Petition for Writ of Certiorari — Kenny Eugene Smart, Petitioner v. United States

Supreme Court briefJun 22, 2023

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NO. ____________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________

Kenny Eugene Smart,

Petitioner,

-vs.United States of America,

Respondent.

_______________________________________________

On Petition for Writ of Certiorari to

the Eighth Circuit Court of Appeals

Petition for Writ of Certiorari

______________________________________________

Angela L. Campbell

Dickey, Campbell & Sahag Law Firm,

PLC.

301 East Walnut Street, Suite 1

Des Moines, Iowa 50309

Phone: (515) 288-5008

Fax: (515) 288-5010

angela@iowajustice.com

COUNSEL OF RECORD FOR

PETITIONER

QUESTIONS PRESENTED FOR REVIEW

1. WHAT IS THE PROPER STANDARD OF REVIEW OF EVIDENTIARY

RULINGS UNDER FEDERAL RULE OF EVIDENCE 404(b) AND IS RULE

404(b) A RULE OF INCLUSION WHICH ALWAYS ALLOWS THE NATURE

OF PRIOR CONVICTIONS IN TRIALS FOR ALLEGED VIOLATIONS OF

18 USC §922(g)?

2. WHAT IS THE CORRECT STANDARD OF REVIEW FOR DENIALS OF

MOTIONS FOR NEW TRIAL BASED ON BRADY v. MARYLAND

VIOLATIONS?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

There are no related proceedings.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............................................................... 1

RELATED PROCEEDINGS ....................................................................................... 1

TABLE OF AUTHORITIES ....................................................................................... 3

OPINIONS BELOW ................................................................................................... 5

JURISDICTION ......................................................................................................... 5

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 5

STATEMENT OF THE CASE .................................................................................... 6

REASONS FOR GRANTING THE WRIT ................................................................ 12

I. THIS COURT SHOULD RESOLVE THE SPLIT AMONG THE CIRCUITS

AS TO THE PROPER STANDARD OF REVIEW OF EVIDENTIARY

RULINGS UNDER FEDERAL RULE OF EVIDENCE 404(b) AND

WHETHER RULE 404(b) IS A RULE OF INCLUSION WHICH ALWAYS

ALLOWS THE NATURE OF PRIOR CONVICTIONS IN TRIALS FOR

ALLEGED VIOLATIONS OF 18 USC §922(g) .............................................. 12

II. THIS COURT SHOULD RESOLVE A SPLIT AMONG THE CIRCUITS

REGARDING THE CORRECT STANDARD OF REVIEW FOR DENIALS OF

MOTIONS FOR NEW TRIAL BASED ON BRADY v. MARYLAND

VIOLATIONS................................................................................................. 14

CONCLUSION ......................................................................................................... 15

APPENDIX TABLE OF CONTENTS

8th Circuit Opinion filed February 21, 2023 ............................................................ 3a

8th Circuit Order denying rehearing and rehearing en banc filed March 29, 2023 21a

District Court Judgment in 20-CR-00219 filed January 13, 2022 .......................... 22a

District Court Amended Judgment in 03-CR-00295 filed January 24, 2022.......... 30a

TABLE OF AUTHORITIES

Cases

Pages

United States Supreme Court

Brady v. Maryland, 373 U.S. 83 (1963)………………………..…………….11, 12, 14, 15

General Electric v. Joiner, 522 U.S. 136 (1997)……………………………………...…..13

Smith v. Cain, 565 U.S. 73 (2012)…………………………………………...……………..14

United States Court of Appeals

United States v. Bechman, 787 F.3d 466 (8th Cir. 2015)……………………...………..14

United States v. Burgos-Montes, 786 F.3d 92 (1st Cir. 2015)………………………….13

United States v. Dones-Vargas, 936 F.3d 720 (8th Cir. 2019)………………………….14

United States v. Drew, 9 F.4th 718 (8th Cir. 2021)……………………………………….12

United States v. Jones, 484 F.3d 783 (5th Cir. 2007)…………………………………...13

United States v. Kaipat Pelisamen, 641 F.3d 399 (9th Cir. 2011)……………………..14

United States v. Pang, 362 F.3d 1187 (9th Cir. 2004)…………………………………...13

United States v. Ray, 549 F3d. Appx. 428 (6th Cir. 2013)………………………………13

United States v. Reese, 745 F.3d 1075 (10th Cir. 2014)………………………………...14

United States v. Ruzicka, 988 F.3d 997 (8th Cir. 2021)…………………………………14

United States v. Smart, 60 F.4th 1084 (8th Cir. 2023)…………………………………….5

United States v. Summage, 575 F.3d 864 (8th Cir. 2009)………………………………12

United States Constitution and Statutes

United States Constitution am. XIV………………………………………………………..5

Fed. R. Evid. 404(b)………………………...…………………………………….7, 12, 13, 14

18 U.S.C. §922(g)………………………………………………………………….6, 12, 13, 14

OPINION BELOW

The petitioner, Kenny Eugene Smart, respectfully prays that a writ of

certiorari issue to review the judgment of the Eighth Circuit Court of Appeals in

Case Nos. 22-1129 and 22-1131 entered on February 21, 2023, and made final with

the denial of rehearing and rehearing en banc on March 29, 2023. United States v.

