Petitioner, J Fr J Ill V

Home , Duplicity (Revenge), Trust (Revenge)

No. X-Q - )%0

SUPREME COURT OF THE UNITED STATES

ROLANDO CRUZ, JR, Petitioner, j fr j ill V. 4 gj

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals FILED

for the Third Circuit APR t h 2021 OFFICE OF THE CLERK SUPREME COURT. U.S.

PETITION FOR WRIT OF CERTIORARI

Wvm Rolando Cruz, Jr.

Reg. No. 72198-067

USP CANAAN U.S. PENITENTIARY SMART COMMUNICATIONS P.O. BOX 30 PINELLAS PARK, FL 33781

l QUESTIONS PRESENTED

I. WHETHER IT WAS ERROR FOR THE THIRD CIRCUIT TO JUSTIFY AFFIRMANCE OF THE RICO CONSPIRACY CONVICTIONS ON THE BASIS OF EVIDENCE PROVING SOMETHING QUITE DIFFERENT FROM WHAT WAS CHARGED IN THE INDICTMENT?

II. WHETHER UNITED STATES V. ROWE APPLIES TO CONSPIRACY CASES?

2 LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

3 n

TABLE OF CONTENTS

QUESTION PRESENTED.. 2

TABLE OF AUTHORITIES 5 JURISDICTION 6

OPINIONS BELOW 6

CONTITUTIONAL ISSUES 6

SUMMARY OF ARGUMENT 15

STATEMENT OF CASE 7 ARGUMENT

I. IT WAS ERROR FOR THE THIRD CIRCUIT TO JUSTIFY AFFIRMANCE OF THE RICO CONSPIRACY CONVICTIONS ON THE BASIS OF EVIDENCE PROVING SOMETHING QUITE DIFFERENT FROM WHAT WAS CHARGED IN THE INDICTMENT? 15

II. UNITED STATES V. ROWE APPLIES TO CONSPIRACY CASES? 20

CONCLUSION 23

CERTIFICATE OF SERVICES 24

4 TABLE OF AUTHORITIES

CASES

Supreme Court:

Alleyne v. United States, 570 U.S. 99 (2013) 8, 20

Boyle v. United States, 556 U.S. 938 (2009). 16

Henslee v. Union Planters Nat'l Bank Trust Co.. 335 U.S. 595, 600 (1949). ...17

Rosemond v. United States, 134 S. Ct. 1240 (2014) 21

Salinas v. United States, 522 U.S. 52, 63 (1997)..... 16

Stirone v. United States, 80 S. Ct. 270, 361 U.S. 212, 4 L.Ed.2d 252 (I960)....20

Court of Appeals:

United States v. Boria, 592 F.3d 476,480 (3d Cir. 2010)...... 17.

United States v. Collado, 975 F.2d 985 (3d Cir. 1992)...... 23

United States v. Foster, 507 F.3d 233, 250- 51 (4th Cir. 2007) 21

In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 366 (3d Cir. 2010). 16

United States v. Massimino, 641 Fed.Appx. 153, 160 (3d Cir. 2016) 16

United States v. Miller, 645 F. App'x 21 l(3d.Cir.2016)...... 20

United States v. Peel, 837 F.2d 975, 977-978 (11th Cir. 1988)...... 20

United States v. Rowe, 919 F.3d 752 (3d Cir. 2019)...... 8, 15,20,21

United States v. Williams, No. 17-2111 (3rd Cir. 2020)...... 20

United States v. Vazquez, 271 F.3d 93, 107 (3d Cir. 2001)...... 21

5 PETITION FOR WRIT OF CERTIORARI

Rolando Cruz, Jr. respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The panel opinion of the Court of Appeals is published and included in Petitioner’s Appendix (Pet. App.) at A. The opinion of the district court’s denial is unpublished and is included in Pet. App. at B. Finally, Petitioner’s request for petition for panel rehearing was denied on November 10th, 2020, and is included in Pet. App. At C. JURISDICTION

On March 19, 2020, this Court entered an order automatically extending the time to file any petition for certiorari due on or after that day to 150 days from the date of the lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing. The effect of that order was to extend the deadline for filing a petition for certiorari to April 16th, 2021. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE

The Fifth Amendment (1791) establishes the requirement that a trial for a major crime may commence only after an indictment has been handed down by a grand jury; protects individuals from double jeopardy, being tried and put in danger of being punished more than once for the same criminal act; prohibits punishment without due process of law, thus protecting individuals from being imprisoned without fair procedures; and provides that an accused person may not be compelled to reveal to the police, prosecutor, judge, or jury any information that might incriminate or be used against him or her in a court of law.

