Petition for Writ of Certiorari — Michael Lowry, Robert Mulgrew, and Thomasine Tynes, Petitioners v. United States

No. 18=============================

IN THE

SUPREME COURT OF THE UNITED STATES

_______________

MICHAEL LOWRY, ROBERT MULGREW

and THOMASINE TYNES,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

=================

Petition for Writ of Certiorari

To the United States Court of Appeals

for the Third Circuit

======================

PETITION FOR WRIT OF CERTIORARI

======================

(additional counsel

on reverse side)

PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

50 Rittenhouse Place

Ardmore, PA 19003

(610) 649-8200

peter.goldberger@verizon.net

Attorneys for Petitioners

June 2019

Additional counsel for petitioners:

LISA A. MATHEWSON

Law Offices of Lisa A. Mathewson, LLC

123 So. Broad St., Ste. 810

Philadelphia, PA 19109

(215) 399-9592

lam@mathewson-law.com

Attorney for Petitioner Tynes

MEREDITH A. LOWRY

Klehr Harrison Harvey Branzburg, LLP

1835 Market St., Ste. 1400

Philadelphia, PA 19103

(215) 569-2700

mlowry@klehr.com

Attorney for Petitioner Lowry

QUESTION PRESENTED

In Bronston v. United States, 409 U.S. 352 (1973), this

Court declared that “the perjury statute is not to be

loosely construed, nor the statute invoked simply

because a wily witness succeeds in derailing the

questioner – so long as the witness speaks the literal

truth. The burden is on the questioner ….” The Court

further emphasized that “[p]recise questioning is

imperative as a predicate for the offense of perjury.”

In this light:

Can responses to fundamentally ambiguous questions – or literally truthful answers to unambiguous

questions – constitute “false declarations” before a

federal grand jury under 18 U.S.C. § 1623, on the

basis that (a) forbidden imprecision in questioning is

limited to “glaring instances of vagueness or doublespeak … that … would mislead or confuse a witness”;

or that (b) the grand jury witnesses should have

understood from the “thrust” of the line of questions

that the prosecutors meant something other than

what they actually asked?

