Petition for Writ of Certiorari — Bryant v. United States

A I ce ON RE RT TEI

eee om ne nee

97 96 S DEC 1 0 1997

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

J.C. HERBERT BRYANT, JR.

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN M. COLETTE

JOHN M. COLETTE &

ASSOCIATES, PA

425 Tombigbee Street

Jackson, MS 39201

(601) 355-6277

Attorney for Petitioner

(i)

QUESTIONS PRESENTED

1. Whether a Special Deputy U.S. Marshal is

an “officer or employee” of the United States Government as

proscribed by Title 18 United States Code, Section 912.

2. Whether the Appellant Court had

“jurisdiction” to correct what it called a “gross injustice”.

a

(ii)

LIST OF PARTIES

The names of all parties to the proceeding below appear in

the caption of this case.

(iii)

TABLE OF CONTENTS

QUESTIONS PRESENTED. .................ccssesrereesneesriesesseeneeees

LIST OF THE PARTIES. ...............cccsscccssseseseseneseessenersenerens

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TABEE GP AUTHORITES. ......:c:cccccccsssscssserscsceserseveronens

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STATUTORY PROVISIONS INVOLVED...................0065-

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3. The District Court Proceedings.....................0.....

+ Tae D.C, Corouit’s Rulling..........................000000...

REASONS FOR GRANTING THE WRIT...........0....0.0000..-

1. THERE IS A CONFLICT AMONG THE CIRCUITS

AND/OR NO CLEAR MANDATE AS TO WHETHER A

SPECIAL DEPUTY UNITED STATES MARSHAL IS AN

EMPLOYEE OR OFFICER OF THE UNITED STATES

GOVERNMENT AS PROSCRIBED BY TITLE18, U.S.C.

seco dacape ane Eg, Se EES AE DPT. "CSA

(iv)

TABLE OF CONTENTS - CONTINUED

Il. WHETHER THE APPELLANT COURT HAD

“JURISDICTION” TO CORRECT WHAT IT CALLED A

“GROSS INJUSTICE”. ......0:...cc.ccccccsccssssenecsnsesnnsessosonnes 16

CONCLUSION........0::.s0scccscsccssssesssessnsecsnscsssasscnsssssnssrens 18

(v)

TABLE OF AUTHORITIES

CASES:

Hall v. Wisconsin,

103 U.S. 4, 26 L.Ed. 302 (1880).......0..4.--

Metcalf & Eddy v. Mitchell,

269 U.S. 514, 70 L.Ed. 384,

G6 S.Cd VTIAIOEI SiO 3.65).5.55- css

Pierce v. United States,

314 U.S. 306, 86 L.Ed. 226,

SE neat

Zaimi v. United States,

476 F.2d $11, 523-24 (D.C. Cir. 1973).......

United States v. Barrett,

111 F.3d 947 (D.C. Cir. 1997),

cert. denied, 118 S.Ct. 176 (1997)...........0.

United States v. Bryant,

117 F.3d 1464 (D.C. Cir. 1997)........cccc.0-0

United States v. Caste Liat.ds,

731 F.2d 979, 984 (D.C. Cir. 1984)............

United States v. Diamond,

53 F.3d 249 (9th Cir. 1995)........-ccccccccscsecee.

(vi)

TABLE OF AUTHORITIES - CONTINUED

United States v. Germaine,

$9 U.S. 508, 25 L.Ed. 482 (1879)..............cccccceee 12

United States v. Hartwell,

73 U.S. 385, 18 L.Ed. 830 (1868).....................000. 12

United States v. Laub Baking Co.,

283 F. Supp. 217 (D.C. Ohio 1968)................005 15

United States v. Lauelle,

751 F.2d 1266, 1275 (D.C. Cir. 1985).................. 17

United States v. Maxwell,

920 F.2d 1028 (D.C. Cir. 1990)...........0.ccceccees. 15

United States v. Rosser,

528 F.2d 652 (D.C. Cir. 1976).......5....cccccccccccccees. 15

United States v. Sutton,

801 F.2d 1346, 1360 (D.C. Cir. 1986).................. 17

STATUTES AND REGULATIONS:

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(vii)

TABLE OF AUTHORITIES - CONTINUED

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OTHER AUTHORITIES

63 Am. Jur. 2d, Public Officers & Employees

OP ibiselicictiodboheniiesecin ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

J.C. HERBERT BRYANT

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The petitioner, J.C. Herbert Bryant, respectfully requests that

this Court issue a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of

Columbia Circuit, entered on July 8, 1997.

a I . -

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is reported at 117 F.3d 1464

(D.C. Cir. 1997) and is reproduced at Pet. App. A.

