hebert 14-31405 brief rev8 lx

No. 14-31405

consolidated w/ 14-31407

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK HEBERT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-57-1

APPELLANTS BRIEF

CLAUDE J. KELLY

Federal Public Defender

Eastern District of Louisiana

JORDAN MARK SIVERD

Assistant Federal Public Defender

500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

[email protected]

ii

CERTIFICATE OF INTERESTED PERSONS

United States v. Mark Hebert

No. 14-31405 consolidated w/ 14-31407

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this Court may evaluate possible disqualification or recusal.

1. Defendant-Appellant: Mr. Mark Hebert.

2. Counsel for Plaintiff-Appellee: Mr. Vijay Shanker, Deputy

Chief of the Appellate Section, Criminal Division, U.S.

Department of Justice, and Assistant United States Attorney

Andre Jude Lagarde.

Former Counsel for Plaintiff-Appellee: United States Attorney

Kenneth Allen Polite, Jr., and Assistant United States Attorneys

Duane Evans and Fred P. Harper, Jr., and Dana Boente,

Stephen C. Parker, Shan P. Patel, and Tony Gordon Sanders,

Esqs.

3. Counsel for Defendant-Appellant: Federal Public Defender

Claude J. Kelly and Assistant Federal Public Defender Jordan

Mark Siverd.

Former Counsel for Defendant-Appellant: Davidson S.

Ehle, III, Esq.

s/Jordan Mark Siverd

JORDAN MARK SIVERD


Dated: July 24, 2015

iii

REQUEST FOR ORAL ARGUMENT

The appellant, Mr. Mark Hebert, respectfully requests oral argument in this

appeal of a 92-year sentence for murder. No jury convicted Mr. Hebert of murder.

He pleaded not guilty to the allegation that he committed murder and has persisted

in that plea to this day. When Mr. Hebert later pleaded guilty to a civil rights

misdemeanor, five counts of bank fraud with about $16,000 of actual losses, and

one count of aggravated identity theft, he did so pursuant to a written plea

agreement that acknowledged that he continued to deny the murder allegation.

Nevertheless, the district judge sentenced him for the murder to 92 years.

iv

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ....................................................... ii

REQUEST FOR ORAL ARGUMENT ................................................................... iii

STATEMENT OF JURISDICTION.......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3

SUMMARY OF THE ARGUMENT ......................................................................15

ARGUMENT ...........................................................................................................16

1. The Government failed to prove that Mr. Hebert killed

Mr. Bloch, much less that he did so under circumstances

amounting to second degree murder. .................................................. 16

a. Review is for clear error. .................................................................... 16

b. The Government did not prove a killing, and certainly not

second degree murder. ....................................................................... 16

2. The cross-reference did not apply because the contested

murder allegation was not part of the count of conviction. .......... 18

a. Review is de novo. ............................................................................. 18

b. Because Mr. Hebert expressly denied the murder when

pleading guilty, it was not part of the count of conviction. ............ 18

3. Sentencing Mr. Hebert for murder without a murder

conviction violated his constitutional rights. ...................................... 22


b. The due process and jury trial clauses of the Fifth and Sixth

Amendments prohibit what happened in this case. ............................ 23

v

TABLE OF CONTENTS (Contd)

4. A 92-year sentence for a civil rights misdemeanor, $16,000 of

bank fraud, and aggravated identity theft is unconstitutionally

excessive. ................................................................................................. 25


b. The 92-year sentence does not fit the crime. ..................................... 25

CONCLUSION ........................................................................................................27

CERTIFICATES OF SERVICE AND COMPLIANCE

vi

TABLE OF AUTHORITIES

Cases:

Alleyne v. United States,

133 S. Ct. 2151 (2013) ...................................................................................... 23

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......................................................................................... 27

Atkins v. Virginia,

536 U.S. 304 (2002) .......................................................................................... 26

Gall v. United States,

552 U.S. 38 (2007) ............................................................................................ 23

Graham v. Florida,

560 U.S. 48 (2010) ............................................................................................ 26

Gregg v. Georgia,

428 U.S. 153 (1976) .................................................................................... 25, 26

Marlowe v. United States,

555 U.S. 963 (2008) (mem.) .............................................................................. 24

Omari v. Gonzales,

419 F.3d 303 (5th Cir. 2005) ......................................................................... 4, 19

Peugh v. United States,

133 S. Ct. 2072 (2013) ...................................................................................... 22

Rita v. United States,

551 U.S. 338 (2007) .......................................................................................... 23

Roper v. Simmons,

543 U.S. 551 (2005) .......................................................................................... 26

Solem v. Helm,

463 U.S. 277 (1983) .......................................................................................... 26

United States v. Aquino,

555 F.3d 124 (3d Cir. 2008) .............................................................................. 20

United States v. Bah,

439 F.3d 423 (8th Cir. 2005) ............................................................................. 18

vii

TABLE OF AUTHORITIES (Contd)

