Opposition Brief — Michael Lowry, Robert Mulgrew, and Thomasine Tynes, Petitioners v. United States

No. 18-1581

In the Supreme Court of the United States

MICHAEL LOWRY, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

CHRISTOPHER J. SMITH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether sufficient evidence supports petitioners’

convictions for perjury before a grand jury, in violation

of 18 U.S.C. 1623.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (E.D. Pa.):

United States v. Michael J. Sullivan, No. 13-cr-39-1

(Aug. 20, 2014)

United States v. Michael Lowry, No. 13-cr-39-2 (Jan.

29, 2015)

United States v. Robert Mulgrew, No. 13-cr-39-3

(Dec. 10, 2014)

United States v. Willie Singletary, No. 13-cr-39-4

(Mar. 30, 2015)

United States v. Thomasine Tynes, No. 13-cr-39-5

(Dec. 10, 2014)

United States v. Mark A. Bruno, No. 13-cr-39-6

(Aug. 14, 2014)

United States v. William Hird, No. 13-cr-39-7 (Dec.

17, 2014)

United States v. Henry P. Alfano, No. 13-cr-39-8

(Nov. 2, 2015)

United States v. Robert Moy, No. 13-cr-39-9 (Aug.

14, 2014)

United States Court of Appeals (3d Cir.):

United States v. William Hird, No. 17-4754 (Jan. 18,

2019)

United States v. Thomasine Tynes, No. 14-4804

(Jan. 18, 2019)

United States v. Robert Mulgrew, No. 14-4812 (Jan.

18, 2019)

United States v. Michael Lowry, No. 15-1344 (Jan.

18, 2019)

(II)

III

United States v. Willie Singletary, No. 15-1739 (Jan.

18, 2019)

United States v. Henry P. Alfano, No. 15-3765 (Jan.

18, 2019)

United States Supreme Court:

Henry P. Alfano and William Hird v. United States,

No. 18-1552 (Pet. filed June 17, 2019)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument..................................................................................... 12

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Bronston v. United States, 409 U.S. 352 (1973) ....... 8, 12, 13

Deal v. United States, 508 U.S. 129 (1993) ......................... 17

Jackson v. Virginia, 443 U.S. 307 (1979) ............................ 16

United States v. Ahmed, 472 F.3d 427

(6th Cir. 2006), cert. denied, 551 U.S. 1132 (2007) ........... 18

United States v. Cross, 308 F.3d 308 (3d Cir. 2002) ........... 19

United States v. Culliton, 328 F.3d 1074

(9th Cir. 2003), cert. denied, 540 U.S. 1111 (2004) ........... 13

United States v. Farmer, 137 F.3d 1265

(10th Cir. 1998) .................................................................... 14

United States v. Johnston, 268 U.S. 220 (1925).................. 18

United States v. Lighte, 782 F.2d 367

(2d Cir. 1986) ........................................................... 13, 14, 18

United States v. Manapat, 928 F.2d 1097

(11th Cir. 1991) .............................................................. 13, 18

United States v. Richardson, 421 F.3d 17

(1st Cir. 2005), cert. denied, 547 U.S. 1162 (2006) ........... 14

United States v. Robbins, 997 F.2d 390 (8th Cir.),

cert. denied, 510 U.S. 948 (1993) ....................................... 14

United States v. Ryan, 828 F.2d 1010 (3d Cir. 1987),

abrogated on other grounds by United States v.

Wells, 519 U.S. 482 (1997) .................................................. 13

United States v. Slawik, 548 F.2d 75 (3d Cir. 1977) .......... 13

(V)

VI

Cases—Continued:

Page

United States v. Strohm, 671 F.3d 1173

(10th Cir. 2011) .................................................................... 13

United States v. Swindall, 971 F.2d 1531

(11th Cir. 1992), cert. denied, 510 U.S. 1040 (1994) ......... 13

Statutes and rule:

18 U.S.C. 1621 .................................................................. 12, 13

18 U.S.C. 1623 ............................................................ 2, 7, 8, 13

Sup. Ct. R. 10 ......................................................................... 18

In the Supreme Court of the United States

No. 18-1581

MICHAEL LOWRY, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-43a)

is reported at 913 F.3d 332. The order of the district

court denying petitioners’ motions for acquittal (Pet.

App. 68a-89a) is unreported but is available at 2014 WL

5795575.

