Ney v. Blaney et al

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 2/5/08 ORDERING respondents are directed to file a response to petitioners application within 30 days from the date of this order. The Clerk of the Court shall serve a copy of this order together with a copy of petitioners application for a writ of habeas corpus on Michael Patrick Farrell, Senior Assistant Attorney General. (Attachments: # 1 Habeas Corpus, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Anderson, J)

(HC) Ney v. Blaney et al

D

Doc. 10 Att.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Randy S. Kravis, Esq. State Bar #214100 12930 Ventura Blvd., #903 Studio City, CA 91604 [phone] fax [phone] Attorney For Petitioner CHRISTINE NEY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) ) vs. ) DOYLE BLANEY, Probation Officer, ) ) and ) ) VERNE SPEIRS, Chief Probation ) Officer, Sacramento County Probation ) Department, ) ) Respondents. ) ) ) ) ) ) ) ) ) ) CHRISTINE SUZANNE NEY,
i

No: ____________ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR HABEAS CORPUS

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

ockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ARGUMENT I. FACTS AND PROCEDURAL HISTORY A. Facts Of The Case B. Procedural History II. EXHAUSTION REQUIREMENT III. STATUTE OF LIMITATIONS IV. CUSTODY REQUIREMENT V. STANDARD OF REVIEW 1 1 6 7 8 8 8 iv

VI. PETITIONER'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WAS VIOLATED BY A GUILTY VERDICT TO THE CHARGE OF OPERATING AN ENDLESS CHAIN SCHEME UNDER CALIFORNIA PENAL CODE SECTION 327 WITHOUT SUFFICIENT EVIDENCE THAT WOMEN HELPING WOMEN (WHW) WAS AN ENDLESS CHAIN SCHEME OR THAT PETITIONER WAS AN "OPERATOR" WITHIN THE MEANING OF THE STATUTE 10 A. The Evidence Was Insufficient To Show That WHW Was An Endless Chain Scheme B. The Evidence Was Insufficient To Show That Petitioner Was An Operator Of WHW VII. PETITIONER'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WAS VIOLATED WHEN THE CALIFORNIA COURT OF APPEAL INTERPRETED PENAL CODE SECTION 327 IN A
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus ii

11 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

WAY CONTRARY TO THE PLAIN LANGUAGE OF THE STATUTE THEREBY DEPRIVING HER OF ADEQUATE NOTICE AND FAIR WARNING THAT HER CONDUCT WAS CRIMINAL CONCLUSION

18 25

Memorandum Of Points And Authorities iii In Support Of Petition For Writ Of Habeas Corpus

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

TABLE OF AUTHORITIES Constitution U.S. Const. Amend. XIV Federal Cases Avila v. Galaza, 297 F.3d 911 (9th Cir. 2002) Benson v. California, 328 F.2d 159 (9th Cir. 1964) Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) Bundy v. Wainwright, 808 F.2d 1410 (11th Cir. 1987) Bowen v Roe, 188 F3d 1157 (9th Cir. 1999) Cervantes v. Walker, 589 F.2d 424 (9th Cir. 1978) Clark v. Brown, 450 F.3d 898 (9th Cir. 2006) Darnell v. Swinney, 823 F.2d 299 (9th Cir. 1987) Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973) Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000) Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) Gonzales v. Carhart, __ U.S. __, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007)
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus iv

Page 9 Page 10 8 19-20 23-24 1 8 8 21, 24 19 20-21 24 9 7 10 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003) In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) Jackson v. Coalter, 337 F.3d 74 (1st Cir. 2003) Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) Knutson v. Brewer, 619 F.2d 747 (8th Cir. 1980) Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000) Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed.2d 888 (1939) Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1932) McMillan v. Gomez, 19 F.3d 465 (9th Cir. 1994) Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) Plumlee v. Del Papa, 465 F.3d 910 (9th Cir. 2006) Rabe v. Washington, 405 U.S. 313,
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus v