United States v. Beydoun,

469 F.3d 102 (5th Cir. 2006) ............................................................................... 9

United States v. Blackwell,

323 F.3d 1256 (10th Cir. 2003) ......................................................................... 20

United States v. Castillo-Martinez,

218 F. Appx 367 (5th Cir. 2007) ........................................................................ 4

United States v. Eakes,

783 F.2d 499 (5th Cir. 1986) ............................................................................... 4

United States v. Fields,

483 F.3d 313 (5th Cir. 2007) ............................................................................. 25

United States v. Arturo Garcia,

590 F.3d 308 (5th Cir. 2009) ................................................................. 18, 19, 22

United States v. Genao,

343 F.3d 578 (2d Cir. 2003) .............................................................................. 18

United States v. Gomez,

623 F.3d 265 (5th Cir. 2010) ............................................................................. 16

United States v. Greenough,

669 F.3d 567 (5th Cir. 2012) ....................................................................... 19, 21

United States v. Hernandez,

633 F.3d 370 (5th Cir. 2011) ............................................................................. 23

United States v. Morales-Martinez,

496 F.3d 356 (5th Cir. 2007) ............................................................................. 19

United States v. Rivera Juarez,

626 F.3d 246 (5th Cir. 2010) ............................................................................. 16

United States v. Romero-Cruz,

201 F.3d 374 (5th Cir. 2000) ............................................................................. 22

United States v. Shah,

453 F.3d 520 (D.C. Cir. 2006) .......................................................................... 20

viii


United States v. Trujillo,

502 F.3d 353 (5th Cir. 2007) ....................................................................... 16, 18

Constitutional Provisions:

U.S. CONST. art. III, 2 ........................................................................................... 9

U.S. CONST. amend. V ............................................................................................. 9

U.S. CONST. amend. VI ............................................................................................ 9

U.S. CONST. amend. VIII ....................................................................................... 25

Statutes:

18 U.S.C. 2 (2012) ................................................................................................ 3

18 U.S.C. 242 (2012) ............................................................................................ 3

18 U.S.C. 1030 (2012) .......................................................................................... 3

18 U.S.C. 1344 (2012) .......................................................................................... 3

18 U.S.C. 1519 (2012) .......................................................................................... 3

18 U.S.C. 3231 (2012) .......................................................................................... 1

18 U.S.C. 1028A (2012) ....................................................................................... 3

18 U.S.C. 3553(a) (2012) ...................................................................................... 8

18 U.S.C. 3742 (2012) .......................................................................................... 1

28 U.S.C. 1291 (2012) .......................................................................................... 1

LA. REV. STAT. 14:32 .......................................................................................... 17

LA. REV. STAT. 14:30.1 ....................................................................................... 17

Rules:

FED. R. CRIM. P. 35(a) .............................................................................................. 1

FED. R. EVID. 1101 ................................................................................................... 9

Sentencing Guidelines:

U.S.S.G. 1B1.1 cmt. n.1 ...................................................................................... 19

U.S.S.G. 1B1.2(a) ............................................................................................... 19

U.S.S.G. 1B1.2 cmt. n.1 ...................................................................................... 20

ix


U.S.S.G. 1B1.3 .................................................................................................... 19

U.S.S.G. 2A1.2 ...................................................................................................... 7

U.S.S.G. 2A1.4 .................................................................................................... 17

U.S.S.G. 2B1.1 ...................................................................................................... 7

U.S.S.G. 2B1.1(c)(3) ......................................................................... 2, 7, 8, 18, 21

U.S.S.G. 2H1.1 ...................................................................................................... 7

U.S.S.G. 2X5.1 .............................................................................................. 17, 21

U.S.S.G. 2X5.2 .................................................................................................... 21

U.S.S.G. Ch.5, Pt.A .................................................................................................. 7

U.S.S.G. 5G1.2 ................................................................................................ 7, 13

U.S.S.G. 5G1.2(a) ................................................................................................. 7

U.S.S.G. App. C ..................................................................................................... 20

1

STATEMENT OF JURISDICTION

A. The district court had jurisdiction of this criminal proceeding under

18 U.S.C. 3231.

B. This Court has appellate jurisdiction under 28 U.S.C. 1291 and

18 U.S.C. 3742.

C. The defendant-appellant, Mr. Mark Hebert, filed four notices of

appeal on the 22nd day of December, 2014. ROA.426-33. These notices

identified the following judgments or orders as those being appealed: the original

judgment, the amended judgment, the order denying relief under Federal Rule of

Criminal Procedure 35(a), and the order denying reconsideration of the sentence.

ROA.426-33. It was not clear that separate notices were necessary, but Mr. Hebert

filed them in an abundance of caution. ROA.437 n.1. Without deciding that

separate notices were truly necessary, the district court entered orders extending

the time to file some of the notices. ROA.395; ROA.446; see also Motion to

Consolidate p. 3 n.2, ECF dated 04/27/2015 (login may be required for ECF

hyperlink). This Court docketed the appeals under case numbers 14-31405 and

14-31407 and, on Mr. Heberts unopposed motion, consolidated the cases.

D. This appeal is from final judgments and final orders in a criminal

case.

2

STATEMENT OF THE ISSUES

1) Whether the Government proved that Mr. Hebert committed murder?

2) Whether the district court erred in applying the cross-reference in

U.S.S.G. 2B1.1(c)(3) to the second degree murder guideline?

3) Whether the district court violated Mr. Heberts Fifth Amendment due

process and Sixth Amendment jury trial rights by sentencing him for a crime that

he was never properly convicted of committing?

4) Whether a 92-year sentence for a misdemeanor civil rights offense,

bank fraud involving about $16,000 of actual losses, and aggravated identity theft,

is excessive in violation of the Eighth Amendment?

3

STATEMENT OF THE CASE

Mr. Mark Hebert appeals a murder sentence without a murder conviction.

The Government charged that Mr. Hebert committed murder as part of a bank

fraud scheme although there is no body or even a murder scene. Mr. Hebert

pleaded not guilty, and he persisted in his not-guilty plea to the murder allegation

even as he pleaded guilty to bank fraud and other charges. Without a trial, without

a jury, in disregard of constitutional rights like confrontation and due process,

untrammeled by the Federal Rules of Evidence or proper guideline calculations,

without proof beyond a reasonable doubt, the district judge found that Mr. Hebert

was guilty of murder and sentenced him on that basis to 92 years in prison.

