Petition for Writ of Certiorari — Harper v. United States

|

(Q | OCT 29 290

I | OF Fis OF 6 CLERE.

NO. 10-65

IN THE SUPREME COURT OF THE UNITED

STATES

BRIAN KEITH HARPER,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR REHEARING

Michael P. Heiskell

Counsel of Record

Johnson, Vaughn & Heiskell

5601 Bridge Street, Suite 220

Fort Worth, Texas 76112

(817) 457-2999 Office

E-mail: mheiskel @johnson-vaughn-heiskell.com

TABLE OF CONTENTS

TABLE OF CONTENTS. . .

TABLE OF AUTHORITIES 1)

GROUNDS FOR REHEARING. . . .

THE FACTS........ ewe 2

TH1k MISUNDERSTANDING Perens | 3

MISJUDGING DISCRETION. . . | 5

KRE 701: OPINIONS ARE FACTS

ARE EXPLOITED.......... r

RULING WITHOUT DETAILS. . f

COMPOUNDING ERRORS Y

CONCLUSION 12

CERTIFICATE OF COUNSEL 14

TABLE OF AUTHORIETIES

Carhsle v. United State

517 U.S. 416, 426

Kumbho Tire Co. v. Carmichae!

HIB US 147, 141 (1999)

Marshall v. United State

360 U.S. 310 11959)

Roper Vv 40, 404 ko Yd 499, 502 (#!

(quoting Simmons v. Umited State

390 U.S. 377, 384 (1968)

Umited States v. higueroa-Lopez

125 F3d 124) (9' Cir 1997)

United State V Gonzalez Lape

548 U.S. 140 (2006)

United States v. Ladd

5P7 F.2d 1341 (th Cr 19/6)

United States v. Lampton

158 F.3d 251 (Sth Cir, 1998)

Linited States v. Sunchez-Sotelo

BEd 202 (5'» Cir 1993)

Piapre (

}

}

United States v. Tomblin,

46 F.3d 1369,1389 (5th Cir. 1995)... | 10

United States v. Vega,

860 F2d 779 (CA7 1989). ..... a re

Federal Rules of Evidence

Federal Rule of Evidence (“FRE”) 701 wl, BD & 12

Federal Rule of Evidence (“FRE”) 702. .......2, 6.18

Federal Rule of Evidence (“FRE”) 901(b)(5) .. 2.2... 2

GROUNDS FOR REHEARING

Petitioner stands humbly before you, arms

waving in the air. With all due respect. what we

have here is a failure to communicate. 58 seconds

into listening to Exhibit 19! in this case, and you

would understand completely why it 1s impossible to

make a voice identifization from this push-to-talk

Nextel (it is mot a cell phone; it is a radio-band

“‘burner’). Why this distinction matters is the

snagged thread that unravels the entire case. This

identification-testimony was the lynchpin of the

case. If the prosecution had a valid case against this

Petitioner, they would not have put an agent on the

stand to make a last-minute ID from = an

indecipherable tape-recorded contact. The appellate

court gave no indication of a familiarity with the

sounds on the Exhibit 19°.

There is chaos in the Circuits on the

admission of layperson testimony under Fed. Rules

of Evidence Sec. 701 (“FRE 701"). This Honorable

Court has supervisory authority over the federal

courts to prescribe binding rules of evidence and

}

i

Unless otherwise specified, all exhibits, page numbers and

line numbers refer to the trial court evidence and transcript.

The contacts (erroneously referred to as “phone

conversations’) lasted the following minutes and seconds: 2.44.

1.28, 1.27, 1.19. The responses by the call-recipient can be

heard in sporadic one-second blasts of static, or not at all. But

the call-recipient’s “voice” per se. is never heard.

procedure. Carlisle v. United States, 517 U. S. 416,

426. This matter contains an issue of great

importance to all the Circuits much the same as

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141

(1999) did with regard to FRE 702.

THE FACTS

The simplified fact scenario is a drug

distribution ring busted and several individuals

caught in the act; one of whom made four brief DEA-

arranged “phone calls” (sic) to the alleged mayjor-

plaver distributor which were audio-taped.

During the 4 push-to-talk Nextel contacts, the

indecipherable words of the call-recipient-speaker

can be heard in one-second blasts of static.

The deal-making’ arrestee offered up

Petitioner's name to go along with the one-second

blasts of static, which name the agent quickly

researched? and which resulted in this Petitioner's

arrest two weeks later in Tennessee‘.

The Petitioner was then interviewed by Agent

York who had overheard the terse push-to-talk

contacts. Petitioner's home and business were

searched from which no incriminating evidence was

‘The testimony at issue was not offered nor admitted under

FRE 901(b)(5). nor did the appellate court make reference to

that code section. Thus, for purposes of Petitioner's Rehearing

request, that code section is not discussed.

