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________________________________________________________________________________________________________________________________
No. 13-5625________________________________________________________________________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
CLARVEE GOMEZ, AKA TONY, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
DONALD B. VERRILLI, JR.Solicitor GeneralCounsel of Record
MYTHILI RAMANActing Assistant Attorney General
RICHARD A. FRIEDMANAttorney
Department of JusticeWashington, D.C. 20530-0001SupremeCtBriefs@usdoj.gov(202) 514-2217
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(I)
QUESTIONS PRESENTED
1. Whether harmless-error review applies to the imposition
of a mandatory-minimum sentence for a drug offense involving five
kilograms or more of cocaine where the grand jurys indictment
alleged that the offense involved at least 500 grams of cocaine.
2. Whether the petit jurys failure to find the drug quan-
tity triggering the district courts imposition of a mandatory-
minimum sentence was harmless beyond a reasonable doubt on the
facts of this case.
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IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 13-5625
CLARVEE GOMEZ, AKA TONY, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-20a) is
reported at 716 F.3d 1.JURISDICTION
The judgment of the court of appeals was entered on May 3,
2013. The petition for a writ of certiorari was filed on July 31,
2013. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
After a jury trial in the United States District Court for the
District of Massachusetts, petitioner was convicted of conspiracy
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to possess with intent to distribute cocaine, in violation of 21
U.S.C. 846. The grand jurys indictment alleged that the offense
involved at least500 grams of cocaine, which was sufficient to
trigger a five-year mandatory-minimum sentence under 21 U.S.C.
841(b)(1)(B) and 846. At sentencing, the district court found that
the conspiracy involved eight kilograms of cocaine and imposed the
ten-year mandatory-minimum sentence in 21 U.S.C. 841(b)(1)(A) and
846, which applies to offenses involving at least five kilograms of
cocaine. The court of appeals affirmed. Pet. App. 1a-20a.
1. A federal grand jury indicted petitioner and Juan Pena-
Rosario (Pena) for conspiring to possess with intent to distribute
cocaine. Pet. App. 23a-24a. Petitioner and Penas conspiracy
involved at least two drug transactions. Id. at 3a-9a. In August
2008, petitioner arranged for the transportation to Massachusetts
of seven kilograms of cocaine that he desired to purchase, and by
at least early September 2008, Pena had joined petitioner as a co-
conspirator in that transaction. Id. at 3a-5a. The indictment
thus alleged that both petitioner and Pena had engaged in their
drug conspiracy from at least in or about September, 2008. Id.
at 23a. On December 11, 2008, petitioner and Pena also partici-
pated in a second transaction involving one kilogram of cocaine
that led to their arrests. Id. at 5a-9a. The indictment accord-
ingly alleged that petitioner and Penas conspiracy continued
until at least December 11, 2008. Id. at 23a. At trial, the
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evidence overwhelmingly established that the conspiracy involved
more than five kilograms of cocaine. Id. at 19a.
a. During the summer of 2008, petitioner, who resided in the
Boston area, contacted a Drug Enforcement Agency (DEA) confidential
informant (CI) in Orlando, Florida, to discuss purchasing cocaine
for distribution. In recorded telephone conversations, petitioner
indicated that he wanted large quantities of cocaine and the CI
informed petitioner that petitioner would need to pay an additional
$1000 per kilogram of cocaine if he wanted the CI to transport the
cocaine to Massachusetts. Pet. App. 3a-4a.
On August 28, 2008, petitioner met with the CI in Orlando,
Florida. Their conversation was recorded and visually monitored by
DEA agents. Petitioner and the CI discussed the logistics of
having the CI transport the cocaine to Massachusetts; petitioner
asked to see the cocaine; and the CI presented petitioner with
seven kilograms of cocaine (in the trunk of a car driven by
undercover DEA agent). Petitioner declared the cocaine to be high
quality after he sampled one of the seven bricks. Petitioner asked
youre bringing me seven, right? and the CI confirmed the amount.
Petitioner then paid the CI $7000 in cash to transport the seven
kilograms to Massachusetts. Pet. App. 4a.
The CI thereafter arranged to meet petitioner on September 2,
2008, at a Chilis restaurant in Lowell, Massachusetts, to sell the
seven kilograms of cocaine. Agents conducting surveillance of the
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September 2 meeting observed Pena drive his SUV to the restaurants
parking lot, where he remained in his vehicle. Petitioners
meeting with the CI in the restaurant was recorded. During their
conversation, petitioner told the CI that his guy was outside and
at some point petitioner left the restaurant to meet with Pena.
