UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________________________________
No. 00-3028
_________________________________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE xxxxxxx, Defendant-Appellant.
_____________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________________
REPLY OF AMICUS CURIAE ON BEHALF OF APPELLANT
ON MOTION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC,
AND FOR OTHER RELIEF
_____________________________________________
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
District Court
Cr. No. 93-418-4 (TFH)
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
B. Petitioner’s Apprendi Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
TABLE OF AUTHORITIES
CASES
*Cooper v. Sowders,
837 F.2d 284 (6th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________________________________________________________
No. 00-3028
_________________________________________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE xxxxxxx, Defendant-Appellant.
_________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________________________________
REPLY BRIEF OF AMICUS CURIAE
_________________________________________________________________
ISSUE PRESENTED FOR REVIEW
Whether petitioner is entitled to amend his pending § 2255 motion to include a
meritorious Apprendi claim.
STATEMENT OF THE CASE
I. Procedural Background
On April 28, 1995, a jury convicted petitioner Jose xxxxxxx of conspiracy to distribute
and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On
July 25, 1995, the district court determined that the conspiracy involved more than 5 kilograms
of cocaine and sentenced petitioner to life in prison pursuant to 21 U.S.C. § 841(b)(1)(A). This
court affirmed petitioner’s conviction and sentence on June 27, 1997, United States v. Gaviria,
116 F.3d 1498 (D.C. Cir. 1997) (per curiam), and on January 20, 1998, the Supreme Court
denied petitioner’s certiorari petition, 522 U.S. 1982 (1998).
On January 16, 1999, petitioner timely filed a motion pursuant to 28 U.S.C. § 2255
raising a variety of Brady and ineffective assistance of counsel claims. The district court denied
petitioner’s motion on February 18, 2000. Petitioner filed a timely notice of appeal and sought a
certificate of appealability (“COA”) from the district court. The appeal was held in abeyance
pending a decision by the district court. On April 25, 2000, the district court denied the COA.
Petitioner sought a COA from this court. The government opposed petitioner’s request, and filed
a motion to dismiss the appeal for lack of a COA. On August 16, 2000, this court denied the
request for a COA and granted the government’s motion to dismiss.
On September 11, 2000, petitioner filed a motion for rehearing and suggestion for
rehearing en banc, and a motion for leave to supplement/amend his § 2255 motion to include a
claim based on the Supreme Court’s intervening decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). The court directed the government to respond to petitioner’s filing, and
subsequently appointed the Federal Public Defender as amicus to file a reply brief on behalf of
petitioner.
II. Petitioner’s Apprendi Claim
The
jury at petitioner’s trial was instructed that “the government is
required to prove only that the defendant agreed to distribute or possess with
intent to distribute any quantity of cocaine. The actual amount involved is
not important and is not an element of the crime.” Tr. Vol. 47 at 4982.
Therefore, the jury’s
conviction on the conspiracy count was not based upon any particularized factual
findings as to drug quantity. Having been convicted only of participating in
a conspiracy involving a detectable amount of cocaine, petitioner faced a penalty
of 0-20 years imprisonment under 21 U.S.C. § 841(b)(1)(C). But petitioner
was sentenced to imprisonment for life based on the district court’s findings
by a preponderance of the evidence that petitioner was responsible for a specific
amount of cocaine and that petitioner had at least two prior convictions for
felony drug offenses. In Apprendi,
the Court held that “other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 120
S.Ct. at 2362-63.
In United States v. Fields, No. 99-3138, 2001 WL 241804 at *2 (D.C. Cir. Mar. 13,
2001), this court applied Apprendi to drug quantity, holding that “[i]n light of Apprendi, it is now
clear that, in drug cases under 21 U.S.C. §§ 841 and 846, before a defendant can be sentenced to
any of the progressively higher statutory maximums that are based on progressively higher
quantities of drugs specified in subsections 841(b)(1)(A) or (B), the Government must state the
drug type and quantity in the indictment, submit the required evidence to the jury, and prove the
relevant drug quantity beyond a reasonable doubt.” Thus, as the government has conceded,
petitioner’s sentence in the present case “violates the rule established in Apprendi.” Govt’s Opp.
at 9.
