Prologue — Stern v. United States

SUPT STS LAAAT, U.S.

FIIen

8, ° 81 NOV 23 2005

OFFICE OF THE CLERK |

In The

Supreme Court of the Gnited States

DAVID G. STERN,

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

DAVID G. STERN

24 Elm Street

Newport, RI 02840

401-841-5600

QUESTIONS PRESENTED

Whether the First Circuit, after remand from this

Court, failed to address the constitutional challenge raised

by the Petitioner in his Petition for Writ of Certiorari that

the Judgment of Conviction entered in the instant case

must be vacated and a Judgment of acquittal entered

where all of the elements of the offense were not charged

in the indictment, presented to the jury and proven at trial

beyond a reasonable doubt?

Whether the holdings in Apprendi v. New Jersey,

530 U.S. 466 (2000); Blakely v. Washington, 542 US.

296 (2004) and United States v. Booker, 543 US.

—

(2005) mandated a constitutional sentence less than what

was imposed user the facts of the instant case?

ll

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below are contained in

the caption of the case.

ili

TABLE OF CONTENTS

Page

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I ciiiceteienideadennpenee “0. sedinbaieaaaiennnesebee Vv

Petition for Writ of Certiorari .............0:ccccccccsseeseseeeeenees 1

SE TIN caniceinidpinenisniniccndtntidcintncainncenineraiiineiicdeveni 1

Beatemmamt of SUPER ..cccccccoccssccscsccssssoovsvessscssscoscese 1

Constitutional and Statutory Provisions Involved....... 3

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Reasons for Granting the Writ................::ccccececeeeereeeees 7

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A. The Indictment in the Instant Case Was

Constitutionally Infirm in Failing to Charge a

RTE STITT SRC MONET COST 10

B. The First Circuit’s Failure to Address Peti-

tioner’s Fifth Amendment Challenge to His Con-

viction Creates a Further Conflict in the Circuit

Courts of Appeals Relative to this Issue.............. 15

C. The First Circuit’s Decision to Apply Plain

Error Review and Affirm Petitioner’s Sentence

Violates the Teachings Announced in Blakely

iv

TABLE OF CONTENTS -— Continued

Page

D. The Opinions Announced by this Court in

Booker Were Not Followed By the First Cir-

cuit in the Instant Case Thereby Undermining

the Sentencing Process ...00:0cccccccccrccosccsescovesssoreee 22

TEIIIIIOIIID ._..cinissuumdasinnmmibabuiciasinbuaidseondededtiavaneaidinndenait 27

RO Roeccsorccccccssscsccscccsessersscesvsscovesvonccesessesesnccoosessevees App. 1

TABLE OF AUTHORITIES

Page

CASES:

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

Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

EE GE vcensctvinvincensesusennnssensepeeantecemmnmeerenennney passim

Chapman v. California, 386 U.S. 18 (1967) ................. 19

Daniels v. Lee, 316 F. 3d 477 (4th Cir. 2003).................. 13

In Re Winship, 397 U.S. 358 (1970).................. 6, 9, 10, 12

Ring v. Arizona, 536 U.S. 584 (2002) ...............0006. passim

Russell v. United States, 369 U.S. 749 (1962)............... ll

United States v. Ameline, 2005 WL 350811 (9th

8 EE ee oe 26

United States v. Antonakopoulos, 399 F. 3d 68

(Ist Cir. 2005)........ sceisaninnasiaadianbebanieiadianniadetiadiarichiials 2, 6, 10, 26

United States v. Booker, 543 U.S. , 125 S.Ct.

TET TETIEED svedsnenennscvicsusenenbepeebctiecesbendasitamenliiameniebinetl passim

United States v. Borden, 10 F. 3d 1058 (4th Cir.

nn event Loven amen am 17

United States v. Caba, 241 F. 3d 98 (1st Cir. 2001)... 5, 13

United States v. Cabrera-Teran, 168 F. 3d 141

EEE PE ee nec ON ce eT wee 16

United States v. Caprell, 938 F. 2d 975 (9th Cir.

| TT a a ee ne ee ee 16

United States v. Crosby, 397 F. 3d 103 (2d Cir.

RE REA E R N ER S Ree aaa 22, 23

United States v. Cruikshank, 92 U.S. 542 (1876).. 11, 15

TABLE OF AUTHORITIES — Continued

Page

United States v. Davis, 2005 WL 309934 (3rd Cir.