After petitioner and Pena had talked for five minutes, petitioner
returned to the CI and urged the CI to front him the seven
kilograms without prepayment. The CI refused, petitioner would not
agree to pay up front, and the transaction ended. Pet. App. 4a-5a.
b. Agents subsequently initiated wiretaps on Penas cell
phones. On December 11, 2008, they intercepted a conversation in
which petitioner and Pena planned for petitioner to deliver to Pena
one kilogram of cocaine that evening. Agents intercepted further
calls between Pena, petitioner, and others planning the transaction
at a karate school in Lawrence, Massachusetts. Pet. App. 5a-7a.
That evening, DEA agents established surveillance at the
karate school and saw Pena enter the building. Pena exited after
about five minutes and drove away. Ten to fifteeen minutes later,
three others left and drove away in a Dodge. Pet. App. 7a-8a.
Agents arrested Pena and discovered a kilogram of cocaine
stuffed into the waistband of his pants. Other agents stopped the
Dodge in which petitioner and two others were riding. They recov-
ered from petitioner a cell phone that matched the number of the
phone used to call Pena to set up the evenings transaction and a
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business card with the Florida CIs phone number. Pet. App. 8a-9a.
2. a. Later in December 2008, a federal grand jury indict-
ed petitioner and Pena. Pet. App. 23a-27a. The indictment alleged
that both had engaged in a drug conspiracy in violation of 21
U.S.C. 846 [f]rom a date unknown to the Grand Jury, but from at
least in or about September, 2008 and that theconspiracy contin-
ued until at least December 11, 2008. Pet. App. 23a. The in-
dictment alleged that the conspiracy involved at least 500 grams
of cocaine and that, [a]ccordingly, [21 U.S.C.] 841(b)(1)(B)(ii)
applies to the offense. Id. at 24a. That provision establishes a
five-year mandatory-minimum sentence for drug offenses involving
500 grams or more of cocaine. 21 U.S.C. 841(b)(1)(B)(ii), 846.
Under Section 841(b)(1)(A)(ii), offenses involving five kilograms
or more of cocaine trigger a ten-year mandatory minimum. 21 U.S.C.
841(b)(1)(A)(ii), 846.
Apprendi v. New Jersey, 530 U.S. 466, 469, 490, 497 (2000),
held that a fact increasing the statutory maximum sentence for an
offense (other than the fact of a prior conviction) must be found
by a petit jury based on proof beyond a reasonable doubt. Facts
subject to the Apprendi rule also must be charged in a federal
indictment under the Fifth Amendment. See United States v. Cotton,
535 U.S. 625, 627 (2002).
When the grand jury issued the indictment in this case, Ap-
prendis reasoning did not affect mandatory minimum sentences.
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This Court in Harris v. United States, 536 U.S. 545 (2002), had
instead held that a fact increasing the mandatory minimum is not
an element of an aggravated crime and that Congress may therefore
authorize a sentencing judge to find such a fact without violating
the constitutional requirements of charg[ing] each element in the
indictment, submit[ing] each element to the jury, and prov[ing]
each element beyond a reasonable doubt. Id. at 557 (plurality
opinion by Kennedy, J.); id. at 569-570 (Breyer, J., concurring in
part and concurring in the judgment) (Apprendi does not apply to
mandatory minimums.). The parties thus were on notice in 2008
that an indictment alleging a conspiracy offense involving at
least500 grams of cocaine, triggering at least a five-year manda-
tory-minimum sentence under 21 U.S.C. 841(b)(1)(B)(ii), could also
trigger a ten-year minimum under 21 U.S.C. 841(b)(1)(A)(ii) if the
offense involved five kilograms or more of cocaine.
b. Petitioner did not challenge the sufficiency of his
indictment before the jurysverdict. Instead, he filed a pretrial
motion to suppress evidence about his meetings with the DEAsCI in
August (in Florida) and September 2008 (in Massachusetts). Doc.
125. Petitioner asserted that the evidence was not relevant
under Fed. R. Evid. 402 to his conspiracy with Pena charged in the
indictment because, he argued, the September meeting at Chilis in
which Pena remained in his vehicle either did not involve [Pena]
or, if it did, concerned a separate conspiracy involving some
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seven kilos of cocaine. Doc. 125, at 1. The district court
denied the evidentiary motion without prejudice to its renewal,
Doc. 129, and subsequently denied petitioners renewed objection at
trial. C.A. App. 69; see Pet. App. 10a.
On the last day of trial, the government submitted a verdict
form to the district court that asked the jury to find that
petitioners drug conspiracy involved five kilograms or more of
cocaine. Pet. App. 10a; C.A. App. 459-460. Petitioner objected on
the ground that [t]he indictment charges 500 grams or more. C.A.
App. 459. The court selected a form that asked the jury whether
the conspiracy involved 500 grams or more of cocaine. Id. at 460.