JURISDICTION

The judgment of the court of appeals was entered on

January 18, 2019. A petition for rehearing was granted

in part and the opinion was subsequently amended on

January 18, 2019. On April 11, 2019, Justice Alito extended the time within which to file a petition for a writ

of certiorari to and including May 18, 2019. On May 13,

2019, Justice Alito further extended the time to and including June 17, 2019, and the petition was filed on that

date. The jurisdiction of this Court is invoked under

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

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, petitioner Tynes was convicted on two counts, and petitioners Lowry and Mulgrew were each convicted on one

count, of perjury before a grand jury, in violation of

18 U.S.C. 1623. Tynes Am. Judgment 1; Lowry Judgment 1; Mulgrew Judgment 1. Tynes was sentenced to

24 months of imprisonment, to be followed by one year

of supervised release. Tynes Am. Judgment 2-3. Lowry

was sentenced to 20 months of imprisonment, to be followed by one year of supervised release. Lowry Judgment 2-3. Mulgrew was sentenced to 18 months of imprisonment, to be followed by three years of supervised

release. Mulgrew Judgment 2-3. The court of appeals

affirmed. Pet. App. 1a-43a.

1. Petitioners formerly served as judges on the Philadelphia Traffic Court. Pet. App. 68a. During their tenure, petitioners and some of their colleagues engaged

in a scheme of “fixing tickets.” Id. at 69a. Under that

scheme, “personal assistants and other court house staff ”

would transmit “extrajudicial communications” requesting “consideration”—“code” for “favorable dispositions

[for] well-connected ticket-holders who knew a Traffic

Court judge or an employee.” Ibid. The judges participating in the scheme “routinely grant[ed]” those requests.

Ibid.

All three petitioners received and acted upon numerous requests for consideration. Tynes received such requests through her secretary and courtroom officer.

C.A. App. 4589a-4590a, 4592a-4595a. In one example,

Tynes received a request for special treatment for a

friend of a court employee; the friend neither spoke nor

raised a defense at the hearing, yet Tynes found him not

3

guilty. Id. at 3148a, 3158a-3159a, 3192a, 3197a-3198a,

3821a-3822a. Similarly, Lowry received requests for consideration through his personal assistant, who would convey the requests to Lowry in the courtroom by “lean[ing

in] and just catch[ing] his eye.” Id. at 1823a; see id. at

1822a-1824a. In one instance, another traffic judge told

a friend not to worry about a ticket for leaving the scene

of an accident; the case then came before Lowry, who

dismissed the ticket. Id. at 3891a, 3905a, 3919a-3925a,

3927a, 4001a. Finally, Mulgrew received requests for

consideration through his personal assistant, who would

convey the requests to him in the robing room before

court. Id. at 1381a-1385a, 1451a-1452a, 1455a. In one

case, a court employee asked Mulgrew to give special

treatment to the employee’s niece; even though the

niece did not attend her hearing, Mulgrew found her not

guilty. Id. at 1033a-1035a, 1040a, 1464a-1465a.

All three petitioners also made requests for consideration to other judges. For example, Tynes would leave

index cards with names for her secretary, who would

then convey those names to the personal assistants of

other judges. C.A. App. 4596a-4599a, 4630a-4631a. Similarly, Lowry would direct his personal assistant to pass

along requests made by ward leaders. Id. at 1832a1833a, 1839a-1840a. And in one case, he sought consideration for his nephew, who had received a ticket for careless driving; the nephew did not show up for the hearing, but the presiding judge nonetheless found him not

guilty. Id. at 1844a-1845a, 1847a-1848a, 1981a, 1996a1999a, 2012a-2013a. Mulgrew, likewise, would direct his

personal assistant to deliver index cards bearing names

to other judges’ personal assistants, who “knew what it

meant.” Id. at 1389a; see id. at 1387a-1399a.

4

2. In October and November 2011, petitioners testified before a federal grand jury investigating criminal

activity in the Traffic Court. Tynes testified under oath:

Q In all the years you’ve been there have you

ever been asking 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, and I have been called a no-nonsense person because I’m just not that way. I take my position

seriously, and the cards fall where they may.

Most of the time, going back to you, the people in

my Court plea bargain. They know that most of the

time—ninety percent of the time—say ninety percent, I go with the police officer’s recommendation.

That ten percent I don’t a lot of times, with people

speeding, if they want to plea, I won’t allow that.

