Prologue — Hawkins v. United States

~— eee

05-7150cT 14208

NO. Cornea ‘al ae mERK |

IN THE SUPREME COURT OF THE UNITED

STATES

ARTHUR M. HAWKINS, -

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

SUSAN G. JAMES

LAW OFFICE OF

SUSAN G. JAMES AND ASSOCIATES

COUNSEL FOR PETITIONER HAWKINS

600 S. MCDONOUGH STREET

MONTGOMERY, AL 36104

334/269-3330

QUESTIONS PRESENTED

WHETHER THE COURT SHOULD GRANT

THE WRIT TO RESOLVE THE SPLIT IN THE

CIRCUITS REGARDING APPLICATION OF PLAIN

ERROR ON POST BOOKER REMAND?

WHETHER THE REMEDY ANNOUNCED IN

BOOKER PART II DENIES THE RIGHT OF A

CRIMINAL DEFENDANT TO A JURY FINDING

PROTECTED BY THE SIXTH AMENDMENT?

WHETHER A HEARING ON A BOOKER

REMAND IS ESSENTIAL TO THE FAIR

ADMINISTRATION OF JUSTICE?

WHETHER THE REASONABLENESS

STANDAR? ANNOUNCED BY THE REMEDIAL

MAJORITY IN BOOKER, PART Il SHOULD BE

REVISITED AND REPLACED?

‘WHETHER THE DISTRICT COURT’S

UNILATERAL REVIEW OF HAWKIN’S SENTENCE

ON REMAND WAS REASONABLE?

THE PARTIES

The caption in this case contains the name of all

parties.

li

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......-ccccccccccccees iii

TABLE OF AUTHORITIES pb 60-046 beembeewoces iv

PC EN 6 chad ce vecceeccevescaseseaevess 1

STATEMENT OF THE CAD” ....cccccsccccccces 1

REASONS FOR GRANTING THE WRIT ......... 8

I. THE COURT SHOULD GRANT THE WRIT

TO RESOLVE THE THREE WAY SPLIT IN THE

CIRCUIT COURTS APPLICATION OF PLAIN

ERROR ON POST BOOKER REMAND.

Uf. THE CURRENT DIVISION BETWEEN

THE CIRCUITS HAS SIGNIFICANT

INSTITUTIONAL COSTS WHICH JUSTIFY

INTERVENTION BY THIS COURT AND COUNSEL

IMMEDIATE ACTION.

Ill, THE REMEDY IN BOOKER PART I

DENIES A DEFENDANT’S SIXTH AMENDMENT

RIGHT. :

IV. THE CURRENT REASONABLENESS

STANDARD OF REVIEW CREATES UNCHECKED

DISPARITY. ;

V. PETITIONER’S SENTENCE WHEN

WEIGHED AGAINST 18 U.S.C. §3553(a) FACTORS

IS NOT REASONABLE.

CONCLUSION ....... Lo eeeenocsecveceeeresese 29

iil

TABLE OF AUTHORITIES

Page No.

FEDERAL CASES

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

eBay beds vias shee eee eee kee es 13

Blakely v. Washington, 542 U.S. _, 124 S.Ct. 2531, 159

Re re err ree 2

Burnes v. United States, 501 U.S. 129, 136-37 (1991). . 28

Crawford v. Washington, 541 U.S. 36 1234 S.Ct. 1354 158

Re eee OPE 5 old cco cs Ca ek eure eae yee. 18

Hawkins v. United States, 125 S.Ct. 1109 (2005) ...... 2

Johnson v. United States, 520 U.S. 461, 466, 467, 137

mS ey) Biyg fe Ts, : cnr 10

Ohio v. Roberts, 448 U.S. 56, 65 L.Ed 2d 597, 100 S.Ct.

re so a 6 oe be ce er eee es 18

Ring v. Arizona, 122 S.Ct. 2426, 153 L.Ed.2d (2002) .. 13

United States v. Ameline, 409 F.3d 1073

ag RRR Reine tar tea rer ean nan pera tet 11,15

United States v. Antonakopoulas, 399 F.3d 68 (1" Cir.

