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1975-2013: "Furthering the Legacy: Building Influence Through Advocacy to Shape the Changes of Tomorrowâ&#x20AC;? If there is no struggle, there is no progress. -Frederick Douglass Rashad Pendarvis, National Director of FDMCC Courtney Littlejohn, National Specialist Jasmine Liverpool, National Specialist Charles Tucker Jr., Esq., National Advisor

Case No. 13-2566

JAY LONGFELLOW, Petitioner,

UNITED STATES DEPARTMENT OF JUSTICE, AND FEDERAL BUREAU OF PRISONS, Respondents.

RECORD

Table of Contents

WRIT OF CERTIORARI ……………………….…………………………… 1 II.

STATEMENT OF THE CASE ………………….………………………...…

III.

DISTRICT COURT OPINION ……………………………………………… 14

IV.

COURT OF APPEALS OPINION …………………………………………… 18

V. 34

APPENDIX ……………………………………………………………..…….

FALL 2013 IN THE SUPREME COURT OF THE UNITED STATES ____________________________________________________________________ JAY LONGFELLOW, Petitioner, v. UNITED STATES, DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF PRISONS, Respondents.

) ) ) ) ) ) ) ) ) ) )

PETITION FOR WRIT OF CERTIORARI

) ____________________________________________________________________

Petitioner, in the above-captioned matter, prays that a Writ of Certiorari be issued to review the judgment of the United States Court of Appeals for the Eleventh Circuit, entered on July 15, 2013.

/s/_______________________________ Charlotte Ford, Esq.

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Case No. 13-2566 IN THE SUPREME COURT OF THE UNITED STATES ____________________________________________________________________ ) ) ) ) v. ) ORDER GRANTING ) WRIT OF CERTIORARI UNITED STATES, ) DEPARTMENT OF JUSTICE, and ) FEDERAL BUREAU OF PRISONS, ) Respondents. ) ) ____________________________________________________________________ JAY LONGFELLOW, Petitioner,

PER CURIAM: The petition for Writ of Certiorari to the United States Supreme Court is hereby, GRANTED. IT IS ORDERED that the above-captioned appeal be set for argument in the Spring Term of 2014; said argument shall be limited to the following issues: I. II. III.

Whether the United States Department of Justices’ charges pursuant to 21 U.S.C.S. § 34 violated Petitioner’s due process rights under the Fifth Amendment. Whether the actions of Petitioner’s trial attorney amounted to ineffective assistance of counsel under the Sixth Amendment. Whether the Federal Bureau of Prisons’ denial of Petitioner’s request for a medical transfer from prison violated Petitioner’s rights under the Fifth and Eighth Amendments.

/s/_______________________________ Jodi James, Court Clerk September 15, 2013

STATEMENT OF FACTS Page 6 of 34

Ivy University (IU) was known for its athletic programs and high academic standards. In particular, IU’s basketball, football and baseball teams were the school’s pride and joy as many of the IU players were recruited professionally after college. However, it was rumored among students and faculty that IU also had a reputation for disregarding academic requirements for student athletes. In the past couple of years, the NCAA had questioned IU’s athletic director and the head coach of the basketball team about allegations that every player on the basketball team maintained a 3.0 grade point average (GPA), regardless of the classes or professors they had. Many IU students had written articles in the school newspaper, alleging that every athlete on campus had been given an automatic 2.5 GPA at the end of each semester, at the athletic director’s instruction, to ensure that key players continued to play and maintain the director’s reputation for winning games. Other articles suggested that the head coach of the football team, a former IU and professional athlete with several connections within the school, had an unspoken agreement with university professors to “adjust” his players’ grades as necessary and make sure they remained academically eligible for competition. Yasmine, Tyler, and Christina, IU honor students in their third year of college, knew about the rumors surrounding IU’s athletic department. The women often saw the “jocks” being given preferential treatment at school events and saw the entire student body cater to the athletes’ needs. Most of the other students did not receive financial aid and struggled to remain in school, while the athletes drove around in late-model Range Rovers and Mercedes Benz trucks, which the athletes claimed were bought with earnings from their summer jobs on campus. IU alumni and students complained that the university’s administration had broken too many rules and made too many exceptions for student athletes.

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During Yasmine, Tyler, and Christina’s freshman year, the women made a pact with one another to stay away from jocks because, in their minds, the athletic department eroded the university’s academic standards and integrity. Instead, the young women were determined to excel in school and change the world after graduation. However, in order to achieve their goals, the women realized that they had to participate in various organizations, groups and sororities to establish important contacts. The women knew that the first student body mixer of 2012 was an important event to attend because it was a chance to mingle with hundreds of students in a short amount of time, and party with the most influential students on campus. Christina had been invited to an after-party hosted by Jay Longfellow and Fred Cougar, senior IU athletes, and Christina had invited Yasmine and Tyler to join her. As it was the beginning of the semester, the women had just received money from their parents as well as financial aid and scholarship funds, and spent much of their money on clothes and orange bottom shoes. That Friday, the women shamelessly flaunted their beauty and intelligence at the mixer. While there, Tyler spotted one of the running backs from the football team and began to have second thoughts about the pact she made to stay away from athletes. Unbeknownst to her friends, Tyler had been somewhat wild in high school and had a reputation with the athletes at her school before she met Christina and Yasmine in college who had persuaded her to date “better” men. Jay, IU’s quarterback, was also at the mixer and noticed Tyler as soon as she entered the room; however, Jay could tell that Tyler and her friends were not easily impressed, so he did not approach them. Fred, the captain of the men’s basketball team, was Jay’s best friend. The “dynamic duo” met in high school where they had excelled at their respective sports. After graduation, Jay joined the United States Army and Fred joined the United States Marine Corps even though they had both been accepted to IU. The duo lost touch after they joined the military and reunited when they both enrolled at IU four years later. The two athletes were inseparable, not only because of their history Page 8 of 34

