OPINION BELOW 1

 JURISDICTION 2

 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

 STATEMENT OF THE CASE 3

 REASONS FOR GRANTING THE PETITION 11

 CONCLUSION 15
 

 INDEX OF APPENDICES

APPENDIX A: Decision of the Eleventh Circuit Court of Appeals

APPENDIX B: Judgment and Commitment in the case of Rodrigo Cortes-Ramirez 


APPENDIX C: Judgment and Commitment in the case of Antonio Garcia-Rojas 


APPENDIX D: Transcript of Oral Order of District Court Denying Defendant's Request for Jury Nullification Instruction, United States v. Cortes-Ramirez, D.C. Dkt. No. 96-133-Cr-J-99S 


APPENDIX E: Transcript of Oral Order of District Court Denying Defendant's Request for Jury Nullification Instruction, United States v. Garcia-Rojas, D.C. Dkt. No. 96-109-Cr-J-99S

TABLE OF AUTHORITIES

CASES

Georgia v. Bailsford, 3 U.S. 1 (1794) 11, 12

Horning v. District of Columbia, 254 U.S. 135 (1920) 13

Sparf and Hansen v. United States, 156 U.S. 51 (1895) 12, 13

United States v. Gaudin, 115 S.Ct. 2310 (1995) 13

United States v. Moylan, 417 F.2d 398 (4th Cir. 1969) 13

United States v. Trujillo, 714 F.2d 102 (11th Cir. 1983) 13

Williams v. Florida, 399 U.S. 78 (1970) 14
 
 

STATUTES

18 U.S.C. § 1546(a) 3

28 U.S.C. § 1291 3
 

UNITED STATES CONSTITUTION

U.S. Const. Amendment VI 11, 14

U.S. Const. Art. III, § 2 11, 13
 

OTHER

Alschuler & Deiss, A Brief History of Criminal Jury in the United States, 61 U.Chi.L. 867

11,  12

Articles of Impeachment, Art. I, § 3 12

Jeffrey Abramson, We, The Jury (1994) 11

Report of the Trial of the Hon. Samuel Chase App 3 (Butler and Keating, 1805) 12

The Civil Jury, 110 Harv. L. Rev. 1408 11

Wroth & Zobel, editors, 1 Legal Papers of John Adams 230 11

The petitioners, Rodrigo Cortes-Ramirez and Antonio Garcia-Rojas, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eleventh Circuit, entered in the above entitled proceeding on April 13, 1998.

OPINION BELOW 


The opinion of the Court of Appeals for the Eleventh Circuit (App., infra, 1a-2a) is unpublished. 


JURISDICTION 


The petitioners, Rodrigo Cortes-Ramirez and Antonio Garcia-Rojas, were prosecuted by a one-count indictment in the United States District Court for the Middle District of Florida, for violation of 18 U.S.C. § 1546(a).  They appealed their convictions to the Eleventh Circuit Court of Appeals invoking the court's jurisdiction under Title 28, U.S.C. § 1291.  Their convictions were affirmed by an order entered April 13, 1998. 


The jurisdiction of this Court to review the judgment of the Eleventh Circuit Court of Appeals is invoked under Title 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 


Article III, Section 2, Clause 3 of the United States Constitution provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ... " 


The Sixth Amendment to the United States Constitution provides that
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;  to be confronted with the witnesses against him;  to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
 

STATEMENT OF THE CASE 


1. Course of Proceedings and Disposition in the Court Below 


Rodrigo Cortes-Ramirez and Antonio Garcia-Rojas, the Petitioners in this consolidated petition for writ of certiorari, were indicted in separate, unrelated cases by a Middle District of Florida Grand Jury on August 22, 1996 and August 7, 1996, respectively.  Both were charged with a single violation of 18 U.S.C. § 1546(a), possession of a counterfeit alien registration card.
Mr. Cortes-Ramirez and Mr. Garcia-Rojas proceeded separately to trial and were found guilty, the former by a jury verdict and the latter by the court, Mr. Garcia-Rojas having waived his right to a jury trial only at the close of all evidence.  Both were sentenced to time served, plus three years of supervised release.  Timely notices of appeal pursuant to Title 28 U.S.C. § 1291 were filed in both cases challenging the district court's denial of their request to argue and have the jury instructed on jury pardon or jury nullification.  On motion by counsel for appellants, the Eleventh Circuit Court of Appeals ordered their appeals consolidated on March 25, 1997. The Eleventh Circuit affirmed on April 13, 1998.  This consolidated petition raises the same challenge.