Proceedings in the district court

In 2013, a 60-count indictment charged Mr. Hebert with several crimes:

Count 1 deprivation of civil rights (misdemeanor);

aiding and abetting

18 U.S.C. 242;

18 U.S.C. 2

Counts 2 49 bank fraud;

aiding and abetting

18 U.S.C. 1344

18 U.S.C. 2

Counts 50 53 computer fraud;

aiding and abetting

18 U.S.C. 1030

18 U.S.C. 2

Counts 54 55 aggravated identity theft;

aiding and abetting

18 U.S.C. 1028A

18 U.S.C. 2

Counts 57 60 obstruction of a federal investigation;

aiding and abetting

18 U.S.C. 1519

18 U.S.C. 2

4

ROA.17-38. Paragraph (j) of the section of the indictment captioned Counts 2

49 alleged that as part of the [bank fraud] scheme, Mr. Hebert, with specific

intent, did kill, or participate in conduct that caused the death of, Albert Bloch[,] to

obtain VISA Replacement ATM/Debit Card #8461 and to prevent Albert Bloch

from reporting to a law enforcement officer the scheme and artifice to defraud,

deprivation of rights under color of law, and any other crimes alleged in this

Indictment. ROA.21. Mr. Hebert pleaded not guilty. ROA.48.

Months later, Mr. Hebert changed his plea as to only some of the charges.

He did not plead guilty to all counts of the indictment or even to all of the

allegations in the counts to which he did plead guilty. Rather, he pleaded guilty

pursuant to a written plea agreement and written factual basis to certain charges in

Counts 1, 2, 39-42, 44, and 54 only. ROA.1453-56; ROA.98-108. For example,

he did not plead guilty to the aiding-and-abetting allegations in those counts. See

ROA.1453 (plea agreement) (not naming that offense or listing 2 for any of the

guilty-plea counts); ROA.284-85 (amended judgment) (same and dismissing all

remaining charges).1

1 See also United States v. Castillo-Martinez, 218 F. Appx 367, 368 (5th Cir. 2007)

(citing United States v. Eakes, 783 F.2d 499, 507 (5th Cir. 1986)) (holding that failure to submit

aiding-and-abetting theory to the jury required deletion of 2 from the judgment); Omari v.

Gonzales, 419 F.3d 303, 308-09 & n.10 (5th Cir. 2005) (holding that the defendants guilty plea did not necessarily involve one of three elements that were conjunctively pleaded in his federal

indictment).

5

With respect to the bank fraud charged in Counts 2, 39-42, and 44, the plea

agreement memorialized Mr. Heberts refusal to admit the murder allegation in

paragraph (j):

[W]hether the defendant is responsible for the death of Albert Bloch

and the appropriate guideline range [are] . . . contested matter[s] that

will have to be determined by the Court at the sentencing hearing.

ROA.1453. Although the plea agreement included language waiving some of

Mr. Heberts appellate rights, ROA.1454-55, Mr. Hebert reserved the right to

appeal the sentence: The defendant specifically does not waive, and retains the

right[,] to bring a direct appeal of any sentence imposed, ROA.1455.

a. Admissions in the factual basis

Mr. Hebert signed an 11-page factual basis, agreeing that the Government

would establish several facts relating to his guilty pleas at trial. ROA.98-108.

In 2007, Mr. Hebert was a deputy with the Jefferson Parish Sheriffs Office.

ROA.99. In that capacity, he responded to a traffic accident on August 2, 2007,

that had injured Mr. Albert Bloch. ROA.99-100. A medical technician at the

scene handed Mr. Blochs wallet to Mr. Hebert, who then unreasonably seized

and converted to his personal use Mr. Blochs property. ROA.99. Specifically,

Mr. Hebert stole and unlawfully used Mr. Blochs debit card, personal

identification number (PIN), bank checks, and drivers license. ROA.100. Still in

uniform, he purchased two global positioning system (GPS) devices with the debit

6

card the day of the accident. ROA.100-01. Thereafter, he used the debit card to

make cash withdrawals totaling $2,634.60 and purchases totaling $7,627.12.

ROA.101. Further attempts to withdraw cash were unsuccessful as the bank

locked the debit card and issued Mr. Bloch a replacement card. ROA.102.

From September 17, 2007, through October 3, 2007, Mr. Hebert forged

checks drawn on Mr. Blochs bank account and used Mr. Blochs drivers license

and social security number. ROA.102. He used the checks to buy thousands of

dollars of race car parts from various suppliers. ROA.103-04. An attempt to cash

a forged check on October 3 was unsuccessful. ROA.105-06.

Meanwhile, Mr. Bloch used the replacement debit card the bank had sent

him until October 1, 2007. ROA.105. Then, on October 2, 2007, Mr. Hebert

obtained the replacement card and the corresponding PIN. He used and attempted

to use the new card from that time until October 4, 2007. ROA.105. Mr. Hebert

withdrew $405 with the replacement card before the bank locked the new card, too.

ROA.105. An individual then called the bank on October 5, 2007, from Mr.

Heberts telephone and attempted to have the new card unfrozen. ROA.106.

Mr. Blochs drivers license and check book were found during a search of

Mr. Heberts house in November 2007, ROA.106, as were sales receipts for some

of the race car parts, ROA.103-04. Other race car products purchased with one of

Mr. Blochs forged checks were found under a pile of leaves in a wooded area next

7

to Mr. Heberts fathers residence after Mr. Hebert was seen leaving the area in a

suspicious manner. ROA.103-04.

b. First and Second Presentence Reports

The first PSR calculated an offense level of 22 based largely on the financial

scale of the bank fraud offensesjust over $30,000. ROA.1482-83 (First PSR

pp. 22-23, 80) (citing U.S.S.G. 2H1.1; U.S.S.G. 2B1.1). With a criminal

history category of II, the guideline range of imprisonment was about six or seven

years. ROA.1490 (First PSR p. 30, 128) (46 to 57 months plus two consecutive

years for the aggravated identity theft); see also U.S.S.G. Ch.5, Pt.A (sentencing

table); U.S.S.G. 5G1.2(a).

