No. 04-__________
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In The Supreme Court Of The United States
October Term, 2004
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Franklyn Liranzo,
Petitioner,
v.
United States,
Respondent,
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Petition For Writ Of Certiorari
To The United States Court Of Appeals For The First Circuit
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Petition For Writ Of Certiorari
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Dana Alan Curhan
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Counsel of Record for the Petitioner
Question Presented For Review
Whether the First Circuit Court of Appeals effectively lowered the standard of proof required for conviction to less than proof beyond a reasonable doubt by allowing a conviction to stand in circumstances where the government failed to disprove several reasonable alternative theories consistent with the petitioner's innocence.
On June 25, 2002, a jury sitting in the United States District Court for the District of Massachusetts convicted the petitioner Franklyn Liranzo, pursuant to 18 U.S.C. § 922(g)(1), of being a felon in possession of a firearm. The United States Court of Appeals for the First Circuit affirmed his conviction on September 30, 2004, rejecting his challenge to the sufficiency of the evidence. The petitioner respectfully prays for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit.
The opinion and judgment of the United States Court of Appeals for the First Circuit in United States v. Liranzo, --- F.3d --- (1st Cir. 2004) is reproduced in the Appendix.
The judgment of the United States Court of Appeals for the First Circuit upholding the District Court judgment was entered on September 30, 2004. This petition is filed within ninety (90) days of that date. The petitioner invokes this Court's jurisdiction under 28 U.S.C. § 1254(1).
18 U.S.C. § 922(g)(1) provides as follows:
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Constitutional Provision Involved
The Fifth Amendment to the United States Constitution provides as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A. Procedural History
For purposes of this petition, the petitioner will adopt the brief recitation of the procedural history set forth in the opinion of the First Circuit Court of Appeals:
On October 21, 2001, a grand jury indicted Franklyn Liranzo with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Footnote omitted]. During his jury trial, Liranzo's defense focused on attacking the credibility of and procedures used by the arresting officers. He did not testify. The jury found him guilty. Liranzo was sentenced to 108 months imprisonment, a three-year term of supervised release, and a special assessment of $100. Judgment was entered on November 25, 2002, and the defendant timely appealed.
United States v. Liranzo, --- F.3d at ---. On September 30, 2004, the First Circuit (Lynch, J.) issued a decision affirming the petitioner's conviction.
B. Facts
The petitioner will also adopt the recitation of facts set forth in the opinion of the First Circuit Court of Appeals:
In the fall of 2001, Massachusetts State Police Troopers Thomas McCarthy and Ernest Doherty, members of a police task force targeting gang activity, kept watch on the home of a known gang member on Farnham Street in Lawrence, Massachusetts. On September 4, 2001, at approximately 10:40 PM, the troopers saw a green Nissan Maxima idling in front of the driveway of the residence. Two people entered the Nissan and then, just as the troopers pulled alongside the car, the Nissan quickly drove away with four occupants inside. Troopers McCarthy and Doherty followed the Nissan in an unmarked police car. They noticed that the Nissan's rear license plate was only hanging by a single screw, and they watched the Nissan go through an intersection with stop signs without coming to a complete stop. They informed Sergeant Francis Hughes, who was also in the general area in a separate unmarked police car, that they intended to stop the green Nissan for those violations. As McCarthy and Doherty caught up to the Nissan, they observed the three passengers looking out the back window of the car to watch the troopers' car.
The Nissan turned into Shawsheen Road, a well-lit road next to a deserted park. The troopers' cruiser followed. McCarthy activated the cruiser's emergency lights and the siren to get the Nissan to pull over. After both cars stopped, the officers got out of the car, but waited before they approached the Nissan. They observed the occupants of the car moving around and looking back at the troopers. Meanwhile, Hughes approached the stopped Nissan from the opposite direction on Shawsheen Road. As Hughes stopped his car to sandwich the Nissan between the two police cruisers, his headlights illuminated the inside of the Nissan.