Fire. pe ly ehue es gcd Ce ee 10

United States v. Booker, 543 U.S. _, 125 S.Ct. 738, 160

Ce Si oe aa 2

United States v. Coles, 403 F.3d (D.C. Cir. 2005) ..... 10

United States v. Crosby, 397 F.3d 103

re NR ee ls eyed cea niente ee 11,28

United States v. Davis, 407 F.3d 162 (3 Cir. 2005) 11,15

United States v. Dean, 414 F.3d 725 (7" Cir. 2005) ... 28

United States v. Gonzalez Huerta, 403 F.3d 727

rs ee 10,12

United States v. Hughes, 401 F.3d 540 (4™ Cir. 2005) 15,11

United States v. Mares, 402 F.3d 511 (5" Cir. 2005) .. . 10

iv.

United States v. Mooney, No. 02-3388 (8" Cir. Oct. 10,

Se re a Pe eee em ro reas os Pee 12

United States v. Mykytiuk, 415 F.3d 606 (7 Cir. 2005) . 19

United States v. Olano, 507 U.S. 729, 113 S.Ct. 1770, 123

CNG RU oe a 10

United States v. Oliver, 397 F.3rd 369 (6" Cir. 2005) 11,15

United States v. Paladino, 401 F.3d 471 (7" Cir. 2005) 20

United States v. Paulinski, 374 F.3d 536 (7" Cir.2004) . 29

United States v. Pirani, 406 F.3d 543 (8" Cir. 2005)... 10

United States v. Rodriguez, 406 F.3d 1261

SP SO Oc ee ek el 10

United States v. Trujillo Terra, 405 F.3d 814, 819

oe ns ew anh es aoke bee 28

United States v. Williams, 03-4091 (7" Cir. Oct 6, 2005) 19

~

CONSTITUTION, STATUTES, AND RULES

SRE BE eco eh vee ook wera eros l

ree SE So cs Seren eee nee ]

18 U.S.C. §3553(a) ....... 1,8.13,16,19,20,23,28

Se EE oa eS cw aes ea weeke 1,29

Se ap te. NE 3. os ba ee eas en 1,13

WS aes, GE Hist SSS 1,13

Federal Rule of Criminal Procedure 52(b) ..... 10

Seventn Crrcutt Rule S54 Ww. 8 ck eee ee 1,2

PETITION FOR WRIT OF CERTIORARI

Arthur M. Hawkins Petition for a Writ of

Certiorari

JURISDICTION

On July 19, 2005, the United States Court of

Appeals for the Seventh Circuit affirmed the Judgement of

the United States District Court for the Southern District of

Illinois and is reported at 139 Fed. Appx. 744 (7" Cir.

2005).

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. Section 1254(1) and Rule 10, Rules of the United

States Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment

STATUTORY PROVISIONS INVOLVED

18 US.C.S 1343

18 U.S.C.S 3237(a)

18 U.S.C. §3553(a)

18 U.S.C. §3661

18 U.S.C. §3553(b)(1)

18 U.S.C. §3742(e)

STATEMENT OF THE CASE

Hawkins was represented at trial by Tom McQueen,

Esq.. He changed lawyers on the eve of sentencing and

replaced McQueen with Oscar Stilly, Esq.. Sentencing

occurred on December 19, 2002 and Hawkins received the

maximum ten year term. Stilly prepared and argued

Hawkins appeal before the Seventh Circuit. Hawkins

conviction and sentence were affirmed. However, the Court

of Appeals unsealed the original indictment in the case

which had been permanently sealed by the district court at

the government’s request. Hawkins hired undersigned

couns . file an original petition for certiorari and a 28

U.S.C..2 2255.

Hawkins filed his original petition for certiorari

raising only a venue issue. Theodore Olson, former

Solicitor General in the brief in opposition to Hawkins

original petition for certiorari challenging venue

acknowledges, “...this case presents an unsuitable vehicle

for resolving the analytical disagreement between the Courts

of Appeaiz about permissible venue in Federal wire fraud

prosecutions.”

