# Petition for Writ of Certiorari — Bryant v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1877%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1071 ## Text 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 TABLE OF CONTENT E.............:cscccccsssssssssensesessesonesseesnes TABEE GP AUTHORITES. ......:c:cccccccsssscssserscsceserseveronens IN EN ih tcc sacinssivdesassovsveccerssecssenonseseovennoens FRAT sed B bcsichsversvncersoevonsidevscorvoveseervveuseusoeyvce STATUTORY PROVISIONS INVOLVED...................0065- EIU Lentil ckccdhvcseseieiveces voassvariows bens vabalisnadcbooests Bs WE TONING. 5 os seiccessséssccesccsncscscenvesseisenss 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: 19'U.S.C. 6 Bbc MOREL ED OE RTE. 16 Os Sc ccctinsavaivbch baubccsavidesisovclosedsaesaedimbOn aban passim S|) CRU TEES cat OUR mn ia 5 at. ne Rn CU MER ty beeg AN Ria 16 Fe UG Fe PI ons scireiscsicssscecesectescccstdticeinodsanas 12,14 EN Fi sivicseustdosescichocenh Vncotta haa 14,15 vis scp sadinebcpabugs aoncalasoumatliotanes 14 BP III cia inicicsiiscesensataccckecessopaeheaenenion: 14 (vii) TABLE OF AUTHORITIES - CONTINUED DC. COGD GT SIOWGD oon ccccsoccoccsslaccccssssccccssscscccces We IN TM oi 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