?

Yeah.

On March 16% of 1973 do you recall pleading to

the charge of failure to stop for a police officer in

Washington County Superior Court and receiving

a sentence of a fifty dollar fine and court costs?

Yeah, [23]

On July 10% of 1972 do you recall being

sentenced to ten years at the ACI consecutive to

the sentence you were already serving for

conspiracy to commit murder?

Right.

Isn't it also true that you later filed a motion

through counsel to reduce that sentence?

Yes.

That sentence was reduced from ten years to serve

consecutive to ten years to serve concurrent, isn’t

that true?

Because you know why? Can I explain that, sir.

THE COURT: Yes.

Mr. Billy Miller had forty years and he stuck upa

bank. He got forty years in the Federal:

Or OF

50a

penitentiary. They made a deal with him to take

four years to take the forty years away and give

him four years to do on some air force base. Six

months after the trial was over we found Mr.

Miller’s wife. She testified that he was hiding in an

alley way when somebody got shot. His wife later

said that he was an out-and-out liar to the police.

Told her to leave town. This is all on record. And

that she was home with him the whole month that

she testified he was hiding in an alley way. That

substantiated his testimony and they found him

not guilty on murder so another good case they

had against [24] me.

Mr. Ouimette, isn’t it also true on June 4% of 1971

you pled nolo contendere to a charge of assault on

a correctional officer and you were sentenced to

one year at the ACI consecutive to the sentence

you were already serving?

That was all one thing put together I believe.

Is it fair to say that was the sentence you received

on that?

Yes.

On September 15% of 1976 isn’t it also correct

that you plead nolo contendere on a charge of

assault with a dangerous weapon and conspiracy

to assault with a dangerous weapon and received

a sentence of three years suspended and four

years probation on each count concurrent?

Yes.

MR. FOWLER: May I have one moment please

Your Honor.

THE COURT: Yes.

Mr. Ouimette, isn’t it also true that on February

11 of 1984 you were found guilty of receiving a

firearm that had been transported in interstate

commerce after having a prior conviction of a

crime punishable by more than one year in jail,

that being in the Federal [25] District Court for

Oo rO>

OF O >

OF OP

Sla

the District of Rhode Island, and you received a

sentence of nine years, is that correct?

No. I received a sentence of eighteen years.

There were two counts, isn’t that correct?

Count 1 nine years, Count 2 nine years

consecutive.

Isn’t it also true that on February 1* of 1996 the

Federal District Court sentenced you to life

without parole based upon a conviction for

conspiracy to collect extensions of credit by

extortion and actual collections of credit by

extortion and aiding and abetting?

Right.

That’s correct?

Yeah.

Mr. Ouimette, you also stated that just minutes

ago that during the time of this robbery case in

Providence Superior Court in 1958 not only were

you never advised of the rights that you were

giving up or the rights that you in fact had but

there were never any discussions about the facts

of the case. Is that what your testimony is here

today?

I never saw a lawyer.

You appeared in court on more than one occasion

for that case, isn’t that correct? Three actually?

Well, three in Superior Court.

Mr. Ouimette, you’re familiar with the workings of

the [26] Providence Superior Court to some extent,

aren't you, with respect to criminal charges and

appeals?

You know, the worse thing I ever did I got thirty-

four years in the penitentiary. In the last thirty-

two years I never picked up a law book. You know,

you always count on your lawyer. You know what

I mean. You say, well, my lawyer is going to take

care of it. But your lawyer is not God, you know.

You know, they only have enough time in a day.

Is that a no?

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As far as the mechanisms of the courthouse?

Yes,

I mean, what do I know? What is there to know? I

mean I never went to law school. How do you find

out? Is the clerk got time enough to tell you, you

know? Now I imagine the laws are different. The

judge explains things to you. You have to sign an

agreement. In 1958 it was like makeup George. I

don’t know where you were, sir, but you know it

was like a Lassen. Bring them in and that’s it.

Mr. Ouimette, with respect to my question, today

as you stand here you are fairly familiar with the

workings of the court, are you not?

MR. CICILLINE: I object to this fairly familiar.

THE COURT: Overruled. You can answer the

[27] question.

In what sense?

You have been before the Superior Court more

than a dozen times, haven’t you?

I haven’t been in this courtroom in this court

house in the last twenty-five years.

That’s not my question, Mr. Ouimette. Did you

hear my question? The number of times that you

have been in court in the last forty years is over a

dozen, is it not?

I don’t know about here but probably over a dozen

with postponements and trials, yeah. Probably.

And on motions as well, isn’t that fair to say?

Well, you know, like I said, you know, you don't

think about motions because those are lawyers

things to do, you know. If you paid a lawyer you

figure he is going to take care of you. You don’t

ask questions.

And you have paid lawyers in the past, haven’t

you?

Absolutely.

Can you recall some of those lawyers?

Please.

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Can you recall--do you remember some of those

lawyers?

