# Petition for Writ of Certiorari — Chavis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1006

## Text

Supreme Court, U.S.

i 981232 00

: No.
it OFFI
In The

fe Supreme Court of the United States

7

om

uy October Term, 1997

: THIRL CHAVIS,
Petitioner,
e vs.
Ml THE UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
v THIRL CHAVIS, PRO SE

sf PRO SE LITIGANT

a THIRL CHAVIS,

1h Reg. No. 99019-012

- FPC-Nellis CS 4500
ah N.Las Vegas,NV 89036
;

the
> 8 waa

QUESTIONS PRESENTED
I.

WHEN THE LANGUAGE IS CONCLUSIVE IN A
CONGRESSIONAL STATUTE, IS IT WITHIN THE
AUTHORITY OF A FEDERAL COURT TO ALTER,
AND/OR REFUSE TO ADHERE TO THE LANGUAGE SET
FORTH BY CONGRESS WITHOUT THE EXPRESSED
AUTHORITY AND/OR CONSENT OF CONGRESS
MOREOVER, SINCE ACTIONS AND CONCLUSIONS
REACHED BELOW ARE IN DIRECT CONFLICT WITH
THE LANGUAGE SET FORTH IN AN’ ENACTED
STATUTE.

II.

IS IT PERMISSIBLE FOR A COURT OF APPEALS TO
TAKE CERTAIN ASSERTIONS AS PROVEN FACTS
WHICH WERE DERIVED FROM OR THE END RESULT OF
QUESTIONABLE OR CONTESTED FACTS MOREOVER,
SINCE THE CASE FILES AND RECORD DEMONSTRATE
THE DISPUTED FACTS CRUCIAL TO THE OUTCOME
WHICH INCLUDES GENUINE ISSUES OF FACT IN
DISPUTE ALONG WITH QUESTIONS OF LAW WHICH IN
ALL THINGS REQUIRED A HEARING?

Iil.

MAY A COURT OF APPEALS MANIFESTLY MAKE
FINDINGS AGAINST THE WEIGHT OF THE EVIDENCE
MOREOVER, MAKE A CONCLUSION CONTRARY TO AN
ENACTED STATUTE BY CONGRESS WITHOUT THE
EXPRESSED PERMISSION OR CONSENT OF CONGRESS
AND ALSO CONTRARY TO DECISIONS SET FORTH BY
THIS COURT WHICH IS FURTHER INDICATIVE OF A
CLEAR MANIFEST OF INJUSTICE ON THE RIGHTS

i

a

OFFERED PETITIONER BY THE CONSTITUTION OF
THE UNITED STATES?

IV.

DID THE SEVENTH CIRCUIT ERR WHEN IT WAVERED
FROM ITS LONG ESTABLISHED POLICY RELATIVE TO
SPECIFIC REASONING ON RULINGS FOR THE
PURPOSE OF APPELLATE REVIEW THEREFORE
OFFENDING PETITIONER’S DUE PROCESS?

Vv.

DID THE SEVENTH CIRCUIT ERR BASING ITS
CONCLUSION THAT PETITIONER HAD NOT MADE A
SUBSTANTIAL SHOWING OF THE DENIAL OF A
CONSTITUTIONAL RIGHT MOREOVER, SINCE ITS
CONCLUSION WAS BASED ON QUESTIONABLE OR
CONTESTED FACTS OF MATERIAL VALUE IN
DISPUTE?

PARTIES TO THE PROCEEDINGS BELOW

The only parties to the proceedings in
the United States Court of Appeals for the
Seventh Circuit were the United States of
America and Petitioner Thirl Chavis.

ii

TABLE OF CONTENTS Page
QUESTIONS PRESENTED ....... i-,ii

PARTIES TO THE PROCEEDINGS BELOW. ii

OPINION AND JUDGMENT BELOW. ... 1
JURISDICTION. .« «ss eee
CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED . s+ +«+s++s+¢e6 6 6 #7
STATEMENT OF THE CASE .....-.- 7-10
REASONS FOR ALLOWING THE WRIT . . 10-29
CONCLUSION. « « + @ see ee

TABLE OF CITED AUTHORITIES

STATUTES:
28 U.S.C.§ 1254(0).. 2 ee

18 U.S.C.§ 201 (e¢)(2)

Fed.R.Cr.P.Code Ann.§ 1621. . 729.

