Amicus Curiae Brief — Rotttschaefer v. United States (No. 06-151)

IN THE

Supreme Court of the United States

BERNARD L. ROTTSCHAEFER, M.D..,

Petitioner,

We

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF PETITIONER

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

Counsel for Amicus Curiae

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

QUESTIONS PRESENTED

1. Is a physician denied a fair trial in a criminal

prosecution for drug distribution under 21 U.S.C. §841(a)(1)

when the parties frame and argue the issues under a Govern-

ment interpretation of the “legitimate medical purpose” rule

of 21 C.F.R. §1306.04 that equates the criminal standard

(“outside the course of professional practice”) with the civil

“standard of care”?

2. Has the circuit court’s factors test to evaluate new trial

motions under Rule 33 supplanted the language of the Rule so

as to deny a new trial even when the interest of justice

requires it?

(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............sccessccsscsssssorsssccseeeen iv

INTEREST OF AMICUS CURIAE onccsecsssssssssesssessssseeee

SUMMARY OF ARGUMENT........csscssssssscsssesssecssseees 2

po RNC ERE Nae RE EOS Se 0 eee a eR 4

I. THIS AND SIMILAR FEDERAL PROSECU-

TIONS OF PHYSICIANS VIOLATE FED-

ERALISM BY INTERFERING WITH THE

STATE REGULATION OF MEDICINE ......... 4

Il. REVIEW IS NECESSARY TO CLARIFY

THE PROPER STANDARD FOR A NEW

TRIAL BASED ON PERJURY ...... ccc ecceseeeeees 8

A. There is Heightened Urgency to Deter

Perjury in Criminal Trials in Light of the

Increasingly Permissive and Conflicting

I a 9

B. The Decision Below Conflicts with

PO OE FINO OE oc rnccccvcivsecseseocetensnccvces 10

BR RNR AEA RNa Renee an Bere ee QM More ae 12

(ili)

iv

TABLE OF AUTHORITIES

CASES Page

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

£1 Mig eased cobiaae bd utlaeistark cceusebanidpetabeeteuaea ee eeeatanatek 7

Banks v. Dretke, 540 U.S. 668 (2004)... 10

City of Akron vy. Akron Center for Reproductive

Health, 462 U.S. 416 (1983)... cceceseeeees hits on

Fahy v. Connecticut, 375 U.S. 85 (1963)............ 10-11

Giglio v. United States, 405 U.S. 150 (1972)........ 1]

Gonzales v. Oregon, 126 S. Ct. 904 (2006)........... 5

Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195

EIST Pi ticoiicissvilacsietinaseertilesaeidionsnahcautcathaisesiudebiiines ie

Gregory v. Ashcroft, 501 U.S. 452 (1991)............. 6-7

Kyles v. Whitley, 514 U.S. 419 (1995)... cece 10, 11

Mooney v. Holohan, 294 U.S. 103 (1935)............. 1]

Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159 (2001)... 7

State v. Naramore, 25 Kan. App. 2d 302 (1998)... 6

Stenberg v. Carhart, 530 U.S. 914 (2000)............. 6

United States v. Agurs, 427 U.S. 97 (1976).......... 1]

United States v. Bass, 404 U.S. 336 (1971)........... 7

United States v. Gonzales-Gonzales, 258 F.3d 16

CEE EA Bere a iii cechcisevendinnscicelsncecseesticnsusmenrenions 9

United States v. Gullett, 62 Fed. Appx. 554 (4th

Cir.), cert. denied, 540 U.S. 995 (2003)............ 9

United States v. Huddleston, 194 F.3d 214 (lst

Ce een aiisnddedindebvesoviettainunsedpciakeansbamunenieinss 9

United States v. Josleyn, 206 F.3d 144 (1st Cir.

SED cise dddabcinsiga sh aiettintesd tonscenan uksiasoaiisalahamdleeeteanaaas 9

United States v. King, 71 Fed.' Appx. 192 (4th

IME, SE De sunccpennisheuiigepsiicdidiieniiavbacuiauicumicansmesteiiies 9-10

United States v. Linder, 268 U.S. 5 (1925)............ 4

United States v. Lopez, 514 U.S. 549 (1995)......... 7,8

United States v. Maynard, 77 Fed. Appx. 183

SANE A. SUED osnsschansbidecsuineandueanescdinnbensinapeonsiod’ 9

Vv

TABLE OF AUTHORITIES—Continued

United States v. McGrady, 1999 U.S. App.

