Reply Brief — Kasi v. Virginia

© WN 8 9m

No. 98-1812

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

MIR AIMAL KASI

Petitioner,

vs.

COMMONWEALTH OF VIRGINIA

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITIONER’S REPLY BRIEF

James Coyne King

Counsel of Record

Elwood Earl Sanders, Jr. Laurie J. Hurtt

Commonwealth of Virginia HANIFY & KING

Public Defender Commission Professional Corporation

701 East Franklin Street One Federal Street

Richmond, VA 23219 Boston, MA 02110

(804) 225-3297 (617) 423-0400

Of Counsel Counsel for Petitioner

Ce AM in ape HE RET

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

PETITIONER’S REPLY BRIEF

The Court has jurisdiction to issue certiorari to the

Supreme Court of Virginia on petitioner’s Question 4. This Reply

is necessary because respondent incorrectly contends in its Brief in

Opposition that petitioner waived his claim underlying Question 4

by inadequately presenting it in his appellate brief to the Virginia

Supreme Court. Respondent’s Brief in Opposition at 20-21.

Respondent also states that in any event, petitioner waived his

claim with respect to the Federal Bureau of Investigations (“FBI”).

Id. at 19-20.

Contrary to respondent’s assertions, the federal question

presented by petitioner’s Question 4 was ruled upon by the

Virginia Supreme Court. Respondent argued to the Virginia

Supreme Court that petitioner had waived review of the claim

presented by Question 4, Supplemental Appendix at 2-3, but the

court rejected respondent's waiver argument and held:

“We have considered these so-

called arguments [Assignments

of Error Numbers 2 and 73] and

find no merit in...them.”

Appendix at 4, § 2.'

‘ Compare Appendix at 4, | (the court addressing other

arguments raised by petitioner ruled “[petitioner] assigned 92

errors allegedly committed by the trial court...and has not argued

many of them...; hence, they are waived and will not be

The Virginia Supreme Court’s ruling addressed the trial

court’s orders with regard to documents held by both the CIA and

the FBI. Appendix at 4, 4 2; see also Assignments of Error

Numbers 2, 3, 30, 73 and 88 at Supplemental Appendix at 1.

Petitioner's Assignments of Error Number 73 states: “The [trial

court] erred in denying [petitioner’s] motion to compel discovery

when the material in the custody of agents of the Federal

Government and the Commonwealth’s Attorney did not even

attempt to investigate what that evidence was since these Federal

Agents stated the information was classified and confidential.”

Supplemental Appendix at 9

Admittedly, petitioner's assignments of error and

accompanying argument are not elaborate. Nor need they be. Beck

v. Alabama, 447 U.S. 625, 630-631, n. 6 (1979); see Lebron v.

National R.R. Corp., 513 U.S. 374, 379 (1995) (“[o]ur practice

‘permit[s] review of an issue not pressed so long as it has been

passed upon....” ”, quoting United States v. Williams, 504 U.S. 36,

41 (1992)). However, the record from the trial court—also before

the Virginia Supreme Court—clears any ambiguity and shows that

the constitutional question at stake in Question 4 was directly and

vehemently contested. See Appendix at 67 (“I don’t find there’s

any jurisdiction of a state court to hold a federal official in

contempt for failing to respond to a state court’s subpoena”), 362-

385, 399-422. Because the record shows ample factual and legal

debate on the federal issue presented in Question 4, the Virginia

considered”). Assignments of Error Numbers 2 and 73 were not

among the errors waived.

Supreme Court was able to, and this Court can and should, fully

consider the issue. See Illinois v. Gates, 462 U.S. 213, 223 (1983)

(existence of adversarial dispute in record indicates that appellate

court's decision on federal question is informed).

Wherefore, petitioner respectfully requests that the Court

grant the Petition for a Writ of Certioran.

Respectfully submitted,

Elwood Earl Sanders, Jr.

