UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO.99-1276

FREDERIC W. BERTHOFF

Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

Respondent-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

HONORABLE WILLIAM YOUNG, J. PRESIDING

APPELLANT FREDERIC W. BERTHOFF'S OPENING BRIEF

FURTHER PROCEEDINGS

BOURBEAU & BONILLA

Michael C. Bourbeau, Esq.

BBO # 545908

21 Union Street

Boston, MA 02l08

(617) 722-9292

Attorneys for Petitioner-Appellant

FREDERIC W. BERTHOFF

TABLE OF CONTENTS

Page

Table of Authorities . . . . . . . . . . . . . . . . ii

Statement of Jurisdiction . . . . . . . . . . . . . . 1

Issues Presented . . . . . . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . .	2

Statement of Facts . . . . . . . . . . . . . . . . . 4

Standard of Review . . . . . . . . . . . . . . . . .	7

Summary of Argument . . . . . . . . . . . . . . . . . 7

Argument

I. Whether Appellant was denied his Sixth Amendment

right to trial by jury by the disparate sentencing

of co-defendants who plead guilty prior to trial

compared to those defendants who lose at trial?........ 8

II. Whether Apprendi applies retroactively to

cases on collateral review with respect to

first 28 U.S.C. § 2255 or 2254 petitions?............. 22

Conclusion . . . . . . . . . . . . . . . . . . . . . 27

Compliance with Formatting . . . . . . . . . . . . . 27

i

Table of Authorities

Cases	Page

Apprendi v. New Jersey, 530 U.S.466(2000)...1,2,4,8,22,25,26,27 Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)..22,23,24

Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978)....... 9,12

Brady v. United States, 397 U.S. 742, 25 L. Ed.

2d 747, 90 S. Ct. 1463 (1970)............................ 10

Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 36 L. Ed.

2d 714, 93 S. Ct. 1977 (1973)..........................11,13,21

Corbitt v. New Jersey, 439 U.S. 212,, 58 L. Ed.

2d 466, 99 S. Ct. 492 (1978)...........................10,20,21

Forty-Estremera v. United States, Dkt. No. 01-2337,

(November 21, 2001)...................................... 4

Gregg v. Georgia, 428 U.S. 153 (1976))................... 21

Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000)............	25

North Carolina v. Pearce, 395 U.S. 711 (1969)............ 9,21

Roberts v. United States, 445 U.S. 552, 63 L. Ed.

2d 622, 100 S. Ct. 1358 (1980)........................... 14

Sawyer v. Smith, 497 U.S. 227, 242 (1990)............... 26,27

Shapiro v. Thompson, 394 U.S. 618 (1969................ 11

Shelton v. Tucker, 364 U.S. 479 ( )...................... 20

Sullivan v. Louisiana, 508 U. S. 275 (1993).............. 26

Teague v.Lane, 489 U.S. 288 (1989).......................25,26 Tyler v. Cain , 121 S. Ct. 2478 (2001)...................23,24

