Petition for Writ of Certiorari — Mike Austin Anderson, Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OF AMERICA

MIKE AUSTIN ANDERSON

Petitioner-Defendant

Vv.

UNITED STATES OF AMERICA

Respondent

On Petition for Writ of Certiorari from the

United States Court of Appeals for the Fifth Circuit.

Fifth Circuit Case No. 23-60040

PETITION FOR WRIT OF CERTIORARI

Omodare B. Jupiter (MB # 102054)

Federal Public Defender

N. and S. Districts of Mississippi

200 S. Lamar Street, Suite 200-N

Jackson, MS 39201

Telephone: 601-948-4284

Facsimile: 601-948-5510

Michael Scott Davis (MB # 103225)

Assistant Federal Public

1200 Jefferson Avenue, Suite 100

Oxford, MS 38655

Attorney for Defendant-Petitioner

QUESTIONS PRESENTED FOR REVIEW

1) | Whether the district court erred by finding that the prosecution produced

sufficient evidence at trial for a reasonable jury to return a guilty verdict against

Mr. Anderson.

2) | Whether the district court erred by denying Mr. Anderson’s Motion to

Revoke or Amend Magistrate Judge’s Denial of Defendant’s Motion to Order

Recusal.

PARTIES TO THE PROCEEDING

All parties to this proceeding are named in the caption of the case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW. .......cccscssssssesessessseeseseeneeesenneeneneeney ii

PARTIES TO THE PROCEEDING... ecceeeecesesessceescscseseseseenseneseeeneeeeseenenes ili

TABLE OF CONTENTS ........ccecesescceseseceeeessesenssereesrscssssnssseessvsnsesescnassaeneseessseeeaseanes iv

TABLE OF AUTHORITIES 000... eecceseseeeseccecsessessesesesssesessenssnseeseseesensenseeessacaees vi

I. OPINIONS BELOW... cccecececsccseessesncececsseneneseesesessesesusssnesessuseansesseeseseessaeesenenees ]

Il. JURISDICTIONAL STATEMENT ........ cc cescccsseseesseesseesrersesesesesesenenessensaeaeseeneee 5

III. CONSTITUTIONAL PROVISION AND RULE OF PROFESSIONAL

CONDUCT INVOLVED... ceeceeesenseserenseceeeeetesssssesesesensscseseessseeeseesseesensesseaenenee 6

TV. STATEMENT OF THE CASE... ccseceseeeseeceeeerseaeseseseseseseenseseeaneeseseseneneeeees 7

A. Basis for federal jurisdiction in the court of first Instance... ccc eeeeeteeeees 7

B. Statement of material facts ......... ccs esses seersesessesecssssesesevesseneneeseeeenenesneeenes 7

1. Facts about Mr. Anderson’s background «00... cceeseseereeereeeseeeseessesnerseceeseeseeens 7

2. Facts about the trial 0... ccccsnecsseeeceesesesecsecseseesensssesssscssessessesseeseneesanseseseaeaeees 9

a. The charges and jury verdicts... ccccccsssesecsecssesenseenesnseesesseeeseseseeneneneaes 9

b. Evidence presented at trial and at the sentencing hearing ...........ccsceeeeeeeeees 10

3. Facts about the recusal issue 00... sseeseeesecseessereseseseseseneneeseesessseenens 17

V. ARGUMENT. oc cccececesceccececeeteeesescnseeseseentsesssensesssasassesassesssesersasnesessenesenenseans 19

A. Introduction / review on certiorari should be granted in this case... 19

B. The district court erred by finding that the prosecution produced

iv

sufficient evidence at trial for a reasonable jury to return a guilty verdict against

Mr. Anderson .......cccccesctsecstseceseesesesesseceeaesesesssseeessessseecsssecscsssseesnesessesessneeseseesenensenes 19

1. Applicable law... ccc sccsenssssecsssseseescsssecesaceesesesesesseaseeeesesenereessaeasenengs 19

2. The evidence admitted at trial was insufficient to prove guilt... 21

a. Proof pertaining to Julian McMillan’s testimony ..........cccccesesseseseeseeeeeeeeeseees 21

b. Proof pertaining to Julian McMillan’s testimony ...........:ccccceeeseeseeeseeetenenee 22

c. Proof pertaining to Catia Anderson’s testimony .........ccceeseseeseseesesereeeeeeesenes 23

d. Proof pertaining to Tonya Anderson’s statement to law enforcement .............. 25

