NO. 08-1220

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT____

UNITED STATES OF AMERICAAppellee,

v.

MARCO LABOY-TORRES,

Appellant.

____

On Appeal from the judgment entered in the United

States District Court for the Middle District of Pennsylvania,

on January 23, 2008, at 1:06-CR-00351 (Conner, J.)

____

BRIEF OF APPELLANT

____

JAMES V. WADE, ESQ.Federal Public Defender

Middle District of Pennsylvania

FREDERICK W. ULRICH, ESQ.Asst. Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

717-782-2237

Attorneys for Appellant,

Marco Laboy-Torres

TABLE OF CONTENTS

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

Statement of the Issue and Designation of Where the Issue was Raisedand Ruled Upon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Related Cases and Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . 8

Statement of the Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument

1. Mr. Laboy-Torres’ 1999 Conviction in a Local Court of PuertoRico for the Simple Possession of Marijuana is not a SufficientPredicate to Disqualify Him from Purchasing and Possessing aFirearm in the United States for Purposes of Section 922 of Title18 of the United States Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certification of Bar Membership, Identical Text, Virus Check, and Word Count. . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

i

Appendix

Volume 1

Notice of Appeal, January 24, 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Judgment in a Criminal Case, January 23, 2008(Conner, J.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Volume 2

Docket Entries, No. 1:06-CR-00351 (M.D. Pa.).. . . . . . . . . . . . . . . . . . 10

Indictment,October 18, 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Motion to Dismiss Indictment,May 5, 2007.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brief in Support of Motion to Dismiss Indictment,May 5, 2007.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Brief Opposing Motion to Dismiss Indictment,July 3, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

District Court Memorandum and Order,July 24, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Plea Agreement,August 24, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Notes of Testimony, Change of Plea,September 6, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Submitted Under Seal

Presentence Investigation Report, Objections, Addendum,January 14, 2008

Statement of Reasons, January 23, 2008

ii

TABLE OF AUTHORITIES

Cases

Riccio v. United States, No. 281-67, 1971 WL 442, *1 n.2 (D. P.R. 1971).. . . . . . . . . . . . . . . . . . 15

Small v. United States, 544 U.S. 385 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16, 17

Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1 (1st Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Diaz, 712 F.2d 36 (2d Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Feliciano-Grafals, 309 F. Supp. 1292 (D. P.R. 1970) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

United States v. Lopez Andino, 831 F.2d 1164 (1st Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Martinez Torres, 616 F. Supp. 499 (D. P.R. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Moskow, 588 F.2d 882 (3d Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Sanchez, 992 F.2d 1143 (11th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

United States v. Singletary, 268 F.3d 196 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Small, 333 F.3d 425 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

Statutes

18 U.S.C. §922. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 10-13, 15, 16

18 U.S.C. §924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. §3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C.App. §1202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

48 U.S.C. §731(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Rules

Appellate Procedural Rule 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Criminal Procedural Rule 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Constitution of the Commonwealth of Puerto Rico art. III, §1. . . . . . . . . . 14

Keith Bea, Congressional Research Service, Political Status of Puerto Rico: Background, Options, and Issues in the 109th Congress (May 25, 2005) . . . . . . . . . . . . . . . . . . . . . . . . 13-15

P.L. 81-600, 64 Stat. 319.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

P.R. LAWS ANN. tit. 24, §2404(a) (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pub. L. 99-308, §104(b), 100 Stat. 459.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

STATEMENT OF JURISDICTION

A. Subject Matter Jurisdiction

The District Court had subject matter jurisdiction under Section 3231

of Title 18 of the United States Code, 18 U.S.C. §3231 (“The district courts

of the United States shall have original jurisdiction . . . of all offenses

against the laws of the United States.”).

B. Appellate Jurisdiction

In this case, the Appellant, Marco Laboy-Torres entered a conditional

plea of guilty pursuant to Criminal Procedural Rule 11(a)(2), and the appeal

was filed pursuant to Appellate Procedural Rule 3(a), within ten days of the

order entering judgment. Thus, this Honorable Court has appellate

jurisdiction pursuant to Section 1291 of Title 28 of the United States Code,

28 U.S.C. §1291 ( “The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of the United States . . .

.”). Accord United States v. Moskow, 588 F.2d 882, 887 (3d Cir. 1978).

