Petition for Writ of Certiorari — Stephen Mayer, Petitioner v. United States

CASE No.

IN THE SUPREME COURT OF THE UNITED STATES

STEPHEN MAYER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

11th Circuit Appeal Court Case No. 17-13270

Stephen Mayer

Incarcerated Pro Se Petitioner

Inmate I.D. 02303-104

Federal Correctional Institution

P.O. Box 779800

Miami, FL. 33177.

Dated: July 29, 2018.

QUESTIONS PRESENTED

Whether when, an Appellate court vacates a forfeiture order on

direct appeal 'having found only partial of the District Court's

trial order was valid if the finding of fact prior to vacating

the 'order 'becomes "Law-Of-The-Case" upon remand.

Mayer was

permitted to and indeed did argue against the entire forfeiture

amount at the hearing on, remand. Put another way does the act of

vacating an order of forfeiture on direct appeal effectively wipe

the slate clean?

Whether if prosecutorial fraud in the material representation of

false facts is sufficient to overturn the "Law-Of-The-Case"

Doctrine if indeed such Doctrine survives vacating a forfeiture

order on direct appeal?

And therefore,

Whether it is encumbent upon the Government to clarify an issue

to the Court when the Court 'mistakenly relies on a prior

fraudulent misrepresentation of the Government's

'

to deny a

defendant subsequent relief?

LIST OF PARTIES

The parties to the original proceeding in the District court were

petitioner Stephen Mayer and the United States of America,

Respondent.

1

TABLE OF AUTHORITIES

Page

Agostini v Felton, 521 U.S. 203, 236 117 S. Ct. 1997, 138 L. Ed.

11

2d 391 (1997)

Brown v. Wainwright, 785 F. 2d 1457, 1464 (11th Cir. 1986)

14

Damahy v. Schwartz Pharma, Inc. 702 F. 3d 177 184 (5th Cir. 2012)

10

Hall v. Director of Correctoins, 343 F. 3d 976, 981-82 (9th Cir.

16

2003)

Holland v. Adams, 2007 WC 7770910 at 16 (9th Cir. 2007)

14

Jackson v. Brown, 513 F. 3d 1057, 1071-72 (9th Cir. 2008)

15

Killian v. Poole, 282 F. 3d 1204, 1208 (9th Cir. 2002)

16

Libbertbn v. Ryan, 583 F. 3d 1147 1 1164 (9th Cir. 2009)

15

Maxwell v. Roe, 628 F. 3d 486, 506-07 (9th cir. 2010)

16

Messenger v. Anderson, 225 U.S. 436, 444 32 S. Ct. 739, 56 L. Ed.

12

1152 (1912)

Michael Musacchio v. United States, 136 s. Ct. 709; 193 L. Ed.

2d. 639 (2016)

111

12

Mooney v. Holohan, 294 U.S. 103, 112 9 55 S. Ct. 240, 79 L Ed. 791

16

(1935)

Napue v. Illinois, 360 U.S. 264, 269-70 79 S. Ct. 1173, 3 L. Ed.

12,16

Oladeinde v. City of Birmingham, 230 F. 3d. 1275, 1288 (11th Cir.

10,11

2000)

Pepper v. United States, 131, S. Ct. 1229, 179 L. Ed. 2d 196

11

(2011)

This That and The Other Gift and Tobacco, Inc. v. Cobb Cnty. 439

11

F. 3d 1275, 1283 (11th Cir. 2006)

Tomplins v. Moore, 193 F. 3d 1327 1 1339 (11th Cit. 1999)

14

Wilcombe v. Tee Vee Toons Inc. F. 3d 949, 957 (11th Cir. 2009)

11

United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2332, 49 L.

14

Ed. 2d 342 (1976)

United States v. Amedeo, 487 F. 3d 823, 830 (11th Cir. 2007)

United States v. Fiallo-Jac.ome, 874 F. 2d 1479, 1481-83 (11th

Cir. 1989)

iv

United States v. Krocka 522 Fed. Appx 472; 2013 (11th Cir. 2013)

9

United States v,. LaPage, 231 F. 3d 488, 492 (9th Cir. 2000)

14

United States v. Stinson 97 F. 3d 466, 469 (11th Cir. 1996)

10

United States v. Wells, 519 U.S. 482, 487, n.4, 117 S. Ct. 921,

12

137 L. Ed. 2d 107 (1997)

FEDERAL STATUTES

18 U.S.C. 1291 ................................................7

28 U.S.C. 1254 ................................................1

18 U.S.C. 1343 ................................................2

18 U.S.C. 1349 ................................................2

OTHER AUTHORITIES

United States Constitutional Amendment ...................passim

United States Constitutional Amendment. .................passim

"A

INDEX TO APPENDIX

(Filed separately)

APPENDIX A

March 19, 2018 Eleventh Circuit Decision:

United States v. Mayer, No. 17-13270,2017.