United States v. Aguilar-Aranceta, 957 F.2d 18

(1st Cir. 1992).......................................... 7

United States v. Baltas, 236 F.3d 27 (1st Cir. 2001)...... 16

United States v. Berthoff, 140 F.Supp.2d 50

(D.C.Mass 2001)........................4,6,9,13,14,15,17,18,19

United States v. DeLeón Ruiz, 47 F.3d 452(1st Cir. 1995). 10

United States v. DiPietro, 936 F.2d 6 (1st Cir. 1992).... 7

United States v. Disanto, 86 F.3d 1238 (1st Cir. 1996).... 7

United States v. Frazier, 971 F.2d 1076 (4th Cir.1992)....10,12

United States v. Gaudin, 515 U. S. 506(1995)............. 26

United States v. Jackson , 390 U.S. 570(1968)............ 9,19

United States v.Jones, 934 F.2d 1199(11th Cir. 1991)...... 10

United States v. Klotz 943 F.2d 707 (7th Cir.1991)..... 15

United States v. Long, 823 F.2d 1209 (7th Cir. 1987).....	15

United States v. Mazzaferro, 865 F.2d 450(1st Cir. 1989).. 9

United States v. Moss, 252 F.3d 993 (8th Cir. 2001)...... 25

United States v. Muññoz, 36 F.3d 1229(1st Cir. 1994)..... 10

United States v. Neuhausser, 241 F.3d 460(6th Cir. 2001). 22

ii

Cases	Page

United States v. Paz Uribe, 891 F.2d 396 (1st Cir. 1989). 12

United States v. Robel, 389 U.S. 258 (1967)............... 20

United States v. Rodriguez, 162 F.3d 135(1st Cir.1998) 13,14,20

United States v. Sanders, 247 F.3d 139(4th Cir. 2001).... 25

United States v. Turner, 864 F.2d 1394(7th Cir. 1989).... 15

United States v. Turner, 267 F.3d 225,228 (3rd Cir. 2001). 24

United States v. Wright, 873 F.2d 437 (1st Cir. 1989).... 18

Statutes, Rules and Constitutional References

United States Constitution, Sixth Amendment..............	8

F.R.Cr.P., Rule 11....................................... 9

Fed. R. Crim. P. 11(e)(1)................................ 12

Fed. R. Crim. P. 11(e)(1)(B)............................. 18

Fed. R. Crim. P. 11(e)(1)©)............................. 18

Fed. R. Crim. P. 11(e)(2)................................ 18

21 U.S.C. 841(a)(1)...................................... 2

21 U.S.C. § 841(b)(1)(D)(1994)........................... 23

28 U.S.C. § 1291......................................... 2

28 U.S.C. § 2255.......................................1,22,23

U.S.S.Guidelines

U.S.S.G. § 1B1.8(a)..................................... 14

U.S.S.G. § 3E1.1...................................2,3,9,16,20

U.S.S.G. § 5K1................................1,2,3,5,10,16,20

Other

J. Archbold, Pleading and Evidence in Criminal Cases

(5th Am. ed. 1846)..................................... 27

J. Story, Commentaries on the Constitution §§928-929

(1833)................................................. 27

Nagel, Negotiated Pleas Under the Federal Sentencing

Guidelines: The First Fifteen Months, 27 Am. Crim.

L.Rev. 231,272 (1989).................................. 17

Yellen, Probation Officers Look at Plea Bargaining,

and Do Not like What They See, 8 Fed. Sentencing

Rep. 339, 340 (1996)................................... 17

iii

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

In April 1997 Mr. BERTHOFF filed his Petition for Habeas Corpus, 28 U.S.C. § 2255, Appellant's Record Appendix [hereinafter "Appendix"] at 5. On December 15, 1998, District Court William Young denied Mr. BERTHOFF's Petition, Appendix at 140. Mr. BERTHOFF appealed that decision which resulted in the Court of Appeals' remand to determine the issue on which the certificate of appealibility was issued. On April 9, 2001 the District Court issued a report specifying the issue on which the certificate of appealability was granted, to wit: the issue of whether BERTHOFF's Sixth Amendment Right to a trial by jury was "unduly and unconstitutionally burdened" by the disparity caused by the government's policy of "fact bargaining" various defendants' offense conduct, the disparity in the sentences granted cooperating co-defendants with U.S.S.G. § 5K1 departures, and the disparity of those who are granted "acceptance of responsibility reductions," compared with the guideline sentence of a defendant who loses at trial. Appellant timely filed a notice of appeal on April 16, 2001. Supplemental Appendix at 75.

On December 19, 2001 the district court granted a motion to expand the certificate of appealability to include the issue of whether Apprendi v. New Jersey, 530 U.S.466 (2000) applies retroactively to cases on collateral review. Supplemental Appendix at 163.

This Court has jurisdiction to review the judgment pursuant to 28 U.S.C. § 1291, which confers jurisdiction in the courts of appeals to review final decisions of the district courts.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

I.	Whether Appellant was denied his Sixth Amendment right to trial by jury by the government's negotiating practices and the trial court's disparate sentencing of co-defendants who plead guilty prior to trial, who receive U.S.S.G. § 5K1 downward departures and U.S.S.G. § 3E1.1 "acceptance of responsibility" reductions, compared to those defendants who lose at trial?

II. Whether Apprendi v. New Jersey, 530 U.S.466 (2000) applies retroactively to cases on collateral review with respect to first 28 U.S.C. § 2255 or 2254 petitions?

STATEMENT OF THE CASE..THE PROCEEDINGS BELOW

Appellant, FREDERIC W. BERTHOFF, stands convicted of Conspiracy to Possess w/Intent to Distribute Marijuana and Hashish in violation of 21 U.S.C. 841(a)(1), Money Laundering, Filing False Tax Statements, Witness tampering, and Criminal Forfeiture. In May, 1994, Mr. BERTHOFF was sentenced pursuant to the United States Sentencing Guidelines to a term of 21 years in the custody of the Bureau of Prisons.	Mr. BERTHOFF appealed his conviction, which appeal was denied in an unpublished opinion on November 29, 1995. No. 94-1714 (1st Cir. 11/29/1995). As set forth above, in April 1997 Mr. BERTHOFF filed the Petition for Habeas Corpus which is here in issue, Appendix at 5. Although the Petition raised the principle issue of whether he was denied his Sixth Amendment right to effective assistance of counsel by the failure of his attorney to inform him of the benefits of the Acceptance of Responsibility provision of the United States Sentencing Guidelines, U.S.S.G. § 3E1.1, the trial court, after remand from the Court of Appeals, has determined that the issue deserving of appeal concerns Mr. BERTHOFF's Sixth Amendment rights but on a different but related issue.

The trial court has granted the certificate on the basis of whether the government or the court interfered generally with BERTHOFF's Sixth Amendment right to trial by jury because of the sentencing disparity between defendants who plead guilty and those who go to trial. As set forth in the trial court's report, causes of such disparity include the government's negotiating practice of "fact bargaining" a cooperating co-defendant's culpability and the trial court's granting U.S.S.G. § 5K1 and U.S.S.G. § 3E1.1 reductions to defendants who plead guilty compared to a those who receive a considerably higher Guideline sentence after trial. Addendum at 14,23,39.