as high school friends, but also because they were both fellow national guardsmen throughout college. Fred was especially committed to watching out for Jay because he respected Jay for having served in Iraq. In return, Jay was grateful for Fred’s friendship, as Fred had helped him to readjust to life when he returned from the Middle East. However, he still relied on drugs to do the rest. Later that Friday night, Jay left the mixer to help Fred get ready for the after-party at their house. They lived in a split-level house where the kitchen and bedrooms were upstairs, and the living and family rooms were downstairs. Jay and Fred had converted the two downstairs bathrooms into bars where they served food and alcohol. During their sophomore year, Jay and Fred discovered that they liked to cook and the two decided to sell beer and food at their parties on Friday and Saturday nights. Many students made it a tradition to go to Fred and Jay’s parties every weekend because of the good food and cheap beer. Prior to beginning the business venture, Fred and Jay attempted to sell a small amount of marijuana at a friend’s party. After being confronted by a local drug dealer who warned them not to steal his customers, the two realized their stupid mistake and came up with a safer way to make money fast. Around 9:30 p.m., the party guests began to line up outside of Fred and Jay’s house and down the block. Christina, Yasmine and Tyler arrived at the party house shortly after 10:00 p.m. and wanted to have fun before confining themselves to the university library for the next three months. They began drinking immediately and it was not long before they had each set their eyes on a male prospect. In the meantime, Fred and Jay were serving food and beer at the bars. By 1:00 a.m., they had already made about $1,500.00 at each bar and had run out of food. The duo decided to employ a few fellow athletes to work the bars and joined the party. On the main level of the house, Tyler, Christina and Yasmine befriended three male students who made it their personal mission to keep the girls’ drinks filled, and although the Page 9 of 34

women felt they had already reached their limit, they continued to drink. After their third drinks, the women saw Jay and Fred talking to Lyle, the running back that Tyler had noticed at the mixer. Christina and Yasmine had met Jay and Fred before and the women recalled being unimpressed; however, Tyler had never met the dynamic duo. At that moment, Tyler became determined to meet Lyle and told her friends that she had to go to the restroom. After Tyler left the group, Christina and Yasmine noticed the basketball team’s captain, who was from Brazil, and the new point-guard, from Cuba; and quickly broke away from their male admirers to talk with the soccer players. Across the room, the guys began to discuss how funny it would be if they put a “Molly” into a female student’s drink that night, as described in their favorite rap song, in order to get an easy score. Jay thought it was a great idea as he had done this in the past, and Fred laughed but did not want to participate. However, after a few more drinks and additional prodding, Fred acquiesced to the plan and kept his reservations to himself. Lyle was in agreement with the plan from the beginning and wanted to meet Tyler in particular. Jay felt anxious and weak as he saw Tyler approach the group and he could not tell if he felt this way because of Tyler’s beauty or because of the worsening symptoms he had experienced in the past month. Jay had always experienced mild fatigue, light-headedness and weakness, which he controlled with diet, supplements and sleeping pills. When Tyler approached the group of guys, she introduced herself to everyone but hovered near Lyle as much as possible. Jay was disappointed to see that Tyler was not interested in him, especially since he considered himself to be one of the more successful and well-rounded athletes at school, but decided to help Lyle and Tyler get together since Lyle was a good friend. Jay could tell that Tyler had reached her alcohol limit hours ago, but he continued to offer her drinks. Around 2:00 a.m., the drinks had caught up to everyone and the party was at its peak. Jay, Tyler and Lyle stayed together by the bar, and Christina and Yasmine remained next to the basketball team in the living room. Page 10 of 34

Around 5:00 p.m. the next day, Christina, Yasmine and Tyler finally woke up, showered, got dressed, and began chatting online about the previous night. When Christina and Yasmine asked Tyler where she went after leaving for the bathroom, Tyler decided to tell them what happened. However, being the daughter of the Dean of Academic Affairs, Tyler felt embarrassed about waking up next to Jay that morning, and even more embarrassed about being rejected by Lyle when any other athlete on campus would have given his right arm to be with her. Tyler told her friends that she had switched to drinking water and lemon after she went to the bathroom and could not understand how she had woken up next to Jay that morning. Tyler decided not to tell her friends about her interest in Lyle as she did not want to admit that she had pursued a jock at the party, much less been rebuffed by one. Instead, Tyler told them how Jay had hit on her the entire night and would not leave her alone. Tyler also neglected to tell her friends how Jay had comforted her when Lyle left to dance with another girl and how they ended up talking for quite a while. Tyler could not remember what happened after Lyle left, but she knew she had been upset about Lyle’s rejection. It wasn’t long after that Tyler saw her Twitter go ballistic over a Facebook video showing details of a sex video involving her and Jay. After Christina, Yasmine and Tyler reviewed the details of the night with Tyler, they all came to the conclusion that Jay had drugged Tyler and taken advantage of her. Tyler decided to report the assault and told the police what happened. Meanwhile, Fred and Jay had just finished cleaning their house and found a stack of unopened mail under an empty keg that must have been several weeks old. In the stack of mail, Jay found a letter from his doctor about his test results to find out why he felt so fatigued over the past several weeks. The doctor’s report showed that Jay had a rare blood disease, caused by a hereditary gene and protein, which would likely worsen without proper care and cause him to need frequent blood transfusions. Jay noticed that the doctor had carbon copied his report to a military Page 11 of 34

physician at the National Guard medical office. Jay contacted his superiors immediately, and after speaking with several people, Jay learned that his medical condition called for an honorable discharge from the National Guard and that his discharge paperwork had been completed the day before. Jay was extremely upset and did not notice the doorbell. When Jay looked up, he saw Fred walk into the living room with two police officers behind him. One police officer told Jay that he needed to go to the police station for questioning, but stated that Jay was not under arrest. Jay feared the worst. At the police station, Jay knew that he had to be completely honest about what happened at the party. Jay told the police officers that he met Tyler at the party and she had been interested in his friend Lyle. Jay tried to help Lyle and Tyler get together, but he noticed that Lyle was not interested in Tyler. Jay also noticed that Tyler was extremely intoxicated but thought she handled her alcohol well until Lyle rebuffed her advances. At that time, Tyler became angry and emotional and went to Jay for comfort. Jay thought that Tyler was an interesting and intelligent woman and admitted to being attracted to her. Jay acknowledged that he put an over-the-counter sedative called Molly in Tyler’s drink to calm her down. About an hour later, Tyler seemed to relax and she and Jay went to his bedroom. Jay told the interrogating officers that he and Tyler had chemistry and she wanted to sleep with him. When confronted over the video posted online, Jay gave the officers a blank look and basically laughed it off. The officers then placed Jay under arrest. Allowed to make one phone call, Jay called his mother and asked her to find him an attorney. Jay’s mother recommended that he retain a reputable criminal defense lawyer named Raymond Burrell. Jay’s mother also told him that his National Guard discharge papers had come in the mail, which confirmed that he had waived his right to attend a hearing with the selection board and he was officially discharged from the Guard as of that day at the recommendation of a military physician Page 12 of 34

