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No. ___IN the SUPREME COURT of the UNITED STATES No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. On Application for Extension of Time to File a Petition for a Writ of Certiorari to the District of Columbia Court of Appeals PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI SAMIA FAM (Counsel of Record) JOSHUA DEAHL PUBLIC DEFENDER SERVICE 633 Indiana Avenue, NW Washington, DC 20004 (202) 628-1200 Counsel for Petitioner No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable John G. Roberts, Jr., as Circuit Justice for the District of Columbia, covering the District of Columbia Court of Appeals. Petitioner Saquawn Harris, through undersigned counsel, respectfully requests that the time to file a Petition for a Writ of Certiorari in this matter be extended for sixty days to September 9, 2019. Mr. Harris’s motion for reconsideration of his petition for rehearing en banc with the D.C. Court of Appeals was denied on April 11, 2019, making his certiorari petition due to this Court on July 10, 2019. This extension motion is being filed more than 10 days in advance of the due date, per this Court’s rules. Sup. Ct. R. 13(4). This Court would have jurisdiction over the judgment under 28 U.S.C. § 1257(a).1 1 Mr. Harris previously filed a petition for a writ of certiorari after the initial denial of en banc rehearing, but the United States rejoined that the then-pending motion to reconsider en banc rehearing made this case “a particularly poor vehicle for review … [b]ecause the [D.C. Court of Appeals] could potentially still grant that petition.” See United States Brief in Opposition, No. 17- BACKGROUND Petitioner was charged with first-degree murder and related crimes in the death of James Taylor. The forensic evidence and eyewitness testimony showed that Taylor, a bystander killed during a shooting targeting someone else, was not shot by Petitioner or his alleged accomplice, but by an unforeseen interloper, Robert Foreman. Foreman heard gunshots and decided to join the attack on his own initiative. There was no evidence of any coordination between Petitioner and Foreman; the government conceded that Petitioner was not even aware of Foreman’s presence until after the shooting was over. See Tann v. United States, 127 A.3d 400, 440 (D.C. 2015). The government sought to hold Petitioner accountable for Foreman’s independent attack by claiming that Petitioner had aided and abetted Foreman, despite conceding that Petitioner did nothing intentionally or knowingly to assist Foreman. Based on nothing but its own purportedly plain reading of the D.C. aiding and abetting statute, the government argued that in addition to traditional accomplice liability for one who intentionally aids the principal with the intent that the principal succeed, there is a second form of accomplice liability for one who merely targets the same victim as the principal, but may not even know that the principal exists. Id. at 437-38. The trial court accepted this argument and instructed the jury accordingly. Id. at 437. The government pressed the same theory on appeal, and a three-judge panel of the Court of Appeals unanimously rejected 5450 at 15 (October 30, 2017). The gist of the motion to reconsider was that the Court of Appeals original 4-3 vote in favor of granting rehearing en banc, with one judge recused, constituted a grant of rehearing rather than a denial. It then took the Court of Appeals approximately two years to explain—in a 13-page order over a three-judge dissenting “statement”—why that 4-3 vote in favor of rehearing was treated as a denial of rehearing. See April 11, 2019 Order. It is this latter order which Petitioner will now seek certiorari from. See, e.g., Lords Landing Village Condo. Council of Unit Owners v. Continental Ins. Co., 520 U.S. 893, 897 (1997) (granting certiorari from denial of motion to reconsider denial of en banc rehearing); Huddleston v. Dwyer, 322 U.S. 232, 235 (1944) (same); Chicago Great Western R. Co. v. Basham, 249 U.S. 165, 166 (1919) (granting certiorari from the denial of “a second petition for rehearing”). 