10 10 8 11, 13 15 11 11 22-24 18 9 18-19 9 19, 24 11 10 9

1 2 3 4 5 6 7 8 9 10

92 S.Ct. 993, 31 L.Ed.2d 258 (1972) Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) United States v. Chancey, 715 F.2d 543 (11th Cir. 1983) United States v. Messer, 197 F.3d 330 (9th Cir. 1999) Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)

21 19 11 11 22, 24 9 11 Page 13-15 15-16 Page 8 9 passim

11 State Cases 12 13 14 15 16 17 18 19 20 21 22 23 24
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus vi

Ex Parte Mathews, 191 Cal. 35, 214 P. 981 (Cal. 1923) People v. Sanchez, 62 Cal.App.4th 460, 72 Cal.Rptr.2d 782 (Cal. App. 1998) Statutes 28 U.S.C. § 2244 § 2254 California Penal Code § 327

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS I. FACTS AND PROCEDURAL HISTORY A. Facts Of The Case Women Helping Women (WHW) defined itself as a "gifting club." (CT Aug 5.)1 As members of the organization, women committed a certain amount of cash (referred to as a "gift") into the organization for the purpose of receiving eight times their initial investment. (CT Aug 11.) A woman would receive this payout by moving up in rank. She received it only when she ascended to the highest level possible. She moved up in rank when additional women pledged gifts thereby filling the levels below her. (RT 536.) There were four ranks ­ appetizer (the lowest rank); soup and salad (the second rank); entrée (the third rank); and dessert (the highest rank). (CT Aug 2526.) A woman first committing a cash gift entered at the appetizer level. The appetizer level was broken down into eight "plates." A woman could purchase as little as 1/8th of a plate for $625 or as much as a full plate for $5,000. (CT Aug 2526.) When all eight appetizer plates were filled, everyone moved up in rank. That is, those in the appetizer position moved up to soup and salad; those in soup and salad moved up to entrée; and those in entrée moved up to dessert. At this

"RT" refers to the page in the Reporter's Transcript section of the state record on appeal. "CT" refers to the Clerk's Transcript. "CT Aug" refers to the Augmented Clerk's Transcript. Petitioner believes that a review of the state record on appeal is necessary for a determination of the issues raised in this petition and respectfully requests that this Court order respondent to lodge the record with this Court. Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, Advisory Committee Notes; see also Bundy v. Wainwright, 808 F.2d 1410, 1415 (11th Cir. 1987)(obligation to produce state court record rests with respondent).
1

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

moment, those who ascended to the dessert level experienced a so-called "birthday" and received their payout. (RT 536.) Their payout was eight times their initial gift. Therefore, if one initially purchased 1/8th of a plate for $625, she received a payout of $5,000. If one initially purchased a full plate for $5,000, she received a payout of $40,000. (CT Aug 25-26.) The "birthday girls" received their payment directly from the women in the appetizer positions. (RT 534, 1174.) Each four-level system was referred to as a "chart." When a birthday occurred, the charts split into two brand new charts and everyone moved up one level. (RT 530; CT Aug 1.) In other words, of the women occupying the eight appetizer plates, half then occupied the four soup and salad plates on the first new chart while the other half occupied the four soup and salad plates on the second new chart. (RT 529; CT Aug 25-26.) Likewise, of the women who had occupied the four soup and salad plates, half occupied the two entrée plates on the first new chart while the other half occupied the two entrée plates on the second new chart. Finally, those previously in the entrée position on the old chart moved into the dessert positions on the two new charts. (CT Aug 25-26.) At that moment, the appetizer level remained vacant. (RT 530.) If or when the appetizer level filled up completely, a birthday occurred on the new chart, which then split into two new charts itself. (CT Aug 1.) When a woman received her birthday payout, she had several options in what to do with the cash. She could keep all of it. She could make a voluntary donation to the charity WEAVE. (RT 1139.) She could "forfeit" a portion of the cash she received onto the soup and salad level of a new chart with the hope of eventually receiving a birthday payout from that investment. (RT 912.) Or she could "sponsor" a new member by buying a spot for her with a portion of her birthday proceeds. (RT 531.)