The jury found petitioner guilty and found that his offense
involved at least 500 grams or more of cocaine. Pet. App. 28a.
c. At sentencing, petitioner objected to the Presentence
Reports conclusion that his conspiracy offense involved eight
kilograms of cocaine, which triggered a ten-year mandatory-minimum
sentence under 21 U.S.C. 841(b)(1)(A). Petitioner argued the
indictment charged him only with 500 grams or more of cocaine and,
because the drug quantity was a fact affecting his mandatory
minimum, it must be plead[ed] and found by a jury beyond a
reasonable doubt. C.A. App. 532, 535-537. The district court
determined that petitioners conspiracy offense involved eight
kilograms of cocaine and sentenced petitioner to the ten-year
mandatory minimum in 21 U.S.C. 841(b)(1)(A), 846. Pet. App. 11a.
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3. The court of appeals affirmed. Pet. App. 1a-20a. The
court rejected three arguments relevant here.
First, the court of appeals rejected petitioners argument
that the district court erroneously admitted evidence about the
seven-kilogram drug transaction ending September 2008, which,
according to petitioner, was a separate conspiracy not alleged in
the indictment. Pet. App. 11a-13a; cf. Pet. C.A. Br. 37-44. The
court concluded that the indictments allegation of a cocaine
trafficking conspiracy included the seven-kilogram transaction and
that the evidence showed that that transaction was part of the
same conspiracy as the subsequent one-kilogram transaction. Pet.
App. 12a-13a.
Second, the court of appeals rejected petitioners contention
that his ten-year prison sentence violated the Fifth Amendment
because the grand jurys indictment did not charge him with an
offense carrying that mandatory minimum (for offenses involving
five kilograms or more of cocaine). Pet. App. 19a-20a; cf. Pet.
C.A. Br. 32-36. The court explained that it had previously
rejected petitionersargument in United States v. Eirby, 262 F.3d
31 (1st Cir. 2001), which concluded that, [i]n an indictment for
conspiring to commit an offense, unlike indictments for other
offenses, the conspiracy is the gist of the crime, and it is
therefore unnecessary to allege all the elements essential to the
commission of the offense which is the object of the conspiracy,
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id. at 38. See Pet. App. 19a-20a. The court thus reasoned that
the indictments specification of a penalty provision was not
essential to the validity of the [drug] conspiracy count. Ibid.
(quoting Eirby, 262 F.3d at 38). The court further concluded that,
because petitioner had ample notice that he would be held respon-
sible for both drug transactions under the conspiracy charge, the
[district] court did not err in sentencing [petitioner] to a ten-
year mandatory-minimum sentence. Id. at 20a.
Finally, the court of appeals held that the district court did
not reversibly error by basing petitioners ten-year sentence on
the district courts findingthat petitioners conspiracy involved
more than five kilograms of cocaine. Pet. App. 18a-19a. The court
of appeals rested that ruling on two alternative holdings. First,
the court rejected petitioners contention that the mandatory-
minimum sentence, which was not based on a jurys finding beyond a
reasonable doubt, was unconstitutional under Apprendi. Id. at 18a.
The court explained that, under this Courts (then) controlling
precedent in Harris and its own binding precedent, a sentencing
court may impose a mandatory minimum sentence based on the courts
findings as to drug quantity. Id. at 19a. Second, the court
alternatively held that any error was harmless because the trial
evidence overwhelmingly showed that petitioner repeatedly tried
to acquire seven kilograms of cocaine. Ibid. The court supported
that harmless-error holding by citing (ibid.) its decision in
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United States v. SotoBenquez, 356 F.3d 1 (1st Cir.), cert.
denied, 541 U.S. 1074, 543 U.S. 1014 (2004), which held that an
Apprendi error is harmless beyond a reasonable doubt where the
evidence overwhelmingly establishes the minimum drug quantity
needed to justify the mandatory sentence. Id. at 46.
4. After the time for rehearing had passed, this Court
overruled Harris and held that any fact that increases the
mandatory minimum [sentence for an offense] is an element that
must be submitted to the jury. Alleyne v. United States, 133 S.
Ct. 2151, 2155 (2013). Petitioner moved the court of appeals to
recall its mandate in light of Alleyne and for leave to file a
rehearing petition out of time. The court denied the motion and
did not modify any aspect of its decision. See Pet. App. 22a.
ARGUMENT
Petitioner seeks this Courts review on harmless-error ques-
tions resulting from (1) the grand jurys failure to allege the
drug quantity (five kilograms or more of cocaine) that triggered
his mandatory-minimum sentence and (2) the petit jurys failure to
find that quantity. Petitioner argues that the indictment error is
a structural error not subject to harmless-error review, Pet. 9-20,
and that the sentencing courts factfinding made without the requi-
site petit-jury finding, while subject to harmless-error review,
was not harmless on the facts of this case, Pet. 20-27. The first
harmless-error question is not properly presented and does not
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warrant review in this case. The second question likewise warrants
no review. The judgment of the court of appeals is correct.