The district court held that the 700 % difference between a cooperating co-defendant's three year sentence and BERTHOFF's twenty-one year sentence "is too great a burden on BERTHOFF's

Sixth Amendment right to a trial by jury..." United States v. Berthoff, 140 F.Supp.2d 50,70 (D.C.Mass 2001); Addendum at 41.

While the instant matter was pending the Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S.466 (2000), which held that a defendant's sentence could not exceed the statutory maximum unless the sentencing enhancements which increased the sentence beyond the maximum were plead in the indictment and proven at trial. BERTHOFF filed a supplemental pleading requesting the court to apply Apprendi. Supplemental Appendix at 76. The district court in its Report denied the request on the basis that Apprendi had not been made retroactive. After this Court issued a certificate of appealability on the issue of Apprendi's retroactive application in another matter, Forty-
Estremera v. United States, Dkt. No. 01-2337, (November 21, 2001), BERTHOFF moved to expand the certificate of appealibility that has been granted in his case to also include the retroactivity of Apprendi issue. This motion was granted by the district court on December 19, 2001. Supplemental Appendix at 163.

STATEMENT OF APPLICABLE FACTS

As set forth in the trial court's Report, which is quoted herein at length, the offense conduct herein involved Mr. BERTHOFF's participation in a marijuana and hashish smuggling operation. For the purposes of this appeal, the facts are not in contention. The government's case included testifying co-
defendants who were sentenced, after pleading guilty, in accordance with the acceptance of responsibility provisions of the United States Sentencing Guidelines and U.S.S.G. § 5K1 motions that were filed by the government. In explaining its decision to grant the certificate of appealibility in this case the district court discussed the factual background as it related to the violation of Petitioner's Sixth Amendment right to a jury trial issue:

Berthoff [was] the central, moving force in this criminality, the "kingpin" if you will. He was tried with co-defendants William Tibolt ("Tibolt") and Holland. All were convicted, although not on all counts. I sentenced Berthoff to twenty-
one years' imprisonment on Counts One and Two; three years' imprisonment on Count Three; twenty years' imprisonment on Counts Seven through Fourteen; and ten years' imprisonment on Count Sixteen, with the sentences on all counts to run concurrently.( Fn. Joseph H. Catalucci, the leader of an overlapping, closely-related drug conspiracy existing during the same time period and also involving Stephen Marble, pleaded guilty before Judge Freedman and on September 29, 1993 was sentenced by him to fifteen years and eight months imprisonment)1.

Cimeno, the individual next to Berthoff most culpable in this conspiracy, pleaded guilty prior to trial and cooperated, his testimony being quite important to the conviction of Berthoff and absolutely vital to the conviction of Holland. I sentenced him to three years' imprisonment.

Mello, like Cimeno an important figure in this conspiracy, also pleaded guilty and cooperated, his testimony being less important than that of Cimeno. I sentenced him to three years' imprisonment.

Schifone, a lesser figure, pleaded guilty and cooperated. I sentenced him to five years' probation, the first nine months to be spent in house arrest.

Tibolt went to trial. Accepting his statute of limitations argument, the Court granted him a mid-trial judgment of acquittal on Counts One and Two. Tibolt was convicted of money laundering, and I sentenced him to eight years' imprisonment. The hapless Holland, excitable and somewhat spaced-out, tried to manage his own defense. Skipper of the vessel that made the drug run, Holland professed nothing more than a desire to be reunited with his children, Sunshine and Jelly Bean, and had been advised that he had an iron-clad statute of limitations defense. At trial, however, Cimeno came up with some new testimony that scotched that defense. After his conviction, I sentenced him to five years' imprisonment...

United States v. Berthoff, 140 F.Supp.2d 50,53(D.C.Mass 2001). Addendum at 3-5.

Prior to trial, Petitioner's attorney, in response to a letter from AUSA Pucci, tried to negotiate a plea which was rejected on the basis that the government wanted a plea that involved cooperation. Appendix at 64, 94 and 97; Gov. App.at 87.

The amount of contraband, marijuana and/or hashish, was generally alleged in the Superceding Indictment as an overt act in the conspiracy and a general averment that the substance contained 1000 kilograms or more of "a detectable amount of marijuana or hashish." The specific quantity was not considered by the jury, nor was the jury instructed that they were to determine the quantity and nature of the contraband beyond a reasonable doubt. Supplemental Appendix at 76.

APPLICABLE STANDARD OF REVIEW

Questions of constitutional law are reviewed de novo, even if those questions are raised for the first time on appeal. See United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992); United States v. DiPietro, 936 F.2d 6,8 (1st Cir. 1992); See also United States v. Disanto, 86 F.3d 1238 (1st Cir. 1996).

SUMMARY OF ARGUMENT

Petitioner has sought habeas relief after he was sentenced after trial to twenty-one years while his co-defendant, who according to the findings of the trial was nearly as culpable as he, was sentenced to three years, a 700% difference. The gross disparity was caused by the fact that the co-defendant plead and cooperated with the government, allowing the court to make "acceptance of responsibility" and "substantial assistance" Guideline reductions. The trial court has found, while not granting the Petition, that such disparity is a chilling violation of the Sixth Amendment right to a jury trial in that said Guideline provisions, as well as the negotiating practices of the government, punish defendants for exercising their right to require the government to prove its case at trial.