Because there was Apprendi error at petitioner’s trial, petitioner should be granted leave to
amend his § 2255 motion to include his Apprendi claim.
ARGUMENT
I. THE COURT SHOULD GRANT PETITIONER’S MOTION FOR LEAVE TO
AMEND OR SUPPLEMENT HIS § 2255 MOTION, OR, IN THE ALTERNATIVE,
THE COURT SHOULD REMAND TO THE DISTRICT COURT TO PERMIT
PETITIONER TO SEEK LEAVE TO AMEND OR SUPPLEMENT HIS § 2255
MOTION
Petitioner is entitled to amend or supplement his pending § 2255 motion to include a
claim based on Apprendi. Although a petitioner generally must seek leave to amend or
supplement his claim from the district court before presenting that claim to the court of appeals,
that rule is subject to an exception. See Guam v. American President Lines, 28 F.3d 142, 149
(D.C. Cir. 1994) (recognizing that the court’s approach to amendments presented for the first
time on appeal “need not be inflexible”). Where leave to amend has not first been sought in the
district court, “[o]ur approach is not totally inflexible; amendments will sometimes be allowed,
but such instances comprise the long-odds exception, not the rule. The touchstone is equitable
and case-specific: leave to amend will be granted sparingly and only if ‘[j]ustice . . . requires
further proceedings.’” Dartmouth Rvw v. Dartmouth College, 889 F.2d 13, 23 (1st Cir. 1989).
This case falls within that exception, and the court therefore should either grant petitioner’s
motion to amend, or, in the alternative, remand to the district court for petitioner to seek leave to
amend in that court. See American President Lines, 28 F.3d at 151.
First, habeas cases are much more likely than civil cases to fall within a “long-odds”
exception. As the First Circuit recognized, “[h]abeas cases . . . often present compelling
scenarios for invoking the long-odds exception to the general rule and lowering conventional
barriers to further review.” Kotler v. American Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992). See
also Hill v. Black, 920 F.2d 249, 250 (5th Cir. 1990), modified on other grounds, 932 F.2d 369
(5th Cir. 1991). The court in Kotler addressed a “long-odds” exception to a slightly different
general rule—that the court of appeals should confine its inquiry on a Supreme Court remand to
matters within the scope of the remand—but the same “compelling scenario” principle applies to
habeas cases under the general rule that amendments must first be presented to the district court.
While technically civil actions, “habeas corpus cases are, in effect, hybrid actions whose nature is
not adequately captured by the phrase ‘civil action’; they are independent civil dispositions of
completed criminal proceedings.” Santana v. United States, 98 F.3d 752, 754 (3rd Cir. 1996).
Thus, particularly in cases where a habeas petitioner is proceeding pro se, the court should be
more inclined to find a “long-odds exception.”
Second, petitioner’s failure to file with the district court a motion for leave to amend or
supplement was not in any way the result of bad faith. The decision in Apprendi, which forms
the basis for petitioner’s supplemental claim, was not issued until June 2000, nearly four months
after the district court had ruled on petitioner’s § 2255 motion.
Third, it is clear that petitioner would be entitled in the district court to amend his
complaint pursuant to Fed. R. Civ. P. 15.
In Foman v. Davis, 371 U.S. 178, 182 (1962), the
Court emphasized Rule 15(a)’s mandate that “leave to amend ‘shall be freely given when justice
so requires.’” The Court concluded that “[i]n the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought
should, as the rules require, be ‘freely given.’” Id. This court has interpreted Rule 15(a) to
require that leave to amend be liberally granted. See, e.g., Harrison v. Rubin, 174 F.3d 249, 252-253 (D.C. Cir. 1999) (reversing denial of plaintiff’s motion for leave to amend because defendant
had not made any showing that it would be prejudiced by amendment).
