Petition for Writ of Certiorari — Ross v. United States

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SPECK ARON ROSS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

. NANCY HOLLANDER, ESQ.

Counsel of Record for Petitioner

FREEDMAN, BOYD, DANIELS, PEIFER,

HOLLANDER, GUTTMANN & GOLDBERG, PA.

20 First Plaza, Suite 700

Albuquerque, New Mexico 87102

(505) 842-9960

QUESTIONS PRESENTED

I. The Tenth Circuit Court of Appeals’ decision conflicts

with this Court's decision in United States v. Agurs, 427 U.S. 97

(1976) and the Second Circuit Court of ‘Appeals’ decision in

United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) because the

Tenth Circuit applicd an incorrect standard requiring that it

appear beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained, rather than the correct

standard, enunciated by this Court, that a conviction obtained by

the knowing use of perjured testimony be set aside if there is any

reasonable likelihood that the false testimony could have affected

the judgment of the jury.

A. The prosecutor knowingly elicited false

testimony from the government’s star informant denying the

informant’s previous discussions with the prosecutor about the

forfeiture proceedings against him and argued the false testimony

during closing argument. Did this prosecutorial misconduct deny

petitioner a fair trial?

B. The prosecutor knowingly elicited false

testimony regarding the explanation of the star government

informant’s drug-positive urine tests. The prosecutor then

attempted to bolster that false testimony through his impeachment

of an expert witness whom the prosecutor knew or should have

known was truthful. Finally, the prosecutor mischaracterized the

expert witness’s testimony during closing argument. Did this

prosecutorial misconduct deny petitioner a fair trial?

II. The prosecutor’s closing argument impugned defense

counsel's motives notwithstanding the trial court’s ruling that

defense counsel properly questioned the government’s star

informant about his cooperation agreement. Did this

prosecutorial misconduct deny petitioner a fair trial?

TABLE OF CONTENTS

QUESTIONS PRESENTED .................ccccce. i

TABLE OF AUTHORITIES ....................... vi

og gs, Se mr ele Rn 2

ba interes sah acces cist REE TEE enh 2

CONSTITUTIONAL PROVISION INVOLVED ......... 2

STATEMENT OF THE CASE ..... 0... ccc ccc cc ccce 3

REASONS FOR GRANTING THE WRIT ............. 7

I.

THE TENTH CIRCUIT COURT OF APPEALS’

DECISION CONFLICTS WITH THIS COURT'S

DECISION IN UNITED STATES V. AGURS, 427 U.S. 97

(1976), AND THE SECOND CIRCUIT COURT OF

APPEALS’ DECISION IN UNITED STATES V.

WALLACH, 935 F.2D 445 (2D CIR. 1991) BECAUSE

THE TENTH CIRCUIT APPLIED AN INCORRECT

STANDARD REQUIRING THAT IT APPEAR

BEYOND A REASONABLE DOUBT THAT THE

ERROR COMPLAINED OF DID NOT CONTRIBUTE

TO THE VERDICT OBTAINED, RATHER THAN

THE CORRECT STANDARD, ENUNCIATED BY

THIS COURT, THAT A CONVICTION OBTAINED

BY THE KNOWING USE OF PERJURED

TESTIMONY BE SET ASIDE IF THERE IS ANY

REASONABLE LIKELIHOOD THAT THE FALSE

TESTIMONY COULD HAVE AFFECTED THE

JUDGMENT OF THE JURY .................. 7

IT.