2. Statement of Facts


Petitioners Cortes-Ramirez, aged 32, and Garcia-Rojas, 29, are citizens and natives of Mexico.  Although their cases are unrelated, they present factual similarities.  Both entered the United States illegally around the beginning of this decade.  Mr. Garcia-Rojas has a second-grade education, Mr. Cortes-Ramirez a fifth grade education.  Both worked primarily as migrant farm laborers during their time in the United States; both sent a portion of their monthly income back to their families in Mexico.  Neither had a criminal record.  Both were arrested by the United States Border Patrol at the Greyhound bus station in Jacksonville, Florida, and both were found to be in possession of a false alien registration form. 


Although arrested on separate days in unrelated cases, Appellants Cortes-Ramirez and Garcia-Rojas were tried in consecutive trials before the same United States District Judge and with the same counsel for the government and the defense.  A jury was chosen for Mr. Cortes-Ramirez's case, then for Mr. Garcia-Rojas's case;  Mr. Garcia-Rojas was tried first, and then Mr. Cortes-Ramirez was tried with the jury he had previously chosen. 


During the jury selection for Mr. Cortes-Ramirez's trial, the district court asked the routine question of the potential jurors concerning whether criminal charges had been filed against them or against a close relative or a family friend.  The following colloquy then took place between the court and a venireman named John Harrington: 


VENIREMAN HARRINGTON: My cousin and business partner was arrested and charged with marijuana possession, cocaine possession and pulled two sentences, federal and state.

THE COURT: When was that?

VENIREMAN HARRINGTON: Hum, about seven years ago.

THE COURT: Were you involved in the case?

VENIREMAN HARRINGTON: Oh, no.

THE COURT: Would that affect your ability to be a fair and impartial juror?

VENIREMAN HARRINGTON: Well, I guess not.  I'm skeptical of the court system anyway.

THE COURT: Tell us a little bit about your concerns.

VENIREMAN HARRINGTON: Well, I mean all you have to do is read the newspaper.  You know, evidence gets planted on people all the time.  You know, there's corruption throughout the government.  So, yes, I do have, you know, the court system has a lot of problems.

THE COURT: Would you sit and listen to the evidence in the case and then from that evidence make a determination as to what the facts are in the case, and if there's a defense of planted evidence, you can consider that, if there isn't?  I mean it's up for to you to decide the facts.  I have no idea as to what happened in this case, and as I mentioned before, the government has the burden of proof.  What the government must prove in this case are the allegations I read to you, that is on August 20th of this year, at Jacksonville, Florida, this defendant, Mr. Cortes, knowingly used, possessed, obtained or accepted and received an alien registration card in the name of Rodrigo Cortes knowing at the time that the card was forged, counterfeited, altered or falsely made.  That's what the government would have to prove beyond a reasonable doubt, and it would be up to you to decide what the facts are in the case.  I'll instruct you on what the law is that you're to follow, and would you sit and calmly and dispassionately discuss the case?

VENIREMAN HARRINGTON: Yes, I can listen to the evidence, but I do feel that both parties need to understand that I do, I am suspicious of law enforcement and of the judicial system, and, hum, if they choose to have me on the jury, then I will listen to the evidence and act accordingly.

THE COURT: And your suspicion is that you think the government ought to be able to prove the case beyond a reasonable doubt, and if they don't, the defendant should be proved not guilty?

VENIREMAN HARRINGTON: And in a manner and with evidence that's clearly untainted, without entrapment, and that would have to be entrapment in my mind and not necessarily by the law because the laws have gotten skewed to the point where, you know, entrapment by law is ridiculous.

THE COURT: Well, if this case involves entrapment, and I don't know whether it does or it doesn't, if I instruct you on what the law of entrapment is, will you follow that law?

VENIREMAN HARRINGTON: I don't know.

THE COURT: What is the hesitancy in your mind?

VENIREMAN HARRINGTON: Hum, well, I read not too long ago of a case where, I think it was a crack cocaine case, where the officers were buying the crack, giving it to the person, letting them smoke it in the car and then arresting them.

THE COURT: This was the young lady up in Fernandina Beach?

VENIREMAN HARRINGTON: Yes, it was over here, and to me that's just, that's just out of this world.

THE COURT: And do you understand that in our system of justice, that there is such a thing as an entrapment defense, and that's why we have jurors so that we don't have law enforcement that runs amuck?

VENIREMAN HARRINGTON: Yes.