6 The Sixth Amendment (1791) provides several protections and rights to an individual accused of a crime. The accused has the right to a fair and speedy trial by a local and impartial jury. Likewise, a person has the right to a public trial. This right protects defendants from secret proceedings that might encourage abuse of the justice system, and serves to keep the public informed. This amendment also guarantees a right to legal counsel if accused of a crime, guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused, and guarantees the accused a right to know the charges against them.

STATEMENT OF THE CASE

Over View:

In mid-September 2014, a federal grand jury in the U.S. District Court for the Middle District of Pennsylvania returned an indictment of twenty-one men from the South Side neighborhood of York, Pennsylvania. All twenty-one were charged on counts of racketeering conspiracy, drug-trafficking conspiracy, and drug trafficking. Four were also variously charged with federal firearms offenses related to the alleged trafficking. Although so called because of its geographic location in the city, South Side, the indictment alleged, had constituted since 2002 the identity of a criminal enterprise associated through its upper echelons with the Bloods, a national street gang. At the heart of the enterprise, it was said, lay an extensive drug-trafficking operation.

Over the course of the ensuing year, several of the defendants pleaded guilty. Twelve, however, proceeded to a joint trial, held over eight weeks from September to November 2015. The jury heard from well over one hundred witnesses, including some of the original twenty-one who chose to cooperate with the Government in the hope of a reduced sentence.

The witnesses depicted widespread drug dealing in crack cocaine and heroin.

7 The instant issues, are divided into two categories. First, Cruz contends that the evidence was insufficient to the verdict against them. And, second Cruz seeks clarification among other things, the effect of the third circuit recent decision in United States v. Rowe, 919 F.3d 752 (3d Cir. 2019), and thereby of the Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013),upon the case law regarding the elements of a drug-trafficking conspiracy under 21 U.S.C. § 846.

Finally, consistent with Fed. R. App. P. 28(i), Cruz adopts by reference the argument portion of each of the co-defendant’s briefs in this appeal and respectfully urges the Court to grant Cruz relief from his conviction and/or sentence based on those arguments to the extent they are applicable to Cruz. Background:

Cruz was charged in a second superseding indictment with: (Count One) conspiring to commit racketeering, a violation of 18 U.S.C. § 1962(d) (Count Two) conspiring to distribute 5 kilograms or more of cocaine, 280 grams or more of cocaine base, heroin, and marijuana, a violation of 21 U.S.C. § 846; and (Count Three) distribution of 5 kilograms or more of cocaine, 280 grams or more of cocaine base, heroin, and marijuana, a violation of 21 U.S.C. § 841(a)(1); (Count Five) carrying and using a firearm during and relation to drug trafficking and possession of a firearm in furtherance of a drug crime, violations of 18 U.S.C. § 924(c); and (Count Six) conspiracy to possess firearms in furtherance of drug trafficking. The charges surround Cruz’s purported involvement with the “Southside Gang” or “Southside,” an alleged RICO “enterprise” located in York, Pennsylvania.

According to the Government, “Southside” was made up of "crews" or "drug blocks" that operated around York. The crews were:

• "Maple and Duke," also known as "the Jungle," "the Up top," and "the Gates;"

8 • "Maple and Manor," also known as "the Downbottom" and "the Caso;"

• "Pine and Poplar;" and

• "Cleveland Avenue." According to the Government, “Southside” crews worked to:

a. Preserve and protect the territory and power of [Southside] through the use of intimidation, violence, and threats of violence; b. Generate financial profits for the benefit of, and in furtherance of, [Southside];

c. Defend and retaliate on behalf of members of [Southside] who are insulted, threatened, or attacked; and d. Provide assistance to members who have committed crimes for and on behalf of [Southside] through retaliation against witnesses and thwarting efforts of law enforcement, (alterations added).

These goals were allegedly furthered through drug dealing and violence against “Parkway,” a supposed rival “gang” in the northern part of York.

(0 The Government Failed to Show A Conspiratorial Agreement by Cruz To Form “Southside” Gang/Crew.

