# Reply Brief — Hein v. Sullivan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2746%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 935

## Text

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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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Counsel for Petitioner

Holland

TABLE OF CONTENTS

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it ee PY cahesniccnncpinevenancaterncers eoaeateees ane detaranin 12

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2746%3A3. Public record. Not legal advice.