(D.C. Dkt 238)

APPENDIX B

May 16, 2018 Court of Appeals denial of Mayer's

rehearing.

APPENDIX C

May 5, 2015 11th Circuit District Court's

forfeiture order (D.C. Dkt 112).

APPENDIX D

Eleventh Circuit Decision: United States v.

Mayer, No. 15-12035, 2017 WL 587113 (11th Cir.

Feb 14, 2017)(D.C. Dkt 171).

APPENDIX E

District Court's July 7, 2017 amended

forfeiture order. (D.C. Dkt 181)

APPENDIX F

Mayer's motion for reconsideration of the

District Court's ruling of the reduced

forfeiture order. (District Court Doc. 182).

APPENDIX G

July 6, 2017 transcript of District Court

hearing on remand (D.C. Dkt 193).

APPENDIX H

October 20, 2017 Mayer's principle appeal

brief.

APPENDIX I

January 11, 2018 The Government's motion to

dismiss appeal.

APPENDIX J

January 12, 2018 Mayer's motion in opposition

to the Government's motion to dismiss Mayer's

appeal.

APPENDIX K

February 14, 2018 Mayer's motion for a stay

pending the District Court's Judicial Notice.

APPENDIX L

March 26, 2018 Mayer's combined petition for

panel rehearing and rehearing en banc.

APPENDIX M

Criminal complaint (D.C. Dkt 1).

APPENDIX N

Superseding indictment (D.C. Dkt 30).

APPENDIX 0

April 15, 2015 Government's motion for

forfeiture (D.C. Dkt 103).

vi

I

I

OPINION BELOW

The United States Court of Appeals for the Eleventh Circuit

affirmed Stephen Mayer's forfeiture order in United States v.

Mayer, No. 17-13270 (11th Cir. 2017) and denied Mayer's combined

petition for panel rehearing and rehearing en banc :on May 16,

2018. A copy of the decision is filed here with as Appendix A,

and a copy of the denial of the petition for rehearing is filed

here with as Appendix B.

GROUND FOR JURISDICTION

The Eleventh Circuit affirmed Mayer's forfeiture on March

19, 2018 see Appendix A, and denied rehearing on May 16, 2018,

see Appendix B. The jurisdiction of this Court is invoked by the

timely filing of this petition for a writ of certiorari within

the prescribed 90 days after entry of the Eleventh Circuit's

denial of Mayer's petition for rehearing.

See 28 U.S.C. §

1254(1) and Supreme Court Rule 13.3.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitutional Amendment 5

Criminal actions-Provisions concerning-Due process of law and

just compensation clauses.

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without

just compensation.

U.S. Constitutional Amendment 14 Section 1

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof,' are citizens of the United States

and of the State wherein they reside.

No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property , without due process of

law; nor deny to any person within its jurisdiction the equal

protection of the laws.

I

I

S

STATEMENT OF THE CASE

In September 2014, Stephen Mayer was charged by superseding

indictment with conspiracy to commit wire fraud affecting a

financial institution, and eight counts of wire fraud affecting a

financial institution, in violation of 18 U.S.C. §ss 1349 and 1343

District Court Dkt. 30.

The indictment alleged that Mayer and

coconspirators had deceived lenders to secure mortgage loans.

Following an eight day jury trial Mayer was found guilty

of all nine counts and sentenced to a 135 month prison term on

May 5, 2015. Mayer appealed and on February 14, 2017 the 11th

Circuit Court of Appeals affirmed in part, vacated and remanded

in part.

I. Material Facts

Mayer's forfeiture order was vacated and remanded on

direct appeal with findings that only certain mortgages were from

an FDIC insured entity, District Court DKT 171. Specifically the

Appeals Court stated, "only $1,116,200 of these mortgages came

from Green Point an FDIC insured entity." which reduced the sum

of forfeiture.

