# Prologue — Hawkins v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0550%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2006 - **Citation:** 546 U.S. 1096 ## Text ~— 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0550%3A0. Public record. Not legal advice.