Hughes got out of his cruiser with a flashlight and approached the Nissan from the front. Concerned that the driver of the Nissan might attempt to run him down with the car, he carefully observed the two front occupants of the car and paid particular attention to their hands partly because “[h]ands are the things that can produce weapons.” The driver and Liranzo, the front passenger, both were looking through the rear window in the direction from which McCarthy and Doherty would be approaching. They did not move around inside the car and there was no indication that Liranzo knew Hughes was approaching from the front.
When Hughes was about eight feet from the Nissan, he shined his flashlight into the interior of the car. At that moment, Liranzo's head “snapped” around, his eyes widened, and he made direct eye contact with Hughes for the first time. Hughes testified:
As soon as [Liranzo] made eye contact with me, I observed his front upper torso move forward. At this point, his right shoulder was slightly cocked back. At this point, the front of his body came forward, his right shoulder came forward, his head lowered and he made a reaching movement underneath the seat. His head was now slightly below the dashboard. I could still see his eyes.
Liranzo's movement was “of great concern” to Hughes because “[b]ased on [his] training and [his] experience in car stops, that movement was consistent with a movement where [Liranzo] was either reaching for something, to grab something or either get rid of something.”
In response to Liranzo's movement, Hughes yelled “at the top of [his] lungs” for Liranzo and the other occupants of the car to raise their hands. Liranzo and the three others complied and raised their hands.
As the three officers approached the car, they smelled burnt marijuana. Officer Doherty also saw several open beer bottles. Of the four men in the car, only Liranzo protested the stop and demanded to know why they had been pulled over.
The officers conducted pat-frisks of the occupants for weapons and contraband. Marijuana was found in the pocket of one of the occupants (not Liranzo). Hughes immediately went back to the front passenger seat of the car to search the area into which Liranzo had been reaching. He found a Llama .380 semi-automatic handgun containing one bullet. The gun was propped up between the seat and the floor at a 45-degree angle, leaning on a hump of carpet and partly on the undercarriage of the front seat.
Id. at ---.
C. Basis For Federal Jurisdiction In The Court Below
The Appeals Court had jurisdiction over the petitioner's appeal pursuant to 28 U.S.C. § 1291, which vests in the United States Courts of Appeals jurisdiction of appeals from all final decisions of the District Court.
Reasons For Granting The Writ
I. By Allowing A Conviction To Stand In Circumstances Where There Were Reasonable Theories Consistent With The Petitioner's Innocence, The First Circuit Effectively Lowered The Standard Of Proof Required For Conviction And Allowed A Conviction On Less Than Proof Beyond A Reasonable Doubt
At the close of the government's case, and again at the conclusion of all of the evidence, the petitioner moved for entry of a judgment of acquittal, arguing that the evidence failed to establish that he “knowingly” possessed the firearm at issue. The judge allowed the case to go to the jury and ultimately denied the motion. After trial, the petitioner moved for a new trial, again challenging the sufficiency of the evidence. The judge denied that motion as well. The petitioner appealed his conviction to the United States Court of Appeals for the First Circuit. On appeal, he argued “that in order to meet the burden, the government must foreclose all reasonable alternative hypotheses inconsistent with [his] possession of the firearm. On the facts, [he claimed] that the evidence is consistent with multiple theories: the gun could have been put there by one of the passengers in the rear seat, or by the driver of the car, or even have been left there before the car stopped.” United States v. Liranzo, --- F.3d at ---. The Court of Appeals rejected this argument, concluding that as long as the evidence supported one theory consistent with the petitioner's guilt, the failure to eliminate other reasonable theories was not fatal to the government's case. The petitioner contends, as he did in the courts below, that while the government does not have to eliminate every possible theory consistent with his innocence, the prosecution must eliminate alternative scenarios that are rational, plausible and inconsistent with his guilt. By allowing the petitioner's conviction to stand in circumstances where there were reasonable theories consistent with his innocence, the First Circuit effectively lowered the standard of proof required for conviction and allowed a guilty finding on less than proof beyond a reasonable doubt. The lowering of the government's burden violated the petitioner's right to due process in this case and will violate the due process rights of all criminal defendants convicted under these lesser standards. Certiorari is appropriate in these circumstances.
