Reply Brief — Hein v. Sullivan

tees

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Suprems Coun US

FILED

. OFFICE OF THe: CLERK

No. 10-646

In the

Supreme Court of the dnited States

BRANDON WADE HEIN. ETAL...

PETITIONEI

WILLIAM JOSEPH SULLIVAN. ET Al

ON PETITION FOR A WRIT OF CERTIORARI TO THI

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

REPLY BRIEF FOR PETITIONERS

WILLIAM. GENEGO 1 SCOTT BALLENG

NASATIR, HIRSCH Counsel of Kecord

PODBERESKY & GENEG* VARON G. MURPHY

2115 Main S ct DANIEL RL. SELTZEI

inta Monica, CA 90405 DEREK D. SMITH

510) 399-3259 LATHAM & WATKI!

OD Lith Street, NW

(Clonnsel for Petil

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KRWIN CHEMERINSK\ TRACY J. DRESSNER

UNIVERSITY OF 3115 FOOTHILL BOULEVARD

CALIFORNIA AT IRVINI #M-172

SCHOOL OF LAW La Crescenta, CA 91214

101 East Peltason Drives (818) 248-2961

Irvine, CA 92697

(949) 824-7722

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Miliotti

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Counsel for Petitioner

Holland

TABLE OF CONTENTS

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i

TABLE OF AUTHORITIES

Page(s)

CASES

Alcorta v. Texas,

355 U.S. ZB (UGG 7) nncincescnneuscosnssecncancrmensesiaeia aaa rf

Byrd v. Collins,

209 F.3d 486 (Gth Cir. 2000) «2... 3,4

Cole v. Zavaris,

No. 07-cv-01197-WDM-MJW, 2009 U.S.

Dist. LEXIS 54457 (D. Colo. June 4, 2009),

appeal denied, Cole v. Zavaras, 349 F.

App’x 326 (10th Clr. SOD) x sccccsieuccsrcpany cue 4

County of Allegheny v. ACLU, Greater

Pittsburgh Chapter,

492 UB. STS (UGG) vvccsisccscncssacnacesmcenucieaunnee eee 4

Giglio v. United States,

405 U.S. 160 CAG TE) vcccisinnsnsscsictscncrectuss eee 7,8

Hammond v. Hall,

586 F.3d 1289 (11th Cir. 2009), cert. denied,

132 S. CO, SUT COU) oiccvcicsscssncesnadesesticnuaneatanaae 3

Hayes v. Ayers,

No. 07-99014, 2011 U.S. App. LEXIS 458

(Sth Cir. Jam. 7, DDEY) scsicccecocscssenccccaaemebaeananineaeaaeae

Hayes v. Brown,

900 FS G72 (ths Cie. BOOB) on vccvceccesescccsseesaees ]

il]

TABLE OF AUTHORITIES—Continued

Page(s)

Jenkins v. Artuz,

ee ee ee CO Ci. FIED a nececnnssiecenenacesioese eee

Manroe v. Angelone,

eee 0 206 (4th Cir. Q008) oscsvvvevccsviccscccesescee

Pederson v. Fabian.

491 F.3d 816 (8th Cir. 2007) ..... ctssiinbenuul

Seminole Tribe v. Florida,

ye EERE TE 6) 5 enna 4

Smith v. Secretary, Department of Corrections,

ae FS 1327 (ith Cir. 2008) ....... eee

Tassin v. Cain.

Bae Pa ceo Cth Cir. DS)... ee 5

Towery v. Schriro,

No. 08-99022, 2010 WL 5157357 (9th Cir.

sep. 22, 2010)...... ciniusstinishumiaiamem medusa

United States v. Agurs,

_ < MOR 86 |. f ) aN Se

United States v. Bagley,

A473 U.S. 667 (1985) .............-.0000. Saree -ouamaaacinen 8

United States v. Casas.

