PRO BONO COUNSEL Rosina Stambaugh Matthew Lamberti, Esq.

Pennsylvania Immigration Resource Center 50 Mount Zion Road, STE 3 York, PA 17402 (717) 600-8099

DETAINED

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT YORK, PENNSYLVANIA ____________________________________ ) In the Matter of: ) ) File No. A 041-136-365 Jeudi, Gerald ) ) Respondent ) In removal proceedings ____________________________________) Immigration Judge Walter Durling Next Hearing: July 7, 2011 at 1:30 pm

SUPPLEMENTAL BRIEF ARGUING THAT POSSESSION WITH INTENT TO DELIVER CHARGE IS NOT AN AGGRAVATED FELONY

CERTIFICATE OF SERVICE On June 30, 2011, I, Rosina Stambaugh, served a copy of this motion to the District Counsel for the Department of Homeland Security at 3400 Concord Road, York, Pennsylvania, by hand delivery.

______________________________________ Rosina Stambaugh (PRO BONO COUNSEL) Pennsylvania Immigration Resource Center 50 Mount Zion Rd, STE 3 York, PA 17402 (717) 600-8099

June 30, 2011 Dated

PRO BONO COUNSEL Rosina Stambaugh Matthew Lamberti, Esq. Pennsylvania Immigration Resource Center 50 Mount Zion Road, STE 3 York, PA 17402 (717) 600-8099

DETAINED

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT YORK, PENNSYLVANIA ____________________________________ ) In the Matter of: ) ) File No. A 041-136-365 Jeudi, Gerald ) ) Respondent ) In removal proceedings ____________________________________) Immigration Judge Walter Durling Next Hearing: July 7, 2011 at 1:30 pm

SUPPLEMENTAL BRIEF ARGUING THAT POSSESSION WITH INTENT TO DELIVER CHARGE IS NOT AN AGGRAVATED FELONY On May 23, 2011, Mr. Jeudi, through counsel, submitted a brief arguing that Mr. Jeudis possession with intent to deliver is not an aggravated felony. Because of lack of evidence, the Court denied Mr. Jeudis argument and held that Mr. Jeudi carries the burden of showing that his amount of marijuana was no more than thirty grams. W.D. at 5. Upon review of new documentation from Mr. Jeudis criminal case recently provided to Mr. Jeudis counsel, Mr. Jeudi would like the Court to take into consideration the totality of the circumstances in order to find that Mr. Jeudis conviction should not constitute an aggravated felony because he possessed less than thirty grams of marijuana.

Statement of the facts

On November 20, 2008, Officer Barber was doing surveillance for the illegal sale of narcotics at the 5400 block of Pentridge Street in Philadelphia, PA. Tab C at 11-12. During this surveillance, Officer Barber observed an unknown male along with a confidential informant (CI) go to the above address, and upon arrival, the unknown male entered the residence as the CI waited outside. Id. at 12. Within a minute, the unknown male exited the location, returned to the CI and the CI handed this male a prerecorded $20.00 bill in exchange for small items. Id. These items 3

were then turned over to the police and tested positive for the presence of marijuana. Id. at 13. At the trial, Officer Barber testified that this unknown male still remains unknown to this day. Id. at 14. Mr. Jeudi was not a subject of the November 20th investigation. On November 21, 2008 at approximately 8:35 p.m., Officer McClain gave the CI $20.00 prerecorded buy money and observed the CI enter into the residence at 5419 Malcolm Street in Philadelphia, PA. Id. at 15-17. The CI then returned to Officer Robertson with four clear zip lock packets, each containing a green substance. Id. at 17. According to the Philadelphia Police Department Chemistry Laboratory Report, each of these bags contained about .81 grams of marijuana. Tab D at 44. No one actually witnessed the CI purchase the marijuana from inside the residence. Tab C at 26. After the CI left the residence, Mr. Jeudi was identified by Officer McClain, exiting the residence and walking to the front yard. Id. at 18-19. However, once Mr. Jeudi was in the front yard, the officer testified that he lost sight of Mr. Jeudi and could not say exactly what Mr. Jeudi was doing. Id. At approximately 8:40 p.m., a warrant was executed and the police entered the residence. Id. at 17. Inside, the police arrested Mr. Jeudi in the basement and confiscated two small keys which fit the front doors. Id. at 31. Officer Simmons testified that nothing else was found on Mr. Jeudi. Id. at 34. She further affirmed that no money, drugs or paraphernalia was found on Mr. Jeudi. Id. Also confiscated from the front yard of the residence, inside of a rolled paper, were thirty-one clear zip-lock bags with marijuana. Id. at 20. As indicated in the Philadelphia Police Department Chemistry Laboratory Report, these bags contained about .92 grams of marijuana each. Tab D at 44. Located in the second-floor front bedroom was a gentleman by the name of Eril Mills, who also lived at the residence and was also arrested and charged as a codefendant. Tab C at 24; Tab D at 44 (stating at the bottom of the page that the number of defendants is two). Also found inside this second-floor bedroom was a hundred dollars United States currency, along with the $20.00 prerecorded buy money. Id. at 21-22. Mr. Jeudi was found guilty of possession with intent to deliver and simple possession, but was found not guilty of conspiracy. Id. at 38-39; Tab E. He was sentenced to twelve months reporting probation. Id. at 40.

Mr. Jeudis conviction is not a felony under an analogous federal statute.