The petition for certiorari was denied June 21, 2004,

three days before the release of Blakely v. Washington, 542

U.S. _, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Pursuant

to Rule 44 Supreme Court Rules, Hawkins filed a petition

for rehearing due to an intervening circumstance of a

substantial or controlling effect or other ground not |

previously presented. (Blakely v. Washington) Although

not raised in Hawkins Rule 44 petition, another intervening

circumstance existed post direct appeal with the unsealing

of the original indictment. The unsealing, previously denied,

revealed that exculpatory evidence was hidden by the

prosecutor directly impacting the venue issue addressed in

the original certiorari petition.

On January 24, 2005, this Court granted Hawkins

petition for a writ of certiorari. Hawkins v. United States,

125 S.Ct. 1109 (2005). (App. A) Hawkins judgement was

vacated and remanded to the Seventh Circuit for further

consideration in light of United States v. Booker, 543 U.S.,

125 S.Ct. 738, 160 L.Ed. 2d 621 (2005).

Pursuant to Circuit Rule 54 each party filed a

statement of position as to the proper action in light of the

Supreme Court order. The government in its statement

conceded, “that there was error, which is plain and obvious,

when the district court sentenced defendant under the then-

mandatory federal sentencing guidelines.” The government

went further to state, “the record is unclear whether the

application of advisory guidelines may have altered the

outcome of the sentencing proceedings and that, therefore,

pursuant to this court’s analysis in Paladino,’ remand for —

re-sentencing consistent with Booker is warranted.”

The district court invited the parties to submit a brief

in support of re-sentencing and both parties complied. The

district court did not allow a re-sentencing hearing and

instead issued a nine page memorandum and order denying

relief. (App. B) The Seventh Circuit invited the parties to

address the denial and both parties complied. On July 19,

2005, the Seventh Circuit affirmed Hawkins sentence

holding that the district court decision was reasonable.

(App. C) This petition follows.

STATEMENT OF FACTS’

On December 19, 2002, in the United States District

Court for the Southern District of Illinois, Arthur M.

Hawkins was tried and convicted of one count of conspiracy

to commit wire fraud and one count of wire fraud in

violation of 18 U.S.C. §1343. The trial judge was United

States District Judge David Herndon. On October 27,

2004, Mr. Hawkins filed a pet*tion for relief from conviction

pursuant to Title 28, U.S.C., §2255. On the same day, Mr. ~

Hawkins filed a motion to recuse Judge Herndon from

hearing the 2255 petition based on the need to call the judge

1401 F.3d 471 (7 Cir. 2005)

?The rather involved statement of facts is being included to

illustrate deprivation of Hawkins fundamental rights afforded by the

United States Constitution.

=

as a witness in the matter. Judge Herndon denied the

recusal motion on December 17, 2004. A petition for

mandanus to the Seventh Circuit followed. It was denied

-on February 9, 2005.

Mr. Hawkins was Chief Executive Officer and

Chairman of the Board of Directors of Exide Corporation, a

battery manufacturer. In 1993, Exide bid on and won a

contract to manufacture Die Hard batteries for Sears. Due

to the product demands and growing pains, a number of

defective batteries were produced. Mr. Hawkins was

prosecuted for wire fraud and made illegal payments to a

Sears buyer to protect his battery contract with Sears. Mr.

Hawkins has always asserted his innocence and that the

gratuity paid to the Sears employee had no bearing on the

Sears contract. Post direct appeal with the unsealing of the

original indictment, it was made clear that the gratuity paid

had no bearing on the battery contract.

In his 2255 petition,’ Mr. Hawkins alleges that he is

innocent and that Assistant United States Attorney Miriam

Miquelon, who led the prosecution, engaged in

prosecutorial nusconduct that denied him an opportunity to

establish his innocence. United States Attorney Miquelon,

post verdict, was under investigation in relation to several

matters. Ms. Miquelon, who was appointed United States

Attorney after Mr. Hawkins’ trial, faced a tough

confirmation battle in which her nomination was opposed by

many people, including the Chief Judge of the United States

District Court where she practiced. See

http://www. belleville.com/mld/belleville/6265698.htm. She

was confirmed, but resigned from her post less than a year

later under questionable circumstances. See id. United

States District Judge G. Patrick Murphy said she resigned

because she was under federal investigation. See id.