The Appellate vacated the forfeiture order and

remanded for further proceedings to the District Court. On July

6 1 2017 the District Court held a hearing where Mayer claimed the

forfeiture must be zero because the lender Green Point Mortgage

was not as the Appellate stated FDIC insured. At the July 6th.

hearing Mayer pointed to the false trial representation of the

lender as FDIC insured through testimony and trial exhibits to

which AUSA Kelly Howard Allen stated she didn't believe anyone

2

1.

I

1

t

had claimed the lender was FDIC insured and while she knew it

wasn't evidence the indictment, District Court Dkt. 30 at 1-2 was

clear that Green Point Mortgage affected its parent entity which

was FDIC insured District Court Dkt. 193 at 13.

Five minutes

later at the same hearing AUSA Howard-Allen proceeded to falsely

claim the same lender was FDIC insured.

Doc. 193 at 22

By AUSA Kelly Howard-Allen

"So I don't need to run through all of these, but again,

This property, Exhibit 18-J, was

these are the same entities.

for 3510 North 11 Street. It also shows that this was a first

and second mortgage from Green Point Mortgage to Fobare, an FDIC

insured lender.

And again, at the end of this, this was a forclosure by an

FDIC insured lender six months after closing, and that lender was

Green Point, a wholly owned subsidiary of Green Point Bank and

North Fork Bank."

At the hearing Mayer's attorney William Sansone explained

there was no trial evidence of affect on a parent FDIC entity,

the lender at the center of this case was not FDIC insured,

and c) the lender was not recognized as a financial institution

when the mortgage loans subject to this case were issued.

Doc. 193 at 9.

MR. SANSONE: Your Honor, our position is, if you look at

the 11th Circuit opinion where it says, "Greenpoint, an FDIC

insured entity," first of all, the opinion doesn't delineate

whether that's Greenpoint Mortgage Funding or Greenpoint Bank.

Greenpoint Mortgage Funding, which is the entity that secured

it

these mortgages, is not an FDIC insured entity. I don't

--

doesn't outline that in the indictment itself. It says that

Greenpoint Mortgage Funding was a wholly owned subsidiary of an

entity, which is FDIC insured. Therefore, the Government would

3

have to put on evidence that whatever happened with those

mortgages, affected the actual parent corporation

THE COURT: The bank.

which is the FDIC insured entity.

MR. SANSONE:

And our position is merely because of the parent

subsidiary relationship, just in and of itself, without more,

doesn't create that necessary link to

does not create that, um

--

--

"affecting."

Doc 193' at 11-12

By William Sansone

"Just merely relying on, urn, the parent corporation is

FDIC insured so if the subsidiary does something, and creates a

mortgage, and then that mortgage goes into foreclosure, of course

it "affects." That would be an assumption. We don't know. We

would need testimony and evidence from the parent corporation

saying that those loans that were secured by Green Point Mortgage

our

Funding, when they went into foreclosure, affected

,

institution and here's how.

I do not believe that that evidence was submitted at

trial. There was lots of testimony that I saw saying that Green

Point Mortgage was FDIC insured, and an exhibit, I believe it was

18-M, showing on the bottom that Green Point was an FDIC insured

lender, but one, I'm not sure what Green Point is referring to;

and two, if it was referring to Green Point Mortgage Funding,

which is the entity that secured these mortgages, it's not FDIC

insured."

THE COURT: Okay. I understand.

So, therefore, we could not agree to any

MR. SANSONE:

amount of forfeiture.

THE COURT: Okay. All right. Thank you.

Mayer went further and explained to the Court the material

falsehoods of trial testimony that the lender was a financial

institution and as FDIC insured.

Doc. 193 at 9, Doc. 193 at 11-12 and Doc. 193 at 29.

By William Sansone

4

n

Your Honor, this was a problem at the time. That's the

reason why Congress, in 2009, specifically amended 18 U.S.C.,

section 20 to include mortgage lending businesses such as

GreenP5int Mortgage Funding, because before that time they were

not. They were not part of it. This was the problem. This was

in the indictment it said these came out in

going on, I think

--

2006. This was before the crash. This was a problem that was

Congress changed the statute in 2009 to include

going on.

mortgage lending businesses so these types of issues weren't

-

-wouldn't arise.

But in this case, they did arise. Green Point Mortgage

the 11th Circuit is just not clear at all when it says, "The

mortgages came from Greenpoint." Because there's a Greenpoint

Bank, which is FDIC insured, and there is GreenPoint Mortgage,

which is not. They are not clear in that opinion. If they are

referring to Greenpoint Mortgage Funding, that's erroneous. If

they are referring to Greenpoint Bank, that's also erroneous

because the mortgages came from Greenpoint Mortgage Funding. So

I was unable to determine how the 11th Circuit came up with that.