A. THE PROSECUTOR KNOWINGLY ELICITED

FALSE TESTIMONY FROM THE

GOVERNMENT'S STAR INFORMANT

DENYING THE INFORMANT’S PREVIOUS

DISCUSSIONS WITH THE PROSECUTOR

ABOUT THE FORFEITURE PROCEEDINGS

AGAINST HIM AND ARGUED THE FALSE

TESTIMONY DURING CLOSING

ARGUMENT. THIS PROSECUTORIAL

MISCONDUCT DENIED PETITIONER A

PON PINS Gs be hve e rennet ee 8

B. THE PROSECUTOR KNOWINGLY ELICITED

FALSE TESTIMONY REGARDING THE

EXPLANATION‘ OF THE STAR

GOVERNMENT INFORMANT’S DRUG-

POSITIVE URINE TESTS. THE

PROSECUTOR ATTEMPTED TO BOLSTER

THAT FALSE TESTIMONY THROUGH HIS

IMPEACHMENT OF AN EXPERT WITNESS

WHOM HE KNEW OR SHOULD HAVE

KNOWN WAS TRUTHFUL. THE

PROSECUTOR MISCHARACTERIZED THE

EXPERT WITNESS’S TESTIMONY DURING

CLOSING ARGUMENT. THIS

PROSECUTORIAL MISCONDUCT DENIED

PETITIONER A FAIR TRIAL .......... 4

THE PROSECUTOR’S CLOSING ARGUMENT

IMPUGNED DEFENSE COUNSEL’S MOTIVES

NOTWITHSTANDING THE TRIAL COURT'S

RULING THAT DEFENSE COUNSEL PROPERLY

QUESTIONED THE GOVERNMENT’S STAR

WITNESS ABOUT HIS COOPERATION

AGREEMENT. THIS PROSECUTORIAL

MISCONDUCT DENIED PETITIONER A FAIR

Li Sear eee egy ne erent rennet, 20

Pe Rayon Ao ene 25

APPENDIX

TABLE OF AUTHORITIES

CASES:

Alcorta v. Texas, 355 U.S. 28 (1957) ...........-..0 2... 8

Anzona v. Fulminante, 111 S. Ct.

SNE BCS KENNEL DO Ke dkbGeuwkeecbendnay 20

California v. Trombetta, 467 U.S.

NE Se Wise ao edb div ce skwi du eluceeu 19

Giglio v. United States, 405 U.S.

pt Sete | ee ee ee ee 9

Imbler v. Pachtman, 424 U.S. 409 (1976) ............... 19

Mooney v. Holohan, 294 U.S. 103 (1935) ............... =

Napue v. Illinois, 360 U.S.

MIA Pei cinta suck coin cewkaen actus m 21, iS

United States v. Agurs, 427 U.S.

saci, coun EEE OTE Tee Pr Pe aD l, ili, 7, 10, 14

United States v. Young, 470 U.S. 1 (1985) ............... 24

Yates v. Evatt, 111 S. Ct. 1884 (1991) .............. 13, 15

Perkins v. Le Feure, 691 F.2d 616

ee I Sood ae's 550 04% ca Cece 10

United States v. Arbizo, 833 F.2d 244

(UO A WUE: oo Gan Sac ep chadbenve cxeecccus 22, 23

-vi-

TABLE OF AUTHORITIES (Continued)

United States v. Dickey, 736 F.2d 571 (10th Cir.),

cert. denied, 469 U.S. 1188 (1985) ................... 23

United States v. Kaplan, 470 F.2d 100 (7th Cir. 1972),

cert. denied, 410 U.S. 966 ISS SS eee 11

United States v. Pena, 930 F.2d 1486

Rt eye... ... 8...

United States v. Rios, 611 F.2d 1335

See EN... ..... 8.8...

United States v. Siviglia, No. 76-1914

(10th Cir., June 5, 1978) (unpublished) .............. 22

United States v. Stofsky, 527 F.2d 237

wd , 85

United States v. Wallach, 935 F.2d 445

Re) a 1, lii, 7, 10, 11, 12, 15

RULES:

wi cr 2

OTHER AUTHORITIES

ABA Standards for Criminal Justice. CC 8

ABA Standards for Criminal Justice, § 3-5.7(b) .......... 17

-Vii-

TABLE OF AUTHORITIES (Continued)

CONSTITUTIONAL PROVISION

U.S. Const. Amend. V .. 0.0.02... 2

STATUTORY PROVISIONS

slicer ath Sone, REET TE Tee 2

-Vili-

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SPECK ARON ROSS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

The petitioner Speck Aron Ross respectfully requests that

this Court issue its writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the Tenth

Circuit, entered in the above-entitled proceeding on July 2, 1992.

——— ee

OPINIONS BELOW

The opinion of the Tenth Circuit is reported, United States

v. Langston, et. al, No. 91-2024, 1992 WL 148204 (10th Cir.