JURISDICTION

The opinion of the United States Court of Appeals for

the District of Columbia Circuit was issued on July 8, 1997.

This Court has jurisdiction under 28 U.S.C. Section 1254(1).

STATUTORY PROVISIONS INVOLVED

1. Title 18, United States Code, Section 912,

provides in pertinent part:

Whoever falsely assumes or pretends to be an

officer or employee acting under the authority of the United

States or any department, agency or officer thereof, and acts

as such or in such pretended character demands or obtains

any money, paper, document, or thing of value, shall be fined

under this title or imprisoned not more than three years, or

both.

STATEMENT

1. Introduction

This petition presents two significant questions on

which the federal courts of appeals are in conflict.

First, the petitioner seeks review of the D.C. Circuit’s

refusal to find that Title 18, United States Code, Section 912

does not make a person so appointed an “officer or

3

employee” of the U.S. Government as proscribed by Title 18,

United States Code, Section 912.

Second, the petition seeks review of the D.C. Circuit’s

refusal to correct what it called a “gross injustice” in the

prosecution and conviction below. Despite its limited

refusal by the District Court Judge to consider defendant’s

testimony along with the corroborating testimony, the D.C.

Circuit should have reversed the conviction below.

2. Factual Background

The petitioner, J.C. Herbert Bryant, Jr., had been a

Special Deputy U.S. Marshal for seven years by virtue of his

affiliation with a group of volunteers (ARGUS) (the Armed

Response Group of the United States), which loaned armored

vehicles to police agencies during emergencies. In 1992, The

Washington Post published a series of articles critical of

ARGUS and of Bryant, implying that he had been granted

Special Deputy status because of his family money and

political connections. See, e.g., Robert O’Harrow, Jr., FBI

Probes Self-Styled Police Force, WASH. POST, May 10,

1992, at Al. The then-director of the Marshals Service

Henry Hudson wrote Bryant advising him to send Hudson a

letter asking not to be reappointed, which Bryant did. His

appointment thus expired on June 30, 1992, only two months

before the events leading to his conviction.

On September 2, 1992, Bryant drove his truck into the

District of Columbia and parked it near the side entrance of

the Mayflower Hotel. In the window was a placard bearing

the words “U.S. Marshal” in bold print and in back were

several pistols, visible if you walked up to the vehicle. After a

brief time inside the hotel, Bryant emerged to discover that

4

the vehicle had attracted the attention of several governmental

officials due to the fact that, unbeknownst to Bryant, an

Israeli diplomatic delegation had been visiting the hotel.

as its driver and was questioned. Numerous conversations

were had, but Bryant was not arrested and/or charged,

however, he and his vehicle were taken from the scene, and

arguably from the Metropolitan Police central, by members of

the U.S. Marshal’s service to the U.S. Marshal's office.

Washington Post reporter Mr. O’Harrow, learning of

the incident, published a news story in the Post some three

weeks later, on September 24, accusing the Marshals Service

of intervening to help Bryant.

After Bryant told police he had friends in the

Marshals Service, a deputy marshal was sent to the scene, law

enforcement officials said... When asked why no legal

action was taken against Bryant, Twomey said the District

police officer ‘chose simply to turn the weapons and Mr.

Bryant over to the marshal.’ But the District police official,

who ordered the retrieval of Bryant’s guns from the Marshals

Marshals Service ‘represented to us he was a U.S. Marshals

deputy.”

Robert O’Harrow, Jr., Quasi-Police Official Freed in Gun

Case, WASH. POST, Sept. 24, 1992, at Al (emphasis

added). Only then does the question of appellant's

musrepresentation arise. Jd (“[A}fter inquiries from the

Washington Post, District police said they plan to investigate

the Sept. 2 incident and turn over their findings to the U.S.

attorney in the District.”) Both the marshals’ headquarters

and the Marshals Office in the District of Columbia disclaimed

5

responsibility for allowing Bryant to be released and at trial

blamed each other for improper behavior.

From this incident, almost two (2) years later, (June

14, 1994) Bryant is indicted for (A) violating Title 18, United

States Code, Section 912, by falsely assuming and pretending

to be a Special Deputy United States Marshal, and due to

same, demanding and obtaining he not be arrested; and (B)

for violating D.C. Code, Section 22-3204(4) , a misdemeanor

for having weapons in the district, and for (C) violating Title

18, United States Code, Section 1001 for making false

statements.