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Accompanying the charts themselves were birthday tracking sheets, dinner party tracking sheets, and birthday gifting sheets. Birthday tracking sheets contained information pertaining to the chart, including the designated numbers for the new split charts, the names of the birthday girls, the date, time, and place of the birthday party, and the names and phone numbers of those expected to provide a gift. (RT 328.) Dinner party tracking sheets contained the names of women who had made pledges and expressed interest in attending the birthday party. (RT 282.) Birthday gifting sheets were signed receipts by birthday girls indicating that they had received their money. (RT 331.) In addition to providing cash gifts, some women participated in WHW by holding certain positions and performing certain tasks within the organization. For instance, a "chart leader's" responsibility was to coordinate her particular chart. As Cheryl Bean, one of the high ranking members of WHW, testified, the chart leader was essentially a "scribe." (RT 590.) Her job was to place new members into available appetizer spots and write that information down on the chart. (RT 590-591.) This role became more distinctly defined by the promulgation of the "WHW Rules And Responsibilities" in July of 2002. (RT 589-590.) According to these Rules, a chart leader's job included keeping track of who was on the particular chart, keeping those people informed of important information, and faxing completed charts to the "officator." (CT Aug 17.) There were several hundred chart leaders within the WHW organization. (RT 423.) The officiator was responsible for coordinating the "birthday party," which was the actual event where the new members on the appetizer level would pay the birthday girl. (CT Aug 18.) As Cathy Lovely, another high ranking WHW member, testified, the officiator "just kept track of who showed up." (RT 430.) Under the Rules and Responsibilities, the officiator also was responsible for following a certain set procedure if prospective members failed to show at the
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

birthday party and for turning into the "monitor" completed birthday tracking sheets, dinner party tracking sheets, and birthday gifting sheets. (CT Aug 18.) The monitor oversaw the chart leaders. (CT Aug 16.) In fact, she was the one to assign charts leaders for each chart. (RT 546-547; CT Aug 16.) Overseeing the monitor was the "area monitor." (CT Aug 15.) Her job was to provide chart numbers to the monitors and chart leaders, to maintain master archives, and to keep contact with WHW's attorneys and ensure that the members were following the organization's guidelines. (CT Aug 15.) Also involved in the execution of the dinner party were the "counter" and the "hostess." As the title suggests, the counter's job was to actually count the cash that was pledged by the new members and turn it over to the birthday girls. (RT 335.) She also ensured that each birthday girl signed and dated the gifting sheets. (CT Aug 19.) Often, one of the attendees at the birthday party would volunteer to act as counter. (RT 429-430.) The hostess offered her home as a location to hold the birthday party. (RT 430-431; CT Aug 21.) Finally, "presenters" gave presentations on WHW to prospective members. (CT Aug 20.) A presenter was required to have thorough knowledge of how WHW was run. (RT 625.) In addition to her oral presentation, the presenter also handed out a written packet, upon which she based her presentation. (RT 478, 1066.) WHW informed prospective participants that "we do not make it mandatory that you recruit a certain number of women to the dinner parties so that you are able to receive your gift when it is your turn." (CT Aug 25-26.) Several of the former members of WHW­ Cathy Lovely, Melody Hart, Geraldine Flanagan, and Doris Fitzpatrick ­ echoed this fact by testifying that the recruitment of additional members was not a prerequisite for receiving the prospective birthday payout. (RT 443, 1060, 1074, 1170.)
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Petitioner first became involved in WHW in April of 2002. (CT Aug 32.) The prosecution attempted to document petitioner's participation through the testimony of several of its former members as well as through the presentation of various documents and computer files seized during the searches of petitioner's, Cathy Lovely's, and Cheryl Bean's residences. (RT 768, 771-772; CT 424-446.) Among the documents seized from petitioner's residence were WHW birthday gifting sheets, charts, printouts of financial summaries, sign-up and contact sheets, and printouts of WHW related e-mails. (RT 681.) The computer files also included various other files pertaining to WHW, including WHW's dinner party packet (CT Aug 25-26), its Roles and Responsibilities (CT Aug 13-24), a master list of all charts (CT Aug 1-3), a WHW overview outline (CT Aug 4-12), and e-mails pertaining to WHW matters. (CT Aug 32-248.) By Detective Eric White's calculations, petitioner was involved with 49 separate charts. (RT 851.) This included six birthdays, a seventh birthday under the name "Katie D" (who Cathy Lovely suspected was petitioner's mother), and spots on 19 separate plates. (RT 812, 851, 939, 1142.) According to White's calculations, these seven birthdays yielded a gross payout of $72,500. (RT 959.) Of that amount, petitioner forfeited $10,000, she sponsored someone with $6,250, and $865 was stolen. (RT959.) The total value of petitioner's plates that did not birthday was $180,000. (RT 940.) Petitioner also made a donation to WEAVE at her birthday for chart 2014. (RT 890.) Other witnesses testified that petitioner herself had expressed figures similar to those calculated by Detective White. Tara Spurgeon testified that petitioner stated during a presentation that she had made close to $80,000 in cash. (RT 1223.) Doris Fitzpatrick testified that petitioner told her that she had enjoyed five to six birthdays. (RT 1160.) Cathy Lovely, who shared a birthday with petitioner on one chart, confirmed that petitioner received $25,000. (RT 1130.)
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

