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.