# Prologue — Stern v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0519%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2006 - **Citation:** 546 U.S. 1095 ## Text 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 SD IIE enecrcenerenincesnctreenscitccininnsentunntesecnte i es CE ID crccscnnsecescendsncesnestunmemessectens ii pe iii 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 er Rc cenccnseccestpeccecitcndtossentecnitoenitetseiuitn 3 Reasons for Granting the Writ................::ccccececeeeereeeees 7 I iviccniscencisiticicasinttnsinnbinnintittincannices 8 IE ncilleciniviecssiinicinciiindamstiintibicindasindinnvanpiaicitaatendih 10 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: SR Lee © GE ceecsictinciitaniiineiidinideeaenen 3, 23, 24 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. + 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). + 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...” + 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0519%3A0. Public record. Not legal advice.