# Prologue — Gementera v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0110%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2005 - **Citation:** 546 U.S. 1031 ## Text Supreme Court, U.8. FILED 05-227 AuG 11 2005 In The Supreme Court of the Gnited States S SHAWN GEMENTERA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit + PETITION FOR A WRIT OF CERTIORARI S ARTHUR K. WACHTEL Counsel of Record 170 Columbus Avenue, Suite 100 San Francisco, CA 94133 415-248-1000 and oy MAITREYA BADAMI 2019 Webster Street San Francisco, CA 94115 415-345-9588 COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Does the imposition of a condition of supervised release intended publicly to humiliate an offender by forcing him to stand in front of a United States Post Office wearing a sign board advertising his conviction violate the Sentencing Reform Act, 18 U.S.C. § 3583 et seq.? Does the imposition of such a shaming condition violate the Eighth Amendment’s prohibition of cruel and unusual punishments? ii TABLE OF CONTENTS . Page QUESTIONS PRESENTED .. .........2.....scecccccesecseesereeeeees i So Ey SP Ti hi cscccccecsnngitibstiincnsinnshitntinaenssnnceniiaiiine 1 STATEMENT OF JURISDICTION ................cccccceceeeees 1 STATUTORY AND CONSTITUTIONAL PROVISIONS ae CASED o cttecevitietinbintosesisdulalianbatiotcitcestebdbiaiiategentetalibaine 1 STATEMENT OF THE CASE .............cccccsseccceseersseeeeeees 2 STATEMENT OF FACTS A. The Underlying Facts.....................:::cc0000+ 4 B. The Shaming Condition...................0:c:000 5 REASONS FOR GRANTING THE PETITION............ 5 EE, vocrrsntisdibcktvnsssectesupiiippsienctegihaniedinnatiaiads 8 I. THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE NINTH CIRCUITS APPROVAL OF A SUPERVISED RELEASE CONDITION WHOSE PRIMARY PURPOSE IS TO HUMIL- IATE DEFENDANT VIOLATES ITS OWN PRECEDENT AND THE SENTENCING RE- POS AGT Cr FOG vscistiens.. 0--sartcictveinngerstenstitonn 8 A. The District Court’s Express Purpose In Imposing The Sandwich Board Condition Was To Punish Defendant By Publicly RINGS TID dcthttercvscincntuniainnniienninndiianian 9 B. The Majority’s Position That The Shaming Condition Is Not Punishment Contradicts Precedent And Congressional Intent.......... 10 C. As Demonstrated By Amici Curiae In The Ninth Circuit, The Applicable Academic Literature Holds That Shaming Is Punitive, Rather Than Rehabilitative........ 14 TABLE OF CONTENTS — Continued Page II. THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE NINTH CIRCUIT'S APPROVAL OF THE SHAMING PUNISHMENT CONFLICTS WITH OTHER CIRCUITS ‘ND THIS COURTS PRECEDENT INTERPRETING THE EIGHTH AMENDMENT’S PROSCRIPTION OF CRUEL AND UNUSUAL PUNISHMENTS. .................... 20 ee Be ARR EIB EN See os 24 APPENDIX A: Opinion of the Ninth Circuit Court of Appeals (August 9, 2004) ............. App.1 APPENDIX B: Order of District Court for the North- ern District of California (February iy SEE i dicsctenindittshiscoscnipaailiintelwenis App. 32 APPENDIX C: Order of District Court for the North- ern District of California (March 4, APPENDIX D: Order of the District Court for the APPENDIX E: Order of the Ninth Circuit Court of Appeals Denying Petition for Re- hearing (May 13, 2005).................. App. 65 APPENDIX F: Excerpt of Amici Curiae Brief of Law Professors Submitted in Support of Appellant Shawn Gementera’s !’e- tition for Rehearing with Suggestion for Rehearing En Banc (September is SO ieeincctio 19 Federal Rule of Criminal Procedure 35 ...............cccccseseeeeees 3 CONSTITUTIONAL PROVISIONS: United States Constitution, Amendment VIII .......... passim vii { \ EE OF AUTHORITIES — Continued OTHER AUTHORITIES: Charles E. Frazier & Thomas Meisenholder, Explanatory Notes on Criminality and Emotional Ambivelence, 8 Qualitative Sociology 266 (1985).... John Braithwaite, Crime, Shame and Reintegra- SRI, FS CG i ccccisicsserncntvvieraiapevencescctsighnnianaptotapiclie Dan M. Kahan & Eric A. Posner, Shaming White- Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. BR, Sr CRD vncdiderteicchctcnstiliniashaehcckstoailveseratestatlats Dan Markel, Are Shaming Punishments Beautifully Retributive?, 54 Vand. L. Rev. 2157 (2001).............. June Price Tangney, Patricia Wagner, Carey Fletcher & Richard Gramzow, Shamed Into An- ger? The Relation of Shame and Guilt to Anger and Self-Reported Aggression, 62 J. Personality and Social Psych. 669, 673 (1992).............ccccceeeeseeeee June Price Tangney, Rowland S. Miller, Laura Flicker & Deborah Hill Barlow, Are Shame, Guilt and Embarrassment Distinct Emotions?, 70 J. Personality and Social Psych. 1256, 1267 (1996) .... Stephen P. Garvey, Can Shaming Punishments Edu- cate?, 65 U. Chi. L. Rev. 733, 757 (1998) ........ 15, 16, Toni Massaro, Shame, Culture, and American Crimi- nal Law, 29 Mich. L. Rev. 1880, 1920-21 (1991) ........ Toni M. Massaro, The Meanings of Shame: Implica- tions for Legal Reform, 3 Psych. Pub. Pol. and L. SOG, BFS CAGE) svrcnccsosnsccscnsncdintessvcvnsstensininenoviniitesatdes Walter R. Gove, The Labeling of Deviance: Evaluat- ing A Perspective (2d ed. 1980)............:::cccseceeceeeeeees Page 17, 18 1 OPINIONS BELOW The published opinion of the Ninth Circuit Court of Appeals (App. 1-31) is reported at United States v. Ge- mentera, 379 F.3d 596 (9th Cir. 2004) (Hawkins, J., dis- senting). The district court orally imposed at sentencing the condition of supervised release that is the subject of this petition (App. 32-40). The district court reconsidered its initial order and imposed an amended condition at a subsequent hearing, issuing a written order on that date specifically addressing the condition of supervised release in question (App. 47-64). Those orders are unreported. ¢ STATEMENT OF JURISDICTION The Ninth Circuit Court of Appeals entered its judg- ment on August 9, 2004. Petitioner thereafter requested and obtained an extension of time to file a petition for rehearing and/or petition for hearing en banc. The Ninth Circuit denied petitions for panel rehearing and for re- hearing en banc in an order dated May 13, 2005 (App. 65). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). e STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED 18 U.S.C. § 3583(d) provides, in relevant part: Conditions of supervised release. {Mandatory conditions of supervised release, not relevant to the instant petition.] The court may order, as.a further condition of supervised release, to the extent that such condition— (1) is reasonably related to the factors set forth in 18 U.S.C. §§ 3553(a)(1), (aX 2B), (aX2XC), and (a(2)(D); (2) involves no greater deprivation of liberty than is reasonably necessary for the pur- poses set forth in 18 U.S.C. §§ 3553(a)(2)(B), (aX2XC), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Com- mission pursuant to 28 U.S.C. § 994(a) any condition set forth as a discretionary condi- tion of probation in 18 U.S.C. §§ 3563(b\(1) through (b)(10) and (b)\(12) through (b)(20), and any other condition it considers to be appropriate. ” * « The Eighth Amendment to the United States Consti- tution provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments in- flicted. ° STATEMENT OF THE CASE On November 27, 2001, the United States filed a two- count indictment in the Northern District of California charging defendant Gementera and co-defendant Andrew Choi with mail theft (18 U.S.C. § 1708) and receipt of a stolen United States Treasury check (18 U.S.C. § 641). On 3 May 21, 2002, defendant entered a guilty plea to count one. On February 25, 2003, the district court sentenced defendant to a term of two months’ incarceration and a period of three years’ supervised release. Without prior notice to the parties, the district court imposed the follow- ing supervised release condition: And he shall perform 100 hours of community service under the direction of the probation offi- cer that will include standing in front of a postal facility in the City and County of San Francisco for 100 hours with a sandwich board which in large letters declares quote: “I stole mail. This is my punishment.” He shall report in to the postmaster of the facil- ity who will keep time records to make sure that the defendant has complied with this directive. (App. 38). On March 3, 2003, defendant filed a motion to correct his sentence, pursuant to Federal Rule of Criminal Proce- dure 35. Defendant challenged the imposition of the sandwich board condition and propgsed alternative super- vised release conditions. The district court denied the Rule 35 motion, but reduced the number of hours it would require defendant to wear the sandwich board from 100 to eight. Judgment was entered on March 4, 2003. Gementera appealed from the order imposing the shaming condition on the grounds that the condition violated both the Sen- tencing Reform Act (18 U.S.C. § 3583 et seg.) and the Eighth Amendment. The Office of the Federal Public Defender for the Northern District of California submitted a brief as amicus curiae, urging reversal of the shaming 4 condition. On August 9, 2004, a majority of the panel affirmed the district court’s imposition of the shaming condition, Circuit Judge Michael Daly Hawkins authored a dissenting opinion. | Gementera subsequently sought and obtained a thirty-day extension of time, to and including September 22, 2004, to request panel rehearing and/or rehearing en | banc. A consortium of law professors received the consent of the parties and approval of the Ninth Circuit to submit © a brief as amicus curiae, supporting Gementera’s petition _ for review and/or rehearing en banc (App. 66-70). Timely petitions requesting panel rehearing and for rehearing en banc were denied in a Ninth Circuit order issued on May 13, 2005. Judge Hawkins would have granted panel rehearing. After a judge of the Ninth Circuit requested a vote on whether to rehear en banc, the matter failed to receive a majority of the votes of the non-recused active judges. With its submission ninety days from the date of that order, the instant petition is timely before this court. e STATEMENT OF FACTS A. The Underlying Facts. The following is a summary of the essential facts underlying defendant’s conviction for mail theft, as set forth in the majority opinion of the Ninth Circuit panel (Unite States v. Gementera, 379 F.3d 596 (9th Cir. 2004)): Shawn Gementera pilfered letters from several mailboxes along San Francisco's Fulton Street on May 21, 2001. A police officer who observed the episode immediately --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0110%3A0. Public record. Not legal advice.