In October of 1994, Bryant elected to go to trial

before the Honorable Royce C. Lambreth, U.S. District

Judge, waiving a jury and proceeding solely as a bench trial.

Mr. Bryant's principal defense to the firearms charge

was that he was a duly sworn authorized deputy sheriff of

Warren County, Mississippi and therefore exempt from the

D.C. Code prohibiting the possession of a firearm. (He never

relied on the expired SDUSM status).

As to the other counts, Mr. Bryant testified and

maintained that he never said he was, in-fact, a Special

Deputy United States Marshal and this was corroborated by

other, non-biased witnesses at the scene.

However, the district judge convicted Bryant on

counts | and 3 and acquitted him on Count 2 (the weapons

charge).

Your petitioner appealed this conviction, and on July

8, 1997, the Court of Appeals for the District of Columbia

“affirmed” these convictions. Interestingly, however, Judge

6

Henderson, writing for the majority, wrote a separate

concurring opinion, as did Judge Silberman, and both

conclude by saying that, your petitioner not only should not

have been convicted, but never should have even been

prosecuted, and this case was a “gross injustice”.

3. The District Court Proceedings

A bench trial was held in October of 1994 at which

Bryant testified that he never stated to anyone on September

2, 1992, that he was a Special Deputy United States Marshal.

He further testified, along with his life-long friend, Sheriff

Paul Barrett [See 111 F.3d. 947 (D.C. Cir. 1997), cert. den.

118 S.Ct. 176 (1997)] that he was exempt from the

prohibition, Section 22-3205 due to his status as a deputy

sheriff of Warren County, Mississippi.

Numerous witnesses testified, and conflict abounded!

Diplomatic Security Service Agent Mark Conord testified that

Bryant identified himself as a Warren County deputy, but also

as a Special Deputy U.S. Marshal (10/3/94 TR.1, 12, 45).

However, as Judge Silberman points out, it was Conord who

allowed the matter to be turned over to the U.S. Marshals,

and he was , in-fact biased because he was responsible. Plus,

his testimony was hardly convincing, especially with his

partner, Agent Perkins saying “...nobody ever told me Mr.

B he is a Special D U.S. Marshal”

Due to the confusion and/or for whatever reasons,

MPD officers on the scene called the District of Columbia

U.S. Marshals Office to clarify the situation. Rather than

telling MPD, Bryant isn’t “one of them”(...if he really said he

was), they dispatched several Deputy U.S. Marshals to the

scene. Deputy Robert Williamson, a supervising deputy

arrived and testified later that he inferred/heard Bryant say he

7

was a SPUSM. (10/4/94, TR. At 21,27) yet he too never told

his superior or anyone else until trial.

Ironically, and yet one of the essential elements under

this statute, the testimony at trial developed that it was

Herbert M. Rutherford II, (then U.S. Marshal for the District

of Columbia), who “demanded and obtained” that Bryant not

be arrested and had him, his vehicle, and its contents brought

to the Marshals office.

Despite this troublesome conflict, and in the face of

the clear, unbiased testimony of Agent Perkins, and others,

including Carl Crawford, security director for the Mayflower

Hotel, on-the-scene - vouching for Bryant’s “denial” and

depiction of events, Judge Lambreth finds him guilty.

The court as to count 1 specifically found that Bryant

claimed to be a Special Deputy U.S. Marshal, during the

course of his detention at the Mayflower Hotel, crediting the

testimony of Agent Conord and Deputy Williamson.

(10/16/94, Trial 7) He “rejected” Bryant’s testimony and

others on Count 3, and similarly he found that Bryant

represented to Agent Conord and to Deputy Williamson he

was a Special Deputy U.S. Marshal (The Judge “acquitted”

Bryant of the firearms charge).

On August 31, 1995 the Court sentenced Bryant to six

(6) months incarceration.

Mr. Bryant appealed his conviction, however, the

D.C. Circuit “affirmed” both convictions in a highly unusual

opinion.

a =

8

4. The D.C, Circuit’s Ruling

The case was argued before Judges Silberman,

Henderson and Tatel, with Judge Henderson writing the

opinion for the Court and also writing a concurring Opinion as

did Judge Silberman.

At oral argument, prior to an opinion being rendered,

Judge Henderson, on the Court’s own motion, requested

“supplemental briefs” on the issue of whether a Special

Deputy U.S. Marshal was covered by Title 18, United States

Code Section 912. Both sides briefed the issues and

submitted same prior to the July 8, 1997 ruling.