In rejecting the petitioner's sufficiency challenge, the First Circuit noted that his “legal theory is incorrect: '[T]he government need not present evidence that precludes every reasonable hypothesis inconsistent with guilt in order to sustain a conviction. Rather, the jury is at liberty to select freely among a variety of reasonable alternative constructions of the evidence.'” United States v. Liranzo, --- F.3d at ---, quoting United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994) (citations omitted). Further, the First Circuit held that “[t]he reviewing court 'must uphold any verdict that is “supported by a plausible rendition of the record.”'” Id., quoting United States v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) and United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).
The petitioner agrees that the government need not disprove every theoretical possibility that is consistent with innocence. United States v. Jones, 16 F.3d 487, 491 (2nd Cir. 1994). He contends, however, that the standards articulated by the First Circuit in his case, as well as by several other circuits, impermissibly lower the level of proof required for conviction. Specifically, the failure to require that the government disprove reasonable theories consistent with innocence permits a jury to convict in circumstances where-viewed objectively-there is a reasonable doubt as to the defendant's guilt. In contrast with other circuit courts, even where the evidence is equally consistent with guilt or innocence, the principles articulated by the First Circuit permit the jury to choose among alternative theories. Contrast United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1194 (9th Cir. 2000) (where explanations equally plausible, government failed to demonstrate guilt beyond a reasonable doubt); United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999) (if the evidence gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, proof fails to establish guilt beyond a reasonable doubt); United States v. Dunn, 564 F.2d 348, 356 (9th Cir. 1977) (rule prohibiting conviction where equally plausible inferences support guilt and innocence is one of the traditional foundations of our nation's system of criminal justice); United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971).
Moreover, by requiring the reviewing court to defer to the jury's judgment as long as there is a plausible theory supporting the verdict, the First Circuit effectively eliminated any meaningful review of the sufficiency of the evidence.
In considering lesser standards than proof beyond a reasonable doubt, appellate courts have held that the failure to eliminate reasonable alternative theories renders the evidence insufficient as a matter of law. See Ogelsby v. General Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (holding that expert's testimony did not have sufficient indicia of reliability under Daubert where the expert's theory did not, “as a matter of logic, ... eliminate other equally plausible causes” of the incident in question); Elliott v. Michael James, Inc., 507 F.2d 1179, 1184 (D.C.Cir. 1974) (stating that while plaintiff need not disprove all other possible causes for injury, plaintiff must present evidence upon which reasonable jury could conclude that plaintiff's theory was more likely than not what actually occurred). By lowering the threshold below that required to meet even a civil standard, the First Circuit acted contrary to clearly established federal law, as recognized by this Court. Moreover, as noted above, the holding in this case is inconsistent with holdings in a number of other federal circuits, and this split in the circuits has resulted in similarly situated persons receiving disparate treatment with vastly different results. See United States v. Gracidas-Ulibarry, 231 F.3d at 1194; United States v. Reveles, 190 F.3d at 686.
Due process principles “'protect[] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'” Francis v. Franklin, 471 U.S. 307, 313 (1985), quoting In re Winship, 397 U.S. 358, 364 (1970). See Jackson v. Virginia, 443 U.S. 307, 319 (1979), In this case, the petitioner argued below, as he does now, that the evidence failed to establish his guilt beyond a reasonable doubt. Where the analysis adopted by the First Circuit permits verdicts to stand even in the absence of the required quantum of proof, it fails to pass constitutional muster.
II. Conclusion
For the reasons stated above, the writ should be granted and the case set down for argument.
Respectfully submitted,
Franklyn Liranzo,
By his attorney,
Dana A. Curhan
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
Counsel of Record for the Petitioner
Assisting on the petition:
Brad Bennion, Legal Intern
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