28 U.S.C. § 2295. 3.
Fed.R.App.P.Rule 22(b). .... .21
Fed. R.Cr. P.Rule 26.218) « 2)3 36
18 U.S.C. § 3500. . i& 60 ee
28 U.S.C. § 1Z78%6 eee

iii

AMENDMENTS :

V

ui
~J

VI. ie ea i a a a a ae a
CASES:

In re Certificates of
Appealability, 106 F.3d 1306 @
I eA Ee ee 2 |

U.S. v. Hernandez, 7/731 F.2d 114
RE) ee

U.S V. Evans, 572 F.2d 455,480
ee ee ee

U.S. v. Campbell, 684 F.2d 141,
150(D.C.Cir. 1982) ke « « = 6s ee

U.S. v. Brewster, 506 F.2d 62,82
Dann. Bees «6 « «+ 6 *& x 3

U.S. v. Brewster,(same)408 U.S.
eS

Nardone v. U.S. 302 U.S.
gs a a ry a

U.S. v. Arizona, 295 U.S. 174,
ES es |

K

Dollar Sav. B
(19 Wall.) 22

an
7

Herron, 87 U.S. (20 Wall.) ®@
OE a a er ae a eo ae ee ee

U.S. v. Marmoljo, 89 F.3d 1185,
LSULC SEN Cis, 1908) ss eS ee eo

(@)

U.S. v. Williams, 705 F.2d
Bee s o-e a se ko ee ee ee

Girtad, 601 F.zZ¢ @ 7i. «© «© « «© «© w 8

Russello, v. U.S. 464 U.S. 16, 21
e. 33 ir ae ee ea

U.S. v. Nilsen, 967 F.2d 39,

342-43 (iite Cir. 1992) .« « « « wae
U.S. VW. Soenwaertz, 785 F.2€a 54,55
(9th Cir) aa eo er ae ee 25

U.S. v. Picquet, 963 F.2d 54, 55
C3ON Catt « 8 oe eS he SS eo SO

U.S. v. Cervantes-Pacheco, 826 F.
246 320, 315 (Sth Gie.es wow « & « wee

U.S. v. Kimble, 719 F.
1255-57 (5th Cir. 198

H.R. Rep. No. 87-748, at (1961) . 26

Dixson v. U.S. 465 U.S. 482, 496
(1984)... er ae ae ee ee

Salinas Ve ewes 118 S.Ct.469,
Jt; a a a a a oe ee ee es eee

U.S. v. Raynor, 302 U.S. 540,
eG | a mn

U.S. v. Ryan, 903 F.2d 731,
Ke a oe a |

U.S.ex rel 132 F3d 1252,1257
[OGn Cis. teers «+ we ee ee 29

U.S. v. Lopez, 4 F.3d 1455,1458-
S3 (9th Cie. 1993). .« . «se «cdf

Matter of Doe, 801 F.Supp. 478,
484-87 (D.N.M. 1992). ..... .29

Butz v. Economou, 438 U.S. 478,
S694 1978) « « « « .. «6 he ee

U.S. v. Barrett, 505 F.2d 109]
(wee Cie. 297) we et te et kt. —.

Connecticut Nat'l Bank v. Germain
270s U.S. BOP. BOBls 6 & w ks — >

U.S. v. Estate of Romani,
118 S.Ct. 1478 1998) ' 28

vi

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1997

No.

THIRL CHAVIS,
Petitioner,

Vv.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit

Le

OPINION AND JUDGMENT BELOW

The opinion below is unpublished. A
copy is included in the Appendix hereto as
App. 1

Il.

JURISDICTION

This Court has jurisdiction to enter-

tain Petitioner's Petition for a Writ of

Certiorari pursuant to 28 U.S.C. § 1254(1).
1

The United States Court of Appeals for the
Seventh Circuit entered its final judgment
July 30, 1998. This Petition is being
filed with the Court timely of the entry
of Seventh Circuit's final judgment.

III.

CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED

z= tft

Statutory Construction. Interpretation of
a federal statute by courts of appeal and
the Supreme Court has long been esta-
blished that the review is de novo. In
various cases in the past, the Supreme
Court has stated in part that its inquiry
relative to interpretation of a federal
Statute begins with the language of the
Statute, which must ordinarily be regarded
as conclusive and, that the strong pre-
Sumption that the plain language of the
Statute expresses congressional intent is
rebutted only in rare and exceptional cir-
cumstances, when a contrary legislative
intent is clearly expressed. The Supreme
Court went on and stated that in the
absence of that rare and exceptional cir-
cumstance, we are to take Congress at its
word. In the course of its decision, the
Supreme Court wrote, Courts cannot with
ease presume ratification of that which
-ongress forbids. 180U.S.C. § 201(c)(2)
could not be more clear. It says:
Whoever...directly or indirectly, gives,
offers or promises anything of value to

2

any person, for or because of the testi-

mony under oath or affirmation given or to
be given by such person as a witness upon
a trial, hearing, or other proceeding, be-
fore any court...authorized by the laws of
the United States to hear evidence or take
testimony... shall be fined under this
title or imprisoned for not more than two
years, or both. The class of persons who
can violate the statute is not limited.
Whoever completes the following elements
commits a crime. 18 U.S.C. § 201(c)(2).
First, the statute requires a gift, offer,
Or promise, either direct or indirect, to
a person. Seconac, the gift, offer, or pro-
mise must be of value. Third, the gift,
offer or promise must be made for or
because of the person's sworn testimony at
a trial or other proceeding before an
authorized court. The state of mind re-
quired to violate the statute is knowledge
that the thing of value is given for or
because of testimony. Even if § 201 (c)(2)
could be said to deprive the sovereign of
an established prerogative, two further
exceptions remove § 201 (c)(2) from this
Class status. First, the presumption that
the excluded unless named does not apply
where the operation of law is upon the
agents or servants of the government
rather than on the sovereign itself. Id.
The Supreme Court held in one of its deci-
sions that, § 201 (c)(2) does not restrict
any interest of the sovereign itself; it
operates only upon an agent of the sovere-
ign limiting the way in which that agent
Carries out the government's interest.
There is no presumption that regulatory
and disciplinary measures do not extend to
such officers. Taken at face value the

3

soap

language the purpose of Congress to govern
conduct of its own officers and employees
as well as that of others. Second except-

ion provides that the government is sub-
ject to a statute, even if it infringes
upon a recognized government prerogative,
if the statute's purpose is to prevent
fraud, injury, or wrong. The antigratuity
provision of § 201 (c)(2) indicates Cong-
ress's belief that justice is undermined
by giving, or promising anything of value
for testimony. If justice perverted when
a criminal defendant seeks to buy testi-
mony from a witness, it is no less per-
verted when the government does_ so.
Because § 201 (c)(2) addresses what
Congress perceived to be ae wrong, and
operates to prevent a fraud upon the
federal courts in the form of inherently
unreliable testimony, the proscription of
§ 201 (c)(2) must apply to the government.

Further, the interests of the government
as sovereign militate in favor of applying
§ 201 (c)(2) against federal prosecutors.
The interest are in the enforcement of its
laws and the just administration of its
judicial system applying § 201 (c)(2) to
all parties in the judicial system
advances both interest. The policy
expressed in § 201 § (c)(2) has long been
enforced at common law. The policy is
weighty enough that contracts to pay fact
witnesses are void as violative of public

policy.

z= &«

Perjury Generally. Whoever - (1) having
taken an oath before a competent tribunal,
officer or person, in any case in which a
law of the United States authorizes an

4

Oath to be administered, that he will tes-
tify, declare, depose or certify truly, or
that any written testimony, declaration,
deposition, or certificate by him subscri-
bed, is true, willfully and contrary to
such oath states or subscribes any mat-
erial matter which he does not believe to

be true or (2) in any declaration, certif-
icate, verification, or statement under
penalty of perjury as permitted under sec-
tion 1746 of Title 28 U.S.C. willfully
Subscribes as true any material matter
which he does not believe to be true; is
guilty of perjury. (This section is appli-
cable whether the statement or subscript-
ion is made within or without the United

States). Fed R.Crim.P.Ann. § 1621.

z* << ft

Misrepresentation Generally. An untrue
statement of fact. That which, if accepted
leads the mind to an apprehension of a
condition other and different from that
which exists. Colloquially it is under-
stood to mean a statement made to deceive
Or mislead. Black's Law Dictionary - Fifth
Edition.