and his unit commander. Although his mother was sad about his discharge, she believed this would finally allow him to seek help for his nightmares and flashbacks. On August 28, 2012, just a few days after a spirited media outcry, the U.S. attorney charged Jay with drug possession, drug distribution, drug trafficking and facilitating a sex offense with a controlled substance pursuant to 21 U.S.C.S. § 34. Additionally, the U.S. Attorney charged Jay with rape under the RICO Act, which meant that he faced serious jail time in a federal penitentiary if convicted. Jay’s attorney, Mr. Burrell, advised Jay that he had a difficult case and that he should prepare for the worst. Mr. Burrell also told him that he probably had a better chance at winning on appeal because of the judge assigned to the case. The veteran attorney felt sorry for Jay and sympathized with him. Mr. Burrell was a military veteran himself and had fought in Desert Storm. He and his wife began having marital problems when he returned from fighting and had recently divorced. Additionally, Mr. Burrell had been diagnosed with early-stage brain cancer about five months earlier and had just completed chemotherapy. Although he was stressed about the state of his practice, which had taken a turn for the worst because of financial problems, Mr. Burrell was happy to represent Jay. Based on his knowledge of the facts of Jay’s case, as well as his familiarity with the signs of PTSD, Mr. Burrell thought he had a viable defense. Mr. Burrell was so confident in his ability to defend Jay’s case that he decided to also represent Jay’s friends, Lyle and Fred, who were each being charged separately with conspiracy to facilitate a sex offense with a controlled substance. Mr. Burrell knew that the more attention he received regarding these high profile cases, the better off his practice would be. Additionally, he was confident that he could defend each friend zealously. Undoubtedly, Jay’s case was likely to garner the most media attention. Based on his previous criminal experience, Mr. Burrell knew that it would be fairly easy to prepare for trial and for the most part, he only needed to interview a few witnesses, mostly Jay’s family and friends. Page 13 of 34

While he considered retaining a mental health expert to assess Jay, he decided against it because Jay had not given him reason to believe that he had a mental illness to support his defense. Additionally, Mr. Burrell decided that it was best to focus his trial strategy on Jay’s good character, relying on witnesses to corroborate that Jay was a good person and would not engage in the behavior for which he was charged. During the trial, Mr. Burrell took copious notes and glanced over articles on criminal appeals. In order to take the edge off his frequent headaches, Mr. Burrell kept a bottle of orange juice and whiskey in his brief case, which he sipped throughout the day. During the testimony of the officer who had searched Jay’s house on the day of the arrest, Mr. Burrell could barely think because of an excruciating headache and could not concentrate on the officer’s testimony. When it was time for him to cross-examine the police officer, Mr. Burrell asked one question and was prepared to sit down immediately following the answer. However, the police officer took the court by surprise when he admitted to lying about finding potent sedatives and hallucinogenic medication in Jay’s bathroom. Later that evening, Mr. Burrell felt more hopeful about Jay’s case and decided that he only needed a few sedatives and one shot of whiskey to help him sleep, instead of the usual double shot. However, just before falling asleep, Mr. Burrell checked his answering machine and email and discovered that the prosecution had offered Jay a plea bargain. If Jay pled guilty to possession of drug paraphernalia for a bong found in his house, he would receive six years in prison with no probation. On the morning of November 15, 2012, Mr. Burrell woke up with a headache and had trouble getting out of bed. Regardless of his pain, he arrived to court a little early and immediately told Jay that the prosecution had offered him six years in prison of probation for pleading guilty to possession of drug paraphernalia. Although Mr. Burrell told him to take the plea bargain, Jay believed that the trial was going well and decided not to take the prosecution’s offer. Mr. Burrell Page 14 of 34

presented his case that morning by calling Jay and his mother to testify. Mr. Burrell made no attempt to elicit testimony that could support a PTSD defense, much to the surprise of the prosecutor who had prepared to counter these facts. Mr. Burrell did, however, inquire about Jay’s military service, which gave Jay the opportunity to tell the jury about his frequent nightmares and flashbacks about fighting in the Middle East. Jay’s mother also discussed the changes she noticed in her son after his military service. After closing arguments, the jury deliberated for about 30 minutes and thereafter, found Jay guilty of drug possession, drug distribution, drug trafficking and rape. Jay was sentenced to six years in a federal prison without probation. When Jay arrived at the prison, the physician examined him and performed basic blood tests. Contingent on the outcome of the blood tests, the doctor gave him a clean bill of health. About two weeks later, Jay began to experience worsening headaches, fatigue and lightheadedness. Jay asked to see a prison doctor and told the physician that he had been diagnosed with a blood condition, which caused his symptoms. The doctor reviewed his physical examination and saw that he had no remarkable findings, but agreed to run a few more tests. Jay continued to complain of dizziness and believed that his condition had worsened. While lifting weights on a few occasions, Jay fainted and was transported to the nearest hospital, which was approximately five hours away from the prison. Jay was given blood transfusions in the hospital and seemed to improve. Just a short time later; however, he began complaining of the same symptoms he had before. The prison physicians performed standard blood tests, but found nothing wrong with Jay. Finally, the chief prison physician ordered him not to lift weights or engage in strenuous physical activity. The warden and the chief physician found it suspicious that Jay’s condition seemed to worsen a few days after arriving at the prison and on the same day he had asked a correctional officer if inmates with serious medical conditions were eligible for early release. Page 15 of 34

Jay’s symptoms seemed to worsen over the next six months and Jay’s family wrote several letters to the chief physician, which included a copy of the report from his personal doctor that he received prior to his conviction. Additionally, Jay’s family obtained an opinion from Jay’s psychiatrist, who concluded that Jay suffered from a mental illness that could have possibly affected his cognitive abilities on the night of the party. Jay’s family received no response from the prison. Soon after, Jay began to lose a significant amount of weight and began to have weekly night terrors and fits of rage where he screamed about being blown up by bombs. Eventually, Jay was put on “suicide watch,” where correctional officers kept a close eye on him. After attempting to visit Jay and being told that he was on suicide watch, his family contacted Jay’s attorney. Jay’s family insisted that his physical and mental illnesses were never taken into consideration and asked Mr. Burrell to help Jay receive the medical and psychiatric care that he needed by obtaining a transfer to another prison closer to a hospital. Mr. Burrell agreed and filed a petition to have Jay transferred to a federal prison medical facility that had the capability to treat someone like Jay based on his current condition. The current facility was not a medical facility and it was not equipped to deal with Jay’s medical and health needs. Soon after, Mr. Burrell made a routine request for a medical transfer to the closest medical facility. Attached to the request, were Jay’s prison medical records as well as some letters from his family detailing Jay’s symptoms over the past year. Although Mr. Burrell was aware of Jay’s night terrors and current suicide watch status, he did not request a transfer for psychiatric reasons because he did not have medical records to prove that Jay suffered from a psychiatric condition. Additionally, when he spoke to Jay during his trial, Jay appeared perfectly normal and gave no indication of suffering from a mental illness. Approximately two months later, Mr. Burrell inquired as to the status of Jay’s transfer request after receiving several telephone calls from Jay’s mother over the past month. A Page 16 of 34

