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No. 15-______
IN THE SUPREME COURT OF THE UNITED STATES
_____________
ERNEST SHIELDS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent. _____________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit
_____________
PETITION FOR A WRIT OF CERTIORARI _____________
Craig M. Sandberg MUSLIN & SANDBERG 19 S. LaSalle Street Suite 700 Chicago, Illinois 60603-1491 (312) 263-7249 [email protected]
Counsel for Petitioner Ernest Shields
i
QUESTIONS PRESENTED
(1) Whether, in light of the Supreme Court’s holding in Alleyne v. United
States, 570 U.S. ___, 133 S. Ct. 2151 (2013), a “prior conviction” in the context of the
enhanced sentencing scheme under the Armed Career Criminal Act (“ACCA”) is an
element of the crime that must be proven beyond a reasonable doubt and, thus,
overrules the vitality of Almenarez-Torres v. United States, 523 U.S. 224 (1998).
(2) Whether Brady v. Maryland applies to suppression hearings.
(3) Whether this Court’s holding in Johnson v. United States, 576 U.S. ___,
135 S. Ct. 2551 (2015) requires resentencing because the convictions used against
Shields to charge him under the ACCA do not constitute “crimes of violence” for
purposes of the ACCA.
ii
PARTIES TO THE PROCEDINGS
The names of all parties to the proceeding in the court below whose judgment
is sought to be reviewed are contained in the caption of this case. Rule 14.1(b).
iii
TABLE OF CONTENTS
Page QUESTIONS PRESENTED ………………………………………………… i
PARTIES TO THE PROCEDINGS......................................................... ii
TABLE OF CONTENTS............................................................................ iii
INDEX TO APPENDIX.............................................................................. v
TABLE OF AUTHORITIES...................................................................... v
OPINION BELOW...................................................................................... 1
JURISDICTION......................................................................................... 1
CONSTITUIONAL AND STATUTORY PROVISIONS INVOLVED. 1
STATEMENT OF THE CASE................................................................... 4
I. Proceedings in the District Court………………………………… 6
A. The Court of Appeals’ summary of facts………………… 6
B. Procedural summary…………………………………………. 7
II. Proceedings in the Court of Appeals……………………………. 11
REASONS FOR GRANTING THE PETITION..................................... 11
I. This Court’s Holding In Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015) Means That The Convictions Used Against Shields To Charge And Sentence Him Under The ACCA Do Not Constitute A “Violent Felony” For Purposes Of The ACCA And Resentencing Is Required…… 7 A. The “force clause”, the specifically enumerated offense clause, and “residual clause”……………………. 15 B. Application to Ernest Shields’ convictions……………. 19 II. The District Court’s Sentence Violates The Sixth Amendment Because Shields’ Prior Convictions Were Not
iv
Proven Beyond Reasonable Doubt………………………………. 24 III. This Court Has Not Decided, But Should Now Decide, Whether Brady v. Maryland Applies To Suppression Hearings…………………………………………………………………. 29 CONCLUSION............................................................................................ 40
v
INDEX TO APPENDIX
Page Attached to Brief Opinion of the United States Court of Appeals for the Seventh Circuit; United States v. Shields, No. 13-3726 (7th Cir. June 15, 2015)…………… 1a Separately-Filed Appendix Transcript of Proceedings - Sentencing (Nov. 27, 2013)…………………… 30a Statement of Conviction – Residential Burglary (720 ILCS 5/19-3); People v. Shields, No. 94CR2911401………………………………………….. 80a Statement of Conviction – Aggravated Battery (720 ILCS 5/12-4); People v. Shields, No. 93CR0403801………………………………………….. 83a Statement of Conviction – Armed Robbery (720 ILCS 5/18-2); People v. Shields, No. 03CR2788801………………………………………….. 92a Copy of Residential Burglary Statute (720 ILCS 5/19-3)………………….. 99a Copy of Dwelling Definition Statute (720 ILCS 5/2-6)……………………… 101a Copy of Aggravated Battery Statute (720 ILCS 5/12-4)…………………… 102a Copy of Armed Robbery Statute (720 ILCS 5/18-2)………………………… 103a
vi
TABLE OF AUTHORITIES CASES Page(s) Alleyne v. United States, 133 S. Ct. 2151 (2013)……………………. passim
Almenarez-Torres v. United States, 523 U.S. 224 (1998)………….. passim
Apprendi v. New Jersey, 530 U.S. 466 (2000)……………………….. 26, 28
Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009)……………………… 9 n.3, 30 n.9
Brady v. Maryland, 373 U.S. 83 (1963)………………………………. passim
Burrage v. United States, 571 U.S. __, 134 S. Ct. 881 (2014)……… 27
Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003)……………….. 16-17
Curtis v. United States, 294 F.3d 841 (7th Cir. 2002)……………… 27
Descamps v. United States, 133 S. Ct. 2276 (2013)…………………. 5, 21
Giglio v. United States, 405 U.S. 150 (1972)………………………… 30
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015)….. passim
Kimmelman v. Morrison, 477 U.S. 365 (1986)………………………. 32 n.14
Kyles v. Whiteley, 514 U.S. 419 (1995)………………………………… 29, 32
Lindsay v. King, 769 F.2d 1034 (5th Cir. 1985)……………………… 33
Nuckols v. Gibson, 233 F.3d 1261 (10th Cir. 2000)…………………. 38
Obrycka v. City of Chicago, No. 07 C 2372, 2011 WL2633783 (N.D. Ill. July 5, 2011)…………………………………………… 30 n.10 Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015)……….. 15 n.7
Shephard v. United States, 544 U.S. 13 (2005)……………………… 20
Simpson v. United States, 721 F.3d 875 (7th Cir. 2013)…………… 27
Smith v. Black, 904 F.2d 950 (5th Cir. 1990)………………………… 35, 37
vii
TABLE OF AUTHORITIES—continued
Page(s) Stricker v. Greene, 527 U.S. 263 (1999)………………………………. 29
Taylor v. United States, 495 U.S. 575 (1990)………………………… 19-20
Thompson v. City of Chicago, 722 F.3d 963 (7th Cir. 2013)………. 35
United States v. Bagley, 473 U.S. 667 (1985)………………………… 29
United States v. Barton, 995 F.2d 931 (9th Cir. 1993)……………... 35
United States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999)…………….. 39
United States v. Bullock, 130 F. App‘x 706 (6th Cir. 2005)……….. 37
United States v. Colkley, 899 F.2d 297 (4th Cir. 1990)…………….. 39
United States v. Cruz-Rodriguez, 625 F.3d 274 (5th Cir. 2010)….. 16
United States v. Douglas, 634 F.3d 852 (6th Cir. 2011)……………. 30
United States v. Foster, 674 F.3d 391 (4th Cir. 2012)……………… 25
United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000)…… 38
United States v. Gutierrez, 978 F.2d 1463 (7th Cir. 1992)………… 5
United States v. Harris, 741 F.3d 1245 (11th Cir. 2014)…………… 26
United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014)…………. 20
United States v. Johnson, No. 96-2008, 1997 WL 38192 (10th Cir. July 7, 1997)…………………………………………. 37 United States v. Mack, 729 F.3d 594 (6th Cir. 2013)……………….. 26
United States v. McCoy, 348 F. App’x 900 (4th Cir. 2009)………… 36
United States v. Nelson, 193 Fed. App’x 47 (2d Cir. 2006)………… 34
United States v. Olsen, 704 F.3d 1172 (9th Cir. 2013)……………… 29
viii
TABLE OF AUTHORITIES—continued
Page(s) United States v. Ortiz, 474 F.3d 976 (7th Cir.2007)………………… 25
United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005)…… 17-18
United States v. Reyes, 270 F.3d 1158 (7th Cir. 2001)……………… 10, 31
United States v. Samuels, 521 F.3d 804 (7th Cir. 2008)…………… 24
United States v. Shamah, 624 F.4d 449 (7th Cir. 2010)…………… 9 n.2
United States v. Stott, 245 F.3d 890 (7th Cir. 2001)………………… 39
United States v. Taylor, 471 F. App’x 499 (6th Cir. 2012)…………. 36-37
United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012)…….. 15-18
United States v. Veras, 51 F.3d 1365 (7th Cir. 1995)………………. 37
United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993)…… 36
White v. Roper, 416 F.3d 728 (8th Cir. 2005)………………………… 32
Youngblood v. West Virginia, 547 U.S. 867 (2006)…………………. 31
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V……………………………………………………. 1
U.S. Const. amend. VI…………………………………………………… 1
U.S. Const. amend. VIII………………………………………………… 2
STATUTES: Federal
18 U.S.C. § 922………………………………………………………….... passim
18 U.S.C. § 924………………………………………………………….... passim
28 U.S.C. § 1254………………………………………………………….. 1
ix
TABLE OF AUTHORITIES—continued
Page(s) STATUTES: Illinois
720 ILCS 5/19-3 (West 1994) ………………………………………….. 3, 19
720 ILCS 5/12-4 (West 1992) ………………………………………….. 4-5, 21
720 ILCS 5/18-2 (West 2002) ………………………………………….. 5, 22-23
720 ILCS 5/2-6 (West 1994) ……………………………………………. 1
OTHER AUTHORITIES
Bruce Bayley, Nobel Cause Corruption: Do the ends justify the means?, (Feb. 12, 2010)…………………………………………………. 34 n.16 Thomas J. Martinelli, J.D., Unconstitutional Policing: The Ethical Challenges in Dealing with Nobel Cause Corruption, The Police Chief Magazine (Oct. 2006)…………………………………………….. 34 n.16
1
PETITION FOR A WRIT OF CERTIORARI _____________
Petitioner, Ernest Shields, respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Seventh Circuit
in this case.