>The 28 U.S.C. §2255 is on stay pending resolution of

this petition.

Nineteen stolen weapons were found at Ms. Miquelon’s

official residential address in the Southern District of

Illinois. See

http://www .illinoisleader.com/printer/article.asp?c=7250.

Ms. Miquelon also was accused of altering an indictment

after it was filed by the grand jury in another high-profile

case to remove the name of a unindicted co-conspirator.

See http://www. belleville.com/mld/belleville/7304649. htm.

This is precisely Hawkin’s claim in his 2255. AUSA

Miquelon’s prosecution of Mr. Hawkins was marked from

the beginning by irregularities. For example, Ms. Miquelon

brought the prosecution in the Southern District of Illinois,’

although the only connection between the subject matter of

the case and the District was Sears’ sale and advertising of

Die Hard batteries in the District. The prosecution also

involved numerous irregularities in the use of the grand jury.

Ms. Miquelon did not seek an indictment until twelve days

before the end of the statute of limitations period, on

January 19, 2001. The grand jury minutes refer to the filing

of two indictments in this case on that day, although only

one was ever unsealed. Most importantly, AUSA Miquelon

fought vigorously to keep the original January 19, 2001

indictment of Mr. Hawkins sealed throughout his trial and

appeal. Judge Herndon repeatedly granted her motions. As

a result of her efforts and Judge Herndon’s rulings, the

indictment remained sealed until the United States Court of

Appeals unsealed the indictment on appeai after Mr.

Hawkins’ conviction. Rejecting AUSA Miquelon’s

argument that continued sealing was required to protect an

unindicted co-conspirator, the Court of Appeals found no

justification for the sealing.

‘Hawkin’s under separate cover seeks to supplement the

record with information useful to this court’s analysis. A breakdown

of the exculpatory evidence revealed upon disclosure of the original

indictment post direct appeal will be included as (Supp. App. A). This

indicates Supplemental Appendix and item number.

5

The difference between the permanently sealed

original indictment and the unsealed superseding indictment

appeared minor at first glance, but indeed was very

significant. Whereas in the sealed indictment, the grand

jury named Sears as a co-conspirator, in the superseding

indictment, those allegations were changed not only

saperficially to disguise Sears’ identity, but also

substantively to exculpate Sears, cast Sears as an unwitting

victim, and place the blame for Sears’ actions on Mr.

Hawkins and his co-defendants. This was not a mere

superficial change, but instead was a substantive change, the

suppression of which had serious repercussions for the

defense. It clearly hid the fact that the gratuity was paid to

the Sears employee at the same time Sears knew from a

battery teardown analysis that some batteries were

defective. Exide offered to recall the batteries and Sears

refused. Miguelon knew this but concealed the information.

Judge David Herndon repeatedly heard and granted

AUSA Miquelon’s motions to keep the indictment sealed,

and turned down defense motions to unseal it. The record

that is available shows that AUSA Miquelon gave a number

of shifting, unclear, and now-discredited rat'onales for the

motions to seal. For instance, while she originally argued

that the sealing was required to allow her to resolve issues

with regard to certain un-indicted targets she continued to

object to unsealing even after all co-conspirators cases had

been publicly resolved. She also mislead the Court by

saying that other Fortune 100 companies other than the

ones named in the indictment were involved, when that was

patently not the case. In public proceedings, she

consistently argued that the continued sealing was necessary

in order to “protect” an unindicted co-conspirator, although

the record shows this to be false. The only possible reason

for Ms. Miquelon’s zealous efforts to keep the indictment

sealed even after Mr. Hawkins and all other co-conspirators

had been convicted was to cover up her misconduct at the

grand jury and hide exculpatory evidence inculpating Sears.