1992), and is reproduced in the appendix at App. 1-36.

JURISDICTION

The judgment to be reviewed was entered on July 2, 1992.

Jurisdiction is conferred on this Court by 28 U.S.C. § 1254(1) and

Rule 10.1, Supreme Court Rules. The basis for federal

jurisdiction in the district court was 18 U.S.C. § 3231.

CONSTITUTIONAL PROVISION INVOLVED

Fifth Amendment to the United States Constitution:

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.

STATEMENT OF THE CASE

On November 14, 1989, Petitioner Speck Aron Ross

(hereinafter "Ross") was indicted for conspiracy to manufacture

more than 500 grams of amphetamine, manufacturing more than

500 grams of amphetamine and possession with intent to distribute

more than 500 grams of amphetamine. On January 15, 1989, Ross

was convicted on all three counts and sentenced to 168 months.

Doc. 299, Judgment. Joseph Milton "Mitt" Lloyd was the

government's star witness and the informant in this case. Lloyd

managed a 56,000 acre ranch, known as the CA Ranch, located

near Las Vegas, New Mexico, which his grandfather had left in

trust for him and his three siblings. Tr. Vol. II. at 173-74,

Lloyd was arrested by state police officers leaving the CA

Ranch on July 16, 1989. Tr. Vol. III at 311. Searching the trunk,

the officer found a plastic garbage bag containing approximately

11 pounds of amphetamine. Tr. Vol. VII at 1319: App. 6. State

police officers then executed a search warrant for the CA Ranch

where they seized an additional one pound of amphetamine and

‘3

lab equipment. Tr. Vol. IV at 751-53; App. 6.

Lloyd was later charged with possession with intent to

distribute amphetamine and other related charges. In October,

1989, he entered into a cooperation agreement with the

government which reduced his potential incarceration from

approximately 20 years to approximately 2 years. Defendant’s

Exhibit K; Tr. Vol. II at 175; Tr. Vol. III at 495-96, 499: App. 7.

Lloyd provided the government with Ross’s name and Ross was

arrested.

At the same time the criminal prosecution ot Lloyd was

underway in the fall of 1989, the government was preparing a

collateral civil proceeding to forfeit Lloyd's interest in the CA

Ranch. Tr. Vol. III at 465, 497; App. 15. During the trial, the

prosecutor asked Lloyd, "Did you at any time discuss or negotiate,

with an individual in the U.S. Attorney's office, any matter relating

to the forfeiture?" To which Lloyd replied, "No, I did not.” Tr.

Vol. II at 178; App. 15. The same prosecutor who elicited this

testimony, AUSA Presiliano Torrez, had discussed the forfeiture

-4.

with Lloyd the previous day. Tr. Vol. III at 482. Under cross-

examination, Lloyd conceded that his direct testimony was "[nJot

entirely true." Tr. Vol. III at 347; Tr. Vol III at 482; App. 15.

Ross moved the court to dismiss the charges based on

prosecutorial misconduct, which the court denied. Tr. Vol. IV at

552-557. The prosecutor argued the perjured testimony regarding

the forfeiture in closing when he told the jury that "somehow

there is an insinuation that there is a promise in terms of the

forfeiture . . . There are no side deals in a criminal case." Ross

objected to the false statement and the trial court instructed the

jury to disregard the statement. Tr. Vol. X at 1828. Lloyd also

admitted that while under pre-trial supervision, three random

urinalyses which he had submitted had been positive for controlled

substances, one of which was for amphetamine. Tr. Vol. III at

316, 424-25. The prosecutor elicited that Lloyd had been

receiving a sinus medication from his doctor that Lloyd claimed

could have caused the false positive results. Tr. Vol. III at 317,

424-25; Government Exhibit 45.

5.

During the defense case, Dr. David Fretthold. the

scientific director of Pharmchem Laboratories. the company that

holds government contracts for drug testing throughout the

United States, testified that the medication Lloyd claimed he took

would not have caused the positive test result for amphetamine.

Tr. Vol. VIII at 1463. On crOss-examination, the prosecutor

attempted to impeach Dr. Fretthold by asking him to assume that

Lloyd had ingested Vicks Inhaler even though the record

contained no evidence that Lloyd had ever used a Vicks [nhaler.