Se & ¢
de novo review. District court's dismissai

of a federal prisoner's habeas corpus
petition is reviewed de novo. 28 U.S.C. §
2255.

z* << ft
Due Process. No person shall be deprived
of life, liberty, or property without due
process of law. Constitution of the United
States of America, Amendment V.

5

=z *« f

Findings and Conclusions. Findings of fact
and conclusions of law are "indispensable
to appellate review". 28 U.S.C. § 2255.

A rather terse statement will not suffice.
I a

zx «ft

AMENDMENT VI — INEFFECTIVE ASSISTANCE

To establish or demonstrate ineffective
assistance of counsel, habeas corpus Peti-
tioner would have to show that counsel's
performance was "deficient" and "that def-
cient performance prejudiced defense".
Constitution of the United States of

America, Amendment VI.

=z « ft

Determining The Incorporation of The

Jencks Act
After a witness other than the defendant

has testified on direct examination, the

court on motion of a party who did not

call the witness, shall order the attorney
for the government or the defense and the

defendant's attorney...to produce for the
examination and use of the moving party,
any statement of the witness that is in
their possession and that relates to the
subject matter concerning which the wit-
ness has testified.Fed.R.Crim.P. Rule 26.2
(a); Fed.R.Crim.P. Rule 26.2(f£)(3) expres-
Sly defines the "Statement" of a witness
to include a statement made by a witness
to a grand jury. 18 U.S.C. § 3500(e)(3)
"entitles a defendant to the grand jury
testimony of a government trial witness
without any preliminary inspection for

0

usefulness" by trial judge. 2 Charles A.
Wright and Arthur R. Miller, Fed.Practice
and Procedure § 436-38(1982 & Supp. 1995).

=z & ft

BRADY V. MARYLAND UNDER
AMENDMENT V — DUE PROCESS

The meaning of materiality is that a
reviewing court must focus on the fairness
of the trial the defendant actually

received rather than on whether a diff-
erent result would have occured had the

undisclosed evidence been revealed.
Constitution of the United States of
America, Amendment V.

IV.

1
STATEMENT OF THE CASE

Pursuant to a four(4) count Superseding
Indictment which was returned in the
United States District Court for the
Southern District of Indiana, Indianapolis
Division on March 24, 1993, and in further

-ance of Petitioner Thirl Chavis's plea of

T
The jurisdiction of the court below was
invoked pursuant to 28 U.S.C. § 1291.

7

not guilty, Petitioner went to trial by

jury to the charges alleged in the Indict-
ment which were some 47 months from the
date the alleged offenses occured and the
date of the Indictment. The jury found
Petitioner guilty on all four counts in
the Indictment. Relative to Petitioner's

conviction, Petitioner's counsel did the

the following: (1) filed a timely notice
of appeal; (2) filed a motion to dismiss
appeal pursuant to his’ advice to Peti-
tioner to file a § 2255. The facts on
Petitioner's § 2255 are set forth in the
order of the U.S. Court of Appeais for the
Seventh Circuit dated September 17, 1997.
App. 10. It is also stated in the lower

court's order that Petitioner was under

the’ district court's invitation to rein-

state or commence a new action pursuant to

§ 2255, when Petitioner had satisfactorily
8

completed his investigation. In further-
ance of the district court's order for the
refilling or filing a new cause of action,
App. 10 Petitioner filed his § 2255. The
district court denied it and Petitioner;
(1) filed notice of appeal, Id. (2) court
below remanded for further proceedings,Id.
(3) district court ordered government to
file an answer, App. 34, (4) government
responded, Petitioner replied and district
court denied with prejudice. App. 30-33.
(5) Petitioner filed for Certificate of
Appealability ("COA") App. 25-29, (6) dis-
trict court denied. App. 23-24. Petitioner
pled in the alternative, district clerk
Submitted the record to the court below
App. 20-22, (7) Petitioner filed his dock-

eting statement App. 13-18, (8) court

below ordered appellee to file jurisdic-

tional Memorandum App. 12, Avpellee com-
9

plied App. 6-9, Petitioner responded App.