i

LIST OF ALL PARTIES

The caption of the case in this Court contains the

names of all parties (petitioners and respondent

United States). Co-defendants Henry Alfano and

William Hird are filing a separate petition, which is

related to the instant petition as explained under

Point 2. There were other co-defendants at trial; those

individuals either were acquitted or have not joined in

the petitioners’ appeal.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

LIST OF ALL PARTIES ............................................. ii

INDEX TO APPENDIX ............................................. iv

TABLE OF AUTHORITIES ..................................... iiv

PETITION

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 2

TEXT OF FEDERAL STATUTES INVOLVED ........ 2

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

Statement of Lower Court Jurisdiction .................. 6

REASONS FOR GRANTING THE PETITION

1. The decision of the court below

disregards this Court’s precedent and

conflicts with the decisions of other

circuits ……………………………………..………... 7

2. This case offers an excellent vehicle for

clarifying the Bronston rule governing

perjury prosecutions, not only because of

the petitioners’ acquittals on all nonperjury charges, but more importantly

because variations in the questioning of

the three petitioners permit the Court to

examine a number of common applications

of that seminal decision ………………………. 16

3. At least, this petition should be held

pending disposition of the petition filed

by co-defendants Alfano and Hird ………… 22

iii

CONCLUSION ......................................................... 23

INDEX TO APPENDIX

A. Opinion of the U.S. Court of Appeals in

United States v. Hird, 913 F.3d 332

(3d Cir., Jan. 18, 2019) ............................... Appx. 1a

B. District Court memorandum and order denying

pretrial motion to dismiss, sub nom. United

States v. Sullivan, 2013 WL 3305217 (E.D.Pa.,

July 9, 2013) .............................................. Appx. 44a

C. District Court memorandum and order denying

post-trial motions for judgment of acquittal,

sub nom. United States v. Lowry, 2014 WL

5795575 (Nov. 6, 2014) ............................. Appx. 68a

TABLE OF AUTHORITIES

Cases

Bronston v. United States,

409 U.S. 352 (1973) …………………………… passim

United States v. Chapin,

515 F.2d 1274 (D.C. Cir. 1975) ....................... 11, 19

United States v. DeZarn,

157 F.3d 1042 (6th Cir. 1998) ................................. 9

United States v. Hairston,

46 F.3d 361 (4th Cir. 1995) ................................... 15

United States v. Laikin,

583 F.2d 969 (7th Cir. 1978) ................................. 14

United States v. Larranaga,

787 F.2d 489 (10th Cir. 1986) ............................... 15

United States v. Lighte,

782 F.2d 367 (2d Cir. 1986) ............................ 11, 12

iv

United States v. Porter,

994 F.2d 470 (8th Cir. 1993) ................................. 15

United States v. Reverson-Martinez,

836 F.2d 684 (1st Cir. 1988) ................................. 15

United States v. Robbins,

997 F.2d 390 (8th Cir. 1993) ................................. 10

United States v. Sarwari,

669 F.3d 401 (4th Cir. 2012) ................................. 21

United States v. Wall,

371 F.2d 398 (6th Cir. 1967) ........................... 11, 19

United States v. Weiss,

930 F.2d 185 (2d Cir. 1991) .................................. 10

Statutes and Rules

18 U.S.C. §§ 1341, 1343, 1349 …………………………. 3

18 U.S.C. § 1621 ….……………………………………… 7

18 U.S.C. § 1623 ..................................................... 4, 7

18 U.S.C. § 3231 ......................................................... 6

28 U.S.C. § 1254(1) ..................................................... 2

28 U.S.C. § 1291 ......................................................... 6

S.Ct. Rule 13.1 ............................................................ 2

S.Ct. Rule 13.3 ............................................................ 2

S.Ct. Rule 13.5 ............................................................ 2

S.Ct. Rule 14.1(g) ........................................................ 6

v

vi

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

__________FOR THE THIRD CIRCUIT__________

Michael Lowry, Robert Mulgrew, and Thomasine

Tynes jointly petition this Court for a writ of

certiorari to review the judgment and order of the

United States Court of Appeals for the Third Circuit

affirming their convictions and sentences for making

false statements before a federal grand jury.

OPINIONS BELOW

The Third Circuit’s precedential opinion (per

Nygaard, J., with Greenaway & Fisher, JJ.), filed

January 18, 2019, is Appendix A. It is published at

913 F.3d 332, sub nom. United States v. Hird. The

United States District Court for the Eastern District

of Pennsylvania (Kelly, J.) wrote a memorandum

opinion, filed July 1, 2013, sub nom. United States v.

Sullivan, addressing petitioners’ pretrial motion to

dismiss the mail and wire fraud counts (of which they

were acquitted at trial). That opinion is not published

in the Federal Supplement but is available at 2013

WL 3305217; a copy is Appx. B. The District Court

(Stengel, J.) also wrote an unpublished memorandum

opinion on the denial of post-trial motions, filed

November 6, 2014, and available at 2014 WL

5795575. Appx. C. The orders granting in part petitioner Mulgrew’s and Tynes’s petitions for rehearing

of the Court of Appeals’ initial (since withdrawn)

opinion (901 F.3d 196), filed concurrently with the

amended opinion, are available at 913 F.3d 392 and

913 F.3d 393, respectively.

1

JURISDICTION

On January 18, 2019, the United States Court of

Appeals for the Third Circuit filed its amended

opinion and judgment affirming the petitioners’

convictions. Appx. A. This opinion superseded an

earlier-filed opinion, see 901 F.3d 196 (August 21,

2018, since withdrawn), and followed the granting, in

part, of petitions for rehearing by these petitioners.

On February 7, 2019, the Court of Appeals denied

motions for leave to file further rehearing petitions.

As a result, pursuant to this Court’s Rules 13.1 and

13.3, a petition for certiorari by any of the petitioners

was initially due on or before April 18, 2019. By order

dated April 11, 2019, under Dkt. 18A1048, Justice

Alito extended the time for filing a petition for a writ

of certiorari until May 18, 2019, and then, by Order

dated May 13, 2019, further extended the time to

June 17, 2019. This petition is timely filed on or

before that extended due date. Rules 13.1, 13.3, 13.5.

Petitioner invokes this Court’s jurisdiction under 28

U.S.C. § 1254(1).

TEXT OF FEDERAL STATUTES INVOLVED

Title 18, U.S. Code, provides, in pertinent part:

§ 1623. False Declarations Before

Grand Jury or Court

(a) Whoever under oath (or in any declaration,

certificate, verification, or statement under

penalty of perjury as permitted under section

1746 of title 28, United States Code) in any

proceeding before or ancillary to any court or

grand jury of the United States knowingly

makes any false material declaration or makes

or uses any other information, including any

2

book, paper, document, record, recording, or

other material, knowing the same to contain any

false material declaration, shall be fined under

this title or imprisoned not more than five years,

or both.

(b) This section is applicable whether the

conduct occurred within or without the United

States.

****

(e) Proof beyond a reasonable doubt under this

section is sufficient for conviction. It shall not be

necessary that such proof be made by any

particular number of witnesses or by documentary or other type of evidence.

STATEMENT OF THE CASE

Petitioners Michael Lowry, Robert Mulgrew and

Thomasine Tynes were elected, non-lawyer judges of

the Philadelphia Traffic Court. A federal grand jury

indicted them for devising and executing scheme to

defraud the City and State of revenues in the form of

fines and penalties that would allegedly have become

due upon a proper adjudication of alleged traffic

offenses.1 The government’s theory was that the

____________________

Petitioners filed or joined in pretrial motions to dismiss

these charges as failing to state a cognizable theory of

“property”-based mail and wire fraud under 18 U.S.C.