In addition, “courts freely grant pro se litigants leave to amend.” Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999) (citing Moore v. Agency for Int’l Dev., 994 F.2d 874,
877 (D.C. Cir. 1993)). Given the absence of any evidence of “undue delay, bad faith, undue
prejudice to the opposing party, repeated failure to cure deficiencies, or futility,” petitioner’s
entitlement to Rule 15 relief is evident. See id. The government has not alleged undue delay or
bad faith by petitioner, nor could it, given that Apprendi was not decided at the time petitioner
initially filed his § 2255 motion. Similarly, the government cannot argue any undue prejudice
from petitioner’s amendment. Petitioner’s original pleading challenged his conviction and
sentence, and the government therefore was on notice that petitioner was contesting his
conviction and sentence.
Moreover, the strength of petitioner’s Apprendi claim is a further equitable consideration
in favor of granting petitioner’s motion for leave to amend. Compare Dartmouth Rvw, 889 F.2d
at 23 (concluding that appellant did not fall within the long-odds exception, at least in part
because appellants failed to show that the amendment “would make a dispositive difference”).
As noted above, this court has recently held that Apprendi requires that drug quantity be
submitted to the jury as an element of a drug case under 21 U.S.C. §§ 841 and 846 “before a
defendant can be sentenced to any of the progressively higher statutory maximums that are based
on progressively higher quantities of drugs specified in subsections 841(b)(1)(A) or (B).” Fields,
2001 WL 241804 at *2. The jury in this case did not consider the issue of quantity, thus there is
Apprendi error, as the government has conceded.
The series of procedural hurdles presented by the government in its opposition do not bar
relief in this case. Govt’s Opp. at 5-10. Much of the government’s opposition is premised on the
assumption that petitioner is raising his Apprendi claim in a second or successive § 2255 motion.
But the inquiry under Rule 15 for purposes of determining whether amendment would be futile is
whether the claim would be futile if the amendment were granted. Because the § 2255 motion
petitioner seeks to amend is petitioner’s first and only motion, the procedural bars that apply to
second or successive petitions are simply inapplicable.
Most of the government’s procedural arguments with respect to first § 2255 motions are
confined to a prolix footnote. See Govt. Opp. at 6-7 n.2. None of the government’s procedural
arguments has merit. First, the government’s argument that petitioner’s Apprendi claim is barred
by § 2255's one-year statute of limitations ignores the fact that petitioner’s Apprendi claim will
“relate back” to the original filing of his § 2255 motion, which was within the limitations period,
because an amended or supplemental claim relates back to the date of the original pleading if
“the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading.” Fed. R. Civ. P.
15(c)(2). Petitioner’s Apprendi claim arises from the same “occurrence” set forth in his original
pleading, namely his criminal trial and sentencing, and it therefore would relate back to the
timely filing of the original pleading in his § 2255 action.
The government’s attempt to invoke the procedural limitations of Teague v. Lane, 498
U.S. 288 (1989) (plurality opinion), is also unavailing because Apprendi claims are not subject to
the standards set forth in Teague. In determining whether a new rule is to be applied
retroactively to cases on collateral review, the Supreme Court has recognized the distinction
between new rules of criminal procedure governed by Teague, and new rules of statutory
substantive criminal law, to which Teague does not apply. In Bousley v. United States, 523 U.S.
614, 620 (1998), the Court held that “because Teague by its term applies only to procedural rules,
we think it is inapplicable to the situation in which this Court decided the meaning of a criminal
statute enacted by Congress.” See also Davis v. United States, 417 U.S. 333, 341-42 (1974)
(holding that new circuit court decision interpreting substantive reach of criminal statute applied
retroactively to § 2255 motions); United States v. McKie, 73 F.3d 1149, 1153 (D.C. Cir. 1996)
(holding Teague does not bar retroactive application of new circuit rule interpreting substantive
terms of 21 U.S.C. § 844(a)).