3. Conclusion — sufficiency of the evidence ISSUe 000... ee secceetsescteeneereteetersesees 26

C. The district court erred by denying Mike’s Motion to Revoke or Amend

Magistrate Judge’s Denial of Defendant’s Motion to Order Recusal.............0000 27

VI. CONCLUSION Qo cceeceecceceeseeeseseneeeeenesseneasnenetasensesnssesesseneacanssasessesesseenaeanes 32

CERTIFICATE OF SERVICE... ceecececessteeseesensesesseseesssseerensesecsesaseessiesseseneeeeaees 33

(Appendices | and 2)

TABLE OF AUTHORITIES

Cases:

C.F. Gollott & Son Seafood, Inc. v. Gollott,

No. 120CV00159TBMJCG,

2021 WL 6618648t (S.D. Miss. Mar. 5, 2021 oo...

Henderson v. United States,

575 U.S. 626 (2015) cccccsesessecseceenensesesesesseesenestseesenees

In re Am. Airlines, Inc.,

972 F.2d 605 (Sth Cir. 1992)... cesses rseseseeneneneneenes

Occu-Health, Inc. v. Mississippi Space Servs.,

No, 1:06-CV-159-LG-RHW,

2006 WL 2290472 (S.D. Miss. Aug. 9, 2006).......cscceeeeeee

Owens vy. First Fam. Fin. Servs., Inc.,

379 F. Supp. 2d 840 (S.D. Miss. 2005)... ccceseeeeeeseeeeeeees

United States v. Clemons,

700 Fed. App’x 341 (Sth Cir. 2017)... ccsecesseeeccenenensees

United States v. Davis,

735 F.3d 194 (Sth Cir. 2013)... ccccsesseseeeeseeenereteeneenensenes

United States v. Moreland,

665 F.3d 137 (Sth Cir, 2011). eeceeeeseneseeseeeeteeeeeeenees

Williams v. Pennsylvania,

579 US. 1 (2016) occ esseceseceeecetecssasseseserenenseens

Statutes:

18 ULS.C. § L138 cence rnesenenenssessscsnesnsecssesienesesenenenee

18 U.S.C. § 924 oc ccc cesses ceerseteneeesssaeseneseneneseneteeenenees

Page(s)

18 U.S.C. § 1153 cccccccccsssssscecccceccescsccscsssescescscccenssssssssssssssssesssssssusssseueseesessessnsseseseestes 1

18 U.S.C. § 3231 .ecceeeeeceeccscseceeceeseseseseseseneeeeeceseeseensaeseassesesesesesssesuseseseunsesensesasenseess 7

28 U.S.C. § 1254 oo ceccecereeneseesesesesesesceceeeesenecseseaeseeeneseeeeeeeeseenenenseetasnsssesansneesesses 5

Rules:

Rule 10, Supreme Court Rules... ic ecceccneccreeereesecsesesesesesssseseeessenesasnesesenees 19

Rule 13.1, Supreme Court Rules... ce csseessecssecessenseeerecssnensenscseecsenseseesenenessees 5

Rule 29.5, Supreme Court Rules... sce eeccnee scene seesesesseseeesesscsersensereseeesesesenaees 33

Rule 83.5, Local Rules for the N. and S. Districts Of Miss...........:cccsseeeeseensereeees 28

Rule 1.9, Miss. R. Prof. Conduct ........cccceccccscsssesseresseesessteeesessetensersaseseeesseessens 6, 28

Rule 1.10, Miss. R. Prof. Conduct .......ccccccceccssessestsetseeeeeeeeseeeesseseessaeeneeeneererseaeess 28

United States Sentencing Guidelines:

LOSSES G65) SY 520 NO) ES SE SOOO 16, 17

United States Constitution:

Sixth Amendment, United States Constitution ..........ccccccescecceereseseeeeeeersneeneeeeseeseons 6

vii

I. OPINIONS BELOW

The grand jury returned a six-count Indictment against Mr. Anderson on

June 15, 2021. The district court case number is 3:21cr62-1. The Indictment

alleges:

Count 1, assault with a firearm with intent to commit murder in violation of 18

U.S.C. §§ 1153 and 113(a)(1);

Counts 2 and 5, assault with a firearm with intent to do bodily injury in violation of

18 U.S.C. §§ 1153 and 113(a)(3);

Count 3, assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153

and 113(a)(6);

Count 4, using a firearm during and in furtherance of a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A) (iii); and

Count 6, brandishing a firearm in relation to a crime of violence in violation of 18

US.C. § 924(c)(1)(A)(il).

Prior to trial, the parties filed several pleadings related to one of the issues

on appeal — whether the district court erred by denying Mr. Anderson’s Motion to

Revoke or Amend Magistrate Judge’s Denial of Defendant’s Motion to Order

Recusal. The court filed two orders pertaining to that issue. Pleadings and orders

related to that issue are:

Motion to Order Recusal of the Office of the United States Attorney for the

Southern District of Mississippi from the Prosecution of this Case;

Response to Defendant’s Motion to Order Recusal of the Office of the

United States Attorney for the Southern District of Mississippi from the

Prosecution of this Case;

Reply to Government’s Response to Motion to Order Recusal of the Office

of the United States Attorney for the Southern District of Mississippi from

the Prosecution of this Case;

Government’s Supplemental Response to Defendant’s Motion to Order

Recusal of the Office of the United States Attorney for the Southern District

of Mississippi from the Prosecution of this Case;

Reply to Government’s Supplemental Response to Defendant’s Motion to

Order Recusal of the Office of the United States Attorney for the Southern

District of Mississippi from the Prosecution of this Case;

Order by the magistrate judge denying the Motion to Order Recusal of the

Office of the United States Attorney for the Southern District of Mississippi

from the Prosecution of this Case;

Motion to Revoke or Amend Magistrate Judge’s Denial of Defendant’s

Motion to Order Recusal;

e Response to Defendant’s Motion to Revoke or Amend Magistrate Judge’s

Denial of Defendant’s Motion to Order Recusal;

e Reply to Government’s Response to Motion to Revoke or Amend Magistrate

Judge’s Denial of Defendant’s Motion to Order Recusal filed; and

e Order by the district judge denying the Motion to Revoke Magistrate Judge’s

Order.

A jury trial of the case began on October 3 and ended on October 5, 2022.

The jury returned verdicts of not guilty on counts 1, 5 and 6. It returned guilty

verdicts on counts 2, 3 and 4.

The Court conducted a sentencing hearing on January 13, 2023. It sentenced

Mr. Anderson 24 months in prison on each of Counts 2 and 3, to run concurrently,

and 120 months in prison on Count 4, to run consecutively to the sentences

imposed on Counts 2 and 3. This resulted in a total sentence of 144 months in

prison. The court also ordered a total of 60 months of supervised release following

the prison term, and a $500 fine. The court entered a judgment reflecting this

sentence on January 27, 2023. The Judgement is attached hereto as Appendix I.

Mr. Anderson appealed the district court’s Judgment to the United States

Court of Appeals for the Fifth Circuit on January 30, 2023. The appeal is assigned

case number 23-60040. The Fifth Circuit entered an Order affirming the district

court’s Judgment on February 21, 2024. It filed a Judgment on the same day. The

Fifth Circuit’s Order and Judgment are attached hereto a composite Appendix 2.

Il. JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Fifth Circuit filed both its Order

and its Judgment in this case on February 21, 2024. This Petition for Writ of

Certiorari is filed within 90 days after entry of the Fifth Circuit’s Judgment, as

required by Rule 13.1 of the Supreme Court Rules. This Court has jurisdiction over

the case under the provisions of 28 U.S.C. § 1254(1).