John Sheehan, Jack Cicilline. Mostly Jack. He has

been my lawyer since 1956.

How about Paul DiMaio, did he ever represent

you? [28]

Paul DiMaio, what a mistake that was.

How but Richard Egbert?

Egbert is an excellent lawyer.

He represented you as well?

Yes.

In fact he represented you in 1976, didn’t he?

Please.

In 1976 he represented you, didn’t he?

No.

In 1981?

81, what did I get? No. Jack represented me in

1981.

Mr. Egbert did represent you at some point, didn’t

he?

I didn’t meet Egbert until--oh, wait a minute. No,

no. 86 was the first time when I went back for a

hearing in Connecticut on the motion on the gun

case.

That was on your motion?

The Circuit Court in Connecticut sent it down for

a hearing because of something that happened.

We had a witness that said that the cops

kidnapped him. But Egbert didn’t handle it. It was

Konselor.

Mr. Egbert did represent you, correct?

In ’86, year, he represented me in my last case.

Stephen Famiglitti also represented you, did he

not?

No, he prosecuted me, but he never represented

me.

You have been represented by a number of

attorneys? [29]

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Yeah, but mostly by Jack and John Sheehan.

Never by Mr. LaFazia who has been listed as my

attorney from 1958. You can see that I never,

never let him represent me so I don’t even know

where he came from.

You have been in Federal Court as well on a

number of occasions, isn’t that fair to say?

On probably two or three occasions, yeah.

When you were in Federal Court you were

represented by counsel, were you not?

Yes.

Do you recall being before Federal District Court

judges in the past?

Federal District Court judges?

Yes.

Sure.

Have you plead in the Federal District Court in the

past?

Yeah, once. Assault on an agent. But Jack says

that if he thought I was going to assault him then

I am guilty of assault so what are you going to do.

In addition to that plea you have been convicted in

the Federal Court, correct?

Yeah.

After you were convicted or pled in Federal Court

before you were sentenced you were presented

with a presentence [30] report?

Absolutely. You have to read it and agree to it.

You were given that presentence report thirty days

before the time of sentencing and you were given

ten days to review it and object to any portion of

it, isn’t that fair to say?

Well, you know, what do you do? You’re found

guilty. The guy wants you to read the presentence

report. You know, what are you going to get. So

most of the time you just say listen here, I will

sign it, and that’s it, you know.

In answer to my question is that a yes?

What’s your question?

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My question is you are aware of the procedure?

Right.

And you had the opportunity to look at your

presentence reports in Federal Court, did you not?

Right.

And in fact on prior occasions when you were

presented with those presentence reports they

include the details of the arrests and convictions

you had in the past, isn’t that true?

Right.

And not only did they list arrests and conviction

but the listed dates, sentences? [31]

Right.

And a summary of the facts, isn’t that true?

Right.

And in fact specifically with respect to the 1958

robbery those presentence reports listed a

paragraph detailing that you along with your co-

defendant robbed the shop owner by name of Mrs.

Kirzner at gun point. That an undetermined

amount of cash was taken. That Mrs. Kirzner was

placed in a storage area in the cellar, and that you

later admitted that you were the suspect holding

the gun when the incident took place?

Not true.

You don’t recall reading that summary of facts?

I remember reading the presentence report but not

that I admitted to anything. As a matter of fact the

presentence report says that there were two

masked men. That wasn’t true either. That wasn't

true either.

MR. FOWLER: Your Honor, I have a document

entitled District Court of the United States for the

District of Rhode Island criminal proceeding

number 83-59 addendum to an opinion dated

June 24, 1984, I ask it be marked for

identification.

THE COURT: The clerk will mark it for

identification.

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MR. FOWLER: May I approach the witness. [32]

THE COURT: You may.

Mr. Ouimette --

THE DEFENDANT: Can I get my glasses over

there.

I’m going to show you a District Court opinion,

and that was issued on June 28% of 1984 by

Judge Raymond Pettine. On page two Judge

Pettine indicates that the presentence report in

this case shows the following. I’m going to ask you

to take a look at that first indented paragraph. It

begins 5-18-58 robbery.

I see these things were misleading. When my case

went for the sentencing Kandos with his lawyer

made a deal for his rape case and said that I was

the guy with the gun. That’s what I was sentenced

under those facts. Never did I admit in court or

anywhere else that I had anything to do with this

case.

MR. FOWLER: Your Honor, I move to have that

stricken. I haven’t even posed a question yet.

THE COURT: Granted.

Mr. Ouimette, my question to you is you just told

us that on more than one occasion you had the

opportunity to review your presentence reports

before you were sentenced in the District Court,

isn’t that true?

Yeah, absolutely.

And during those times have you ever seen that

charge with that paragraph of facts listed? [33]

Actually I didn’t. But let me tell you something

else. In 1984 --

You answered my question. Thank you.

Can I explain?

THE COURT: Your attorney will have an

opportunity to ask you further questions.