1

STATEMENT OF THE ISSUE AND DESIGNATION OF WHERETHE ISSUE WAS RAISED AND RULED UPON

A. Issue

1. Whether a Conviction for the Simple Possession of Marijuana ina Local Court of Puerto Rico Is a Sufficient Predicate toDisqualify an Individual from Purchasing and Possessing aFirearm in the United States for Purposes of Section 922 of Title18 of the United States Code?

B. Designation of Where the Issue was Raised and Ruled Upon

The issue was raised in the form of a motion to dismiss the

indictment. See (App. 17). Following receipt of the Government’s brief in

opposition, the District Court issued a memorandum opinion and order

denying the motion. See (App. 48-55).

2

STATEMENT OF THE CASE

On October 18, 2006, a grand jury returned a two-count indictment

against Appellant, Mr. Laboy-Torres, alleging that, on two separate

occasions, he had made false statements respecting his criminal history in

attempting to purchase firearms, in violation of 18 U.S.C. §§922(a)(6) and

924(a)(1)(B). On February 6, 2007, Mr. Laboy-Torres was arrested on the

federal indictment and, on the same date, he was arraigned and entered a

plea of not guilty. On May 21, 2007, Mr. Laboy-Torres filed a motion to

dismiss the indictment, averring that the criminal history at issue, a 1999

conviction for simple possession of marijuana in a local court of Puerto

Rico, was not a sufficient predicate to disqualify him from purchasing and

possessing a firearm under Section 922 of Title 18 of the United States

Code. See (App. 17). The Government filed a brief in opposition and the

District Court issued a memorandum opinion and order, denying the motion.

See (App. 29, 48-54).

Pursuant to a written plea agreement, Mr. Laboy-Torres entered a

conditional plea of guilty to the offense, with the understanding that he

could appeal the ruling on his motion to dismiss the indictment. See (App.

57, 61-62, 77). After the preparation of a presentence investigation report, a

3

sentencing hearing was held on January 17, 2008. See (App. 11). At

sentencing, the District Court imposed a term of incarceration of twelve

months and one day, fined Mr. Laboy-Torres $500, and directed that he pay

a special assessment of $100. See id. In addition, Mr. Laboy-Torres was

ordered to serve a period of supervised release of two years. See id.

Judgment was entered on January 23, 2008, and a timely notice of appeal

was filed on January 24, 2008. See id. In this appeal, Mr. Laboy-Torres

seeks review of the District Court’s pretrial ruling and, thereafter, a remand

for further proceedings.

4

STATEMENT OF THE FACTS

In July of 1999, the Superior Court of Mayaguez in Puerto Rico,

placed Mr. Laboy-Torres on a three-year probationary term for the simple

possession of marijuana. See (Presentence Investigation Report at ¶24)

(hereinafter cited as “PSR”); (App. 23-24). The probationary term was

effectuated under Section 404 of the Controlled Substances Act of Puerto

Rico, P.R. LAWS ANN. tit. 24, §2404(a) (2004). See id. Under this

provision of Puerto Rican law, the local courts are vested with authority to

accept a plea of guilty, but defer entering it and, should the defendant

successfully complete probation, the court may then acquit the defendant

and dismiss the proceedings against him/her. See P.R. LAWS ANN. tit. 24,

§2404(b)(1). Mr. Laboy-Torres did not, however, successfully complete1

his probationary term, and in April of 2005, his probation was revoked and

he was re-sentenced to three-years imprisonment, with credit for the two

years that he had been on probation. See (PSR at ¶24); (App. at 25).

Although the presentence report indicates that there was a finding of guilt,1

see PSR at ¶24, given the probationary disposition, which is at odds withthe required fixed term of three-years incarceration in subsection (a), thecourt appears to have initially proceeded in accord with subsection (b)(1).

5

On June 20, 2006, Mr. Laboy-Torres attempted to purchase three

firearms at Stoney Brook Shooting Supplies in York, Pennsylvania. See

App. 85); (PSR at ¶6). Subsequently, on June 26, Mr. Laboy-Torres

attempted to purchase two firearms at Freedom Armory, which is also

located in York. See (App. 85); (PSR at ¶7). On both occasions, Mr.

Laboy-Torres completed federal firearms forms that inquired whether he

had ever been convicted of a felony. See (App. 85); (Psr at ¶¶ 6-7). On

each of the forms, Mr. Laboy-Torres indicated that he had not been so

convicted. See id.

