Petition for Writ of Certiorari — Perry v. United States

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02179 9 JUN 1 0 2003

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Supreme Court of the Anited States

ROBERT PERRY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

FRANK LOUDERBACK

SOUTHTRUST BANK BUILDING

Suite 840

150 Second Avenue North

St. Petersburg, FL 33701

(727) 896-2147

Attorney for Petitioner

Robert Perry

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

Me 8 ee

QUESTIONS PRESENTED FOR REVIEW

I. Whether plain error review permits an appellate court to

sustain a conviction under a statute declared facially

unconstitutional by the Supreme Court, or is the conviction

void as a matter of law?

II. When a jury returns a general verdict that may rests on

a constitutionally prohibited ground, may a reviewing court

examine the record evidence and determine guilt under an

alternative, non-defective legal theory, and, if so, what

standard is employed to review such claims?

(i)

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TABLE OF CONTENTS

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

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OPINIONS OF THE COURTS BELOW.......................

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CONSTITUTIONAL AND STATUTORY

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

I. PLAIN ERROR REVIEW DOES NOT

PERMIT AN APPELLATE COURT TO

SUSTAIN A CONVICTION UNDER A

STATUTE DECLARED FACIALLY

UNCONSTITUTIONAL BY THE SUPREME

COURT BECAUSE THE CONVICTION IS

VOID AS A MATTER OF LAW...............0000008

A. 18 U.S.C. §2256(8)(B) is Void.................068

B. Plain Error Inapplicable.....................scc0008

Il. A GENERAL VERVICT WHICH MAY

REST ON A CONSTITUTIONALLY PRO-

HIBITED GROUND MAY NOT BE

UPHELD BY FOCUSING \ON’- THE

RECORD EVIDENCE WHICH SUPPORTS

AN ALTERNATIVE, NON-DEFECTIVE

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TABLE OF AUTHORITIES

CASES Page

Ashcroft v. Free Speech Coalition, 535 U.S. 234 .

EI Pisiasectowiivsinsteiitapetiinuliatiateaisaanid 4, 5, 6, 7, 8, 9, 10, 11, 14

Bachellar v. Maryland, 397 U.S. 564 (1970) ........ 10

Bousley v. United States, 523 U.S. 614 118 S.Ct.