App. 18. He asked Dr. Fretthold if it were possible that his tests

could be inaccurate as a result of the ingestion of Vicks Inhaler.

Dr. Fretthold testified unequivocally that the Vicks Inhaler would

not cause a false positive amphetamine test. Tr. Vol. VIII at

1491. Dr. Fretthold believed that Lloyd had used amphetamines

during the time he was on pre-trial release. Tr. Vol. VIII at 1496.

The prosecutor argued the impeachment testimony

regarding the urine tests in closing. Ross timely objected on the

ground that the argument was a misstatement of the evidence.

6-

The trial court agreed but did not instruct the jury to disregard

the statement. "As I recall that is how it was. The jury will recall

the evidence." Tr. Vol. VIII at 1841-42.

The prosecutor also argued that Ross’s counsel had "an

improper purpose" (Tr. Vol. IX at 1638) when she cross-examined

Lloyd to show the sentence Ross would have faced without the

benefit of his cooperation agreement with the government,

although the trial court had overruled the prosecutor's objection

to this line of cross-examination. Tr. Vol. III at 491. Ross moved

for a mistrial which the trial court denied. Tr. Vol. IX at 1640.

REASONS FOR GRANTING THE WRIT

I. | THE TENTH CIRCUIT COURT OF APPEALS’

DECISION CONFLICTS WITH THIS COURTS

DECISION IN UNITED STATES V. AGURS, 427 US. 97

(1976) AND THE SECOND CIRCUIT COURT OF

APPEALS’ DECISION IN UNITED STATES V.

WALLACH, 935 F.2D 445 (2D CIR. 1991), BECAUSE

THE TENTH CIRCUIT APPLIED AN INCORRECT

STANDARD REQUIRING THAT IT APPEAR

BEYOND A REASONABLE DOUBT THAT THE

ERROR COMPLAINED OF DID NOT CONTRIBUTE

TO THE VERDICT OBTAINED, RATHER THAN

THE CORRECT STANDARD ENUNCIATED BY

THIS COURT, THAT A CONVICTION OBTAINED

x

BY THE KNOWING USE OF PERJURED

TESTIMONY BE SET ASIDE IF THERE IS ANY

REASONABLE LIKELIHOOD THAT THE FALSE

TESTIMONY COULD HAVE AFFECTED THE

JUDGMENT OF THE JURY.

A. THE PROSECUTOR KNOWINGLY ELICITED

FALSE TESTIMONY FROM THE

GOVERNMENT’S STAR INFORMANT

DENYING THE INFORMANT’S PREVIOUS

DISCUSSIONS WITH THE PROSECUTOR

ABOUT THE FORFEITURE PROCEEDINGS

AGAINST HIM AND ARGUED THE FALSE

TESTIMONY DURING CLOSING

ARGUMENT. THIS PROSECUTORIAL

MISCONDUCT DENIED PETITIONER A

FAIR TRIAL.

This court has held that the government has a

constitutional duty to alert the defense when one of its witnesses

gives false testimony. Mooney v. Holohan, 294 U.S. 103 (1935).

The prosecutor also has a duty to correct false testimony from one

of its witnesses. Alcorta v. Texas, 355 U.S. 28 (1957); ABA

Standards for Criminal Justice, § 3-5.6(a) (“It is unprofessional

conduct for a prosecutor knowingly to offer false evidence, . . . or

fail to seek withdrawal thereof upon discovery of its falsity"). This

duty to correct false testimony extends to testimony that relates

-8-

solely to the witness’s credibility. Napue v. Illinois, 360 U.S. 264

(1959). Even if the prosecutor is not actually aware of his

witness’s perjury but he "should have known" of the perjury, he

violates the defendant’s right to due process by presenting the

false testimony. Giglio v. United States, 405 U.S. 150 (1972). In

the instant case, the government not only knew of the falsity, it

was the prosecutor who knowingly presented false testimony

concerning the forfeiture proceedings against the informant

Lloyd’s property.