LEXIS 2395 (4th Cir.), cert. denied, 528 U.S.

SU PRIN aRcecissihininsiciatccichibaibbsiiindamtipusencsieteaniaciideldedind

United States v. Moore, 423 U.S. 122 (1975)........

United States v. Morrison, 529 U.S. 598 (2000)...

United States v. Nixon, 881 F.2d 1305 (Sth Cir.

United States v. Roberts, 262 F.3d 286 (4th Cir.

2001), cert. denied, 535 U.S. 991 (2002)..........

United States v. Rottschaefer, 2006 U.S. App.

LEXIS 10504 (3d Cir. Apr. 27, 2006)...............

United States v. Taglia, 922 F.2d 413 (7th Cir.),

cert. denied, 500 U.S. 927 (1991)...........cceceeeeees

Weeks v. United States, 232 U.S. 383 (1914)........

CONSTITUTION AND RULES

St ig Ms I SEI iio ses reicentiinsseicanéniomensedans

aie ee es PRIEST ccscbnicaneceburibdhiidendeielindiedieiees

ARTICLES

Brian Murray and Joseph C. Rosa, “He Lies, You

Die: Criminal Trials, Truth, Perjury, and

Fairness,” 27 N.E. J. on Crim. & Civ. Con. 1

I

John Tierney, “Sex, Lies and OxyContin,” N.Y.

BARES AS GAR. 25, ZOCOD) cvcvncvesusnonsetnecerecseciereves

IN THE

Supreme Court of the Anited States

No. 06-151

BERNARD L. ROTTSCHAEFER, M.D.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE '

The Association of American Physicians and Surgeons,

Inc. (“AAPS”) is a non-profit, national group of thousands of

physicians founded in 1943. AAPS has many members who

fear overzealous prosecution by the federal government de-

spite complying fully with applicable state laws and other-

wise engaging in the lawful practice of medicine. AAPS is

' This brief is filed with the written consent of all parties. No counsel

for a party authored this brief in whole or in part, nor did any person or

entity, other than amicus, its members, or its counsel make a monetary

contribution to the preparation or submission of this brief.

2

dedicated to defending the practice of private and ethical

medicine so that physicians may best serve their patients

without interference by third parties. AAPS has filed amicus

curiae briefs in numerous cases before the United States

Supreme Court and federal Courts of Appeals.

Amicus has a direct and vital interest in the issues presented

to this Court based on the effect of federal interference with

medical practice that is lawful under applicable state

regulation.

SUMMARY OF ARGUMENT

Federal prosecutors are increasingly encroaching on the

state regulation of medicine, in violation of principles of fed-

eralism. The prosecution below of Dr. Bernard Rottschaefer,

a respected general practitioner who occasionally treated

pain, disrupted the delicate federal-state balance by supplant-

ing the regulatory scheme of a state with an uninformed

federal jury’s view of the proper standard of care. Medical

practice, including the treatment of pain, is fully regulated by

the states but federal prosecutions are increasingly intruding

into the state domain. This Court should grant Dr. Rottschae-

fer’s Petition and limit federal prosecutions to their proper

role.

Petitioner Dr. Rottschaefer’s practice was typical of thou-

sands nationwide. He practiced medicine in the Common-

wealth of Pennsylvania, in good standing with the Pennsyl-

vania State Board of Medicine. Though the learned and

experienced medical board allowed Petitioner to practice, a

federal prosecutor untrained in medicine did not. The federal

government could have revoked Petitioner’s ability to pre-

scribe controlled substances, or it could have complained to

the Pennsylvania State Board of Medicine and thereby per-

mitted an educated review of the facts. Instead, the federal

prosecutor presented a spiced-up tale of sex-for-drugs for a

lay jury in procuring a guilty verdict.