The rule announced in Apprendi—that any fact that increases the penalty for a criminal
offense beyond the statutory maximum constitutes an element of that offense which must be
proved to a jury beyond a reasonable doubt—is a rule of constitutional substantive law and
statutory interpretation, and Teague thus does not apply. See Darity v. United States, 124
F.Supp. 2d 355, 358-61 (W.D.N.C. 2000) (applying Apprendi retroactively to cases on collateral
review and concluding that Apprendi announced both a new rule of constitutional substantive
law, which is automatically retroactive, and a new rule of constitutional procedural law, which
comes within exception to Teague nonretroactivity doctrine). In contrast to the Supreme Court’s
decision in United States v. Gaudin, 515 U.S. 506 (1995), which determined whether a judge or
jury must decide an element of an offense that involved a mixed question of law and fact, the
Apprendi decision went much further by defining which facts constitute an element of an
offense.
Apprendi recognized that the application of aggravating facts to enhance a sentence for
a particular offense actually creates a different, greater offense than the one considered by the
jury. See Apprendi, 120 S. Ct. at 2364-65 & n.19 (“[W]hen the term ‘sentence enhancement’ is
used to describe an increase beyond the maximum authorized statutory sentence, it is the
functional equivalent of an element of a greater offense than the one covered by the jury’s guilty
verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.”).
When this court recognized that in light of Apprendi, “drug quantity is an element of the
offense where a factual determination of the amount of drugs at issue may result in a sentence
that exceeds a maximum sentence prescribed in the applicable statute,” Fields, 2001 WL 241804
at *2, the court was construing a substantive criminal statute to determine its elements. In other
words, when the court construed § 841 to create a number of different substantive offenses, each
of which has different elements and carries with it a different penalty, the court was defining the
substantive reach of each criminal offense listed in § 841. Because that decision was substantive,
rather than procedural, Teague is simply inapplicable.
If this court concludes that the Apprendi rule is procedural, rather than substantive,
Apprendi meets the second Teague exception, which allows retroactive application of
“watershed” procedural rules, which “alter our understanding of the bedrock procedural element
essential to the fairness of the proceeding” and “without which the likelihood of an accurate
conviction is seriously diminished.” Sawyer v. Smith, 497 U.S. 227, 242-44 (1990) (quoting
Teague, 489 U.S. at 311, 315). The new rule announced in Apprendi is a watershed rule that
involves the jury trial guarantee and the reasonable doubt standard -- therefore implicating the
fundamental fairness and reliability of criminal proceedings. See In re Winship, 397 U.S. 358,
363 (1970) (indicating that proof by a preponderance in criminal case would deny fundamental
fairness). Justice O’Connor, who authored the main opinion in Teague, speaking for four
Justices in Apprendi, characterized the new rule in Apprendi as a “watershed change in
constitutional law ... .” Apprendi, 120 S.Ct. at 2380 (O’Connor, J., dissenting). The Apprendi
majority itself declared that “[a]t stake in this case are constitutional protections of surpassing
importance,” 120 S.Ct. at 2335, and listed as the first such protection the “proscription of any
deprivation of liberty without ‘due process of law ... .’” Id. Citing Winship, the Court
emphasized the right to have guilt determined only on proof beyond a reasonable doubt. Id. at
2336. “There can be little doubt that the sweeping new requirement announced by the Court in
Apprendi is so grounded in fundamental fairness that it may be considered of watershed
importance.” United States v. Murphy, 109 F.Supp.2d 1059, 1064 (D.Minn. 2000).
In this case, petitioner received an enhanced sentence based on drug quantity even though
quantity was not determined by a jury beyond a reasonable doubt. This error implicates the
fundamental fairness of the proceeding and the accuracy of his conviction. See United States v.
Nordby, 225 F.3d at 1062 (finding that after Apprendi, a jury must find drug quantity and drug
type before a defendant can be sentenced for the enhanced offenses in 21 U.S.C. § 841(b)(1)(A)
and (b)(1)(B); “[t]he rights to a jury trial and the determination of guilt beyond a reasonable
doubt are the bedrock of our constitutional system of justice.” (citing Apprendi)). Because the
Apprendi decision is based upon due process principles, as well as the jury trial and proof beyond
a reasonable doubt guarantees, which are essential to the fairness and reliability of criminal
proceedings, the new rule in Apprendi comes within the watershed exception of Teague and
applies retroactively to § 2255 motions.