1604, 140 L.Ed.2d 828 (1998) 00.0... eeeesteeeeee 7

Boyde v. California, 494 U.S. 370 (1990) .....8, 12, 13, 15

Broadrick v. Oklahoma, 413 U.S. 601 (1973)....... 5

Calder v. Bull, 3 U.S. 386 (1798) .........sccssceesseeeees 3

Duncan v. Louisiana, 391 U.S. 145 (1968)........... 14

Francis v. Franklin, 471 U.S. 307 (1985).............. 12

Griffin v. United States, 502 US. 46

CITT i <sinsisntiinscpinnaitesiciibiiaambiieiamipeibanininii 12, 13, 14, 16

Massachusetts v. Oakes, 491 U.S. 576 (1989)....... 6

Menna v. New York, 423 U.S. 61 (1975)...........062. 6

Neder v. United States, 527 U.S. 1 (1999)............. 9

Osborne v. Ohio, 495 U.S. 103 (1990)..............004 6

Pope v. Illinois, 481 U.S. 497 (1987) ........ccceceeseeee 9

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

Fe ED ininsuicsietnnasshadaniedeianiideilahiiiapiDidishinidinsdaapasivte 5

Ex parte Royall, 117 U.S. 241 (1886)................... 5

Ex parte Siebold, 100 U.S. 371 (1880).................. 5, ll

Stirone v. United States, 361 U.S. 212 (1960)........ 9

Street v. New York, 394 U.S. 576 (1969)............... 4

Stromberg v. California, 283 U.S. 359

CRE) ciconshinsvscsiamnsiciegudinatiidacanaaestoneptibeibihiapigs 12, 14, 15, 16

Terminiello v. City of Chicago, 337 US. 1

CF WUE cchastnsncnssansnnioniesesstaaniiainitiaehian ieanckoiaineiieds 14

Ex parte Yarbrough, 110 U.S. 651 (18864)............. 5

United States v. Broce, 488 U.S. 563 (1989)......... 6

United States v. Cotton, 535 U.S 625 (2002)......... 8

United States v. Ellyson, 324 F.3d 522 (4th

RD sicsncvvssasiohies tinaiaadiiupinicatieciitiielaaatecaitinntdaiids 5, 16

TABLE OF AUTHORITIES—Continued

Page

United States v. Kelly, 314 F.3d 908 (7th Cir.

UTED vetuetvinieississnilcdiiencisiipeicaiinnalad salina 11

United States v. Morgan, 230 F.3d 1067 (8th Cir.

TD sscsiisinnrtiesiiteitteisdaaila apical lieiea Malt dag 6

United States v. Olano, 507 U.S. 725 (1993)......... 7

United States v. Pearl, 324 F.3d 1210 (10th

fe, RE eee siiesietishsiabdanaabeile 5, 8, 11, 15, 16

United States v. Richardson, 304 F.3d 1061 (11th

CRs BUD sen vesnileesicsatnisnadieasnsetibiisiccalisdaiiadaaaiamaeeiiies 11, 15, 16

CONSTITUTIONAL PROVISIONS

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STATUTES

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Se SF reiki, Fae biccisteisvecisninqeapiiceterebioudpestantins 2, 11

BG UA... § Dae air estcenvesevsvencassegveenioveneteanibtiess 6

18 U.S.C. § 2256(8)(B)........ 3, 4, 5, 6, 7, 8, 10, 11, 12, 14

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IN THE

Supreme Court of the United States

No.

ROBERT PERRY,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit appears at Appendix A to the petition and is

unpublished. The order of the Eleventh Circuit denying

rehearing en bane appears at Appendix B to the petition.

STATEMENT OF JURISDICTION

The United States Court of Appeals for tlie Eleventh

Circuit entered its judgment on January 15, 2003. A timely

petition for rehearing en banc was filed on February __, 2003,

and denied on March 13, 2003.

The jurisdiction of the Court is invoked under 28 U.S.C.

§ 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides that:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press, or the

right of the people peacably to assemble, and to petition

the Government for a redress of grievances.

The Fifth Amendment to the United States Constitution

states that:

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.

Title 18,- United States Code, Section 2256(8), provides

that:

“child pornegraphy” means any visual depiction, includ-

ing any photograph, film, video, picture, or computer or

computer-generated image or picture, whether made or

produced by electronic, mechanical, or other means, of

sexually explicit conduct, where—

(A) the production of such visual depiction involves

the use of a minor engaging in sexually explicit

conduct;

(B) such visual depiction is, or appears to be, of a

minor engaging in sexually explicit conduct;

3

(C) such visual depiction has been created, adapted,

or modified to appear that an identifiable minor is

engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted,

preserted, described, or distributed in such a manner

that conveys the impression that the material is or

contains a visual depiction of a minor engaging in

sexually explicit conduct

STATEMENT OF THE CASE

Robert Perry was indicted on one count of possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and

two counts of receiving and distributing what “appears to be”

child pornography in violation of 18 U.S.C. § 2252A(a)(2).

See Appendix C.

After an initial hung jury resulted in a mistrial, Perry

proceeded to trial a second time. During the course of the

second trial, the Government elicited the words “appear to

be” or “appeared to be” child pornography no less than

twenty-one times from various witnesses describing images

and exhibits to the jury. On sixteen separate occasions

witnesses described various images to the jury simply as child

pornography “as defined by the statute.”

During closing argument, Perry’s trial counsel stated

“we’re dealing with children here,” and “[aJnytime you’re

dealing with a child being harmed, you’re in a no-win

situation.”