Q So in all those years no one has ever asked

you to find somebody not guilty—

A

No.

Q —or to find a lesser violation, find a lesser

fine, anything along those lines.

A No. I will say to people go to court, go to trial

and see what happens.

Q Not only the people who were written the

tickets, but any fellow judges? Has the Court Administrator ever asked you to continue a case to another judge or anything along those lines?

A If they ask me to, it has nothing to do with the

case. It could be something where—sometimes

cases are merged where somebody has the same

5

name as somebody else and it’s merged and we find

out that it could be a DUI or something and it’s not

that person. So, they will come to me and say, Judge,

we have a case here and we have to continue it because there’s nothing wrong with it. I say that’s

okay, fine, whatever. I don’t inquire too much about

what’s going on.

Q Ward leaders, politicians has anyone called

you and said I have Johnny Jones coming up next

week and I would appreciate it if—if you would look

favorably on him when he comes through? Has anything like that ever happened?

A Throughout the years ward leaders and people have called all the time and asked me questions.

The only thing I will say to them is they need to go

to court. If you think it’s a problem, they need to hire

a lawyer or make sure you bring all your evidence to

court. If it’s something like inspection, make sure

you bring your papers and things like that. That’s

what I would tell them to do. I give advice that way.

I don’t know if that’s wrong or not, but I do.

Q

You’ve never taken action on a request?

A

No.

C.A. App. 528a-530a.

Similarly, Lowry testified under oath:

Q. So if I understand your testimony, you’re saying you don’t give out special favors; is that right?

A. Well, I know it appears that way, and it’s hard

for me to prove to you that what’s in—

Q. I’m just asking. Your testimony is you don’t

give out special favors; is that right?

6

A. No, I treat everybody in that courtroom the

same.

Q. You treat everybody fairly?

A. I’m a lenient judge. I will admit to that.

Q. You treat everybody fairly?

A. Yes, I do.

Q. And these notices that you get from your personal or from other people, they don’t affect you in

any way; is that right?

A. Virtually no effect at all.

C.A. App. 489a-490a.

Finally, Mulgrew testified under oath:

Q. How about other judges, Have other judges

ever approached you or called to you or get a message to you either themselves or through their personals saying someone is going to be on your list next

week or next Monday and you could look some special way towards the case?

A. No, they haven’t.

Q. Never?

A. No.

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 that

so-and-so has called about this case?

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

Q. And your personal is who?

A. Gloria Mcnasby.

7

Q. Have you ever seen on traffic court files—

You actually get a file when someone’s case is called?

A. Right.

Q. So the case is called and you get a file presented to you; is that right?

A. Uh-huh.

Q. Have you ever seen any index cards or notations on the file indicating that a person has called or

taken some special interest in this case?

A. Nope.

C.A. App. 432a-433a.

In a further exchange, Mulgrew testified:

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

testimony correct. You’re saying that if other people

whether they be political leaders, friends and family,

anybody who 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.

C.A. App. 437a-438a.

3. On January 29, 2013, a grand jury in the Eastern

District of Pennsylvania returned a 77-count indictment

charging petitioners and others with various offenses

related to operating a ticket-fixing scheme in traffic

court. Indictment 1-79. The indictment charged petitioners with fraud, conspiracy, and, as relevant here,

perjury before a grand jury, in violation of 18 U.S.C.

1623. Indictment 67-73.

8

Following a jury trial, petitioners were acquitted of

fraud and conspiracy, but were convicted of perjury for

their statements to the grand jury. Pet. App. 2a. In a

post-trial order, the district court denied petitioners’

motions for a judgment of acquittal and a new trial. Id.

at 68a-89a. Among other things, the court rejected petitioners’ contentions that insufficient evidence supported their convictions for perjury. Id. at 72a-85a.

4. The court of appeals affirmed the judgment as to

petitioners. Pet. App. 1a-43a. It rejected petitioners’

contentions that insufficient evidence supported their

convictions, which were premised on their assertions

that the questions posed to them before the grand jury

were vague or that their answers were truthful. Id. at

20a-21a.

The court of appeals observed that, in order to convict a defendant for perjury before a grand jury, the

government must prove that the defendant took an oath

before that jury and then “knowingly made a ‘false material declaration.’ ” Pet. App. 21a (quoting 18 U.S.C.

1623)). Citing this Court’s decision in Bronston v.

