Petition for Writ of Certiorari — Crawford v. United States

No. o2VT L131 VANS 1998

In The Jt THE CLERK

Supreme Court of the Wnited States

OCTOBER TERM 1997

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VERN ODELL CRAWFORD,

Petitioner,

UNITED STATES OF AMERICA,

Respondents.

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On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

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PETITION FOR WRIT OF CERTIORARI

4.

Marvin D. Miller Claude M. Scialdone

Counsel of Record Barry R. Taylor

Attorney at Law SCIALDONE & TAYLOR, INC.

Post Office Box 663 Post Office Box 6116

Alexandria, VA 22313 Virginia Beach, VA 23456

(703) 548-5000 (757) 430-1200

Counsel for Petitioner - Vern Odell Crawford

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

I.

QUESTIONS PRESENTED FOR REVIEW

The Fourth Circuit Court of Appeals has decided in

this case that a United States District Court is not required,

sua sponte, to give the jury a credibility instruction on the

status of a paid government informant, and by not giving such

an instruction does not constitute plain error. Is that finding in

conflict with the Tenth Circuit Court of Appeals holding that

such a instruction, sua sponte, is absolutely required, and

constitutes plain error if omitted?

Did the Fourth Circuit Court of Appeals commit

reversible error when they held that under the Jencks Act that

a 15 (fifteen) minute continuance to review 92 (ninety-two)

pages of informant material was sufficient and further that any

prejudice could be cured by recalling the informant as an

adverse witness the next day of trial?

li.

TABLE OF CONTENTS

QUESTION PRESENTED................. (1)

TABLE OF AUTHORITIEB................ (iii)

(iv)

OPINION BELOW. ..........ccccsscsessee

Se Ss |. 2

STATEMENT OF THE CASE............ 2

: Go cscseeroccnssconnnse 3

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iii.

TABLE OF AUTHORITIES

CASES:

United States v. Bosch, 914 F.2d 1239,

1247-1248 (9th Cir. 1990).......ccccccccsseeseeseeees

United States v. Brooks v. Johnson, 928

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United States v. Holmes v. Aument v.

Aument, 722 F.2d 37 (4th Cir. 1983).............

United States v. Kelly, 35 F.3d 929

CI

United States v. Miller, 499 F.2d 736

‘tg: SR, SRR SRE eee Ae na

United States v. Swiderski, 539 F.2d 854

a I a daaaek cath painted scisibsccniecinisa

UNITED STATES STATUTES:

Title 26, Section 7203 of the United

RRS GR ree Ad ee CD i OD

Title 18, Section 1503 of the United

I os oie ais cade eativieniuncs vas

4,5

6,7,8

3,5

IV,

Title 18, Section 3500 of the United

Bim Ce 0s 18k A hE hcdidiccéae ct 5

United States Constitution

pS NE SEE 5

United States Constitution

ne iidivesaccnsecses 5

OTHER AUTHORITIES:

}

4

Jury Practice and Instructions by

Devitt and Blackman (3rd ed. 1977). 3

]

In The

Supreme Court of the United States

October Term, 1997

Vern Odell Crawford,

Petitioner,

V.

United States Of America,

Respondent.

Petition for Writ of Certiorari to the

Supreme Court of the United States

Vern Odell Crawford, respectfully petitions for

a Writ of Certiorari to review the judgment of the Fourth

Circuit Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Fourth Circuit

Court of Appeals is set out in the Appendix, infra, 1a to 13a.

That opinion affirmed the decision of the U.S. District Court

of the Western District of Virginia, Harrisonburg Division,

which is set out in the Appendix, infra, 14a.

2

JURISDICTION

This case in the U.S. District Court for the Western

District of Virginia, Harrisonburg Division, under 18 U.S.C.

1503, 26 U.S.C. Section 7203, in which the court had

jurisdiction under 18 U.S.C. Section 3231 for offenses against

the laws of the United States.

STATEMENT OF THE CASE

Vern Odell Crawford, the Appellant, is a self-

employed businessman and long-time resident of Elkton,

Virginia. (JA., Vol 'V, p. 893). On September 21, 1995, a

federal Grand Jury ii Roanoke, Virginia indicted the

Appellant on two charges of Failure to File a Federal Tax

Return (26 U.S.C. Section 7203) and Obstruction of Justice

(18 U.S.C. Sections 1503 and 2). (JA., Vol. IV, p.885). The

Appellant was tried on these charges before the United States

District Court for the Western District of Virginia with the

Honorable Jackson L. Kiser presiding. After a three day trial

on April 23-25, 1996, the jury found Mr. Crawford guilty on

all three counts. (JA., Vol. I, p. 399, L. 19-24). He was

subsequently released on bail until his sentencing hearing on

October 3, 1996. Judge Kiser sentenced Mr. Crawford to 51

months imprisonment (JA., Vol. II, p.590, L.5-10) and fined

him $100,000.00 (JA., Vol. II, p. 591, L. 19-23), plus costs

of prosecution of $5,934.65 (JA., Vol. II, p. 596, L.3-6). The

final sentencing order was entered on October 10, 1996.