3

The sex-for-drugs story was a complete lie. Seventy-two

(72) detailed letters were written during the prosecution by

the government’s key witness, Jennifer Riggle, to her then-

boyfriend, and they were not made available to the defense

until after the conviction. In 22 of those letters, Riggle

explained contemporaneously how her false testimony would

enable her to receive reduced sentences for drug-related

crimes. Riggle wrote, “They’re saying he was bribing pa-

tients with sex for pills, but it never happened to me. DEA

said they will cut my time for a good testimony. | don’t want

to be a snitch but what should I do?” Pet. App. 44a. Other

drug abusers, who knew Riggle and each other, likewise

testified to the sex-for-drugs story.

This case illustrates why trained medical boards, not lay

juries, are the appropriate entity for reviewing care provided

by physicians. Yet this prosecution, and an increasing num-

ber like it, reflect usurpation by the federal government of ~

State regulation of the practice of medicine.

Almost every physician who legitimately treats pain, even

if only occasionally, could be targeted, indicted and unjustly

convicted by federal prosecutors in a similar manner. Physi-

cians rely on the state regulatory system to define the parame-

ters of treating pain in patients. Trained review panels, not a

lay jury of untrained citizens, are essential to the process.

Allowing and affirming convictiens like that below trans-

forms medical care into a field regulated by federal prosecu-

tors rather than by the States.

Rule 33 of the Federal Rules of Criminal Procedure, as

written, supports overturning this conviction on the grounds

that the sex-for-drugs testimony was utterly false. But Rule

33 was not applied below as written. Instead, it has been

replaced by a judicially created test that impedes overturning

a conviction based on discovery of false testimony if it can be

described as merely cumulative. At trial, Petitioner knew that

the sex-for-drugs tale was false and attempted to challenge it,

4

but lacked the evidence of the letters. Yet without even

holding a hearing to consider the letters, the trial judge denied

Petitioner’s motion for a new trial, and the appellate court

below upheld this find on the basis that the evidence of

perjury by the key witness was “merely cumulative or im-

peaching.” United States v. Rottschaefer, 2006 U.S. App.

LEXIS 10504, *9 (3d Cir. Apr. 27, 2006). Such distinction is

nowhere to be found in Rule 33 itself.

John Tierney of the New York Times commented on this

case:

The agents and prosecutors are supposed to be experts at

detecting liars, and they had far better investigative tools

available to them than Rottschaefer did. Yet they appar-

ently weren’t careful enough or shrewd enough to see

through Riggle’s story. If they don’t deserve prison time

for that mistake, neither does her doctor.

John Tierney, “Sex, Lies and OxyContin,” N.Y. Times A5

(Jan. 24, 2006). Yet the trammeling of federalism and use of

perjured testimony in order to convict resulted in a gross

injustice for the good doctor, and over-deterrence for many

like him.

ARGUMENT

I. THIS AND SIMILAR FEDERAL PROSE-

CUTIONS OF PHYSICIANS VIOLATE FED-

ERALISM BY INTERFERING WITH THE

STATE REGULATION OF MEDICINE.

The prosecution below reflects a growing trend, unlikely to

be fixed without this Court’s intervention, to empower federal

juries to dictate the medical standard of care. This violates

federalism and contravenes holdings of this Court. “Obvi-

ously, direct control of medical practice in the States is

beyond the power of the Federal Government.” United States

v. Linder, 268 U.S. 5, 18 (1925).

3

States, not federal juries, regulate the practice of medicine.

States, not the federal government, supervise the practice of

medicine. This was reiterated most recently by the Supreme

Court in Gonzales v. Oregon. “The Government, in the end,

maintains that the prescription requirement delegates to a

single executive officer the power to effect a radical shift of

authority from the States to the Federal Government to define

general standards of medical practice in every locality. The

text and structure of the [federal law] show that Congress

did not have this far-reaching intent to alter the federal-

state balance and the congressional role in maintaining

it.” Gonzales v. Oregon, 126 S. Ct. 904, 925 (2006) (empha-

sis added).

