NO. 13-912
In the Supreme Court of the United States
BILL DONAT, WARDEN; ATTORNEY GENERAL
OF THE STATE OF NEVADA,
Petitioners,
v.
TODD M. HONEYCUTT,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
REPLY BRIEF OF PETITIONERS
Catherine Cortez Masto
Attorney General of Nevada
Dennis C. Wilson
Counsel of Record
Senior Deputy Attorney General
555 E. Washington Ave. #3900
Las Vegas, NV 89101
(702) 486-3086
dwilson@ag.nv.gov
Counsel for Petitioners
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii
REPLY BRIEF FOR PETITIONERS . . . . . . . . . . . . 1
1. In deciding whether the State violated
Honeycutt’s right to counsel, the lower court
incorrectly based its analysis on how the
incriminating statements were used at the
properly joined rape and solicitation trials,
instead of only determining whether during the
surreptitious interrogation of Honeycutt the
State deliberately elicited incriminating
statements about the rape . . . . . . . . . . . . . . . . . . 1
2. The State did not waive harmless error review
because it provided the Ninth Circuit’s
requested supplemental briefing and because
Honeycutt failed to raise the waiver argument
until after initial briefing and oral argument had
concluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. The Court should grant the petition for writ of
certiorari because the majority panel’s decision
not to address harmless error contravenes this
Court’s holding in Fry and the published
decisions of other Courts of Appeals . . . . . . . . . . 6
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii
TABLE OF AUTHORITIES
CASES
Bond v. Beard,
539 F.3d 256 (3d Cir. 2008) . . . . . . . . . . . . . . . . . 7
Brecht v. Abrahamson,
507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . . . . . . . 5
Fry v. Pliler,
551 U.S. 112 (2007) . . . . . . . . . . . . . . . . . . . 1, 6, 7
Kansas v. Ventris,
129 S.Ct 1841 (2009) . . . . . . . . . . . . . . . . . . . . . . 1
Kuhlmann v. Wilson,
477 U.S. 436 (1986) . . . . . . . . . . . . . . . . . . . . . . . 1
Maine v. Moulton,
474 U.S. 159 (1985) . . . . . . . . . . . . . . . . . 1, 3, 4, 5
Massiah v. United States,
377 U.S. 201 (1964) . . . . . . . . . . . . . . . . . . . 1, 4, 5
1
REPLY BRIEF FOR PETITIONERS
This Court should grant certiorari or summarily
reverse the decision below because the Ninth Circuit
1) improperly expanded Maine v. Moulton, 474 U.S.
159 (1985) by holding that anytime a second, separate
crime shows consciousness of guilt of a previously
charged crime, those two crimes cannot be tried
together, and because it refused to address harmless
error as required by Fry v. Pliler, 551 U.S. 112 (2007).
1. In deciding whether the State violated
Honeycutt’s right to counsel, the lower court
incorrectly based its analysis on how the
incriminating statements were used at the
properly joined rape and solicitation trials,
instead of only determining whether during
the surreptitious interrogation of Honeycutt
the State deliberately elicited incriminating
statements about the rape.
The State categorically disputes that it
circumvented Honeycutt’s lawyer, violated the right to
counsel attached to the rape charge, or violated
Massiah. Based on Kuhlmann v. Wilson, 477 U.S. 436,
459 (1986) and Kansas v. Ventris, 129 S.Ct 1841 (2009),
the only time the state could have violated the rape
right-to-counsel was at the time the undercover officer
interrogated Honeycutt about the solicitation charge.