The court in its opinion, despite the apparent conflicts,

declined to reverse the conviction due to the deference

afforded the trial judge. Ironically, despite Judge Henderson

raising the above-issue at oral argument, she never addressed

it in the majority opinion, but concludes in her concurring

opinion that she believes a Special Deputy Marshal is_not an

officer or employee of the U.S.... the impersonation of which

is prohibited by Title 18, USC 912. Further she believes that

the circuit precedent is wrong!

Also, Judge Silberman, joined in the majority

affirmation, but wrote separately, ending by saying he was

powerless, given the scope of review of a district judge’s

factual finding from seeking to rectify this gross injustice!

Lastly, both Judge Henderson and Judge Silberman

stated that not only would they never have convicted Bryant,

neither would have even prosecuted him for these alleged acts

and unusual circumstances.

9

REASONS FOR GRANTING THE WRIT

L

THERE IS A CONFLICT AMONG THE CIRCUITS

AND/OR NO CLEAR MANDATE AS TO WHETHER A

SPECIAL DEPUTY UNITED STATES MARSHAL IS

AN “EMPLOYEE OR OFFICER” AS PROSCRIBED

BY TITLE 18, UNITED STATES CODE, SECTION 912.

Basically, your petitioner submits that (A) the Specia!

Deputy United States Marshal designation/appointment does

not make one so appointed an “employee or officer” of the

United States Government, and (B) there was no

constitutional authority for appointment of special deputies,

and (C) Special Deputy United States Marshals are honorary

posts and clearly distinguishable from Deputy United States

Marshals.

Title 18, United States Code, Section 912, commonly

referred to as “Personation of a Federal Officer” proscribes |

“falsely assum[ing] or pretend[ing] to be an officer or

employee acting under the authority of the United States or

any department, agency or officer thereof. . .” 18 U.S.C.

Section 912. It is a conviction under this statute which, in

part, forms the basis of Bryant's appeal.

Neither Title 18, generally, nor Section 912, specially,

define “officer” or “employee” as the terms are to be applied

when enforcing the statute. Thus,

the governing principles indicate that penal statutes

are to be interpreted with exactitude.

10

“Reasonable precision in the definitior. of crime has

been regarded as a desideratum by free people since the early

days of common law.” Moreover, the specificaiion of

criminal offenses is peculiarly the business, not of courts, but

of legislatures. Criminal statutes are thus “to be construed

strictly, not loosely; [s}tatutes will not be read to create

crimes. . Bey ed i erecta ER

“ambiguity” concerning the ambit of statutes

“should be resolved in favor of lenity.” Zaimi vy. United

States, 476 F.2d 511, 523-24 (D.C. Cir. 1973) (citations

omitted) (emphasis added). 3

The United States Supreme Court held in Pierce v.

United States, 314 U.S. 306, 86 L.Ed. 226, 62 S. Ct. 237

(1941), “[w]hile this act [§ 912's predecessor] should be

interpreted so as to give full effect to its plain terms, the court

should not depart from its words and context.” 314 U.S. at

311-12; 86 L.Ed. at 231; 62 S. Ct. at 240 (holding an officer

or employee of a government corporation is not an officer or

employee of the government under the language of the

statute). Although the Pierce court addresses corporations

owned or controlled by the United States and distinguishes

them from “the government” language as contained in the

statute, the law is equally applicable to the distinctions

existing between Special Deputy U.S. Marshals and federal

officers and employees. As in Pierce where the Court

refused to expand the language of the statute, this Honorable

Court is prohibited from departing from the the plain terms of

“officer or employee” as contemplated by the drafters of §

912. Expanding “officer or employee” to include a Special

Deputy United States Marshal, who is not an officer or

employee, is error.

‘

es |

" TS. OR ee ee pat ant) Pony " i Sie

1]

“As a general rule, an officer of the United States is

one who holds his place by virtue of an appointment by the

President, by one of the federal courts of justice, or by the

heads of federal departments authorized to make such

appointment . . . it must be something more than

employment.” 63 Am. Jur 2d, Public Officers and Employees,

§ 18, p.679 (1984) (citations omitted). “Although individuals

may occupy positions which are publicly funded and

authorized by statute, this does not compel the conclusion

that they are public officers. Instead, it is the nature of the

office, the powers wielded, and the responsibilities carried out

that are the key considerations.” Id. at § 12, 675-76.