Petitioner's sentence exceeded the basic statutory maximum for distribution of marijuana because the trial court found by a preponderance of the evidence that Petitioner was responsible for an amount for which enhanced penalties could be imposed. Following the United States Supreme Court's ruling in Apprendi, which held that drug quantities which cause a sentence to exceed the statutory maximum must be plead and proven beyond a reasonable doubt at trial, Petitioner asked the court to consider the issue together with the other issues presented in his Petition. The trial court denied said relief on the basis that said request was untimely unless controlling authority finds the Apprendi rule to be retroactive. Petitioner, by way of this appeal, asks this Court to find that Apprendi is retroactive to cases, such as the one at bar, on their first petition for collateral review.

ARGUMENT

I. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO TRIAL BY JURY BECAUSE THE COST OF EXERCISING THAT RIGHT, BASED ON THE NEGOTIATING PRACTICE OF THE GOVERNMENT AND THE SENTENCING PRACTICES OF THE COURT, WAS TO BE PUNISHED SIGNIFICANTLY MORE SEVERELY THAN THOSE WHO PLEAD GUILTY WITHOUT TRIAL.

In all criminal proceedings, 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 the Compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

United States Constitution, Sixth Amendment

"To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . " Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978) (citation omitted). It is thus a violation of due process to penalize a criminal defendant for exercising his constitutional rights, see United States v. Jackson , 390 U.S. 570, 581 (1968), or for pursuing a statutory right of appeal or collateral remedy, North Carolina v. Pearce, 395 U.S. 711, 723-24 (1969). See also United States v. Mazzaferro, 865 F.2d 450, 460 (1st Cir. 1989). ("The law is clear beyond peradventure that a sentence based on retaliation for exercising the constitutional right to stand trial is invalid")(Bownes, J.).

In every F.R.Cr.P. Rule 11 hearing, consistent with the Sixth Amendment, the defendant is informed that he has "a right to plead not guilty and to persist in that plea if it has already been made, the right to a jury trial..." Rule 11(c)(3). The defendant is never informed, what the trial court's Report in the instant case makes clear, that the cost of exercising the right to a jury trial could well result in a sentence 500% to 700% greater than a co-defendant nearly as culpable. Berthoff,140 F.Supp.2d at 68,70, Addendum at 36,39.

In the case at bar, Petitioner, sentenced after trial to twenty-one years, could well have received a U.S.S.G. § 3E1.1 "acceptance of responsibility" sentence of twelve years and seven months versus a Guideline post trial sentence of seventeen years six months to twenty one years and ten months. Addendum at 8. With cooperation, which had been a focal point of the plea negotiations, Addendum at 9, there likely would have been a further reduction based on U.S.S.G. § 5K1.1 "substantial assistance" recommendations. There is little question, therefore, that Petitioner's exercise of his constitutional right to require the government to prove its case against him at trial cost him a sentence of at least five to eight years higher than if he had plead guilty, simply because he went to trial.

Petitioner is mindful of other decisions of this Honorable Court which have upheld the constitutionality of U.S.S.G. § 3E1.1. "We note that although "[t]he guideline admittedly imposes a tough choice on a defendant . . ., it is not unconstitutional . . . ." See United States v. DeLeón Ruiz, 47 F.3d 452, 456 (1st Cir. 1995) (citations omitted); United States v. Muññoz, 36 F.3d 1229, 1236-
37 (1st Cir. 1994).

The First Circuit, and other courts, see e.g. United States v. Frazier, 971 F.2d 1076 (4th Cir.1992); United States v.Jones, 934 F.2d 1199,1200 (11th Cir. 1991), have predicated their reasoning on the United States Supreme Court's decisions in Corbitt v. New Jersey, 439 U.S. 212, 224, 58 L. Ed. 2d 466, 99 S. Ct. 492 (1978) and Brady v. United States, 397 U.S. 742, 751, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970) that the law has allowed sentencing judges to show leniency to defendants who demonstrate contrition and acceptance of responsibility for their crimes. The United States Supreme Court has also encouraged the practice of plea bargaining by stating: "Although every [plea bargain] has a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices is an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973).

On the other hand, "if the only objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional'") Chaffin v. Stynchcombe at 33 n. 20 citing Shapiro v. Thompson, 394 U.S. 618, 631 (1969). Plea bargaining necessarily entails hard negotiation between the parties. While it may be the government's position to encourage a criminal defendant to plead guilty and give up his or her right to trial by offering a more lenient sentence if he pleads guilty, or even threatening harsher punishment if he refuses to plead guilty, that can not be the legitimate interest of the judicial system that under our constitution guarantees the fundamental right to trial. The courts must be vigilant of whether a particular "state practice" violates a constitutionally protected right. Cf. Chaffin v. Stynchcombe supra at 33 n. 20.