A second version of the PSR, however, calculated a total offense level of 44

based primarily on a cross-reference in U.S.S.G. 2B1.1(c)(3) to the first degree

murder guideline in U.S.S.G. 2A1.2. ROA.1519-20 (Second PSR pp. 22-23,

80). Although Mr. Hebert had specifically denied the murder allegation in

paragraph (j) of the indictment, the second PSR cited that paragraph in applying

the cross-reference. ROA.1519-20 (Second PSR pp. 22-23, 80). The new

guideline imprisonment range was life, which would be restricted by the statutory

maximums to 153 years. ROA.1527 (Second PSR p. 30, 128); see also U.S.S.G.

Ch.5, Pt.A (sentencing table); U.S.S.G. 5G1.2.

8

c. Contested murder allegation

The district court scheduled a multi-day sentencing hearing to adjudicate the

murder allegation. ROA.143. The parties submitted pre-hearing memoranda.

ROA.1658-1720 (Governments Memorandum); ROA.1721-57 (Defendants

Memorandum); ROA.1760-70 (Governments Response); ROA.1771-75

(Defendants Reply).

Mr. Hebert argued that the Government could not prove that he killed

Mr. Bloch under any standard of review. ROA.1723-34; ROA.1742-49. Also,

Mr. Hebert raised constitutional claims that the adjudication of the murder

allegation by the district judge, under a preponderance-of-the-evidence standard,

would violate his Fifth Amendment due process and Sixth Amendment jury trial

rights. ROA.1734-40; ROA.1771. Alternatively, he argued for application of

clear-and-convincing or beyond-a-reasonable-doubt standards, which he also

contended the Government could not satisfy. ROA.1740-42; ROA.1771-74. In

addition, Mr. Hebert challenged the application of the cross-reference in U.S.S.G.

2B1.1(c)(3), ROA.1749-51, and addressed the 18 U.S.C. 3553(a) factors,

ROA.1751-57.

The murder hearing lasted longer than the vast majority of federal criminal

trials but followed very different rules. Compare ROA.174-80 (four-day hearing),

with U.S. COURTS, LENGTHS OF CIVIL AND CRIMINAL TRIAL COMPLETED, NO. T-2

9

(Sept. 30, 2014) (86% of federal criminal trials last one to three days), available at

http://www.uscourts.gov/statistics/table/t-2/judicial-business/2014/09/30 (last

visited July 24, 2015). What did not happen is as important as what did happen.

Although the Constitution provides that all crimes shall be adjudicated by

trial with due process of law, U.S. CONST. art. III, 2; U.S. CONST. amend. V-VI,

the Federal Rules of Evidence and the Confrontation Clause, for example, were not

heeded at Mr. Heberts murder hearing, cf. FED. R. EVID. 1101 (rules of evidence

do not apply); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006)

(confrontation clause does not apply). In fact, the Government adduced hearsay,

see, e.g., ROA.866, as well as the testimonial statements of several deceased

individuals who, obviously, could not be cross-examined, ROA.880-916;

ROA.1013-62. Although the Constitution provides that the trial of all crimes shall

be by an impartial jury, U.S. CONST. art. III, 2; U.S. CONST. amend. VI,

Mr. Heberts guilt of the murder for which he was sentenced was decided by a

judge, ROA.1390-1400.

In addition to the admissions noted above, the witnesses and other materials

presented at the murder hearing showed that Mr. Bloch had [s]ignificant COPD,

ROA.751, was a functional alcoholic, ROA.512, ROA.723-24, and struggled with

depression, whether due to post-traumatic stress disorder or the passing of his

common law wife, ROA.698, ROA.724. He had been displaced and even

10

homeless after Hurricane Katrina, but a rehabilitation program arranged

transitional housing for him and helped him apply successfully for Social Security

benefits that more than doubled his monthly income, in addition to a lump sum

payment of past-due benefits. ROA.717-28.

He lived in an apartment by himself, ROA.855, and frequented area bars,

where he visited with a handful of friends, ROA.900-02; ROA.950; ROA.982.

Several friends reported last seeing him in late September or early October, see,

e.g., ROA.625 (Oct. 2); ROA.910 (Sept.); ROA.956 (Oct. 2); ROA.993 (Sept. 28);

ROA.1008 (late Sept.), while others said they last saw him in November,

ROA.928; ROA.963; ROA.1073.

There was no body or murder scene, but Mr. Blochs car was later found

down the street from his apartment. ROA.642. The license plate had been

removed and the vehicle identification number covered. ROA.651. An ATM

receipt in the car from a nearby bar that Mr. Bloch frequented was dated October 1,

2007. ROA.650-51. A key to Mr. Blochs car was found in Mr. Heberts police

unit. ROA.1202-04. His apartment was abandoned and his prescriptions went

unfilled. See, e.g., ROA.846.

The Government believed that a note in the car that had the name and phone

number of a sheriffs deputy for a paid security detail was a possible link to

Mr. Hebert, ROA.599-600, but a Government witness acknowledged that

11

Mr. Hebert did not work security details but only motorcycle escort details,

ROA.642-43. The Government also pointed to a television that was missing from

Mr. Blochs apartment in early October. It was similar to a television that

Mr. Hebert brought into his house and then removed after police began

investigating him. ROA.612-17; ROA.671; ROA.702; ROA.889-90. The

Government also presented other things, like testimony from Mr. Heberts ex-wife

that he had a temper, ROA.658, statements from others regarding a hypothetical

comment he made about burying a body, ROA.1287-90, and testimony regarding

how much he perspired when discussing the missing person investigation with a

friend, ROA.1260.