‘Testimony of Agent York: Page 313 lines 8 to 13 “"Q. Now after

these phone calls, interactions between Brian Keith

found.

There was no mention of any phone-voice

identification, and the caller- recipient’s matching

push-to-talk Nextel was never recovered.

The photograph of an unknown individual was kept

in evidence for a year apparently thought to be the

Petitioner or the distributor that spoke on the push-

to-talk Nextel?.

The deal-making conspirator’s credibility

became severely questioned in the case® (he was

unable to identify the petitioner) and suddenly the

DEA agent was called upon to identify Petitioner

based on the push-to-talk Nextel static’.

THE MISUNDERSTANDING

There was a fundamental misunderstanding

of the evidence in the appellate court’s ruling. The

term “cell phone” has been used to describe the

technologically inferior push-to-talk Nextel walkie-

talkie as though they are the same or even similar

technology. They are not. Only through hstening to

5 Page 356 line 15 to 357 line 21 for one example.

6Page 10 of the appellate court's decision, “On the day before

trial. Harper's attorney discovered that Savage had made calls

from a state jail, which had been recorded by the phone

company, that exculpated another codefendant.”

Agent York testified repeatedly to the accuracy of the

sounds/static on the tape-recording and the lack of any attempt

to clean up the audio i.c., page 358 line 13 to 359 line 19.

Exhibit 19 can you understand the difference. The

appellate court repeatedly used the term “cellular

phone” and clearly understood it to be such. It was

not. Other than using the misleading words,

“cell phone,” and “phone call” we don’t have

words in English to accurately portray this

Nextel object and these radio transmissions.

The written transcript leads to the false

impression that Exhibit 19 contains a normal

everyday tape recording of a cell phone conversation.

And this is obviously what the Fifth Circuit

understood from the natural meaning of the words

from the transcript®. But anyone who has been in

the military, in a police unit or played with a walkie-

talkie as a child would recognize the type of “blast of

static” that takes the form of a word to be

deciphered. But it is not a “voice” per se on the

other end of the walkie-talkie Nextel.

A year after the arrest, at the jury trial,

Agent York was suddenly used to testify that he

identified the Petitioner’s voice at the in-person

interview two weeks after the push-to-talk Nextel

contacts were made. The testimony is not just

improbable, it is impossible. There is no way to

understand this impossibility without listening to

the actual Exhibit 19 (as opposed to just reading the

agent’s personal transcripts marked Exhibits 20 to

23).

i

2

In the appellate court’s rendition of the facts, they stated,

“After Savage agreed to try to contact Harper, the agents

retrieved a cellular telephone that Harper had given to

Savage...” (emphasis added)

The appellate court rendered a_e ruling

upholding admissibility of the recording and voice

identification based on the natural

misur derstanding of the modes of communication.

The push-to-talk Nextel is not a cell phone (in the

movies/TV, it is perhaps called a “burner” --a

throwaway inferior one-signal radio-type object) and

you don’t dial a phone number, you push a button to

buzz the single party connected to the matching

device. Please see page 310 Line 24 to 311 line 1 to 5

as well. (A Nextel representative testified beginning

at page 460, line 22.)

The first 58 seconds’ of Exhibit 19 from the

trial court shows the _ identification was so

impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable

misidentification. Roper v. Beto, 454 F. 2d 499, 502

(5 cir. 1972) (quoting Simmons v. United States,

390 U.S. 377, 384 (1968).

This would not have happened if the trial court had

been required to exercise discretion on the record

rather than just admitting the evidence

automatically.

MISJUDGING DISCRETION

The trial court & appellate court each ruled

that the testimony was properly admitted as

layperson opinion under FRE 701, but even if it were

°The use of the “58 seconds” is not to mislead the Court, but to

accentuate that in less than a minute, one could understand

the decisive issue here.

true that a layperson is permitted to testify to voice

identification, that should never be interpreted as

meaning that he should or must. It is clear from the

record that the trial judge believed he had no choice -

- that if it was offered as layperson opinion, the

judge must allow it to go to the weight, not the

admissibility.

The appellate court’s ruling on this issue

likewise referenced only the general proposition that

a person can make an ID from a ‘phone call’

therefore they found no abuse of discretion. These

“gatekeeper” issues cross-over in small part with the

issues determinative in Kumho _ Tire Co. _v.

Carmichael, 526 U.S. 137, 141 (1999) (granting

certiorari to clarify trial judge’s “gate-keeping”

obligation regarding expert testimony under Fre

702--courts of appeals are to apply ‘abuse of

discretion’ standard when reviewing district court’s

reliability determination.) Upon listening to the

recording (Exhibit 19), it is clear the District Court’s

decision in this case, to admit layperson ID-

testimony, was an abuse of discretion and therefore

unlawful and a denial of due process.