§§ 1341, 1343, and 1349. The pretrial motions were denied.

Appx. B. Co-defendants Henry Alfano and William Hird

pleaded guilty to the fraud charges under an agreement

allowing them to preserve those issues for appeal, which was

unsuccessful. Appx. A. Their separate petition for certiorari is

being filed contemporaneously with this one. See Point 3 of

the Reasons for Granting in this Petition, post.

1

3

judges of Traffic Court systematically gave special

“consideration” to favored litigants in their court.

(There was no accusation, however, nor any evidence,

that any of them took bribes or otherwise profited

from this supposed “scheme.”) After a lengthy trial at

which the particulars of numerous alleged traffic

violations were examined, and at which the evidence

showed that the judges had wide discretion to show

leniency to accused drivers without strict regard for

legal rules, the petit jury acquitted the petitioners

and their co-defendants of all such charges.

At the same time, the jury convicted each of the

petitioners of one or more instances of alleged false

declarations before the grand jury in violation of 18

U.S.C. § 1623, a kind of perjury. In particular, petitioner Lowry was alleged to have responded falsely to

a single question:

Q. So if I understand your testimony, you’re

saying you don’t give out special favors; is that

right?

***

A. No, I treat everybody in that courtroom the

same.

Appx. 31a. Like Lowry, petitioner Mulgrew was

convicted on one count, based on his responses to two

questions alleged to be part of a single inquiry:

Q. How about your personal, has your personal

received any calls like that from other judges,

other ward leaders that she’s conveyed to you,

saying so-and-so has called about this case?

A. If she did, she didn’t convey them to me.

****

Q. Let me make sure as well that if I got your

4

testimony correct [sic]. You’re saying that if

other people, whether they be political leaders,

friends and family, anybody is approaching your

personal and asking her specifically to look out

for a case, see what she can do in a case, give

preferential treatment, however you want to

phrase it, that she is not relaying any of that

information on to you; is that correct?

A. No, she isn’t.

Appx. 37a.2

Finally, petitioner Tynes was indicted and

convicted on two separate counts of perjury. The first

alleged that she answered falsely as follows:

Q. In all the years you’ve been [at Traffic Court]

have you ever been asked to give favorable

treatment on a case to anybody?

A. No, not favorable treatment. People basically

know me. The lawyers know me. The court

officers know me. I have been called a nononsense person because I’m just not that way. I

take my position seriously, and the cards fall

where they may.

Appx. 25a. The second count was based on a separate

and later exchange:

Q. You’ve never taken action on a request?

A. No.

Appx. 26a. Each petitioner was sentenced to a term of

imprisonment, all of which have been fully served.

____________________

A judge’s “personal,” in the Philadelphia courts, means

essentially the judge’s “tipstaff” or courtroom deputy,

sometimes referred to as “personal assistant” to the judge.

2

5

On appeal, petitioners Tynes and Lowry argued

that the questions to which they allegedly responded

falsely were fundamentally ambiguous, and thus

immune from perjury prosecution under this Court’s

decision in Bronston v. United States, 409 U.S. 352

(1973), while Mulgrew argued that his responses were

literally truthful, measured against the ill-framed

questions he was asked. This, too, would require

reversal under Bronston. Tynes also invoked literal

truth as a defense for one of her answers.

The U.S. Court of Appeals for the Third Circuit

rejected these arguments in a precedential opinion,

and affirmed the three petitioners’ convictions. Appx.

A. The court of appeals ruled that the “fundamental

ambiguity” doctrine applies only to “glaring instances

of vagueness or double-speak by the examiner at the

time of questioning (rather than artful post-hoc interpretations of the questions) that—by the lights of any

reasonable fact-finder—would mislead or confuse a

witness into making a response that later becomes

the basis of a perjury conviction.” Appx. 23a. The

court below further held that a defense of literal truth

to the particular question asked could be defeated by

reference to the “thrust” of a prosecutor’s line of

questions. Appx. 39a.

This petition follows.

Statement of Lower Court Jurisdiction Under

Rule 14.1(g)(ii). The United States District Court

had subject matter jurisdiction of this case under 18

U.S.C. § 3231; the indictment alleged federal offenses

committed in the district. The court of appeals had

jurisdiction under 28 U.S.C. § 1291.

6

REASONS FOR GRANTING THE PETITION

1. The decision of the court below disregards

this Court’s precedent and conflicts with the

decisions of other circuits.

This case presents several interrelated aspects of

the rule laid down for federal perjury prosecutions

some 45 years ago by this Court in Bronston v. United

States, 409 U.S. 352 (1973). The Court decided in

Bronston that “precise questioning is imperative as a

predicate for the offense of perjury.” Id. 362. “The

burden is on the questioner to pin down the witness to

the specific object of the questioner’s inquiry.” Id. This

ensures that only responses that are both “false” and

“knowingly” so are made predicates for conviction, as

the statute requires.3 Even where a witness’s answers

were “intentionally misleading,” “any special

problems arising from the literally true but

unresponsive answer are to be remedied through the

‘questioner’s acuity’ and not by a federal perjury

prosecution.” Id. 363. It follows from these principles

that the consequences of any imprecision in the

questioning must fall at the feet of the inquisitor. At

odds with numerous decisions in other circuits, the

opinion of the court below contravenes the governing

rule established in Bronston.