(JA., Vol.II, p. 598-604). This U.S. District Court and the

Fourth Circuit Court of Appeals, after sentencing the

Appellant, subsequently denied the Appellant’s Motion for

Stay of Execution of Sentence and Motion for Bail Pending

Appeal. The Appellant is currently imprisoned in the Federal

3.

prision at Lexington, Kentucky.

\

ANALYSIS

Question 1:

The Petitioner claims that the Fourth Circuit Court of

Appeals failed to recognize plain error committed by the

United States District Court in not informing the jury, sua

sponte, through an instruction that a government’s chief and

material key witness, Patricia Gail Littleton, was, in fact, a

paid informant. Neither the defense nor the prosecution

offered the instruction. The Tenth Circuit Court of Appeals in

nit v. Miller, 499 F.2d 736 (10th Cir. 1974) stated

that a cautionary instruction is required for an informant case

when the individual supplying information is paid, as in the

instant case. Miller, at 742. Devitt and Blackman’s Jury

Practice and Instructions (3rd ed. 1977) has adopted the

principle from Miller and provided the following instruction in

Section 17.02:

The testimony of an informer who provides evidence

against a defendant for pay, or for immunity from punishment,

or for personal advantage of vindication, must be examined

and weighed by the jury with greater care than the testimony

of an ordinary witness. The jury must determine whether the

informer’s testimony has been affected by interest or by

prejudice against a defendant.

Moreover, where the Government’s case rests

primarily on the testimony of informers, as it did in this case,

reversible error will lie if this instruction is not given. See

United States v. Swiderski, 539 F.2d 854 (2nd Cir. 1976). In

the instant case, the Government’s conviction of the

4.

Appellant for the charge of obstruction of justice depended

solely on the testimony of Patricia Gail Littleton, the

Government’s paid informant.

The Fourth Circuit Court of Appeals considered the

principle enunciated by Miller, supra, in United States v.

Brooks v. Johnson, 928 F.2d 1403 (4th Cir. 1991) and

declined to find error since the witness characterized as an

informer, failed to fulfill criteria for informer, i.e., he was

neither paid, promised immunity for his testimony, nor did he

seek personal advantage or vindication thereby. Brooks, at

1409. However, Brooks did confirm the principle from Miller

is applicable in the Fourth Circuit, i.e., a cautionary

instruction is appropriate where an individual supplying

information is a paid informant for the Government seeking a

conviction in a criminal case. Moreover, failure to give such

cautionary instruction is an abuse of discretion when the

witness was, in fact, paid and/or received other consideration,

i.e. being allowed to escape prosecution for tax evasion, as in

the instant case. Brooks, at 1403.

The Fourth Circuit Court Of Appeals, in its holding in

this case, relied on decisions from United States v. Bosch,

914 F.2d 1239, 1247-48 (9th Cir. 1990) (finding that the

failure to give a paid informant instruction, swa sponte, is not

plain error) and United States v. Cook, 102 F.3d 249,252 (7th

Cir. 1996) (stating that decision of whether to give such an

instruction, even in the face of a request from counsel, is

discretionary with the trial judge). It is apparently clear that

there is a clear conflict with the holdings in Bosch and Cook

in comparison with the holding in Miller. The Tenth Circuit

Court of Appeals requires that the lack of instruction to the

jury, sua sponte, will constitute plain error, as opposed to the

holdings in Bosch and Cook that hold such instruction is

S,

discretionary, even upon request by either counsel.

The Fourth Circuit Court of Appeals has adopted the

position held in Bosch and Cook and completely discarded

the holding in Miller. In doing so, this has greatly impeded the

rights of the petitioner to due process in violation of the 14th

Amendment to the U.S. Constitution and the Privileges and

Immunities clause of Article IV section II of the U.S.

Constitution by denying him a new trial on the basis of plain

error.

Question 2:

The Fourth Circuit Court of Appeals has additionally

failed to recognize the petitioners rights to due process and

rights created under this Honorable Court’s holding in Brady

v. Maryland, 83 S.Ct. 1194 (1963) and under the Jencks Act.

When Patricia Gail Littleton, the government’s paid

informant, took the stand at the Appellant’s trial, the

prosecution provided the Appellant’s counsel, Frank Mika,

with ninety-two (92) pages of reports documenting Littleton’s

clandestine meetings with the police while operating as a paid

informant. The Government did not produce these materials

in compliance with discovery claiming their exemption

therefrom under 18 U.S.C. § 3500(a) (Jencks Act).

Appellant’s trial counsel, Mr. Mika, immediately made

objections by making an oral motion for mistrial based on the

government’s failure to comply with discovery and to reveal

exculpatory material or have her testimony stricken and that

she be excluded from testifying (i.e., violation of Brady). The

trial judge denied the Motion and, in lieu thereof, granted a

continuance for a mere fifteen (15) minutes to afford the

Appellant’s counsel an opportunity to read and digest the

6.

ninety-two pages of material of the utmost importance to the

Appellant’s defense. Mr. Mika, in his affidavit, asserts the

obvious fact that fifteen (15) minutes was totally insufficient

to adequately review the material and prepare therefrom for

an effective cross-examination and defense strategy (See

Affidavit in Appendix).

