Petition for Writ of Certiorari — Frost v. United States

Supreme Court, U.S.

FILED

«9B AST way 201099

idk CLERK

In The

Supreme Court of the United States

BILLY DALTON FROST,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

Douc tas A. TRANT

Counsel of Record

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

COCKLE LAW BRIEF PRINTING CO., (800) 22

OR CALL COLLECT (402) 342-2831

II.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE DISTRICT COURT ERRED IN NOT

REOPENING THE MATTER BASED ON NEWLY

DISCOVERED EVIDENCE WHEN THE PETITIONER

CLEARLY PRODUCED NEWLY DISCOVERED EVI-

DENCE WHICH WOULD SUBSTANTIALLY

REDUCE HIS SENTENCE.

WHETHER THE MOTION TO REOPEN SHOULD BE

GRANTED WITH THE COURT CONSIDERING SUP-

PRESSION OF EVIDENCE OF ALLEGED COCON-

SPIRATORS’ TESTIMONY WHEN SUCH

TESTIMONY HAD BEEN OBTAINED BY THE GOV-

ERNMENT THROUGH GRANTING SENTENCE

REDUCTIONS TO THE WITNESSES WHICH WERE

THINGS OF VALUE UNDER 18 U.S.C. § 201(c).

il

LIST OF ALL PARTIES TO THE PROCEEDING

The following is a list of all parties to the proceeding

in the United States Court of Appeals for the Fourth

Circuit whose judgment is sought to be reviewed in this

case:

United States of America

Billy Dalton Frost

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

LIST OF ALL PARTIES TO THE PROCEEDING... ii

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SUPREME COURT JURISDICTION................. 1

CONSTITUTIONAL PROVISIONS CONSTRUED.... 1

STATEMENT OF THE CASE.........0..c5005. Te gens |

SUMMARY OF ARGUMENT.....................6- 2

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TABLE OF AUTHORITIES

Page

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OPINIONS BELOW

The United States Court of Appeals for the Fourth

Circuit affirmed the District Court on December 15, 1998,

and is unpublished and has been reproduced in the

Appendix at 2a-3a. The Order from the United States

Court of Appeals for the Fourth Circuit denying the

petition for rehearing was denied on March 8, 1999, and

is unpublished and has been reproduced in the Appendix

at la.

SUPREME COURT JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit was filed on March 8, 1999. This

Petition for Writ of Certiorari is filed pursuant to 28

U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS CONSTRUED

28 U.S.C. § 2255

18 U.S.C. § 201(c)

STATEMENT OF THE CASE

On March 17, 1998, the Petitioner filed a motion to

reopen his petition to vacate his sentence pursuant to 28

U.S.C. § 2255 or, in the alternative, motion for delayed

appeal. On March 20, 1998, the District Court denied his

motion. On March 31, 1998, the Petitioner filed his notice

of appeal to the United States Court of Appeals for the

Fourth Circuit. On July 14, 1998, he submitted his recent

authority, the case of United States v. Singleton, D.C. No.

96-10054-05-FGT (10th Cir. July 1, 1998), from the United

States Court of Appeals for the Tenth Circuit which has

since been vacated and reversed by an en banc decision

that Petitioner would rely on the same argument before

the Supreme Court. On December 15, 1998, the United

States Court of Appeals for the Fourth Circuit affirmed

the District Court. (Appendix at 2a-3a). On December 30,

1998, the Petitioner filed his petition to rehear. On March

8, 1999, the Petitioner’s petition to rehear was denied.

(Appendix at la). |

SUMMARY OF ARGUMENT

It is certainly appropriate for the District Court to

reopen a case when evidence is brought before it which

substantially shows that a Petitioner is innocent of nearly

all the relevant conduct used by the Court in determining

what his sentence should be.

It is also important for the District Court to consider

whether witnesses against the Defendant testified in

return for a thing of value, that is a sentence reduction

given to said witnesses by the government in exchange

for their testimony.

ARGUMENT

I. WHETHER THE DISTRICT COURT ERRED IN

NOT REOPENING THE MATTER BASED ON

NEWLY DISCOVERED EVIDENCE WHEN THE

PETITIONER CLEARLY PRODUCED NEWLY DIS-

COVERED EVIDENCE WHICH WOULD SUB-

STANTIALLY REDUCE HIS SENTENCE.