The government sought a ruling in Bronston that a

witness’s evasive, deliberately unresponsive answer

can be deemed “false” under perjury law even if literally accurate. In a unanimous opinion authored by the

Chief Justice, this Court unanimously rejected the

____________________

Bronston arose under 18 U.S.C. § 1621, but the same

principles apply equally to § 1623 prosecutions, as here.

3

7

government’s attempt to carve out an exception from

the settled, pre-existing, common-sense, general legal

rule that a statement that is literally true cannot be

criminalized as “false.” “[T]he perjury statute is not to

be loosely construed, nor the statute invoked simply

because a wily witness succeeds in derailing the

questioner – so long as the witness speaks the literal

truth. The burden is on the questioner ....” 409 U.S. at

360.4

This case presents issues under both of the most

common applications of the foundational principles of

perjury law established in Bronston. One is that a

literally truthful answer (even if misleading) cannot

be the predicate for a perjury conviction. The other is

that fundamental ambiguity in a question prevents

the answer from being prosecuted as perjury. Underlying both is the understanding that a perjury conviction fails unless the government proves beyond a

reasonable doubt that the witness understood the

cited question, at the time that she answered it, in a

way that would make her allegedly-perjurious answer

false. That is why “precise questioning is imperative

as a predicate for” perjury. 409 U.S. at 362.

These core principles cannot be reconciled with the

opinion of the court below, which allowed petitioner

Mulgrew’s clear answers to unambiguous and narrow

questions, for example, to be reinterpreted as false

responses to unstated and broader questions inferred

____________________

4 Accordingly, the principles governing perjury prosecutions

established by Bronston are by no means limited to cases

where a defendant has been accused of making a statement

that is unresponsive as well as literally true. The simple fact

is that a statement that is literally true is not and can never

be “false” in a prosecution under 18 U.S.C. § 1621 or § 1623.

8

from the overall “thrust of the Government’s line of

questions” (Appx. 39a), the “thrust of the inquiry”

(id.), the content of a “follow up question,” or the

“focus” of the line of inquiry (id.). See also United

States v. DeZarn, 157 F.3d 1042, 1051 (6th Cir. 1998)

(mistakenly applying Bronston’s “literal truth” rule

only to unresponsive answers).

The court below requires the witness to divine

(from the “thrust” of the questions, rather than their

words) what question the prosecutor meant to ask,

and then to answer that question instead. The

Bronston rule leaves no such room for shifting the

burden of clarity to the witness. (“burden is on the

questioner”). It is the questioner, this Court held, who

bears the burden of asking precise questions that

communicate the “specific object of the inquiry” and

“pin the witness down.” 409 U.S. at 360. A witness,

like Mulgrew, who answers truthfully the precise

question asked cannot be convicted of perjury.

The doctrine of “fundamental ambiguity” is but

another application of the same rule. No special gloss

on the basic principles of perjury (and evidentiary

sufficiency) is necessary to formulate it. It simply

requires proof beyond a reasonable doubt that the

defendant knew what the questioner was asking –

proof without which the jury cannot find that the

defendant knew that his answer was false. When a

term cannot be used with mutual understanding

absent a definition, it is impossible (and unlawful) to

conclude that the defendant understood the question

posed, which is a logical prerequisite to any conviction

based on the claim that a declaration was knowingly

false.

9

The court below affirmed petitioners’ perjury

convictions by drastically limiting the application of

these foundational precepts. As with its treatment of

the “literal truth” rule, its opinion put the burden on

the witnesses to resolve fundamental ambiguities in

the prosecutors’ questions by requiring each witness

to infer, from the “focus” of the inquiry, what the

questioner meant to ask (but did not). Appx. 27a.

Indeed, the court below purported to limit the

ambiguity inquiry to:

glaring instances of vagueness or double-speak

by the examiner at the time of questioning …

that – by the lights of any reasonable fact-finder

– would mislead or confuse a witness into

making a response that later becomes the basis

of a perjury conviction.

Appx. 23a. The Third Circuit is not the only court to

have misread this Court’s standard in this way. See

United States v. Robbins, 997 F.2d 390, 394–95 (8th

Cir. 1993) (“The literally true answers to the questions that are the basis of the false oath charge must

be considered in the context in which they were

given.”; for jury to determine whether defendant knew

prosecutor intended to refer to different corporation

than he asked about); cf. United States v. Weiss, 930

F.2d 185, 200–02 (2d Cir. 1991) (Restani, J., dissenting).