Although "[a] criminal justice system that tolerates and encourages plea negotiations must allow prosecutors to impose difficult choices on defendants even though the risk of more severe punishment may discourage a defendant from asserting his trial rights," Bordenkircher , 434 U.S. at at 364, emphasis added, discouraging trials can not be the practice of the court's themselves that must guarantee the constitutional right to trial. As the First Circuit and other courts have, however, noted: U.S.S.G § 3E1.1 "merely codify[s] a tradition of leniency and are not an impermissible burden on the exercise of constitutional rights." United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989); cert. denied 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990),(upheld the constitutionality of §§ 3E1.1 against a challenge brought under the Fifth Amendment) See also United States v. Frazier, supra, 971 F.2d at 1084 ("[t]he acceptance of responsibility reduction essentially codifies the judicial practice of sentencing more leniently defendants who evidence contrition and cooperate with law enforcement authorities"). Petitioner respectfully submits that such reasoning is misplaced because it causes the courts to be active participants in the plea bargaining process, a practice prohibited by F.R.Cr.P. 11(e)(1).

The codification in the Guidelines of the plea bargaining practice of a defendant receiving a substantial reduction in sentence for saving the government the expense of a trial, comes with a heavy constitutional price. As such practice is applied

in the case at bar, it amounts to nothing less than punishment

for proceeding to trial. As the trial court explained:

Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. True, there was always a sentencing discount for those who plead guilty and turn state's evidence. In this District that discount used to range from 33% to 45%. Today, under the Sentencing Guidelines regime with its vast shift of power to the executive, that disparity has widened to an incredible 500%. ...

Not surprisingly, such disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one's peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that we punish people–punish them severely– simply for going to trial. It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like "acceptance of responsibility" for those who cooperate, we have always punished those who demand that the government carry its constitutionally-mandated burden of persuasion beyond a reasonable doubt before an American jury.

Berthoff, 140 F.Supp. at 67-70, Addendum 35-40, citations and empirical studies omitted, emphasis added.

The government will likely argue that this Honorable Court in United States v. Rodriguez, 162 F.3d 135, 150-53 (1st Cir. 1998) has already not only addressed the issue of the constitutionality of such sentencing disparity, but found that such disparity is a permissible and traditional role of the prosecutorial authority; that it is within the "government's discretion to charge similarly situated defendants differently." Id at 150-52. This Court stated therein:

The fact that those who plead generally receive more lenient treatment, or at least a government recommendation of more lenient treatment than co-defendants who go to trial, does not in and of itself constitute an unconstitutional burden on one's right to go to trial and prove its case. See Corbitt v. New Jersey ,439 U.S. 212, 219 (1978) (noting that every burden on the exercise of a constitutional right is not invalid and that there is no per se rule against encouraging guilty pleas, even where those pleas promise the certainty of a lesser penalty). To be sure, the differential which resulted here exacts a high price from those who exercise their constitutional right to trial, but the price is not high enough to constitute a constitutional violation.

Rodriguez, however, is inapposite to the present case because it addressed the issue of sentencing disparity caused by the prosecution's different treatment of co-defendants who were held culpable of different quantities of drugs. The quantity was calculated when the government "negotiated plea bargains with some of the defendants and promised, according to U.S.S.G. § 1B1.8(a), not to use any of the information provided by cooperating defendants against them." 2 This case, on the other hand, addresses the trial court's sentencing disparity of similarly situated co-defendants solely caused by a defendant exercising his Sixth Amendment right to trial.

The government may also suggest that Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980), further supports its argument that there is no Sixth Amendment violation because said case finds that it is not constitutionally infirm for judges to reward a particular defendant's assistance to the government with lower sentences. As the Seventh Circuit in United States v. Klotz 943 F.2d 707, 710 (7th Cir.1991) noted, however, "Roberts implies a sentencing differential of the sort familiar in plea bargaining: one sentence if the defendant is mum (or insists on trial), a lower sentence if the defendant sings (or pleads guilty)." The Klotz decision explains that the determining factor as to whether the differential in sentencing between a plea and trial is a reward for cooperation or a penalty for invoking a constitutional right depends on the benchmark -- the "normal" sentence that would be meted out if constitutional rights were not salient." citing United States v. Turner, 864 F.2d 1394, 1398-99 (7th Cir. 1989); United States v. Long, 823 F.2d 1209, 1211-12 (7th Cir. 1987), emphasis added.

The trial court here has found that the benchmark is violated by the 700% difference between Petitioner's sentence, who went to trial, and the three year sentence of a co-defendant who plead and cooperated. The trial court emphasized that such difference is "simply too great a burden on Berthoff's exercise of his Sixth Amendment right to trial by jury." Berthoff, 140 F.Supp. at 70, Addendum at 39.

The government will also likely argue, based on the trial court's finding, id at 57, Addendum at 13, that Petitioner never accepted responsibility,3 and, therefore, should not receive the benefits, or any benefit at all, for a reduction in the total Guideline offense level he faced after trial based on any "acceptance of responsibility" that U.S.S.G. § 3E1.1 allows. The government's position will be that "this adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse," United States v. Baltas, 236 F.3d 27, 236 F.3d 27 (1st Cir. 2001). It is, however, not the question of whether BERTHOFF "accepted responsibility" but the actual application of that Guideline provision, U.S.S.G. § 3E1.1, along with "substantial assistance" motions, U.S.S.G. § 5K1.1, that have caused the "sentencing disparities among similarly situated defendants" which give rise to the violation of the Sixth Amendment that is addressed here. Berthoff, 140 F.Supp. at 67, Addendum at 34, fn.30.