representative from the Central Office Medical Designator told Mr. Burrell that he would receive a response in two to four weeks, which was the typical time for all routine transfer requests. About two weeks later, Mr. Burrell received a letter stating that Jay’s medical transfer request had been denied. The letter indicated that the legal assistant to the Medical Director reviewed Jay’s request and found that there was insufficient medical or psychiatric evidence to warrant a transfer to a prison medical facility. As an aside, the letter also noted that Jay’s medical records contained references to malingering and exaggerated symptoms. Mr. Burrell sent a copy of the denial letter to Jay and Jay’s mother. Shortly after receiving the denial letter, Jay’s mother, acting under the authority of a valid power of attorney, fired Mr. Burrell and hired a new attorney, Ms. Charlotte Ford. Upon reviewing the medical transfer request that Mr. Burrell prepared, Ms. Ford disagreed with the decision to omit information about Jay’s psychiatric problems and believed that the request was deficient as it was quite apparent that he exhausted all of his administrative remedies. In fact, her review uncovered that the Bureau of Prisons failed respond to numerous written and Freedom of Information Act (FOIA) requests from Mr. Burrell. Ms. Ford immediately filed an appeal with the Bureau of Prisons requesting that Jay be transferred to a suitable medical facility based on his medical and psychiatric conditions, attaching the medical report that Jay’s doctor prepared prior to Jay’s arrest and a report from Jay’s psychiatrist. Ms. Ford also appealed Jay’s criminal convictions to the Eleventh Circuit based on the victim’s recanted accusations after trial and the ineffective representation of Jay’s trial attorney.

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION ____________________________________ UNITED STATES DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF PRISONS, v. JAY LONGFELLOW. Criminal Action No. 3:12-CD-2222 Decided: November 15, 2012 Issued: December 1, 2012 _____________________________________ ORDER: HAROLD ROACH, United States District Judge. Page 18 of 34

Defendant Jay Longfellow, after waiving his right to a jury trial, is charged with drug possession, drug trafficking, drug distribution and facilitating a sex offense with a controlled substance, pursuant to 21 U.S.C.S. § 34, in addition to rape pursuant to 18 U.S.C.A. § 1962 of the RICO Act. For the reasons set forth below, the Court finds Petitioner GUILTY of the charges of drug distribution, drug possession, drug trafficking and rape, and recommends that Petitioner be SENTENCED to prison for a period of six (6) years without probation. OPINION: With respect to the charges of drug possession, drug trafficking, drug distribution and facilitating a sex offense with a controlled substance, the necessary intent for drug distribution is well established in the common law. To convict, the government must prove that: (1) the defendant had the requisite mens rea; and (2) the defendant manufactured, distributed, or possessed the controlled substance with the intent to distribute. In addition, when a crime is categorized as a specific intent crime, the fact that the object of the crime does not, in itself, violate the law, is irrelevant and the mere intent to commit the crime is all that is necessary to prove the crime. United States v. Decubas, 506 Fed. Appx 986 (11th Cir. 2013); United States v. Carothers, 121 F.3d 659 (11th Cir. 1997). In the instant case, Petitioner intended to give the victim a powerful sedative without her knowledge in hopes of committing a sexual assault. This is enough to prove that he intended to possess, distribute, and traffic drugs. Further, 21 U.S.C.S. § 34 states that it is unlawful “to knowingly or intentionally possess, distribute or traffic” any substance that is “used in a harmful manner.” The evidence shows that the Defendant used the drug “Molly” in a harmful manner when he intentionally put the drug in the victim’s drink without her knowledge to weaken her senses so that he could sexually assault her without protest. The Defendant’s friends confirmed that he had a history of putting drugs into women’s drinks at parties, and on the night of the party in question, thought it would be a good Page 19 of 34

idea to put sedatives in the victim’s drink. The Defendant’s friends also claimed that he had attempted to sell controlled substances like marijuana prior to the night in question, demonstrating his reckless character. Of note, the victim and her friends testified that on the night of the alleged assault, she had stopped drinking alcohol early that night and was not intoxicated when she met the Defendant and his friends. The video which was posted on the Defendant’s computer to the online Facebook site clearly shows that Tyler was not a willing participant, as she was mentally incapacitated at the time of the sexual encounter. In light of the evidence presented at trial, the United States proved beyond a reasonable doubt that he committed the crimes of drug possession, drug distribution, and drug trafficking, but failed to prove that he committed the crime of facilitating a sex offense with a controlled substance pursuant to 21 U.S.C.S. § 34, which does not address the crime of facilitating a sex offense with a controlled substance. Therefore, Petitioner cannot be convicted of that crime under the statute. In finding the Defendant guilty of the above crimes, it should be noted that 21 U.S.C.S. § 34 is a necessarily broad statute that allows the government to protect citizens from sexual predators who will use any type of substance, whether controlled or pharmaceutical, to prey on victims. Regarding the charge of rape pursuant to the RICO Act, the evidence shows that the United States proved beyond a reasonable doubt that Petitioner satisfied all of the elements required to prove a crime under 18 U.S.C.A. § 1962. In order to be found guilty of violating the RICO Act, the government must prove beyond a reasonable doubt that: (1) an enterprise existed and it affected interstate commerce; (2) the defendant was associated with or employed by the enterprise; (3) the defendant engaged in a pattern of racketeering activity; and (4) the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity through the commission of at least two acts of racketeering activity as set forth in the indictment. United Page 20 of 34