II. CONSTITUTIONAL PROVISION AND

RULE OF PROFESSIONAL CONDUCT INVOLVED

The sufficiency of the evidence issue implicates the right to a fair trial under

the Sixth Amendment to the United States Constitution. The Sixth Amendment

States:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

The recusal issue must be decided under 1.9 of the Mississippi Rules of

Professional Conduct. Rule 1.9 states:

A lawyer who has formerly represented a client in a matter shall not

thereafter:

(a) represent another in the same or a substantially related matter in which

that person’s interests are materially adverse to the interests of the former

client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the

former client except as Rule 1.6 would permit with respect to a client or

when the information has become generally known.

Rule 1.9, Miss. R. Prof Conduct.

IV. STATEMENT OF THE CASE

A. Basis for federal jurisdiction in the court of first instance.

This case arises out of criminal convictions entered against Mr. Anderson in

federal district court. The court of first instance, which was the United States

District Court for the Southern District of Mississippi, had jurisdiction over the

case under 18 U.S.C. § 3231 because the criminal charges levied against Mr.

Anderson arose from the laws of the United States of America.

B. Statement of material facts.

1. Facts about Mike’s background.

To put the subject convictions in context, we must consider Mr. Anderson’s

background. He is a Native American member of the Choctaw Indian Tribe. He

was one of 11 children. Unfortunately, Mr. Anderson’s mother surrendered him to

foster care when he was four or five years old. Mr. Anderson was in foster care

until he was seven, then he returned home to his mother. But this did not make life

easier because his mother was an alcoholic and his father was a truck driver “who

was ‘gone most of the time.’”

When Mr. Anderson was young, one of his brothers was murdered. Another

brother drowned, and family members blamed Mr. Anderson for the drowning

incident. To cope with life’s stresses, he began drinking alcohol at an early age. He

acknowledges the alcohol problem and is ready to undergo substance abuse

treatment. To his credit, Mr. Anderson has no problem with any other drugs.

Compounding Mr. Anderson’s problems, he was diagnosed with ADHD as a

child. Later, he underwent hip replacement surgery and back surgery. He still

experiences pain from the hip malady.

Notwithstanding his difficult childhood environment, Mr. Anderson

graduated from high school. After that he went to community college for three

semesters.

Mr. Anderson has a solid employment history. He began working at age 18.

Over the years, he worked as a security guard, as a department manager at

Walmart and as a desk clerk at Pearl River Resorts. To support his family Mr.

Anderson periodically worked two jobs and had a side job as a hardwood cutter.

He worked hard “‘to fulfill [his] obligations as a father should.”

Mr. Anderson emersed himself in community events. He helped the

Choctaw Tribe obtain food through Feed America during the COVID-19

pandemic. Also, he has mentored troubled children within the Tribe.

Perhaps the best indicator of Mr. Anderson’s positive influence on his

community is the prosecutor’s own statement at sentencing. The prosecutor stated:

Your Honor, there is no doubt in my mind that Mr. Anderson had the

potential to do good in the community. He is not an uneducated person. He

is a smart man. It’s almost as if the person standing in front of you this

morning is Jekyll and Hyde. Some of what he’s telling you, I do believe.

He's done good in the community. I know he has.

The prosecutor’s “Jekyll and Hyde” comment pertains to a comparison

between all the good that Mr. Anderson has done (Jekyll), and the bad associated

with the subject shooting (Hyde). The district court attributed the “Hyde” aspect of

Mr. Anderson’s character to alcohol consumption. The court stated, “J don’t think

that this crime would have happened had you not been continuing to drink that

night.” As stated above, Mr. Anderson recognizes his problem with alcohol and is

ready to get help to cure his addiction.

2. Facts about the trial.

a. The charges and jury verdicts.

The jury heard evidence about the six charges alleged against Mr. Anderson.

As presented in detail above, count | alleged that Mr. Anderson assaulted Julian

McMillan (hereinafter “Julian’”) with a firearm, with intent to commit murder. The

jury returned a not guilty verdict on this charge.

Counts 2 and 5 alleged that Mr. Anderson committed assault with a firearm

with intent to do bodily injury. The alleged victim in count 2 was Julian, and the

alleged victim in count 5 was Tonya Anderson (hereinafter “Tonya”). The jury

returned a guilty verdict on count 2 and a not guilty verdict on count 5.

Counts 3 and 4 respectively alleged assault resulting in serious bodily injury,

and use of a firearm in furtherance of a crime of violence. Julian was the alleged

victim on both counts, and the jury returned guilty verdicts on both counts.