OPINIONS BELOW
The Seventh Circuit’s opinion (App., infra, 1a) is reported at United States v.
Shields, Docket No. 13-3726 (7th Cir. June 15, 2015).
JURISDICTION
The court of appeals entered its judgment on June 15, 2015. (App., infra, 1a)
This petition is filed within 90 days of that judgment. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
I. United States Constitution.
The Fifth Amendment to the Constitution of the United States provides, in
relevant part: “No person shall be…deprived of life, liberty, or property, without due
process of law.” U.S. CONST., amend. V.
The Sixth Amendment to the Constitution of the Untied States provides, in
relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for
2
obtaining witnesses in his favor, and to have the assistance of counsel for his
defense.” U.S. CONST., amend. VI.
The Eighth Amendment to the Constitution of the United States provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST., amend. VIII.
II. United States Code.
Section 922(g) of Title 18 of the United States Code states, in pertinent part,
as follows:
****************
(g) It shall be unlawful for any person – (1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
****************
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
****************
18 U.S.C. § 922.
Section 924(e) of Title 18 of the United States Code states, in pertinent part,
as follows:
****************
(e) (1) In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions
3
different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection -
****************
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that –
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
****************
18 U.S.C. § 924.
III. Illinois Criminal Code.
Section 5/19-3(a) of the then-controlling Illinois Criminal Code stated, in
pertinent part, as follows: “A person commits residential burglary who knowingly
and without authority enters the dwelling place of another with the intent to
commit therein a felony or theft.” (App., infra, 99a) (720 ILCS 5/19-3 (West 1994)).
Section 5/12-4(a) of the then-controlling Illinois Criminal Code stated, in
pertinent part, as follows: “A person who, in committing a battery, intentionally or
4
knowingly causes great bodily harm, or permanent disability or disfigurement
commits aggravated battery.” (App., infra, 102a) (720 ILCS 5/12-4 (West 1992)).
Section 5/18-2(a) of the then-controlling Illinois Criminal Code stated, in
pertinent part, as follows:
Sec. 18-2. Armed robbery. (a) A person commits armed robbery when he or she violates Section
18-1; and
(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.
**************
(App., infra, 103a) (720 ILCS 5/18-2 (West 2002)).
STATEMENT OF THE CASE
In light of this Court’s holding in Johnson v. United States, 576 U.S. ___, 135
S. Ct. 2551 (2015), the convictions that the government relied upon in support of the
enhancement under the Armed Career Criminal Act (“ACCA”) (Ernest Shields’ 1993
conviction for aggravated battery, 1995 conviction for residential burglary, and 2005
conviction for armed robbery), and which the district court relied to apply that
enhancement, do not constitute a “violent felony” for purposes of the ACCA and this
matter must be remanded for resentencing.
5
Also, to the extent that the Supreme Court in Alleyne v. United States, 133 S.
Ct. 2151, 2160 n.1 (2013) did not address (because the parties did not contest in that
matter) the vitality of Almenarez-Torres v. United States, 523 U.S. 224 (1998),
Shields challenges the exception to the “general rule” regarding a “prior conviction”
not needing to be considered an element of the crime when it imposes a mandatory
minimum sentence (or increases the prescribed range of penalties to which a
criminal defendant is exposed) beyond a reasonable doubt. See Apprendi v. New
Jersey, 530 U.S. 466 (2000). In fact, Justice Thomas recently noted the problem
caused by not reconsidering Almendarez-Torres. Descamps v. United States, 133 S.
Ct. 2276, 2295 (2013) (Thomas, J., concurring in the judgment). Reversal is
warranted when the record is devoid of any evidence, regardless of how it is
weighed, from which a jury could find guilt, as to each element of the charged
conduct, beyond a reasonable doubt. United States v. Gutierrez, 978 F.2d 1463,
1468-69 (7th Cir. 1992).
Finally, this case concerns the application of the Due Process Clause in a
frequently recurring context: the applicability of Brady v. Maryland, 373 U.S. 83
(1963) and its progeny to a suppression hearing. Petitioner in this case was
prejudiced by the failure of the government to disclose the background of the
arresting officer, who had been the subject of allegations related to planting
evidence on a defendant. This Court has never directly spoken on Brady’s
applicability to suppression hearings. In the meantime, defendants, like petitioner
in this case, and lower courts (both federal and state) attempt to reconcile court
6
precedent in order to prevent adversarial unfairness and to foster due process.
However, despite these efforts, the lack of guidance from this Court leads the lower
courts to continue wrestle in the lack of guidance.
I. Proceedings In The District Court.
A. The Court of Appeals’ summary of facts.
“At approximately 8:00 p.m. on January 10, 2011, Officers Craig Coglianese
and David Bachler of the Chicago Police Department were on patrol in an
unmarked police vehicle. The officers observed Mr. Shields’s parked SUV partially
blocking a crosswalk, in violation of Chicago Municipal Code § 9-64-110(c). The
officers stopped their vehicle parallel to Mr. Shields’s SUV.” (App., infra, 2a)
“Officer Coglianese exited his vehicle, approached Mr. Shields, who was
sitting in the driver’s seat of his SUV, and asked for his driver’s license. After
handing Officer Coglianese his driver’s license, Mr. Shields voluntarily exited the
SUV and, at the officer’s request, walked toward the rear of the vehicle with Officer
Coglianese. During this time, Officer Bachler had exited the driver’s seat of the
police vehicle and had walked around to its front.” (App., infra, 2a)
“When Mr. Shields reached the rear of the vehicle, he did not stop to talk to
the police officers, but instead fled east down an adjacent street. Officer Coglianese
gave chase to Mr. Shields. When Mr. Shields turned left down an alley, the officer
followed and saw Mr. Shields pull a firearm out of his right coat pocket. Shortly
thereafter, Officer Coglianese caught up to Mr. Shields and pushed him to the
ground. Officer Bachler arrived in the police vehicle after one or two minutes, and
7
the officers placed Mr. Shields in handcuffs. The officers rolled Mr. Shields over and
discovered a loaded six-shot .22-caliber revolver on the ground. It was the same
firearm that Officer Coglianese had observed Mr. Shields remove from his pocket.”
(App., infra, 3a)
“The officers placed Mr. Shields in the back of their police vehicle, and Officer
Coglianese read Mr. Shields his Miranda rights. Thereafter, Officer Coglianese
asked Mr. Shields, ‘Why are you running with a gun?’ Mr. Shields responded, ‘I
shouldn’t have had that weapon on me.’ At the police station, Officer Coglianese
gave Mr. Shields a ticket for blocking the crosswalk. Mr. Shields then was taken to
the hospital for treatment for a cut over his left eye that he sustained during the
arrest.” (App., infra, 3a)
B. Procedural summary.
“On June 22, 2011, a grand jury indicted Mr. Shields for possession of a
firearm by a felon, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). The indictment
thus listed both the substantive crime and sentencing provision under the Armed
Career Criminal Act. In due course, Mr. Shields filed a motion to suppress the
firearm and his statements following his arrest. In that motion, he maintained that
the traffic stop was illegal, that the police had conducted an illegal search, and that
his statement to the police was involuntary. At an evidentiary hearing on this
motion, Officers Coglianese and Bachler testified about their encounter with Mr.