United States, 409 U.S. 352 (1973), the court of appeals

explained that “ ‘precise questioning is imperative’ ” and

that “inaccuracies” resulting from the witness’s confusion about the meaning of a question do not amount to

perjury. Pet. App. 21a (quoting Bronston, 409 U.S. at

362) (brackets omitted). The court further explained

that precision “is assessed in context,” not by examining

the question in isolation. Ibid.

The court of appeals also observed that “[c]hallenges

to the clarity of a question are typically left to the jury,

which has the responsibility of determining whether the

defendant understood the question.” Pet. App. 22a.

The court stated that—under the “highly deferential

9

standard of review” applicable when an appellate court

reviews a conviction for sufficiency of the evidence—a

challenge to the clarity of a question should succeed on

appeal only where it is “ ‘entirely unreasonable to expect

that the defendant understood the question posed to

him.’ ” Id. at 20a, 22a (citation omitted). The court explained that its review was “focused on 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.” Id. at 23a. “Questions that breach this

threshold,” the court recognized, “are ‘fundamentally

ambiguous’ and cannot legitimately ground a perjury

conviction.” Ibid. (citation omitted). Applying that

standard, the court of appeals upheld petitioner’s convictions for perjury, emphasizing that its “review [wa]s

fact-dependent” and that “each [petitioner] raises some

unique issues.” Ibid.

First, the court of appeals affirmed Tynes’s convictions, which rested on two exchanges; in one, Tynes denied that she had “ever been asked to give favorable

treatment on a case to anybody,” and in the other, she

denied that she had ever “taken action on a request.”

Pet. App. 24a-26a (citations omitted); see id. at 24a-30a.

The court rejected Tynes’s contention that the terms

“favorable treatment” and “request” were fundamentally ambiguous. Id. at 28a; see id. at 24a-28a. Examining the “obvious, consistent focus” of the relevant

“line of questioning,” the court found that the “broader

context would give any reasonable fact-finder more

than enough basis to conclude that the witness knew the

point of reference for both the term ‘favorable treatment’ and ‘request’ was ticket fixing.” Id. at 26a, 28a.

The court likewise rejected Tynes’s contention that

10

Tynes herself should be deemed to have interpreted

“the question about favorable treatment * * * as asking whether she accepted any bribes” and that “[h]er

response of ‘no’ ” was therefore “literally true.” Id. at

28a. The court acknowledged that, “[o]f course, perjury

arises only from making knowingly false material declarations,” and that “a witness who answers an ambiguous question with a non-responsive answer that the witness believes is true —even if the answer is misleading

—does not commit perjury.” Ibid. The court found,

however, that “the trial record” neither “support[ed]

[any] reasonable inference” that the government asked

Tynes only about bribes, nor “provide[d] any reason

why Tynes would interpret the question in this way.”

Id. at 29a.

Second, the court of appeals affirmed Lowry’s conviction, which rested on one exchange; the examiner had

asked Lowry whether he “ ‘g[a]ve out special favors,’ ”

and Lowry had responded, “ ‘No, I treat everybody in

that courtroom the same.’ ” Pet. App. 31a (citation omitted); see id. at 30a-36a. The court rejected Lowry’s contention that “the phrase ‘special favors’ is subject to

many interpretations.” Id. at 32a. After analyzing the

“larger context for the question asked of Lowry,” the

court found that “the line of questioning reasonably

supports a conclusion that this inquiry referenced conduct associated with allegations of ticket fixing” and

that “Lowry answered as if his understanding of the

question was consistent with this interpretation.” Id. at

31a-32a.

Third, the court of appeals affirmed Mulgrew’s conviction, rejecting Mulgrew’s contention—which the court

noted was reviewable only for plain error—that the two

responses underpinning his convictions were literally

11

true. Pet. App. 36a-40a & n.30. In the first exchange,

Mulgrew had claimed that he was not aware whether his

personal assistant had received “any calls” from “other

judges, other ward leaders that she’s conveyed to

[Mulgrew], saying so-and-so has called about this case.”