Finally, count 6 alleged brandishing a firearm in furtherance of a crime of

violence. The jury returned a not guilty verdict on count 6.

b. Evidence presented at trial and at the sentencing hearing.

Tonya made a 911 call to the Choctaw Police Department at 3:30 a.m. on

May 29, 2021. On the call, Tonya states that Mr. Anderson shot her brother-in-law,

Julian (hereinafter “Julian”). She gives the address of the shooting and asks for

help. The prosecution did not call Tonya as a trial witness.

The events of the evening of May 28 and the early morning hours of May

29, 2021, begin with Julian and his girlfriend, Susanna Shoemake (hereinafter

“Susanna”), going to Tonya’s house. Susanna and Tonya are sisters. The three of

them were enjoying a night of drinking when Mr. Anderson called or texted and

asked if someone could bring him a cigarette.

Julian asked Susanna if they could go to Mr. Anderson’s house and take him

a cigarette. Susanna agreed, then she and Julian left in her car. Julian was driving,

even though he did not have a driver’s license. They continued drinking at Mr.

Anderson’s house. When they ran low on alcohol, Mr. Anderson and Julian

decided to go back to Tonya’s house and get more beer and whiskey.

10

Evidence presented at trial is inconsistent regarding where Mr. Anderson

and Julian stopped after leaving Mr. Anderson’s house and before returning to

Tonya’s house. Julian stated that they stopped at Susanna’s mom’s house to use the

restroom and get a cigarette. Mr. Anderson told law enforcement that they stopped

at a crack house. Regardless of which house they stopped at, it is undisputed that

Julian went inside while Mr. Anderson waited in the car.

Mr. Anderson’s and Julian’s next stop was Tonya’s house, where the subject

shooting occurred. Julian was driving Susanna’s car, which had a handgun under

the passenger’s side front seat. The gun belonged to Susanna.

Julian knew the gun was under the car seat. This is important because he has

prior felony convictions for aggravated assault with a deadly weapon, grand

larceny and burglary of an occupied dwelling. When asked about his prior

convictions at trial, Julian stated he has been a felon “since the day I was born.” As

a convicted felon, Julian understood it is illegal to possess a gun.' The prosecution

granted Julian immunity from prosecution in return for his trial testimony against

Mr. Anderson.

! Under this Court’s binding precedent, the concept of “constructive possession” of a gun

extends beyond gun ownership. “Constructive possession is established when a person, though

lacking such physical custody, still has the power and intent to exercise control over the object.”

Henderson v. United States, 575 U.S. 622, 626 (2015).

11

Four people were at Tonya’s house during the shooting. Tonya was there.

She was intoxicated at the time. Tonya’s hearing impaired daughter, Catiea

Anderson (hereinafter “Catiea”), was there. Mr. Anderson and Julian were there as

well.

What actually happened after Mr. Anderson and Julian arrived at Tonya’s

depends on which version of the conflicting witness’ testimonies one chooses to

believe. The district judge recognized the inconsistencies in the evidence presented

against Mr. Anderson. The judge stated, “in candor, none of the witnesses are very

credible[.]”

According to testimony given by both Julian and a nurse that treated him,

Julian said that Mr. Anderson argued with both him and Tonya after arriving at

Tonya’s house. He could not remember what the argument was about. It is

undisputed that Julian was intoxicated at the time.

Julian testified that he tried to get Mr. Anderson back in the car during the

argument. Mr. Anderson purportedly refused his request, then shot Julian multiple

times after retrieving the handgun from under the car seat. According to Julian,

after the shooting Mr. Anderson got in Susanna’s car and left. Then Susanna

returned to Tonya’s house and took Julian to the hospital.

Catiea was the next witness called by the prosecution. As stated above,

Catiea is Tonya’s daughter. Catiea testified that she is “[a]lmost” completely deaf.”

12

In fact, the district court had lengthy discussions with the parties about how to

present Catiea’s testimony to the jury. A review of Catiea’s testimony reveals the

difficulty the parties had with questions presented to her, as well as her answers to

the questions.