Approximately three months later, Mr. Laboy-Torres was interviewed

by agents of the Bureau of Alcohol, Tobacco, and Firearms, and admitted

having been convicted in a local court in Puerto Rico of a marijuana

possession offense. See (PSR at ¶8). Following his arrest, Mr. Laboy-

Torres moved to dismiss the indictment, arguing that the conviction in a

local court of Puerto Rico should not be construed as disqualifying under

Section 922, as the United States Supreme Court has construed such

disqualification as encompassing only convictions occurring in domestic

courts. See (App. 19-20, 32, 35-36). The District Court noted that this

precise issue had not been previously addressed, but disagreed with Mr.

6

Laboy-Torres’ argument, concluding that the relationship between Puerto

Rico and the United States weighs in favor of treating convictions in the

courts of the former as “domestic.” See (App. 54).

7

STATEMENT OF RELATED CASES AND PROCEEDINGS

Counsel is unaware of any other case or proceeding that is in any way

related, completed, pending, or about to be presented before this Honorable

Court or any other court or agency, state or federal. This case has not

previously been before this Court.

8

STATEMENT OF THE STANDARD OF REVIEW

As the question in this case involves an interpretation of statutory

language, the issue is one of law, and review is, therefore, plenary. See

United States v. Small, 333 F.3d 425, 427 (3d Cir. 2003) (rev’d on other

grounds) (citing United States v. Singletary, 268 F.3d 196 (3d Cir. 2001).

9

SUMMARY OF THE ARGUMENT

The conviction at issue occurred in a local court of Puerto Rico in

1999 and involved the simple possession of marijuana. Mr. Laboy-Torres

was charged and convicted under Section 922(a)(6) of Title 18 of the United

States Code, 18 U.S.C. § 922(a)(6), which, inter alia, prohibits the making

of a false statement in connection with the sale or other disposition of a

firearm. In this particular case, the Government’s theory was that Mr.

Laboy-Torres was disqualified from purchasing and possessing a firearm,

because he had been convicted in Puerto Rico of a felony narcotics offense,

which, under Section 922(g) of the same Chapter, prohibits any person who

has been convicted in any court of a crime punishable by imprisonment or a

term exceeding one year, from possessing a firearm. See 18 U.S.C.

§922(g)(1).

The United States Supreme Court, however, has interpreted Section

922(g) as involving only convictions in domestic courts, as opposed to

foreign courts. In this case, the conviction occurred in a local court of

Puerto Rico, which is not a state. Based upon the interpretation of this

Section given by the Supreme Court, the phrase “domestic courts” should

not be construed as to encompass the local courts in Puerto Rico.

10

ARGUMENT

1. Mr. Laboy-Torres’ 1999 Conviction in a Local Court ofPuerto Rico for the Simple Possession of Marijuana is not aSufficient Predicate to Disqualify Him from Purchasing andPossessing a Firearm in the United States for Purposes ofSection 922 of Title 18 of the United States Code.

The statutory provision under which Mr. Laboy-Torres was

prosecuted provides:

(a) it shall be unlawful -

***(6) for any person in connection with theacquisition or attempted acquisition of a firearm orammunition from a licenses importer, licensedmanufacturer, licensed dealer, or licensedcollector, knowingly to make a false or fictitiousoral or written statement or to furnish or exhibitany false, fictitious, or misrepresentedidentification, intended or likely to deceive suchan order, manufacturer, dealer, or collector withrespect to any fact material to the lawfulness of thesale or other disposition of such firearm orammunition under the provisions of this chapter...

18 U.S.C. §922(a)(6).

Here, the Government’s theory of prosecution was that Mr. Laboy-

Torres was disqualified from purchasing and possessing a firearm because

he had been convicted in Puerto Rico of a felony narcotics offense, see

(App. 15-16), which is addressed in Section 922(g) and provides:

11

(g) it shall be unlawful for any person -

(1) who has been convicted in any court of, acrime punishable by imprisonment or a termexceeding one year;

***to ship or transport in interstate or foreigncommerce, or possess in or affecting commerce,any firearm or ammunition; or to receive anyfirearm or ammunition which has been shipped ortransported in interstate or foreign commerce.