Id. at 37a (citation omitted). Although Mulgrew contended that the word “call” referred exclusively to telephone calls, and that his answer was therefore literally

true, the court found that “the context of the question”

made it “obvious” that the question “focus[ed] on the

substance of the communications between Mulgrew’s

personal assistant and himself, rather than the mode of

those communications.” Id. at 37a-39a. In the second

exchange, Mulgrew denied that anyone had asked his

personal assistant to “see what she can do in a case.” Id.

at 39a (citation omitted). Mulgrew contended that the

question asked whether anyone had approached the

personal assistant for the purpose of asking her for

preferential treatment, and that his denial was accordingly truthful. The court rejected that contention, explaining that Mulgrew had “cherry-pick[ed] a small part

of the question out of context, distorting it,” and that

“[t]he 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.” Ibid. In

sum, the court found, “the evidence [wa]s 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.” Id. at 40a.

Finally, the court of appeals rejected petitioners’ argument that their convictions for perjury should be vacated because they were prejudiced by “spillover” from

12

evidence of fraud-related charges on which they were

ultimately acquitted. Pet. App. 23a n.24. The court

agreed that “where there is evidence of prejudice resulting from ‘spillover’ evidence from counts that should

have been dismissed, reversal is warranted.” Ibid. But

it observed that it had rejected the contention (raised

by co-defendants convicted on those charges) that the

additional charges should have been dismissed. Ibid.

ARGUMENT

Petitioners renew their claims (Pet. 7-23) that insufficient evidence supported their convictions for perjury

before a grand jury, asserting that the answers underlying those convictions either were literally true or came

in response to fundamentally ambiguous questions. The

court of appeals correctly rejected those claims, and its

decision does not conflict with any decision of this Court

or of any other court of appeals. As the court explained,

its “review [wa]s fact-dependent” and addressed “unique

issues.” Pet. App. 23a. Further review of the court’s

factbound determination is not warranted.

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

this Court held that an individual may not be convicted

of perjury under 18 U.S.C. 1621 for giving an answer

that is “literally true but not responsive to the question

asked and arguably misleading by negative implication.” Id. at 353. The Court explained that the text of

the statute asks whether the witness has “willfully . . .

state[d] . . . any material matter” that he believes to be

untrue, not whether the witness has “state[d] any material matter that implies any material matter that he

does not believe to be true.” Id. at 357-358. The Court

also “perceive[d] no reason why Congress would intend

the drastic sanction of a perjury prosecution to cure a

testimonial mishap that could readily have been reached

13

with a single additional question by counsel alert—as

every examiner ought to be—to the incongruity of [the

witness’s] unresponsive answer.” Id. at 358. Although

Bronston involved perjury in violation of 18 U.S.C.

1621, lower courts have applied its principles to perjury

before a grand jury in violation of 18 U.S.C. 1623. See,

e.g., United States v. Strohm, 671 F.3d 1173, 1183 n.7

(10th Cir. 2011).

Lower courts have also determined that a response

to a question can sometimes constitute perjury even if

the question could theoretically be understood in more

than one way. More specifically, they have explained

that a witness commits perjury if he understands the

question as the government did and, having that understanding, answers falsely. See, e.g., United States v.

Culliton, 328 F.3d 1074, 1079 (9th Cir. 2003) (per curiam), cert. denied, 540 U.S. 1111 (2004); United States

v. Swindall, 971 F.2d 1531, 1553 (11th Cir. 1992), cert.

denied, 510 U.S. 1040 (1994); United States v. Slawik,

548 F.2d 75, 86 (3d Cir. 1977). The lower courts have

further explained that it is usually for the finder of fact

to determine how the defendant understood the question,

and that a reviewing court should reverse a conviction

only where the question is “ ‘fundamentally ambiguous’ ”

—that is “so ambiguous that it is not amenable to jury

interpretation.” United States v. Ryan, 828 F.2d 1010,

1015 (3d Cir. 1987) (citations omitted), abrogated on other

grounds by United States v. Wells, 519 U.S. 482 (1997);

see United States v. Manapat, 928 F.2d 1097, 1099-1100

(11th Cir. 1991); United States v. Lighte, 782 F.2d 367,

375 (2d Cir. 1986).

The lower courts have approved reliance on context

when determining the meaning of a question and when

14

determining whether a question is fundamentally ambiguous. See, e.g., United States v. Richardson, 421 F.3d

17, 33 (1st Cir. 2005) (“In determining whether a statement made in response to an ambiguous question could

be said to be false, the context of the question and answer becomes critically important.”) (citation and internal quotation marks omitted), cert. denied, 547 U.S.