The district court found by a preponderance of the evidence that the

Government established that Mr. Hebert killed Mr. Bloch:

While Mr. Blochs body has never been located, there is substantial circumstantial evidence indicating that Mark Hebert

committed this murder. On October 1, Albert Bloch had his new debit

card on his person. On October 2, Albert Bloch visited Joes Caddy Corner for drinks and gambling. He necessarily had on his person his

money and his wallet. On October 3, Mark Hebert was in possession

of the debit card. While this Court cannot say how Mr. Blochs debit card was removed from his person by Mr. Hebert, removed it was.

Mr. Blochs car was last seen at his apartment in early October. I believe, based on all of the evidence, that he was in his car on

October 2. Uncontradicted testimony reveals that the Volvo was

parked in a secluded parking lot, though near his home and Joes Caddy Corner, with the license plate removed and the VIN number

covered in early October. The key to Mr. Blochs car was found in the defendants police cruiser. I believe that after Mr. Hebert

12

murdered Mr. Bloch, he moved the car in an effort to thwart any

investigation of Mr. Blochs [dis]appearance. Subsequent to October 3, 2007, Mark Hebert began in earnest

to divest Mr. Blochs account of all remaining funds. The evidence revealed that Mark Hebert entered Albert Blochs apartment on numerous occasion[s] following October 2, this Court believes to

intercept any attempt by Chase Bank to discover the fraud. However,

even this could not satisfy Mark Heberts insatiable desire to steal from Mr. Bloch. In a final blow, Mark Hebert entered Mr. Blochs apartment and stole his new television set.

Exactly how Mark Hebert murdered Mr. Albert Bloch we may

never know. There is no body and there is no clear crime scene.

There are scenarios that the Court believes make sense. Certainly

sometime during Mark Heberts shift from 10:00 p.m. on October 2 until 6:00 a.m. an October 3, Mark Hebert could have initiated a

traffic stop on Albert Bloch as he left Joes Caddy Corner. Mr. Bloch could have been handcuffed and taken to another location where the

defendant murdered him and disposed of his body. The defendant

could have returned to the Volvo and abandoned it in the back of an

apartment complex. This logically explains the location of the

vehicle, the lack of physical evidence in the Volvo, and the apartment.

Other scenarios are possible, but under all scenarios it is clear that

Mark Hebert killed Albert Bloch.

In conclusion, I have considered all of the evidence and find

that the United States has proven beyond a preponderance of the

evidence that Mark Hebert murdered Albert Bloch. This Court finds

that the government has met this burden by clear and convincing

evidence.

I should add that in assessing all of the evidence, I could not

find a doubt to which I could assign reason. I do not find, however,

that the United States has proven that Mr. Hebert committed first

degree murder. Rather, I find that the evidence shows by clear and

convincing evidence that Mark Heberts conduct satisfies the elements of second degree murder.

ROA.1398-1400.

13

d. Final sentencing hearing

The final PSR reported the same guideline calculation as the second PSR

153 years. ROA.1597 (Final PSR p. 30, 130); see 5G1.2. At the last

sentencing hearing, Mr. Hebert expressed remorse for his financial crimes against

Mr. Bloch but continued to deny that he killed him. ROA.1424-28. In closing, he

stated: I pray, however, that I will not be required to serve a sentence for crimes

that I did not commit. ROA.1428.

When the Government, in turn, asked for a 153-year sentence, ROA.1432, it

argued that the most egregious part of this case was that the defendant killed

Mr. Bloch in furtherance of this scheme, ROA.1434. The Government also

argued that Mr. Hebert concealed the body to the point where even today, . . . we

do not know where it is. ROA.1434

The district court adopted the PSR, including the cross-reference, Statement

of Reasons (SOR) p. 1, and sentenced Mr. Hebert to 92 years of imprisonment,

ROA.1436. In selecting this sentence, the court reasoned that Mr. Hebert killed

Mr. Bloch and disposed of his body for his personal financial gain. ROA.1436.

Addressing Mr. Hebert, the court stated: You wanted everything that belonged to

Albert Bloch, even his life. . . . This heinous crime is beyond comprehension.

ROA.1437.

14

Mr. Hebert moved for correction or reconsideration of the sentence.

ROA.302-12; ROA.415-21. The district court denied those motions, ROA.382-83,

ROA.423-25, and the instant consolidated appeals followed, ROA.426-33.

15

SUMMARY OF THE ARGUMENT

Mr. Mark Hebert pleaded guilty to a misdemeanor civil rights offense, five

counts of bank fraud involving a total actual loss of about $16,000, and aggravated

identity theft. The district court held a four-day hearing and determined that he

was guilty of second degree murder in the disappearance of Mr. Albert Bloch.

Based on the murder finding, the court sentenced Mr. Hebert to 92 years in prison.

This Court should vacate the sentence due to procedural, legal, and

constitutional errors. First, the Government failed to prove that Mr. Bloch was

killed, much less that Mr. Hebert committed second degree murder. Second, the

guideline cross-reference did not apply and, even if it did, would not have pointed

to the offense guideline for second degree murder. Third, the district judge

supplanted the role of the jury in our constitutional system of criminal justice by

finding facts that effectively increased Mr. Heberts statutory sentencing exposure.

Fourth, a 92-year prison sentence for the offenses of conviction is

unconstitutionally excessive.