At trial, over the course of the nearly two months, the Government put on numerous witnesses who testified about “Southside.” In large part, the common theme among the witnesses’ testimony was that Southside was not a gang, and that drug dealing and violence that occurred was the result of personal goals or vendettas as opposed to support for “Southside” as an “enterprise.” The testimony from each of the below witnesses’ points this up.

9 (a) Lizarah Matthews:

Q. And being out at the south, did you know anything called a south side gang? Is there a south side gang?

A. It’s not a gang. It's a location. It's like where you're from. You can be out east; you can be out north. It's not like a gang. It's a location. Now that I live out there, if I lived out there for seven years, I'd be considered I'm from out south. (Tr. Trans. 674).

(b) Darvin Allen:

Q. What is the south side?

A. South side is — where I reside at and where people basically hanged out at. And it became, like, the south side, like most people grew up there, most people came from other places, and it was just the south.

Q. For you, it's a place where you grew up?

A. Right.

Q. And is it just a region of the City of York?

A.Forme,yes. ...

Q. Now, you've talked about south side. Everybody's the south.

A. Correct.

Q. All right. Do you have your own little club that's separate and apart?

A. Yes, Maple and Manor. (Tr. Trans. 1226,1496) (emphasis added).

Q. How did the drug dealing in south side work? Was it organized, was it a free-for-all? How did it work in your experience?

A. It was a free-for-all. You had people that grew up on different blocks. You might sell drugs on your block; you might sell drugs on a different block. There was no structure.

10 Q. And that's because, as we use the phrase or the word "gang," south side was not a gang in that sense. Right?

A. No, there was no structure.

Q. Every man for themselves?

A. Yeah.

Q. People weren't kicking back money to other people? You sell the drugs, you keep the money, that's how you did it?

A. Who? Q. What? A. I didn't do it like that. I did me. They did them, I did me. (Tr. Trans. 1782)

(d) Jerrod Brown:

A. Basically, you know, we messed with everybody on every block on the south side.

Q. So you were cordial with them?

A. Yes. But as far as everything else, we did what we wanted to do down there.

Q. Because you all ran your own show over there. Right?

A. Yes. (Tr. Trans. 1984).

(e) Marquis Williams:

Q. And what does it mean to you to be from the south side?

A. That's where I'm from, that's where I grew up at. Like, that's where I hang out. ...

Q. Would you agree with me that there wasn't one leader out in the south side area of York when you were out selling drugs?

A. No, there wasn't. There was never no leader.

Q. There was no leader?

11 A. No.

Q. And there were — let me count up how many different blocks where people were selling. One, two, three, four, five, six, at least seven that you can think of and that you've identified, seven different areas within the south side area of York where people were commonly selling drugs?

A. Correct.

Q. So would you agree with me that there wasn't a structure or an organization to the south side area of York for drug transactions?

A. Correct. ...

Q. You're not in a south side gang?

A. I'm a part of the south. We don't consider ourselves a gang. It's where we grew up at.

Q. And so it's possible that for somebody that can sell drugs in the south to not be a part of a south side gang because there really isn't a south side gang?

A. Correct. (Tr. Trans 2206,2259, 2331).

(j^ Warren Pillgreen:

Q. And this south side gang that you say that you're a part of, did you tell somebody else you're a part of the south side gang or did they tell you, you hustle down there and you're from there, so you are part of the south side gang?

A. Right, I never labeled it as a south side gang ever. I've never labeled it that.

Q. So to the extent that you just — you grew up there. Right?

A. Right. (Tr. Trans. 2799).

12 (g) Laquan Beatty:

Q. And so when — it sounds like, as I’ve heard you explain these things, and please correct me if I'm wrong, that these incidents where you're involved in a shooting, it's because someone has shot somebody over a personal matter, right, or shot at somebody over a personal matter?

A. Yes....

Q. And this wasn't an organized effort on the part of what the prosecutor is calling "south side" to engage in retaliation. Right?

A. Yeah.

Q. I'm correct, it was not an organized attempt to retaliate by the south side? I'm sorry, what's your question again? Okay. It's getting late. These incidents where you talk about, we retaliated against Parkway -

A. Right.

Q. -- this was not an organized effort on the part of the south side to retaliate against these people, these were just individual decisions made by the people involved. Right?

A. Yes.

Q. There wasn't a big meeting of the south side gang, the crews didn't gather somewhere and discuss all of this, did they?