MR. FOWLER: Your Honor, I would ask that be

admitted as a full exhibit if there is no objection to

its authenticity.

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MR. CICILLINE: I have no objection.

THE COURT: Full exhibit.

THE CLERK: State’s one marked full.

Mr. Ouimette, let’s forget about January of 1959

for a moment. Let’s talk about some of your other

convictions in Providence Superior Court. On the

occasions later on in your career when have been

a Providence Superior Court do you recall taking

pleas before Providence Superior Court judges?

Yeah.

And you just stated, did you not, that the

procedure now is different, isn’t that correct?

Well, in the last couple of years I started to realize

that, you know, you start investigating. I never

knew you could attack prior convictions. That’s

why I never bothered to do anything about what

my presentence report [34] says.

Well, when was it you first realized that the

procedure is different now?

When I starting reading in the last year or two.

But in fact you had been to court at least nine

times in the cases that I just reviewed with you

before the last year when you started reading, isn’t

that correct?

Yes.

On those occasions when you pled to a case or

before you went to trial you were aware of the

rights that you had, isn’t that true?

Well, your lawyer usually takes care of all that so

when you're going to plead guilty he says well, I’m

going to go in there and plead you guilty, and

that’s it. Here’s what we are going to do, and so

there is not much. You don’t have to be a rocket

scientist. You have a lawyer that’s going to do all

the work for you. That’s what he’s paid for.

Is it your testimony today that in the last twenty

or so years Mr. Cicilline has never told you your

rights when you came to court either to be

involved in a trial or to take a plea?

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Oh, yeah. He told me we can go to trial or we

cannot go to trial. If you go to trial here’s what

they are going to prove. Here’s what they are going

to put against you [35] so we make a decision.

You have never been dissatisfied with Mr.

Cicilline?

Never. He is not only my lawyer, he is my friend.

He has always been honest with me.

You always felt he advised you of everything you

needed to know before you made a decision?

Absolutely.

Mr. Ouimette, in February of 1994 after you were

convicted by a jury for receiving the firearm that

had been transported into interstate commerce

after a prior conviction, isn’t it true that the

Government moved to have you sentenced under

the dangerous special offender statute?

That’s true.

You were quite aware they were attempting to do

that?

And they used that robbery charge again for that.

They used that robbery charge?

For everything.

As part of their reasoning, isn’t that correct?

Yeah, they destroyed me. That robbery charge was

the worst thing that ever happened to me in my

life, and I was stone innocent of it, sir.

MR. FOWLER: I just ask the answer be

stricken, the last portion.

THE COURT: I will allow it to stand. Go ahead.

[36]

And at the time that the Government attempted to

have you sentenced under the dangerous special

offender statute you through your attorney

objected to that, didn’t you?

Yeah, but not enough. I wish I would have known

a little about the law then that I know now.

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You know enough about the law to know that at

that time that you were denied and the

Government won and you were sentenced?

I am the only man in the country--I am going to

answer that--that is sentenced for one course of

conduct twice. No one else in the country is

sentenced this way. I am the only guy in the

country--went to the United States Supreme

Court--that got nine years for possession and nine

years of possession with erased numbers. You can

only possess a gun once. The Eighth Circuit Court

of Appeals just come down with a decision, the

Blockburger decision. I’m going to give him that

case which says the Federal District Court was

wrong. I am the only guy in the country sentenced

that way.

So you remember that one very well?

I have to live with these things. I mean I've been

crippled in the last few years.

My question is you remember that one very well,

don’t you? [37]

The two nine year sentences?

The sentencing enhancement?

Of course.

In fact when that occurred Judge Pettine issued a

written opinion, the addendum to which has been

moved into evidence, do you recall that

happening?

I told you I used Mr. DiMaio once and never again,

and it was a mistake.

My question to you is when that happened Judge

Pettine issued a written opinion. Did you ever look

at it?

I never got it. I fired Paul DiMaio right after the

trial and hired Bill Konselor.

So you're aware that, according to your testimony,

you're the only person who has ever had his

sentence enhanced in that fashion?

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A One course of conduct. The way I was sentenced I

am the only guy in the country sentenced that

way up until the Federal guidelines come into

effect. Now I don’t know but we researched it.

When I went to the can I sat down with a jail

house lawyer and he said there are seven circuits

in my favor that said they couldn’t do it and two

circuits said they could, the First Circuit and the

Second Circuit.

Q During the course of your research didn’t you also

find that a criminal conviction could be shown to

be invalid [38] if for example a defendant was not

afforded a lawyer at the time of the proceeding?

A Well, no, because I wasn’t looking in that direction

and never thought that. After the sentence was

over I figured it was over with. The damage is done

and let me move on with my life. I didn’t start

really trying to find out about the laws until the

last couple of years because in the penitentiary

now everybody is into dealing with laws because

they got so much time they got to go to the law

library.

Q Incidentally, Mr. Ouimette, today here in the

Providence Superior Court this is the first time

you ever suggested to any court

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