16

ARGUMENT

1. The Government failed to prove that Mr. Hebert killed

Mr. Bloch, much less that he did so under circumstances

amounting to second degree murder.

a. Review is for clear error.

Over the course a four-day hearing and after, Mr. Hebert contested the

Governments claim that he committed murder. See, e.g., ROA.1374-83;

ROA.1742-49. This Court reviews the district courts factual findings for clear

error. United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). A factual

finding is clearly erroneous if it is implausible in light of the record as a whole.

United States v. Gomez, 623 F.3d 265, 267-68 (5th Cir. 2010).

b. The Government did not prove a killing, and certainly not second degree murder.

Although the Government has the burden of proving a sentencing

enhancement by a preponderance of the evidence, United States v. Juarez, 626

F.3d 246, 251 (5th Cir. 2010), it failed to do so here. There was no body. There

was no murder scene. No DNA or blood evidence indicated that Mr. Bloch was

killed. He had severe COPD and used inhalers. ROA.846. Only weeks before,

Mr. Bloch had totaled his car in a single-car accident. ROA.541; ROA.883.

Several witnesses reported seeing Mr. Bloch after the time the Government

claims he was killed. See, e.g., ROA.1073. Although there was some interruption

17

of his routines, second degree murder by Mr. Hebert is not the only logical

explanation.

In any event, not only was there insufficient evidence to find that Mr. Hebert

was responsible for the death of Mr. Bloch, as discussed above, but even assuming

that finding could be affirmed, there was no evidentiary basis for choosing to

cross-reference to a guideline involving second degree murder. See LA. REV.

STAT. 14:30.1. The record is devoid of evidence establishing Mr. Heberts

mental state at the time of the alleged killing, whenever that was. The event could

just as easily have involved manslaughter or negligent homicide. If applied, the

cross-reference in 2B1.1(c)(3) should have led to U.S.S.G. 2X5.1. See also

2X1.1, cmt. n.3 (If the substantive offense is not covered by a specific

guideline, see 2X5.1 (Other Offenses).). That section, in turn, should have led

to U.S.S.G. 2A1.4 (Involuntary Manslaughter), which is the most analogous

offense guideline for the Louisiana offense of negligent homicide. See 2X5.1;

LA. REV. STAT. 14:32. The cross-reference to a guideline for offenses involving

intent to commit second degree murder was wholly unfounded. This Court should

therefore vacate the sentence imposed within the resulting guideline range and

remand the case to the district court for resentencing.

18

2. The cross-reference did not apply because the contested

murder allegation was not part of the count of conviction.

a. Review is de novo.

Mr. Hebert objected to the cross-reference. ROA.1412-15, esp.

ROA.1414:16-1415:9 (quoting United States v. Genao, 343 F.3d 578, 583 (2d Cir.

2003); ROA.1749-51; ROA.309-11 see also ROA.1622-23. This Court reviews

the district courts interpretation or application of the Sentencing Guidelines

de novo. Trujillo, 502 F.3d at 356.

b. Because Mr. Hebert expressly denied the murder when pleading

guilty, it was not part of the count of conviction.

This cross-reference is applicable only if the conduct alleged in the count

of the indictment of which the defendant is convicted establishes the elements of

another offense. United States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006)

(quoting Genao, 343 F.3d at 583); see United States v. Arturo Garcia, 590 F.3d

308, 315 (5th Cir. 2009) (same). The district court erred in cross-referencing to the

federal murder guideline pursuant to U.S.S.G. 2B1.1(c)(3). Specifically, the

district court failed to appreciate that because Mr. Hebert expressly refused to

admit the murder allegation in paragraph (j) of the Counts 2 - 49 section of the

indictment, this alleged conduct was not part of the count of conviction as that

term is used in 2B1.1(c)(3) (emphasis added). See ROA.98-108; ROA.1453.

19

Federal indictments may be proved disjunctively even if worded

conjunctively. In Omari v. Gonzales, 419 F.3d 303, 308 n.10 (5th Cir. 2005), this

Court recognized that [i]ndictments often allege conjunctively elements that are

disjunctive in the corresponding statute, and this does not require either that the

government prove all of the statutorily disjunctive elements or that a defendant

admit to all of them when pleading guilty. See also United States v. Morales-

Martinez, 496 F.3d 356, 359 n.1 (5th Cir. 2007). Here, the additional elements

that the Government sought to embroider onto the count of conviction do not even

appear in the statute of conviction. In any event, Mr. Hebert expressly refused to

admit the additional allegations in paragraph (j), and those charges thus do not

form part of any count of conviction. See Omari, at 308-09 & n.10; see also

Arturo Garcia, 590 F.3d at 315.

The Sentencing Guidelines distinguish the term offense from the term

offense of conviction. U.S.S.G. 1B1.1, cmt. n.1(H). The former generally

includes both the offense of conviction and all relevant conduct under 1B1.3

(Relevant Conduct). Id. The latter, means the offense conduct charged in the

count of the indictment . . . of which the defendant was convicted. U.S.S.G.

1B1.2(a). Furthermore, the Guidelines use count of conviction and offense of

conviction interchangeably. Id. Courts have recognized the distinction. United

States v. Greenough, 669 F.3d 567, 574-75 (5th Cir. 2012); United States v.

20

Aquino, 555 F.3d 124, 129 (3d Cir. 2009); United States v. Blackwell, 323 F.3d

1256, 1260 (10th Cir. 2003).