A. No.

Q. It was simply a number of the individuals, for example, Jovan DeShields, whose cousin was shot, Ciara Savage, to seek revenge over that very personal incident. Right?

A. Yes. (Tr. Trans 2897, 2906).

(h) Cordaress Rogers:

Q. Okay. But I guess my question is, were you all in the same spot selling drugs together separately or together? You were separate. Right?

13 A. Right. The profit would go into my pocket.... Yeah, they kept on saying was I in a gang, and I kept telling them I wasn't in a gang.

Q. And that there was no gang?

A. Right.

Q. Right. You told the officers that there was no south side gang. Correct?

A. I kept telling them that I wasn't in a gang.

Q. Right, and that there was no south side gang? You were just a bunch of kids who grew up together and were selling drugs. Right?

A. This is what I was telling - yes. (Tr. Trans. 3523-24).

On November 16, 2015, the jury returned a guilty verdict against Cruz on all charged counts. With respect to Count 1, the jury found that Cruz had conspired to possess with intent to distribute at least 5 kilos of cocaine and 280 grams or more of cocaine base. Concerning Count 2, the jury found that Cruz had conspired to possess with intent to distribute 280 grams or more of cocaine base, 5 kilograms or more of cocaine, and an amount of a mixture or substance of heroin and marijuana. Similarly, the found that Cruz was responsible for possessing with the intent to distribute 280 grams or more of cocaine base, 5 kilograms or more of cocaine, and an amount of a mixture or substance of heroin and marijuana. The specific firearms the jury found Cruz responsible for relative to Count Five were: a Smith and Wesson, Model SW40VE, .40 caliber pistol recovered on March 21, 2014, from 1st Class Storage Unit #A7, York, Pennsylvania; a Ruger, Model P90, .45 caliber pistol recovered on March 21,2014, from 1st Class Storage Unit#A7, York, Pennsylvania; a Taurus, Model 24/7, .40 caliber pistol recovered on March 21, 2014, from 2508 Fairway Drive, York, Pennsylvania. Finally, concerning Count 6, the jury found that Cruz had conspired to possess the same firearms in Count 5 in furtherance of drug trafficking, along with “a dock, Model 19, 9mm pistol recovered on

14 March 21, 2014, from 967 E. King Street, York, Pennsylvania.” (DCD 917 at 12). On October 3, 2017, the district court sentenced Cruz to Life terms on Counts 1-3,20 years on Count 6, concurrent with all counts, and five years on Count 5, consecutive to the sentences on Counts 1-3 and 6.

SUMMARY OF THE ARGUMENT

The Government failed to prove that Cruz entered into a conspiratorial agreement to conduct or participate in an association-in fact “enterprise” that operated as a “continuing unit.” The testimony at trial (overwhelmingly demonstrated that Southside was nothing more than an area of York, Pennsylvania that individuals lived in. While drug dealing and other crimes unquestionably occurred in Southside, there was no conspiratorial agreement between Cruz or anyone else that Southside operate as a “continuing unit.” In fact, the weight of the evidence clearly showed that the crimes committed in Southside were motivated by individual goals and personal vendettas. As such, Cruz’s conviction on Count 1 of the indictment should be reversed. Further, the Court should vacate Cruz’s sentence and remand for re-sentencing in light of United States v. Rowe, 919 F.3d 752 (3d Cir. 2019).

In reviewing a sufficiency of the evidence challenge, the Court construes the evidence in favor of the government and reverses only if no rational juror could have found all essential elements of the crime beyond a

15 reasonable doubt. United States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010).

To sustain a RICO conspiracy conviction under 18 U.S.C. § 1962(d), the Government must prove: (1) two or more persons agreed to conduct or participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity or collection of an unlawful debt; (2) the defendant was a party to or a member of the agreement; and (3) the defendant joined the agreement, knowing of its objective to conduct or participate in the conduct of the affairs of an enterprise through a pattern of racketeering activity or collection of unlawful debt, and intending to join with at least one other co-conspirator to achieve that objective. United States v. Massimino, 641 Fed.Appx. 153,160 (3d Cir. 2016) (citing Salinas v. United States, 522 U.S. 52, 63 (1997)). With respect to the “enterprise” element, the Government asserted that Southside was an “association-in-fact” enterprise. An “association-in- fact” enterprise, as this Court has explained, “must have a structure. Specifically, it ‘must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 366 (3d Cir. 2010) (citing Boyle v. United States, 556 U.S. 938 (2009)). Nevertheless, an association-in-fact enterprise: need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or