Commonwealth of Virginia HANIFY & KING

Public Defender Commission Professional Corporation

701 East Franklin Street One Federal Street

Richmond, VA 23219 Boston, MA 02110

(804) 225-3297 (617) 423-0400

Of counsel Counsel for Petitioner

June 7, 1999

256361

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SUPPLEMENTAL APPENDIX

SUPPLEMENTAL APPENDICES A AND B

SUPPLEMENTAL APPENDICES

TABLE OF CONTENTS

SUPPLEMENTAL APPENDIX A

Excerpt from Opening Brief of Appellant submitted by

Petitioner to the Virginia Supreme Court dated July 2,

a eg EFS LEN ee et ee Se

SUPPLEMENTAL APPENDIX B

Excerpt from Brief of the Commonwealth submitted

by Respondent to the Virginia Supreme Court dated

August 12, 1998 [Pages 10-11] oo... cee. sii 2

SUPPLEMENTAL APPENDIX A

Excerpt from Opening Brief of Appellant submitted by Petitioner

to the Virginia Supreme Court dated July 2, 1998:

30.

73.

88.

ASSIGNMENTS OF ERROR

The Circuit Court erred in not holding the CIA in contempt

for failure to respond to a valid subpoena.

The Circuit Court erred in forbidding certain questions at

the 20 October 1997 suppression hearing as to the

involvement in the forcible abduction by foreign nationals.

The Circuit Court erred in refusing to permit counsel for

Kasi to examine the notes Agent Garrett used to refresh his

recollection prior to his testimony.

The Circuit Court erred in denying defendant Kasi's

motion to compel discovery when the material in the

custody of agents of the Federal Government and the

Commonwealth's Attorney did not even attempt to

investigate what that evidence was since these Federal

agents stated the information was classified and

confidential.

The Circuit Court erred in not holding that the

Commonwealth had duty to give notice in advance of the

existence of certain classified information prior to the 27

October 1997 hearing on the motion to suppress

SUPPLEMENTAL APPENDIX B

Excerpt from Brief of the Commonwealth submitted by

Respondent to the Virginia Supreme Court dated August 12, 1998:

[Pages 10-11]

II. KASI HAS WAIVED ALL OF THE ASSIGNMENTS

OF ERROR THAT HE HAS FAILED TO BRIEF

An appellant waives any assignment of error that he fails

to brief in a meaningful fashion. See Barnabei v. Commonwealth,

252 Va. 161, 165 n.1, 477 S.E.2d 270, 272 n.1 (1996), cert. denied,

117 S.Ct. 1724 (1997); Rule 5:27. Kasi has failed to address

Assignments of Error 5, 14, 15, 17, 20, 21, 25, 26, 28, 32, 47, 61,

73, 77, 78, 79, 80, 91, and 92 in any fashion.' Moreover, his brief

does no more than simply articulate Assignments of Error 2, 7, 16,

18, 19, 22, 23, 24, 27, 29, 30, 437, 45, 51, and 54 in a completely

conclusory manner. (Def. Br. 3 n.2; 33 n.29; 41n.35). All of the

' Assignment of Error 91 which Kasi filed in this Court on May 1,

1998, challenged the trial court’s decision to permit a camera in the

courtroom. Assignment 92 concerned the dismissing of a show

(INS). In the list of Assignments that Kasi has included in his brief,

however, he has dropped the former No. 91 and renumbered the

former No. 92 as No. 91. See Sheppard vy. Commonwealth, 250 Va.

379, 385, 464 S.E.2d 131, 135 (1995) (improper to change

Assignments of Error), cert. denied, 517 U.S. 1110 (1996). In any

event, neither claim has been briefed and, therefore, both are waived.

? Even if this claim were not defaulted, it has no merit. See Cox v.

Commonwealth, 227 Va. 324, 329 n.4, 315 S._E.2d 228, 231.4

(1984) (subpoena duces tecum in criminal case does not apply to

material in possession of investigating arm of the Commonwealth).

assignments, therefore, are waived by Kasi’s failure to present any

argument or citation of authority in support of his claims.’

; Several of the claims Kasi has failed to brief are doubly defaulted

because, even if he had briefed them, he failed to preserve them at

trial. For example, with respect to Assignment of Error 15, Kasi

expressly stated on the record that he had “no objection” to Detective

Miller’s testimony as an expert regarding bullets traveling through

automobile glass. (App. 3187). Rule 5:25. Likewise defaulted is

Assignment 22 because Kasi expressly stated that he had no

objection to the admissibility of Commonwealth’s Exhibit 32. (App.

3253). Rule 5:25. And, Assignments 14 and 28 are waived because,

after Kasi’s objections to the documents in question were overruled,

he proceeded to elicit information from the same documents which

he considered to be favorable to his case. (App. 3156-59, 3404).

See generally Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d

875, 879 (1992) (objection waived by introducing evidence “of the

same character”).