The hypothetical federal felony test requires a comparison of the state conviction to the analogous offense in the Controlled Substances Act (CSA). A state marijuana conviction is

therefore only equivalent to a federal drug felony if the offense involved payment or more than a small amount of marijuana. Id. at 289 (citing Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. 2001)). Specifically, in Jeune v. Att'y Gen., the Third Circuit considered whether a conviction under 35 Pa. Stat. Ann. 780-113(a)(30) was analogous to a violation of 21 U.S.C. 841(b)(1)(D). The Third Circuit has found that distributing a small amount of marijuana for no remuneration could be prosecuted under the Pennsylvania statute, and thus the Third Circuit could not determine that it was equivalent to a federal drug felony without more information about the conviction. Id. Under the modified categorical approach, the Court is allowed to use specific records such as the record of conviction when the state statute is divisible. The Third Circuit has concluded that 35 Pa. Stat. Ann. 780-113(a)(30) [the statute in question here] is divisible because it describes three distinct offenses: manufacture, delivery, and possession with intent to deliver or manufacture. Id. at 292 (quoting Garcia, 462 F.3d at 293 n. 9). Accordingly, this Court should apply the modified categorical approach and consider the criminal court transcript, the seizure analysis, and the order of the Philadelphia Municipal Court of Pennsylvania in deciding whether Mr. Jeudis conviction constitutes a felony. Although no total amount of marijuana has been specifically stated or testified, the court transcript and the seizure analysis both show that there were two separate incidents involving marijuana. First, there are two separate days at two separate residences. Second, one of the days had two incidents involving more than one person. On November 20, 2008, a CI and an unknown male were involved in a drug transaction at 5419 Pentridge Street. Tab C at 12. No one observed Mr. Jeudi participate in this incident. In fact, the police testified that the male who took part in this transaction is still unknown. Id. at 14. On November 21, 2008, the day in question, two separate incidents occurred at 5419 Malcom Street where Mr. Jeudi resided with Mr. Eril Mills. Id. at 16-17. The first involved an actual sale of four bags of marijuana containing about.81 grams in each bag or a total of 3.24 grams. Id. at 17; Tab D at 44. The second incident involved the actual execution of a search warrant in which 31 bags of marijuana were found in an area that Mr. Jeudi had walked to. Tab C at 17-18. These bags contained about .92 grams in each or a total of about 28.52 grams. Tab D at 44. Although Mr. Jeudi was found guilty of possession with intent, the Court should consider the two separate incidents on November 21, 2008 in determining how much marijuana Mr.

Jeudi may have possessed. In doing so, the Court should find that Mr. Jeudi possessed 28.52 grams. Because no one actually witnessed the CI purchase the four bags of marijuana from Mr. Jeudi, the court should not take this 3.24 grams into account when determining how much marijuana Mr. Jeudi actually possessed. Furthermore, the $20.00 buy money used to purchase this marijuana was actually found on Eril Mills in the second-floor bedroom. The $20.00 shows that it is more likely than not that Mr. Mills is the one who made the transaction, and therefore, neither possession nor sale of this amount of marijuana should be held against Mr. Jeudi. The police testified that no money, drugs, or paraphernalia was found on or around Mr. Jeudi when he was arrested. The only thing connecting Mr. Jeudi to marijuana is the fact that 31 bags of marijuana were found in an area that he briefly walked to early that evening (the front yard). Furthermore, the police testified that they did not actually see what Mr. Jeudi was doing when he walked to the front yard. No one saw him actually touch, possess, or go near the marijuana in the front yard. Given the fact that the marijuana was wrapped in a paper, it is possible that Mr. Jeudi may not have known that the marijuana was out there. However, because the court could only place Mr. Jeudi in the area where the 31 bags were, he was found guilty of possession. Even so, the Court should find that Mr. Jeudi only possessed 28.52 grams because no one can identify him with the first incident involving the 4 bags. Moreover, it was established that Mr. Mills was found with the $20.00 prerecorded buy money from that transaction, and therefore he should be held responsible for that 3.24 grams of marijuana.

Conclusion
Mr. Jeudi declares that he has never sold marijuana to any person. In fact, the criminal judge did not agree with the prosecutions argument that Mr. Jeudi conspired to engage in possession with intent to distribute simply because he lived in the residence. Unfortunately, Mr. Jeudi made a poor judgment by choosing to live in such a residence. However, the Court should look at the totality of circumstances and take into consideration the separate incidents that occurred. In looking at the incident that specifically involved Mr. Jeudi, the Court will find that Mr. Jeudi did not partake in any transaction involving marijuana. Instead, Mr. Jeudi was found near 28.52 grams of marijuana. Under the bright line rule, this is less than 30 grams and would constitute a small amount of marijuana. In addition, this amount of 28.52 grams was found at the residence and not during any actual drug sale. Not only was no value received for this specific amount of marijuana, but Mr. Jeudi did not participate in the transaction with the CI. Given these reasons, the Court should hold that Mr. Jeudis conviction is not an aggravated felony. 6

Respectfully submitted, this 30th day of June 2011,

______________________________________ Rosina Stambaugh (Law Student) Pennsylvania Immigration Resource Center 50 Mount Zion Rd, STE 3 York, PA 17402 (717) 600-8099

_____________________________ Matthew Lamberti, Esq. Supervising Attorney

PRO BONO COUNSEL Rosina Stambaugh Matthew Lamberti, Esq. Pennsylvania Immigration Resource Center 50 Mount Zion Road, STE 3 York, PA 17402 (717) 600-8099

DETAINED

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT YORK, PENNSYLVANIA ____________________________________ ) In the Matter of: ) ) File No. A 041-136-365 Jeudi, Gerald ) ) Respondent ) In removal proceedings ____________________________________) Immigration Judge Walter Durling Next Hearing: July 7, 2011 at 1:30 pm

DOCUMENT SUBMISSION TAB C- Criminal Court Transcript in the First Judicial District of the Pennsylvania Municipal Court..9 TAB D- Philadelphia Police Department Chemistry laboratory Report44 TAB E- Order of the Criminal Court.47