Bryant asserts that under no definition does “Special

Deputy United States Marshal” qualify as an officer or an

employee. The disclaimer plainly depicted on the

identification cards issued to Special Deputies, states:

The individual named herein is appointed,

under authority delegated by the Attorney

General, to perform th. ties of the Office of

Special Deputy United es Marshal as

directed by an appréj..«ic official of the

United States Marshals Service or some other

employment by the United States Marshal

Service, the United States Department of

Justice, or the United States Government.

The appointee agrees to perform the duties

required under this Special Deputation with

the knowledge that he or she is neither

entering into an employment agreement with

the Federal Government or any element

12

thereof nor being appointed to any positios:

in the Federal Service by virtue of this

special deputation. The appointee

authorities vested in him or her by this special

deputation can only be exercised in furtherance

of en een eae nae eee

specially deputized and extends only so far as

may be necessary to faithfully complete that

mission. Moreover, those authorities

terminate at the expiration of the term of the

Special Deputation.

It seems apparent from the specific language above

that a special deputy is not an employee and cannot be

considered more than an employee. Therefore, he cannot

qualify as an officer or as an employee under the statute.

Additionally, when Bryant was a special deputy he

received no compensation for the title bestowed upon him.

Lack of compensation further evidences the lack of official or

employment status of a special deputy. See Metcalf & Eddy

y._Mitchell, 269 U.S. 514, 70 L.Ed. 384, 46 S. Ct. 172

(1925); Hall v. Wisconsin, 103 U.S. 4, 26 L.Ed. 302 (1880);

United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482

(1879); United States v. Hartwell, 73 U.S. 385, 18 L.Ed. 830

(1868).

Title 28, United States Code §§ 561 et seq. establishes

and enables the United States Marshals Service. Though the

sections discuss in detail the powers and duties of deputy

marshals, no mention is made of special deputies and their

powers or duties. There is no constitutional authority for the

appointment of special deputies. There is regulatory authority

for such appointments.

13

During the grand jury questioning of former Director

John Twomey, Mr. Twomey testified that “[t]he original

authority to appoint special deputy U.S. marshals comes from

the original creation of the office of U.S. Marshal . . . [but]

currently, . . . the U.S. Marshals Service authority to deputize

someone as a special deputy U.S. marshal is limited by the

Code of Federal Regulations, which specifies that we may

deputize a federal employee or a state or local sworn law

enforcement officer.”

The regulatory authority is found among 28 CFR §§

0.19, 0.111, and 0.112 (1996). Section 0.19 empowers the

Associate Attorney General with the “power and authority...

to authorize the Director of the U.S. Marshals Service to

deputize persons to perform the functions of a Deputy U.S.

Marshal.” 28 CFR §0.19 (1996). Section 0.111 generally

permits the Director “to direct and supervise all activities of

the U.S. Marshals Service” and further provides a listing of

specific activities which he oversees. Section 0.112 is entitled

“Special Deputation,” and states

[T]he Director, United States Marshals

Service, is authorized to deputize the

following persons to perform the functions of

a Deputy U.S. Marshal in any district

designated by the Director:

(2) Selected federal, state, or local law

enforcement officers whenever the law

enforcement needs of the U.S. Marshals

Service so require . . . .

28 CFR § 0.112 (1996).

Lastly, Special Deputy United States Marshals are

+z

ae

OT 2 on

i4

distinguished from Deputy United States Marshals. 28

U.S.C. §§ 561, et. seq. contain the authority for the deputy

U.S. marshals. Within these sections one can locate the

previously stated, there is no discussion pertaining to special

deputies and their duties, authority or function in general.

Chapter 37, Title 28, does provide us with bases for

distinctions between the two positions. One of the. most

apparent distinctions is found in 28 U.S.C. § 566 (d) which

States that each “marshal, deputy marshal, and any other

Official of the Service as may be designated by the Director

may carry firearms and make arrests without warrant for any

offense against the United States . . . or for any felony

cognizable under the laws of the United States if he or she has

reasonable grounds to believe that the person to be arrested

has committed or is committing such felony.” John Twomey

testified that with regard to the appointment of Bryant as a

special deputy, this statutory authority enjoyed by deputy

marshals was severely curtailed in the case of special deputies.

John Twomey, former Deputy Director of the United

States Marshals Service testified before the grand jury in this

cause that when he deputized Bryant as a special deputy, “it

was solely for the purpose of being armed to provide safe and

secure transport for police vehicles from ARGUS ... .”