Shields. Corey Flournoy, an acquaintance of Mr. Shields who was parked down the
street at the time, also testified.” (App., infra, 3-4a)
8
“Following the hearing, the district court denied the motion. The court first
determined that the officers acted within the bounds of the Fourth Amendment in
conducting the traffic stop because they had probable cause to believe that Mr.
Shields had committed a traffic offense by blocking the crosswalk. Rejecting Mr.
Shields’s contention that the officers illegally searched him after pulling him from
his vehicle, the court found that Mr. Shields had presented “absolutely no evidence
that” he was pulled out of the car by the officers. The court went on to note that Mr.
Shields’s flight provided the officers with probable cause to arrest him for knowingly
resisting or obstructing the performance of a police officer in violation of 720 ILCS
5/31-1(a). With regard to the discovery of the firearm, the court determined that
‘[t]he uncontroverted evidence from the suppression hearing establishe[d] that the
officers found the gun in plain view after Shields was legally arrested following a
traffic stop that was reasonable in duration.’ Finally, the court concluded that Mr.
Shields did not establish that his statements following his arrest were involuntary.”
(App., infra, 4-5a)
Prior to the suppression hearing, Ofc. Coglianese was a named defendant in
the matter of Quarles v. Coglianese (Star No. 19028), et al. (Case No. 04-cv-03753)
in the U.S. District Court for the Northern District of Illinois. (DE1 100 at p6) In
that matter, the plaintiff alleged that Ofc. Coglianese (and other defendant officers
conspired and agreed among themselves to, inter alia, allege that a handgun was
found near Quarles. (DE 1 in Case No. 04-cv-03753) Quarles was held in Cook
1 Citations made to the record on appeal/docket will be denoted as “DE ____.
9
County Jail for fifteen months before the government nolle prossed the matter due
to insufficient evidence. Id. at ¶15. That matter was settled within four (4) months
of its filing for $95,000. (DE 12 in Case No. 04-cv-03753).
Also, a second lawsuit against Ofc. Coglianese (Case No. 06-cv-3058), which
was entitled McWilliams v. Coglianese, et al., involved a warrantless search of a
house where “money (approximately 2500.00) went missing from the house;
additionally, drugs were planted in the house”, (DE 141-2, ¶ 6), an apparently
prelude to Ofc. Coglianese’s colleagues in his unit (22nd District Tactical Unit2) who
were arrested for stealing and planting evidence (DE 141-2, ¶ 7). After that matter
settled, according to the docket (DE 165), agents of Ofc. Coglianese beat up the
plaintiff in order to “discourage Plaintiff from collecting settlement monies” from
Ofc. Coglianese.
In the case sub judice, the information3 following an Office of Professional
Standards (“OPS”)4 and/or Internal Affairs Division (“IAD”) investigation (had it
2 In United States v. Shamah, 624 F.4d 449 (7th Cir. 2010), this Court discussed the actions of convicted CPD officers Mahmoud “Mike” Shamah and his partner, Richard Doroniuk, who planted evidence where “a future stop or search did not establish probable cause for an arrest.” Shamah, 624 F.4d at 452. Shamah and Doroniuk were guilty of violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (18 U.S.C. §1962(d)). 3 Files generated by the investigation of complaints of misconduct by Chicago police officers are what the City calls “Complaint Register files” or “CR files.” Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009). A Complaint Register (“CR”) file is a compilation of documents related to the City of Chicago’s internal investigation of allegations of misconduct against its police officers. See Obrycka v. City of Chicago, No. 07 C 2372, 2011 WL2633783, at *2 (N.D. Ill. July 5, 2011). 4 “Effective September 5, 2007, IPRA was established as an independent department, separate from the Chicago Police Department, reporting directly to the Mayor.” http://www.iprachicago.org/IPRA_Jan152008.pdf (last visited July 1, 2015).
10
been produced) could have included exculpatory information and, at a minimum,
was suitable for impeachment purposes and, therefore, “favorable to the accused.”
Without the conclusions of the investigations, at the motion hearing and jury trial,
there was no objective evidence to impeach Ofc. Coglianese with.5 Next, it is clear
that the evidence was suppressed by the government because it was in the
possession of the government and not produced. Finally, the investigation results
are obviously “material” because, it the evidence been disclosed, the result of the
proceeding would have been different. There would have been a reasonable
probability “sufficient to undermine confidence in the outcome.” United States v.
Reyes, 270 F.3d 1158, 1166 (7th Cir. 2001).
Further, in this case, evidence impeaching the credibility of the government
witness (Ofc. Coglianese) is important because if Ofc. Coglianese planted the gun on
Shields (as is the Shields’s contention) like it was alleged with Kelly Quarles, then
that would explain why he never shot at Shields when he allegedly saw him draw a
gun in the alley6 (instead of bravely soldiering on to overtake and, then, push
Shields to the ground), never telling Shields to drop any weapon, and never warning
any other officer (including Ofc. Buchler) that Shields pulled a weapon from his coat
pocket (including over the radio). Evidently, the jury, which deliberated
approximately 4 hours, struggled with the credibility of the possession evidence.
5 This would rebut the district court’s comment that “there [isn’t] any attorney I know of alive or dead who could necessarily win” this case. (DE 146 at p44) 6 Ofc. Buchler said that he would have yelled to someone fleeing with a gun to stop and drop the weapon, may shoot him/her, and would warn officers of the presence of a weapon. (DE 144 at p39-40)
11
“Mr. Shields filed a motion for reconsideration or, in the alternative, a
request that the court reopen the suppression hearing to allow Mr. Shields to
testify. The next day, Mr. Shields filed a motion to dismiss the indictment on the
ground that the statute violated the Second Amendment of the Constitution. The
Government filed its responses to Mr. Shields’s motions on March 8, 2013. Mr.
Shields did not file a reply for either motion by the March 15, 2013, deadline.”
(App., infra, 5a)
“At a subsequent hearing, Mr. Shields asked for a continuance of the trial so
that he could have more time to file his replies. He stated that he needed more time
because his counsel was involved in a separate trial that was ‘pushed into an
inconvenient spot’ and because he was trying to arrange for two witnesses. The
court denied the request, stating that it was too late to ask for more time to file the
replies and that it was too close to trial to grant a continuance. The court
specifically noted that Mr. Shields had not filed a request for an extension of the
reply deadline and that it was only three business days from trial.” (App., infra, 5a)
“Mr. Shields then filed a motion to dismiss the indictment on the ground that
federal jurisdiction could not be established beyond a reasonable doubt. He
maintained that the Government could not establish the requisite interstate
commerce nexus. The district court denied the motion.” (App., infra, 6a)
“The jury trial commenced on March 25, 2013, and lasted three days. On the
second day of trial, Mr. Shields stipulated that he had ‘been at some time before
January 10, 2011 convicted of a felony punishable by imprisonment for a term
12
exceeding one year.’ The Government offered no additional evidence at trial of Mr.
Shields’s prior convictions.” (App., infra, 6a)
“The district court instructed the jury that ‘the government must
prove…three…elements beyond a reasonable doubt: No. 1, the defendant knowingly
possessed a firearm. No. 2, at the time of the charged act, the defendant was a felon.
And, No. 3, the firearm had been shipped or transported in interstate or foreign
commerce.’ The jury found Mr. Shields guilty of possession of a firearm by a felon.”
(App., infra, 6-7a)
“The presentence report (“PSR”) calculated that Mr. Shields had a total
offense level of 33 and a criminal history category of VI, resulting in a guidelines
range of 235 to 293 months’ imprisonment. It also noted that Mr. Shields had three
prior violent felony convictions [1994 conviction for aggravated battery (PSR at ¶
28); 1995 conviction for residential burglary (PSR at ¶ 29); 2005 conviction for
armed robbery (PSR at ¶ 31)] and therefore was subject to a mandatory minimum
sentence of fifteen years under the Armed Career Criminal Act (‘ACCA’), 18 U.S.C.
§ 924(e)(1).” (App., infra, 7a)
“At the sentencing hearing, Mr. Shields, appearing pro se, objected to the
PSR on several grounds. He first stated that two of his convictions did not qualify
for the ACCA enhancement. Second, Mr. Shields argued that his mandatory
minimum sentence violated Alleyne v. United States, 133 S. Ct. 2151 (2013), because
his three prior felony convictions were not submitted to the jury. Finally, Mr.
Shields argued that he received a letter that indicated that his civil rights were
13
restored and that, consequently, the underlying offense could not serve as the basis
of a sentencing increase. The district court rejected all of Mr. Shields’s arguments
and sentenced him to the fifteen-year mandatory minimum, followed by a five-year
term of supervised release.” (App., infra, 7-8a)
II. Proceedings In The Court of Appeals.
The court of appeals issued its opinion in Petitioner’s case on June 15, 2015.
