UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________





No. xx-3033



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxx, Defendant-Appellant.



_____________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________





REPLY BRIEF FOR APPELLANT

xxxxxxxxxxxxxxxxxx

_____________________________________________



PRELIMINARY STATEMENT

As to matters not discussed herein, appellant relies on his opening brief.

SUMMARY OF ARGUMENT

The government wrongly argues that the court cannot review appellant's case unless he has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Such a showing does not apply where, as here, the petitioner raises a question of constitutional error. Even if appellant had to meet the standard suggested by the government, a conviction and punishment for conduct which the law does not make criminal "inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

The government's complaint that appellant has not made a detailed argument showing "cause" for his failure to raise this issue previously should fail. Appellant was not given the opportunity to develop the record on his counsel's ineffective assistance because the district court denied his petition on the merits without holding an evidentiary hearing. Likewise, the government's complaint that appellant has not shown cause for defaulting on his ineffective assistance of counsel claim should fail because the government has waived this argument.

The fallacy of the government's central claim that a gun has been "used" within the meaning of the statute when it is "a means of exchange[,] regardless of which side of the transaction the gun is on" is demonstrated by the fact that "there is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment. United States v. Westmoreland, 122 F.3d 431, 436 (7th Cir. 1997). The government does not suggest any way to express its construction of the word "use."

The fact that the Supreme Court cited United States v. Harris, 959 F.2d 246 (D.C. Cir. 1991), cert. denied, 506 U.S. 932 (1992), in Smith v. United States, 508 U.S. 223 (1993), as evidence of a circuit split without distinguishing between the facts of the two cases is of no consequence to the determination whether one has "used" a gun by receiving it as payment. Harris, which held that the defendants used the gun by receiving it because it "facilitated" the underlying crime by "emboldening" the defendants, is not valid after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). Furthermore, the Supreme Court decided only one question in Smith: "[W]hether the barter of a gun for drugs was a 'use.'" This case presents a different question.

ARGUMENT

THE DISTRICT COURT ERRED BY DENYING APPELLANT'S MOTION PURSUANT TO 28 U.S.C. 2255 WHERE APPELLANT WAS INNOCENT OF "USING" A FIREARM FOR PURPOSES OF 18 U.S.C. 924(c) IN LIGHT OF BAILEY V. UNITED STATES, 516 U.S. 137 (1995).

A. Standard of Review.

The government seeks to impose a higher burden of proof on appellant than the Supreme Court has imposed. According to the government's formulation, to gain review on collateral attack, a petitioner must show "'a fundamental defect which inherently results in a complete miscarriage of justice," or 'an omission inconsistent with the rudimentary demands of fair procedure.'" (Government's Brief at 9-10, quoting United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992)). The government's formulation is wrong.

Generally, habeas review is not available to correct technical violations of law. Where the petitioner has raised non-jurisdictional and non-constitutional error, habeas review is available only if the legal error qualifies as "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Errors of constitutional magnitude are subject to no such restrictions. In United States v. Addonizio, 442 U.S. 178 (1979), the Court held that

[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice."

Id. at 185 (citations omitted). See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (reviewing habeas petition raising constitutional trial error for "substantial and injurious effect or influence in determining the jury's verdict").

Appellant raises a claim of constitutional error (Appellant's Brief at 17). Constitutional due process requires that a guilty plea be knowing, voluntary and intelligent. See Bousley v. United States, 523 U.S. 614, 618 (1998). Moreover, the Supreme Court has held that a petitioner's claim that the evidence was insufficient to support a jury finding of "use" of a firearm under the Bailey decision is "constitutional in nature." Hohn v. United States, 524 U.S. 236, 240 (1998).

Even if appellant had to meet the standard suggested by the government, where a defendant has been convicted and punished "for an act that the law does not make criminal[, t]here can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice. . . ." Davis v. United States, 417 U.S. 333, 346 (1974). See United States v. Gobert, 139 F.3d 436, 438 (5th Cir. 1998) (holding in post-Bailey case that "a refusal to vacate a sentence where a change in the substantive law has placed the conduct for which the defendant was convicted beyond the scope of a criminal statute would result in a complete miscarriage of justice"); United States v. Bruno, 903 F.2d 393, 396 (5th Cir. 1990) (if conduct for which defendant was convicted is not a criminal violation, such a conviction would constitute a "complete miscarriage of justice"); United States v. Stoneman, 870 F.2d 102, 105 (3d Cir.) (same), cert. denied, 493 U.S. 891 (1989).