16 unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute's reach. In re Insurance Brokerage Antitrust Litigation, 618 F.3d at 366. Nevertheless, the existence of a pattern of racketeering, by itself, does not create an enterprise. As Boyle noted: It is easy to envision situations in which proof that individuals engaged in a pattern of racketeering activity would not establish the existence of an enterprise. For example, suppose that several individuals, independently and without coordination, engaged in a pattern of crimes listed as RICO predicates—for example, bribery or extortion. Proof of these patterns would not be enough to show that the individuals were members of an enterprise. Boyle, 556 U.S. at 947 n.4 (emphasis added). Thus, as this Court recognized in In re Insurance Brokerage Antitrust Litigation, “[e]ven under the relatively undemanding standard of Boyle ... there is a ‘basic requirement that the components function as a unit, that they be put together to form a whole.’” In re Insurance Brokerage Antitrust Litigation, 618 F.3d at 374. Parallel conduct by separate actors is insufficient. Id.

Finally, a § 1962(d) offense is not proven unless “an endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] offense.” Id. at 373. With the above principles in mind, it is clear that Cruz did not conspire to “conduct or participate” in the activities of Southside because Southside is an area of York composed of individuals “independently and without coordination, [who are] engaged in a pattern of crimes listed as RICO predicates.” Boyle, 556 U.S. at 947 n.4 (emphasis and alterations added). The independence and lack of coordination between individuals in Southside was fatal to the Government’s theory of conspiracy because without dependence and coordination the Government could not prove the “basic requirement that the components function as a unit, that they be put together to form a whole.” In re Insurance Brokerage Antitrust Litigation, 618 F.3d at 374. The lack of dependence and coordination was amply demonstrated by the Government’s own witnesses. Lizarah Matthews, for instance,

17 testified that Southside “It's not a gang. It’s a location. It's like where you're from.” (Tr. Trans. 674) (emphasis added). Similarly, Darvin Allen testified that Southside was “where I reside at and where people basically hanged out at.” (Tr. Trans. 1226). Nelson Gonzalez flat out explained that: It was a free-for-all. You had people that grew up on different blocks. You might sell drugs on your block; you might sell drugs on a different block. There was no structure. Q. And that's because, as we use the phrase or the word "gang," south side was not a gang in that sense. Right? A. No, there was no structure. Q. Every man for themselves? A. Yeah. Q. People weren't kicking back money to other people? You sell the drugs, you keep the money, that's how you did it? A. Who? Q. What? A. I didn't do it like that. I did me. They did them, I did me. (Tr. Trans. 1782) (emphasis added). Jerrod Brown testified that everyone in Southside “ran [their] own show “(Tr. Trans. 1984). Marquis Williams, like Nelson Gonzalez, testified that Southside was merely where he “grew up” and hung out; there were no leaders; Southside had no structure; it was not a gang; and that: it's possible that for somebody that can sell drugs in the south to not be a part of a south side gang because there really isn't a south side gang? A. Correct. (Tr. Trans 2206,2259, 2331) (emphasis added). Warren Pillgreen also reiterated that he “never labeled it as a south side gang ever. I've never labeled it that” and he merely “grew up there.” (Tr. Trans. 2799). Laquan Beatty also testified that the shootings he was involved with were personal matters. (Tr. Trans. 2906). And Cordaress Rogers testified that the drug dealing he engaged in was for his benefit and nobody else’s: Q. Okay. But I guess my question is, were you all in the same spot selling drugs together separately or together? You were separate. Right? A. Right. The profit would go into my pocket.... A. Yeah, they kept on saying was I in a gang, and I kept telling them I wasn't in a gang. Q. And that there was no gang? A. Right. Q. Right. You told the officers that there was no south side gang. Correct? A. I kept telling them that I wasn't in a gang. Q. Right, and that there was no south side gang? You were just a bunch of kids who grew up together and were selling drugs.

18 Right? A. This is what I was telling — yes. (Tr. Trans. 3523-24) (emphasis added).

There can be no conspiracy to conduct or participate in an enterprise’s affairs if the “enterprise” is nothing more than individuals “independently and without coordination, [who are] engaged in a pattern of crimes listed as RICO predicates.” Boyle, 556 U.S. at 947 n.4. That was “Southside.” Accordingly, Cruz’s conviction on Count 1 of the indictment should be reversed.