Catiea’s testimony was suspect. First she testified that Mr. Anderson came

into the house. Then she testified that Mr. Anderson was outside of the house the

whole time. She testified at trial that Mr. Anderson got beer from Tonya’s house

then carried the beer to Susanna’s car. However, prior to trial she provided a

written statement that Mr. Anderson dropped the beer on the ground before going

to the car and shooting Julian. When confronted with this contradiction at trial,

Catiea admitted she does not remember which rendition of events is correct.

At trial, Catiea testified that Mr. Anderson pressed the handgun against

Tonya’s forehead during the argument. However, in her written statement to law

enforcement, she said nothing about Mr. Anderson putting the gun to Tonya’s

head.

In her trial testimony, Catiea stated that Mr. Anderson fired the gun into the

ground before shooting Julian. However, her prior written statement to law

enforcement says that Mr. Anderson initially fired shots into the air.

13

At trial, Catiea testified that she was “in the car” when she witnessed

gunshots. Then she testified that she does not know where she was when the gun

went off.

It was dark outside during the shooting, which complicated Catiea’s ability

to actually see what happened. Catiea testified to this fact, as did Terrell Allen, the

F.B.I. agent assigned to the case. Liza Ketcher, an officer with the Choctaw Police

Department, testified that when she arrived at the scene at about 3:15 or 3:30 a.m.,

it was dark outside, there were no street lights, and that she could not see clearly

without a flashlight.

The prosecution did not call Tonya as a trial witness. However, her rendition

of the events was presented to the jury through Agent Allen’s testimony. Tonya

told him that Julian fired the gun in the air twice before Mr. Anderson took

possession of it. This is consistent with what Mr. Anderson told Agent Allen. Mr.

Anderson told him that he (Mr. Anderson) heard two shots fired before he blacked

out.

Agent Allen took Mr. Anderson’s statement about the shooting. Mr.

Anderson admitted that he was at Tonya’s house, but he never admitted to

committing any crime. Mr. Anderson told Agent Allen that after he heard two

shots, he blacked out and could not remember what happened after that. Mr.

14

Anderson’s story about the events was consistent throughout the entire

investigation.

Agent Allen obtained a search warrant for Mr. Anderson’s house. He did not

find the gun in Mr. Anderson’s house, and Officer Ketcher did not find the gun in

Susanna’s car. In fact, the gun was never found. However, Agent Allen recovered

the shell casings, but he never ordered a fingerprint analysis of them.

At sentencing, the court granted Mr. Anderson a downward departure.

Justifying the departure, the court stated that evidence presented at trial placed the

gun in Julian’s hand before Mr. Anderson allegedly too possession of it.

Specifically, the court held:

[M]y recollection is that Tonya Anderson did tell Special Agent Allen that

McMillan had the gun first. The defendant said in his interview that

McMillan had the gun first. And when you asked McMillan at trial whether

he had the gun first, he said, “I don’t remember.”

Catiea said -- was the only one that said that he -- that the defendant had the

gun first, but in candor, none of these witnesses are very credible, including

her. And McMillan is the one who knew where the gun was concealed inside

the car. It was essentially his gun. So in light of all of that, especially the fact

that he doesn’t remember whether he -- he couldn’t deny having pulled the

gun out himself. It seems like if it’s a preponderance standard. It seems like

McMillan pulled the gun first, and this is a big issue to me in terms of this

departure.

The jury instruction conference was not transcribed and is not a part of the

record on appeal. However, from the court’s above stated comments at the

15

sentencing hearing, it is apparent that the court believed Mr. Anderson had a viable

self-defense argument.

The court allowed a self-defense jury instruction, and allowed the defense to

argue the issue to the jury. The court charged the jury with the following selfdefense instruction:

[T]he use of force is justified when a person reasonably believes that force is

necessary for the defense of oneself or another against the immediate use of

unlawful force; however, a person must use no more force than appears

reasonably necessary under the circumstances.

Force likely to cause death or great bodily injury is justified in self-defense

only if a person reasonably believes such force is necessary to prevent death

or great bodily harm. The government must prove beyond a reasonable

doubt that the defendant did not act in self-defense.