18 U.S.C. §922(g)(1) (emphasis added).

As Mr. Laboy-Torres has a criminal conviction in a local court of

Puerto Rico, the question turns upon whether such fact is disqualifying

under Section 922. In Small v. United States, 544 U.S. 385 (2005), the2

Court addressed the scope of the phrase “convicted in any court.”

Observing that the legislative history of the statute indicated that Congress

did not consider whether foreign convictions should serve as a predicate,

and based upon the presumption in such circumstance against

extraterritorial coverage, the Court in Small concluded that the phrase

“convicted in any court” referred to “only domestic courts, not foreign

While Section 922(a)(2) defines, for purposes of interstate commerce, the2

term “state” as including Puerto Rico, 18 U.S.C. §922(a)(2), there is nocorresponding definition of inclusion for a court of conviction.

12

courts.” Id. at 395.3

In this case, therefore, would a conviction in a local court in Puerto

Rico be considered domestic? A brief review of the history of Puerto Rico

provides a degree of context. From its discovery until 1897, Puerto Rico

was a colony of Spain, with varying degrees of self-government. See

generally United States v. Feliciano-Grafals, 309 F. Supp. 1292, 1295 (D.

P.R. 1970) (summarizing the history of Puerto Rico). In 1898, Puerto Rico

was ceded to the United States following the Spanish-American War. See

Treaty of Peace between the United States of America and the Kingdom of

Spain, Dec. 10, 1898, U.S.-Spain (Treaty of Paris), 30 Stat. 1754 (1899);

United States v. Sanchez, 992 F.2d 1143, 1151 (11th Cir. 1993). For the

next fifty-plus years, the Islands were administered via military liaisons or

civilian officials appointed by the President. See generally Keith Bea,

Congressional Research Service, Political Status of Puerto Rico:

Background, Options, and Issues in the 109th Congress, at CRS-1 (May 25,

2005) (hereinafter cited to as CRS Rep’t).

In 1950 and 1952, however, the status of Puerto Rico changed as a

result of Congress’ passage of the Puerto Rico Federal Relations Act, P.L.

The conviction in Small occurred in Japan.3

13

81-600, 64 Stat. 319, which permitted the people of Islands to organize a

local government based upon a constitution of their own adoption. See 48

U.S.C. §731(b). Under their constitution, the citizens of Puerto Rico elect

members to the Legislative Assembly, which is comprised of a house of

representatives and a senate. See Constitution of the Commonwealth of

Puerto Rico art. III, §1. Similarly, the executive of the Commonwealth is an

elected Governor. See id. at art. IV, §1. The legislative and executive

branches have complete authority over local governance. See Feliciano-

Grafals, 309 F. Supp. at 1296; CRS Rep’t at 4 (noting that the United

Nations has recognized that Puerto Rico had gained sufficient autonomy to

be considered self-governing). In addition, Puerto Rico has a unified

judicial system, with the judges and justices of the courts appointed by the

Governor. See Constitution of the Commonwealth of Puerto Rico art. V,

§§1-3, 8.

Because of the this history and the current degree of autonomy,

Puerto Rico is viewed as an autonomous political entity and,

correspondingly, as a separate sovereign for purposes of the Double

Jeopardy Clause. See United States v. Lopez Andino, 831 F.2d 1164, 1168

14

(1st Cir. 1987). In other contexts, courts have described Puerto Rico as, in4

many respects, a nation. See Feliciano-Grafals, 309 F. Supp. at 1296. For

purposes of the Commerce Clause, Puerto Rico is deemed to have

“sufficient actual autonomy to justify treating it as a public entity distinct

from Congress . . ..” Trailer Marine Transp. Corp. v. Rivera Vazquez, 977

F.2d 1, 8 (1st Cir. 1992). There are other indications consistent with a

separate sovereignty, for example, the existence of a Puerto Rican National

Olympic Committee distinct from the United States, the tax treatment of

corporations and individuals, and the references by officials to the Island as

a country. See CRS Rep’t at 12 n.40. Notably, for purposes of credit,

Puerto Rico is considered a foreign country. See Riccio v. United States,

No. 281-67, 1971 WL 442, *1 n.2 (D. P.R. 1971).