2-5, the court below in its rather terse

statement denied Petitioner. App. l.

REASONS FOR GRANTING THE WRIT

This case exemplifies direct conflict

to that of statute law as well as to pre-

vious decisions made by this Court relat-
to the statutes set forth herein below.

Facts Pertinent To The 18 U.S.C. § 201(c)
(2) Issue:

In view of the fact Petitioner pled not

guilty to the four counts in the indict-
ment App. 45, 46, the evidence comprised
during trial clearly demonstrates, there
are several problems here of Constitut-
ional magnitude which could have been in

all things cured had the court below (1)

reviewed the case at bar de novo as requi-

red (2) referenced the documents, papers

and record in the case at bar. The clear
10

problems which exists are, but not limited

to:

1. Pursuant to Petitioner's request for
the court below to review the record de
novo in furtherance of Petitioner's COA
appeal, the record is devoid of such re-

view undertaken by the court below. Had a

de novo review been made, the following
would have been found by the court below;

2. Relative to promises in consider-
ation of anything of value in exchange for

witness's Sworn testimony, government

agents, i.e. U.S. Attorneys and/or their
assistants are governed by 18 U.S.C. § 201
(c)(2). Further § 201 (c)(2) prohibits and
condemns promises made pursuant to consi-
deration of anything of value in exchange

for witness's sworn testimony.

3. Petitioner argued vigorously the

leniency promised and granted to the
11

government witnesses in exchange for their

sworn testimony, as stated above is in all

things prohibited by 18 U.S.C. § 201(c)(2)

which violated Petitioner's due process to

8 tate trial. In its wisdom, this Court

established and set forth the following;

Decency, security and liberty alike
demand that government officials shall
be subjected to the same rules of con-
duct that are commands to the citizen.
In a government of laws, existence of
the government will be imperiled if it
fails to observe the law scrupulously.
Our government is the potent, omnipre-
sent teacher. For good or for ill, it
teaches the whole people by its example
Crime is contagious. If the government
becomes a lawbreaker, it breeds cont-
empt for law; it invites every man to
become a law unto himself; it invites
anarchy. To declare that in the admin-
istration of the criminal law the end
justifies the means--to declare that
the government may commit crimes in
order to secure the conviction of a

private criminal--would bring terrible
retribution. Agents that pernicious
doctrine this Court should resolutely
set its face. 277 U.S. 438, 485 (1928).

Some 50 years later the Court stated:

This venerable principal will not give
way to the expediency of the govern-

12

ment's present practices without legi-
Slative authorization. 457 U.S. 332,

352 (1982).

4. The evidence in the case at bar is
overwhelming in furtherance of prohibition
and condemnation of promises made pursuant
to anything of value in exchange for wit-
ness's Sworn testimony moreover, the plea
agreement and the complete understanding
therein in regards to the witness procur-
ing the valuable cut in sentence in exch-

ange for her sworn testimony. Considering
federal government agent Tom Casey's pick

and choose prosecution between the state

of Indiana and federal, Casey demonstrated
while on the stand in the case at bar how
his promises and payment in exchange for
the government witness's testimony clearly
was something of value [App. 59];[Vol.I

Trial Transcript page 28, lines 15-17];

[Vol. I Trial Transcript page 29, lines l1-
13

She Government agent Casey's inducement
for government witness Siakotos to testify
is clearly exhibited in Vol. I Trial Trans
cript page 70, lines 13-25; Vol. I Trial

Transcript page 71, lines 1-3. Further,

the two Crucial events which occurred in

the course of the improprieties on the
part of the prosecutor and agent Casey
which were not addressed by the lower
court which was caused by the failure to
review the case at bar de novo or refer-
ence the record were: (1) allegations set
forth in the Indictment were in or around
April, 1989 to July, 1989. (2) government
witness Siakotos testified she was not
sentenced until early 1991 and her sent-
ence was only Six years pursuant to the

plea agreement herein discussed. It is in

all things clear that, Agent Casey took 2

years to muster the offer and promise to
14

government witness Siakotos in exchange
for her false sworn testimony which in
all things Petitioner pointed out in
detail in the district court but, instead
of referencing the record or reviewing
the case at bar de novo as required, the
court below merely rendered its rather
terse statement. In furtherance of the
above, the Fifth Circuit in its wisdom
stated in part: _‘‘We think it obvious that

, . j it _— Load

ij , —

id , ind t 4 falsify i
that case.’’ 719 F.2d 1253-57 (Sth Cir.