(App., infra, 1-29a; United States v. Shields, (7th Cir. June 15, 2015).
REASONS FOR GRANTING THE PETITION
First, the three convictions upon which the district court relied upon to
sentence Earnest Shields under the ACCA, in light of this Court’s holding in
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), do not constitute a
“violent felony” for purposes of the ACCA and this matter must be remanded for
resentencing.
Second, this Court should grant certiorari to answer the question of whether
prior convictions of a defendant (whether in the context of the ACCA or other
similar statute) are subject to the requirement under the Sixth Amendment that
the government allege in the indictment and prove to a jury beyond a reasonable
doubt any fact that increases the amount of criminal sentences, penalties, and
punishments. An answer in the affirmative would explicitly overrule Almenarez-
Torres v. United States, 523 U.S. 224 (1998), would clarify the uncertainty that
Alleyne v. United States, 133 S. Ct. 2151 (2013) cast upon Almenarez-Torres, and, in
turn, afford more certainty and clarity as to an issue which, ultimately, results in
14
the unconstitutional deprivation of other’s individual right to liberty and/or life.
Third, and finally, this Court should grant certiorari to answer whether
Brady v. Maryland, 373 U.S. 83 (1963) applies to suppression hearings given the
nature of how such hearings play a rule in determining a defendant’s guilt or
punishment. This Court should grant certiorari to resolve conflict and widespread
uncertainty among the lower courts about how Brady and its progeny apply to
suppression hearings. The Court can clarify and resolve the conflict and uncertainty
that exists and, in turn, afford more certainty and clarity as to an issue which,
ultimately, may result in the deprivation of an individual’s right liberty and/or life.
I. This Court’s Holding In Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015) Means That The Convictions Used Against Shields To Charge And Sentence Him Under The ACCA Do Not Constitute A “Violent Felony” For Purposes Of The ACCA And Resentencing Is Required.
Ernest Shields was charged with being a felon (an at least 3-time felon) in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1) (Count 1).
At the sentencing hearing, the trial court concluded that each of Shields’ convictions
for aggravated battery (1993) (App., infra, 4a), residential burglary (1995) (App.,
infra, 4a), and armed robbery (2005) (App., infra, 4a) constituted a “violent felony”
under the ACCA and a “crime of violence” in the parlance of the sentencing
guidelines. (App., infra, 37-38a) As will be explained herein, those convictions (PSR
at ¶¶ 28, 29, and 31) underlying the § 924(e) offense/Count 1 categorically fail to
qualify as a “violent felony” within the meaning of 18 U.S.C. § 924(e)(1) and §
15
924(e)(2)(B), including the residual clause recently found unconstitutionally vague
under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015)7.
A. The “force clause”, the specifically enumerated offense clause, and “residual clause”. 1. The “force clause”.
In the post-Descamps/Johnson world, it is clear that for any of the Illinois-
state convictions to qualify as a “violent felony” under § 924(e)(2)(B)’s force clause
the offense must have an element of “physical force.” And “physical force” means
“violent force” – that is “strong physical force,” which is “capable of causing physical
pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130
S. Ct. 1265 (2010). Neither “aggravated battery” nor “residential burglary” nor
“armed robbery” meet this requirement because each of them can be accomplished
by something other than a manner capable of causing physical pain or injury to
another person, which does not require the use, attempted use, or threatened use of
“violent force.”
The Fourth Circuit’s decision in United States v. Torres-Miguel, 701 F.3d 165,
167 (4th Cir. 2012) is directly on point. Indeed, in that case, the Fourth Circuit
unequivocally held that the threat of any physical injury, even “death or serious
bodily injury,” does not necessarily require the use of physical force – let alone
7 Recently, a panel of the United States Court of Appeal for the Seventh Circuit held that that Johnson v. United States, 135 S. Ct. 2551 (2015) announced a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions. Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price, the Court concluded that Johnson announced a new substantive rule.
16
“violent force.” Torres-Miguel, 701 F.3d at 168. In Torres-Miguel, at issue was the
defendant’s prior conviction for the California offense of willfully threatening to
commit a crime which “will result in death or great bodily injury to another
person….” Torres-Miguel, 701 F.3d at 167-68 (citing Cal. Penal Code § 422(a)).
Despite the “death or great bodily injury” element in the California statute, the
Fourth Circuit found that the offense was missing a “violent force” element, and
thus, could never qualify as a “crime of violence” under the force clause. Torres-
Miguel, 701 F.3d at 168-69. The Court blanketly held that “[a]n offense that results
in physical injury, but does not involve the use or threatened use of force, simply
does not meet the Guidelines definition of crime of violence.” Torres-Miguel, 701
F.3d at 168. The Court, in strong words, proclaimed that “of course, a crime may
result in death or serious injury without involving use of physical force.” Torres-
Miguel, 701 F.3d at 168. (emphasis added).
The Court, relying on several appellate decisions from various Circuits,
reasoned that there are many ways in which physical injury – even death – can
result without use of “violent force.” Torres-Miguel, 701 F.3d at 168-69. “For
example, as the Fifth Circuit has noted, a defendant can violate statutes like §
422(a) by threatening to poison another, which involves no use or threatened use of
force.” Torres-Miguel, 701 F.3d at 168-69 (citing United States v. Cruz-Rodriguez,
625 F.3d 274, 276 (5th Cir. 2010)).
In reaching its decision, the Torres-Miguel Court also relied on the Second
Circuit’s decision in Chrzanoski v. Ashcroft, 327 F.3d 188, 194 (2d Cir. 2003). In that
17
case at issue was whether a prior Connecticut conviction for third degree assault
qualified as a “crime of violence” under the force clause. The Connecticut statute
“require[s] the state to prove that the defendant had intentionally caused physical
injury.” Chrzanoski, 327 F.3d at 193. Nonetheless, the “Second Circuit [] held that
[the statute] does not constitute a crime of violence…because there is a difference
between causation of an injury, which is all that the Connecticut statute [] required,
and an injury’s causation by the use of physical force.” Torres-Miguel, 701 F.3d at
169 (citing Chrzanoski, 327 F.3d at 194) (internal quotes omitted).
The Second Circuit explained that “an individual could be convicted of
intentional assault in the third degree for injury caused not by physical force, but by
guile, deception, or even deliberate omission.” Chrzanoski, 327 F.3d at 195. The
Court elaborated that “human experience suggests numerous examples of
intentionally causing physical injury without the use of force, such as a doctor who
deliberately withholds vital medicine from a sick patient” or someone who causes
physical impairment by placing a tranquilizer in the victim’s drink. Chrzanoski, 327
F.3d at 195-56.
For even further support, in Torres-Miguel, 701 F.3d at 169, the Fourth Court
embraced the Tenth Circuit’s decision in United States v. Perez-Vargas, 414 F.3d
1282, 1287 (10th Cir. 2005). In that case, the Tenth Circuit “explained that
although the Colorado [third degree assault] statute required [an act causing]
bodily injury, imposing that injury does not necessarily include the use or
threatened use of physical force as required by the Guidelines and so the Colorado
18
crime was not categorically a crime of violence under U.S.S.G. § 2L1.2.” Torres-
Miguel, 701 F.3d at 169 (citing Perez-Vargas, 414 F.3d at 1287) (internal quotation
marks omitted). The Tenth Circuit reasoned that “several examples [exist] of third
degree assault that would not use or threaten the use of physical
force:…intentionally placing a barrier in front of a car causing an accident, or
intentionally exposing someone to hazardous chemicals.” Perez-Vargas, 414 F.3d at
1286. Therefore, Torres-Miguel and all the other cases discussed above command
that the Illinois convictions do not require “violent force.”
Because “the full range of conduct” covered by the “aggravated battery”,
“residential burglary”, and “armed robbery” statutes do not require “violent force,” it
simply cannot qualify as a “violent felony” under § 924(e)(2)(B)’s force clause.
Torres-Miguel, 701 F.3d at 171. And it makes no difference, even if the possibility of
violating the statute without the use or threat of violent physical force is slim.
Because the possibility exists, this Court cannot legally find that those crimes are a
“violent crime.” Indeed, in Torres-Miguel, the Court did not cite to a single case in
which an offense under the California threat statute was violated with the threat of
poisoning or some other nonviolent force; yet, the Fourth Circuit still found that
because the elements of the offense left open the possibility that one could be
prosecuted under the statute for the use of non-violent force, the prior offense
categorically failed to qualify as a “crime of violence.” Torres-Miguel, 701 F.3d at
171. The Court should find the same here with respect to the subject statutes,
which leave open the same possibility.