The standard applied below cannot be reconciled

either with this Court’s precedent or with the case

law of most of the circuits, thus requiring this Court’s

intervention. The other circuits have long held that a

perjury conviction cannot stand when predicated upon

a question that lacks “a meaning about which men of

ordinary intellect could agree, nor … could be used

10

with mutual understanding by a questioner and

answerer unless it were defined at the time it were

sought and offered.” United States v. Lighte, 782 F.2d

367, 375 (2d Cir. 1986). A conviction must not be

upheld on the basis that the witness “understood, or

should have understood, the import behind the

prosecutor’s questions.” United States v. Eddy, 737

F.2d 564, 569 (6th Cir. 1984). No perjury conviction

can stand on the basis of “a particular interpretation

that the questioner placed upon an answer.” United

States v. Shotts, 145 F.3d 1289, 1298 (11th Cir. 1998)

(reversing § 1623 conviction because answer was

literally true).

The court of appeals’ tolerance in petitioners’ case

for ambiguous questioning cannot coexist with the

prohibition against ambiguity that the Court established in Bronston. This Court’s rule offers no safe

harbor to government questioning that is too

imprecise to create a “mutual understanding” but

falls short of “glaring [] double-speak” that would

affirmatively mislead or confuse.

Numerous other courts have vacated convictions

predicated upon responses to questions that would be

excused under the Third Circuit’s test. See, e.g.,

United States v. Wall, 371 F.2d 398, 400 (6th Cir.

1967) (denial of having “taken any trips” with a

certain individual, when the defendant was with the

person in another state but had not traveled with

him) (discussed in United States v. Chapin, 515 F.2d

1274, 1280 (D.C. Cir. 1975)); Lighte, 782 F.2d at 376

(failure to specify whether use of “you” referred to the

witness’s actions as a trustee or as an individual).

None of these terms suffers from “glaring” vagueness;

none is “double-speak”; none would affirmatively

11

“mislead or confuse.” Yet none can support a perjury

conviction, because none has “a meaning about which

men of ordinary intellect could agree.” Lighte, 782

F.2d at 375. Under Bronston, the threshold question

must always be whether prosecutors have discharged

their duty to communicate the object of the questioning and hold the witness to it. Bronston, 409 U.S.

at 360.

The same flaw infects the decision of the Third

Circuit with respect to the petitioners’ responses that

were literally truthful. For example, as to petitioner

Mulgrew’s response that to his knowledge his assistant had not received “any calls like that,” the opinion

states:

The transcript makes it obvious that Mulgrew’s

singular reliance on the reference to a “call”

ignores the thrust of the Government’s line of

questions. The questions focus on the substance

of the communications between Mulgrew’s

personal assistant and himself, rather than the

mode of those communications.

Appx. 39a. As to the second question and answer, the

opinion similarly contradicts Bronston by blaming the

witness rather than his interrogator for a response

that was true, even if it may have avoided what the

prosecutor meant to ask about (but didn’t):

[A]s with the first question, Mulgrew cherrypicks a small part of the question out of context,

distorting it. The full text and follow up question

show that the thrust of the inquiry was whether

Mulgrew’s personal assistant was informing him

of the names of those requesting preferential

treatment from him. And Mulgrew’s response to

the follow-up question—saying that he did not

12

want to know so that he did not have to worry

about what he did in the courtroom—is

consistent with one who understood this.

Appx. 39a–40a. It is on this foundation that the panel

concluded:

that, ultimately, the evidence is sufficient for a

reasonable jury to conclude Mulgrew understood

that both of these questions were focused on

whether his personal assistant informed him of

requests for him to give preferential treatment,

and that he answered in the negative to both.

Appx. 40a. The court below thus treated a defense of

literal truth as if it were an attack on an ambiguous

question, where petitioner Mulgrew’s argument was

never that.5 The issue was not whether petitioner

knew or understood why he was under investigation

(which he may very well not have, nor did the

prosecutors necessarily even know, at that early

stage). The question, in a perjury case, is whether the

cited answers to those questions were false, and

knowingly so.

Attention by a lay witness to the precise wording

of the question posed by a professional interrogator

such as a federal prosecutor is not to be derided as

“cherry-pick[ing] a small part of the question” or

“distorting” its meaning. Appx. 39a. The question

____________________

5 Petitioners Tynes and Lowry did contend that the questions

asked of them were ambiguous. Nearly the entire introductory discussion of the Bronston rule in the opinion of the court

below focused on the problem of ambiguous questioning. See

Appx. 21a–23a. Nevertheless, both doctrines – “fundamental

ambiguity” and “literal truth” – flow from Bronston’s firm

stand that precise questioning is a prerequisite to any perjury

conviction for making a “knowingly … false” statement.