The government also argues that petitioner cannot establish “cause” and “prejudice” for
his failure to raise the issue at trial or on appeal as required by Bousley, 523 U.S. 614. Again,
that argument is without merit. With respect to “cause,” the legal basis for petitioner’s claim was
not “reasonably available” to counsel at the time of his trial and direct appeal. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); Reed v. Ross, 468 U.S. 1, 16 (1984). At the time of
petitioner’s trial and appeal, the federal courts were unanimous in interpreting § 841(b) to state
sentencing factors, not elements of the crime. See United States v. Lam Kwong-Wah, 966 F.2d
682, 685-86 (D.C. Cir. 1992); United States v. Barnes, 890 F.2d 545, 551 n.6 (1st Cir. 1989);
United States v. Camuzano, 905 F.2d 667, 679 (2d Cir. 1990); United States v. Gibbs, 813 F.2d
596, 599-601 (3d Cir. 1987); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United
States v. Royal, 972 F.2d 643, 650 (5th Cir. 1992); United States v. Moreno, 899 F.2d 465, 472-73 (6th Cir. 1990); United States v. Schuster, 948 F.2d 313, 315 (7th Cir. 1991); United States v.
Wood, 834 F.2d 1382, 1388-89 (8th Cir. 1987); United States v. Sotelo-Rivera, 931 F.2d 1317,
1319 (9th Cir. 1991); United States v. Silvers, 84 F.3d 1317, 1320 (10th Cir. 1996); United States
v. Cross, 916 F.2d 622, 623 (11th Cir. 1990). In light of this unanimous body of law, before
Apprendi, the argument that the Supreme Court’s constitutional jurisprudence supported a
different result was so novel it could not reasonably have been anticipated by counsel. See Reed,
468 U.S. at 14 (“the failure of counsel to raise a constitutional issue reasonably unknown to him
is one situation in which the [cause] requirement is met”); id. at 17 (when Supreme Court
decision with retroactive application “‘overtur[ns] a longstanding and widespread practice to
which this Court has not spoken, but which a near-unanimous body of lower court authority has
expressly approved,’” then “[b]y definition . . . there will almost certainly have been no
reasonable basis” for an attorney to have argued the claim previously); United States v. Jones,
2001 WL 127300, *7 (E.D. La. February 9, 2001) (“Jones has shown adequate cause for his
failure to raise this precise constitutional issue on appeal because neither Jones [v. United States,
526 U.S. 227, 243 n.6 (1999)] nor Apprendi had been rendered at the time of his guilty plea trial
or his appeal.”)).
This case is very different from the situation in Bousley v. United States, 523 U.S. 614
(1998). That case involved a legal claim arising under 18 U.S.C. § 924(c), which, at the time the
claim was decided, was “the source of much perplexity in the courts.” Bailey v. United States,
516 U.S. 137, 142 (1995). The Court granted certiorari in Bailey because “[t]he Circuits are in
conflict both in the standards they have articulated [ ] and in the results they have reached . . . .”
Id. (citations omitted). In contrast, there was no circuit split regarding the correct interpretation
of § 841 prior to Apprendi, and the claim thus was not “reasonably available” to petitioner.
In addition, petitioner can establish cause because his claim would have been futile has he
raised it. The Court in Bousley stated that “‘futility cannot constitute cause if it means simply
that a claim was “unacceptable to that particular court at that particular time.”’” 523 U.S. at 622-23 (citing Engle v. Isaac, 456 U.S. 107, 139 n.35 (1982) (citing Myers v. Washington, 646 F.2d
355, 364 (9th Cir. 1981) (Poole, J., dissenting))). Again, however, not only was petitioner’s
Apprendi/drug quantity claim unacceptable in this particular court at the time, the circuits were
unanimous in holding that the claim had absolutely no merit. Moreover, the Court’s decision in
Isaac, upon which Bousley primarily relied, was a result of the Court’s expressed concern with
“sandbagging”and the principles underlying Wainright v. Sykes, 433 U.S. 72, 87-89 (1977). The
Court explained the rationale for its decision: “[If] a defendant perceives a constitutional claim
and believes it may find favor in the federal courts, he may not bypass the state courts simply
because he thinks they will be unsympathetic to the claim.” Isaac, 456 U.S. at 130. Concerns
with sandbagging, however, are completely absent in this case, where, at the time of petitioner’s
trial, the federal courts unanimously rejected the argument that drug quantity was an element of a
§ 841 offense.