19
2. The specifically enumerated offenses.
Section 924(e)(2)(B)(ii) specifically includes only the following crimes:
burglary, arson, extortion, or a crime involving the use of explosives. That section
does not specifically include either “aggravated battery” or “residential burglary” or
“armed robbery”.
3. The residual clause.
On June 26, 2015, a mere fourteen (14) days after the Seventh Circuit issued
is decision in this matter, this Court found residual clause unconstitutionally vague
under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015).
B. Application to Ernest Shields’ convictions.
1. Residential burglary.
First, as described below, the crime of residential burglary does not qualify as
a “violent felony” under § 924(e)(2)(B)’s force clause because it does not include
“physical force” that is “capable of causing physical pain or injury to another
person.” Section 5/19-3(a) of the then-controlling Illinois Criminal Code stated, in
pertinent part, as follows: “A person commits residential burglary who knowingly
and without authority enters the dwelling place of another with the intent to
commit therein a felony or theft.” (App., infra, 99a) (720 ILCS 5/19-3 (West 1994)).
Admittedly, a “burglary” that is punishable by more than a year in prison may
qualify as a violent felony under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii). But not
just any burglary will do. The Supreme Court has held that “burglary” under the
ACCA is defined using “the generic, contemporary meaning of burglary.” Taylor v.
20
United States, 495 U.S. 575, 598 (1990). The generic, contemporary definition of
burglary “contains at least the following elements: an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a
crime.” Taylor, 495 U.S. at 598. Federal courts apply this “uniform definition
independent of the labels employed by the various States’ criminal codes.” Taylor,
495 U.S. at 592.
Similarly, the residential burglary statute permits conduct that does not
require either “violent force” or a “strong physical force”. For instance, a person
could enter a “dwelling place of another” to steal something and, in the process,
never make physical contact of any kind with any person. In Shephard v. United
States, 544 U.S. 13 (2005) the Supreme Court stated clearly that the ACCA “makes
burglary a violent felony only if committed in a building or enclosed space (‘generic
burglary’), not in a boat or motor vehicle.” Shephard, 544 U.S. at 15-16; see also
United States v. Henriquez, 757 F.3d 144, 147 (4th Cir. 2014).
Also, Illinois’ courts have construed the term “dwelling” broadly enough to
convict a person of burglarizing an enclosure excluded from the federal definition of
generic burglary. Importantly, “[f]or the purposes of Section 19-3 of this Code,
‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters
in which at the time of the alleged offense the owners or occupants actually reside
or in their absence intend within a reasonable period of time to reside.” (App., infra,
101a) (720 ILCS 5/2-6 (West 1994)). Federal courts must apply the categorical
approach here because “the crime of which the defendant was convicted has a
21
single, indivisible set of elements.” Descamps v. United States, 133 S. Ct. 2276, 2282
(2013). A court’s analysis is, thus, restricted to “the fact of conviction and the
statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 603
(1990). As such, because neither a “mobile home” nor a “trailer” constitute either “a
building or other structure”, “residential burglary” is not the same as “burglary” as
an enumerated offense under § 924(e)(2)(B)(ii) and, thus, is not contained therein.
Because the categorical approach precludes federal courts from looking to the facts
underlying a prior conviction, a sentencing court would have no way to ensure that
a residential burglary conviction in Illinois did not involve an excluded enclosure—
such as a boat or motor vehicle.
Finally, in light of this Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015) that an increased sentence under the ACCA’s residual clause
violates due process. So, to the extent that it fell within the residual clause, that
basis for using that conviction no longer applies.
Therefore, the judgment must be vacated and remanded.
2. Aggravated battery.
Section 5/12-4(a) of the then-controlling Illinois Criminal Code stated, in
pertinent part, as follows: “A person who, in committing a battery, intentionally or
knowingly causes great bodily harm, or permanent disability or disfigurement
commits aggravated battery.” (App., infra, 102a) (720 ILCS 5/12-4 (West 1992)).
“Aggravated battery”, too, does not fall under the “force clause” because it
does not require “physical force” that is “capable of causing physical pain or injury
22
to another person.” For instance, an individual could be found guilty of aggravated
battery by simply intentionally placing a barrier in front of an individual causing
bodily harm, or permanent disability or disfigurement, or intentionally exposing
someone to hazardous chemicals causing bodily harm, or permanent disability or
disfigurement. Therefore, aggravated battery, also, does not fall within the “force
clause”.
Further, aggravated battery is not an enumerated offense under §
924(e)(2)(B)(ii). Finally, the decision in Johnson v. United States, 135 S. Ct. 2551
(2015) found that an increased sentence under the ACCA’s residual clause violates
due process. So, to the extent that it fell within the residual clause, that basis for
using that conviction no longer applies.
Therefore, the judgment must be vacated and remanded.
3. Armed robbery.
The last conviction Shields challenges is his conviction for armed robbery.
Section 5/18-2(a) of the then-controlling Illinois Criminal Code stated, in pertinent
part, as follows:
Sec. 18-2. Armed robbery. (b) A person commits armed robbery when he or she violates Section
18-1; and
(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally
23
discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.
**************
(App., infra, 103a) (720 ILCS 5/18-2 (West 2002)). Based upon the elements of the
crime contained in the statute, the crime of armed robbery can be accomplished by
something other than a manner capable of causing physical pain or injury to
another person, which does not require the use, attempted use, or threatened use of
“violent force.” For all of the reasons set forth above, the offense of armed robbery
leaves open the possibility that one could be prosecuted under the statute for the
use of non-violent force and, thus, this prior offense categorically fails to qualify
under the ACCA. Therefore, armed robbery, also, does not fall within the “force
clause”.
Further, armed robbery is not an enumerated offense under § 924(e)(2)(B)(ii).
Finally, the decision in Johnson v. United States, 135 S. Ct. 2551 (2015) found that
an increased sentence under the ACCA’s residual clause violates due process. So, to
the extent that it fell within the residual clause, that basis for using that conviction
no longer applies.
Therefore, the judgment must be vacated and remanded.
For the foregoing reasons, Shields respectfully requests that the Court grant
this petition, vacate the judgment, and remand.
24
II. The District Court’s Sentence Violates The Sixth Amendment Because Shields Prior Convictions Were Not Proven Beyond Reasonable Doubt. Shields was charged with being a felon (an at least 3-time felon) in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1) (Count 1) (“the charged
crime”). Without dismissing the Section 924(e)(1) element, and based on the district
court’s instructions, Shields was convicted of a felon (as a 1-time felon) in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(b) (“the proven crime”
insofar the crime upon which the jury was instructed). The elements of a felon in
possession of a firearm charge are threefold: 1) the individual was a convicted felon
prior to the date in question; 2) the individual possessed a firearm; and 3) the
firearm traveled in interstate commerce.” United States v. Samuels, 521 F.3d 804,
811-12 (7th Cir. 2008). The Supreme Court emphasized in Alleyne v. United States,
133 S. Ct. 2151 (2013) that, in this context, “the core crime and the fact triggering
the mandatory minimum sentence together constitute a new, aggravated crime,
each element of which must be submitted to the jury.” Alleyne, 133 S. Ct. at 2161.
The district court erred in imposing a mandatory minimum sentence of
fifteen (15) years under the 18 U.S.C. § 924(e)(1) when the elements were not
submitted to the jury, thus, violating Alleyne v. United States, 133 S. Ct. 2151
(2013). The Supreme Court held in Alleyne that any facts that determine a
statutory minimum sentence must be submitted to a jury, if not admitted by the
defendant. Alleyne, 133 S. Ct. at 2155.
“Any fact that, by law, increases the penalty for a crime is an ‘element’ that
25
must be submitted to the jury and found beyond a reasonable doubt. Mandatory
minimum sentences increase the penalty for a crime. It follows, then, that any fact
that increases the mandatory minimum is an ‘element’ that must be submitted to
the jury.” Alleyne, 133 S. Ct. at 2155.
Furthermore, the holding in Alleyne v. United States, 133 S. Ct. 2151 (2013),
applies to the case at hand. In Alleyne, the Supreme Court concluded that a fact is
an element of a crime and must be submitted to the jury when “a finding of fact
alters the legally prescribed punishment so as to aggravate it, the fact necessarily
forms a constituent part of a new offense and must be submitted to the jury”.