States v. Phillips, 664 F. 2d 971, 1011 (5th Cir. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 1265, 73 L. Ed. 2d 1354 (1982). In this district, an “enterprise” includes an informal criminal network engaged in racketeering activity. See United States v. Cagnina, 697 F.2d 915 (11th Cir. 1983) (holding that “RICO reaches any group of individuals ‘whose association, however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes . . . .’”) See 18 U.S.C.S. §1962(c); 697 F.2d at 545. Section 18 U.S.C.S §1961(4) does not require that an “enterprise” be a legal entity. An enterprise can include any individual, partnership, corporation, association or other legal entity, as well as any associated union or group of individuals. However, an enterprise, as defined by RICO, must possess an ascertainable structure, which is distinct from that inherent in the conduct of a pattern of racketeering activity. Here, the government proved that an enterprise existed in that Petitioner banded with a group of friends to prey on women at his and other college campuses, and collaborated in other business ventures such as selling food and alcohol on a regular basis. Petitioner’s enterprise affected, or was likely to affect, interstate commerce in that Petitioner had a history of putting drugs into women’s drinks at parties on various college campuses. This evidence also shows that Petitioner had a pattern of engaging in riotous and “racketeering” activity throughout his college career. Petitioner and his friends earned a significant amount of money from selling food and drinks at parties and it is clear that Petitioner was not only associated with the organization, but ran the organization as well. Lastly, each charge in the government’s indictment is an act of racketeering, which requires that Petitioner be charged under RICO. Although rape is not specifically listed as a racketeering activity in 18 U.S.C.S §1962, it is clear that rape falls within the scope and intent of the Act. In cases such as this, the government must be given wide latitude Page 21 of 34

to prosecute and punish individuals who may try to skirt the laws of this country, which was the intent of Congress in drafting RICO. Therefore, having considered all of the relevant pleadings and evidence, for the reasons set forth below, the Court finds Petitioner GUILTY of the charges of drug distribution, drug possession, drug trafficking and rape, and recommends that Petitioner be SENTENCED to prison for a period of six (6) years without probation, as a FINAL JUDGMENT.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________ JAY LONGFELLOW, APPELLANT, v. UNITED STATES DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF PRISONS, APPELLEE. No. 13-1349820 Page 22 of 34

June 20, 2013, Decided ___________________________________ OPINION: DAVIS, SAMUELSSON, MURPHY and ELMORE. After a bench trial, a District Court Judge returned a guilty verdict on the charges of drug distribution, drug possession and drug trafficking pursuant to 21 U.S.C.S. § 34, and rape pursuant to 18 U.S.C.A. § 1962 of the RICO Act. Petitioner now comes before this Court seeking a reversal of his convictions, as well as approval for a medical transfer from his current facility to a medical prison facility. The issues before us are: (1) whether Respondent’s charges pursuant to 21 U.S.C.S. § 34 violated Petitioner’s Fifth Amendment rights; (2) whether the actions of Petitioner’s trial attorney amounted to ineffective assistance of counsel under the Sixth Amendment; and (3) whether Respondent’s denial of Petitioner’s request for a medical transfer from prison violated Petitioner’s Fifth and Eighth Amendment rights. The Court, having reviewed the record and the arguments of the parties, affirms the District Court’s verdicts for the charges of drug distribution, drug possession and drug trafficking pursuant to 21 U.S.C.S. § 34, and overturns the verdict on the charge of rape pursuant to the RICO Act.

I. Classification of the “Molly” drug as a Controlled Substance Petitioner contends that the drug Molly is an over-the-counter sedative and 21 U.S.C.S. § 841 does not classify the drug as an illegal controlled substance. As such, the government did not prove that Petitioner gave the victim at issue a controlled substance. In evaluating the sufficiency of the evidence at trial, which is a question of law, the appellate court conducts a de novo review. United States v. Carothers, 121 F.3d 659 (11th Cir. 1997). Accordingly, this Court will exercise its independent judgment to determine whether the Page 23 of 34

facts satisfy the rule of law, giving little deference to the trial court’s decision. Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). Petitioner’s argument requires that this Court engage in statutory construction in determining whether the drug Molly can be classified as a controlled substance. In Caminetti v. United States, 242 U.S. 470 (1917), the Supreme Court held that if the language of a statute is plain, the courts must enforce the statute literally, according to its terms. The statute at issue states in relevant part: “it shall be against the general laws of this jurisdiction for any person to knowingly or intentionally possess, distribute or traffic any controlled substance as defined in the Controlled Substances Act (CSA) of the United States, unless pursuant to a valid prescription or except as authorized by law.” The statute was amended in 2012 to also state: “Any drug that is not clearly defined as a controlled substance, or is in the debate or decision process of being classified as a controlled substance, which may be harmful to the health of the public; shall be considered a controlled substance if abused, used in a harmful manner or used in the commission of another felony.” 21 U.S.C.S. § 841 (2012). Looking at the first part of the statute, this Court notes that the drug Molly is not listed in the Controlled Substances Act as a controlled substance. However, the 2012 amendment states that any drug that may be harmful to the health of the public can be classified as a controlled substance, as a matter of law, if it is abused, used in a harmful manner or used in the commission of another felony. In this case, Molly can be classified as a controlled substance because it was used in the commission of a felony. The evidence shows that Petitioner put the drug in a victim’s drink in order to commit a sexual assault. The legislative history of Molly indicates that although its classification as a controlled substance is being debated in Congress, it can still be classified as a controlled substance legally. The purpose behind the 2012 amendment was to protect adolescents and female college students from being victims of sexual assault through the use of the sedative, which is a growing national problem. This Court finds that although there is some question as to Page 24 of 34

whether Petitioner should have been charged under 21 U.S.C.S. § 841 when the amendment did not go into effect until November 15, 2012, Petitioner’s due process rights were not violated upon his conviction. Based on the plain meaning of the statute, this Court finds that Petitioner was properly convicted of drug possession, drug distribution and drug trafficking under 21 U.S.C.S. § 841, and Petitioner’s due process rights were not violated. II. Ineffective Assistance of Trial Counsel (IATC) Petitioner asserts that his trial counsel’s representation was ineffective as his counsel was not physically competent to determine appropriate trial strategies and as a result, his counsel made decisions that harmed his case. A defendant alleging ineffective assistance of counsel must show that: (1) the counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). To prove the first prong, the defendant must show that counsel's assistance was not within the range of competence demanded of counsel in criminal cases. Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004). To prove Strickland's second prong, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. There must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Turning to the first prong of whether Petitioner’s trial counsel's assistance was within the range of competence demanded of counsel in criminal cases, the evidence shows that Petitioner’s counsel was an experienced criminal attorney. The evidence also shows that he prepared and strategized for trial as best he could, considering his illness, and it is not clear how much his illness affected him throughout the trial. Regarding his alleged alcohol use, it is also unclear how much Page 25 of 34