425 F.3d 23 (1st Cir. 2005), cert. denied, 546

U.S. 1199 and 547 U.S. 1061 (2006) ............2.........0000- 5

iV

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Iverson,

Ge ee Fe Ca a, BR avon etcacSccnctcssccossaaens 6

United States v. Lochmondy,

OS FF Ae ET Cee Oe RI wicictninciecetiinesicinsienten 3

United States v. Morris,

498 F.3d 634 (7th Cir. 2007), cert. denied,

eee ee I el 6

United States v. Ramirez,

Bee BT Be a ae hy ) en OO: 3

United States v. Sutton,

542 F.2d 1239 (4th Cir. 1976)..... eae eee ae 5

United States v. Zuno-Arce,

339 F.3d 886 (9th Cir. 2003), cert. denied,

Se Free AIEE CID wssicnssinsvecsnntunnecoracaiacssersensassacnencuns 1,2

STATUTES

BIR oe Eb -.° (6: |) eee NLR eB ». 6

ARGUMENT

It is now apparent why Respondents initially

waived their opposition, leading this Court to call for a

response. Respondents are forced to concede that

there is a circuit split, and merely attempt to minimize

it by suggesting that some key decisions do not mean

what they plainly say. This Court’s clearly established

precedent forbids prosecutors from knowingly

deceiving juries with misleading testimony. The Ninth

Circuit and several others are inviting prosecutors to

play unconscionable games on the line between “mere”

intentional deception and outright perjury. This issue

potentially affects every criminal case in this country.

Review is warranted.

1. Respondents take creative license with the

Ninth Cireuit’s decision, claiming that it “appears to

assume that misleading evidence can constitute a

Napue violation.” Opp.5. To the contrary, the Ninth

Circuit was crystal clear that testimony must be

“actually false.”” Pet.App.18a (quoting United States

v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003), cert.

denied, 540 U.S. 1208 (2004)); Pet.App.26a _n.1]

(reiterating that “the testimony must still be actually

false”) (citing Hayes v. Brown, 399 F.3d 972, 980-82

(9th Cir. 2005) (en banc)).

The Ninth Circuit acknowledged that McLoren’s

statements were “incomplete” and could be “viewed

with some skepticism,” Pet.App.19a, 25a, but once the

court of appeals decided that those statements were

“accurate,” Pet.App.19a, it did not go on to consider

whether his testimony was nonetheless misleading.

The Ninth Circuit’s entire Napue analysis centered on

the issue of literal falsity. See, e.g., Pet.App.20a (“none

of these statements were false”); Pet.App.21la-22a

9

(“testimony ... was clearly not false”); Pet.App.22a

(“testimony ... was not false”); Pet.App.25a (“none of

these statements are false’’); id. (alternative reasons

for testifying were not “facially false”); Pet.App.27a

(“testimony was not false”). And the Ninth Circuit’s

hyper-technical parsing of McLoren’s statements and

speculation about far-fetched ways that they could be

understood as literally true betrays that it had no

interest in assessing whether that evidence actually

gave the jury a misleading impression, in context.

(Respondents’ similar gyrations, e.g., Opp.18-22,

illustrate the same point.)

2. Respondents concede that there is a circuit split,

and even point this Court to an intervening Ninth

Cireuit decision that expressly acknowledges it. See

Opp.7-8 (quoting Towery v. Schriro, No. 08-99022, 2010

WL 5157357, at *6 (9th Cir. Sep. 22, 2010), as amended,

Dec. 21, 2010). Their efforts to minimize the scope or

importance of that split are unpersuasive.

First, Respondents are wrong to suggest that

Towery introduces any ambiguity into Ninth Circuit

law. The YTowery panel acknowledged in dicta the

circuit conflict over whether “accurate testimony could

be delivered in a sufficiently misleading context to

make the evidence false for Napue purposes,” citing

only out-of-circuit case law. Towery, 2010 WL 5157357,

at *6. Its only discussion of Ninth Circuit law on this

point was to quote Zuno-Arce, 339 F.3d at 889, to the

effect that the testimony must be “actually false.” Jd.

And the Ninth Circuit subsequently re-affirmed its

actual falsity requirement in Hayes v. Ayers, No. O07-

99014, 2011 U.S. App. LEXIS 458, at *42-44 (9th Cir.