THE COURT: And that the burden, as I explained it to you, is on the prosecutor to prove beyond a reasonable doubt the charges, and if you believe the evidence in the case is tainted, then your job as a juror is to find the defendant not guilty?

VENIREMAN HARRINGTON: Yes, sir.

THE COURT: The defendant doesn't have to prove anything.  The defendant doesn't have to put on one stitch of evidence.  You just sit and listen and from listening to one side, if you think that the government has not established what it is that it has to establish under the law, then you're obligated to vote not guilty.

Is that what you would do?

VENIREMAN HARRINGTON: Well, like I said, I don't know if I would vote under -- I don't know if I would vote under the law or under my own conscience.

THE COURT: Well, unfortunately, what you have to do is follow the law because if we had jurors who followed their own conscience, then they wouldn't be deciding the same thing.

MR. KENT [Counsel for Defendant]: Judge, may we approach the bench?

THE COURT: Yes.

(At the sidebar.)

MR KENT: Judge, I'm remembering the motion that I made in our last alien case where I asked the Court for permission to argue jury nullification.  I was not intending to make a pretrial motion in this case, but I believe that under our Constitution that the jurors do have the right to vote their conscience and to disregard the Court's instructions on the law, and I think it's error to tell the jurors, as you just have, that they're not permitted to follow their conscience but that they must follow the law as you instruct them.  I think it's constitutional error.  I believe that under the Sixth and Fifth and Ninth Amendments that the defendant has a right to a jury that can exercise its conscience, and I'd ask the Court to instruct to that effect.

THE COURT: I'll deny your request.

The Court later gave the following instruction to the prospective jurors: 


THE COURT: Okay.  Now, with respect to this particular case, and particularly as to Mr. Harrington, I will instruct you on the law that you must follow in this particular case.  Regardless of what you think the law is or regardless of what you think the law ought to be, it would be a violation of your sworn duty as jurors to base your verdict on any other view of the law than the one that I give you, just as it would be a violation of your duty as jurors to base your verdict on any other facts other than on the evidence that's presented in this particular case.
Are there any of you, including Mr. Harrington, who could not follow the facts of the case based upon what you hear and what is presented in this courtroom and on the instructions that I give you as to what the law is in this particular case?  Are there any of you who couldn't do that, including Mr. Harrington? 


Could you do that?

VENIREMAN HARRINGTON: Yes, sir, I think so.

A jury was then chosen for Mr. Garcia-Rojas's trial.  During  jury selection the court inquired of the prospective jurors: 


Now, are there any of you in the courtroom right now, if you were selected as a juror, who would not base their verdict upon the evidence as it's presented in this courtroom and the law that I instruct you on?

Mr. Garcia-Rojas's trial commenced immediately thereafter.  Before the presentation of evidence, however, counsel for Mr. Garcia-Rojas repeated his request for a jury nullification instruction: 


MR. KENT: But I meant to ask you again, and if I could sort of do it pro forma, I know your position, but I wanted to ask you for the jury nullification instruction that I did in the Del Cid case.  I'd ask the Court's permission or liberty, and if we could later, I could file a copy with the Court of the same instruction I requested.

THE COURT: Sure.  Do you want to bring that in in your opening statement or just save it?

MR. GALLAGHER [Counsel for the United States]:  Judge, I think we filed a Motion in Limine on that.

THE COURT: I know.  Well, the jury nullification argument that you want to make is the sympathy to poor people coming to this country to make money to send home to take care of their family.

MR. KENT: Give me your poor, your downtrodden.  I guess we withdrew the offer.

THE COURT: And I ruled in the Del Cid case that that's not the law, that the law in this circuit is clear and you want to ask the Supreme Court to consider the matter, so it's preserved in the record.

MR. KENT: Judge, we really have a wonderful case for this jury nullification argument here, because I thought Mr. Harrington was really eloquent in a number of ways because here we've actually gotten a dialogue between the Court and the jury venire and an actual juror where a juror in effect is telling the Court he wants to vote his conscience, which may override the law.

THE COURT: Well, I think you need to get the right case.  Harrington wasn't one of the prospective jurors in the Garcia case.  He was in the case before [that is, the Cortes-Ramirez case].

MR. KENT: Right, he's in court -- but, I mean, that was -- I'm going to move to supplement the record on my appeal, God forbid we should get to that point, and we probably won't, but if we did, so that that colloquy is part of our record.