And there were lots of, it looks like, slippage of

language throughout the trial saying Greenpoint Mortgage Funding

was FDIC insured and it wasn't, and maybe this issue wasn't

litigated because it didn't really reach a head until you had to

start unpacking exactly how these foreclosures affected the

financial institution."

The District Court's order, District Court Dkt. 181

ignored the issues of the false misleading presentation of facts

at the hearing and at trial and found in favor of, the Appellate's

findings. Mayer's motion District Court Dkt. 182 to reconsider

detailed the core issue of prosecutorial misconduct, and perjury

where prosecutors knowingly misrepresented the FDIC insured

Clearly there was no basis for

status of a mortgage lender.

5

I

I

forfeiture if the lender was not FDIC insured, Mayer appealed.

Mayer filed his timely appeal brief on October 20, 2017.

The government responded by filing a motion for an extension of

time to respond which was granted. Subsequently the Government

filed a second motion claiming the Appellate lacked jurisdiction

for the appeal and sought summary affirmance. Mayer responded by

filing a motion in support of his brief. Mayer questioned the

validity of the Government claims that i) the Court didn't have

jurisdiction and ii) that summary affirmance was warranted when

Mayer had argued the forfeiture amount at the District Court the

decision of which he was 'now' appealing.

Mayer's brief

addressed the forfeiture hearing and how the Government defended

its position at that hearing. Mayer claimed the Government opened

the door to numerous trial issues when the Government referenced

Mayer's

testimony and exhibits repeating material falsehoods.

appeal brief not only addressed forfeiture but pointed to his

overall conviction by referencing AUSA Ri.edel's trial closing

argument explaining all nine of Mayer's charged counts District

Court Dkt. 149 at 48-51, "that's why it matters that Green Point

is FDIC insured because it is , a financial institution."

Mayer is an untrained pro se defendant whose appeal brief

was admittedly broad in its presentation of the facts but none

the less Mayer addressed the core issue of forfeiture. The

Appellate responded by finding Mayer should have raised the

issues earlier in the proceedings and that the lender was FDIC

insured based upon the law of the case doctrine, affirming the

Government's motion for summary judgement.

Mayer responded by filing for an en-bane hearing asserting

1) the law of the case doctrine can be overcome when clearly the

decision is based on erroneous information and 2) that the act of

vacating the forfeiture order in Mayer's direct appeal

effectively wiped the slate clean for forfeiture.

Specifically

Mayer challenged the law of the case for the forfeiture as a

"slate wiped clean" and Mayer's July 6, 2017 hearing made clear

Mayer's argument in relation to the erroneous statement by the

Appellate that Green Point was FDIC insured.

The Appellate construed Mayer's petition for En Bane

rehearing as a motion for reconsideration.

In its subsequent

order of denial the Appellate claimed the Court had only

partially vacated Mayer's forfeiture order stating:

"we vacated only the portions of his original forfeiture

judgement that did not constitute proceeds affecting an FDICinsured parent entity. We specifically determined that

$1,114,200 came from mortgages from Green Point, which was FDICinsured, and therefore, were proceeds to be included in his

forfeiture judgement." .

Mayer's direct appeal states, District Court Dkt. 171 at

18 "we vacate the forfeiture order and remand for further

proceedings."

The Government did not assert law of the case doctrine or

the mandate rule at Mayer's forfeiture hearing on remand and

Mayer appropriately objected to any forfeiture order.

II. Basis for jurisdiction in the Courts below

In this criminal case, the District Court had jurisdiction

to enter its July 7, 2017 forfeiture judgement against Mayer

pursuant to 18 U.S.C. § 3231. Mayer filed his timely notice of

appeal in the Eleventh Circuit on July 18, 2017. That Court had

jurisdiction over his appeal pursuant to 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

The Act of Vacating an Order

I. An ambiguous order finding certain facts but which culminates

in the vacating of a District court's order on direct appeal

effectively wipes the slate clean on remand and there is

therefore no law of the case to overcome.