The appellate court completely overlooked

whether admissibility was appropriate under these

facts--which is not to say this issue is fact-specific,

because the ‘gatekeeper’ use of discretion should be a

universal rule.

The agent translated the “drug code words” in

this case not just because of the meaning of the

words, but because no person could have identified

the words of static to begin with. Yet this issue goes

one important giant step further -- not just a.)

translation of the words that were formed, or b.) the

meaning of the words, but whether you could hear c.)

a “voice” to be identified with a human.

The Sixth Amendment provides that "fi]n all

criminal prosecutions, the accused shall enjoy the

right ... to have the Assistance of Counsel for his

defence" as reiterated in United States v. Gonzalez-

Lopez, 548 U.S. 140 (2006). When a trial court rules

that admissibility is “automatic” (by refusing

objections as going to the “weight of the evidence, not

the admissibility”) it deprives the Petitioner of the

right to have his attorney argue a legitimate point of

law, thus essentially depriving Petitioner of the right

to an attorney’s argument and representation in

court.

OPINIONS ARE FACTS, AND EXPLOITED

The agent's testimony of the push-to-talk

contacts was allowed over objection, it was promised

to be an opinion, but the testimony was stated as a

fact and the opinion was abused. Just two examples,

page 296 line 13 to 15: “I recognized the voice when |

spoke with him...as being the same voice that was

on that recorded telephone call that Mr. Savage

made...” (It’s stated as a ‘fact.’) And, page 310 line

22 & 23 Agent York: “it’s my opinion Mr. Harper is a

seasoned experienced drug-trafficker.”. (This is

poisoning of the jury.) Minutes later the ‘fact’ was

reinforced by the agent’s testimony that a judge had

forfeited Petitioner’s property because Petitioner was

in fact the culprit. (Please see Page 316 lines 16 to

page 317 line 3.) Further usurping the jury’s role!

in this case. United States v. Sanchez-Sotelo, 8 F3d

202 (5 Cir 1993)--an officer may not “translate”

taped conversations where the officer’s opinion -went

well beyond the plain meaning of the tape; Rule 701

should be applied in a manner that allows the jury to

draw it’s own conclusions. But this is not how it

works in practice without a universal rule from this

Supreme Court requiring use of the trial court’s

discretion. (Here, the prosecutor later bolstered the

layperson-agent’s “expertness” in the area of

“phone”-voice identification and the agent was

inexplicably deemed an expert on reading computer

screens at page 615.) Holding in conflict, United

States v. Vega, 860 F2d 779 (CA7 1989); 27 Fed

Rules Evid Serv 561. The United States v. Figueroa-

Lopez 125 F3d 1241 (9 Cir 1997) court noted the

dangers of the government's blurring the _ line

between expert & lay witnesses.

RULING WITHOUT DETAILS

When the appellate court ruled on the FRE

701 issue!!, they did not indicate a familiarity with

\0Page 380 at lines 1 to 4, another of many examples of

usurping, where Agent York told the jury, “I believe I’ve done

the best possible job that I know how. I’ve collected all the

evidence that I feel is sufficient to what I feel prove Mr. Harper

guilty of this crime. I feel like I’ve done the best job I can do.”

The record is silent as to any emotion in his voice.

1! The end of page 22 and page 23 of the unpublished Opinion

of the Court of Appeals for the Fifth Circuit in United States v.

the 'phone' call in this case (perhaps relying solely on

the trial transcript and Exhibits 20 to 23, the agent’s

written rendition). Listening to less than a minute

of the CD would make it clear that the positive-ID

testimony is wishful thinking and_irreparably

prejudicial so that it should not have been permitted.

(There’s a reason why the agent transcribed the

tapes himself -- page Page 301 lines 22 & 23--no

secretary or assistant could have understood it.)

Not only did the appellate court misapprehend

the evidence, but the trial court ruled on the

admissibility prior to ever hearing the recording. On

page 300 at line 25 of the transcript, the court

explicitly indicates that no “judge's discretion” is

involved -- “Okay, your objection is overruled. I

think it goes to the weight, not the admissibility....”

The trial judge knew absolutely nothing about the

sounds on the tape when this ruling was announced.

This record is rife with issues upon which to render a

ruling helpful and instructive to all Circuits. More

importantly for Petitioner (and intriguing for the

reader) the record itself suggests who the true

culprit may have been--but clearly, the record does

not support a conviction of the man imprisoned from

these facts.