13

about “calls” is the question Mulgrew was charged

with, and convicted for, answering falsely.6 Context,

such as the “thrust” of a line of antecedent questions,

can be used by a jury to infer that a defendant was

not confused by a question that invites more than one

interpretation, where confusion is claimed as a

defense, or to protect against misinterpretation of an

answer, but never to alter a question’s literal meaning

if the question on its face is unambiguous.

Bronston itself demonstrates that the “context” of

questioning is not to be consulted in a manner that

eliminates the requirement of looking to the precise

question asked and answer given, where there is no

claim that the witness (now defendant) was confused.

409 U.S. at 361–62. Where the specific questions and

____________________

By challenging his conviction for perjury on a particular

question asked before the grand jury, petitioner did not seek

to “impl[y]” that “had the Government asked him about

receiving index cards with such requests,” rather than being

asked whether his assistant had received “any calls like that,”

then “his answer would have been completely different.”

Appx. 37a. No one knows what his answer would have been to

some question that was never asked. See United States v.

Laikin, 583 F.2d 969, 971 (7th Cir. 1978) (“defendant was not

required to answer the unasked question,” since Bronston

burden is on questioner to pin the witness down; answer

given was “literally true and [r]esponsive” to question that

was asked). As the quoted passage reveals, the approach of

the court below, in contradiction to Bronston, is essentially

inconsistent with the presumption of innocence. A court must

assume that a witness’s answer to some other question would

have been truthful, not the opposite, as the Third Circuit

panel insinuated. Similar disdain for the possibility of innocence infected the court’s disposition in the same opinion of

the scope-of-mail-fraud issue, Appx. 15a–16a, as shown in codefendants Alfano and Hird’s separate petition.

6

14

answers charged and on which a conviction is

predicated are not ambiguous, reference to the

context of the questions – or worse, to the content of a

“follow up question” posed after a charged answer was

given, Appx. 39a – is not allowed. If it were, all the

evils and unfairness would emerge that the precise

questioning requirement is intended to prevent.

The decisions of other circuits illustrate the point

and reveal how badly the decision of the court below

deviates from the governing rule. See United States v.

Hairston, 46 F.3d 361, 375–76 (4th Cir. 1995) (reversing perjury and subornation convictions where “the

prosecutor did not use the requisite specificity in

questioning, despite Mack’s apparent confusion or

evasion” as to meaning of terms); United States v.

Porter, 994 F.2d 470, 475 (8th Cir. 1993) (reversing

conviction where “Defendant did not commit perjury

simply by answering the questions in a narrow,

arguably evasive fashion, giving a literal meaning to

the words “mail” and “generate”); United States v.

Reverson-Martinez, 836 F.2d 684, 690 (1st Cir. 1988)

(reversing § 1621 conviction where “the government is

saddled with what was said, rather than what might

have been meant” by defendant whose response was

literally true under his apparent interpretation of

question) (emphasis original). “When a witness bobs

and weaves, it is the questioner’s obligation to get the

proper bearings; a federal perjury prosecution is

medicine too powerful to be dispensed casually as a

quick fix for unresponsiveness.” Id. 691. Cf. United

States v. Larranaga, 787 F.2d 489, 496–97 (10th Cir.

1986) (reversing where government’s failure to ask

more specific questions left an ambiguity in response

that was only untrue by negative implication).

15

In conflict with this Court’s authority and the

decisions of the other circuits, the decision of the court

below dilutes the requirement of proof beyond a

reasonable doubt that the defendant understood the

questioning and intended to lie. Only defendants

questioned by “glaring[ly]” incompetent or treacherous prosecutors would be protected by the foundational principles of perjury prosecutions. The court

below blames and penalizes the witnesses for not

answering questions that the prosecutors, in hindsight, wish they had asked, and for not disregarding

the particular question in favor of an interpretation of

the “thrust” of the questioning as a whole, including

subsequent inquiries. Neither controlling precedent

nor fundamental fairness can tolerate such a result.

Accordingly, this petition should be granted.

2. This case offers an excellent vehicle for clarifying the Bronston rule governing perjury

prosecutions, not only because of the petitioners’ acquittals on all non-perjury charges,

but more importantly because variations in the

questioning of the three petitioners permit the

Court to examine a number of common applications of that seminal decision.

As shown under Point 1, the issues at stake in this

case are important, and the holding of the court below

conflicts with this Court’s precedent and the rulings

of other circuits. The record of the instant case also

offers a good vehicle for the discussion and resolution

of such questions. After a lengthy trial, the jury

entirely rejected the government’s underlying theory

of this case, acquitting every defendant of all charges

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of mail and wire fraud. So far as the jury could find,

based on an extensive presentation of direct and

circumstantial evidence, there was no fraud in the

operation of the Philadelphia Traffic Court,7 or at

least not in these petitioners’ courtrooms. As the jury

learned at trial, any tradition of “consideration” that

existed resulted not in corrupt “ticket-fixing,” but only

in the kind of lenient and sympathetic outcomes in

particular cases that might eventuate anyway in such

an informal, lawyerless, minor tribunal, simply from

the accused drivers’ showing up and telling their

stories. Thus, it is highly likely that the responses

sworn to by the petitioners before the grand jury were

in fact given in good faith, even though they denied

most if not all of the wrongdoing of which the prosecutors, however mistakenly, then believed them guilty.