Mayer claims the mandate rule does not apply because the

Appellate elected to vacate the forfeiture order. "The mandate

rule is a specific application of 'law of the case doctrine which

provides that subsequent courts are bound by any findings of fact

or conclusions of law made by the court of appeals in a prior

appeal of the same case." The Appellate granted the Government's

motion for affirmance which Mayer challenges as erroneous. The

Eleventh Circuit Court of Appeal relies upon two cases to explain

the law-of-the-case doctrine and the Mandate rule: "Where an

appellant failed to raise an issue during his first direct

appeal, and does so for the first time on appeal after remand, he

has waived that issue. United States v. Fiallo-Jacome, 874 F. 2d

1479, 1481-83 (11th Cir. 1989)." and "United States v. Amedeo,

487 F. 3d 823, 830 (11th Cir. 2007)(quotation marks and citation

omitted). We recognize the same three exceptions to the mandate

rule as we do for the law-of-the-case doctrine. See Id." In

United States v. Krocka, 522 Fed. Appx. 472; 2013 (11th Cir.

2013) the Eleventh Circuit Court of Appeals explains: "United

States v. Fiallo-Jacome, 874 F. 2d 1479, 1481-83 (11th Cir.

1989).

The District Court and this Court are bound by the

a prior appealof

findings of fact and conclusions of law made in

trial produces

the same case unless: "(1) a subsequent

ing authority has

substantially different evidence, (2) controll

le to that issue,

since made a contrary decision of law applicab

s and would work

or (3) the prior decision was clearly erroneou

manifest injustice." United States v. Stinson,

97 F. 3d 466, 469

(11th Cir. 1996)."

eiture order

Mayer claims the act of vacating Mayer's forf

effectively wiped the slate clean.

nd before the

Mayer sufficiently argued the issue on rema

material false

District Court and highlighted the

and therefore,

misrepresentation of evidence by the Goiernment

n to be clearly

The prior findings of the Appellate were show

erroneous.

by its

The Appellate Court asserted Mayer is governed

new evidence at

prior findings of facts. However, Mayer provided

llate's findings.

his remand hearing which contradicted the Appe

cases where the

Circuit precedent clearly recognizes multiple

enough to overturn

showing of error in prior decisions is reason

e precedents the

the law of the case doctrine. Aside from thes

ence directly

fact that the District Court heard new evid

been sufficient;

contradicting the Appellate's findings should have

rmance.

to upend the Government's motion for summary affi

184 (5th

In Damahy v. Schwarz Pharma, Inc. 702 F. 3d 177,

ingham, 230 F. 3d

Cir. 2012). See also Oladeinde v. City of Birm

there are only two [663 Fed. Appx.

1275 1 1288 (11th Cir. 2000):

case doctrine: (1)

7701 ways a party can overcome the law of the

10

"if, since the prior decision, new and substantially different

evidence is produced, or there has been a change in the

controlling authority" or (2) "the prior decision was clearly

erroneous and would result in a manifest injustice. Oladeinde v.

City of Birmingham, 230 F. 3d 1275, 1288 (11th Cir. 2000).

See

also This That and the Other Gift and Tobacco, Inc. v. Cobb

Cnty., 439 F. 3d 1275, 1283 (11th Cir. 2006).

Mayer's petition for en-banc review was considered a

motion to reconsider which the Court determined raised new

arguments to defeat the law of the case.

The Appellate's denial of Mayer's motion for a re-hearing

relied on Wilcombe v. Tee Vee toons, Inc., f. 3d 949, 957 (11th

Cir. 2009). However Wilcombe specifically addressed issues that

could have been raised prior to entry of judgment. The Appellate

Court effectively stated Mayer was raising a new argument on

appeal when in fact Mayer raised each of his issues at the

District Court and in his appeal brief.

This Court has previouly ruled in Pepper v. United States,

131 S. Ct. 1229 1 179 L. Ed. 2d 196 (2011) the act of vacating a

sentence effectively wiped the slate clean. Mayer's motion for

reconsideration argued the act of vacating a forfeiture order

must effectively wipe the prior findings of forfeiture out.

In Pepper this Court addressed the law of the case as

follows: "The doctrine does not apply if the Court is 'convinced

that [its prior decision] is clearly erroneous and would work a

manifest injustice.'" And Agostini v. Felton, 521 U.S. 203, 236

117 S. Ct. 1997, 138 L. Ed 2d 391 (1997)(quoting Arizona, 460

11

U.S. at 618, n, 8, 103 S. Ct. 1382, 75 L. Ed. 2d, 318; alteration

in original). In Messenger v. Anderson, 225 U.S. 436, 444 32 S.