The Tenth Circuit Court of Appeals incorrectly employed

the standards set out by this Court and erroneously held that

Lloyd’s perjurious testimony, concerning the forfeiture of the CA

Ranch was not material. The court held that the applicable test

"is whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” App.

16 (citations omitted). This Court has consistently held, however,

“that a conviction obtained by the knowing use of perjured

testimony . . . must be set aside if there is any reasonable

-9-

likelihood that the false testimony could have affected the

judgment of the jury." United States v. Agurs, 427 U.S. 97, 103

(1976). Therefore, the Tenth Circuit did not apply the correct

standard in this case.

In United States v. Wallach, 935 F.2d 445 (2d Cir. 1991),

the Second Circuit correctly applied the Agurs test and reversed

the defendant's eunviction. The Second Circuit recognized that

there are two standards of review that are utilized in determining

whether the introduction of perjured testimony requires a new

trial. If the prosecution knew or should have known of the

perjury, the conviction must be set aside "if there is any

reasonable likelihood that the false testimony could have affected

the judgment of the jury.” Wallach at 456 (quoting Perkins vy.

LeFevre, 691 F.2d 616, 619 (2d Cir. 1982)) (quoting United States

v. Agurs, 427 U.S. 97, 103 (1976)). Moreover, "if it is established

that the government knowingly permitted the introduction of false

testimony reversal is ‘virtually automatic,” Id., quoting United

States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975) (citing Napue v.

-10-

Illinois, 360 U.S. 264, 269 (1959)) (emphasis added). Where the

government is unaware of the perjury a new trial must be granted

"if the testimony was material and the court is left with a firm

belief that but for the perjured testimony, the defendant would

most likely not have been convicted.” Wallach at 456 (citations

omitted).

In the instant case the government was aware of the

perjury. Tr. Vol. III at 482: App. 16. Therefore, the first

standard applies here and this Court must reverse because there

is a reasonable likelihood that the perjury could have affected the

judgment of the jury.

The Tenth Circuit appeared to rely on the fact that

defense counsel had an Opportunity to cross-examine and impeach

Lloyd. In United States v. Kaplan, 470 F.2d 100 (7th Cir. 1972),

cert. denied, 410 U.S. 966 (1973), the Seventh Circuit rejected the

government's argument that other impeachment evidence nullified

its use of and failure to correct false testimony concerning

whether a witness had been promised anything in exchange for his

atts

full cooperation. That court, applying the correct standard from

Agurs, held that the government's failure to disclose the falsity of

its witness's testimony constituted constitutional error. "[G]iven

the strict standards advanced for reviewing prosecutorial

misconduct of this type," the court granted a new trial on the

charge which may have been affected by the false testimony. Id.

at 103 (emphasis added).

In Wallach, as here, the perjurious witness was the witness

most critical to the government's case. In Wallach. as here, the

government gave the jury the impression that the witness.

although a criminal himself, had decided to tell the truth now.

The most egregious misconduct, in Wallach. as here, was

the prosecutor’s act of vouching for the witness’s credibility in

closing argument. After Lloyd admitted that he had discussed his

forfeiture with the prosecutor, the defense introduced a letter

trom AUSA Roger Copple to Lorenzo Garcia, counsel for the

trust that owned the CA Ranch. The letter said inter alia, "The

cooperation of Joseph M. Loyd [sic] with criminal division and the

$2.

results of such cooperation may effect [sic] the position of the

United States with respect to the forfeiture." Defendant's Exhibit

J; Tr. Vol. III at 468. Incredibly, the prosecutor argued in closing

that there "are no side deals in a criminal case." Tr. Vol. at 1827-

28. This calculated attempt to vitiate the impeachment of Lloyd's

perjurious testimony only compounded the misconduct created by

eliciting the perjury in the first place. The Tenth Circuit did not

even discuss the closing argument misconduct; therefore, the court

failed to analyze the error flowing from the prosecutor's closing

argument misconduct regarding the forfeiture.

The Tenth Circuit's conclusion that Lloyd’s statement was

not reversible error because it "did not contribute to the verdict",

citing Yates v. Evatt, 111 S. Ct. 1884 (1991) (App. at 17), applies

the wrong standard and ignores the facts of this case. Lloyd was

the government's star witness. Without Lloyd the government

would never have known about Ross. Without Lioyd the

government could not make a case against Ross. Bolstering its

primary evidence against Ross, the government knowingly elicited

<o.

perjured testimony and then knowingly argued the same perjury.