Equally, the government will likely argue that the trial court's concern over the Sixth Amendment effects from "fact bargaining" are not at issue here because "fact bargaining" has not played a role in this case. Id. Such an argument ignores the fact that "fact bargaining" is intertwined in the government's negotiating practices which give rise to the Sixth Amendment

violation of chilling the right of a defendant to exercise his or her right to a jury trial. As the trial court discussed:

[B]ecause certain material "facts" so called now mathematically drive every sentencing decision, fact bargaining is today central to plea negotiation in federal court. Everybody knows it. Prosecutors and defense counsel are knowingly involved in this fraud and courts–now largely stripped of the powers to make fully informed sentencing decisions– tacitly acquiesce when satisfied with the negotiated plea." Berthoff, 140 F.Supp. at 62-63, Add. at 26.

Contrary to well held prosecution' beliefs, it does not appear that the trial court was directly accusing the government or the defense with malfeasance, but rather expressing an indictment of a system which by its nature encourages a "fraud" that treads significantly on the Sixth Amendment right to trial by jury. Footnote 22 of the Report explains one basis for the trial court's, perhaps somewhat caustic, remarks. "Fact bargaining" is but an "inevitable result of the Commission's attempt to limit charge bargaining." citing Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 Am. Crim. L.Rev. 231,272 (1989). See also Yellen, Probation Officers Look at Plea Bargaining, and Do Not like What They See, 8 Fed. Sentencing Rep. 339, 340 (1996). (...Congress has not provided corresponding resources to take more cases to trial. The result, it appears, is that prosecutors (and some defense counsel) have evaded and manipulated the guidelines in order to induce the pleas necessary to keep the system afloat..." Through such analysis, it appears clear that the trial court's concern with "fact bargaining" was principally the effect that such practice has on shifting the power to the executive to make sentencing decisions and the havoc that it reeks on the Sixth Amendment right to trial. Berthoff, 140 F.Supp. at 63,66, Addendum at 25.

The First Circuit has readily recognized the changes that the Guidelines have caused in plea negotiations, stating that:

Because the Guidelines, in respect to drug cases, base sentences for the most part upon the amount of drugs possessed, "charge-type" plea bargains, see Fed. R. Crim. P. 11(e)(1)(A), may no longer prove of much value to defendants in drug cases...But that fact does not make plea bargaining futile; it simply means that the government and the defendant, should they wish to bargain in a case like this one, should bargain about sentence "recommendation," see Fed. R. Crim. P. 11(e)(1)(B), or "a specific sentence," see Fed. R. Crim. P. 11(e)(1)(C). Even though the prosecutor need not agree to any such bargain, and even though the court may reject any such bargain -- as it can reject any and all plea bargains, see Fed. R. Crim. P. 11(e)(2) -- the Guidelines' structure does not inhibit these latter types of bargains..

United States v. Wright, 873 F.2d 437, 440-41 (1stCir.1989) (Breyer,J)

The trial court also clearly recognized that: "[a]ll plea negotiations, of course, necessarily involve an assessment of the strengths and weaknesses of a case, the credibility of witnesses, their vulnerability to impeachment, their basic presentability, and a host of related details." It is not those negotiations that interfere with the Sixth Amendment right to trial, but rather:

[The practice of] ignoring a quantity of drugs or the possession or use of a firearm reasonably attributed to a defendant... [or] the execrable practice of taking two similarly situated defendants and reducing the drug quantity for the one who is willing to plead but attributing the full drug quantity to the one who goes to trial.

Berthoff, 140 F.Supp. at 62, Addendum at 24,fn.19.

While "fact bargaining" did not occur in the present case, it is the disparity in sentences caused by such general "practices," and, as more specifically related hereto, the application of Guideline provisions such as "acceptance of responsibility" and "substantial assistance" which directly interfere with Petitioner's Sixth Amendment rights. The trial court expressly acknowledged that the 700% sentencing disparity between Petitioner's sentence and that of one of his co-defendants was "too great a burden on Berthoff's exercise of his Sixth Amendment right to trial by jury and that a sentence of fifteen years...would be more just." Plainly, and simply, Petitioner, was punished for exercising his right to trial. Berthoff, 140 F.Supp. at 61, 70, Addendum at 23,39.

One need look no further than the United States Supreme Court ruling in United States v. Jackson, 390 U.S. 570(1968) for support that the severe punishment for BERTHOFF exercising his right to trial is a violation of the Sixth Amendment. That case involved the Federal Kidnaping Act under which a defendant who abandoned his right to contest his guilt before a jury was assured that he would not be executed, however, if he chose a

jury trial he could be subjected to capital punishment. The Supreme Court stated:

Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional...
Id. at, 582-83.