Finally, petitioner suffered prejudice from the Apprendi error. The jury made no finding
with respect to the quantity of drugs that was attributable to petitioner as a part of the conspiracy.
Thus, petitioner’s sentence was impermissibly enhanced by the district court’s finding by a
preponderance of the evidence at sentencing that petitioner was responsible for twenty kilograms
of drugs.
The government argues that Neder v. United States, 527 U.S. 1, 8-9 (1999), applies to all
Apprendi claims, whether on direct appeal or on collateral review, and that under Neder,
petitioner is not entitled to relief. Govt’s Opp. at 10-15. Since the filing of the government’s
brief, this court has addressed the issue of when Apprendi error requires relief on direct appeal.
See Fields, 2001 WL 241804 at *3-4. Without citing Neder, the court found Apprendi error and
remanded for the district court to “re-sentence the defendants based on the amount of drugs as to
which there can be no doubt, i.e., where drug quantity is established by proof beyond a
reasonable doubt.” Id. at *6. In this case, the evidence adduced at trial with respect to the
quantity of drugs that either petitioner conspired to distribute or that was reasonably foreseeable
to him was ambiguous at best. Petitioner was incarcerated during the entire conspiracy, and
while there was evidence that petitioner put the various members of the conspiracy in touch with
each other, he was not in a position to facilitate the transactions themselves.
The prejudice from the Apprendi error in petitioner’s case is magnified because this was a
conspiracy case. Not only was the jury specifically instructed that it was not to consider quantity,
it was also instructed that a particular co-conspirator need not have been involved with the
conspiracy for the entire period from beginning to end. Tr. Vol. 47 at 4981. Moreover, the jury
was instructed that knowledge of the complete scope of the conspiracy was not required, id., and
that “you may find a defendant guilty of the crime charged in the indictment without finding that
he personally committed each of the acts that makes up the crime or that he was present while the
crime was being committed. Any person who in some way intentionally participates in the
commission of a crime aids and abets the principal offender.” Tr. Vol. 47 at 4983 (emphasis
added). With those instructions, the jury could have convicted the petitioner of conspiracy based
only on an agreement to distribute some drugs, even if petitioner had no idea of the amounts of
drugs later involved and even if those amounts were in no way reasonably foreseeable to him.
Indeed, the jury could have convicted petitioner even had he withdrawn from the conspiracy prior
to any drug sales provided that he took some act toward the illegal purpose. In the absence of
any indication that the jury believed, beyond a reasonable doubt, that petitioner either
participated in the full scope of the conspiracy or that it was reasonably foreseeable to him, he
cannot be held accountable for those amounts. Thus, petitioner is entitled to relief under
Apprendi and Fields, and the court should grant his motion for leave to amend.
CONCLUSION
The special status of habeas actions, the facts that petitioner was proceeding pro se when
he filed his § 2255 motion and that the grounds for his amendment were unavailable to him at the
time he filed his § 2255 motion, and the strength of petitioner’s Apprendi claim combine to
present a “compelling scenario” for invoking the long-odds exception to the general rule that
amendment must first be sought in the district court. Accordingly, the court should grant
petitioner’s motion for leave to amend and remand to the district court for it to decide the merits
of petitioner’s amended section 2255 motion, or, in the alternative, remand to the district court
for it to rule on the motion to amend.
Respectfully submitted,
_________________________________ A.J. Kramer
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 of Amicus Curiae
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, and one copy has been
mailed to Mr. Jose xxxxxxx, Fed. Reg. No. 21431-053, U.S. Penitentiary, P.O. Box 7000,
Florence, CO 81226.
___________________________________
A.J. Kramer