1983). The case at bar is classic that
was found in the Fifth Circuit’s wisdom
of some 15 years ago. In the case at bar,
two factors demonstrate how Petitioner’s
conviction was obtained illegally. (1)
When Special Agent Casey went to the

place of confinement of government

witness Siakotos and promised her
15

leniency in her State sentence in
exchange for her sworn testimony in the
case at bar. Even though it was. some
forty seven (47) months subsequent to the
alleged offenses, and the fact it took
S/A Casey that long to reach the
agreement with Siakotos that involved the
promise of leniency and, for Siakotos to
trust such arrangement. Further, Siakotos
had to join forces with S/A Casey for the
fabrication of her testimony. (2) The
record speaks out loudly on the per jured
testimony that Siakotos proffered in
court. The record demonstrates how
Petitioner’s conviction was obtained
illegally moreover, in direct conflict
with statutory law. 18 U.S.C. section 201

(c)(2). This Court at various times has
in all things emphasised, ‘*The intention

7?r 6&4M

conclusive. 447 U.S. 102, 108. Further,

16

as this Court previously concluded, ‘‘we
are bound to take Congress at its word.’’
118 S.Ct. 838, 841. Facts pertinent to 18
U.S.C. sections 201 (c)(2): and 1621
which Circuits have quoted that has long
been the standing of this Court which it
states in part: The class of persons who
can violate the statute is not limited.
**Whoever completes the following elements
commits a crime. 18 U.S.C. section 201
(c)(2). First, the statute requires a
gift, offer, or promise, either direct or
indirect, to a person, See id. Second,
the gift, offer or promise must be ‘of
value’.’’ Id. Third, the gift, offer, or
promise must be made ‘for’ or ‘because
of’ the person’s sworn testimony at a
trial or other proceeding before an
authorized court. Id. The state of mind

required to violate the statute is

knowledge that the thing of value is
17

agents or servants of the government
rather than on the sovereign itself.’’ See

Nardone v. United States, 302 U.S. 379,
383 (1937) at 383; United States vy.
Arizona, 295 U.S. 174, 184 (1935); Dollar

Sav. Bank v. United States, 86 U.S. (19

Wall.) 227, 239 (1873). Taken at face
value, the language indicates the purpose
of Congress to govern conduct ofits own
officers and employees as well as that of
others. Arizona, 295 U.S. at 184 (holding
the Secretary of the Interior was clearly
subject to a law prohibiting ‘*‘any
person’’ from constructing a dam on
navigable waterways without the consent
of Congress). The entire language of 18
U.S.C. section 201 (c)(2)is in totality
silent on the issue that Congress
permitted any agent(s) of the sovereign
namely any prosecutor to violate and/or
to be in direct conflict with the
language in section 201 (c)(2) therefore
the above stated actions on the part of
S/A Casey and the prosecutor violated
section 201 (c)(2) moreover with the
perjured testimony which was proffered by

the government’s chief witness during
18

and evidenced in the record hereto.
Petitioner argues that, since the court
below did not have the expressed
authority or consent of Congress to do
so, it could not alter any portion of the
conclusive language in 18 U.S.C. section
201 (c)(2). The failure on the part of
the court below to adhere to the said
statute demonstrates the violation of the
same statute. In furtherance of the above
stated conflict and violation, the record
decisively demonstrates the exact
prognostication of the Fifth Circuit some
fifteen years ago when it stated in part:

‘*‘We think obvious that promises of
immunity or leniency premised on
cooperation in a particular case may
provide a strong inducement to falsify in
that case.’’ 719 F.2d 1253-57 (5th Cir.
1983). In view of the decision made below

and Petitioner’s section 2255 was in fact
19

filed in accordance to the district court
and its order as stated herein which was
not addressed or interpreted by the court
below which in essence deprived
Petitioner of his due process pursuant to
the actions or non-actions by the court
Felow moreover, had the court below
reviewed the record de novo as required,
the miscarriage of justice which occurred
in connection with the above’. stated
conflicts would have been corrected in
the normal course of a de novo review by
the court below. Further, the court below
would have found that, the district
court’s ambiguous orders App.31 and
App.23 dealt with the AEDPA and i=in
totality refused to address its own
invitation to Petitioner which was a
clear on going case, exempt from the
AEDPA. The court below merely paraphrased

the district court’s final order App. l,
20

which certainly appears to further the
miscarriage of justice.
POINT I
In the case at bar, since the district
court denied the certificate of
appealability (‘**‘COA’’), the notice of
appeal constituted a request to have all

of the issues reviewed by a judge of the

court of appeals. Fed.R.App.P. Rule
22(b). In... xe Certificate of
Appealability, 106 F.3d 1306 at 1307.
Further, there seems not to be a conflict
between the Seventh Circuit and the Fifth
Circuit relieve to state findings and
conclusions for 28 U.S.C. section 2255

for the reason’ that findings and

conclusions *‘*‘are plainly indispensable to
appellate review.’’ Hart v. United States,
565 F.2d 360, 362 yet, in the case at
bar, the Seventh Circuit failed to adhere
to its long standing as stated in the

Hart case above cited. Since the order of
21

the court below App. 1 indicates’ the

court failed to review the case at bar de
novo the court below failed to address
the district court’s invitation for
Petitioner to refile as previously stated
herein therefore violating Petitioner’s
Due Process under the Constitution of the
United States to equal protection of the
law. Fifth Amendment. Further, in the
process of the failure to review the case
at bar de novo, by the court below,
Petitioner argues that, the hard evidence
he attached to his pleadings in the court
below App. 59, 60, 64, 65, 66, 67,
relative to the direct conflict with
statute 18 U.S.C. section 201 (c)(2) by
the above stated government agents which
required a hearing was in furtherance of
the miscarriage of justice herein stated
and evidenced for the reason that it has

been consistently noted that section 201
22

is to be broadly construed to further its
legislative purpose of deterring
corruption. See United States Vv.
Hernandez, 731 F.2d 1147, 1149 (5th Cir.
1984); United States v. Evans, 572 F.2d
455, 480 (5th Cir.), cert. denied 439
U.S. 870 (1978).

This court should in the interest of
justice to correct the miscarriage of
justice suffered by Petitioner the
decisions this court has rendered in the
past. The Arizona court 295 U.S. @ 184,
the Nardone court 302 U.S. @ 384, the
Herron court 87 U.S. (20 Wall.) at 255-56
all of which have yet to be overturned
relied on the principal to hold that
federal agents were covered by the
statutory term ‘‘anyone’’ in the 1934
federal wiretap statute. 302 U.S. @ 382-
84. This holding still stands obviously
since the holding has never been

over .urned and the conclusive
23

Congressional language has not been
altered by Congress since its enactment
therefore, the language in 18 U.S.C.
section 201(c)(2) should apply to the
case at bar. Further, since it has been
uniformly rejected that ‘““anything of
value should be restricted to things of
monetary commercial ,objective, actual, or
tangible value’’ interpretation is based
upon a recognition that monetary worth in
not the sole measure of value. Marmolio,

89 F.3d 1185, 1191 (5th Cir. 1996);
Williams, 705 F.2d @ 622-23; Girad, 601
F.2d @ 71; Russello, 464 U.S. 16, 21

(1983). The promised and procured
leniency of sentence herein stated should
in all things be broadly construed in
accordance to section 201 in order to
carry out its Congressional purpose.
Williams @ 603. The leniency stated

herein is Clearly ‘‘thing of value’’ See
24

Nilsen, 967 F.2d 539, 542-43 (12th Cir.
1992) cert. denied, Schwartz, 785 F.2d
679-81 (9th Cir.) cert. denied, Pacheco,
826 F.2d 826 F.2d @ 315 (5th Cir. 1985);
Kimble, 719 F.2d @ 1255-57 (5th Cir.
1983); Picquet, 963 F.2d 54, 55 (5th
Cir. 1992).