Certiorari should be denied.
1. Petitioner contends (Pet. 9-20) that his claim that the
grand jurys indictment was insufficient to support his sentence
identifies a structural error not subject to harmless-error analy-
sis. He further argues (Pet. 9-10) that his claim implicates two
distinct circuit splits about harmless-error analysis of indictment
errors. The court of appeals did not address the harmless-error
question that petitioner presents and this case is not a suitable
vehicle for this Court to address it.
Review is unwarranted for the threshold reason that petitioner
presents a harmless-error question that the court of appeals did
not address. The court of appeals held that, in the context of the
conspiracy offense alleged in the indictment, the district court
did not err in imposing its sentence. Pet. App. 20a; see Pet. 7;
pp. 8-9, supra. The court reasoned that the conspiracy count was
sufficient, despite its citation of 21 U.S.C. 841(b)(1)(B) rather
than 21 U.S.C. 841(b)(1)(A), because petitioner had ample notice
that would be held accountable for drug quantities triggering
Section 841 (b)(1)(A) if convicted. Pet. App. 19a-20a. Petitioner
has neither identified that distinct issue for this Courts review
(Pet. i) nor otherwise analyzed the court of appeals conspiracy-
based ruling in his petition (Pet. 9-20).
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To support his contention that this Court should grant plenary
review on the harmless-error question he presents, petitioner
asserts (Pet. 10) that the court of appeals must have concurred
with the governments position (expressed in its opposition to
petitioners motion to recall the mandate and file an untimely
rehearing petition) that any indictment error should be dismissed
as harmless, because the court of appeals refus[ed] to reconsider
its decision after Alleyne [v. United States, 133 S. Ct. 2151
(2013),] was decided. But the summary order denying petitioners
motion simply states that the motion is denied and thus does not
address harmless error. Pet. App. 22a. No review on petitioners
unaddressed harmless-error question is warranted. Decker v. North-
west Envtl Def. Ctr., 133 S. Ct. 1326, 1335 (2013) (This Court is
a court of review, not of first view.) (citation omitted). And
the panels discretionary decision not to recall its mandate or to
permit an untimely rehearing petition does not warrant review. Cf.
Calderon v. Thompson, 523 U.S. 538, 549 (1998) (mandate-recall
rulings are reviewed only for an abuse of discretion).
Even if this Court could assume, as petitioner suggests (Pet.
10), that the panels denial of his motion to recall the mandate
and file an untimely rehearing petition somehow reflected the
panels decision to concur implicitly with the governments
argument that any indictment error was harmless, this case would
not be a suitable vehicle for review. Not only is a reasoned
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opinion to guide review entirely absent, the two asserted circuit
conflicts that petitioner invokes (Pet. 9; see Pet. 9-14; Pet. 14-
17) do not warrant review in this case.
a. Petitioner first contends (Pet. 9-14) that the courts of
appeals are divided over whether a constructive amendment of an
indictment is a structural error. See Pet. 11-13. Petitioner re-
cognizes that a constructive amendment occurs when the indict-
ments allegations are effectively altered by the presentation of
evidence and jury instructions such that there is a substantial
likelihood that the jury rendered its verdict on an offense dif-
ferent than that charged in the indictment. Pet. 11 n.3 (quoting
United States v. DAmelio, 683 F.3d 412, 416 (2d Cir. 2012), cert.
denied, 133 S. Ct. 2021 (2013)). Petitioner illustrates (Pet. 9)
that constructive-amendment concept by discussing Stirone v. United
States, 361 U.S. 212 (1960),1
and he asserts (Pet. 11-12) a
division of authority by relying upon decisions that exclusively
address evidentiary and instructional rulings deemed to construc-
1The indictment in Stirone alleged an effect on interstate
commerce involving shipments of sand, 361 U.S. at 213, but thedistrict court erroneously admitted evidence about the effect oninterstate steel shipments and instructed the jury that it could
rest its interstate-commerce finding on steel shipments alone, id.at 214. In that evidentiary and instructional context, the Courtconcluded that the district court had effectively amend[ed] theindictment because it had given the jury a new basis for convic-tion (concerning steel) such that the Court could not determine
whether the jury convicted [Stirone] solely on the charge made inthe indictment (concerning sand). Id. at 217.
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tively amend indictments and taint jury verdicts. But this case
involves considerations distinct from those involving constructive
amendments and thus does not implicate petitioners asserted divi-
sion of authority.