Alleyne, 133 S. Ct. at 2162. In this case, the district court’s finding, which served
the basis to convert an otherwise ten (10) year maximum to a fifteen (15) year
mandatory minimum must be vacated and the matter must be remanded back to
the district court for further proceedings. Alleyne, 133 S. Ct. 2151 (2013). The jury
heard only had evidence of a single prior qualifying conviction.
The burden of proof for establishing that a sentencing enhancement is
warranted lies with the prosecution, and the district court must ensure the
government carries its burden of proof. United States v. Foster, 674 F.3d 391, 401
(4th Cir. 2012).
“There are three elements to a [18 U.S.C.] § 922(g)(1) violation: the prior
felony, the possession of the gun and the gun’s travel in interstate commerce (that
is, across state lines) prior to the defendant’s possession of it.” United States v.
Ortiz, 474 F.3d 976, 982 (7th Cir.2007). Applying the logic of the lower courts’
26
decisions to someone charged with violation of § 922(g)(1) would mean that,
actually, the elements that the government must be submitted to a jury are (1) the
possession of the gun and (2) the gun’s travel in interstate commerce (that is, across
state lines) prior to the defendant’s possession of it. The third element referenced in
Ortiz, a prior conviction, would not need to be submitted to a jury because it can be
found by judges. As Ortiz explains, the conviction is an element of the crime…not a
“sentencing fact” to be decided by a judge. Why even prejudice the defendant by
telling the jury that he is a “felon” and, as a felon, he was not permitted to
possession a weapon if judge is going to make that decision?
It is undeniable that tension exists “between Almendarez-Torres on the one
hand and Alleyne…on the other.” United States v. Harris, 741 F.3d 1245, 1250 (11th
Cir. 2014); see also Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (“[I]t is
arguable that Almendarez-Torres was incorrectly decided.”). Also, the Sixth Circuit
explicitly stated that Almenarez-Torres may stand on “shifting sands”. United
States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).
With regard to Almendarez-Torres, the only thing the Supreme Court said in
Alleyne was: “Because the parties do not contest [Almendarez-Torres]’s vitality, we
do not revisit it for purposes of our decision today.” 133 S. Ct. at 2160 n.1. That
statement did not reaffirm Almendarez-Torres’s vitality. Instead, the Supreme
Court only determined that it would not, sua sponte, reevaluate it. In Descamps,
Justice Thomas noted that the only reason defendant’s ACCA enhancement was
before the Supreme Court was because the Court had not yet reconsidered
27
Almendarez-Torres. Descamps, 133 S. Ct. at 2295 (Thomas, J., concurring in the
judgment).
The defendant in Alleyne was sentenced under a federal statute prohibiting
the use of a firearm during a crime of violence. Alleyne, 133 S. Ct. at 2155. The
statute provides for a five-year mandatory minimum sentence. Id. However, if the
firearm were “brandished,” the mandatory minimum sentence would increase to
seven years. Id.; see 18 U.S.C. § 924(c)(1)(A)8. The jury in Alleyne indicated on the
verdict form that Alleyne had “‘[u]sed or carried a firearm during and in relation to
a crime of violence,’” but did not indicate a finding that the firearm was
“‘[b]randished.’” Alleyne, 133. S. Ct. at 2156 (quoting appellate record) (alterations
in Alleyne). However, the trial judge found that the evidence supported a finding of
brandishing, thereby increasing the mandatory minimum sentence to seven years.
Id.; Burrage v. United States, 571 U.S. __, 134 S. Ct. 881 (2014) (holding that facts
resulting in an enhanced sentence must be submitted to the jury and found beyond
a reasonable doubt, which resulted in a reversal).
Courts have recognized that “Alleyne establishe[d] a new rule of
constitutional law.” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). In
Curtis v. United States, 294 F.3d 841 (7th Cir. 2002), the court found that the rule
in Apprendi was not substantive: “Apprendi is about nothing but procedure—who
decides a given question (judge versus jury) and under what standard
8 Although Section 924 is entitled “Penalties”, both the element of “brandished” (§ 924(c)(1)(A)(ii)) and the element of “three previous convictions” found in § 924(e)(1) are contained therein and increase the mandatory minimum.
28
(preponderance versus reasonable doubt).” Id. at 843. As an extension of Apprendi,
the identical reasoning applies to Alleyne. Whereas Apprendi addressed facts that
increase statutory maximum penalties, Alleyne addresses facts that increase
mandatory minimums. But both cases are about who decides a given question
(judge versus jury) and under what standard (preponderance versus reasonable
doubt). Thus, like the rule in Apprendi, the rule announced in Alleyne is entirely
procedural.
This case provides an excellent vehicle to resolve the question presented. The
relevant facts are straightforward and uncontroverted: The jury made no finding as
to (and Petitioner never admitted to) more than one conviction. However, the trial
judge imposed a mandatory minimum sentence of 15 years based upon facts not
submitted to a jury or proven beyond a reasonable doubt. Moreover, this case
presents what Petitioner believes to be the unprecedented instance in which the
issue of whether prior convictions were not submitted to a jury is perfectly
preserved. There is no doubt that Petitioner expressly asserted his constitutional
right to a jury and argued at every stage of these proceedings that imposition of the
additional punishment based on judicial factfinding violates that right. Both the
district court and the Seventh Circuit squarely addressed the issue.
The Court should not underestimate the uniqueness of this posture. In
virtually all of the circuit court cases in which this issue has been raised (and thus
all of the petitions that have been filed in this Court to date), the issue has been
unpreserved or the court of appeals mischaracterizes this Court’s statement in
29
Alleyne in relationship to Almenarez-Torres (“Because the parties do not contest
[Almendarez-Torres]’s vitality, we do not revisit it for purposes of our decision
today.” Alleyne, 133 S. Ct. at 2160 n.1). The Court should not pass up this
opportunity to squarely address this issue of exceptional importance.
For all of the foregoing reasons, the petition for a writ of certiorari should be
granted for the reasons given above.
III. This Court Has Not Decided, But Should Now Decide, Whether Brady v. Maryland Applies To Suppression Hearings.
As Chief Judge Alex Kozinski highlighted in his recent dissent to the denial
of an en banc rehearing: “There is an epidemic of Brady violations abroad in the
land. Only judges can put a stop to it.” United States v. Olsen, 704 F.3d 1172 (9th
Cir. 2013) (Kozinski, C.J., dissenting). “Brady violations have reached epidemic
proportions in recent years, and the federal and state reporters bear testament to
this unsettling trend.” Olsen, 704 F.3d 1172 (collecting cases).
The Constitution is concerned with only one aspect of discovery – prior to
trial, the prosecution must turn over to the defense all exculpatory evidence in its
actual or constructive possession. Failure to do so is a violation of Due Process
Clause of the Fifth Amendment. The main Supreme Court cases that establish this
right are the following: Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whiteley,
514 U.S. 419 (1995); and Stricker v. Greene, 527 U.S. 263 (1999).
Grounded in due process, Brady requires the government to disclose evidence
that is “both favorable to the accused and ‘material either to guilt or to
punishment.’” United States v. Bagley, 473 U.S. 667, 674-75 (1985) (quoting Brady,
30
373 U.S. at 87). To succeed on a Brady claim, the defendant must demonstrate that
(1) the evidence at issue is favorable to him, (2) the evidence was suppressed by the
government, and (3) the suppression prejudiced him. United States v. Douglas, 634
F.3d 852, 860 (6th Cir. 2011). The Court in Giglio held that evidence impeaching
the credibility of a government witness is considered “favorable to the accused”
under Brady. Bagley, 473 U.S. at 676 (explaining that “[i]mpeachment
evidence…falls within the Brady rule” (citing Giglio v. United States, 405 U.S. 150,
154 (1972).
A. The lower courts are deeply divided regarding the application of Brady to suppression hearings.
In the case sub judice, the information9 following an Office of Professional
Standards (“OPS”)10 and/or Internal Affairs Division (“IAD”) investigation (had it
been produced) could have included exculpatory information and, at a minimum,
was suitable for impeachment purposes and, therefore, “favorable to the accused.”
Without the conclusions of the investigations, at the motion hearing and jury trial,
there was no objective evidence to impeach Ofc. Coglianese with.11 Next, it is clear
9 Files generated by the investigation of complaints of misconduct by Chicago police officers are what the City calls “Complaint Register files” or “CR files.” Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009). A Complaint Register (“CR”) file is a compilation of documents related to the City of Chicago’s internal investigation of allegations of misconduct against its police officers. See Obrycka v. City of Chicago, No. 07 C 2372, 2011 WL2633783, at *2 (N.D. Ill. July 5, 2011). 10 “Effective September 5, 2007, IPRA was established as an independent department, separate from the Chicago Police Department, reporting directly to the Mayor.” http://www.iprachicago.org/IPRA_Jan152008.pdf (last visited June 17, 2014). 11 This would rebut the district court’s comment that “there [isn’t] any attorney I know of alive or dead who could necessarily win” this case. (DE 146 at
31
that the evidence was suppressed by the government because it was in the
possession of the government and not produced. Finally, the investigation results
are obviously “material” because, it the evidence been disclosed, the result of the
proceeding would have been different. There would have been a reasonable
probability “sufficient to undermine confidence in the outcome.” United States v.