The Picquet court agreed with circuits
which held that the test of value is
whether the recipient subjectively
attaches value to the thing received. Id.
@ 55. In the case at bar the thing of
value was leniency of many years off of a
sentence. The court below obviously is
also in conflict with the circuits that
held the test of value as stated above.
Rulings on a promise, false testimony,
threat to a witness’s truthfulness are
those of the Fifth Circuit noting that
certiorari was denied. Pacheco, 826 F.2d

@ 315;_ Kimble, 719 F.2d @ 1255-57. It

should be concluded that the government
25

witness herein referenced had a strong
inducement to falsify her testimony
during trial in this case.

POINT II.

In reference to the district court’s
order App. 10-11, did the court below err
when it made its findings and conclusion.
The above stated district court order
App. 10-11 demonstrates the ongoing
litigation which could not be confused by
the AEDPA’s time limitations. Further,
the failure on the court below to a de
novo review of the record in the case at
bar omitted the finding that,
Petitioner’s pleadings were pursuant to
authority set forth by this Court
moreover, (a) Ineffective assistance of
counsel; (b) Jencks Act; (c) Brady Rule.
In futherance of the above, Congress in

H.R. Rep. No. 87-748. at 16 (1961), set

forth the conclusive language that

‘““Anything of value by ‘witness’ ‘for’ or
26

‘because of’... testimony’’ should also be
prohibited.’’ The committee report also
indicates Congress’s policy: ‘*The conduct
which is forbidden has the appearance of
evil and the capacity of serving as a
cover for evil. Id. at 19. This Court for
more than 60 years has expressed
instructive words: **No rule of
construction...requires that a penal
statute be strained and distorted in
order to exclude conduct clearly intented
to be within its scope.’’ This Court has
further expressed that in essence a
matter which tends to alter the intent or
conclusive language of Congress is one of
policy for Congress to decide. Dixon v.
United States, 465 U.S. 482, 496 (1984);
See Salinas v. United States, 118 S.Ct.
469, 475 (1997)(citing United States v.
Raynor, 302 U.S. 540, 552 (1938)); See

Nardone, 302 U.S. at 383.
27

Le

Over two decades ago the court below
stated its position in conflict to 18
U.S.C. section 201 (c)(2) when it stated
in part: ‘**‘if the government can excuse
criminal or civil liability in setting a
criminal case, surely it can use that
power of compromise to obtain a guilty
plea ot to procure testimony in other
proceedings.’’ United States v. Barrett,
505 F.2d 1091 (7th Cir. 1974). In essence
the court below in its conclusion above
stated tends to imply repeal and/or
amendment to section 201 (c)(2) which is
clearly disfavored by this Court. See
e.g. United States v. Estate of Romani,
118 S.Ct. 1478, 1486 (1998); 1A Norman J.
Singer, Sutherland Statutory Construction
section 22.13 (5th ed. 1992)(**Amendments
by implication, like repeals by
implication, are not favored and will not

be upheld in doubtful cases...’’) Id. at

section 23.09. The majority of the
28

section 23.09. The majority of the
circuits are in conflict with the court
below and its above stated conclusion.
Other circuits restrict federal
prosecutors to adhere to statute law.
Ryan, 903 F.2d 739-40 (10th Cars}?

McDonnell Douglas Corp. 132 F.2d 1257
(8th Cir. 1998); Lopez, 4 F.3d 1458-63

(9th Cir. 1993); Matter of Doe, 301 F.
Supp. 484-87 (D.N.M. 1992). The case at
bar is a classic miscarriage of justice
pursuant to the total disregard
for statutory law as stated herein.
CONCLUSION

For the foregoing reasons, Petitioner
Thirl Chavis repectfully requests’ that
the Court issue a writ of certiorari to
review the judgment and opinion of the
United States Court of Appeals for the

Seventh Circuit.

29

eo,

Respectfully submitted,

THIRL CHAVIS, PRO SE

Reg. No. 99019-012

FPC-Nellis CS 4500

North Las Vegas, NV 89036-4500

CERTIFICATE OF SERVICE

I hereby certify that a true and
correct copy of the foregoing has been
caused to be served upon the Solicitor
General of the United States, Room 5614,
Department of Justice, 950 Pennsylvania
Ave., N.W. Washington, DC 20530-0001 by
depositing the same on this 30th day of

January, 1999, in the U.S. Mail First-—

Class Delivery postage prepaid.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1237%3A1. Public record. Not legal advice.