As presented above, the jury found Mr. Anderson not guilty of all the

charges for which Tonya was the alleged victim. Those charges are stated in counts

5 and 6. It also found him not guilty of assault with intent to murder Julian, which

is alleged in count 1. The jury found Mr. Anderson guilty of the three remaining

counts, all of which pertained to shooting Julian.

At the sentencing hearing, the court granted Mr. Anderson a downward

departure from the Sentencing Guidelines. It granted the departure under U.S.S.G.

§ 5K2.10. This Guidelines provision allows a downward adjustment the sentencing

range when “the victim's wrongful conduct contributed significantly to provoking

16

the offense behavior[.]” U.S.S.G. § 5K2.10 (emphasis added). The “victim” that

engaged in “wrongful conduct” was Julian.

In addition to granting a departure under § 5K2.10, the court ordered a

sentence at the bottom of the Guidelines range because of “mitigating

circumstances[.]” The court did not elaborate on the “mitigating circumstances.”

An overall review of the sentencing hearing transcript, however, indicates that the

court was referring to Julian’s role in the shooting incident.

The court ultimately ordered Mr. Anderson to serve 144 months in prison.

The reasonableness of the sentence is not at issue on appeal.

3. Facts about the recusal issue.

Kevin Payne was the lead prosecutor in this case. From August 2004 until

September 2007, he was a Staff Attorney with Choctaw Legal Defense. The

district court found that Mr. Payne represented Mr. Anderson at a tribal court

arraignment in 2007, a few days before his employment with Choctaw Legal

Services ended. Mr. Payne admitted this in his Declaration submitted to the district

court.

In addition to representing Mr. Anderson at the arraignment, Mr. Payne

represented Mr. Anderson’s father. His father was incarcerated, so Mr. Anderson

and Mr. Payne discussed facts about that case. Mr. Anderson disclosed confidential

information during their discussions.

17

Based on these facts, the defense filed a Motion seeking an order requiring

Mr. Payne to recuse himself from the subject prosecution. The Motion was initially

addressed and denied by the magistrate judge. The defense filed a Motion asking

the district judge to revoke the magistrate judge’s Order. The district judge denied

the Motion.

18

V. ARGUMENT

A. Introduction / review on certiorari should be granted in this case.

Rule 10 of the Supreme Court Rules states, “[rJeview on writ of certiorari is

not a matter of right, but of judicial discretion.” In Mr. Anderson’s case, the

prosecution presented insufficient evidence at trial for reasonable jurors to return

guilty verdicts, Based on the facts of the case, Mr. Anderson acted in self-defense

during the shooting incident. Therefore, we ask this Court to exercise its discretion,

and grant certiorari to protect the important Sixth Amendment right to a fair trial

raised by this case.

Also, certiorari should be granted because of the important ethical issue

raised in Mr. Anderson’s recusal argument. The lower courts allowed a prosecutor

that had previously defended Mr. Anderson to prosecute him in the subject case.

Certiorari should be granted to provide future guidance to all courts on this issue of

ethics.

B. The district court erred by finding that the prosecution produced

sufficient evidence at trial for a reasonable jury to return a guilty verdict

against Mr. Anderson.

1. Applicable law.

A properly preserved sufficiency of the evidence argument is reviewed de

novo. United States v. Moreland, 665 F.3d 137, 148 (Sth Cir. 2011) (citation

omitted). In Moreland, the Fifth Circuit reversed a criminal conviction finding that

19

the evidence presented at trial court was insufficient to support a finding of guilt.

665 F.3d at 154. Of significance to Mr. Anderson’s case, the Moreland court set

forth a roadmap for analyzing sufficiency of the evidence issues.

The Moreland court held, “[i]n deciding whether the evidence was

sufficient, we review all evidence in the light most favorable to the verdict to

determine whether a rational trier of fact could have found that the evidence

established the essential elements of the offense beyond a reasonable doubt.”

Moreland, 665 F.3d at 148-49 (citation omitted). “[I]n viewing the evidence in the

light most favorable to the prosecution, we ‘consider the countervailing evidence

as well as the evidence that supports the verdict in assessing sufficiency of the

evidence.’” /d. at 149 (citation omitted). “[A] verdict may not rest on mere

suspicion, speculation, or conjecture, or on an overly attenuated piling of inference

on inference.” /d. (citations omitted); United States v. Davis, 735 F.3d 194, 198

(Sth Cir. 2013)? (holding that on appellate review, the Court is required “to

consider trial evidence that countervails the jury’s verdict, and allows us to ‘draw

upon only reasonable inferences from the evidence to support the verdict.’”)