Reyes, 270 F.3d 1158, 1166 (7th Cir. 2001).
Further, in this case, evidence impeaching the credibility of the government
witness (Ofc. Coglianese) is important because if Ofc. Coglianese planted the
evidence (the gun) on Shields (as is the Shields’ contention) like it was alleged with
Kelly Quarles, then that would explain why the officer never shot at Shields when
he allegedly saw him draw the gun in the alley12 (instead of bravely soldiering on to
overtake and, then, push Shields to the ground), never telling Shields to drop any
weapon, and never warning any other officer (including Ofc. Buchler) that Shields
pulled a weapon from his coat pocket (including over the radio). Evidently, the jury,
which deliberated approximately 4 hours, struggled with the credibility of the
possession evidence.
The reason is that the impeaching evidence withheld by the government13
p44) 12 Ofc. Buchler said that he would have yelled to someone fleeing with a gun to stop and drop the weapon, may shoot him/her, and would warn officers of the presence of a weapon. (DE 144 at p39-40)
13 The police, like the United States Attorneys Office, is a governmental entity charged with turning over exculpatory/impeaching evidence that is constitutionally required and might be expected to play a significant role in the suspect’s defense. Brady v. Maryland, 373 U.S. 83 (1962); Youngblood v. West Virginia, 547 U.S. 867, 870 (2006). We know that motions to suppress are part of a
32
regarding Ofc. Coglianese would have been favorable to the defendant because it
showed a documented alleged evidence-planting history, that evidence was
wrongfully suppressed or withheld by the government, and that evidence was
material in that a reasonable probability existed that prejudice ensued by it not
being disclosed to the defendant.14 A reasonable probability is less than “more likely
than not,” Kyles v. Whitley, 514 U.S. 419, 434 (1995), but it is more than a
possibility. White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005). To determine whether
there is a reasonable probability existed that prejudice ensued, a reviewing court
must consider what it would have done had Shields had the evidence that Ofc.
Coglianese was an alleged planter of evidence. If that information had been
disclosed timely and appropriately, counsel for Shields could have, further, sought
evidence about Ofc. Coglianese, i.e., complaint registers (CRs), investigation files
from the Office of Professional Standards (“OPS”) or the Independent Police Review
Authority (“IPRA”), photographs, arrest and/or investigative reports, etc.
As this Court has explained, the nondisclosure of evidence that would allow
for the “effective impeachment of one eyewitness can call for a new trial even
though the attack does not extend directly to others.” Kyles, 514 U.S. at 445. So, in
analyzing the issue before this Court, focus must be placed on whether there is a
reasonable probability that the jury would have had a reasonable doubt respecting
suspect’s defense because a defendant can seek an ineffective assistance claim based on a failure to file a motion to suppress. Kimmelman v. Morrison, 477 U.S. 365 (1986). 14 Evidence of police corruption would, also, rebut the district court’s comment at sentencing that “there [isn’t] any attorney I know of alive or dead who could necessarily win” this case. (DE 146 at p44)
33
guilt if Shields had obtained and used the impeachment evidence. In Lindsay v.
King, 769 F.2d 1034 (5th Cir. 1985), a case of “agonizing closeness”, the Fifth
Circuit reversed the defendant’s conviction when the two eyewitnesses identified
the defendant as the murderer, but the State withheld impeachment evidence
relating to one of the witnesses. 769 F.2d at 1042-43.
The key evidence relied upon the government in its case was a firearm that
the officers testified Ofc. Coglianese found underneath Shields (and was flashed by
Shields during a close-proximity foot chase, which did not deter Ofc. Coglianese
from continuing to chase Shields and, then, knocking him down) and the alleged
statement from Shields that he should not have had the gun. Conversely to the
testimony of Ofc. Coglianese, Ofc. David Bachler testified that he would if he saw a
person with a gun he would have told him to stop and drop his weapon…and maybe
would have shot him. (DE 144, pp39-40) As set forth in the opening brief and
herein, reversal of Shields’ conviction is required upon a “showing that the favorable
evidence could reasonably be taken to put the whole case in such a different light as
to undermine confidence” in the outcome. Kyles, 514 U.S. at 435.
If the reason for trying to impeach Ofc. Coglianese was related merely to the
municipal code violation stop itself because Ofc. Coglianese, for instance, the
defendant contended Ofc. Coglianese stopped nearly every car in the neighborhood15
and, then, ascertained whether a violation may have existed, then the consideration
15 Thus, employing a law enforcement strategy like the strategy of Wayne Gretzky (the National Hockey League’s (“NHL”) all-time career goal leader) in his becoming the NHL’s all-time scoring leader: “You miss 100% of the shots you don’t take.”
34
would be different. That would be more akin to a case of noble cause corruption.16
Here, the suppressed evidence strikes at the heart of the case: “Did Shields possess
the recovered gun?” vs. “Did Ofc. Coglianese plant evidence on Shields and lie under
oath to make their case and obtain a conviction?” “Did Shields (an individual not
unfamiliar with the criminal justice system) admit his possession of a firearm?” vs.
“Did Ofc. Coglianese (and his partner) lie under oath to make their case and obtain
a conviction?”
Here, the success of the petitioner’s case depended so substantially (almost
entirely) on the success of his motion to suppress, which if successful, would likely
lead to dismissal of the case. Admittedly, some circuits have held explicitly that
Brady applies in the suppression context. See United States v. Nelson, 193 Fed.
App’x 47, 50 (2d Cir. 2006) (observing that “in cases that pivot on the outcome of the
suppression hearing…it seems clear that postponing disclosure until after that
16 “Noble cause corruption in policing is defined as ‘corruption committed in the name of good ends, corruption that happens when police officers care too much about their work. It is corruption committed in order to get the bad guys off the streets…the corruption of police power, when officers do bad things because they believe that the outcomes will be good’ ” Thomas J. Martinelli, J.D., Unconstitutional Policing: The Ethical Challenges in Dealing with Nobel Cause Corruption, The Police Chief Magazine (Oct. 2006), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1025&issue_id=102006 (last visited Sept. 4, 2015). “Examples of noble cause corruption are, planting or fabricating evidence, lying on reports or in court, and generally abusing police authority to make a charge stick.” “Noble cause corruption is a teleological (ends-oriented) [as opposed to deontological] approach to an ethical dilemma that says law enforcement professionals will utilize unethical, and sometimes illegal, means to obtain a desired result.” Bruce Bayley, Nobel Cause Corruption: Do the ends justify the means?, (Feb. 12, 2010) http://www.policeone.com/chiefs-sheriffs/articles/2003646-Noble-cause-corruption-Do-the-ends-justify-the-means/ (last visited Sept. 4, 2015).
35
hearing will prevent the defense from having key information.” (emphasis added);
Smith v. Black, 904 F.2d 950, 966 (5th Cir. 1990) (“objections may be made under
Brady to the state's failure to disclose material evidence prior to a suppression
hearing”), vacated on other grounds, 503 U.S. 222 (1992); United States v. Barton,
995 F.2d 931, 935 (9th Cir. 1993) (“We hold that the Due Process principles
announced in Brady and its progeny must be applied to a suppression hearing
involving a challenge to the truthfulness of allegations in an affidavit for a search
warrant.”).
In a case like this, when the credibility of a testifying officer is of paramount
importance (both at the suppression hearing and the jury trial), the role of
impeachment evidence cannot be understated. Armed with this evidence, trial
counsel would have likely created reasonable doubt in the mind of the jury such
that Shields would have been acquitted. Last year, the Seventh Circuit addressed
the origamic effect of Brady violations (withholding crucial impeachment evidence)
and widespread corruption in the Chicago Police Department uncovered by the
State’s Attorney’s Office. Thompson v. City of Chicago, 722 F.3d 963 (7th Cir. 2013).
In its order denying the motion to suppress, the district court stated that
“[t]he uncontroverted evidence from the suppression hearing establishes that the
officers found the gun in plain view after Shields was legally arrested….” (DE 60,
p9) The district court, also, found Ofc. Coglianese gave “credible testimony” related
to Shields’ alleged admission. (DE 60, pp10-11) The district court would likely have
reached a different conclusion had the impeaching evidence been turned over to the
36
defendant to be used to impeach Ofc. Coglianese.