Petitioner does not challenge the jurys verdict or the evi-
dentiary and instructional rulings underlying it. Petitioner has
not sought review of the court of appeals holding that the indict-
ments factual description of the conspiracy charge encompassed
petitionersseven-kilogram cocaine transaction and that evidence
of that transaction was thus properly admitted. Pet. App. 12a-13a;
p. 8, supra. Petitioner instead argues that the district court
erred in sentencing him to a ten-year mandatory minimum based on a
jury verdict that he no longer disputes. In short, this case does
not implicate -- and this Courts review would not resolve --
petitioners asserted division of authorityinvolving constructive
amendments to indictments.
b. Petitioner further argues (Pet. 14-17) that the courts of
appeals are divided over whether the omission of an essential
element from an indictment is subject to harmlessness review.
Pet. 14. But even if this case were an otherwise suitable vehicle
to consider the question (which it is not), certiorari would not be
warranted here.
i. The omission from an indictment of a sentence-enhancing
fact is subject to harmlessness review. Such an omission, which
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becomes error only upon sentencing, bears no relation to the very
limitedcategory of pervasive and fundamental errors that are so
intrinsically harmful to the framework of a trial that this Court
has deemed them structural. See Neder v. United States, 527 U.S.
1, 8 (1999) (listing examples); United States v. Gonzalez-Lopez,
548 U.S. 140, 148-149 (2006). In Neder, this Court held that the
failure to submit an offense element to the petit jury does not
constitute structural error. Id. at 8-15. And in Washington v.
Recuenco, 548 U.S. 212, 221-222 (2006), this Court reached the same
conclusion with respect to a sentence-enhancing fact not submitted
to the jury. It necessarily follows that the omission of a
sentence-enhancing fact from the indictment does not constitute
structural error either.
First, the Fifth Amendment right to an indictment by a grand
jury, unlike the Sixth Amendment right to a trial by a petit jury,
has not been incorporated against the States through the Fourteenth
Amendment as an essential requirement of fundamental fairness. See
Hurtado v. California, 110 U.S. 516, 538 (1884).2 Second, this
Court has held that errors at the charging stage may be rendered
harmless by subsequent developments in the prosecution. See United
2Fewer than half of the States require grand jury indictmentsas a matter of state law, and several of those States require themonly for charges carrying a capital or life sentence. See 1 SaraSun Beale et al., Grand Jury Law and Practice 1:1, 1:7, at 1-3 &nn.7-8, 1-32 & n.2 (2d ed. 1997 & Supp. 2001) (revised 2012).
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States v. Mechanik, 475 U.S. 66, 70-72 & n.1 (1986); see also Bank
of Nova Scotia v. United States, 487 U.S. 250, 255-256 (1988).
Third, although the grand jury undoubtedly performs a vital protec-
tive function, that is surely no less true of the petit jury,
which provides the accused even greater protection. Cotton, 535
U.S. at 634. In the grand jury, the prosecutor has no obligation
to present exculpatory evidence; the accused has no right to pre-
sent evidence at all; a finding of probable cause by a simple
majority suffices; and a vote not to indict raises no bar to
further proceedings akin to the Double Jeopardy Clause. Those con-
siderations compel the conclusion that the failure to submit an
issue of fact to the grand jury does not stand on a higher plane
than a failure to submit an issue of fact to the petit jury, which
Neder and Recuenco hold is subject to harmless-error review.
That conclusion is reinforced by Cotton, where this Court held
that the failure either to allege a sentence-enhancing fact (drug
quantity) in the indictment or to obtain a finding on it from the
petit jury was not reversible plain error. 535 U.S. at 631-634.
Although the Court reserved the question whether the third compo-
nent of the federal plain-error inquiry -- whether the error af-
fected substantial rights -- had been satisfied, it concluded that
the fourth component was not satisfied because any error did not
seriously affect the fairness, integrity, or public reputation of
judicial proceedings. Id. at 632-633. The Courts holding in
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Cotton that the omission of a sentence-enhancing fact from the
indictment in that case did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings supports
the conclusion that an Apprendi indictment error does not auto-
matically or inherently affect a defendants substantial rights,
and thus is not structural.
ii. As petitioner notes (Pet. 17), this Court in 2006 granted
certiorari in United States v. Resendiz-Ponce, 549 U.S. 102 (2007),
to decide whether the omission of an element of a criminal offense
from a federal indictment can constitute harmless error, but the
Court ultimately did not decide the issue. Id. at 103-104. The
majority of courts of appeals to consider the issue have held that
the omission of an element of an offense, even if subject to a
timely objection, is subject to harmless-error review. See United
States v. Dentler, 492 F.3d 306, 310 (5th Cir. 2007); United States
v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580-581 (6th Cir.),
cert. denied, 537 U.S. 880 (2002); United States v. Prentiss, 256
F.3d 971, 981-985 (10th Cir. 2001) (en banc), overruled in part on
other grounds by Cotton, 535 U.S. at 633; United States v.
Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir.), cert. denied, 534
U.S. 880 (2001). And although the Third and Ninth Circuits have
held, in decisions predating this Courts decision in Cotton, that
omissions of (non-sentencing) offense elements constitute structur-
al error, see United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.
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1999); United States v. Spinner, 180 F.3d 514, 515-516 (3d Cir.
1999), more recent decisions from those courts issued after
Resendiz-Ponce cast doubt on the extent of any current division of
authority.3
But even if a meaningful division of authority were to per-
sist, it would not reach the circumstances presented here. The
courts of appeals uniformly agree that harmless-error review does
apply to Apprendi-based indictment errors, i.e., omissions of
sentencing-enhancement factors from indictments. See, e.g., United
States v. Confredo, 528 F.3d 143, 156 (2d Cir. 2008) (enhancement
under 18 U.S.C. 3147), cert. denied, 556 U.S. 1144 (2009); United
States v. Salazar-Lopez, 506 F.3d 748, 750, 753 (9th Cir. 2007)
(enhancement under 8 U.S.C. 1326(b)(1)), cert. denied, 553 U.S.
1074 (2008); United States v. Brown, 441 F.3d 1330, 1368 n.16 (11th
Cir. 2006) (Federal Death Penalty Act (FDPA) sentencing factor),
3In 2007, the Ninth Circuit refused to extend Du Bo to thesentencing context involving Apprendi indictment errors, seeUnited States v. Salazar-Lopez, 506 F.3d 748, 750, 753-755 (9thCir. 2007), cert. denied, 553 U.S. 1074 (2008), and concluded thatDu Bos jurisdictional rationale ha[d] been overruled by [this]Court in Cotton, id. at 754 n.5. Although the Third Circuit hasnot issued a published decision revisiting Spinner in light ofCotton, it has in a recent unpublished decision declined to applySpinner (which set aside a guilty plea) to reverse a convictionentered after a jury trial at which the petit jury was instructedon all elements of the offense. United States v. Green, 516 Fed.Appx. 113, 125-126 (3d Cir. 2013). Green alluded to this Courtsdecision in Neder to support its conclusion that any indictmenterror was harmless, given the petit jurys subsequent findings
beyond a reasonable doubt. Ibid.
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cert. denied, 549 U.S. 1182 (2007); United States v. Cordoba-
Murgas, 422 F.3d 65, 69, 72 (2d Cir. 2005) (drug-quantity enhance-
ment); United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005)
(en banc) (FDPA element), cert. denied, 549 U.S. 1095 (2006);
United States v. Robinson, 367 F.3d 278, 285-286 & n.7 (5th Cir.)
(same), cert. denied, 543 U.S. 1005 (2004); United States v.
Trennell, 290 F.3d 881, 889-890 (7th Cir.) (drug quantity), cert.
denied, 537 U.S. 1014 (2002). Petitioner offers no contrary
authority. Pet. 15-16.4
Petitioner conflates the two issues -- omission of a non-
sentencing element of an offense and omission of a sentence-
enhancing factor -- by asserting a circuit conflict based on
decisions that do not address Apprendi indictment errors. See Pet.
15-16 (citing United States v. Kingrea, 573 F.3d 186, 194 (4th Cir.
2009), Du Bo, and Spinner).5
While this Court has stated (and the
United States has argued) that elements of an offense and statutory
sentencing enhancements should be analyzed in the same manner, see
4Petitioner cites two Apprendi indictment decisions that donot consider harmless-error review. See United States v. Gonzalez,686 F.3d 122, 127-133 (2d Cir. 2012) (finding indictment error butfailing to address whether harmless-error review should apply);United States v. Velasco-Heredia, 319 F.3d 1080, 1085-1086 (9thCir. 2003) (concluding that error was harmful without consideringwhether harmless-error review applies).
5Kingrea does not even address the harmless-error question.See 573 F.3d at 194 n.6 (declining to review for harmless errorbecause the government did not argue harmless error).
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Recuenco, 548 U.S. at 220, as explained above, the conflict among
the courts of appeals is limited only to the broader harmless-error
issue (omission of a non-sentencing statutory offense element) that
is not presented here. This Court has accordingly denied certiora-
ri in at least three capital cases presenting the same harmless-
error question in the Apprendi indictment error context, notwith-
standing the broader conflict noted above. See Davis v. United
States, 131 S. Ct. 1676 (2011) (No. 10-7564); Battle v. United
States, 549 U.S. 1343 (2007) (No. 06-8356); Allen, 549 U.S. 1095
(No. 05-6764). The Court has similarly denied certiorari in non-
capital cases raising the issue. See, e.g., United States v.