Smart, 60 F.4th 1084 (8th Cir. 2023).

JURISDICTION

The panel of the Eighth Circuit Court of Appeals entered its judgment on

February 21, 2023. The petitioner’s petition for rehearing and rehearing en banc

was denied on March 29, 2023. (App. p. 21a). Jurisdiction of this court is invoked

under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The United States Constitution amendment XIV, sec. 1 states:

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.

Federal Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible

to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor

intends to offer at trial, so that the defendant has a fair opportunity to

meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor

intends to offer the evidence and the reasoning that supports the purpose;

and

good cause, excuses lack of pretrial notice.

STATEMENT OF THE CASE

Smart was arrested on November 18, 2020, after law enforcement agents

executed a warrant at a residence at 1121 Clark Street in Des Moines, Iowa. (App.

4a). An indictment, and amended indictment to correct Smart’s name, were both

filed on December 16, 2020, in case number 4:20-CR-00219 charging Smart with one

count of felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1), 924(a)(2),

924(d), and 28 U.S.C. 2461(c). A superseding indictment was filed January 21,

2021, which added a second count for possession of a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C. §924(c). At the time he was charged

with these indictments, Smart was on federal supervised release in case number

4:03-CR-295, and the charges in 4:20-CR-00219 caused the government to also file a

motion to revoke his supervised release in 4:03-CR-295. (App. p. 4a).

Law enforcement had been surveilling 1121 Clark Street with a pole camera,

and turned some of the footage of that surveillance over to the defendant, but did

not turn over the pole camera footage from November 18, 2020, the day law

enforcement found the gun they charged Smart with possessing. (App. 15a).

The government filed a notice it intended to offer prior bad act evidence from

2003, including two of Smart’s prior convictions and the underlying conduct from

those convictions. The government argued these convictions “shows Defendant’s

motive, opportunity, intent, preparation, plan, knowledge, identify, absence of

mistake, and/or lack of accident in possessing a firearm as a felon and possessing a

firearm in furtherance of a drug trafficking crime.”

The matter proceeded to trial. The government filed a motion in limine,

which included in relevant part that Smart’s 2006 federal conviction for felon in

possession and 2004 conviction for possession with intent to deliver and conspiracy

to deliver crack cocaine and the 2003 conduct underlying the convictions were

admissible under Federal Rule of Evidence 404(b). The defendant objected,

claiming that the prior convictions being offered as a pretext for propensity

evidence, and noting they were 17 years old.

The district court not only allowed the government to offer Smart’s 2004 and

2006 convictions at trial, but also allowed testimony about Smart’s 2003 conduct

underlying the convictions. Trial commenced on June 7, 2021. The government

called seventeen witnesses.

Several of the government’s witnesses testified about law enforcement’s early

morning search at 1121 Clark Street, where they found three people inside the

residence at the time of the search: Smart, Richard Brown, and Dionne Dibble.

Smart and Dibble were in a romantic relationship at the time, but Smart did not

live at 1121 Clark Street. Law enforcement found a Ruger 9mm pistol in the middle

of the floor of one of the rooms in the house during the search. Law enforcement

found cash on Smart, but no drugs. They did locate drugs belonging to Richard

Brown, and charged Brown with those drugs. Civilian cooperating witnesses

testified about purported drug activity by Smart prior to the warrant being

executed, and their view of the gun. None of the civilian witnesses’ statements

about the gun were consistent with the gun found, or with each other. A search

warrant executed at Smart’s residence turned up no guns, ammunition, or drugs.

Officer Chad Nicolino testified, over objection, that he was the officer who

had been performed a traffic stop of Smart on October 1, 2003. Nicolino testified he

stopped the car for not having a front license plate, searched the car, and located

eight rocks of crack cocaine and a gun in the car. Nicolino testified this quantity of

crack he found in 2003 was packaged in a way that indicated it was for distribution.

Nicolino testified when he found the gun in 2003, Smart said, “That is mine.”

Nicolino testified in 2003 Smart was a felon, and he had $1000 cash on him during

the stop. Through Nicolino, the government then offered Exhibit 14, a sentencing

order for Smart’s state drug conviction resulting from his traffic stop. Nicolino

testified the gun he found was subsequently prosecuted federally.