The government complains that appellant has not made a detailed argument showing "cause" for failing to raise this issue previously (Government's Brief at 10). Appellant has stated his belief that his attorney rendered ineffective assistance. An evidentiary hearing is required to develop the factual record, however. Appellant was not given the opportunity to develop the record because the district court did "not address whether petitioner has procedurally defaulted on his claim . . . ." in light of its disposition on the merits of appellant's claim (A. at 232).

With regard to appellant's "cause" for failing to challenge the validity of his guilty plea -- the ineffective assistance provided by his attorney -- the government complains that appellant also procedurally defaulted on his grounds for "cause" by not earlier alleging the ineffectiveness of his counsel. The government has waived this argument.

The Supreme Court has held that an appellate court is not required to sua sponte notice a potential procedural default where the government has waived or forfeited that claim. Trest v. Cain, 522 U.S. 87, 89 (1997). "[P]rocedural default is normally a 'defense' that the State is 'obligated to raise' and 'preserv[e]' if it is not to 'lose the right to assert the defense thereafter.'" Id. (quoting Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 2082 (1996)). The Court left unanswered the question whether appellate courts may, under some circumstances, notice a procedural default where the government has waived or forfeited the claim. Id. That question should be answered in the negative.

Excusing the errors of one party, but not the other, calls into question the integrity and fairness of the judiciary. Even courts that have excused "procedurally defaulted" procedural default claims, do not do so as a routine matter. The Second Circuit has warned that appellate courts should not lightly raise the issue of a defendant's procedural default sua sponte . . . . [and] [s]hould hesitate to lend the weight of the judiciary to this already uneven fight, lest we be cast in the role of a second line of defense, protecting government prosecutors from their errors.

Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998), cert. denied, 527 U.S. 1012 (1999). See Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.) ("[T]he issue of procedural default generally is an affirmative defense that the state must plead in order to press the defense thereafter," but "on occasion" interests of comity and federalism allow court to ignore failure to raise and preserve claim), cert. denied, 526 U.S. 1095 (1999); Hines v. United States, 971 F.2d 506 (10th Cir. 1992) (that a court may consider a procedural bar sua sponte does not mean that a court "ordinarily should").

B. Appellant Did Not Use A Firearm When He Received It As Payment For Drugs.

The government's central point -- that the dictionary definitions of "use" apply to the "use" of a gun "as a means of exchange regardless of which side of the transaction the gun is on" is fallacious (Government's Brief at 16). The fallacy of the argument is demonstrated by the fact that "there is no grammatically correct way to express that a person receiving a payment is thereby 'using' the payment . . . ." United States v. Westmoreland, 122 F.3d 431, 436 (7th Cir. 1997). See Appellant's Brief at 13-17). The government does not suggest any grammatical construction of "use" that would apply to the receipt of payment.

The fact that the Supreme Court cited United States v. Harris, 959 F.2d 246 (D.C. Cir. 1991), cert. denied, 506 U.S. 932 (1992), in Smith v. United States, 508 U.S. 223 (1993), without drawing a distinction between the facts of Harris (using drugs to buy a gun) and the facts of Smith (using a gun to buy drugs) is of no consequence because the Harris case was based on reasoning that is invalid after Bailey v. United States, 516 U.S. 137 (1995). In Harris, the court held that the defendants "used" the gun at the moment that they received it because it "facilitated or had a role in the [underlying] crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or intimidation in fact occurred." Id. at 261 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). Certainly, no one can argue that that analysis survived Bailey. Harris is no longer good law. Furthermore, of course, the Supreme Court did not grant certiorari to review the holding of Harris. The Court granted certiorari in Smith to answer the question presented by that case: "whether the barter of a gun for drugs was a 'use.'" Bailey, 516 U.S. at 143 (emphasis supplied). Under the plain language of the statute, appellant is actually innocent of a violation of 924(c). (1)

Finally, the government makes two arguments for which there is no record support. First, the government cannot support its assertion that "[w]ithout the receipt of guns as partial payment for the crack cocaine provided to undercover agents on May 10, 1991, the transaction would not have taken place . . . ." (Government's Brief at 19). There is no record support for that claim. In fact, the most reasonable inference from the record leads to the conclusion that the transaction would have taken place whatever the form of payment since five other transactions already had taken place without guns as payment.