Jan. 7, 2011). In Hayes, the court excused the witness’s

“mostly equivocal” testimony about when she received

3

immunity, holding that “[t]he prosecution had no

obligation to correct Garcia’s qualified testimony about

her own reasonably held belief, because it was not

actually false.” Jd. at *43-44.!

Second, Respondents try to obfuscate the Sixth,

Eighth, and Eleventh Circuit cases clearly holding that

literal falsity is required, by suggesting that “all (save

perhaps one case) involve situations where the

evidence apparently was mot misleading, so the

articulation of the legal standard made no practical

difference.” Opp.9. That claim is speculative and

unpersuasive on the facts; the truth is that those cases

do not analyze whether any misleading testimony was

present, because the courts did not think that question

relevant. But several clearly did involve testimony

that was at least arguably misleading.

More importantly, Respondents’ entire discussion

rests on the false premise that the holding of a case is

somehow defined by the narrowest rationale for the

result that a creative lawyer can hypothesize, rather

1 Respondents cite United States v. Ramirez, 608 F.2d 1261,

1266 n.9 (9th Cir. 1979). Whatever force the Ramirez footnote

may have had at the time has faded in the intervening thirty years

and been clarified by Zuno-Arce and its progeny.

2 See, e.g., Hammond v. Hall, 586 F.3d 1289, 13806 (11th Cir.

2009) (witness testified that she “had never been arrested or spent

a single day in jail,’ even though the State had evidence

“implicating her in several violent crimes”), cert. denied, 131 S. Ct.

917 (2011); Byrd v. Collins, 209 F.3d 486, 517-18 (6th Cir. 2000)

(unclear whether witness’s testimony regarding pending charges

referred only to criminal charges); Pederson v. Fabian, 491 F.3d

816, 828 (8th Cir. 2007) (finding “ambiguity inherent in [the

witness’s] statement”); United States v. Lochmondy, 890 F.2d 817,

823 (6th Cir. 1989) (statement by witness “may have been

inconsistent with other evidence presented in the case”’).

4

than by the reasoning the court actually gave. The law

does not work that way. “When an opinion issues for

the Court, it is not only the result but also those

portions of the opinion necessary to that result by

which we are bound.” Seminole Tribe v. Florida, 517

U.S. 44, 67 (1996); see also Cnty. of Allegheny v.

ACLU, Greater Pitisburgh Chapter, 492 U.S. 578, 668

(1989) (“As a general rule, the principle of stare decisis

directs us to adhere not only to the holdings of our

prior cases, but also to their explications of the

governing rules of law.”) (Kennedy, J., concurring in

judgment in part and dissenting in part).

The Sixth, Eighth, and Eleventh Circuit decisions

are crystal clear that to prevail “the defendant must

show that the statement in question was ‘indisputably

false,’ rather than merely misleading.” Byrd v. Collins,

209 F.3d 486, 517 (6th Cir. 2000); see also Pederson v.

Fabian, 491 F.3d 816, 828 (8th Cir. 2007) (considering

only Napue claims where the statements are

“unambiguous and false”); Smith v. Sec’y, Dep’t of

Corr., 572 F.3d 1327, 1385 (11th Cir. 2009) (“Accurate

statements do not violate the Giglio rule.”).2 The

district courts and subsequent panels in those circuits

are bound by that rule. Respondents’ speculation that

% The Tenth Circuit may be in the minority as well. See Cole v.

Zavaris, No. 07-cv-01197-WDM-MJW, 2009 U.S. Dist. LEXIS

54457, at *57 (D. Colo. June 4, 2009) (“Significantly, a habeas

petitioner must show that a_ witness’is] statement was

‘indisputably false,’ rather than misleading, to establish a denial of

due process based on the knowing use of false or perjured

testimony.”) (quoting Byrd, 209 F.3d at 517-18), appeal denied,

Cole v. Zavaras, 349 F. App’x 328 (10th Cir. 2009).

~

oO

the panels in some of those cases could have reached

the same result by another route is irrelevant.