In its instructions to the jury defining child pornography,

the district court repeated the “appears to be” definition of

child pornography, among others, set forth in § 2256(8)(B).

See Appendix E.

The jury returned a general verdict of guilty on all three

counts, without specifying which definition of child pornog-

raphy it relied on in finding Perry guilty. See Appendix E.

4

Perry did not challenge the constitutionality of § 2256

(8)(B), or otherwise object to the jury instructions during the

course of the trial.

The court of appeals affirmed Perry’s convictions on all

three counts, finding that “any error did not seriously affect

the fairness, integrity, or public reputation of the judicial

proceedings, as the evidence clearly established -that the

images were actual children.” Appendix A, at 5-6.

The basis for federal jurisdiction in the district court was

founded on 18 U.S.C. § 3231. The court of appeals had juris-

diction over Perry’s appeal from the final judgment of the

district court under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

I. PLAIN ERROR REVIEW DOES NOT PERMIT

AN APPELLATE COURT TO SUSTAIN A

CONVICTION UNDER A_ STATUTE DE-

CLARED FACIALLY UNCONSTITUTIONAL

BY THE SUPREME COURT BECAUSE THE

CONVICTION IS VOID AS A MATTER OF

LAW.

Perry seeks review by certiorari of the court of appeals’

decision sustaining his conviction on two counts of receiving

and distributing what “appears to be” child pornography in

-violation of 18 U.S.C. § 2252A(a)(2). The court of appeals

upheld Perry’s convictions after determining this Court’s

decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234,

122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), was inapplicable.

Because Perry’s indictment on the two counts specifically

charged the “appears to be” theory condemned in Free

Speech Coalition, and because the Government presented

substantial evidence that the images appeared to be child

pornography as well as relying on jury instructions containing

the unconstitutional “appears to be” definition, Perry’s con-

victions cannot stand under a statutory definition this Court

has held facially unconstitutional. The court of appeals’

decision conflicts with Free Speech Coalition, and signif-

icantly departs from this Court’s prior precedent on the effect

of a statue declared facially unconstitutional. The court of

appeals’ decision also conflicts with the recent decision of the

Tenth Circuit in United States v. Pearl, 324 F.3d 1210 (10th

Cir.2003), as well as the Fourth Circuit in United States v.

Ellyson, 324 F.3d 522, (4th Cir.2003) both of which refused

to apply plain and harmless error review, respectively, to

convictions obtained under the invalidated statute.

A. 18 U.S.C. § 2256(8)(B) Is Void

In Free Speech Coalition, this Court unambiguously

declared § 2256(8)(B) facially unconstitutional. 122 S.Ct. at

1406 (“For the reasons we have set forth, the prohibitions of

§§ 2256(8)(B) and 2256(8)(D) are overbroad and unconsti-

tutional.”). As the dissent in Free Speech Coalition recog-

nized, “invalidation due to overbreadth is such ‘strong

medicine’” id. at 1407 (O’Connor, J., concurring in the

judgment in part and dissenting in part) (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830

(1973)), because it voids the law altogether. Ex parte Royall,

117 U.S. 241, 248, 6 S.Ct. 734, 29 L.Ed. 868 (1886) (“’An

unconstitutional law is void, and is as no law. An offense

created by it is no crime. A conviction under it is not merely

erroneous, but is illegal and void, and cannot be a legal cause

of imprisonment.’” (quoting Ex parte Siebold, 100 U.S. 371,

376, 25 L.Ed. 717 (1880)); Ex parte Yarbrough, 110 U.S.

651, 654, 4 S.Ct. 152, 28 L.Ed. 274 (1884) (“If the law which

defines the offense and prescribes its punishment is void, the

court was without jurisdiction and the prisoners must be

discharged.”); Calder v. Bull, 3 U.S. 386, 399, 1 L.Ed. 648

(1798) (“If any act of Congress, or of the Legislature of a

state, violates these constitutional provisions, it is unques-

tionably void.”); see also Reynoldsville Casket Co. v. Hyde,

6

514 U.S. 749, 760, 115 S.Ct. 1745, 131 L.Ed.2d 820

(1995)(Scalia, J., concurring).

In Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633,

105 L.Ed.2d 493 (1989), this Court held that an “overbroad

statute is not void ab initio but rather voidable, subject to

invalidation notwithstanding the defendant’s unprotected

conduct out of the solicitude to the First Amendment rights of

parties not before the court.” 491 U.S. at 584 (emphasis

added). The Court explained this statement from Oakes one

Term later in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691,

109 L.Ed.2d 98 (1990), where it stated that once a statute is

declared overbroad on constitutional grounds, “there [can] be

no convictions under that law even of those whose own

conduct is unprotected by the First Amendment.” 495 U.S.

at 121.

In declaring facially unconstitutional two of the four

definitions of child pornography under the Child Pornography

Prevention Act (“CPPA”), Free Speech Coalition enumerated

each of the definitions under the statutory scheme. It noted

that before the CPPA, Congress defined child pornography as

“images made using actual minors. The CPPA retains that

prohibition at 18 U.S.C. § 2256(8)(A) and adds three other

prohibited categories of speech... .” 122 S.Ct. at 1397. The

Court went on to explain that § 2256(8)(B), the provision at

issue here, prohibits “a range of depictions, sometimes called

‘virtual child pornography,’ which include computer gen-

' Even a defendant who pleads guilty maintains the right to attack “the

State’s power to bring any indictment at all[,]” United States v. Broce, 488

U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), or that “judged on

its face—the charge is one which the State may not constitutionally

prosecute.” Menna v. New York, 423 U.S. 61, 62 n.2, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975) (per curiam). See also United States v. Morgan, 230

F.3d 1067, 1071 (8th Cir. 2000) (“A claim that a statute is facially

unconstitutional falls within the exception [that a guilty plea does not

foreclose collateral attack].”), cert. denied 122 S.Ct. 62 (2001).

7

erated images, as well as images produced by more traditional

means.” Jd. Any doubt about whether § 2256(8)(B) was

struck down in its entirety evaporates when one reviews the

approach suggested by the dissent in Free Speech Coalition,

and implicit in the court of appeals’ holding, to invalidate

§ 2256(8)(B) in part:

This litigation involves a facial challenge to the CPPA’s

prohibitions of pornographic images that “appear to be

of a minor” and of material that “conveys the im-

pression” that it contains pornographic images of

minors. While I agree with the Court’s judgment that the

First Amendment requires that the latter prohibition be

struck down, I disagree with its decision to strike down

the former prohibition in its entirety.

122 S.Ct. at 1407 (O’Connor, J., concurring in the judgment

in part and dissenting in part) (emphasis added).

Decisions of this Court “holding that a substantive federal

criminal statute does not reach certain conduct . . . necessarily

carry a significant risk that a defendant stands convicted of an

act that the law does not make criminal.” Bousley v. United

States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828

(1998) (internal citations and quotations emitted). On the face

of Perry’s indictment, he stands convicted of an offense this

Court has held is no crime at all.

B. Plain Error Inapplicable

The above cases admit of no exceptions to the rule of

voiding any conviction obtained under a facially unconsti-

tutional statute. The court of appeals sustained Perry’s con-

victions under the fourth prong of the plain error standard set

forth in United States v. Olano, 507 U.S. 725, 731-32, 113

S.Ct. 1770, 123 L.Ed.2d 508 (1993). See Appendix A, at 5-6.

In particular, the court of appeals determined that the images

8

in question were of actual children.” Assuming, arguendo,

trial counsel’s statements in closing can fairly be charac-

terized as a concession the images depicted actual children, or

that the actual children theory could somehow fit consistently

within the substantive holding in Free Speech Coalition that

§ 2256(8)(B) is facially unconstitutional, Perry’s convictions

would contravene the Fifth Amendment for the simple reason

that he was never charged in counts two and three with the

actual children theory.