(emphasis added; citation omitted). “We also have held that no reasonable jury

could find a defendant guilty of an offense where the ‘evidence gives equal or

? In Davis, the Fifth Circuit reversed the conviction based on insufficiency of the evidence. 735

F.3d at 2021.

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nearly equal circumstantial support to a theory of guilt, as well as to a theory of

innocence.’ Convictions based on such evidence must be reversed.” Moreland, 665

F.3d at 149 /d. (internal and end citations omitted); United States v. Clemons, 700

Fed. App’x 341, 344 (Sth Cir. 2017) (citation omitted).

We can reduce the above holdings from Moreland into the following concise

rules of law:

e the evidence must be reviewed in a light favorable to the guilty verdict;

e however, evidence of innocence must be considered as well;

e a guilty verdict based on speculation or piling inference on inference must

be reversed; and

e if evidence of guilt and innocence are equal or nearly equal, then a guilty

verdict must be reversed.

2. The evidence admitted at trial was insufficient to prove guilt.

a. Introduction.

This Court should grant certiorari and vacate the convictions against Mike

because the prosecution failed to prove beyond a reasonable doubt that Mike

committed any crime. See Moreland, 665 F.3d at 148-49 (citation omitted).

3 In Clemons, the Fifth Circuit vacated the conviction based on insufficiency of the evidence. 700

Fed. App’x at 346.

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Specifically, evidence presented at trial proves that Mike acted in self-defense

during the shooting incident.*

As the court instructed the jury, “[t]he use of force is justified when a person

reasonably believes that force is necessary for the defense of oneself[.]” Trial Tr.,

ROA.826. Further, the court instructed the jury that “[t]he government must prove

beyond a reasonable doubt that the defendant did not act in self-defense.” Id. at

ROA.826 (emphasis added). The prosecution failed to meet its burden to prove that

Mike did not act in self-defense.

b. Proof pertaining to Julian McMillan’s testimony.

Julian appears to be proud of the fact that he is a convicted felon. When

asked about his criminal history at trial, he stated he has been a felon since “the

day I was born.” As a convicted felon, Julian knew that the law prohibited him

from possessing a gun.°

As the district judge stated, Julian “is the one who knew where the gun was

concealed inside the car. It was essentially his gun.” In fact, the prosecution could

have charged Julian with being a felon in possession of a gun. Instead, the

4 The jury found Mike not guilty of all the charges for which Tonya was the alleged victim.

Verdict Form, ROA.337-38. So the self-defense issue pertains solely to the confrontation

between Mike and Julian.

5 See supra, footnote 1.

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prosecution offered him immunity from prosecution in return for his trial testimony

against Mike. This casts doubt on the veracity of Julian’s testimony.

Further casting doubt on Julian’s testimony is his state of mind on the night

of the shooting. Evidence proves that he was intoxicated. Nurse Adkins’ notes

relating to her treatment of Julian state that he was “actually intoxicated[(.]” Her

notes also state “yes” by the phrases “drug use” and “alcohol use[.]”

Julian testified that he attempted to break up the argument between Mike

and Tonya. As he attempted to break up the argument, Julian testified that Mike got

the gun from under the car seat and shot him.

Julian’s contention that Mike is the person who got the gun from under the

car seat is contradicted the district judge’s finding. The district court stated to the

prosecutor, “when you asked McMillan at trial whether he had the gun first, he

said, ‘I don’t remember.’” The court went on to state, “[sJo in light of all of that,

especially the fact that he doesn’t remember whether he -- he couldn’t deny having

pulled the gun out himself. It seems like if it’s a preponderance standard. It seems

like McMillan pulled the gun first[.]” This clearly supports Mike’s self-defense

argument.

In summary, Julian’s testimony was not credible. And the district court

appeared to agree. This is true based on the court’s finding that “none of the

witnesses are very credible[.]”

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