Finally, the third circuit violated Cruz’s Fifth Amendment Indictment Right in Violation of Stirone. Went the panel opinion justify affirmance of the RICO conspiracy convictions on the basis of evidence proving something quite different from what was charged in Count One. Cruz’s right to be tried on the indictment brought against him by the grand jury. Stirone v. United States, 80 S. Ct. 270, 361 U.S. 212, 4 L.Ed.2d 252 (1960).

In Stirone the offense proved at trial was not fully contained in the indictment, for trial evidence had "amended'' the indictment by broadening the possible bases for conviction from that which appeared in the indictment. As the Stirone Court said, the issue was "whether [Stirone] was convicted of an offense not charged in the indictment." 361 U.S., at 213, 80 S. Ct., at 271. Stirone, a union official, was indicted for and convicted of unlawfully interfering with interstate commerce in violation of the Hobbs Act. 18 U.S.C. § 1951. More specifically, the indictment charged that he had engaged in extortion that obstructed shipments of sand from outside Pennsylvania into that State, where it was to be used in the construction of a steel mill. At trial, however, the prosecution's proof of the required interference with interstate commerce went beyond the allegation of obstructed sand shipments. The prosecutor also attempted to prove that Stirone had obstructed the steel mill's eventual export of steel to surrounding states. Because the conviction might have been based on the evidence of obstructed steel exports, an element of an offense not alleged in the indictment, a unanimous

19 Supreme Court held that the indictment had been unconstitutionally "broadened:" The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here,... we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court’s admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error. (361 U.S., at 218-219, 80 S. Ct., at 273-274).

Under Stirone and United States v. Peel, 837 F.2d 975, 977-978 (11th Cir. 1988), the District Court is required to find that the prosecutor improperly broadened the indictment beyond that returned by the grand jury against Cruz, that that broadening of the indictment violated Cruz’s Fifth Amendment right to be tried only on a charge returned by a grand jury, and that the error in this case is per se reversible.

II. WHETHER UNITED STATES V. ROWE APPLIES TO CONSPIRACY CASES?

The jury did not return a special verdict indicating the specific amount of controlled substance for which Cruz was either personally responsible or that was reasonably foreseeable to him. Cruz claims that Alleyne v. United States, 570 U.S. 99 (2013); United States v. Rowe, 919 F.3d 752 (3d Cir. 2019); and United States v. Williams, No. 17-2111 (3 rd Cir. 2020) mandates this result. See also, United States v. Miller, 645 F. App'x 21 l(3d.Cir.2016) (In finding Crews guilty of conspiracy, the jury unanimously determined that the conspiracy involved five or more kilograms of cocaine and 280 grams or more of cocaine base. But, as Crews submits, and the Government concedes, the jury did not determine an exact amount of cocaine and cocaine base directly attributable to Crews himself. This lack of an individualized determination, the parties maintain, was error in light of Alleyne. We agree).

20 Because the evidence at trial was insufficient to establish that Cruz conspired with others in violation of 21 U.S.C. § 846, but even if there was enough evidence that he was involved in the conspiracy, there was not enough evidence as to specific amounts attributable to him under 21 U.S.C. § 841(b)(1)(A), as neither specific amounts were presented to the jury in relation to Cruz in the relevant count nor was any drug distribution acts completed that involved Cruz. It is respectfully submitted that it is the Court’s responsibility to conduct a searching and individualized inquiry into the circumstances surrounding each defendant’s involvement in the case. To ensure that the defendant’s sentence accurately reflects his role. Compare, Rosemond v. United States, 134 S. Ct. 1240 (2014) ("We also conclude that the jury's instructions given below were erroneous because they failed to require that the defendant knew in advanced that one of his cohorts would be armed.”); and United States v. Foster, 507 F.3d 233, 250- 51 (4th Cir. 2007) (“In other words, in order for the statutory maximums and mandatory minimums of § 841(b) to apply in a drug conspiracy case, the jury must determine that the threshold drug amount was reasonably foreseeable to the individual defendant”.)