the alcohol may have affected his competency. This Court finds it significant that the government offered Petitioner a plea bargain during the trial, indicating that the trial was going well for Petitioner at some point. However, the fact that Petitioner’s counsel did not accurately inform Petitioner of the details of the plea bargain is a strong indication that his assistance was not within the range of competence demanded of counsel in a federal criminal trial. Moreover, the fact that he did not look into presenting a defense based on Petitioner’s psychiatric condition also casts doubt on his competency. In light of the above, this Court finds that Petitioner’s trial counsel’s assistance was within the range of competence demanded of counsel in criminal cases, as there is insufficient evidence to prove otherwise. Regardless of Petitioner’s trial counsel’s illness, failure to bring a psychiatric defense and failure to accurately inform Petitioner of the details of the plea deal, Petitioner received a sentence of six years in jail, which is the same sentence he would have received had he taken the plea deal. With respect to the second prong of showing that but for counsel's unprofessional errors, the result of the proceeding would have been different, this Court finds that although it is nearly impossible to determine whether a single act could have produced a different outcome in Petitioner’s case, had Petitioner’s trial counsel presented a defense based on Petitioner’s psychiatric condition, a different outcome would have likely occurred. At trial, Petitioner’s family and friends testified and described some of his psychiatric problems since returning from the Middle East and the fact that Petitioner’s counsel did not present a formal defense based on Petitioner’s psychiatric problems severely crippled his case. As an aside, this Court finds it significant that before the trial, counsel for Petitioner informed him that his case would be difficult, and if convicted, he would face serious time in a Federal penitentiary. Petitioner’s trial counsel also advised him to prepare for the worst and went as far as to suggest that he would probably fair better on appeal. Further, counsel chose to Page 26 of 34

represent Petitioner’s friends, who were also being charged with conspiracy. As such, this Court finds that Petitioner has proved the second prong of the Strickland test. However, because Petitioner has failed to prove both prongs of the test, we find that Petitioner has failed to prove his claim of ineffective assistance of counsel, and thus, has failed to show that his Sixth Amendment rights were violated. III. Petitioner’s Request to Transfer to a Prison Medical Facility Petitioner challenges the Bureau of Prisons’ denial of his transfer request to a prison medical facility and argues that it violated his due process rights under the Fifth Amendment when he was not afforded an opportunity to present his case before the Central Office Medical Designator. Petitioner also argues that depriving him of the opportunity to present his case constitutes an Eighth Amendment violation. Similarly, Petitioner asserts that his conviction under the RICO Act also violated his right to due process under the Fifth Amendment as the statute does not support the finding that he was associated with a criminal enterprise of any kind. The Fifth Amendment of the United States Constitution requires certain procedural safeguards for inmates to ensure an inmate’s due process rights. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that an inmate is entitled to the following: (1) written notice 24 hours in advance of the hearing; (2) a written statement by the fact finders as to the evidence relied on; and (3) the ability to call witnesses and present documentary evidence in his defense. Wolff, 418 U.S. at 564-66. In the case at bar, the record shows that although the Bureau of Prisons provided Petitioner with written notice of the denial of Petitioner’s transfer request, it did not provide Petitioner with a pre-denial hearing and requisite notice of that hearing. A fundamental aspect of due process is the right to have a pre-deprivation hearing. The Bureau of Prisons failed to provide Petitioner with a pre-deprivation hearing even though its decision to deny Petitioner’s transfer request effectively Page 27 of 34

denied Petitioner of the ability to receive medical care and possible psychiatric care, which would allow him to function as a normal prisoner instead of remaining on “suicide watch.” This Court finds it significant that there is no clear showing by the Petitioner that he followed all the steps necessary to be granted a medical transfer, nor did he show that he exhausted all of his administrative remedies. This Court must grant deference to the Bureau of Prison in these matters, and should only step in when there is a clear violation of constitutional rights. On these facts, void of a showing a clear exhaustion of the administrative remedies, we must decide in favor of the government and find there was no due process violation here. It should be noted that, the evidence seems to indicate that if Petitioner had the opportunity to attend a pre-deprivation hearing, he would have informed the Bureau of Prisons of the same information contained in the transfer request. Attached to the transfer request were Petitioner’s prison medical records as well as letters from his family, which presumably detailed any medical or psychiatric condition Petitioner may have. The transfer request was assessed by the Medical Director’s assistant and was not deemed sufficient to warrant a transfer to a medical facility. Petitioner seems to ask this Court to doubt the credibility of the prison doctors, the Medical Director and the Bureau of Prisons without evidence to support this claim. In Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir. 2004), the court stated that under the substantial evidence standard a court cannot substitute its determination for that of an administrative fact-finder, even if the administrative body is clearly wrong. Based on the evidence presented and the rule in Menendez, this Court finds that the Fifth Amendment does not require Petitioner to have a hearing before his transfer request was decided as he would have presented the same evidence attached to the transfer request at the hearing and the denial of his request did not amount to punishment. Additionally, Petitioner has failed to show how the denial of his transfer request constitutes a punishment under the Eighth Amendment. Page 28 of 34

Turning to the RICO issue, Petitioner challenges the government’s charge that he violated 18 U.S.C. § 1962 of the RICO Act by conspiring with his friends to put a narcotic substance into a woman’s drink without her knowledge in order to “get an easy score.” Petitioner primarily takes issue with the District Court’s finding that he was associated with an enterprise. An "enterprise" is defined as including any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals although not a legal entity. 18 U.S.C.A. § 1961(4). Many courts have noted that Congress mandated a liberal construction of the RICO statute in order to effectuate its remedial purposes by holding that the term "enterprise" has an expansive statutory definition. United States v. Delano, 825 F. Supp. 534 (W.D.N.Y. 1993), (2d Cir. 1995). In the case at bar, the record shows that Petitioner admitted to putting narcotic substances into women’s drinks without their knowledge on previous occasions. Additionally, witnesses have alleged that Petitioner and his companions have done the same thing to women at other college campuses in the state. During Petitioner’s trial, the state presented evidence showing that Petitioner and his cohorts united together with the objective of inducing females into nonconsensual intercourse with the use of a controlled substance at a party. While Petitioner argues that he sporadically gave women narcotics without their knowledge, witnesses testified that Petitioner had engaged in such fiendish acts several times before. However, the definition of an enterprise, although seemingly broad, should not be so liberally construed as to encompass any individual who may collaborate with friends to make some extra money while in school. The facts show that Petitioner and his friends merely sold food and alcoholic beverages at some parties, and regardless of the legality of selling alcohol in that manner, did not establish any type of business or organization in doing so. As noted by the District Court, RICO was created as a tool against organized crime, which evaded the law by operating in Page 29 of 34

nontraditional ways and as unorthodox businesses. The intent behind RICO was not to convict college students. As such, this Court finds that Petitioner’s sporadic sales of food and alcohol were not sufficient to constitute an enterprise under RICO, and upholding Petitioner’s rape conviction would unreasonably extend a statute that is already too broad. As such, Petitioner’s rape conviction is overturned. IV. Conclusion This Court holds that Petitioner’s convictions pursuant to 21 U.S.C.S. § 34 did not violate Petitioner’s Fifth Amendment rights; that Petitioner’s conviction under the RICO Act violated Petitioner’s Fifth Amendment rights; and that Petitioner’s request for a transfer to a prison medical facility is denied. The decision of the United States District Court for the Northern District of Georgia is AFFIRMED in part, a REVERSED in part.