The Court has never held, much less suggested, that plain

error review permits an appellate court to uphold a conviction

under a facially unconstitutional statute. Nor has it ever

sanctioned plain error review as a means to sustain a con-

viction under an uncharged alternative legal theory. The court

of appeals’ approach is an unwarranted extension of this

Court’s plain error jurisprudence. It is true that plain error

review permits an appellate court to judge the evidence in

determining whether the fourth prong of Olano has been

satisfied. See United States v. Cotton, 535 U.S.625, __, 122

S.Ct. 1781, 1786, 152 L.Ed.2d (2002). But the Court, in either

the plain or harmless error context, has not extended this

doctrine beyond, for example, conforming the evidence to

omissions of an offense element, Cotton, 122 S.Ct. at 1787,

—

? The court of appeals’ ruling emphasized its determination that Perry s

counsel, in closing statements, conceded that the images involved actual

children. Appendix A, at 6, 8. Even if trial counsel’s statement could be

considered evidence, cf. Boyde v. California, 494 U.S. 370, 384, 110 S.Ct.

1190, 108 L.Ed.2d 316 (1990) (statements of counsel carry less weight

than instructions and must be viewed in context), the isolated statement by

counsel that “we’re dealing with children here, [and] anytime you’re

dealing with a child being harmed, you’re in a no-win situation” is so

ambiguous and equivocal that reliance an it to sustain Perry’s convictions

is misplaced and out of context. Moreover, trial counsel’s statements

stand in sharp contrast to the actual stipulation that minors were depicted

in the images found insufficient by the Tenth Circuit in United States v.

Pearl, 324 F.3d 1210, 1214 (10th Cir.2003).

sea aaa iia iia

9

misdescriptions of the offense elements, or improper pre-

sumptions on an offense element. See, e.g., Neder v. United

States, 527 U.S. 1, 9-13, 119 S.Ct. 1827, 144 L.Ed.2d 35

(1999) (collecting cases applying harmless error in jury

instruction context). None of those cases involved an

ambiguous verdict, much less a facially unconstitutional

statute. In Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95

L.Ed.2d 439 (1987), it was determined that harmless error

analysis could be applied in reviewing a jury instruction

containing an unconstitutional definition, 481 U.S. at 502, but

the Court did not find the statute facially unconstitutional. Jd. ~

Consequently, the Court remanded for the application of the

harmless error analysis, id. at 504, because the Pope defend-

ants “could still be retried under that statute, provided that the

erroneous instruction was not repeated[.]” Jd. at 502.

In contrast, conviction for an offense which is facially

unconstitutional is not readily susceptible to plain or harmless

error review because the charged conduct—in this case, what

“appears to be” child pornography—is no crime at all. See

Free Speech Coalition, 122 S.Ct. at 1402 & 1404 (“the CPPA

prohibits speech that records no crime and creates no victims

by its production[;]” and under § 2256(8)(B) “there is no

underlying crime at all.”). Stated differently, a reviewing

court may not, indeed cannot, look at the record evidence and

determine that, had the Government charged a crime

completely different from that alleged in the indictment, the

jury would have returned a guilty verdict, because the evi-

dence in support of the uncharged offense was overwhelming

and uncontroverted. Cf Stirone v. United States, 361 U.S.

212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (right to be

tried only on charges set forth in indictment “is far too

serious” to be subject to harmless error review). Such an

approach would itself turn Olano’s fourth prong on its head

because it would seriously affect the integrity and public

reputation of judicial proceedings for an appellate court, in

addition to its familiar role, to perform the function of

10

both the grand and petit juries. It would also contravene the

Fifth Amendment.

Yet that is precisely what the court of appeals, in effect, did

here. The Government charged Perry in counts two and three

with receiving and distributing what “appears to be” child

pornography. See Appendix D: The jury instructions relied on

the invalid “appears to be” definition, among others. See

Appendix E. As noted earlier, the trial testimony is replete

with instances of witnesses using the actual words “appears to

be” child pornography in describing the images to the jury.