In addition to involving herself in the gifting process, petitioner also participated in WHW by performing in some of the organization's official roles. For instance, she served as chart leader for twelve different charts. (RT 370, 376, 414-15, 432, 487, 549, 612, 909; CT Aug 70-80, 85-86, 87-88, 122, 136-39, 163, 164, 174-77, 188, 220.) She discontinued serving as a chart leader in the beginning of August 2002. (RT 1141.) Her reasons for this were partly her own health and partly her frustration with several of the new rules that had been implemented. (Exhibit 191.) Petitioner also acted as a presenter. Many of the group's members testified at trial that they recalled petitioner's presentations. (RT 1034, 1038, 1045, 1065, 1150, 1153, 1161-62, 1204, 1208, 1211, 1220-21, 1227.) She also acted as hostess, counter, and officiator of several birthday parties. (RT 899, 902, 908, 1122, 1154, 1157, 1183.) According to both Lovely and Bean, neither remembered petitioner ever serving as monitor. (RT 434, 573.) B. Procedural History Based on these facts, petitioner was charged with one count of operating an endless chain scheme in violation of California Penal Code section 327. (CT 41.) The jury found her guilty as charged. (RT 1669.) The court sentenced petitioner to five years probation. (RT 1846.) Petitioner appealed her conviction in the California Court of Appeal, Third Appellate District raising four claims, two of which are pertinent to this petition. First, she argued that her right to due process was violated when she was convicted of operating an endless chain scheme without sufficient evidence showing that either WHW qualified as an endless chain scheme within the meaning of section 327 or that she "contrived, prepared, set up, proposed or operated" such a scheme, as required by the statute. Second, she argued that if WHW was deemed an endless chain scheme within the meaning of the statute, then the statute was
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

unconstitutionally vague, as interpreted by the state appellate court, because the language of the statute did not give sufficient notice that an organization such as WHW would fall within the purview of the statute. In an unpublished opinion filed on August 23, 2006, the Court of Appeal rejected petitioner's claims and affirmed her conviction. (Exhibit A.) Petitioner sought review of the Court of Appeal's decision in the California Supreme Court on the same two grounds. (Exhibit B.) That Court denied review on November 1, 2006. (Exhibit C.) Petitioner now files this petition. II. EXHAUSTION REQUIREMENT Petitioner raises two issues in this Petition: 1) whether her right to due process was violated when she was convicted of operating an endless chain scheme without sufficient evidence showing that either WHW was in fact an endless chain scheme or that she was an "operator" of the organization, within the meaning of Penal Code section 327; and 2) if WHW was an endless chain scheme under the California Court of Appeal's interpretation, whether the language of the statute was unconstitutionally vague such that petitioner did not receive adequate notice that an organization such as WHW would be in violation. These two issues were raised in petitioner's direct appeal before the California Court Appeal. After the California Court of Appeal affirmed petitioner's conviction on August 23, 2006, (Exhibit A), petitioner sought review in the California Supreme Court on these two grounds. That court denied review on November 1, 2006. (Exhibit C). Because petitioner raised these issues before the state supreme court, they became exhausted for purposes of petitioning this court for a writ of habeas corpus. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)(holding that state prisoner must exhaust state court remedies before petitioning for writ of habeas corpus and exhaustion has been satisfied if issue has been presented to state's highest court).
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