MR. GALLAGHER: Judge, I think though, if I'm not right, that Mr. Kent said he did finally come around and he shouldn't be struck for challenge, that he finally agreed that he would follow the rules.

MR. KENT: But if I could, while we're waiting for the jury, Judge, I thought he was eloquent in a number of ways, and one of them is this. 


From what I've read about the law of nullification, how it's evolved, at the time the constitution was adopted, it was the practice in the colonies that juries were told or could be told of their power to nullify, and this is a practice which prohibition of that sort of instruction evolved gradually and didn't really develop until the middle of the nineteenth century, and it's an example, if there ever was one, of what the conservatives complain about, of judge-made law because the judges in this country started developing the theory this theory that you couldn't instruct the jury on nullification, and their stated reason was that times have changed, circumstances historically are different.  We, the people, now are the government and so it would be wrong to tell the jury that they could override the law that we, the people, have made as opposed to the revolutionary circumstances of resistance at the time of the adoption of the Constitution. 


Whereas, Mr. Harrington here stood up -- and, of course, we've gone full cycle again; it's the time of militias and bombings of federal buildings -- and Mr. Harrington stood up and said that I, like many people, no longer trust the government, and so he has stated, he has articulated the rationale that the founders apparently shared at the time the Constitution was adopted of why you should be able to argue nullification to a jury. 


So that's why I think this is such a wonderful case for the concept, plus, of course, the facts and circumstances of the charge which will come out in the evidence.

MR. GALLAGHER: Judge, we filed a memorandum of law regarding 404(b) materials with respect to a Social Security card.

THE COURT: Well, let me handle this jury nullification thing first.

MR. GALLAGHER: Okay.

THE COURT: Do you want to be heard at all on that?

MR. GALLAGHER: No, your honor.

THE COURT: Okay.  I'm going to deny the request and prohibit the defendant from arguing the jury nullification issue until such time as the Supreme Court syas that it is a legitimate argument.  My understanding of the law in this circuit is that it is not.

Mr. Garcia-Rojas's defense at trial was that he did not know the green card in his possession was false.  On taking the witness stand, however, and on direct examination, he admitted that he did in fact know it was false and that he was guilty.  He thereafter agreed to waive his right to be tried further by a jury and allowed the court to adjudicate him guilty based on the evidence already presented. 


Mr. Cortes-Ramirez's trial then followed.  Before the presentation of evidence, counsel for Mr. Cortes-Ramirez repeated his request for a jury nullification instruction and to be allowed to argue nullification to the jury.  When this was denied, he asked to be allowed to supplement the record with an instruction given in a previous case to which the Court responded: 


THE COURT: Right, and so the record is clear, what you want to do is you want to argue to the jury that there may be reasons why they should find the defendant not guilty and not follow the instructions of the Court, for example, he comes from a poor family in Latin America and needs to be up here to take care of them or else a sister is going to die or the baby is going to die.

MR. KENT: The particular instruction I proposed in the Del Cid case --

THE COURT: Yes, which we already have.  That would be fine.

Before the jury retired to deliberate, the court instructed it that
You must also follow the law as I explain it to you, whether you agree with that law or not, and you must follow all of my instructions as a whole.  You may not single out or disregard any of the Court's instructions on the law.

The jury found Mr. Cortes-Ramirez guilty as charged.

REASONS FOR GRANTING THE PETITION


I. The Guarantee of Trial by Jury Contained in Article III and the Sixth Amendment to the United States Constitution Incorporates Within it the Right to Inform the Jury of its Power to Pardon the Defendant or Nullify the Court's Instructions on the Law.