Daniel Velasco testified as Smart’s probation officer. Velasco testified, over

objection, that Smart was in prison for being a felon in possession of a firearm,

released from prison to supervised release on July 19, 2019. Through Velasco, the

government offered Exhibit 13, the judgment in the felon in possession case for

Smart. Velasco also testified to the terms and conditions of Smart’s supervised

release.

There were no fingerprints found on the firearm at 1121 Clark Street. So,

Matthew Jenkins, the ATF case agent went to the jail and took a buccal swab for

DNA testing from Smart. Jenkins did not take buccal swabs from anyone else at

1121 Clark Street to test their DNA. Jenkins pretended not to know Smart would

have already had his DNA taken in connection with his other convictions, or from

CODIS. The DNA swabs of the firearm were temporarily “lost” by law enforcement,

and then located. A criminalist testified that a partial profile was developed from

the swabs of the gun, and 19 of 21 of the loci matched Smart’s DNA from the buccal

swabs. There were three individuals’ DNA in the mixture, but law enforcement did

not develop profiles from the other two contributors. The criminalist verified

inmates’ DNA are stored in CODIS and his agency has access to that information.

He did not know why Smart’s known DNA wasn’t pulled from CODIS system,

rather than from a new buccal sample. The criminalist was unable to identify

whether the partial profile was from a primary, or secondary transfer of DNA, or

whether cross-contamination could have occurred. No one other than Smart’s DNA

was provided to test against the firearm.

Jenkins testified about the surveillance of 1121 Clark Street prior to law

enforcement executing the warrant, and claimed they did not see any specific

individuals come and go. He did not mention that surveillance was done by a pole

camera, the footage had not been turned over prior to trial, or that the pole camera

footage did in fact show people coming and going before the warrant was executed.

Lometa Welch testified for the government as a civilian witness who had

admitted extensive involvement with drugs, but who (like the other civilian

witnesses) was never charged with a crime. Welch testified she tried to buy crack

from Smart at Harper’s house at 1121 Clark the morning of the search, and “shortly

after I left that day that place was raided by the police.” She said she went inside

Harper’s house and saw Smart “in a back room asleep.” She claimed she stood

outside the room, with the lights off, looked into the dark room and saw a “glimpse

of him laying there asleep” and “a glimpse of the firearm.” She said the gun was

“within his reach” and “beside him.” She claimed it was a “handgun, revolver.”

On cross, she was asked more details about her interaction at the house. She

said she never did buy drugs from Smart, but instead got it from Richard Brown

and “it was handed to me from Lisa Harper.” She admitted to being paid $20 for

writing a letter for Richard Brown, the person she actually purchased her drugs

from, for his drug case.

Smart was convicted of both counts. Before sentencing, newly appointed

counsel identified missing discovery in the government’s discovery file, specifically

the pole camera footage of the front of 1121 Clark Street before, and during, the

raid, which would have demonstrated the government’s witness, Welch, had not

testified truthfully during trial. Counsel filed a motion for new trial arguing the

withholding of pole camera discovery violated Brady v. Maryland, 373 U.S. 83

(1963).

After Smart’s motion for new trial was filed, the government turned over

even more new discovery, a report from the interview of a witness, Cory Turner,

that included exculpatory information. Specifically, the report included Turner

telling the government he had been present at the Loggins residence at the same

time as Smart, but Smart did not cook crack cocaine there “because Smart doesn’t

know how” and Smart never had a firearm at the Loggins residence, or anywhere

else.

The court ruled on the motion for new trial, holding that the failure to

disclose Turner’s June 2021 interview report and the full pole camera video prior to

trial was “unacceptable.” (App. p. 14a). But, ultimately, the motion for new trial

was denied.

The court initially sentenced Smart to 180 months on Count I (which was

amended to 120 months after resentencing on remand from the 8th Circuit), and 180

months on Count II. The court revoked Smart’s supervised release as a result of the

new convictions. Smart was sentenced to 54 months on the revocation.

Smart appealed on several grounds, but was only successful in one

sentencing argument, which resulted in a remand for resentencing. His remaining

challenges to his conviction were rejected by the Eighth Circuit. At issue here are

(1) his challenge to the use of his prior convictions in the trial under the Eighth

Circuit’s precedent allowing, seemingly without exception, all convictions to be

admissible in 18 USC 922(g) prosecutions under Federal Rule of Evidence 404(b),

and (2) the denial of his request for a new trial for the Brady violations. Smart

submits that the Eighth Circuit’s opinion denying both of these two claims place

this case in the middle of circuit splits on both issues, warranting review by the

Supreme Court.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD RESOLVE THE SPLIT AMONG THE

CIRCUITS AS TO THE PROPER STANDARD OF REVIEW OF

EVIDENTIARY RULINGS UNDER FEDERAL RULE OF EVIDENCE

404(b) AND WHETHER RULE 404(b) IS A RULE OF INCLUSION

WHICH ALWAYS ALLOWS THE NATURE OF PRIOR

CONVICTIONS IN TRIALS FOR ALLEGED VIOLATIONS OF 18

USC §922(g).