Lucatero-Campos, 231 Fed. Appx. 607, 610 (9th Cir. 2007)
(sentencing-enhancement factor not charged in the indictment),
cert. denied, 552 U.S. 1145 (2008) (No. 07-6575).6 There is no
reason for a different result here.
c. Finally, this Courts review is unwarranted because
petitioner invokes an Apprendi indictment error that is transition-
al. Alleyne overruled Harris after the court of appeals decision
in this case, long after petitioners indictmentand sentencing
(which had been valid under Harris). Alleyne established the need
for findings on factors that trigger mandatory-minimum sentences
6This Court has also denied petitions raising the broaderquestion left open by Resendiz-Ponce. See, e.g., United States v.Hardy, 499 Fed Appx. 388, 390-391 (5th Cir. 2012) (per curiam),cert. denied, No. 12-9527 (Oct. 7, 2013).
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from both the grand jury and the petit jury. The harmless-error
issue here is thus of sharply reduced prospective importance.
2. Petitioner acknowledges (Pet. 23 n.4) that the imposition
of a mandatory-minimum sentence based on a drug quantity that the
petit jury has not found, see Alleyne, 133 S. Ct. at 2155, is
subject to harmless-error review. See Recuenco, 548 U.S. at 222.
The court of appeals thus correctly concluded that any error based
on the absence of a petit-jury finding on the drug quantity was
subject to harmless-error review. Pet. App. 19a; see Pet. 21.
Petitioner presents the narrower argument (Pet. 20-27) that that
court erred on the facts of this case in finding any Alleyne error
to be harmless beyond a reasonable doubt because, he asserts, he
contested that quantity. Petitioners factbound challenge merits
no further review.
a. Outside of the narrow category of structural errors, see
Neder, 527 U.S. at 7-8, the requirement that an error affect
substantial rights, Fed. R. Crim. P. 52(a); see 28 U.S.C. 2111, in
order to warrant reversal requires the reviewing court to examine
the district court record * * * to determine whether the error
was prejudicial, i.e., whether it affected the outcome of the
district court proceedings. United States v. Olano, 507 U.S. 725,
734 (1993) (discussing Rule 52(a)); see Mechanik, 475 U.S. at 72.
This Court has established an objective test for harmlessness that
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asks whether a rational jurywould have reached the same result
absent the error. Neder, 527 U.S. at 18.
A constitutional error judged under the standard in Chapman v.
California, 386 U.S. 18 (1967), is harmless if the evidence is so
overwhelming as to leave it beyond a reasonable doubt that the
verdict resting on that evidence would have been the same in the
absence of the [error]. Yates v. Evatt, 500 U.S. 391, 405 (1991)
(applying Chapman); accord, e.g., Schneble v. Florida, 405 U.S.
427, 430 (1972); Harrington, 395 U.S. at 254. The Court has thus
made clear that such an error will be harmless where the evidence
is sufficiently strong that the result of the proceedings would
have been the same absent the error. Neder, 527 U.S. at 17.
Petitioner argues (Pet. 22-24) that the proper standard for
harmless constitutional error requires clarification because some
courts consider the prejudicial effect of the constitutional error
on the proceedingwhile others focus[] on the courts own assess-
ment of a defendants guilt based on the evidentiary record. Pet.
22. But in a case such as this, where no petit jury finding was
made on an issue, Neder explains that if a reviewing court con-
cludes beyond a reasonable doubt that the evidence of guilt is so
strong that the jury verdict would have been the same absent the
error, the error did not contribute to the verdict obtained.
527 U.S. at 17 (quoting Chapman, 386 U.S. at 24). In Neder, the
error prevent[ed] the jury from making a finding on [an] element
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of the offense, id. at 4, 10-11, but this Court found the consti-
tutional error harmless based on the overwhelming record evidence
of guilt, because a rational jury would have found the defendant
guilty absent the error, i.e., the verdict would have been the
same absent the error, id. at 17-18.
Petitioner suggests (Pet. 23) that Neder holds that an offense
element not found by the jury will constitute harmless error only
if the element is uncontested at trial. That is incorrect.