Protecting such suspects from perjury convictions is a

basic goal of the rule established by this Court in

Bronston.

Petitioners’ case offers an excellent vehicle not

only because the acquittals make this a pure case of

alleged perjury with no complicating other charges,

but also for another reason. The questions and

answers underlying the charges here are few in

number (one count each for Mulgrew and Lowry; just

two for Tynes) yet they present a fair sampling of the

various issues that arise in the dozens of cases prosecuted in the federal courts each year that require

application of the rule established in Bronston. The

proper meaning and enforcement of that precedent

____________________

Much less was there any bribery, as the government

appears to have suspected during the grand jury investigation but never charged, as the court below mentions. See

Appx. 28a–29a.

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with respect to claims of “fundamental ambiguity” are

presented, as well as a defense of “literal truth.”

The validity of a perjury conviction cannot depend

on a defendant’s ability to establish that she did not

understand a term the way that the prosecutor later

asserts that he intended it. Yet that is the burden

that the court below imposed in petitioner Tynes’s

case. The court opined, for example, that the record

fails to show “any reason why” Tynes would interpret

the grand jury questioning as addressing a different

definition of “favorable treatment” than the government invoked. Appx. 29a. In so doing the court

skipped a crucial step: finding evidence in the record

that would support a finding by the jury that the

prosecutor had communicated to petitioner the

convoluted “consideration” theory that was advanced

at trial, but which no one – not an investigating

agent, not a prosecutor, not even the press – had

articulated, let alone articulated to Tynes, at the time

she was questioned.

Here, so far as trial jury knew, the questioning of

petitioner Tynes began with the question about

“favorable treatment” that underlay Count 71. It was

unquestionably plain that the prosecutor was not

giving “favorable treatment” its ordinary meaning in

that question, that is, an outcome in court that would

be in the party’s favor – which of course is what every

litigant seeks in every case. Yet the prosecutor did

nothing to enlighten his witness as to the meaning he

intended, which later was said to have something to

do with improper motive on the part of the judge. The

trial jury had no evidence before it that would

establish beyond a reasonable doubt that Tynes had

divined his intent. Literally nothing in the record

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permits the conclusion that petitioner Tynes knew,

when she answered in the grand jury room, the novel

and highly-specific construction that the prosecutor

put on the term: “consideration,” which he also called

“ticket-fixing” – a concept that eventually required

multiple layers of definitions to charge. See CA3

Appx. 195a–196a (Indictment ¶¶ 30, 32). Bronston

required reversal for this fundamental failure of

proof, and did not allow a shifting of responsibility to

the witness (later, defendant).

The “consideration” theory later espoused was far

more esoteric than the concept of bribery, which

petitioner Tynes seemingly inferred was the matter

under investigation, and which she could truthfully

deny. Because the evidence did not establish beyond a

reasonable doubt that petitioner Tynes necessarily

answered the idiosyncratic “consideration” theory

rather than the common bribery theory (or another

theory entirely), reversal is required. See, e.g.,

Chapin, 515 F.2d at 1280 (D.C. Cir.) (discussing with

approval Wall, supra (6th Cir.), which reversed a

perjury conviction because defendant’s interpretation

of term was more common than government’s).

Indeed Tynes’s case provides a powerful example

of the kind of ambiguity that Bronston makes fatal.

Even the Third Circuit panel was confused by the

distinction between “consideration” (as a sort of

ticket-fixing) and bribery − asserting later in its

opinion that the record supports “no reasonable

inference that the Government was asking [Tynes]

about matters outside of the alleged bribes.” Appx.

29a.8 That is the defense argument (and presumably

____________________

In point of fact, nothing in the 26 pages of grand jury

transcript that preceded the charged question and answer

8

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the opposite of what the panel meant to say): that the

record does not support an inference that the

government was asking about anything outside of

bribes.9 Tynes’s denial of giving “favorable treatment”

(in the sense of allowing herself to be bribed), if that

was her understanding, was not and could not be

perjury.

Petitioner Lowry’s case is likewise a useful source

for discussion of the problem of ambiguity under

Bronston. Lowry was convicted for responding

untruthfully to a question in which the prosecutor

asked whether she correctly understood Lowry’s testimony, in substance, to be that he did not “give out

special favors.” Lowry replied, “No,” adding that he

treated “everybody in that courtroom the same.”