But that unconstitutional “radical shift” in power is pre-

cisely what occurred in this prosecution of Petitioner Bernard

Rottschaefer, M.D., and an increasing number of similar

prosecutions.” A “single executive officer”—a federal prose-

cutor—usurped the power of an entire state medical board

and regulatory system by indicting a physician for practicmy

medicine in a manner of which the federal prosecutor

disapproved. All physicians are deeply influenced and de-

terred by such a prosecution, and they alter their own

practices to avoid meeting the same dire fate. With respect to

the subject matter of the prosecution, the occasional treatment

of pain, the state medical board becomes a nullity by virtue of

the decision of a “single executive officer.”

This “radical shift” is not repaired by virtue of a jury pass-

ing judgment on the physician’s conduct and deciding that he

acted with “no legitimate medical reason.” Rottschaefer,

2006 U.S. App. LEXIS 10504, *6. Review of a physician’s

medical judgment is within the domain of the state medical

board rather than a jury untrained in medicine. A prosecu-

* Petitioner cites many similar prosecutions in his Petition before this

Court. See Rottschaefer Petition for a Writ of Certiorari at 19-20.

6

tor’s indictment of one physician inevitably frightens other

physicians away, even though they practice medicine with the

full approval of the state regulatory system.

State courts, in contrast with federal courts, have recog-

nized the inappropriateness of submitting a medical dispute to

a jury as a criminal case. For example, Dr. Stan Naramore

administered large quantities of painkillers to two patients

who subsequently died, and he was then convicted of murder

by a jury. On appeal, the Supreme Court of Kansas observed

that “the jury apparently found, beyond a reasonable doubt,

that Dr. Naramore’s actions were totally outside appropriate

medical practice.” State v. Naramore, 25 Kan. App. 2d 302,

322 (1998). “Having found that, [the jury] then apparently

found there was no reasonable doubt that the source of his

actions was homicidal intent.” /d. Yet the Supreme Court of

Kansas properly overturned the conviction. It found that

where, as in the trial of Petitioner Rottschaefer below, there is

a bona fide dispute in the medical community, then reason-

able doubt about criminal intent exists as a matter of law.

“{T}here is a reason why there has yet to be in Anglo-

American law an affirmed conviction of a physician for

homicide arising out of medical treatment based on such

highly controverted expert evidence as here.” /d.

A jury is even less “suited to be ‘the Nation’s ex officio

medical board with powers to approve or disapprove medical

and operative practices and standards’” than a court is.

Stenberg v. Carhart, 530 U.S. 914, 968 (2000) (Kennedy, J.,

dissenting) (quoting City of Akron v. Akron Center for Repro-

ductive Health, 462 U.S. 416, 456 (1983) (O’Connor, J.)).

By intent and effect, the actions of the federal government

in this type of prosecution completely supersede and interfere

with the authority of the state medical boards. These prose-

cutions violate well-established principles of federalism be-

cause they “alter the ‘usual constitutional balance between the

States and the Federal Government.’” Gregory v. Ashcroft.

7

501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 242 (1985)). “[I]t is incumbent upon

the federal courts to be certain of Congress’ intent” before

infringing on the state regulation of medicine. /d. (quotation

marks and citation omitted).

This Court, in United States v. Morrison, invalidated fed-

eral interference in “criminal law enforcement . . . where

States historicaity have been sovereign.” 529 U.S. 598, 613

(2000) (quoting United States v. Lopez, 514 U.S. 549, 564

(1995)). See also Solid Waste Agency of N. Cook County vy.

U.S. Army Corps of Eng’rs, 531 U.S. 159, 173 (2001) (“This

concern is heightened where the administrative interpretation

alters the federal-state framework by permitting federal en-

croachment upon a traditional state power.”); United States v.

Bass, 404 U.S. 336, 349 (1971) (“Unless Congress conveys

its purpose clearly, it will not be deemed to have significantly

changed the federal-state balance.”).

Physicians treating pain, as Petitioner occasionally did,

would now be well-advised to seek approval for their prac-

tices from the local federal prosecutor rather than the state

medical board. This plainly violates “the federal-state bal-

arice” without congressional mandate. Bass, 404 U.S. at 349.

See also Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 2222

(2005) (O’Connor, J., dissenting) (“The Constitution, we said,

does not tolerate reasoning that would ‘convert congressional

authority under the Commerce Clause to a general police

power of the sort retained by the States.””) (quoting United

States v. Lopez, 514 U.S. 549, 567 (1995)).

