# Petition for Writ of Certiorari — Perry v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1689%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 822 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1689%3A1. Public record. Not legal advice.