ERE PIR REE OED BORD VE SL Sea Re ora 26

United States v. Foley, 73 F. 3d 484 (2d Cir. 1996)........ 16

United States v. Gaudin, 515 U.S. 506 (1995).............. 12

United States v. Haack, 403 F. 3d 997 (8th Cir.

ETS RE LET EE EAE 5 LA SER MN Am 23

United States v. Hughes, 396 F. 3d 374 (4th Cir.

Ee ere ae ee on a ete bed a aS ee 26

United States v. Huerta-Rodriguez, 355 F. Supp.

LR ae ee 24

United States v. Jones, 526 U.S. 222 (1999)............ 12, 13

United States v. Mashek, 406 F. 3d 101 (8th Cir.

EE I SRE eas we Bee eer soar emer 22

United States v. Matthews, 312 F. 3d 652 (5th

ES ean eth ome Mee ne net core Reon a 13

United States v. Milan, 2005 WL 309934 (6th Cir.

REET SPN LIAN SACRO a one aes nee Us ELIE = eV EEET OO 26

United States v. Paladino, 401 F. 3d 471 (5th Cir.

TTT checesetieninsictataiiensiileilekpanecntitetecidlad ata laeaida a 25

United States v. Panarella, 277 F. 3d 678 (3rd

RN 16

United States v. Pimental, 367 F.Supp. 2d 143

re ee lees 18, 21

United States v. Quinones, 313 F. 3d 49 (2d Cir.

CARTS eee eM RRR TEEN Serene Mee CIE ROIS oN 13

United States v. Rebmann, 321 F. 3d 540 (6th

OO a a a 13

United States v. R.L.C., 503 U.S. 291 (1992).......0...0000.... 5

vii

TAY .° OF AUTHORITIES — Continued

Page

United States v. Ryder, 414 F.3d 908 (8th Cir.

PEPE ccccnncisevenenincetmninnestéitimneinnseinenbensiadimidapasidiitaiiaaiicuuaiateiabled 17

United States v. Spinner, 180 F. 3d 514 (3rd Cir.

SIE cescibeveesiietevacattanenitidpenbupiitcidiaiiieapiasiinialaidans 15, 16, 17

United States v. Stirone, 361 U.S. 212 (1960)............... 11

United States v. Tomey, 144 F. 3d 749 (11th Cir.

IUD incsccnssavsiccctnciticninniulecuiiiisisnitatmdmenadidiaiasiiamaiiimniadin 17

United States v. Vazquez-Rivera, 407 F. 3d 476

CG GRE SED cccteccccenstcsitiinsecrnnesidiaeddaelinanaanien 19, 20

CONSTITUTION:

U.S. Const. amend. V.............. -aaplntcipesinienetmiiamaal passim

Crs CAGE, GHGIIE, Vib cesesrcenstininteteresdsesseutetaanidinel passim

STATUTES:

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BS es 0 Se cctcssntnriccinnniceiei nn 3, 23, 24

BP Gs 0 ee ittraveecenninietitinttiianieiigee 22, 23, 24

SD PIED. B Bae Gai rcertniisninsccussccitgsigninuiiieainniediaipiindiduamiail 3

PETITION FOR A WRIT OF CERTIORARI

David G. Stern petitions for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

requesting review of the Judgment entered by that Court

on June 29, 2005.

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OPINIONS BELOW

The Judgment of the United States Court of Appeals

for the First Circuit entered on February 19, 2004, is

unpublished and is reproduced at App. 1-4. The Order of

the Court of Appeals for the First Circuit entered on April

24, 2004, denying Stern’s Petition for Rehearing and En

Banc Determination is unpublished and ‘s reproduced at

App. 5-6. The Order of the Court of Appeals for the First

Circuit entered on August 16, 2004, denying Stern’s

Motion to Recall Mandate is unpublished and is repro-

duced at App. 8-9. The Order of the First Circuit entered

on May 11, 2005, directing the parties to submit supple-

mental briefs subsequent to the vacating of the Judgment

of February 19, 2004 by this Court in light of United

States v. Booker, 543 U.S.-___, 125 S.Ct. 738 (2005) is

unpublished and is reproduced at App. 11-12. The Judg-

ment affirming Stern’s conviction and sentence entered by

the First Circuit on June 29, 2005, is unpublished and is

reproduced at App. 13.