Ct. 739, 56 L. Ed. 1152 (1912) This Court explained: The doctrine

"expresses the practice of courts generally to refuse to reopen

what has been decided" but it does not "limit[ courts

power".

Thus, doctrine may describe an appellate court's decision not to

depart from a ruling that it made in a prior appeal in the same

case. See C. Wright et al., 18B Federal Practice and Procedure §

4478, p. 646, and n. 16 (2d ed. 2002)(collecting cases). But the

doctrine is "something of a misnomer" when used to describe how

an appellate court assesses a lower court's rulings. United

States v. Wells, 519 U.S. 482, 487, n.4, 117 S. Ct. 921, 137 L.

Ed. 2d 107 (1997). "An appellate court's function is to revisit

matters decided in trial court. When an appellate Court reviews

a matter on which a party failed to object below, its review may

well be constrained by other doctrines such as waiver,

forfeiture, and estoppel, as well as by the type of challenge

that it is evaluating.

But It is not bound by district court

rulings under the law of the case doctrine." See also Michael

Musacchio v. United States, 136 S. Ct. 709; 193 L. Ed. 2d. 639

Mayer objected to any forfeiture at the hearing on

(2016).

remand and Mayer asserted. he must be allowed to appeal that

hearing.

Therefore, this Court should grant this petition to

consider the issue of when the law of the case attaches or if

indeed such an argument is applicable on the face of it.

Overcoming The-Law-Of-The-Case

II.

12

.

I

I

Prosecutorial fraud in material false misrepresentations must be

a benchmark for overcoming the law of the case doctrine, when

such fraud is material to the issue subject to the law of the

case and

III. Prosecutors cannot knowingly rely on false testimony and

receive known fraudulent trial exhibits into evidence which are

material to a Court order and stand idly by as the Courts

utilized the same set of false facts in determining the law of

the case.

The presentation of known false evidence specifically

designed to vex and mislead a Court must meet the bar for

manifest injustice when such evidence is used to deprive a

defendant of not only his freedom but his property through

forfeiture.

The District Court was presented with information

that should shock the consciousness of any jurist.

This case represents a frightening set of circumstances,

where a prosecutor knowingly solicited false evidence and

testimony not just to achieve a guilty verdict but to assert

jurisdiction. Building further on lies to seek forfeiture of the

defendant's property. The District Court and Appellate have

practiced wilful blindness to ignore a case where a known blatant

fraud utilized to convict a defendant has bubbled to the surface

While the majority of cases

through forfeiture proceedings.

Mayer has found deal with the underlying conviction, the same

must be said for other trial issues such as forfeiture. The fact

that Mayer's actual conviction is called into question via these

proceedings is no doubt the unwelcome elephant standing in the

13

middle of these entire proceedings.

A prosecutor has a constitutional duty to correct the

false impression of fact.

United States v. LaPage, 231 F. id

488, 492 (9th Cir. 2000).

"It is of no consequence that the

falsehood bears upon the witness' credibility rather than

directly upon the defendant's guilty" because

"[t]he jury's

estimate of truthfulness and reliability of a given witness may

well be determinative of guilt or innocence, and it is upon such

subtle factors as the possible interest of the witness that a

defendant's life or liberty may depend." Hayes, 399 F. 3d at 986

(citing Napue, 360 U.S. at 269).

Holland v. Adams, 2007 WL

7770910 at 16 (C.D. Cal. Apr. 3, 2007)(emphasis added).. This

aligns with Eleventh Circuit precedent:

"If false testimony surfaces during at trial and the government

has knowledge of it,

...

the government has a duty to step

forward and disclose." Brown v. Wainwright, 785 F. 2d 1457, 1464

(11th Cir. 1986).

"In order to prevail on a Giglio claim, a

petitioner must establish that the prosecutor knowingly used

perjured testimony, or failed to correct what he subsequently

learned was false testimony, and that the falsehood was

material." Tompkins v. Moore, 193 F. 3d 1327 1 1339 (11th Cir.

1999). Ventura, 419 F. 3d at 1288 (emphasis added).

A Conviction obtained by the knowing use of false evidence

or perjured testimony is fundamentally unfair and violates a

defendant's constitutional rights. United States v. Agurs, 427

U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); see also

Napue v. Illinois, 360 U.S. 264, 269-70, 79 S. Ct. 1173, 3 L. Ed.