The Jencks Act, 18 U.S.C. § 3500 states, in part:

“Whenever any statement is

delivered to a defendant

pursuant to this section, the

court in its discretion...may

recess proceedings in the trial

for such time as it may

determine to be reasonably

required for the examination of

such statement by said

defendant and his preparation

for its use in the trial.

(Emphasis added).

In essence, trial counsel was given less than ten (10)

seconds per page to read, digest and analyze the Jencks

materials and formulate a cross-examination therefrom as well

as a defense strategy to negate this explosive, prejudicial, and

inflammatory material. One could hardly consider this

reasonable or fair under our system of American justice. In

United States v. Holmes v. Aument v. Aument, 722 F.2d 37

(4th Cir. 1983), defense counsel was provided a stack of

Jencks material eight inches thick on the morning of the day

before the trial. In vacating a judgment of conviction and

granting a new trial, the Holmes court ruled that the district

(trial) court abused its discretion and denied the defendant’s

rights under the Jencks Act.

In the Holmes case, the defense had roughly twenty-

four (24) hours to review approximately two thousand

(2,000) pages which amounted to forty-three (43) seconds

per page. If the Fourth Circuit Court of Appeals found in

Holmes that the defendants were not afforded a reasonable

opportunity to examine and digest the mass of material

furnished them on the day before the trial, then certainly, with

only ten (10) seconds per page, one quarter as much time, the

Appellant in the instant case was denied his rights. Since the

Fourth Circuit Court of Appeals held in Holmes that the

District Court had abused its discretion in failing to grant a

reasonable delay in the progress of the trial to permit counse!

to complete their studies and preparation (of the Jencks

material) and granted Appellant a new trial, the District Court

in the instant case has, a fortiori, abused its discretion and the

Appellant should likewise be granted a new trial. Id. at

41.(Emphasis Added).

The Fourth Circuit Court of Appeals held that

petitioner did not make a contemporaneous objection that the

fifteen minute recess was insufficient to allow proper review

of the material. Because of the failure to object, the court

reviewed the matter as plain error and found that none

existed. The Fourth Circuit Court of Appeals committed error

by stating that defendant failed to object to not being given

sufficient time to review the Jencks materials, however, the

Court failed to recognize that Mr. Mika did object not once

but twice and was overruled on both objections (motion to

exclude the witness and motion to declare a mistrial) (see

Appendix.). To continue to object for a continuance or

adjournment would have been fruitless. This issue was

preserved for appeal purposes. The Fourth Circuit Court of

Appeals failed to follow their own holding in Holmes and, in

fact, failed to even address the Holmes case in relation to the

instant case.

Another fact that is critical to the analysis here is that

the Assistant United States Attorney advised to the defense

attorney that there was no informant when in fact there was

an informant. This is patently unfair and prejudicial to the trial

process to condone such conduct by the Government to the

defense attorney, then have the defense rely on those false

representations and get surprised at trial by ambush. See U.S.

v. Kelly, 35 F.3d 929 (4th Cir. 1994)._

The Fourth Circuit Court of Appeals has now caused

an inconsistency in the proper interpretation of the Jencks

Act. In Holmes the Court held that 24 (twenty-four) hours

was not sufficient time to review 2,000 pages of documents,

but that 15 (fifteen) minutes is sufficient time to review 92

pages of documents. If the Court had applied its holding in

Holmes, then even if the defense had been given 66 (sixty-six)

minutes to review the material, that would not be an adequate

amount of time to review the material. Clearly, the Fourth

Circuit Court of Appeals has now created an inconsistent

ruling within the Courts own holdings, and has unduly

prejudiced the petitioner.

ON JON

The Fourth Circuit Court of Appeals ruling in this

case on the issue of swa sponte jury instructions on paid

government informants is in clear conflict with the holding

from the Tenth Circuit Court of Appeals. Additionally, the

9.

Fourth Circuit Court of Appeals has unduly prejudiced the

petitioner by not applying its own holding in Holmes to the

issue of adequate time to review new materials entered into a

trial under the Jencks Act. Since the Fourth Circuit Court of

Appeals has created inconsistencies that have greatly affected

the petitioner by denying him a new trial, this Court should

use its supervisory capacity to correct the Fourth Circuit

Court of Appeals. This court should overrule the decisions of

the trial and appeals court and remand this case to the trial

court with an order for a new trial.

RESPECTFULLY SUBMITTED

VERN ODELL CRAWFORD

Marvin D. Miller, Esquire

PO Box 663

Alexandria, VA 22313

(703) 548-5000

Counsel For Petitioner

Claude M. Scialdone, Esquire

Barry R. Taylor, Esquire

Scialdone & Taylor, Inc.

PO Box 6116 .

Virginia Beach, VA 23456

(757) 430-1200

Counsel For Petitioner

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