The jury returned a general verdict of guilty on counts two

and three. Rather than void Perry’s convictions for an offense

this Court has held to be no crime at all, the court of appeals

sustained his convictions for offenses (actual children) he was

never charged with. Plain error review does not permit an

appellate court to let in the back door a prosecution theory not

alleged in the indictment.

The Court faced a remarkably similar situation in Bachel-

lar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570

(1970), where it was argued that the defendant’s conduct in a

sidewalk obstruction prosecution violated not only the

offense charged under the statute the Court declared facially

unconstitutional, but a separate statutory provision which the

State of Maryland argued was constitutional. In rejecting the

State’s argument to conform the conviction to the uncharged,

but constitutional statutory provision, the Court stated:

“(hjad the State wished to ensure a finding on the

obstruction question, it could have prosecuted petitioners

under [the separate constitutional provision].” 397 U.S.

at 569 n.7.

No other court of appeals has upheld a conviction under

§ 2256(8)(B) after Free Speech Coalition using plain error or

11

any other standard of review.’ In fact, the Tenth Circuit

recently reached a conclusion opposite to that of the court of

appeals below in United States v. Pearl, 324 F.3d 1210 (10th

Cir.2003), holding that “the plain error standard is inappro-

priate” for errors in convictions obtained under the invalid

definition of child pornography set forth in § 2256(8)(B),

because such errors are the type that can be raised at any

time. 324 F.3d at 1213. [The court of appeals’ decision,

therefore . . .] The court of appeals’ decision, therefore, is a

significant departure from this Court’s precedent that any

conviction under an overbroad statute “cannot be a legal

cause for imprisonment.” Siebold, 100 U.S. at 376.

Co.sequently, certiorari should be granted, and Perry’s

convictions on counts two and three should be reversed.

> United States v. Kelly, 314 F.3d 908 (7th Cir.2002), Petitoin for cert.

filed, No. 02-1420, is not to the contrary because the defendant in that

case was charged with both virtual child pornography and images

containing actual children.: More importantly, the Seventh Circuit noted

that the government moved to dismiss the counts charging virtual child

pornography after the Court’s decision in Free Speech Coalition, leaving

intact only the counts charging images of actual children. 314 F.3d at 910.

Significantly, question two in Kelly’s pending cetiorari petition indi-

cated he pled guilty to a count charging “child pornography” without

differentiarting between the valid and invalid definitions contained in

§ 2256(8).

- The court of appeals’ reliance on its prior decisoin in United States v.

Richardson, 304 F.3d 1061 (11th Cir. 2002), cert. denied, 123 S.Ct. 930

(2003), is likewise distinguishable,because the indictment in that case did

not allege the “appears to be” theory to the exclusion of the other statutory

definitions of child pornography. Rather, the indictment in that case

alleged “child pornography,” and the jury.instructions alone included the

invalid “appears to be” theory as well as the valid definitions of child

pornography. 304 F.3d at 1063. Because Perry’s indictment, in counts two

and three, charged the invalid “appears to be” theory alone, Richardson

does not resolve the issue raised herein.

12

it. A GENERAL VERDICT WHICH MAY REST

ON A CONSTITUTIONALLY PROHIBITED

GROUND MAY NOT BE UPHELD BY

FOCUSING ON THE RECORD EVIDENCE

WHICH SUPPORTS AN ALTERNATIVE, NON-

DEFECTIVE LEGAL THEORY.

Even if Perry’s convictions on counts two and three

survive the facial unconstitutionality of § 2256(8)(B), “it has

been settled law since Stromberg v. California, 283 U.S. 359,

51 S.Ct. 532, 75 L.Ed. 1117 (1931), that when there exists a

reasonable possibility that the jury relied on an uncon-

stitutional understanding of the law, that verdict must be set

aside.” Francis v. Franklin, 471 U.S 307, 322 n.8, 105 S.Ct.