Appx. 31a. As the appellate panel said it recognized,

Appx. 21a, “[p]recise questioning is imperative as a

predicate for the offense of perjury.” Bronston, 409

U.S. at 362. Yet the prosecutor’s ill-framed, multilayered, compound and ambiguous question not only

turned on an undefined use of “special favors,” but

also made the intended referent for Lowry’s introductory “No” hopelessly uncertain. Government counsel

then left unexplored with follow-up what the way

_______________(cont'd)

gave any hint of what “favorable treatment” meant at all. The

immediately preceding topic was the social life of other Traffic

Court judges. Because those pages were not in evidence,

however, the jury could only speculate about the context

preceding the question charged in Count 71 – but even had

the jury had the pages, they would not have clarified the

intended meaning, at the time the question was asked, of

“favorable treatment.”

At the time of the questioning, after all, nothing was yet

“alleged,” and after investigation no “bribes” were ever stated

to be the government’s theory.

9

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was, according to Lowry, that everyone in his courtroom was treated. Again, the nature of the inquiry

made the question “fundamentally ambiguous,” and

should have precluded, as a matter of law, any

conviction. Instead, the court below put the burden on

Lowry for not responding to that question in accordance with what the prosecutors’ “line of questioning

reasonably supports ….” Appx. 32a.

As to petitioner Mulgrew, his sufficiency challenge

was governed by yet another common application of

Bronston’s rule that “the perjury statute is not to be

loosely construed, nor the statute invoked simply

because a wily witness succeeds in derailing the

questioner – so long as the witness speaks the literal

truth. The burden is on the questioner ....” 409 U.S. at

360. Thus, the instant case presents a good vehicle to

discuss not only the nature of “fundamental

ambiguity” in questioning, but also the scope of

Bronston’s “literal truth” rule. See United States v.

Sarwari, 669 F.3d 401, 406–07 (4th Cir. 2012) (collecting cases giving this rule a narrow rather than the

intended strict interpretation). Rather than accept

that Mulgrew’s response to the question asked was

literally accurate, as measured against the precise

question asked, the court below looked to its own view

of the overall “thrust” of the entire line of questions to

sustain the conviction.

For these reasons, the instant petitioners’ case

affords an excellent vehicle for the elaboration and

explication of several aspects of this Court’s Bronston

rule – both “fundamental ambiguity” in questioning,

and “literal truth” in answers.

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3. At least, this petition should be held pending

disposition of the petition filed by codefendants Alfano and Hird.

Petitioners Lowry and Mulgrew joined codefendants Alfano and Hird’s motions to dismiss the

mail and wire fraud charges for lack of a valid theory

of property deprivation under this Court’s cases. On

appeal, they argued that being forced to stand trial

for over a month, having to confront and justify

dozens of past favorable dispositions of various minor

traffic tickets cherry-picked by the government to

raise suspicions about their integrity and fairness,

prejudiced the jury’s ability to apply the rules of law

to the perjury charges, notwithstanding the eventual

acquittals of fraud. The Court of Appeals did not

reach this “prejudicial spillover” argument, because it

rejected the Alfano-Hird argument for dismissal of the

fraud counts (referred to in the opinion below as

“Sullivan’s motion”; see also Appx. B) on the merits.

Appx. 23a n.24.10

Petitioners’ erstwhile co-defendants Alfano and

Hird have now petitioned this Court for a writ of

____________________

Petitioner Tynes likewise sought to participate in the

pretrial dismissal motion by submitting a proposed order

allowing joinder. The court below held that effort procedurally deficient and disallowed her attempt to rely on it in

support of the spillover prejudice argument on appeal. See

Appx. 24a n.25; but see Appx. 23a n.24 (accepting that Tynes

joined the motion). If this Court grants the Alfano-Hird

petition and reverses, it should reject the Third Circuit’s

either self-contradictory or at least overly punctilious refusal

of Tynes’s joinder, and should remand her case as well.

10

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certiorari to review the validity of the mail and wire

fraud theory utilized in this case. If the Court does

not grant the instant petition and reverse all the

perjury convictions, then it should at least hold the

instant petition pending consideration of Alfano’s and

Hird’s. If that petition is granted and a reversal

results, the affirmance of petitioners’ convictions for

perjury should then at least be vacated and remanded

to the Court of Appeals for further consideration of

the merits of their spillover argument.

CONCLUSION

For the foregoing reasons, petitioners pray that

this Court grant their petition for a writ of certiorari.

Respectfully submitted,

PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

50 Rittenhouse Place

Ardmore, PA 19003

(610) 649-8200

peter.goldberger@verizon.net

Attorneys for Petitioners

(names of additional counsel

for petitioners on following page)

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Additional counsel for petitioners:

LISA A. MATHEWSON

Law Offices of Lisa A. Mathewson, LLC

123 So. Broad St., Ste. 810

Philadelphia, PA 19109

(215) 399-9592

lam@mathewson-law.com

Attorney for Petitioner Tynes

MEREDITH A. LOWRY

Klehr Harrison Harvey Branzburg, LLP

1835 Market St., Ste. 1400

Philadelphia, PA 19103

(215) 569-2700

mlowry@klehr.com

Attorney for Petitioner Lowry

Dated: June 17, 2019

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