COMPOUNDING ERRORS

The appellate court stated that the

prosecutor’s words “give us some pause” and “We are

Harper, 2010 WL 816836 (5' Cir., 3/9/10) Before Clement,

Prado and Elrod, Circuit Judges.)

somewhat troubled by the prosecutor’s use...” The

appellate court’s conclusion that even if the

prosecutor used impermissible behavior it wasn’t

prejudicial rests on a false premise. That false

premise being that the ID is valid and admissible,

when in fact, the ID is unsustainable,

The prosecutor admonished the judge in front

of the jury, “...but 1 just note for the court that there

is case law that supports lay-witness identification of

voice and that this is perfectly admissible, as the

court has ruled.” If she is referring to the two cases

cited by the appellate court!*, one case had

thousands of recordings and the other case had

video/audio tapes--and both had to do_ with

telephones. They could not be more distinguishable

from the facts at hand in this case. (Not to mention

the prejudicial effect that her mini-lecture to the

court had on the jury.)

The appellate court was silent on the

sufficiency of the evidence in this case. The Fifth

Circuit made the statement that there are 3 points

to assess in determining whether the prosecutor's

improper statements were prejudicial. The third of

these points would have been “the strength of the

evidence of the Petitioner’s guilt.'°" The court

12United States v. Ladd, 527 F.2d 1341, 1343 (5th Cir. 1976);

United States v. Lampton, 158 F.3d 251, 259 (5th Cir. 1998)

'3Page 24 of the appellate court’s decision: “and (3) the

strength of the evidence of the defendant’s guilt. /d. at 415

(quoting United States v. Tomblin, 46 F.3d 1369,1389 (5th Cir.

1995)).” But they remained silent on this third prong even

after finding potential prejudice.

10

analyzed their first two points and concluded

without any reference to the third. The fact that the

court never referenced the sufficiency, quality or

strength of the evidence against Petitioner speaks

volumes. This indicates the substantial nature of

the grounds for Rehearing".

If this Honorable Court were to grant the

rehearing there is no possibility of regret because of

the number, and significance, of issues to all the

circuits (and the impact on this crue] conviction).

The record gives clues as to the true culprit. On the

audiotapes, the deal-making arrestee repeatedly

called the call-recipient “cuz,” though when you

listen, the name sounds more like “cul” (you can hear

the arrestee’s side of the call, you just can‘t hear the

unidentified call-recipient). There are continual

references in the case to “Malcolm.” There was an

‘erroneous’ photo in evidence for a year. Had counsel

been allowed to obtain more prison-phone-call

recordings as requested, we may have heard the

deal-making inmate referring to one particular caller

as “cuz” or “cul.” In that event, we would know

without a doubt that the wrong man has been

convicted.

“The entire body of evidence consists of: the doubtful 1D by the

two impeached and deal-making inmates, chronic references to

prior convictions, the prosecutor's sarcasm and the _ baffling

opinion of the agent. That's it---that was the entire case. Why

then the conviction? Both the agent and the prosecutor

vouched for the guilt of the defendant and for the veracity of

the two deal-making conspirators---to the jury(')But this

Petition for Rehearing will address the singular issue pursuant

to Rule 44,

1]

This conviction was based on non-credible

inmate testimony, incredible agent testimony and

intentional abuse of prior convictions. The

culmination of this conviction-campaign ended with

the prosecution’s desired — verdict but an

opportunistic perfidiousness to evidence.

One criteria’ poverning the exercise of

discretion in granting or denying certiorari is

whether the jury function in passing on disputed

questions of fact and in drawing inferences from

proven fact has been disrespected because they were

misled, caused to believe their decision had already

been made for them and repeatedly led to believe

there was incriminating evidence outside their

presence. Marshall v. United States, 360 U.S. 310

(1959) jurors so prejudiced as to warrant the exercise

of this Court’s supervisory power.

If this had been a trial for the murder of John Doe,

and John Doe walked into the courtroom, the jury

still would have convicted Petitioner for homicide---it

was that prejudicial from beginning to end.

CONCLUSION

For the reasons stated above-- the colossal

misunderstanding of, and prejudicial effect of, the

“phone call” (sic) exhibit admitted into evidence,

Petitioner respectfully requests this Honorable

Court grant the Petition for Rehearing and address

the issues which prejudicially poisoned the jury

against the Petitioner in the trial below. Here, the

12

benefits of providing guidance concerning the proper

appheation of FRI See. 701 justifies this Court's

time on this case Gust as Kumho justified the Court's

time on FRI Sec. 702). We need a universal rule

requiring express use of discretion when admitting

layperson opinion.

Respectfully submitted,

MICHAEL P. HEISKELL

Counsel of Record

JOHNSON, VAUGHN & HEISKEL

5601 Bridge Street, Ste. 220

Kort Worth, Texas 76112

Phone: 817 457-2999

ATTORNEY FOR PETITIONER

mheiskel@ohnson vaughn heiskelleom

CERTIFICATE OF COUNSEL

] hereby certify that this petition for rehearing

is presented in good faith and not for delay, and that

it is restricted to the grpunds specified in Supreme