The government will likely assert that there are legitimate purposes, laudable goals, behind the Guideline sentencing provisions of "acceptance of responsibility" and "substantial assistance." To be sure, the background note to U.S.S.G. § 3E1.1 indicates that said "section recognizes legitimate societal interests," and the notes to U.S.S.G. § 5K1.1 indicates that that section "has been recognized in practice and by statute as a mitigating sentencing factor." But, as stated in Jackson, id.:

Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258 [1967]; Shelton v. Tucker, 364 U.S. 479, 488 -489 [1960]. The question is not whether the chilling effect is "incidental" rather than intentional; the question is whether that effect is unnecessary and therefore excessive.

Petitioner is also mindful of this Honorable Court's analysis in United States v. Rodriguez, supra,162 F.3d at 150-53, rejecting that case's analogy to Jackson, because Corbitt v. New Jersey, supra had distinguished Jackson on the basis that Jackson was a death penalty case "which is unique in its severity and irrevocability." Corbitt , 439 U.S. at 217 (quoting Gregg v. Georgia, 428 U.S. 153 (1976)). But see Chaffin v. Stynchombe, supra, fn. 30, "Jackson and Pearce [ North Carolina v. Pearce, 395 U.S. 711 (1969)] are clear and subsequent cases have not dulled their force," emphasis added.

Petitioner respectfully suggests that Jackson's limit on the "excessive" chilling of the "exercise of basic constitutional rights" to trial by jury, could not be more applicable than to the case at bar. Here the trial court has documented substantial evidence that not only has this Petitioner suffered excessive punishment for simply going to trial, at least five to eight years, but also evidence of a continuing decline in jury trial rates based on the governmental "practice" of plea negotiation and the application of the court's Guideline sentencing policies, which "practices" directly impinge upon the free exercise of the Sixth Amendment right to trial. Petitioner's disparate sentence had nothing to do with a refusal to accept a prosecution "plea bargain," it had to do with his decision to exercise his right to a jury trial and the resulting Guideline sentence.

Therefore, as found by the trial court, Petitioner has been denied his Sixth Amendment right to trial by jury because the cost of exercising his fundamental right to challenge the government's factual proof was to automatically be punished more severely than his co-defendants who chose to plea guilty.

II. APPRENDI APPLIES RETROACTIVELY TO CASES ON COLLATERAL REVIEW WITH RESPECT TO FIRST 28 U.S.C. § 2255 OR 2254 PETITIONS

There is little dispute that Apprendi establishes "a new rule of constitutional law." see 28 U.S.C. § 2255, para. 8(2).4

Also, " No one could doubt that Apprendi "newly" or "initially" recognizes a constitutional right. Apprendi caused [the Seventh Circuit] to overrule numerous cases, a sign that something novel occurred." Ashley v. United States, 266 F.3d 671, 672 (7th Cir. 2001).

In Apprendi, the Supreme Court announced a new constitutional rule of criminal procedure by holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." 120 S.Ct. at 2362-63. The Supreme Court's new rule radically departed from prior treatment of the quantity of drugs as a sentencing factor rather than as an element of the offense. See e.g. United States v. Neuhausser, 241 F.3d 460, 464-65 (6th Cir. 2001).

"A 1-year limitation period shall apply to a motion under this section. The limitation shall run from the latest of ..(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255 para 6.

In November 2000, Petitioner, while his Petition was on remand to determine the issue on which the original certificate of appealability was issued, filed his Second Supplemental

Memorandum, addressing his Apprendi claim, well with one year from the date of said "newly recognized" rule.

Petitoner was sentenced to twenty one years in prison for an offense that could have been limited to five years if no amount was determined by the jury, 21 U.S.C.§ 841(b)(1)(D)(1994). While the trial court in its Report rejected the claim as time barred because the court felt that "the new limitations period should run from the date on which either the Supreme Court or the controlling circuit court holds the right to be retroactive on collateral review," Addendum at 19-20, recent Seventh Circuit authority suggests that: "permitting a district or appellate court to make the retroactivity decision for an initial petition may be essential to put the question before the Supreme Court for final resolution." Ashley v. United States, 266 F.3d at 673.

On the other hand, the government will likely argue that paragraph 6(3) of section 2255 of Title 28 is essentially the same as paragraph 8(2) of said section and thus only the Supreme Court can make the "new rule of constitutional law" retroactive, see Tyler v. Cain , 121 S. Ct. 2478 2482 (2001). In that Supreme Court decision, dealing with the retroactivity issue as it related to second or successive petitions, the Court explained, that a new rule is not "made retroactive to cases on collateral review" unless the Court itself holds it to be retroactive. The Court further explained it's rationale:

The Supreme Court does not "make" a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. Id.

Any such argument by the government would not only ignore the distinctive language of paragraph 6(3), ("To treat the first formulation as identical to the second is not faithful to the difference in language. By omitting the restriction contained in para.8(2), para.6(3) implies that courts of appeals and district courts may "make" the retroactivity decision." Ashley v. United States, 266 F.3d at 673); it also may not comport with the holding in Tyler.