Accordingly, when identifying the guideline that applies to an offense of

conviction, [t]he court is to use the Chapter Two guideline section referenced in

the Statutory Index (Appendix A) for the offense of conviction. 1B1.2, cmt.

n.1. This language was specifically added to the Guidelines Manual to stop

sentencing courts from using a defendants relevant conduct to select an offense

guideline other than that referenced in the statutory index. U.S.S.G. App. C,

amend. 591. It is unsurprising, then, that the commentary contemplates that the

2B1.1(c)(3) cross-reference will trigger the application of a Chapter Two

guideline for a distinct yet similarly fraudulent offense. 2B1.1, cmt. n.16

(stating that (c)(3) provides a cross-reference . . . in cases in which the defendant

is convicted of a general fraud statute, and the count of conviction establishes an

offense involving fraudulent conduct that is more aptly covered by another

guideline (emphasis added)).

[A]n exception to this general rule is that if a plea agreement (written or

made orally on the record) contains a stipulation that establishes a more serious

offense than the offense of conviction, the guideline section applicable to the

stipulated offense is to be used. Id.; see, e.g., United States v. Shah, 453 F.3d 520

(D.C. Cir. 2006). Here, the opposite is truethe plea agreement contains a

21

stipulation that establishes that the allegations of paragraph (j) are not admitted and

therefore do not form part of the count of conviction. ROA.1453. By considering

conduct that did not form part of the count of conviction when deciding whether to

apply the cross-reference in 2B1.1(c)(3), this Court erred. See Greenough, 669

F.3d at 573-75.

Moreover, the cross-reference provision only applies if the conduct set

forth in the count of conviction establishes an offense specifically covered by

another guideline in Chapter Two (Offense Conduct). 2B1.1(c)(3). A state-law

killing is not specifically covered by another guideline as state crimes do not

appear in Appendix A. Instead of being specifically covered by a Chapter Two

guideline, a state-law killing would instead fall under either U.S.S.G. 2X5.1

(Other Felony Offenses), which pertains to a felony for which no guideline

expressly has been promulgated, or U.S.S.G. 2X5.2 (Class A Misdemeanors

(Not Covered by Another Specific Offense Guideline)). The background

commentary to 2X5.1 notes that [m]any offenses, especially assimilative

crimes defined by state law, are not listed in the Statutory Index or in any of the

lists of Statutory Provisions that follow each offense guideline. Because such

crimes are not specifically covered, courts are required to determine if there is a

sufficiently analogous offense guideline. Id.

22

In short, Mr. Hebert expressly denied that he was responsible for

Mr. Blochs death. Killing Mr. Bloch, therefore, could not form part of any count

of conviction. Arturo Garcia, 590 F.3d at 315. The cross-reference did not

apply, and without it, the advisory range would have been about six or seven years

rather than 153 years. See ROA.1490 (First PSR p. 30, 128). Accordingly, this

Court should vacate the 92-year murder sentence and remand the case for

resentencing. See Peugh v. United States, 133 S. Ct. 2072, 2080 (2013) ([A]

major departure [from the Guidelines] should be supported by a more significant

justification than a minor one. (alterations in original) (quoting Gall v. United

States, 552 U.S. 38, 49 (2007)).

3. Sentencing Mr. Hebert for murder without a murder

conviction violated his constitutional rights.


Mr. Hebert raised as-applied constitutional challenges to being sentenced for

murder after pleading guilty to a different crime. ROA.1734-42; ROA.306-07. He

invoked both the due process and jury trial rights. E.g., ROA.1735 (due process

right); ROA.1738 (right to trial by jury); ROA.306 (both). Accordingly, this Court

reviews the constitutional claims de novo. United States v. Romero-Cruz, 201 F.3d

374, 377 (5th Cir. 2000).

23

b. The due process and jury trial clauses of the Fifth and Sixth

Amendments prohibit what happened in this case.

Only a jury applying a reasonable doubt standard can make findings that

increase a statutory punishment range. Alleyne v. United States, 133 S. Ct. 2151,

2156 (2013). Here, the district judges murder finding increased the effective

statutory range of punishment for Mr. Heberts offenses. But for the judges

finding of murder, the 92-year sentence would be substantively unreasonable and

therefore unlawful. Resentencing is warranted.

In Rita v. United States, 551 U.S. 338 (2007), Justice Scalia presciently

observed that there w[ould] inevitably be some constitutional violations under

[the post-Booker] system of substantive reasonableness review, because there

w[ould] be some sentences that w[ould] be upheld as reasonable only because of

the existence of judge-found facts. Id. at 374 (Scalia, J., concurring in part and

concurring in the judgment). And, in Gall v. United States, 552 U.S. 38 (2007),

Justice Scalia noted that the [Supreme] Court has not foreclosed as-applied

constitutional challenges to sentences. The door therefore remains open for a

defendant to demonstrate that his sentence . . . would not have been upheld but for

the existence of a fact found by the sentencing judge and not by the jury. Id. at

602-03 (Scalia, J., concurring); but cf. United States v. Hernandez, 633 F.3d 370,

373-74 (5th Cir. 2011).

24

In a later case, Justice Scalia found a constitutional violation of the type that

he had predicted in Rita and Gall. See Marlowe v. United States, 555 U.S. 963,

963-64 (2008) (mem.) (Scalia, J., dissenting from denial of certiorari). In

Marlowe, the defendant was convicted of a civil-rights violation involving

involuntary manslaughter by criminal negligence. The sentencing court, however,

found that the defendant had possessed the malice aforethought required to

elevate the homicide to second-degree murder. This judicial finding elevated the

Guideline offense level from 10 to 33, producing a Guideline-recommended

sentence of life imprisonment, which the sentencing court imposed. On appeal,

the Sixth Circuit found the life sentence lawful solely because of the judge-found

fact that Marlowe had acted with malice aforethought. Id. at 964 (Scalia, J.,

dissenting from denial of certiorari). This, said Justice Scalia, falls short of

what we have held the right to jury trial demands . . . . Id. (Scalia, J., dissenting

from denial of certiorari).