7

STATEMENT OF JURISDICTION

The Judgment of Conviction was entered by the

District Court on October 1, 2002. Petitioner timely filed

his Notice of Appeal on October 4, 2002. The First Circuit

2

Court of Appeals summarily affirmed the Conviction and

sentence in a Judgment entered on February 19, 2004.

App. 1-4. Petitioner timely filed his Motion for Rehearing

and En Banc determination. The Court of Appeals for the

First Circuit issued its Order denying the Motion for

Rehearing and En Banc Determination on April 22, 2004.

App. 5-6. Thereafter, Petitioner applied for and on July 7,

2004, received from the Hon. David Souter, Associate

Justice an extension of time “to and including September

19, 2004” within which to file his Petition for Writ of

Certiorari. App. 7.

Petitioner filed his Petition for Writ of Certiorari on

September 16, 2005. On January 24, 2005, this Court

granted the petition for Writ of Certiorari and vacated the

Judgment and remanded the case to the First Circuit

Court of Appeals “for further consideration in light of

United States v. Booker, 543 U.S. ___ (2005).” App. 13.

On May 11, 2005, the First Circuit in light of this

Court’s Judgment of January 24, 2005 invited the parties

to submit supplemental briefs, to discuss how the alleged

Booker error was preserved. App. 11-12.

Subsequent to the filing of supplemental Briefs,

without oral argument and hearing the First Circuit

without disposing of the issues raised by the Petitioner,

and failing to follow their circuit precedent in United

States v. Antonakopoulos, 399 F. 3d 68 (1st Cir. 2005)

summarily affirmed Stern’s conviction. App. 11.

On August 17, 2005, Petitioner applied to the Hon.

David Souter, Associate Justice for a 60-day extension of

time to file a Petition for Writ of Certiorari. On August 24,

2005, Justice Souter granted that extension to November

26, 2005. App. 14.

This Court has jurisdiction under 28 U.S.C. § 254(1).

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides in relevant part: “No person shall be held to

answer for a capital, or otherwise infamous crime, unless

on presentment or indictment of a Grand Jury ... Nor

shall any person ... be deprived of life, liberty or property

without due process of law.”

The Sixth Amendment to the United States Constitu-

tion provides in relevant part: “In all criminal prosecutions

the accused shall ... be informed of the nature and cause

of the accusation...”

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STATEMENT OF THE CASE

Petitioner David G. Stern was charged ia an Indict-

ment in the United States District Court for the District of

Massachusetts on July 18, 2001, with 16 counts of mail

fraud in violation of 18 U.S.C. § 1341 and 2 counts of wire

fraud in violation of 18 U.S.C. § 1343. App. 15-21.

A jury trial was held on April 1-4, 2002 before the

Hon. Nancy Gertner, United States District Judge for the

District of Massachusetts. Over Petitioner’s objections, in

which he relied upon Apprendi v. New Jersey, 530 U:S.

466 (2000), the district court refused to include on the jury

4

verdict form the amount of the alleged loss.’ App. 22-25.

Stern was found guilty of counts 1-14, 16, 17, and 18, but

acquitted of count 15.

On September 25, 2002, Petitioner was sentenced by

the district court to a term of imprisonment of 30 months,

plus 3 years of supervised release. In calculating Stern’s

sentence, the district court enhanced the base offense

level under U.S.S.G. § 2F1.1(a) of 6 points, by 13 points; 2

points under Sec. 2F1.1(b)(2)(A) for more than minimal

planning; 2 points under Sec. 2B1.3 for fiduciary relation-

ship; and 9 points under Sec. 2F1.1(b)(1)(J) for a loss of

$450,000.

None of the enhancements, which resulted in a 13

level increase in the Guideline Sentencing Table, were

charged in the indictment, presented to the jury, or found

by the jury beyond a reasonable doubt. The resulting

enhancements increased Stern’s sentence from a range of

0-6 months (level 6) to 30-37 months (level .3), plus the

corresponding increase in his term of supervised release.

The Judgment of Conviction was entered on October

1, 2002. Petitioner filed a timely Notice of Appeal in the

First Circuit Court of Appeals on October 4, 2002. On

January 6, 2003, Stern self-surrendered to the Federal

Medical Center Camp Devens in Ayer, Massachusetts,

where he remained incarcerated until on or about January

4, 2005.

’ The Petitioner repaid any alleged loss amounts at issue, plus

interest some 2% years prior to the commencement of the criminal

_ proceedings.