The Ninth Circuit incorrectly based its analysis on how
the incriminating statements were used when the rape
case and the solicitation case were properly joined at
trial. Further evidence that the Ninth Circuit and
Honeycutt used the wrong analysis by incorrectly
focusing on the use of the incriminating statements at
trial is found in Honeycutt’s Brief in Opposition:
2
1) where he argues that the whole point of the State’s
insistence that the cases be joined was to use the
incriminating statements [about the solicitation] to
prove he was guilty of the pending rape charge; and
2) where he further states that “the panel did not
necessarily rule that it would have been unreasonable
to introduce the incriminating statements at a joint
trial, so long as they were not used to prove the preexisting sexual assault charge.” The error in the lower
court’s analysis and Honeycutt’s position is shown in a
nutshell by Judge Noonan’s pressing questioning of the
Attorney General (see n. 6 at p. 22 of Honeycutt’s Brief
in Opposition) where the judge concludes that the State
violated the Sixth Amendment because it used the
surreptitiously-obtained incriminating statements to
prove the first counts [rape and kidnapping]. Judge
Smith dissented from this incorrect analysis because
the majority panel created a new rule that anytime a
second, separate crime shows consciousness of guilt of
a previously charged crime, those two crimes cannot be
tried together. The Ninth Circuit’s analysis was
overbroad and incorrect and not based on any clearlyestablished precedent.
In the context of a Sixth Amendment right-tocounsel analysis, the only issue is whether, at the time
of a surreptitious interrogation, the State deliberately
elicited incriminating statements about a crime to
which the offense-specific right to counsel had
attached. If the State did not do so, then the
incriminating statements are admissible at a trial of
that offense.
The undercover interrogation of
Honeycutt asked no questions about and elicited no
incriminating statements about the rape, only about
arranging and accomplishing the murder of the victim;
3
consequently, the interrogation did not violate the
offense-specific right to counsel which had attached to
the rape charges. The interrogation also did not violate
the solicitation right to counsel because Honeycutt had
not yet been charged with the solicitation. There was,
therefore, no violation of the Sixth Amendment right to
counsel. The Sixth Amendment right to counsel did not
prohibit the admission of the incriminating statements
at the solicitation trial. Any further analysis about
how the statements were used at trial improperly
expands this Court’s clearly-established precedent.
Based on the foregoing, the lower court erred.
In his Brief in Opposition, Honeycutt also makes
the sheerly-speculative allegation that there is “every
reason to believe that the State circumvented
Honeycutt’s counsel and initiated the undercover
investigation not just to investigate a ‘new’ offense, but
to obtain inculpatory statements that would
supplement its demonstrably inadequate case for the
sexual assault. There is absolutely no evidence to
support these bald allegations. Rather than illuminate
error, these types of groundless claims highlight the
argument that the Honeycutt decision improperly
expanded Moulton by applying law which this Court
has not clearly established, that is, that anytime a
second, separate crime shows consciousness of guilt of
a previously charged crime, those two crimes cannot be
tried together. For example, if the Honeycutt decision
stands, and should the State re-try Honeycutt, the
lower court’s ruling will prohibit the State from
admitting into evidence Honeycutt’s plan to kill the
victim to show his consciousness of guilt. Based on the
foregoing, the lower court erred.
4
2. The State did not waive harmless error review
because it provided the Ninth Circuit’s
requested supplemental briefing and because
Honeycutt failed to raise the waiver argument
until after initial briefing and oral argument
had concluded.
The state supreme court and the federal district
court did not address the issue of harmless error
related to the Moulton/Massiah right to counsel issue
and made no harmless-error rulings thereon because
both of said courts rejected Honeycutt’s claim that the
admission of his incriminating statements at trial
violated his right to counsel. App. 65 and App. 98, n. 6.
Since the courts found no error, there were no harmless
error rulings related to this issue.
Honeycutt filed his Ninth Circuit Opening Brief
(ECF 22) which contained the following paragraph at
p. 70:
The outcome of this claim, as such, is
controlled by the Supreme Court’s clearly
established ruling in Moulton. The Nevada
Supreme Court’s contrary decision was
necessarily “contrary to” (or an unreasonable
application of) this decision. The error was not
harmless under Brecht, 507 U.S. at 637, see also
Section VI(B)(1)(b)(ii) supra (describing Brecht
standard). The testimony from Paule and
Preusch was certainly necessary to prove the
solicitation charge, and without this evidence, it
is likely that Honeycutt would not have been
convicted of the sexual assault and kidnaping.