The appellate court answered the wrong question when it held

that Lloyd’s perjurious statements were not material. The correct

question was whether Lloyd’s statement and the government's use

of that statement "could have affected the judgment of the jury."

United States v. Agurs, 427 U.S. 97, 103 (1976). Applying that

standard, this Court should reverse Ross's conviction.

B.

THE PROSECUTOR KNOWINGLY ELICITED

FALSE TESTIMONY REGARDING THE

EXPLANATION OF THE STAR

GOVERNMENT INFORMANT’S DRUG-

POSITIVE URINE TESTS. THE

PROSECUTOR ATTEMPTED TO BOLSTER

THAT FALSE TESTIMONY THROUGH HIS

IMPEACHMENT OF AN EXPERT WITNESS

WHOM HE KNEW OR SHOULD HAVE

KNOWN WAS TRUTHFUL. THE

PROSECUTOR MISCHARACTERIZED THE

EXPERT WITNESS’S TESTIMONY DURING

CLOSING ARGUMENT. THIS

PROSECUTORIAL MISCONDUCT DENIED

PETITIONER A FAIR TRIAL

The Tenth Circuit found no reversible error in the

prosecutor's use of false testimony about Lloyd's pretrial drug use,

the prosecutor’s attempt to impeach a truthful expert witness

-14-

=

about the drug use and the prosecutor’s mischaracterization of the

truthful expert’s testimony during closing argument. App. 17-18.

The court applied the same erroneous analysis it applied to the

misconduct regarding the forfeiture proceedings: "Assuming

Lloyd’s testimony was false, we are satisfied that his denial of

pretrial amphetamine use, and his attempted explanation for the

positive test results, did not contribute to the verdict under the

Yates v. Evatt test". App. 17. However, again, "the government

knowingly permitted the introduction of false testimony

[therefore,] reversal is ‘virtually automatic,” United States v.

Wallach, 935 F.2d 445, 456 (2d Cir. 1991), quoting United States

v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975) (citing Napue v.

Illinois, 360 U.S. 264, 269 (1959)) (emphasis added).

The prosecutor misled this jury into believing that his

principal government witness did not possess and use controlled

substances, indeed the very same controlled substance which these

-15-

’

defendants were charged with manufacturing.' First, the

prosecutor allowed Lloyd to commit perjury by denying that he

was using amphetamines during the time he was on pre-trial

release and submitted drug-positive urine tests. Then the

prosecutor bolstered that perjury by impeaching Dr. Fretthold,

whom he knew was a truthful witness. The prosecutor knew that

Dr. Fretthold’s drug tests were accurate. The prosecutor knew

that Dr. Fretthold testified throughout the country on behalf of

the government based on his drug tests. The prosecutor knew the

government vouched for Dr. Fretthold’s drug tests on a daily basis.

Yet, the prosecutor led this jury to believe that Dr. Fretthold’s

tests were inaccurate in this case. He engaged in this misconduct

to avoid the obvious problems presented by the government’s star

witness possessing and using illegal drugs during the time he was

working for the government preparing this case against Ross and

his co-defendants. "A prosecutor should not use the power of

‘Lloyd was the only defendant arrested in possession of amphetamine. He

was also the only one involved in this case ever found to be using amphetamine.

Tr. Vol. VII at 1319.

-16-

ee ae ee es

cross-examination to discredit or undermine a witness if the

prosecutor knows the witness is testifying truthfully." ABA

Standards for Criminal Justice, § 3-5.7(b).

Until Dr. Fretthold testified in this case, no prosecutor had

ever challenged the validity of a positive test which he had

conducted. Tr. Vol: VIII at 1453. Indeed, the United States

Attorney's Office which presented this false testimony relies on

and vouches for the credibility of Pharmchem chemists and these

drug tests daily when seeking to revoke probationers and people

on pre-trial release programs, such as Lloyd. Tr. Voi. VIII at

1453, 1470-1471. In the face of this knowledge, the prosecutor

argued the impeachment testimony regarding the urine tests in

closing. "He also testified that there is something on the market

that he wishes . . . was not on the market, and that is that there

are some inhalers on the market, I think the Vicks inhaler in

particular, that . . . it is possibie to have that kind of. . . reaction

with respect to the amphetamine.” Tr. Vol. at 1841-42. This

argument was a wholesale and deliberate mischaracterization of

22.