Third, Respondents commit similar errors when

discussing the circuits on the other side of the split.

Respondents concede that the First, Fourth, and

Fifth circuits have found Napue violations “on the

basis of accurate but misleading evidence,” Opp.10, but

contend that none of those cases arose in a habeas

context. That is factually wrong—at a minimum, both

Tassin v. Cain, 517 F.8d 770, 776 (5th Cir. 2008), and

Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir. 2003),

were habeas cases decided under 28 U.S.C. § 2254(d)—

and irrelevant. None of the courts of appeals had any

trouble identifying and applying this Court’s clearly

established precedent. See, e.g., Tassin, 517 F.3d at

778 (“Giglio and Napue set a clear precedent ....”);

United States v. Casas, 425 F.3d 23, 44 (1st Cir. 2005)

(finding the “at best, misleading” testimony in violation

of Giglio), cert. denied, 546 U.S. 1199 and 547 U.S. 1061

(2006); United States v. Sutton, 542 F.2d 1239, 1243 (4th

Cir. 1976) (“{[A]s in [Napue], here the prosecution

allowed a false impression to be created at trial ....”).

Nor do Respondents support their bald statement that

the cases are distinguishable because they involved

“factual settings where the evidence was intentionally

and highly misleading, not merely subject to possible

misinterpretation.” Opp.11. As explained in our

Petition, see Pet.29-34, many of these cases involved

4 Respondents’ reliance on older cases in these circuits, Opp.10,

is no more persuasive than its citation to Ramirez in the Ninth

Circuit. See supra n.1. These circuits obviously no longer follow

those decisions and the fact that several circuits have struggled

with this issue over time only highlights the wide-spread

confusion and disarray justifying review by this Court.

6

fact patterns just like this one, where prosecutors

intentionally concealed immunity or lenient treatment

afforded to their witnesses.

Respondents argue that the Second, Third,

Seventh, and D.C. Circuit cases involved false or

inaccurate statements as well as misleading ones.

Opp.11-12. Vases can certainly involve both misleading

and false testimony, but nothing in those cases

indicates that the courts required actual falsity in order

to reverse under Napue. Once again, Respondents try

to put their own gloss on the underlying facts in these

cases while ignoring the reasoning the courts actually

gave for their decisions. See, eg., United States -v.

Iverson, 637 F.2d 799, 805 n.19 (D.C. Cir. 1980) (noting

that a prosecutor must correct testimony regardless of

whether it is “technically perjurious or merely

misleading”) (emphasis added). Respondents employ

parentheticals to identify certain statements as

“inaccurate” when the court actually identified them as

misleading. See, e.g., Jenkins v. Artuz, 294 F.3d 284,

294 (2d Cir. 2002) (prosecutor elicited “technically

accurate testimony” that created a “false impression”’);

United States v. Morris, 498 F.3d 634, 640 (7th Cir.

2007) (“Here, the prosecutor’s misleading statement

ran the risk of facilitating untruthful testimony from

Peterson ....”) (emphasis added), cert. denied, 553 U.S.

1065 (2008).

3. Respondents seek to bar review of Petitioners’

claim under 28 U.S.C. § 2254(d) by asserting that “this

Court has never held that the prosecution’s

constitutional obligations entail not only correcting

false evidence, but also any evidence tending to

mislead.” Opp.13. But this Court has repeatedly

characterized evidence with a tendency to mislead as

“false” for Napue purposes.

As the petition explained, the witness’s testimony

in Alcorta v. Texas that he had never gone on “dates”

with the defendant’s wife and that they were not “in

love” may have been literally true. 355 U.S. 28, 29-31

(1957). This Court held that a new trial was necessary

because “Castilleja’s testimony, taken as a whole, gave

the jury the false impression that his relationship with

petitioner’s wife was nothing more than a casual

friendship,” when in fact they had a sexual relationship.