The federal government retains full authority to revoke a

DEA registration that is being misused by any physician, in

sharp contrast to the conviction upheld by this Court in

United States v. Moore, 423 U.S. 122 (1975). In Moore, the

federal remedy of revocation of his DEA registration was not

an option because “[rjegistration was mandatory for practi-

tioners with state licenses” except under inapplicable excep-

8

tions. /d. at 138 1.15. In this case, the DEA could have

ended at any time the ability of Petitioner to prescribe con-

trolled substances simply by terminating his registration.

That would accomplish legitimate federal goals while re-

specting federalism.

In sum, the decision below eviscerated the state’s tradi-

tional control and regulation of physicians under its jurisdic-

tion. Congress never authorized such a complete disregard of

state oversight of medical practice, an area in which “States

lay claim by right of history and expertise.” Gonzales v.

Raich, 125 S. Ct. at 2224 (O’Connor, J., dissenting) (quoting

Lopez, 514 U.S. at 583 (Kennedy, J., concurring)). The

importance of the federalism issue at stake supports granting

the Petition for Writ of Certiorari here. —

Il. REVIEW IS NECESSARY TO CLARIFY THE

PROPER STANDARD FOR A NEW TRIAL

BASED ON PERJURY.

Integrity in prosecutions has eroded due to the inability to

obtain a new trial even where, as here, perjury of a highly

prejudicial nature is uncovered and demonstrated post-trial.

See, e.g., Brian Murray and Joseph C. Rosa, “He Lies, You

Die: Criminal Trials, Truth, Perjury, and Fairness,” 27 N.E. J.

on Crim. & Civ. Con. 1 (Winter 2001). The judicial per-

missiveness towards prosecutorial perjury stands in stark

contrast to the exclusionary rule, which flatly prohibits the

use at trial of much evidence improperly seized. See Weeks v.

United States, 232 U.S. 383, 392 (1914). It seems ironic that

while the truth is excluded, falsehoods are allowed.

Rule 33(a) of the Federal Rules of Criminal Procedure

provides that a new trial may be granted upon defendant’s

motion “if the interest of justice so requires.” The post-

conviction revelation that the defendant did not give drugs for

sex after all, which was the explosive testimony exploited by

9

the government to procure tive conviction, should easily sat-

isfy this express requirement of Rule 33(a).

The court below mistakenly held that “cumulative or

impeaching” evidence does not trigger a new trial under Rule

33(a). Rottschaefer, 2006 U.S. App. LEXIS 10504, *9. Yet

as explained by the Seventh Circuit, “Nothing in the text or

history of Rule 33, or of the cognate civil rule (Rule 60(b)),

supports a categorical distinction between types of evidence;

and we cannot see the sense of such a distinction.” United

States v. Taglia, 922 F.2d 413, 415 (7th Cir.), cert.- denied,

500 U.S. 927 (1991).

A. There is Heightened Urgency to Deter Perjury

in Criminal Trials in Light of the Increasingly

Permissive and Conflicting Standards.

Appellate courts are besieged with convictions procured by

perjury, yet have only conflicting standards to apply. The

First Circuit, for example, has encountered perjury by

prosecution in at least three different cases in the past seven

years. See United States v. Gonzales-Gonzales, 258 F.3d 16

(1st Cir. 2001); United States v. Josleyn, 206 F.3d 144 (lst

Cir. 2000); United States v. Huddleston, 194 F.3d 214 (lst

Cir. 1999).

Amid the uncertainty in the proper standard, perjury runs

amok. The Fourth Circuit has faced an epidemic of perjury in

prosecutions challenged on appeal, including at least five ap-

pellate cases in the last seven years on this issue. See United

States v. Maynard, 77 Fed. Appx. 183 (4th Cir. 2003); United

States v. King, 71 Fed. Appx. 192 (4th Cir. 2003); United

States v. Gullett, 62 Fed. Appx. 554 (4th Cir.), cert. denied,

540 U.S. 995 (2003); United States v. Roberts, 262 F.3d 286

(4th Cir. 2001), cert. denied, 535 U.S. 991 (2002); United

States v. McGrady, 1999 U.S. App. LEXIS 2395 (4th Cir.),

cert. denied, 528 U.S. 855 (1999). In King, the perjury was

so overwhelming that “in thirty years of practice and ten on

10

the bench, [the trial judge] had never had ‘less confidence’ in

a verdict.” 71 Fed. Appx. at 194.