1162 (2006); United States v. Farmer, 137 F.3d 1265,

1269 (10th Cir. 1998) (“A defendant may not succeed on

a claim of fundamental ambiguity by isolating a question from its context in an attempt to give it a meaning

entirely different from that which it has when considered in light of the testimony as a whole.”); United

States v. Robbins, 997 F.2d 390, 395 (8th Cir.) (“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.”), cert. denied, 510 U.S.

948 (1993); Lighte, 782 F.2d at 373 (“[A] jury need not

examine isolated segments of the question and answer

exchange, but may view it within the context of the entire line of questioning.”).

2. The court of appeals acknowledged those legal

principles in the decision below. Citing Bronston, the

court recognized that, “[o]f course, perjury arises only

from making knowingly false material declarations” and

that “a witness who answers an ambiguous question

with a non-responsive answer that the witness believes

is true—even if the answer is misleading—does not commit perjury.” Pet. App. 28a. The court likewise explained

that “ ‘precise questioning is imperative as a predicate

for the offense of perjury,’ ” that it is “typically” the

function of “the jury” to determine whether “the witness understood the question well enough to give an an-

15

swer that he or she knew to be false,” and that a reviewing court should overturn a conviction only if the question is “ ‘fundamentally ambiguous’ ”—i.e., so ambiguous that the question would mislead the witness “by the

lights of any reasonable fact-finder.” Id. at 21a-23a

(brackets and citations omitted). And the court noted

that the meaning of a question “is assessed in context.”

Id. at 21a.

The court of appeals then correctly applied those

principles when conducting its “fact-dependent” review,

Pet. App. 23a, of petitioners’ convictions. First, the court

correctly rejected Tynes’s argument that the terms “favorable treatment” and “request” in her grand-jury

questioning were fundamentally ambiguous; as the

court observed, the “obvious, consistent focus” of the

relevant “line of questioning” would give a “reasonable

fact-finder more than enough basis to conclude that the

witness knew the point of reference for both the term

‘favorable treatment’ and ‘request’ was ticket fixing.”

Id. at 26a, 28a. The court likewise correctly rejected

Tynes’s argument that the question about “favorable

treatment” referred solely to bribes; a reasonable factfinder could conclude that the Government asked about

more than bribes, and that Tynes understood as much

when responding. Id. at 30a. Second, the court correctly rejected Lowry’s contention that the phrase “special favors” in his grand-jury questioning was fundamentally ambiguous; as the court noted, the “line of

questioning” and the “larger context” allowed a reasonable jury to find that “this inquiry referenced conduct

associated with allegations of ticket fixing” and that

Lowry’s “understanding of the question was consistent

with this interpretation.” Id. at 31a-32a. Finally, the

court correctly rejected Mulgrew’s contention—which

16

was subject to plain-error review, see id. at 36a n.30—

that the question about “calls” referred exclusively to

telephone calls and that the question about communications to Mulgrew’s personal assistant referred only to

requests for preferential treatment from the personal

assistant herself. As the court recounted, “the evidence

[wa]s 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, having that understanding, Mulgrew answered

falsely. Id. at 40a.

3. Petitioners’ objections to the court of appeals’

factbound decision lack merit.

Petitioners contend (Pet. 8) that the court of appeals

disregarded the principle 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.” In advancing

that contention, petitioners overlook the difference between the standard applicable at trial and the standard

applicable to a sufficiency-of-the-evidence challenge after trial. As the court of appeals’ decision accurately

reflects, the government bears the burden at trial of

convincing “the jury” beyond a reasonable doubt that

“the defendant understood the question” and answered

falsely, Pet. App. 22a. Once the jury finds the defendant

guilty, however, a reviewing court may not “disturb the

verdict if ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt.’ ” Id. at 21a (citation omitted); see Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The question addressed by the court of appeals was therefore not, as

17

petitioners suggest (Pet. 8), whether the perjury statute requires the government to prove “beyond a reasonable doubt that the witness understood the cited question.” Rather, the question on sufficiency-of-theevidence review of a verdict based on uncontested jury

instructions was, as the court of appeals recognized,

whether a “reasonable fact-finder” had “enough basis to

conclude” that the witness understood the question,

Pet. App. 28a.