The guarantee of trial by jury contained in Article III and the Sixth Amendment to the United States Constitution incorporates within the guarantee, the right to inform the jury of its power to pardon the defendant or nullify the judge's instructions on the law.  At the time of the adoption of the Constitution and Bill of Rights it was well established that the right to trial by jury incorporated these elements.  In a notable example, Andrew Hamilton declared in 1735 in the trial of John Peter Zenger that juries "have the right . . . to determine both the law and the facts," and he insisted that this authority was "beyond all dispute."  In 1771, John Adams called it "an Absurdity to suppose that the Law would oblige [jurors] to find a Verdict according to the direction of the Court, against their own Opinion, Judgment, and Conscience."  In the second of the three jury trials conducted by the United States Supreme Court, Chief Justice John Jay instructed the jury in Georgia v. Bailsford, 3 U.S. 1 (1794), "It is presumed that juries are the best judges of the facts; it is, on the other hand, presumable, that the court are the best judges of the law . . . . It must be observed, that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."  3 U.S. at 4 (emphasis supplied).  In the trial of Aaron Burr in 1807, Chief Justice John Marshall charged the jury "The jury have now heard the opinions of the court on the law of the case.  They will apply that law to the facts and will find a verdict of guilty or not guilty as their own consciences may direct."
Supreme Court Justice Samuel Chase was impeached in 1805 by the House of Representatives and tried by the Senate upon charges, one of which was that he had attempted to "wrest from the jury their indisputable right to hear argument, and determine upon the question of the law, as well as on the question of fact, involved in the verdict they are required to give." This continued to be the accepted power of the jury at least until 1851 at which time at least nine states had declared in constitution or statute the authority of juries to decide questions of law: Connecticut, Georgia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Pennsylvania and Tennessee.  In at least six additional states, Maine, New Hampshire, New York, Rhode Island, Vermont and Virginia, the authority of jurors to resolve legal questions had been established by judicial decision or practice.
Judges, however, began to take this right from the people in the middle nineteenth century  culminating in 1895 with the Supreme Court's decision in Sparf and Hansen v. United States.  Sparf decided that it was proper for the judge to instruct the jury on the law, but the opinion of Justice Harlan, which drew dissent from two justices, is noted for its language that: 


Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. ....  And if it be true that a jury in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law ... But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. ....  We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.

156 U.S. at 101.

Following Sparf, the Supreme Court later held that although the jury has the power to bring a verdict "in the teeth of both law and the facts," Horning v. District of Columbia, 254 U.S. 135, 138 (1920), its duty is to apply the law as interpreted and instructed by the court.  In 1995 in United States v. Gaudin, the Supreme Court stated that Sparf held that the "judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." 115 S.Ct. at 2314. 


The Eleventh Circuit has attempted no independent analysis of the jury nullification issue.  In United States v. Trujillo, 714 F.2d 102 (11th Cir. 1983), the court simply adopted the holding of its sister circuits that had considered the issue.  Of the opinions of other circuits, the most enlightening is United States v. Moylan, 417 F.2d 398 (4th Cir. 1969).  Moylan is good for a recital of the history of the jury pardon right, but even Moylan lacks any reasoned analysis of the issue.


It is our position that the proper analysis of the right to trial by jury found in Article III and the Sixth Amendment requires the court to determine the historical meaning and significance of the right at the time of the adoption of the provisions and that that must inform a minimal understanding of the content of the right.  Because the historical meaning is beyond dispute that the jury was entitled to be informed and to hear argument of counsel on its power to pardon or nullify the instructions of the court on the law, we argue that must similarly be a fundamental characteristic of the constitutional right to trial by jury.  Although we disagree with the majority's approach to Sixth Amendment analysis in Williams v. Florida, 399 U.S. 78, 100 (1970), we argue that even under the Williams paradigm the Sixth Amendment right includes the right to argue jury nullification, because jury nullification was an aspect of the historical right that fulfilled its fundamental purpose, "to prevent oppression by the Government." 


In the two cases consolidated below the defendants were both illegal Mexican aliens charged with possession of counterfeit documents.  There was no factual defense to the charge, and indeed one defendant took the stand and admitted under oath in response to his own counsel's questioning that he knowingly possessed the counterfeit documents.  Given the judge's instruction on the law, including his instruction that the jurors must follow the law as instructed by him, the defendants effectively had their right to trial by jury taken from them, for the jury had nothing more to do than enter the judgment that had been in effect directed by the court in favor of the government.  On the other hand, each defendant had strong personal equities in mitigation of the offense, which if presented and argued to the jury, along with an instruction from the court as requested by counsel that the jury had the authority to disregard the law and pardon the defendants,  would likely have resulted in a jury pardon.  These cases are classic cases that called out for a jury pardon to prevent oppression by the government.  These two young men had escaped third world poverty to come to the United States, the land of hope and the beacon to the dispossessed the world over, to work and earn money to send home to their impoverished families, and whose only "crime" was the possession of counterfeit documents necessary to allow them to hold jobs and to work and earn an honest living.

CONCLUSION 


The petition for a writ of certiorari should be granted.

Respectfully submitted,
 
 
 

 ______________________________
William M. Kent
Assistant Federal Public Defender
Florida Bar No. 0260738
200 West Forsyth Street, Suite 1240
Jacksonville, Florida 32202
(904) 232-3039/Fax (904) 232-1937

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