The Petitioner came into possession of a taped con-

versation of David Ruckart after the petition to vacate his

sentence pursuant to 28 U.S.C. § 2255 had been denied.

From that conversation ample evidence could be pre-

sented that Mr. Frost was a minor player in this alleged

conspiracy and certainly should have far less cocaine

attributed to him than what he was sentenced to. He

should have had, at worst, been attributed to a minimal

role in the conspiracy. He certainly should have been held

accountable for less than five kilograms of cocaine.

In addition, the Court relied on information concern-

ing Larry Roscoe, who gave a sworn statement that Bill

Frost had nothing to do with any cocaine and that Mr.

Roscoe told Agents Taylor and Assistant United States

Attorney Ken Bell that Mr. Frost had nothing to do with

any cocaine in his presence. (Appendix at 4a).

Il. WHETHER THE MOTION TO REOPEN SHOULD

BE GRANTED WITH THE COURT CONSIDERING

SUPPRESSION OF EVIDENCE OF ALLEGED

COCONSPIRATORS’ TESTIMONY WHEN SUCH

TESTIMONY HAD BEEN OBTAINED BY THE

GOVERNMENT THROUGH GRANTING SEN-

TENCE REDUCTIONS TO THE WITNESSES

WHICH WERE THINGS OF VALUE UNDER 18

U.S.C. § 201(c).

The Petitioner would ask this Court to consider as

well whether 18 U.S.C. § 201(c) prohibits prosecutors for

the government for giving things of value, that is sen-

tence reductions in exchange for the testimony of wit-

nesses. The Petitioner would rely on the very sound

reasoning and judgment of the original panel of the Tenth

Circuit in United States v. Singleton which was vacated

and reversed by the Court en banc, but is the sound

reasoning upon which 18 U.S.C. § 201(c) should be inter-

preted.

CONCLUSION

For all the foregoing reasons, it is respectfully sub-

mitted that the Petition for Writ Certiorari should be

granted.

Doucias A. TRANT

Counsel of Record

900 S. Gay Street

Suite 1502

Knoxville, TN 37902

(423) 525-7980

APPENDIX

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

March 8, 1999

No. 98-6479

CR-92-253

CA-95-265-3-P

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

BILLY DALTON FROST

Defendant - Appellant

ORDER

The appellant has filed a petition for rehearing.

The Court denies the petition for rehearing.

For the Court,

/s/ Patricia S. Connor

CLERK

—

2a

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-6479

UNITED STATES CF AMERICA,

Plaintiff-Appellee,

versus

BILLY DALTON FROST,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of North Carolina, at Charlotte. Robert

D. Potter, Senior District Judge. (CR-92-253, CA-95-265-3-

P)

Submitted: November 5, 1998 Decided: December 15,

1998

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Douglas A. Trant, TRANT & ASSOCIATES, Knoxville,

Tennessee, for Appellant. Kenneth Davis Bell, OFFICE OF

THE UNITED STATES ATTORNEY, Charlotte, North Car-

olina, for Appellee.

Unpublished opinions are not binding precedent in this

circuit.

See Local Rule 36(c).

PER CURIAM:

Billy Frost appeals the district court’s order denying

his motion filed under 28 U.S.C. § 2255 (1994) (current

version at 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)),

and his application for a writ of Audita Querela under 28

U.S.C. § 1651 (1994). We have reviewed the record and

the district court’s opinion and find no reversible error.

Accordingly, we affirm on the reasoning of the district

court. United States v. Frost, Nos. CR-92-253; CA-95-265-3-

P (W.D.N.C. Mar. 23, 1998). We dispense with oral argu-

ment because the facts and legal contentions are ade-

quately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

4a

To whom it may concern:

It has come to my attention that it has been said that I

sold Bill Frost 2 kilos of cocaine. I took United States

Customs Agent Ron Fay and United States Ken Bell in a

sworn statement that Bill Frost went into the other room

when he come into our home. I never saw him buy any

drugs from anybody. I never at any time sold Bill Frost

anything.

Larry Roscoe

6/10/95

BEFORE ME APPEARED LARRY ROSCOE, THIS 10TH

DAY OF JUNE, 1995, AND WHO SIGNED THE ABOVE

STATEMENT.

STATE OF NORTH CAROLINA

COUNTY OF IREDELL

/s/ Kay Helms |

NOTARY

[SEAL]

Mc Commission Expires: 2/1/96