This case raises precisely the sort of constitutional violation identified by

Justice Scalia, in a context even starker than that presented in Marlowe.2 Here, but

for the judicial finding that Mr. Hebert committed second degree murder by killing

Mr. Bloch, Mr. Heberts offenses of conviction would have produced a guideline

2 In Marlowe, the defendant was at least convicted of some homicide offense; the judicial

finding concerned merely the grade of the homicide. Here, Mr. Hebert was not convicted of any

homicide offense.

25

imprisonment range of only six or seven years. See ROA.1490 (First PSR p. 30,

128). But, with that finding, Mr. Hebert was sentenced to 92 years in prison.

There can be no doubt that Mr. Heberts 92-year sentence could not be considered

substantively reasonable without the judicial finding of murder. Accordingly,

Mr. Heberts sentence violates the Fifth and Sixth Amendments. The sentence

should therefore be vacated and remanded for resentencing.

4. A 92-year sentence for a civil rights misdemeanor, $16,000 of

bank fraud, and aggravated identity theft is

unconstitutionally excessive.


Mr. Hebert preserved an objection to his sentence under the Eighth

Amendment. ROA.305-08. This Court reviews constitutional claims de novo.

United States v. Fields, 483 F.3d 313, 340 (5th Cir. 2007).

b. The 92-year sentence does not fit the crime.

The Eighth Amendment to the United States Constitution expressly prohibits

excessive sanctions, U.S. CONST. amend. VIII, which the Supreme Court has

interpreted to mean that punishment must not be grossly out of proportion to the

severity of the crime, Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal

quotation marks and citations omitted). The Eighth Amendments ban on

excessive sanctions is rooted in the precept of justice that punishment for crime

26

should be graduated and proportioned to [the] offense. Roper v. Simmons, 543

U.S. 551, 560 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)).

In the non-capital sentencing context, a courts proportionality analysis

under the Eighth Amendment should be guided by objective criteria, including

(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences

imposed on other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdictions. Solem v. Helm,

463 U.S. 277, 284 (1983). Indeed, [t]he concept of proportionality is central to

the Eighth Amendment, Graham v. Florida, 560 U.S. 48, 59 (2011), because it is

necessary to comport[ ] with the basic concept of human dignity at the core of the

[Eighth Amendment], Gregg, 428 U.S. at 182.

Mr. Hebert pleaded guilty to violating three federal statutesmisdemeanor

civil rights, bank fraud, and aggravated identity theftbut was sentenced based on

a different crimemurder. The consequences were devastating: a 92-year

sentence driven by a sentencing factor outside the facts of his conviction.

Permitting the criminal justice process to function in this way blows a gaping

loophole in the Bill of Rights, allowing an end-run around its critical protections

for the accused in criminal cases. See also Apprendi v. New Jersey, 530 U.S. 466,

562-63 (2000) (Breyer, J., dissenting) (recognizing that sentences such as this

present unusual and serious procedural unfairness). This Court should vacate

27

Mr. Heberts sentence because it is a disproportionate and excessive punishment

that violates the constitutional prohibition against cruel and unusual punishment.

CONCLUSION

The district court sentenced Mr. Hebert for murder though he was never

convicted of that crime. Moreover, the Government failed to prove the murder

even by a preponderance of the evidence, and the bank fraud guideline did not

support a cross-reference to that offense. The result is a 92-year prison sentence

that is procedurally erroneous and unconstitutional. This Court should vacate the

sentence and remand the case for resentencing according to law.

Respectfully submitted this 24th day of July, 2015,

CLAUDE J. KELLY

Federal Public Defender

Eastern District of Louisiana


JORDAN MARK SIVERD


500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

[email protected]

CERTIFICATE OF SERVICE

The undersigned certifies that on this 24th day of July, 2015, the foregoing

Appellants Brief was filed with the Clerk of Court via the electronic filing system,

which will send an electronic Notice of Docket Activity to the following Filing

Users:

Mr. Vijay Shanker

Deputy Chief

Appellate Section, Criminal Division

U.S. Department of Justice

[email protected]

Mr. Andre Jude Lagarde

Assistant United States Attorney

U.S. Attorneys Office for the Eastern District of Louisiana

[email protected]

The courts electronic Notice of Docket Activity constitutes service of the filed

document on all Filing Users. 5TH CIR. R. 25.2.5.


JORDAN MARK SIVERD


CERTIFICATE OF COMPLIANCE

The undersigned certifies that:

1. This brief complies with the type-volume limitation of FED. R.

APP. P. 32(a)(7)(B) because this brief contains 5,771 words,

excluding the parts of the brief exempted by FED. R. APP.

P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED. R.

APP. P. 32(a)(5) and 5TH CIR. R. 32.1 and the type style

requirements of FED. R. APP. P. 32(a)(6) because this brief has

been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in Times New Roman, 14-point font for

text and 12-point font for footnotes.

3. This brief complies with the privacy redaction requirement of

FED. R. APP. P. 25(a)(5), 5TH CIR. R. 25.2.13, and FED. R. CRIM.

P. 49.1, because it has been redacted of personal data

identifiers.

4. This electronic submission is an exact copy of the paper

document, in compliance with 5TH CIR. R. 25.2.1.

5. This brief is free of viruses because it has been scanned for

viruses with the most recent version of Symantec Endpoint

Protection, in compliance with 5TH CIR. ECF FILING

STANDARD A(6).


JORDAN MARK SIVERD


Dated: July 24, 2015

hebert 14-31405 brief rev8 lx

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