CONCURRING IN PART: MOONEY, As a threshold matter, we must first establish the correct standard of review in the instant case. When we as an appellate body look at a case, we must first take into account the correct standard of review that should be applied. In the appellate review process, the standard of review is the amount of deference given by one court (or some other appellate tribunal) in reviewing the decision of a lower court or tribunal. In basic jurisprudence, the lowest standard of review means that the decision under review will be changed or overturned if the reviewing court finds that there is any error at all in the lower court's decision. Thus, a high standard of review means that deference is afforded to the decision under review, so that it will not be disturbed just because the Page 30 of 34

reviewing court might have decided the case differently; it will be altered if the higher court considers the decision to have obvious error. The standard of review may be set by statute, rule or precedent. It should also be noted that the "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to the legislative branch when ruling on the constitutionality of particular legislation. In the case at hand, it seems quite clear that this case should be reviewed as a mixed question of law and fact. Mixed questions of law and fact are defined as “questions in which the historical facts are admitted or established, the rule of law is resolved and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Bausch and Lomb v. United States, 21 C.I.T. 166, 169 (Ct. Int'l Trade 1997). Under this standard we join with our brethren in their opinion on these facts. Petitioner’s Charges Under 21 U.S.C.S. § 34 We must also agree with the majority’s opinion that Petitioner was properly charged under 21 U.S.C.S. § 34 and that his due process rights were not violated in charging him under that statute. However, our agreement must stop there based on major constitutional concerns that plague the remainder of the majority opinion.

CONCURRING IN PART: HIGGINS and SMITH. I.

Ineffective Assistance of Trial Counsel

The Supreme Court has long held that “the right to counsel is the right to the effective assistance of counsel.” In the case of Strickland v. Washington, 466 U.S. 668 (1984), decided by a near unanimous Court, the Supreme Court held that to successfully claim ineffectiveness, a defendant must establish that the facts of the case satisfy a two-pronged test. The first prong is that Page 31 of 34

counsel’s performance must have been deficient, meaning that “counsel’s representation fell below an objective standard of reasonableness.” Specific guidelines to determine whether an attorney meets an objective standard of reasonableness were rejected, and instead “the proper measure remains reasonableness under prevailing professional norms.” However, in evaluating a claim of ineffectiveness, a court must use a “highly deferential” level of review for defense counsel and “indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.” Additionally, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. Strickland, 466 U.S. at 685. Assuming counsel’s deficient representation, there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The reason we have this second prong of the ineffectiveness standard is because “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Since the purpose of the Sixth Amendment is to ensure a fair trial, the benchmark for judging a claim of ineffectiveness must be whether counsel’s conduct undermined the proper functioning of the adversarial process so much that the trial could not be relied on as having produced a just result. In Strickland, Justice Marshall, the only dissenting justice, rejected both the “performance” and “prejudice” prongs of the Supreme Court’s majority opinion. Justice Marshall argued that the performance prong was “so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts.” As for the defendant’s burden to show prejudice, Justice Marshall reasoned that “it may be impossible for a reviewing court confidently to ascertain how the government’s Page 32 of 34

evidence and argument would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer,” noting that “evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel.” To Justice Marshall, it seemed “senseless to impose on a defendant whose lawyer has been shown to have been incompetent, the burden of demonstrating prejudice.” Since Strickland was decided, commentators have been virtually unanimous in their criticisms of the opinion. In a similar case, the Supreme Court rejected an exception to the Strickland standard based upon external factors related to the nature of the defense services provided. In United States v. Cronic, 466 U.S. 648 (1984), the defendant was convicted of a complicated mail fraud scheme following a jury trial in which a young, court-appointed lawyer who had a real estate practice and no jury trial experience represented the defendant. Although the case involved thousands of pages of documents and the government had taken four and one-half years to prepare its case, the defendant’s lawyer was afforded only 25 days to prepare for trial. The United States Court of Appeals for the Tenth Circuit reversed the defendant’s conviction, inferring that the circumstances of the defendant’s representation meant that he had been denied the effective assistance of counsel. The Court’s opinion emphasized the following factors, among others: the lack of time afforded counsel for investigation and preparation; the inexperience of counsel; the seriousness of the charges; and the complexity of possible defenses. Nevertheless, the United States Supreme Court reversed the court of appeals and reinstated the defendant’s conviction, thereby rejecting the proposition that ineffective assistance of counsel could be inferred based upon the circumstances of the defendant’s case and counsel’s situation. As in Strickland, the Court presumed that the lawyer was competent and stressed that “the burden rests on the accused to demonstrate a constitutional violation.” Page 33 of 34

As a result of Cronic, it is extremely difficult to overturn a conviction by arguing that the institutional deficiencies in a public defense resulted in the ineffective assistance of counsel. For example, gross underfunding of a public defender program leading to high public defender caseloads, with representation furnished by untrained lawyers who have only meager support services, is not by itself, sufficient to establish Sixth Amendment violations. However, the Court conceded in Cronic that if there was a complete denial of counsel or “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights, which makes the adversary process itself presumptively unreliable.” In addition, the Court in Cronic recognized that there could be circumstances where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Cronic, 466 U.S. at 666-67. Like the U.S. Constitution, state constitutions typically contain provisions guaranteeing the assistance of counsel. State supreme courts, therefore, could avoid the Strickland test for ineffective assistance by invoking their own state’s constitutional provisions on counsel and devising tests for ineffectiveness less stringent than the test contained in Strickland. In fact, however, only one state actually appears to have done so. Several state courts have held that “specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence” must be shown and that these reflect “a possible impairment, rather than a probable impairment, of a potentially meritorious defense.” For many, the Strickland test “can only be described as being unduly difficult for a defendant to meet, and thus, under our Constitution, defendants are afforded greater protection of their right to effective assistance of counsel.