Petitioners also object (Pet. 14) to the court of appeals reliance on context, asserting 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.” That argument

“overlooks * * * th[e] fundamental principle * * * of

language itself [] that the meaning of a word cannot be

determined in isolation, but must be drawn from

the context in which it is used.” Deal v. United States,

508 U.S. 129, 132 (1993). It would make little sense to

require juries, or courts reviewing their verdicts, to

look only to a single question and answer, precluding

any inquiry into the referents for particular terms, or

into surrounding exchanges that clarify how the witness

understood the question. And nothing in the perjury

statute or this Court’s decisions requires such an artificially crabbed view of a potentially lengthy exchange.

Finally, petitioners assert that the court of appeals

“drastically limit[ed]” the standard of fundamental ambiguity by cabining it to “ ‘glaring instances of vagueness or double-speak.’ ” Pet. 10 (quoting Pet. App. 23a).

But the court “review[ed] every aspect of the record

pertinent to both the question and answer” to determine whether a reasonable jury could find that “the wit-

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ness understood the question well enough to give an answer that he or she knew to be false.” Pet. App. 22a; see

id. at 22a-23a. And to the extent that petitioners raise

specific objections (Pet. 11-16) to the court of appeals

“fact-dependent” review of the “unique issues” raised

by petitioners, Pet. App. 23a, those factbound details do

not warrant this Court’s review. See Sup. Ct. R. 10;

United States v. Johnston, 268 U.S. 220, 227 (1925)

(“We do not grant a certiorari to review evidence and

discuss specific facts.”).

4. Contrary to petitioners’ contention (Pet. 11-16),

the decision below does not conflict with the decision of

any other court of appeals. Petitioners erroneously assert (Pet. 10) that the standard for fundamental ambiguity applied by the court below “cannot be reconciled”

with the standard applied in the Second, Sixth, and

Eleventh Circuits. See Pet. 10-11. But those Circuits

have each explained that a question is fundamentally

ambiguous only when it is “not a phrase with a meaning

about which men of ordinary intellect could agree, nor

one which could be used with mutual understanding by

a questioner and answerer unless it were defined at the

time it were sought and offered as testimony.” Lighte,

782 F.2d at 375 (citation omitted); see United States v.

Ahmed, 472 F.3d 427, 433 (6th Cir. 2006), cert. denied,

551 U.S. 1132 (2007); Manapat, 928 F.2d at 1100. In the

decision below, the Third Circuit quoted and applied

precisely that standard. See Pet. App. 22a n.22 (quoting

Lighte).

Petitioners also assert (Pet. 11) that other courts of

appeals “have vacated convictions predicated upon responses to questions that would be excused under the

Third Circuit’s test.” See Pet. 15 (“The decisions of

other circuits illustrate the point and reveal how badly

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the decision of the court below deviates from the governing rule.”). But the decision below articulates the

same legal standard as that consistently used by other

courts of appeals. Petitioners’ argument thus boils

down to an objection to the application of that settled

legal standard to the facts of this case. Further review

is accordingly unwarranted.

5. Petitioners alternatively argue (Pet. 22-23) that

this Court should hold their petition for the disposition

of the petition for a writ of certiorari filed by their codefendants in Alfano v. United States, No. 18-1552 (filed

June 17, 2019). In that petition, petitioners’ co-defendants

seek this Court’s review of their convictions for mail and

wire fraud. Petitioners, who were acquitted of those

charges, argue (Pet. 22-23) that, if their co-defendants

prevail, this Court should vacate the judgment below

and remand the case so that the court of appeals can

reconsider whether they were prejudiced by “spillover”

from evidence presented on the fraud counts.

Petitioners, however, offer no meaningful support

for their proposal. In particular, they provide no basis

for concluding that the court of appeals might in fact

agree that “there is evidence of prejudice resulting from

‘spillover,’ ” Pet. App. 23a n.24. To establish that evidence on one count has a prejudicial spillover effect on

another count, a defendant must establish (among other

things) that “the jury heard evidence that would have

been inadmissible at a trial limited to the remaining

valid count[s].” United States v. Cross, 308 F.3d 308,

317 (3d Cir. 2002). Petitioners do not identify any significant evidence—or, for that matter, any evidence at

all—that was introduced with respect to the conspiracy

and fraud counts, but that would have been inadmissible

if the trial had been limited to the perjury counts, which

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involved petitioners’ false statements to the grand jury

about the activities alleged in the fraud counts. There

thus exists no sound basis to the petition pending disposition of the petition in Alfano.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

CHRISTOPHER J. SMITH

Attorney

OCTOBER 2019