(p.20). Twomey also testified that as a special deputy Bryant

did not possess the authority to carry a weapon for any other

reason or at any other time. This excludes the weaponry

allowances delineated in § 566, and therefore, effectively

excludes a special deputy from any entitlement as an officer or

employee or “other official” under these sections.

Further, § 564 specifically provides that deputy

marshals “may exercise the same powers which a sheriff of

the State may exercise in executing the laws thereof.”

15

28 U.S.C. § 564 (1988). This statute, however, does not

limit the deputy marshals’ authority to that of a sheriff but,

rather, supplements the implied powers of federal marshals.

United States v. Laub Baking Co., 283 F. Supp. 217 (D.C.

Ohio 1968). There is no indication anywhere that special

deputies possess <iis latitude. Quite to the contrary, special

deputies are very limited in their authority and are limited in

the time and scope of the exercise of their restricted authority

as evidenced, once again, by the identification badge

disclaimer.

All one has to do is look at the actual appointment to

clearly see that this position was honorary and no more than a

fund-raising type position.

Lastly, even if arguendo, it can be said that this

honorary title conferred employee/officer status, the record

below does not support the findings and conviction. Title 18,

United States Code, Section 912, requires two (2) essential

elements, (A) the false personification and (B) acting as such.

Given all the due deference to the trial judge, Bryant

was a mere braggart of his political friends, not a criminal,

and his conduct did not rise to the level prohibited by Title 18,

United States Code, Section 912. Furthermore, it was

Rutherford, not Bryant who “acted as such” and obtained the

forebearance by the Metro Police Department not to have

Bryant arrested. United States v. Rosser, 528 F.2d 652 (D.C.

Cir. 1976).

The Court’s reliance on United States vy. Maxwell,

920 F.2d 1028 (D.C. Cir.1990) is misplaced and

distinguishable from the instant case.

In Maxwell, it was clear that the appellant, did in-fact,

16

hold herself out as an employee and officer of the United

States Department of the Treasury, used printed letterheads,

etc. However, in the instant case the testimony was

contradicted and more importantly, the alleged office, existed,

but, can not be said to be an officer or employee of the

government, given the plain meaning of these terms.

Furthermore, reliance upon United States v. Diamond,

53 F.3d 249 (9th Cir. 1995) doesn’t resolve the question of

Bryant’s status either, as in that case, the officer, clearly was

acting at the direction, control and request of the U.S.

Government. Again, that case is not on point, and really deals

with Title 18, United States Code, Section 111 and 1114

which are not involved here and lend little if any support by

analogy.

Even Judge Silberman concluded that it was very

unlikely Bryant actually said he held the Special Deputy U.S.

Marshal office at the scene. Your petitioner submits that the

“very unlikely conclusion” certainly opened the door to the

Court’s jursdiction and should have allowed reversal, even

given the great deference standard. Therefore, the petition

herein should be granted to correct this gross injustice.

I.

WHETHER THE APPELLANT COURT HAD

JURISDICTION TO CORRECT WHAT IT CALLED

A “GROSS INJUSTICE”

Just a cursory reading of the opinion below clearly

shows that the D.C. Circuit should have reversed the

convicitions below even under the difficult standard of

deference.

17

Conflicting testimony, questionable memory, bias and

concern about an alleged “cover-up” abounded.

These unexplainable actions, alleged calls that never

occured and selective memory all amounted to a huge gap in

this case, preventing a conviction by a reasonable-minded

jury.

There was no convincing evidence upon which a

guilty verdict could be based.

Despite the prosecutors contempt for petitioner’s

wealth or family background, there exists a fundamental tenet

in our criminal jurisprudence that a jury (or judge herein)

should not premise its verdict upon a general evaluation of the

defendant’s character but rather upon an assessment of the

evidence relevant to the particular crime with which the

defendant is presently charged. United States v. Lauelle, 751

F.2d. 1266, 1275 (D.C. Cir. 1985); United States v. Sutton,

801 F.2d. 1346, 1360 (D.C. Cir. 1986)

The standard governing review of a guilty verdict is to

accord the verdict great deference and the conviction must be

reversed when the evidence is such that a reasonable mind

could not find guilt beyond a reasonable doubt. United States

y. Caste Llanos, 731 F.2d. 979, 984 (D.C. Cir. 1984)

Your petitioner agrees with this standard, however the

deference while great is not absolute and given the

acknowleged conflict and related unusual events, the Court of

Appeals should have reversed the conviction below.

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18

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

. COLETTE & ASSOCIATES

425 TOMBIGBEE STREET

JACKSON, MS 39201

(601) 355-6277 phone

(601) 355-6283 fax