The permissive approach towards perjury allows it to grow

like a cancer amid the confusion about the proper standard.

The Fifth Circuit struggled with the uncertainty to conclude

only that it “arguably” adheres to the same probability stan-

dard for evidence of perjury as with other newly-discovered

post-trial evidence. United States v. Nixon, 881 F.2d 1305,

1311 (Sth Cir. 1989). Seventeen years later, the standard is

even murkier. In the absence of a clear rule as a bulwark

against the use of perjury by prosecutions, false testimony

will spread further.

B. The Decision Below Conflicts with Rulings of

This Court. :

The decision below permitting a conviction to stand despite

perjury by a key government witness conflicts with this

Court’s rejection of prosecutorial deception in an arialogous

situation. Banks v. Dretke, 540 U.S. 668 (2004). There the

defendants suffered from the concealment of exculpatory

Brady material and perjured testimony by government wit-

nesses, and sought relief on that basis. The Court reiterated

its holding in Kyles v. Whitley that “the materiality standard

for Brady claims is met when ‘the favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.’” Jd. at 698

(quoting Kyles, 514 U.S. 419, 435 (1995)). Surely the revela-

tion that the sex-for-drugs claim of the key witness was a lie

does cast this whole case in “a different light.”

The burden of proof does not shift to the defendant to

prove his innocence. “‘A defendant need not demonstrate

that after discounting the inculpatory evidence in light of the

undisclosed evidence, there would not have been enough left

to convict.”” Banks, 540 U.S. at 698-99 (quoting Kyles, 514

U.S. at 434-435). See also Fahy v. Connecticut, 375 U.S. 85,

1]

86-87 (1963) (“We are not concerned here with whether there

was sufficient evidence on which the petitioner could have

been convicted without the evidence complained of. The

question is whether there is a reasonable possibility that the

evidence complained of might have contributed to the con-

viction.”) (emphasis added).

This Court “has consistently held that a conviction ob-

tained by the knowing use of perjured testimony is fundamen-

tally unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the

judgment of the jury.” United States v. Agurs, 427 U.S. 97,

103 (1976) (emphasis added, citations omitted). That knowl-

edge should be imputed to prosecutors where, as here, the

falsity of the testimony should have been known by the

prosecutorial.team. “(T]he individual prosecutor has a duty

to learn of any favorable evidence known to the others acting

on the government’s behalf in the case, including the police.”

Kyles, 514 U.S. at 437. The plea bargain below induced the

government’s star witness to tell the sensational lie of sex-

for-drugs. As John Tierney of the New York Times put it,

“The agents and prosecutors are supposed to be experts at

detecting liars, and they had far better investigative tools

available to them than Rottschaefer did. ... If they don’t

deserve prison time for that mistake, neither does her doctor.”

John Tierney, “Sex, Lies and OxyContin,” N.Y. Times AS

(Jan. 24, 2006).

Where, as here, the deception is by a star witness for the

prosecution, it is “inescapable” that a new trial is warranted.

See Giglio v. United States, 405 U.S. 150, 153-54 (1972)

(“[D]eliberate deception of a court and jurors by the pres-

entation of known false evidence is incompatible with ‘rudi-

mentary demands of justice’” and “whether the nondisclosure

was a result of negligence or design, it is the responsibility of

the prosecutor”) (quoting Mooney v. Holohan, 294 U.S. 103,

112 (1935)). Defendants have a right to acquittal if there is

12

reasonable doubt on any element of a criminal charge, and

prosecutorial use of perjury to obtain a conviction imper-

missibly infringes on this right. See U.S. CONST., AMEND. V.

CONCLUSION

This Court should grant the Petition for Writ of Certiorari.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

Counsel for Amicus Curiae

August 31, 2006