That is of course what Congress intended and expected in enacting, and amending over the years, § 841. Cruz hopes that this Courts will restore coherence to the law by recognizing that this conclusion entails the further conclusion that the threshold quantities, and other factors defined in the subsections of § 841(b), are also elements of separate crimes. Drug type and quantity should not merely be "treated as" offense elements. They are, and always have been, such elements. In United States v. Vazquez. 271 F.3d 93, 107 (3d Cir. 2001), then-Chief Judge Becker, urging many of the same points made above, argued that it was time to re-examine the circuit courts' interpretation of § 841. Quoting Justice Frankfurter, he pointed out that "[wjisdom too often never comes, and so one ought not to reject it merely because it comes too late." Id. (quoting Henslee v. Union Planters Nat'l Bank Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting) (internal quotation marks omitted). Reexamination of these precedents is not, in fact, too late; it is merely overdue.

Anthony Rowe was charged in a one-count indictment with distribution and possession with intent to distribute 1000 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Rowe conceded that he distributed approximately 200 grams, so the trial focused on whether he had actually distributed 1000 grams or more. The jury returned a general verdict finding Rowe guilty of the offense in the amounts of both 1000 grams or more and 100 grams or more. Rowe argues that the

21 evidence was insufficient to convict because the Government did not prove that he distributed or possessed 1000 grams of heroin in a single unit, instead relying on evidence of multiple smaller distributions and possessions during the indictment period. He also challenges his sentence, arguing that the District Court relied on information lacking sufficient indicia of reliability to determine his offense level.

“We agree that the evidence was insufficient to support the 1000-gram verdict, ^/e will therefore vacate the judgment of conviction based on the 1000-gram verdict and remand to the District Court to enter a judgment of conviction based on the 100-gram verdict. Because this conclusion resolves Rowe's appeal of the judgment, we will not address his additional arguments concerning duplicity of the indictment and prosecutorial misconduct. Regarding Rowe's sentence, we will vacate and remand for re-sentencing with the instruction that the Government may not introduce additional evidence on drug quantity.”

United States v. Rowe, 919 F.3d 752, 756 (3d Cir. 2019).

The error is this: in determining the meaning of a controlling statute (§ 846), the opinion does not begin with (or even discuss) the statutory language but instead goes immediately to case law and general principles of conspiracy law.

In other words, as interpreted in Rowe, the Court should measure offense seriousness for conspiracy, as for the substantive offense, by the size of transaction committed or agreed to be committed at any one time. This is particularly so given that § 846 is a simple, common law conspiracy consisting of nothing but agreement, with no overt acts required. Salinas v. United States, 522 U.S. 52 (1997).

Under the panel‘s a textual proposal, it would be impossible to say what the punishment was for any § 846 violation at the moment the violation was complete. That cannot be correct.

Just as a conspiracy under 18 U.S.C. § 371 has a five-year maximum regardless of how many different offenses are agreed to be committed or how often, a violation of § 846 is punishable by reference to the type of —offense, the commission of which was the object of the ... conspiracy. This reading also resolves the utterly implausible aspect of the majority4 s interpretation, virtually un-administrable at a real jury trial, under which the maximum applicable penalty is determined by one (non-statutory) test, while the mandatory minimum is determined by another (equally non-statutory) rule.

22 Aggregation of drug quantities is a rule under the U.S. Sentencing Guidelines; see USSG § IB 1.3; United States v. Collado, 975 F.2d 985 (3d Cir. 1992). The vicarious liability of co-conspirators for substantive offenses committed in furtherance of the agreement is a common law rule pronounced by the Supreme Court, having nothing to do with sentencing law. See Pinkerton v. United States, 328 U.S. 640 (1946). Neither doctrine is incorporated into, or even alluded to, in any of the words of § 846.

The trial and sentencing record of this case demonstrates that none of the transactions (that is, the —offenses) committed or agreed to —involved] I (see § 841(b)(1)) amounts of drugs that exceeded the § 841(b)(1)(B) level. Yet the Cruz were sentenced as if they were liable for (b)(1)(A) violations. In other words, unless the government proved - which here, it certainly did not - that Cruz, Hernandez and their co-defendants agreed to distribute at least 280 grams of crack on any of one or more single occasions (and/or at least 5 kilograms of cocaine), the penalties applicable to their conspiracy convictions should have come within 21 U.S.C. § 841(b)(1)(B) and not within (b)(1)(A), and the sentences imposed (life imprisonment in the case of Cruz was illegal.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Rolando Cruz, Jr., pro-se

DATED: April 13th, 2021