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In the case at bar, there are facts that hint at the fact that there can be ineffective assistance of counsel even at the highest level of review. Here, Petitioner’s attorney did not properly disclose the plea offer made by the prosecutor and the exact terms of the offer. The record also shows that he was provided an offer via counterproposal, which was never properly communicated to Petitioner. If there ever was a case that meets this high Strickland test, this is definitely one of those cases. In addition, the conduct of Petitioner’s trial attorney before and after the trial not only brings into question the Professional Standards of Practice and Ethical standards, but competency issues as well. It is alleged that Petitioner’s trial attorney drank alcohol during the criminal trial. The egregious conduct performed by Petitioner’s attorney, coupled with the fact that the trial attorney blatantly and perhaps negligently failed to explore or address Petitioner’s viable legal defenses based on his mental state, seem to satisfy the test set out in Strickland. The Strickland test is not a precursor of what should be present in a particular case. If the facts of a particular case overwhelmingly convince a reasonable person that a Sixth Amendment violation has taken place, then the Strickland test should be met. Although we agree with the majority, we just view it under a heightened level of review of which it still shows an egregious violation of the Sixth Amendment. II.

Bureau of Prisons’ Denial of Petitioner’s Medical Transfer

With respect to Respondent’s denial of Petitioner’s request for a medical transfer from prison, I fervently disagree with the majority’s opinion that there was no denial of due process in the denial of Appellant’s medical transfer. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying our penal system." Wolff v. McDonnell, 418 U.S. 539 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). But Page 35 of 34

though a prisonerâ&#x20AC;&#x2122;s rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. 418 U.S. 539 at 556-57. Hence, prisoners may claim the protections of the Due Process Clause and they may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U.S. 249 (1971); Screws v. United States, 325 U.S. 91 (1945). The distinction between the violation of Petitionerâ&#x20AC;&#x2122;s property or liberty interest are not a concern, for the analysis as to liberty parallels the accepted due process analysis as to property. The Supreme Court has consistently held that the fundamental requisite of due process of law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S. 254 (1970) (quoting, Grannis v. Ordean, 234 U.S. 385, 394 (1914)). Thus, a hearing is required at some time before a person is finally deprived of his [25] property interests. Wolff, 418 U.S. at 558 (quoting Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168 (1951). Importantly, the [23] hearing must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In the present context, these principles require that Petitioner have timely and adequate notice detailing the reasons for denying his medical transfer, as well as an effective opportunity to defend himself by confronting any adverse witnesses and by presenting his own arguments and evidence orally. "Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on findings of fact, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. This Court has zealously protected these rights from erosion. It has spoken out not only in criminal cases, but in all types of cases where administrative actions were under scrutiny. Goldberg, 397 U.S. at 270; Greene v. McElroy, 360 U.S. 474, 496-97 (1959). Therefore, prisoners denied medical transfer Page 36 of 34

must be given an opportunity to confront and cross-examine the witnesses relied on by the Bureau of Prisons. Finally, the decision-maker's conclusion as to a prisoner’s eligibility for medical transfer must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U.S. 292 (1937); United States v. Abilene & S. R. Co., 265 U.S. 274, 288-89 (1924). To demonstrate compliance with this elementary requirement, the impartial decision-maker should state the reasons for his determination and indicate the evidence he relied on. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57-59 (1922). Therefore, what Petitioner’s situation requires an evidentiary hearing structured to assure that the denial of his medical transfer will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of Petitioner’s medical needs. The failure of the BOP to offer such safeguards built into the process, is a clear violation of Petitioner’s due process rights and as such should be stricken down as a matter of law. III. Classification of “Molly” as a Controlled Substance Finally, petitioner challenges the classification of “Molly” as a controlled substance wherefore it has been largely recognized and sold as an over-the-counter sedative. A necessary element of each of the drug charges at issue1 is that the substance possessed, distributed, trafficked and used to facilitate is in fact an illegal controlled substance. That is not the case here. The defendant did not have the necessary intent to violate any of the drug laws, as he was aware that the drug in question was an over-the-counter sedative and not an illegal substance when he gave it to the unsuspecting young woman.

1 Drug possession, drug distribution, drug trafficking and facilitating a sex offense with a controlled

substance.

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The list of illegal substances in the controlled substances act is extensive as are the procedures that must be followed in order to control a specific substance. See 21 U.S.C. §§ 811,812; United States v Emerson, 846 F.2d 541, 543 (9th Cir. 1988). It is not the place of this court or the U.S. Attorney to expand that list. Whether “Molly” should be classified as a controlled substance is a question for the Attorney General after undertaking the proper procedures set forth in the Federal Rules of Criminal Procedure. This has not occurred therefore they fail to illustrate as a matter of law that this drug should be classified as such. Thus, their ability to charge the Petitioner under the statute must fail. We as an appellate body must stand against attempts by the government to take their broad discretion in using such criminal statutes to unconscionable ends of which Congress could have never intended. The allowing of such would bring on serious due process violations and a “Parade of Horribles” unlike any other discussed or faced by this generation.

IV. Conclusion Based on the foregoing, Petitioner’s convictions should be overturned as a matter of law. Based on a clear showing, that the Government could not possibly have met their burden of proof at trial for the charges presented in the accusatory instrument. Any finding to the contrary is not based on any sound reading of the applicable statutes of law. This case should be remanded to the district court, for a new trial based on these findings. To do otherwise would be a serious miscarriage of justice and it would stand as a clear indictment of our entire criminal justice system. For these reasons, we respectfully dissent in part.

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APPENDIX

UNITED STATES CODE SERVICE, TITLE 21, CHAPTER 265 21 U.S.C.S. § 34 Section 34 Wherefore, it shall be against the general laws of this jurisdiction for any person to knowingly or intentionally possess, distribute or traffic any controlled substance as defined in the Controlled Substances Act (CSA) of the United States, unless pursuant to a valid prescription or except as authorized by law. Effective: November 15, 2010. Amendment Any drug that is not clearly defined as a controlled substance, or is in the debate or decision process of being classified as a controlled substance, which may be harmful to the health of the public; shall be considered a controlled substance if abused, used in a harmful manner or used in the commission of another felony. Effective: November 15, 2012.

NOTES & HISTORY: The United States House of Representatives adopted the 2012 amendment after much debate over the dangers of the over-the-counter drug called “Molly.” Many medical groups, including the Medical Doctor’s Association of America (MDAA), were divided as to whether Molly should be classified as a controlled substance or an acceptable pharmaceutical drug, and were primarily concerned with the drug’s growing popularity among adolescents. The United States Association of Prosecutors (USAP) also testified at the legislative hearings and stated that the use of Molly at college parties where drug overdoses and “date rapes” were reported was a worsening national problem. Further, several special interest groups, including Mothers Against Teenagers Using Page 39 of 34

Drugs (MATUD), lobbied Congress to push the amendment through the Senate committees despite staunch opposition from key committee members. The President of the United States signed the amendment on August 1, 2012, and the amendment went into effect at midnight on November 15, 2012.

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