Id. at 31 (emphasis added). Respondents try to make

the testimony seem literally false by asserting that

“the Court cited the witness’s testimony that ‘his

relationship with petitioner’s wife had been only that of

a friend and neighbor, and that he had had no dates,

nor other relations with her.’”” Opp.14 (citing Alcorta,

3595 U.S. at 30). But that quote is not from Castilleja’s

actual testimony; it is an embellishment drawn from

the defendant’s habeas petition in Alcorta. See 355

U.S. at 30. Of course the defendant in Alcorta was

interested (like Respondents here) in making

Castilleja’s testimony seem even more misleading and

literally false than it actually was. This Court saw no

need to parse Alcorta’s characterization or hunt for

literal falsity in Castilleja’s testimony; it was enough

that the actual quoted portions of that testimony gave

the jury a “false impression.”

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

involved a combination of misleading half-truths by a

witness and a statement by the prosecutor that was

literally false. Respondents emphasize the prosecutor’s

false statement and downplay the witness’s misleading

testimony, Opp.14, but this Court’s reasoning drew no

such distinction. Regardless, a prosecutor in this case

(Latin) made an equally false statement in summation

that similarly sharpened the misleading character of

MecLoren’s prior testimony. See Pet.12. Latin’s

statement, in combination with McLoren’s testimony,

was no less an instance of “deliberate deception” of the

court and jury than occurred in Giglio. 405 U.S. at 153.

Finally, Respondents overstate the distinction

between non-disclosure cases based on Brady and false

testimony cases based on Napue. See Opp.l5. A

plurality of this Court has identified the common root:

of the two doctrines, see United States v. Bagley, 473

U.S. 667, 678-79 & n.8 (1985), and rejected the excuse

that “technically correct” statements would insulate

“misleading||” representations by the Government, 7d.

at 6384,

1. Judging from their question presented,

Respondents do not seriously deny that McLoren’s

testimony was fundamentally “misleading.” Instead,

Respondents rehash the same literal falsity analysis

put forth by the Ninth Circuit, which our Petition

addressed. See Pet.20-25. They also raise a few novel

arguments which we address below.

First, Respondents suggest for the first time that

McLoren’s claim that his lawyer gave him no

assurances that he would not be prosecuted was not

false because the question was limited to McLoren’s

state of mind prior to the immunity agreement.

Opp.18-19. But a simple review of the exchange shows

the question had no temporal limitations, Pet.8-9, and

even the Ninth Circuit did not suggest otherwise.”

E + ‘

” Respondents may be confused because the Ninth Circuit

elected to review this statement collectively with earlie:

v

Second, Respondents argue that McLoren’s answer

was not false because his immunity deal did not require

him to give favorable testimony. Opp.19. That is a

non-sequitur and does not bear on McLoren’s claim

that he was exposing himself to prosecution. Although

Respondents try to hypothesize scenarios in which

McLoren’s answer could literally be true, they do not

even attempt to argue that a jury would understand it

as anything other than an outright denial that McLoren

had received immunity. ®

Third, Respondents also change course on the issue

of DDA Latin’s statement in closing argument that

MecLoren’s testimony exposed him to “erimina!

lability.” Pet.App.1é0a-81a. In conflict with the Ninth

Circuit, Respondents now acknowledge that Giglro

held that a prosecutor’s false statement in closing

argument is relevant to the falsity inguiry. Opp.14.

However, Respondents then backtreck on_ their

concession below that Latin’s statemer ras “certainly

incorrect,” and embrace the Ninth Circuit’s speculation

that Latin might have been referring to a potential

prosecution for perjury. Compare Opp.22 with Pet.23

25. The Petition explained why that theory is absurd

and dangerous, Pet.24, and Respondents offer no

testimony from McLoren that related to a specific meeting with

two police officers. Pet. App.20a-2la

6 Respondents sugyest that the prosecution would not have

known that McLoren was lying because it was not privy to

conversations between McLoren and his lawyer. This suggestion

is facially wrong—since DDA Semow admitted to meeting with

both McLoren and his lawyer to work out the terms of the

immunity agreement, Pet.App.126a-27a_— and legally trrelevant a

the prosecution would have a duty to correct testimony it knew to

be false, even if Semow and McLoren’s attorney had, for som

unknown reason, conspired to keep McLoren in the dark

10

serious contrary argument. In context the jury plainly

would have understood Latin’s comment as referring to

a potential marijuana prosecution.