Although in connection with a different firearm statute, 18

U.S.C.App. §1202, the Court of Appeals for the Second Circuit declined to5

find that a conviction in a Puerto Rican commonwealth court constituted a

But cf. United States v. Sanchez, 992 F.2d 1143, 1151 (11th Cir. 1993)4

(reaching the opposite conclusion and holding that Puerto Rico is notinherently separate for purposes of sovereignty).

This statute was enacted at the same time as Section 922, but it was5

repealed in 1986. See Pub. L. 99-308, §104(b), 100 Stat. 459.

15

predicate conviction under Section 1202(a)(1), as it did not occur in a court

of the United States, state, or political subdivision. See United States v.

Diaz, 712 F.2d 36, 37, 40 (2d Cir. 1983). While the decision in Diaz

hinged, in significant part, on the more restrictive language in

Section1202(a)(1), which defined the qualifying courts, whereas Section

922 speaks in terms of “any court,” the construction of the latter phrase by

the United States Supreme Court in Small results in a equation of the

definitions in the two provisions. Notably, the Court in Diaz emphasized

that, where, as here, there is ambiguity respecting a statute’s scope, the rule

of lenity requires a narrow construction. See id. at 39.

Presently, Mr. Laboy-Torres’ conviction occurred in the Superior

Court of Mayaguez in Puerto Rico and in the context of an autonomous

local prosecution. See (App. 23-24). The proceedings were conducted in a

different language, Spanish, and he was prosecuted for a local crime. See

id. In these circumstances and based upon the history and current political

autonomy of Puerto Rico, this conviction should be viewed no differently

than one occurring in Mexico, the Dominican Republic, or Canada. 6

While it is acknowledged that convictions in the local courts of Puerto6

Rico have been used as predicates to support prosecutions under Section922, see, e.g., United States v. Martinez Torres, 616 F. Supp. 499 (D. P.R.

16

In sum, as Mr. Laboy-Torres’s representation in connection with the

purchase of the firearms was not a fact material to the lawfulness of the sale,

in other words, he should not have been deemed as disqualified from

possessing a firearm, the indictment was legally deficient as to a material

element.

1985), these decisions pre-date Small and do not include any analysis of theissue advanced by Mr. Laboy-Torres.

17

CONCLUSION

WHEREFORE, for all of the foregoing reasons, Appellant, Marco

Laboy-Torres, respectfully requests that This Honorable Court reverse the

pretrial ruling of the District Court and remand this matter for additional

proceedings consistent therewith.

Respectfully submitted,JAMES V. WADE, ESQ.Federal Public Defender

/s/ Frederick W. Ulrich FREDERICK W. ULRICH, ESQ.Assistant Federal Public Defender100 Chestnut Street, Suite 306Harrisburg, PA 17101717-782-2237Attorneys for Appellant,Marco Laboy-Torres

Date: April 4, 2008

18

CERTIFICATION OF BAR MEMBERSHIPIDENTICAL TEXT, VIRUS CHECK AND WORD COUNT

I, Frederick W. Ulrich, Esq., Assistant Federal Public Defender,certify that:

1) I am a member in good standing of the bar of this Court;

2) the text of the electronic format of the Brief of Appellant isidentical to the hard copy format;

3) a virus check was performed on the Brief of Appellant, usingSymantic AntiVirus, Program Version 10.1.7.7000, rev. 4, lastupdated 4/3/08, and no virus was detected;

4) this Brief of Appellant contains less than 14,000 words.

I make this combined certification under penalty of perjury, pursuant to 28U.S.C. §1746.

/s/ Frederick W. Ulrich FREDERICK W. ULRICH, ESQ.Assistant Federal Public Defender

Dated: April 4, 2008

19

CERTIFICATE OF SERVICE

I, Frederick W. Ulrich, Esq., Assistant Federal Public Defender,

certify that I caused to be served on this date a hard copy of the attached

Brief of Appellant by hand delivery and/or by first-class mail, postage

prepaid, addressed as follows:

CHRISTY H. FAWCETT, ESQUIRE

United States Attorney’s Office228 Walnut Street, Room 220Harrisburg, PA 17101<christy.fawcett@usdoj.gov>Attorney for Appellee,United States of America

MARCO LABOY-TORRES

Reg. No. 14311-067MDC BrooklynPO Box 329002Brooklyn, NY 11232Appellant

/s/ Frederick W. Ulrich FREDERICK W. ULRICH, ESQ.Assistant Federal Public Defender

Dated: April 4, 2008

20