During jury selection, the district court asked the jury: “Do you think you're
going to give any kind of special credit to the testimony of a police officer?” (DE 143,
p48) Then, the potential jurors were told that “no one gets special credit in a federal
courtroom. It's just the testimony of a police officer has to be, just has to be received
just like the testimony of any other ordinary citizen, and you have to evaluate their
credibility the same way, and that is what I will be instructing you.” (DE 143, p48)
At trial, counsel for Shields argued that “[t]he story of Officer Coglianese is
not credible.” (DE 145, p25) The jury would likely have reached a different
conclusion had the impeaching evidence been turned over to the defendant to be
used to impeach Ofc. Coglianese. The withholding of the Brady and Giglio material
denied the defendant an effective presentation of his defense.
Many courts have similarly assumed without deciding that such information
can be favorable for Brady purposes. See United States v. Williams, 10 F.3d 1070,
1077 (4th Cir. 1993) (“[W]e assume arguendo but decline to address definitively on
the merits the issue of whether Brady should call for disclosure of material evidence
at pre-trial suppression hearings” because “[t]he evidence allegedly withheld by the
government regarding conflicting eyewitness reports was not material to the
determination of probable cause” to arrest the defendants.); United States v. McCoy,
348 F. App’x 900, 902 (4th Cir. 2009) (“Assuming, without deciding” that evidence
regarding the legality of a Terry stop “was both favorable and withheld under
Brady, McCoy failed to prove that the new evidence was material.”); United States
37
v. Taylor, 471 F. App’x 499, 520 (6th Cir. 2012) (“Assuming without deciding that
Brady applies to suppression hearings, we nonetheless conclude that the evidence
about Agent Lucas was not material to the suppression-hearing proceedings or to
the trials held in this case.”); United States v. Bullock, 130 F. App‘x 706, 723 (6th
Cir. 2005) (noting the “questionable relevance” of Brady to “whether the
suppression hearing might have come out the other way,” but concluding that
appellant could not show prejudice); United States v. Veras, 51 F.3d 1365, 1375 (7th
Cir. 1995) (finding no fault with the district court’s conclusion that “[b]ecause the
suppressed evidence would not have affected the outcome of the suppression
hearing or the trial, defendant's due process rights were not violated and his motion
for a new trial pursuant to Brady and Giglio is denied.”); United States v. Johnson,
No. 96-2008, 1997 WL 381926 (10th Cir. July 7, 1997) (“[A]ssuming that the
evidence identified by Mr. Johnson was in fact withheld by the prosecution and
favorable to Mr. Johnson…we hold that the evidence was not material, and that its
nondisclosure by the prosecution does not constitute a Brady violation,” where the
evidence would have undermined the officer’s credibility during a pretrial
suppression hearing where the officer and the defendant disputed whether the
defendant had consented to a car search.).
The only courts Petitioner knows to have squarely addressed the issue on the
merits have held that the failure to disclose information material to a ruling on a
Fourth Amendment suppression motion can constitute a Brady violation. In Smith
v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990), vacated on other grounds, 503 U.S.
38
222 (1992), the government failed to disclose evidence that would have bolstered the
impeachment of a detective who testified at a suppression hearing involving the
warrantless seizure of evidence from the defendant’s car and home. The Fifth
Circuit concluded that “objections may be made under Brady to the state’s failure to
disclose material evidence prior to a suppression hearing”, id. at 965, and that “[t]he
appropriate assessment for Brady purposes…whether the nondisclosure affected
the outcome of the suppression hearing”, id. at 956-66.
In United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000), the
government failed to timely disclose a codefendant’s statement that contradicted the
government’s assertion that the defendants lacked standing to challenge on Fourth
Amendment grounds the Border Patrol’s warrantless search of the trailer where the
defendants resided. The Ninth Circuit concluded that “[t]he suppression of material
evidence helpful to the accused, whether at trial or on a motion to suppress, violates
due process if there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Id. at 461. In
addition, at least one court has held that Brady applies to suppression hearings
alleging Miranda violations. See Nuckols v. Gibson, 233 F.3d 1261, 1266-67 (10th
Cir. 2000) (finding a Brady violation where “[t]he prosecution withheld evidence
that would have allowed defense counsel the means to test [the police officer’s]
credibility” where the admissibility of Mr. Nuckols’s confession “hinged upon proof”
that he initiated the interview).
Some courts have simply noted that, for plain error purposes, the
39
applicability of Brady to Fourth Amendment suppression hearings was not obvious.
See Nelson, 193 F. App’x at 50 (remanding on other grounds and declining to
answer “[w]hether Brady and its progeny require disclosures in advance of pre-trial
hearings” an open question in this circuit); United States v. Stott, 245 F.3d 890, 902
(7th Cir. 2001) (stating that “we cannot say that the law is clear on the question of
whether Brady should apply to suppression hearings”); United States v. Bowie, 198
F.3d 905, 912 (D.C. Cir. 1999) (stating that “it is hardly clear that the Brady line of
Supreme Court cases applies to suppression hearings”). The Bowie court, briefly
reflecting on an argument the appellant “faintly” and “obliquely” made in a heading
of his reply brief, reasoned in dicta that suppression hearings “do not determine a
defendant’s guilt or punishment”, and, thus, presumably would be beyond the scope
of Brady. Bowie, 198 F.3d at 912. But the court explicitly made clear that the issue
was not briefed and that it was not purporting to formally consider or decide it. Id.
Compare United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993)
(concluding “that the due process principles announced in Brady and its progeny
must be applied to a suppression hearing involving a challenge to the truthfulness
of allegations in an affidavit for a search warrant” where the concealed information
would have impeached the police officer’s claim that he had probable cause to
search the defendant‘s home), with United States v. Colkley, 899 F.2d 297, 303 (4th
Cir. 1990) (declining to extend Brady to the warrant application process so as to
avoid “perniciously prolix affidavits that would distract police officers from more
important duties and render the magistrate’s determination of probable cause
40
unnecessarily burdensome.”).
The confusion among lower courts is not tolerable. Now is the time for this
Court to hold that Brady applies to motions to suppress and to find, in this case,
that it applies to the willful suppression of evidence favorable to the defendant. In
Brady, the Supreme Court of the United States stated that “[s]uppression by the
prosecution of evidence favorable to an accused who has requested it violates due
process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87
(1962).
For all of the foregoing reasons, the petition for a writ of certiorari should be
granted for the reasons given above.
CONCLUSION
The petition for a writ of certiorari should be granted for the reasons given
above.
Respectfully submitted,
Craig M. Sandberg MUSLIN & SANDBERG 19 S. LaSalle Street, Suite 700 Chicago, Illinois 60603-1491 (312) 263-7249
Counsel for Petitioner Ernest Shields
Dated: September 11, 2015
CERTIFICATE OF COMPLIANCE
1. This brief has been prepared, pursuant to SUPREME COURT RULE 33(1)(b), using:
! Twelve point, proportionally spaced, serif typepace. ! Microsoft® Word 2008 for Mac in 12-point Century Schoolbook
program. 2. EXCLUSIVE of the questions presented, the list of parties and the corporate disclosure statement, the table of contents, the table of cited authorities, the listing of counsel at the end of the document, or any appendix; and the certificate of service, the brief contains, pursuant to SUPREME COURT RULE 33(1)(2) and (2)(b):
! 40 Pages (give specific number of words; may not exceed 40 pages for
petition or opposition brief or 15 pages for reply brief); OR I understand that a material misrepresentation can result in the Court’s striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or copy of the word or line print-out.
By: ____________________________________ Craig M. Sandberg Dated: September 11, 2015
42
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies the following: (1) that he
caused to filed, by delivering to Federal Express on September 11, 2015 for next-day
delivery, an original and ten copies of the (a) motion for leave to proceed in forma
pauperis and (b) the petition for a writ of certiorari and appendix attached thereto;
Clerk of the Supreme Court of the United States 1 First Street, NE Washington, DC 20543 and (3) that he caused one copy of the motion for leave to proceed in forma pauperis
and foregoing brief with the required short appendix to be served on the following
counsel, via Federal Express, on this 11th day of September 2015:
Solicitor General of the United States Room 5614 Department of Justice 950 Pennsylvania Avenue, N. W. Washington, DC 20530-0001 (Attorney for the United States)
All parties required to be served have been served.
By: ____________________________________ Craig M. Sandberg
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