2 it, holding that the jury instruction on aiding and abetting was constitutional error. Id. at 450. Despite rejecting the theory of liability on which Petitioner had been tried and convicted, a two-judge majority affirmed Petitioner’s convictions by inventing an entirely new form of aiding and abetting liability—a theory that was not presented to the jury nor advanced by the government on appeal. The majority held that A is liable as B’s accomplice if, (1) with the same mens rea as B, (2) he commits an act that incites B’s crime, even if he does so unintentionally, (3) he shares B’s “community of purpose,” and (4) B’s crime was a foreseeable result of A’s conduct. Tann, 127 A.3d at 445-45. The majority acknowledged that there had been no jury instruction or findings on the elements of this novel theory, but nevertheless affirmed Petitioner’s convictions by, in a single paragraph, finding “no reasonable possibility” that the jury would have failed to find these elements. Id. at 450. In a vigorous dissent, Judge Glickman explained that the majority’s novel theory of aiding and abetting liability was inconsistent with precedent and unsound. He also found it improper for the majority to engage in “this unforeseeable reshaping of a major doctrine in the criminal law without affording the parties the opportunity to address it in supplemental briefing.” Id. at 505 & n.42 (Glickman, J., dissenting). Petitioner sought rehearing en banc. Among other things, he pressed this Court’s precedents instructing that an appellate court cannot affirm a conviction based on a theory of liability that was never argued or presented to the jury. See Chiarella v. United States, 445 U.S. 222, 236 (1980) (“[W]e cannot affirm a criminal conviction on the basis of a theory not presented to the jury.”); McCormick v. United Sates, 500 U.S. 257, 270 n.8 (1991) (“This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury.”); Nye & Nissen v. United States, 336 U.S. 613, 618 (1949) (verdict may not be affirmed on co-conspirator theory of liability without “submission of those fact issues to the 3 jury”). A year after the en banc petition was filed, the Court of Appeals issued a March 3, 2017, Order indicating the participating judges had voted 4-3 in favor of granting en banc review. App’x. B. That same order indicated that en banc review had been denied. Id. The Order provided no explanation as to how a 4-3 vote in favor of en banc review constituted a denial under the Court’s rules requiring a bare majority for en banc review, so Petitioner was left to guess the reason. While nine judges make up a full complement of judges on the D.C. Court of Appeals, there was a longstanding vacancy on the court throughout the petition’s pendency (and through today), and one sitting judge (Judge McLeese, who was formerly an Assistant United States Attorney and assisted in the prosecution of Petitioner) chose to recuse himself, id., leaving just seven judges eligible to consider the rehearing petition. Petitioner surmised that the Court must have treated the recused judge as one in “regular active service,” see Fed. App. R. 35(a), D.C. App. R. 35(a), so that 4 out of 8 active judges did not constitute a majority (despite the fact that 4 out of 7 participating judges did). Six days after the denial, Petitioner filed a “motion to stay the mandate”2 and a motion to reconsider the denial of the en banc petition “or, in the alternative, for clarification of the basis for the denial of the petition.” Mtn. to Reconsider (March 9, 2017). The latter motion argued that the applicable rules of appellate procedure dictate that the 4-3 vote constituted a grant of the rehearing petition. The government filed no response to that motion. On April 11, 2019, the Court rejected the motion to reconsider on a 3-3 vote (the Court now with two vacancies while Judge McLeese remained recused). App’x A. The controlling 2 The Court of Appeals has not expressly ruled on the motion to stay the mandate, though the mandate has not issued, which is the functional equivalent of granting that motion as, per rule, the mandate would ordinarily have issued 7 days after the Court of Appeals Order denying en banc rehearing. D.C. App. R. 41(c). 4 opinion for the evenly divided court acknowledged that, in 2005, the Federal Rules of Appellate Procedure were modified to make it abundantly clear that the phrase “[a] majority of the circuit judges who are in regular active service” necessary to grant en banc rehearing includes only those judges “who are not disqualified” from hearing the case. Id. at 4-5. It also acknowledged that federal statute requires that the D.C. Court of Appeals “shall conduct its business according to the Federal Rules of Appellate Procedure,” unless it “prescribes or adopts modifications to those rules,” and no such modifications had been adopted since 2005.
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