Justice O'Connor, who supplied the crucial fifth vote for the majority, wrote a concurring opinion, and her reasoning adds to our understanding of the impact of Tyler. She explains that it is possible for the Court to "make" a case retroactive on collateral review without explicitly so stating, as long as the Court's holdings "logically permit no other conclusion than that the rule is retroactive." Id. at 2486 (O'Connor, J., concurring). In other words, contrary to the government's position, just because the Court has never specifically considered the retroactivity of Apprendi does not foreclose the possibility that the Court has "made" Apprendi retroactive on collateral review.

United States v. Turner, 267 F.3d 225,228 (3rd Cir. 2001)

Whether Apprendi is retroactive to cases on collateral review necessitates application of the Supreme Court's holding in Teague v.Lane, 489 U.S. 288 (1989). Three courts of appeals have held, based on said analysis, that it is not retroactive. United States v. Moss, 252 F.3d 993,1000 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227,1238 (9th Cir. 2000)(Only as it relates to discrepancies between the information and jury instructions).	In Teague v. Lane, the Supreme Court established a three-step inquiry to determine when new rules of criminal procedure should be retroactively applied on collateral review . See 489 U.S. at 288. First, the court must determine the date on which the defendant's conviction became final. Second, the court must decide whether the Supreme Court's ruling indeed constitutes a "new rule" of constitutional criminal procedure. Third, if the rule is new, then it does not apply retroactively unless it falls within one of the two narrow exceptions, to wit: 1) new rules which forbid "criminal punishment of certain primary conduct" and 2) new rules which prohibit "a certain category of punishment for a class of defendants because of their status or offense." In that there is little question that a new rule has been adopted, it is only the second Teague exception in the third step of the inquiry which would be applicable to Apprendi retroactivity issue addressed here.

To qualify under the second exception, the new rule must be such that, without it, "the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313. Essentially, the new rule of Apprendi must "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding " if it is to qualify for retroactivity. See Sawyer v. Smith, 497 U.S. 227, 242 (1990).

Although other circuits, as set forth above, have ruled against Apprendi's retroactive application, and the Seventh Circuit in Ashley, supra has remanded to the district court to decide the issue so that the issue can be fully developed, Petitioner respectfully submits that this Honorable Court should hold that Apprendi should be applied retroactively to first habeas petitions. The holding of Apprendi, addresses such a fundamental principle of fairness, the sentencing of a defendant beyond the statutory maximum, that such sentencing can only be based on facts that are proven beyond a reasonable doubt.

Justice Stevens, writing for the majority, explained the fundamental principle behind the decision:

At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without "due process of law," Amdt. 14, and the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury," Amdt. 6. Taken together, these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); Winship, 397 U. S., at 364 ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). Apprendi 530 U.S. 466, 476-77 (2000) emphasis added.

Also Justice Thomas, in his concurring opinion in Apprendi, further explained the historical prescription for such a finding:

In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt). See J. Story, Commentaries on the Constitution §§928-929, pp. 660-662, §934, p. 664 (1833); J.

Archbold, Pleading and Evidence in Criminal Cases *41, *99-*100 (5th Am. ed. 1846). Id at 499-500, fn omitted,

Justice Thomas also emphasized the decision's importance:

[The Apprendi] decision, far from being a sharp break with the past, marks nothing more than a return to the status quo ante--the status quo that reflected the original meaning of the Fifth and Sixth Amendment. Id. at 518, emphasis added.

The substantial historical and constitutional precedent explained by both the majority and concurring opinions makes it difficult to argue that the rule announced in the Apprendi decision is anything less "than bedrock procedural elements essential to the fairness of a proceeding " See Sawyer v. Smith, 497 U.S. at 242.

Petitioner, therefore, respectfully submits that this Honorable Court should find that Apprendi is retroactive to first habeas petitions.

CONCLUSION

Mr. BERTHOFF, therefore, respectfully submits that for each of the reasons set forth above, the district court erred in denying the Petition for Writ of Habeas Corpus on the basis that he was denied his Sixth Amendment right to trial by jury in that he was severely punished for exercising that right. Pettioner-
Appellant further submits that Apprendi should apply retroactively to his current Petition. Appellant, therefore, respectfully requests that this Honorable Court to remand the matter to the district court and direct the court to grant the Writ consistent with such findings.

Certificate of Compliance with Formatting Rules

Below signed counsel, hereby certifies that in compliance with Rules 28 and 32(a)(7) of the Federal Rules of Appellate Procedure the within brief contains 7799 words.

Dated: January 9, 2002 Respectfully submitted,

BOURBEAU & BONILLA

By: MICHAEL C. BOURBEAU, BBO # 545908

Attorneys for Appellant

FREDRIC W. BERTHOFF

ADDENDUM PURSUANT TO

LOCAL RULE 28

TABLE OF CONTENTS

Trial court's Report................ .. . . . . 1-68

Second Supplemental Memorandum..................69

Certificate of Service

I, MICHAEL C. BOURBEAU, hereby certify that I have caused to be served two copies of the within brief upon

AUSA Kevin O'Reagan,

1550 Main Street, Rm. 533

Springfield, MA 01103,

this date by mailing said brief by first class mail to each said person.

Dated:	January , 2002 ____________________________

MICHAEL C. BOURBEAU