Dr. Fretthold’s testimony.

The prosecutor was implying that Dr. Fretthold testified

that Vicks Inhaler could interfere with his test results. The

prosecutor vacieitieas on the innuendo he previously had planted

in the jury’s mind that Lloyd tested positive for amphetamine as

a result of using Vicks Inhaler. He argued this even though Lloyd

never said he used Vicks Inhaler and Dr. Fretthold unequivocally

testified that "you can’t get only amphetamine by taking Vicks

inhalant.” Tr. Vol. VIII at 1491.

Lloyd’s testimony was of critical importance to the

government in this case. Without the jury’s belief in his testimony,

the government could not have successfully prosecuted Ross. The

inescapable conclusion is that the government was willing to go to

any lengths to secure Ross’s conviction. The witness whom the

government allowed and encouraged to present perjured testimony

was the witness critical to Ross’s conviction. The government's

bolstering of its pezjurious witness by impeaching a truthful expert

witness and, failing that, arguing as though the witness had been

-18-

Cee

impeached, was unconscionable.

This Court has previously dealt harshly with the knowing

use of false testimony because it is seen as a direct threat to the

integrity of the criminal justice system. "As a matter of principle,

we perceive no less an infringement of a defendant's rights by the

knowing use of perjured testimony than by the deliberate

withholding of exculpatory information. The conduct in either

case is reprehensible, warranting criminal prosecution as well as

disbarment." Imbler v. Pachtman, 424 U.S. 409, 431 n. 33 (1976).

See also California v. Trombetta, 467 U.S. 479 (1984), where this

Court said in dicta that it is "rudimentary" that the prosecution has

a constitutional obligation to report to the defendant and to the

trial court when a government witness lies under oath. Id. at 485

(citations omitted). Because of the damaging effect to our entire

system of justice, courts must review very strictly such knowing use

of perjured testimony.

This Court has recently reiterated that "before a federal

constitutional error can be held harmless, the court must be able

-19-

to declare a belief that it was harmless beyond a reasonable

doubt." Anzona v. Fulminante, 111 S. Ct. 1246, 1257 (1991). In

other words, the government has the burden of "demonstrating

that the [constitutional error] . . . did not contribute to . . . . [the

defendant's] conviction." Id. The government did not meet that

burden here. Applying the correct test, this Court must reverse

Ross's conviction because this misconduct could have effected the

jury’s verdict.

II. THE PROSECUTOR’S CLOSING ARGUMENT

IMPUGNED DEFENSE COUNSEL’S MOTIVES

NOTWITHSTANDING THE TRIAL COURTS

RULING THAT DEFENSE COUNSEL PROPERLY

QUESTIONED THE GOVERNMENT’S STAR

WITNESS ABOUT HIS COOPERATION

AGREEMENT. THIS PROSECUTORIAL

MISCONDUCT DENIED PETITIONER A FAIR

TRIAL.

Ross was convicted through the words of Mitt Lloyd, a co-

defendant turned informant. Without Lloyd's testimony, Ross

would not even have been arrested. Without Lloyd’s cooperation

with the government in exchange for substantial leniency as to his

sentence, his assets, even his pre-trial release conditions, Ross

-20-

— a ee

would not have been convicted. Ross cross-examined Lloyd

regarding his motive to testify for the government, including the

number of years of incarceration that he was avoiding through his

cooperation agreement with the government which provided for

the government to move for a reduction of his mandatory

sentence pursuant to U.S.S.G. § 5K1.1. Tr. Vol. at 491. This

cross-examination, to which the trial court overruled the

prosecutor's objection, was entirely proper. Yet, in closing, the

prosecutor argued that Ross’s attorney’s cross-examination was

inspired by an "improper purpose . . . the reason she brought this

out in such considerable detail was primarily to show a possible

sentence that the defendants would be facing if the evidence

shows beyond---.". Tr. Vol. IX at 1638. The Tenth Circuit

concluded that the prosecutor’s comment which impugned defense

counsel's motives did not influence the jury to convict Ross. App.