The Eighth Circuit reviews evidentiary rulings for a clear abuse of discretion,

to be reversed “only when an improper evidentiary ruling affected the defendant’s

substantial rights or had more than slight influence on the verdict.” United States

v. Summage, 575 F.3d 864, 877 (8th Cir. 2009). The Eighth Circuit reviews F.R.E.

404(b) evidence for abuse of discretion, and will only reverse those admissions

“when they clearly had no bearing on the case and were introduced solely to prove

the defendant’s propensity to commit criminal acts.” United States v. Drew, 9 F.4th

718, 722 (8th Cir. 2021). In the instant case, the Eighth Circuit was clear that, “In

this circuit, Rule 404(b) is a rule of inclusion.” (App. p. 7a).

In other circuits, evidentiary rulings are reviewed for abuse of discretion,

without the additional requirements, and if it the evidentiary ruling rests on an

interpretation of law, de novo. See, e.g., United States v. Burgos-Montes, 786 F.3d

92, 114 (1st Cir. 2015); United States v. Pang, 362 F.3d 1187, 1191-92 (9th Cir. 2004).

As the Sixth Circuit has noted, adding in multiple steps of an analysis, rather than

employing the simple abuse-of-discretion standard to reviews of evidentiary

decisions, runs contrary to Supreme Court precedent. United States v. Ray, 549

F3d. Appx. 428, 430 (6th Cir. 2013), citing General Electric v. Joiner, 522 U.S. 136

(1997).

The jury here heard details about Smart’s prior convictions, through both the

arresting officer and Smart’s federal probation officer, even though those prior

convictions were similar only in the type of charge, not the circumstances

surrounding the charge. Yet the Eighth Circuit held, “We have ‘routinely affirmed

the use of past gun possession offenses to prove the element of knowing possession

in violation of 18 U.S.C. §922(g)(1),” essentially confirming blanketly admission of

such evidence in the Eighth Circuit in felon in possession cases, creating a circuit

split.

Other circuits prohibit such a “trial-by-character” evidence that Rule 404(b)

in all types of cases, including felon in possession cases. See, e.g., United States v.

Jones, 484 F.3d 783 (5th Cir. 2007) (Reversing conviction for improperly offering

prior convictions for firearms in a felon in possession case because it was improper

propensity evidence.)

Certiorari is necessary to resolve these splits among the Circuits in both the

standard of review, as well as the application of, FRE 404(b) in 18 USC §922(g)

cases.

II.

THIS COURT SHOULD RESOLVE A SPLIT AMONG THE

CIRCUITS REGARDING THE CORRECT STANDARD OF REVIEW

FOR DENIALS OF MOTIONS FOR NEW TRIAL BASED ON BRADY

v. MARYLAND VIOLATIONS.

The Eighth Circuit has historically reviewed denials of motions for new trial

based on a Brady violation for abuse of discretion. United States v. Ruzicka, 988

F.3d 997, 1006 (8th Cir. 2021). The panel in this case followed suit. (App. p. 16a,

“The district court did not abuse its discretion…”). But, constitutional claims are

supposed to be reviewed de novo, and in other contexts in the Eighth Circuit, are

reviewed de novo. United States v. Dones-Vargas, 936 F.3d 720, 722 (8th Cir. 2019).

In other contexts other than in a motion for new trial setting, the Eighth Circuit

even reviews Brady claims de novo. See, e.g., United States v. Bechman, 787 F.3d

466, 492 (8th Cir. 2015).

Other circuits review denials of motions for new trial for Brady violations de

novo. See, e.g., United States v. Kaipat Pelisamen, 641 F.3d 399, 408 (9th Cir.

2011); United States v. Reese, 745 F.3d 1075, 1083 (10th Cir. 2014).

Due process requires a defendant to receive a new trial if the government

withholds evidence that is favorable to the defendant and material to guilt or

punishment. Smith v. Cain, 565 U.S. 73, 76 (2012). Cain makes it clear that this is

a constitutional issue that should therefore be reviewed de novo by the circuits.

Had the Eighth Circuit done that de novo review, it necessarily would have

concluded that an evidentiary hearing, and a new trial, were warranted for the

repeated, flagrant violations in this case. Certiorari is warranted to require this de

novo review of the issue to create a consistency among the circuits about the

standard of review when there is a Brady violation and a new trial is requested by

the defendant as a result.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that the Petition

for a Writ of Certiorari be granted.

RESPECTFULLY SUBMITTED,