Neder concluded that the harmless-error inquiry must be essential-
ly the same for an element [omitted] in violation of the right to
a jury trial as for other constitutional errors such as the con-
stitutionally erroneous admission * * * [or] exclusion of evi-
dence. 527 U.S. at 18. Such errors are harmless if a reviewing
court determines beyond a reasonable doubt that the jury verdict
would have been the same absent the error. Id. at 19. The Court
indicated that an error would not be harmless, for example, where
the defendant contested the omitted element and the reviewing
court -- in typical appellate-court fashion -- concludes that the
evidence [is] sufficient to support a contrary finding by a
rational jury. Ibid. But the court of appeals here followed that
approach in concluding that any Apprendi error in this case was
harmless beyond a reasonable doubt because the evidence over-
whelmingly establishe[d] the minimum drug quantity needed to justi-
fy petitioners sentence, United States v. SotoBenquez, 356 F.3d
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1, 46 (1st Cir.), cert. denied, 541 U.S. 1074, 543 U.S. 1014
(2004). See Pet. App. 19a (citing SotoBenquez).
b. The government has previously explained that similar
harmless-error questions warrant no further review, see, e.g., Br.
in Opp. 13-18, Demmitt v. United States, No. 12-10116 (Oct. 15,
2013), and this Court has recently denied certiorari on such
questions. See, e.g., Demmitt, supra; Ford v. United States, 133
S. Ct. 2795 (2013) (No. 12-7958); Acosta-Ruiz v. United States, 133
S. Ct. 2795 (2013) (No. 12-6908). No different result is warranted
here. None of the decisions petitioner cites (Pet. 23-24) reflects
a conflict over legal principles, as opposed to different outcomes
reflecting the distinct records in different cases.
In United States v. Hunt, 656 F.3d 906 (2011), for example,
the Ninth Circuit confronted a guilty-plea conviction in which the
government erroneously failed to obtain the defendants admission
of his intent to distribute cocaine. Id. at 912-913. The court
concluded that the government failed to establish harmlessness
beyond a reasonable doubt because the record evidence [was] far
from overwhelming. Id. at 916. The court explained that the
record was inadequate because the relevant factual issue was
never litigated, id. at 915, and because the circumstantial
evidence on the record of th[e] case was not sufficiently
weight[y] (id. at 914 n.3) in light of the contrary evidence and
the fact that the parties had not submitted the evidence that they
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would have presented at trial. Id. at 914-916. Nothing in Hunt
suggests that the court of appeals fact-bound assessment of the
record in this case was incorrect. Cf. also United States v.
Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007) (concluding that
overwhelming and uncontradicted evidence was sufficient to show
harmless[ness] beyond a reasonable doubt), cert. denied, 552 U.S.
1166 (2007), abrogated in part on other grounds, DePierre v. United
States, 131 S. Ct. 2225 (2011).
The D.C. Circuit similarly concluded in United States v.
Sheehan, 512 F.3d 621 (2008), that the evidence was not strong
enough to permit it to conclude that the case was not[a] close
one for guilt. Id. at 632. The court explained that it was im-
possible to assess the weight of the evidence in th[e] case,
because the judge presiding over the bench trial had erroneously
construed the crime as a strict liability offense, had eliminated
the governments need to prove any mensrea, id. at 630-631, andhad barred the defendant from admitting any of the crucial
evidence abouther knowledge and intent, id. at 632-633. That
holding is entirely consistent with the conclusion that the
overwhelming evidence in this case (in which petitioner did present
his defense) was harmless beyond a reasonable doubt.
c. Petitioner criticizes (Pet. 26) the court of appeals
cursory analysis of harmless-error in this case. But a courts
harmless-error discussion need not contain detailed analysis in
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every case to be sufficient. See Jones v. United States, 527 U.S.
373, 404 (1999) (explaining that a detailed explanation may not
be necessary); Sochor v. Florida, 504 U.S. 527, 540 (1992)
(indicating that a plain statement that the judgment survives
harmless-error review may be sufficient). In this case, no de-
tailed discussion was warranted. The evidence that petitioners
conspiracy involved more than five kilograms of cocaine was truly
overwhelming. Pet. App. 19a. The evidence -- which included
petitioners own recorded conversations, photographs of the seven
kilograms that were shown to petitioner and that petitioner agreed
to buy, and testimony from the CI and multiple law-enforcement
agents -- left no reasonable doubt on the question. See, e.g.,
Govt C.A. Br. 3-10, 45-46. Even petitioner, who testified in his
own defense, did not seriously contest the point. See, e.g., id.
at 46; C.A. App. 432-434. Petitioners suggestion (Pet. 24-25)
that this Court reevaluate the evidentiary record presents no issue
warranting review. United States v. Johnston, 268 U.S. 220, 227
(1925) (We do not grant * * * certiorari to review evidence
and discuss specific facts.).
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CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.Solicitor General
MYTHILI RAMANActing Assistant Attorney General
RICHARD A. FRIEDMANAttorney
OCTOBER 2013