Likewise, there is no record support for the government's new theory of guilt that appellant "wanted the guns to use as tools of [his] drug business [at a later time]. (Government's Brief at 21). The government proceeded against appellant on the theory that he "used" the guns when he received them during and in relation to the May 10, 1991, drug trafficking offense. See Sealed Appendix at 11. While this Court may affirm on grounds other than those relied on by the district court (Government's Brief at 21 n.10), the government cannot propose entirely new theories of guilt for the first time on appeal.

CONCLUSIONThe district court's denial of appellant's motion to vacate, set aside, or correct sentence was erroneous and should be reversed.

Respectfully submitted,



A.J. Kramer

Federal Public Defender



_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Reply Brief for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 19th day of December, 2000.

___________________________________

Sandra G. Roland







ORAL ARGUMENT SCHEDULED FOR FEBRUARY 16, 2001









UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



No. xx-xxxx

_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________





REPLY BRIEF FOR APPELLANT



_________________________________________________________________











A.J. KRAMER

Federal Public Defender

*SANDRA G. ROLAND

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., 5th Floor

Washington, D.C. 20004

(202) 208-7500



*Counsel for Oral Argument







District Court

Cr. No. xxxxxxx (SSH)

TABLE OF CONTENTS





TABLE OF AUTHORITIES ii



PRELIMINARY STATEMENT 1



SUMMARY OF ARGUMENT 1



ARGUMENT 3



THE DISTRICT COURT ERRED BY DENYING APPELLANT'S

MOTION PURSUANT TO 28 U.S.C. 2255 WHERE

APPELLANT WAS INNOCENT OF "USING" A FIREARM FOR

PURPOSES OF 18 U.S.C. 924(c) IN LIGHT OF

BAILEY V. UNITED STATES, 516 U.S. 137 (1995) 3



A. Standard of Review 3



B. Appellant Did Not Use A Firearm When He

Received It As Payment For Drugs 7

CONCLUSION 9



CERTIFICATE OF SERVICE 10





TABLE OF AUTHORITIES



CASES



Bailey v. United States, 516 U.S. 137 (1995) passim



Bousley v. United States, 523 U.S. 614 (1998) 4



Brecht v. Abrahamson, 507 U.S. 619 (1993) 4



Davis v. United States, 417 U.S. 333 (1974) 1, 4



Gray v. Netherland, 518 U.S. 152 (1996) 6



Hill v. United States, 368 U.S. 424 (1962) 3



Hines v. United States, 971 F.2d 506 (10th Cir. 1992) 6



Hohn v. United States, 524 U.S. 236 (1998) 4



Rosario v. United States, 164 F.3d 729 (2d Cir. 1998),

cert. denied, 527 U.S. 1012 (1999) 6



Smith v. United States, 508 U.S. 223 (1993) 2, 7, 8



Trest v. Cain, 522 U.S. 87 (1997) 5



United States v. Addonizio, 442 U.S. 178 (1979) 3



United States v. Bruno, 903 F.2d 393 (5th Cir. 1990) 5



United States v. Gobert, 139 F.3d 436 (5th Cir. 1998) 4



United States v. Harris, 959 F.2d 246 (D.C. Cir. 1991),

cert. denied, 506 U.S. 932 (1992) 2, 7



United States v. Pollard, 959 F.2d 1011 (D.C. Cir.),

cert. denied, 506 U.S. 915 (1992) 3



United States v. Stewart, 779 F.2d 538 (9th Cir. 1985) 8



United States v. Stoneman, 870 F.2d 102 (3d Cir.)

cert. denied, 493 U.S. 891 (1989) 5



United States v. Westmoreland, 122 F.3d 431

(7th Cir. 1997) 2, 7



Yeatts v. Angelone, 166 F.3d 255 (4th Cir.),

cert. denied, 526 U.S. 1095 (1999) 6







TABLE OF AUTHORITIES (Cont'd)





STATUTES



18 U.S.C. 924(c) 3



28 U.S.C. 2255 3



1. Contrary to the governments assertion (Government's Brief at 20 n.9), appellant also could prevail under a plain error standard. The plain language of the statute compels the conclusion that one must employ an object to "use" the object. That definition of "use" is "obvious" here, Bailey, 516 U.S. at 143, 144, as it was in Bailey.