14

a

2d 1217 (1959)("A lie is a lie, no matter what its subject, and,

if it is in any way relevant to the case, the district attorney

has the responsibility and duty to correct what he knows to be

false and elicit the truth." (internal quotation marks omitted)).

To merit habeas relief, a petitioner must show that the testimony

was actually false, that the prosecutor knew or should have known

that it was false, and that the falsehood was material to the

case. Jackson v. Brown, 513 F. 3d 1057, 1071-72 (9th Cir. 2008).

A Napue violation is material if there is any reasonable

likelihood that the false testimony could have affected the

jury's decision.

Libberton v. Ryan, 583 F. 3d 1147, 1164 (9th

Cir. 2009).

The Appellate made no attempt to address what was clearly

a house built on quick sand and instead shores up the foundation

of prosecutorial fraud by claiming the actual fraud perpetrated

by prosecutors is the law of the case.

The Government's references to Green Point Bank were

merely a vexatious presentation of facts, while it is true Green

Point Mortgage was once a subsidiary of Green Point Bank it was

irrelevant to these proceedings. Mortgages referenced in this

indictment were issued in 2006, Green Point Bank had ceased

trading in 2004 and its FDIC insured status expired in February

2005.

In short from February 2005 there was no Green Point

anything that was FDIC insured. However, at trial the Government

simply referenced the lender as FDIC insured and declared it to

be a financial institution.

The Ninth Circuit has held that a conviction based on

15

c

I

false testimony,

even without any i evidence of prosecutorial

misconduct in presenting the testimony, may result in a violation

of a defendant's due process rights under the Fourteenth

Amendment.

Maxwell v. Roe, 628 F. 3d 486, 506-07 (9th Cir.

2010)("[A] defendant's due process rights were violated

...

when

it was revealed that false evidence brought about a defendant's

conviction."); Killian v. Poole, 282 F. 3d 1204, 1208 (9th Cir.

2002). See also Hall v. Director of Corrections, 343 F. 3d 976,

981-82 (9th Cir. 2003), Mooney v. Holohan, 294 U.S. 103, 112, 55

S. Ct. 340, 79 L. Ed. 791 (1935).

"The principle that a State

may not knowingly use false evidence, including false testimony,

to obtain a tainted conviction [is] implicit in any concept of

ordered liberty

. . . ."

Napue v. Illinois, 360 U.S. 264, 269, 79 S.

Ct. 1173, 3 L. Ed. 2d 1217 (1959). In other words, whenever the

State seeks to obfuscate the truth-seeking function of a court by

knowingly using false testimony or misleading argument, the

integrity of the judicial proceeding is placed in jeopardy. "A

conviction obtained through use of false evidence, known to be

such by State violates the fourteenth Amendment." Napue, 360

U.S. 269 (internal citations omitted).

Surely 'then known false

evidence to deprive a defendant of property must meet the same

bar.

Common sense and the fair administration of justice must

prevail where a material fact is misrepresented in a Giglio,

Napue context it cannot then be legitimized and rewarded by

becoming the law of the case under any scenario.

The record is clear at Mayer's forfeiture hearing on

remand Mayer raised the fact the lender was not as the Appellate

stated "FDIC insured." Mayer referenced the prosecutors

"slippage" at trial of a non existent FDIC insured status and

specifically pointed to a trial exhibit which falsely claims the

lender to be FDIC insured. In short Mayer presented the issue at

the District Court which Mayer was entitled to appeal.

This case presents a significant issue of a defendant's

property and due process rights under the Fifth and Fourteenth

Amendments of the United States Constitution. Whether if the

Government retains any liability post conviction to correct known

fraud material to protect a defendant's rights in forfeiture and

when indeed the law of the case doctrine attaches.

This case also represents an important milestone in the

raising of the bar by the Eleventh Circuit in acceptable conduct

by offices of the Court.

Iv

Conclusion

For the reasons stated herein, Petitioner Stephen Mayer

proceeding pro se respectfully prays that this Court issue a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Eleventh Circuit. Respectfully submitted by

Stephen Mayer this 29th day of July 2018 by depositing a copy of

this writ in the prison mailbox system in accordance with 28

U.S.C. § 1746.

1

.12

Jul/yj 9, 20i.

Prq /Se IncarceratI. Petitioner

Inrte I.D. 02303-104

FCIJ Miami

P.O. Box 779800

iNiami, FL. 33177.

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