The false evidence in this case is self-evident.

McLoren refused to testify absent immunity for his

marijuana dealing, yet told the jury that he had

received no assurances and was testifying out of a

sense of loyalty to his dead friend, even if it meant that

he had to “take the drug charge.” Pet.5, 7-11. Whether

or not McLoren managed to skirt outright perjury,

there is no question thai his testimony, taken as a

whole, left the jury with the false impression that he

was testifying to his detriment in order to see justice

done. The prosecution knew full well that the jury had

been deceived, and cemented that deception in its

closing statement.

5. Respondents concede that false testimony is

material if it “cowld have affected the judgment of the

jury.” Opp.23 (citing United States v. Agurs, 427 U.S.

97, 103 (1976)) (emphasis added). This is one of the

most lenient materiality standards known to the law,

and it plainly is satisfied here.

First, Respondents claim that McLoren’s

motivation for testifying somehow was_ beyond

challenge because he “consistently reported that

petitioners came to the fort to rob him.” /d. But

McLoren’s story changed several times, and on more

than one occasion he described the incident as a “fight”

without mentioning a theft at all. Pet.6 & n.5. The

cause of the fight was a hotly disputed issue,

McLoren’s credibility was the central issue at trial, and

with knowledge of the immunity agreement the jury

may have believed that McLoren manufactured the

1]

robbery story in order to protect his deal with the

prosecution.

Second, Respondents assert that “McLoren’s

credibility was significantly impeached at trial.”

Opp.24. But the evidence Respondents cite—that

McLoren “changed his testimony only after retaining

counsel to deal with the marijuana issue” (Opp.25)—is

precisely why it was so critical for the jury to learn

how the “marijuana issue” was resolved. If McLoren

chose to testify despite his fear of legal liability, it lends

him enormous credibility. If, however, he only testified

after receiving immunity, the jury would be more

skeptical of his account. Given that the entire case

boiled down to McLoren’s testimony, any evidence

touching on his potential bias was material. See Pet.26-

27.

Third, Respondents contend that McLoren’s

testimony “was supported by substantial, independent

evidence.” Opp.25. But most of the “evidence”

Respondents cite cuts both ways. If Petitioners

intended to rob McLoren, it made little sense to send

the small, 15 year old Micah into the fort first. The

spontaneity of the fight could just as easily be

explained by the fact that all of the boys were

intoxicated and McLoren was “‘kind of angry.” Pet.28

(citation omitted). And the robbery theory is

undermined both by the fact that Petitioners did not

actually take any marijuana.

12

CONCLUSION

In this case, four teenage boys (one only fifteen

years old) were sent to prison for life because they

lived in a circuit that has drifted away from this

Court’s clearly established precedent. The petition for

certiorari should be granted.

Respectfully submitted,

WILLIAM J. GENEGO J. SCOTT BALLENGER

NASATIR, HIRSCH, Counsel of Record

PODBERESKY & GENEGO AARON G. MURPHY

2115 Main Street DANIEL R. SELTZER

Santa Monica, CA 90405 DEREK D. SMITH

(310) 399-3259 LATHAM & WATKINS LLP

555 11th Street, N.W.

Suite 1000

Washington, DC 20004

(202) 637-2200

scott.ballenger@Iw.com

Counsel for Petitioner

Brandon Hein

Counsel for Petitioner Micah

Holland

ERWIN CHEMERINSKY TRACY J. DRESSNER

UNIVERSITY OF 3115 FOOTHILL BOULEVARD

CALIFORNIA AT IRVINE #M-172

SCHOOL OF LAW La Crescenta, CA 91214

401 East Peltason Drive (818) 248-2961

Irvine, CA 92697

Counsel for Petitioner Toni

(949) 824-7722 J J

Mulrotti

Counsel for Petitioner Jason

Holland