1965, 85 L.Ed 2d 344 (1985). See also Griffin v.. United

States, 502 U.S. 46, 55, 112 S.Ct. 466, 116 U.Ed.2d 371

(1991) (“A host of our decisions [has applied the Stromberg

rule] to general-verdict convictions that may have rested on

an unconstitutional ground.”) (citing cases).

In Boyde v. California, supra, the Court did not retreat

from the Stromberg line of cases, stating that when an

instruction is “submitted to the jury on alternative theories the

unconstitutionality of any of the theories requires that the

conviction be set aside.” 494 U.S. at 379-80. Boyde involved

neither a facially unconstitutional statute nor even an

erroneous instruction, but an “ambiguous” instruction that

may have been interpreted erroneously. /d. at 380. After

noting prior cases made it less than clear what standard a

court should employ in reviewing faulty jury instructions, id.

at 378-80, the Court drew a clear distinction between

Stromberg-type errors * and cases involving ambiguous jury

* Stromberg-type error is characterized as nothing more than the

principle that, “where a provision of the Constitution forbids conviction

on a particular ground, the constitutional guarantee is violated by a gen-

eral verdict that may have rested on that ground.” Griffin, 502 U.S. at 53.

13

instructions subject to erroneous interpretation. In the former

cases, it was stated:

a jury is clearly instructed by the court that it may

convict a defendant on an impermissible legal theory as

well as on a proper theory or theories. Although it is

possibie the guilty verdict may have had a proper basis,

it is equally likely that the verdict rested on an

unconstitutional ground, and we have declined to choose

between two such likely possibilities.

494 U.S. at 380 (emphasis added) (internal citation and

quotations omitted). In the latter cases, as was the situation in

Boyde the Court adopted a “reasonable likelihood” standard

of whether the challenged instruction was impermissibly

relied on by the jury. /d.

Two terms after Boyde, the Court clarified its general-

verdict jurisprudence in Griffin, supra, where it rejected an

expansion of Stromberg-type /egal errors to cases challenging

the factual sufficiency of one of the objects in a multi-object

conspiracy. Echoing the distinction it made in Boyde,

the Court drew what it called a “clear line” that made good

sense, stating:

Jurors are not generally equipped to determine whether a

particular theory of conviction submitted to them is

contrary to law—whether, for example, the action in

question is protected by the Constitution, is time barred,

or fails to come within the statutory definition of the

crime. When, therefore, jurors have been left the option

of relying upon a legally inadequate theory, there is no

reason to think that their own intelligence and expertise

will save them from that error. Quite the opposite is true,

however, when they have been left the option of relying

upon a factually inadequate theory, since jurors are well

14

equipped to analyze the evidence, see Duncan v.

Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20

L.Ed.2d 491 (1968).

502 U.S. at 59, 112 S.Ct. at 474. Thus Griffin teaches that an

error in a legal theory submitted to the jury is not saved by

hypothesizing a verdict the jury would have returned absent

the legal error.

In this case, Perry’s jury was left the option of relying on

not merely a legally invalid theory, but a constitutionally

prohibited one. In this vein, Perry s convictions on each of the

charged counts, including count one, are infirm even though

the jury instructions left open the possibility the verdict rested

on a proper legal theory.”

The court of appeals did not discuss what standard it

employed in determining what ground the jury’s verdict

rested on. It focused solely on the evidence which supported

the constitutional ground. The court of appeals did not

evaluate whether the jury’s verdict could have been based

solely upon the constitutionally prohibited “appears to be”

definition set forth in § 2256(8)(B). This, Perry argues, was

error because this Court’s precedent suggests that the focus is

not on whether there is sufficient evidence which supports the

valid legal theory, but whether there is any evidence which

the jury could have relied on to support the invalid theory. Cf

Street v. New York, 394 U.S. 576, 585-86, 89 S Ct. 1354, 22

L.Ed.2d 572 (1969) (Stromberg rule requires conviction to be

set aside “if we find that it could have been based solely upon

[constitutionally prohibited ground].” (Emphasis added). See

also Terminiello v. City of Chicago, 337 U.S. 1, 5, 69 S Ct.