Notably, at Honeycutt’s first trial, where this
evidence was not yet available, the case mistried
5
because the jury was unable to reach a verdict
on the assault and kidnapping charges.
At page 38 of its Answering Brief (ECF 30), the State
argued as objectively reasonable the state supreme
court’s ruling that the admission of the undercover
deliberately-elicited statements did not violate the
right to counsel. Honeycutt replied. (ECF 35). But he
made no argument in his Reply Brief that the State
had waived harmless error as it related to the
incriminating statements; neither did he raise any such
harmless-error waiver argument at Oral Argument.
After Oral Argument, the lower court ordered the
parties within 14 days to file supplemental briefs
addressing whether the state high court’s alleged
unreasonable application of Massiah and Moulton
would be harmless error under Brecht. Each party
submitted its harmless-error supplemental briefing on
May 10, 2013. In his supplemental briefing (ECF 46),
Honeycutt argued for the first time anywhere that the
State had waived harmless error pertaining to the
incriminating statements when it did not dispute the
above-quoted language from his Opening Brief that the
error was not harmless. The State had no opportunity
to respond to Honeycutt’s waiver argument because the
supplemental briefs were submitted simultaneously,
and had no opportunity to argue that Honeycutt had
not raised the waiver argument prior to supplemental
briefing or that Honeycutt’s raising the waiver
argument went beyond the scope of the supplementalbriefing order. ECF 45. The lower court later ruled
that it would not reach the harmless error issue
because the State had waived the argument when it
failed to argue harmlessness. App. 8.
6
The foregoing shows, contrary to Honeycutt’s
claims, that there was no decision or strategy or
litigation strategy to avoid a harmlessness argument in
the lower courts. The Ninth Circuit panel requested
supplemental briefing on the issue of harmlessness and
the State provided it. ECF 45. The lower court did not
request supplemental briefing on the issue of whether
the State had waived harmless error. Rather than
address the issue of harmlessness, the majority panel
expressly declined to “reach the issue” of harmless
error. This ruling was ostensibly based on Honeycutt’s
claim that the State waived harmless error, but as
stated above, Honeycutt did not argue that the State
had waived harmless error in his Opening Brief, his
Reply Brief or Oral Argument. Based on the foregoing,
Honeycutt waived the argument that the State waived
harmless error because he did not raise it until after
oral argument, his waiver argument exceeded the scope
of the supplemental briefing order, and the State had
no opportunity to respond to the waiver argument.
3. The Court should grant the petition for writ of
certiorari because the majority panel’s
decision not to address harmless error
contravenes this Court’s holding in Fry and
the published decisions of other Courts of
Appeals.
In its second question, the State does not ask the
Court to create an unprecedented rule, it asks the
Court to apply the rule in Fry v. Pliler, 551 U.S. 112,
121-122 (2007). According to Fry, assessment of the
“impact of constitutional error” in federal habeas
corpus cases is mandatory. The Ninth Circuit simply
had no license to grant relief while simultaneously
7
“declining” the requirement to assess harmless error.
Other circuits have recognized the requirement that
assessing the impact of error in habeas corpus cases is
a prerequisite to granting relief. See e.g. Bond v.
Beard, 539 F.3d 256 (3d Cir. 2008). The majority
panel’s decision not to address harmless error
contravenes the holding in Fry and the published
decisions of other Courts of Appeals and therefore
provides an independent reason to grant the petition
for writ of certiorari.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Catherine Cortez Masto
Attorney General of Nevada
Dennis C. Wilson
Counsel of Record
Senior Deputy Attorney General
555 E. Washington Ave. #3900
Las Vegas, NV 89101
(702) 486-3086
dwilson@ag.nv.gov
Counsel for Petitioners