19.

This is not the first case to raise this problem to the

appeliate court. There is a pervasive pattern within the United

States Attorney’s office in the District of New Mexico to ignore

the ethical and constitutional parameters of prosecution,

particularly in the area of closing argument. The Tenth Circuit

has frequently admonished prosecutors from this district for their

improper closing arguments. See e.g. United States v. Pena, 930

F.2d 1486, 1490 (10th Cir. 1991) (prosecutor’s remarks were

calculated to mislead the jury and placed an improper inference

into minds of jurors); United States v. Arbizu, 833 F.2d 244, 247

(10th Cir. 1987) (prosecutor’s statement of what defense counsel

must have been thinking placed an improper inference into minds

of jurors); United States v. Rios, 611 F.2d 1335, 1343 (10th Cir.

1979) (prosecutor’s personal attacks on defense counsel and

prosecutor’s reference to facts and evidence not in evidence were

clearly improper); United States v. Siviglia, No. 76-1914 (10th Cir.,

June 5, 1978) (unpublished) (prosecutor’s closing arguments

improperly diverted the trial and attention of the jury to a trial of

Siviglia’s attorney). Unfortunately, the prosecutors continue to act

improperly because all too often the appellate court affirms

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convictions even when it finds obvious misconduct.

The Tenth Circuit has previously held that it must view the

comments of the prosecutor in the context of the record before

the jury to determine whether the comments were sufficient to

influence a jury to render a conviction on grounds beyond the

evidence that was presented. United States v. Dickey, 736 F.2d

571, 596 (10th Cir. 1984), cert. denied, 469 U.S. 876 (1984). That

test has been met in the instant case, because the prosecutor’s

comments were extremely prejudicial to Mr. Ross and very well

may have influenced the jury to convict him.

Here, as in United States v. Arbizo, 833 F.2d 244, 247 (10th

Cir. 1987), "the prosecutor’s remark, referring to what defense

counsel must. have been thinking, placed an improper inference

into the minds of the jurors and was clearly inappropriate.” In the

instant case, the prosecutor premised his argument on his personal

opinion and not on any admitted evidence. He made this

argument even though he was already on notice that the argument

was improper because the trial court had overruled his objection

24.

to defense counsel’s cross-examination. The prosecutor impugned

the motives of the defense attorney, thereby directly undercutting

the defendant’s right to counsel.

In United States v. Young, 470 U.S. 1 (1985), this Court

reversed the Tenth Circuit Court of Appeals because the defense

raised no objection and the appellate court did not find that the

prosecutorial misconduct at closing constituted plain error. This

Court, however, continued to affirm its long-standing view that

prosecutors "must not be permitted to make unfounded and

inflammatory attacks on the opposing advocate,” Jd. at 9, and

should "refrain from improper methods calculated to produce a

wrongful conviction." Id. at 7 (citation omitted).

Only Lloyd put Ross at the CA Ranch with the co-

defendants during the relevant time period. Only Lloyd turned

Ross's fingerprints from those of a passing visitor interested in a

deer lease into those of an amphetamine manufacturer. Because

Lloyd's credibility was so crucial, the prosecutor apparently felt it

necessary to shore it up whenever and however possible. The

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prosecutor's misconduct was not harmless but went to the core of

this case and undercut it. This prosecutorial misconduct denied

Ross a fair trial and this Court should reverse his conviction.

CONCLUSION

For the foregoing reasons, petitioner Speck Aron Ross

respectfully requests that this Court grant this Petition for a Writ

of Certiorari to the United States Court of Appeals for the Tenth

Circuit, and reverse his conviction.

Respectfully submitted,

LEE, CLO

Nancy Hollander

Counsel of Record for Petitioner

FREEDMAN, BOYD, DANIELS, PEIFER

HOLLANDER, GUTTMANN & GOLDBERG, P.A.

20 First Plaza, Suite 700

Albuquerque, New Mexico 87102

Telephone: (505) 842-9960