894, 93 L Ed.2d 1131 (1949) (conviction reversed because “‘it

could not be determined that the defendant was not convicted

under [the unconstitutional part].”)

* Count one of the indictment differs from counts two and three insofar

as it did not charge the “appears to be” child pornography definition

invalidated in Free Speech Coalition. See n.3, supra.

15

As was noted by the Court in Boyde, it is important to

identify the proper standard a reviewing court employs in

sorting out whether a general verdict rests on a valid legal

basis This is so because standardless determinations would

invite differing results, which in turn subjects the judiciary to

criticism. An appellate court is in an unfamiliar role when it

evaluates the evidence to determine on what basis a jury

rested its verdict. This Court has never squarely addressed

what standard, if any, is to be used when it is possible thi t the

jury’s verdict rested on a constitutionally prohibited theory.

While Boyde adopted a standard of a “reasonable likelihood”

that an instruction was impermissibly relied on by the jury,

494 U.S. at 380,° it is not at all certain the Court would apply

that same standard in cases where a jury’s verdict may

have rested on a constitutionally prohibited theory. Indeed,

Boyde expressly noted that the Court has “declined to choose

between” the two likely possibilities in the context of

Stromberg-type errors. 494 U.S. at 380.

Because the court of appeals did not identify what standard

it employed, and because the Court has not decided this issue,

this case is an appropriate one to adjudicate the ‘iportant

federal question of what standard, if any, a reviewing court

should utilize in reviewing a general verdict which may have

rested on a constitutionally prohibited theory.

The Eleventh Circuit’s decision cannot be squared with

two decisions of its sister circuits on the effect of a gen-

eral verdict which may have rested on an unconstitutional

ground. In Pearl, the Tenth Circuit rejected the government’s

® As noted earlier, the court of appeals relied on its prior decision in

Richardson, 304 F.3d at 1061, to sustain Perry’s conviction. Richardson

appears to have employed the reasonable likelihood test of Boyde. 304

F.3d at 1064 n.2. Since Boyde clearly distinguished between Stromberg—

type errors and erroneous instructions, and applied the “reasonable

likelihood” test only in the latter cases, the court of appeals appears to

have utilized the wrong standard.

16

invitation to review the images in question “as a substitute for

the government’s burden of proving at trial the depiction of

actual minors”. 324 F.3d at 1214. The Tenth Circuit declined

to follow the Eleventh Circuit’s decision in Richardson,

supra, while also noting that that decision emphasized the

expert testimony offered by the government at trial which

established that the images depicted actual minors. 324 F.3d

at 1214.’ Relying on Stromberg and Griffin, the Tenth Circuit

reversed Pearl’s convictions. 324 F.3d at 1213-14. Similarly,

in United States v. Ellyson, 324 F.3d 522, 531 (4th Cir.2003),

the Fourth Circuit set aside a verdict because the government

failed “to establish the use of an actual child victim . . . [and]

the evidence in the record, coupled with the court’s instruc-

tions, permitted the jury to convict [the defendant] on both

a constitutional and unconstitutional basis”. Jd. at *7.

Accordingly, the decision beldW conflicts with the decisions

of other circuits on the same matter.

CONCLUSION

The judgment of the court of appeals should be reverséd.

Respectfully submitted,

FRANK LOUDERBACK

SOUTHTRUST BANK BUILDING

Suite 840

150 Second Avenue North

St. Petersburg, FL 33701

(727) 896-2147

Attorney for Petitioner

Robert Perry

? Unlike Richardson, but similar to Pearl, the Government offered no

expert testimony at Perry’s trial on the question of whether the images

deicted actual minors.

T, PRTEOS FOE: ET NET: 8,

TOG RLS ik