III. STATUTE OF LIMITATIONS A state defendant seeking habeas corpus review in the federal courts has one year from the date his conviction becomes final to file his petition. 28 U.S.C. § 2244(d)(1). A conviction becomes final 90 days after the state Supreme Court denies review. Bowen v Roe, 188 F3d 1157, 1158 (9th Cir. 1999) (holding that review does not conclude under 28 USC §2244(d)(1) until expiration of period during which defendant could apply for writ of certiorari in United States Supreme Court). Following her conviction, petitioner appealed in the California Courts. She sought review in the California Supreme Court, which was denied on November 1, 2006. She did not seek certiorari in the United States Supreme Court. Accordingly, her conviction became final on January 30, 2007, ninety days later. Under the one-year statute of limitations specified in section 2244, petitioner had until January 30, 2008 to file a federal habeas corpus petition raising the claims previously raised on direct appeal. Because petitioner is filing this petition before January 30, 2008, she is within the statute of limitations to file this petition. IV. CUSTODY REQUIREMENT Petitioner was sentenced to five years probation on August 26, 2004. (CT 933.) She is currently serving her term of probation. A person on probation is considered to be in "custody" for purpose of petitioning this court for a writ of habeas corpus. Cervantes v. Walker, 589 F.2d 424, 425 n1 (9th Cir. 1978); Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964); Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir. 2003). V. STANDARD OF REVIEW Under the Antiterrorism and Effective Death Penalty Act [hereinafter AEDPA] of 1996, a federal court should grant a writ of habeas corpus on behalf of a person in state custody if the state court's decision "resulted in a decision that
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or...resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d); see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172-73, 155 L.Ed.2d 144 (2003). A state court decision will be an "unreasonable application of" clearly established federal precedent if it "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under this prong, relief may not be granted unless the state court decision was "objectively unreasonable," as opposed to merely erroneous or even clearly erroneous. Lockyer v. Andrade, 538 U.S. at 75-76. A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. The "indisputable focus" of the federal law at issue in a habeas corpus petition is on United States Supreme Court decisions that were the law at the time the state court rendered its decision. Plumlee v. Del Papa, 465 F.3d 910, 919 (9th Cir. 2006); LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir. 2000). However, circuit precedent is considered "persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help ... determine what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Although this is a deferential standard, it is not empty one. "[D]eference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In making this determination, this Court should look to the "the state's last reasoned decision" on the issue. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). In this case, the last reasoned decision was the August 23, 2006 opinion by the California Court of Appeal. The state court issuing that decision is not required to cite to Supreme Court cases or even be aware of them "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). If the state court, however, fails to give any reasons for its denial of the defendant's constitutional or federal claim, this Court must then independently review the state record to determine whether the court's decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). VI. PETITIONER'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WAS VIOLATED BY A GUILTY VERDICT TO THE CHARGE OF OPERATING AN ENDLESS CHAIN SCHEME UNDER CALIFORNIA PENAL CODE SECTION 327 WITHOUT SUFFICIENT EVIDENCE THAT WOMEN HELPING WOMEN (WHW) WAS AN ENDLESS CHAIN SCHEME OR THAT PETITIONER WAS AN "OPERATOR" WITHIN THE MEANING OF THE STATUTE "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In the context of a habeas corpus proceeding, a challenge to the sufficiency of the evidence requires the Court to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

reasonable doubt." McMillan v. Gomez, 19 F.3d 465, 468-69 (9th Cir. 1994)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). This Court reviews the state court's sufficiency determination by examining whether it constituted an objectively unreasonable application of this standard. Juan H. v. Allen, 408 F.3d 1262, 1275 n.13 (9th Cir. 2005). To establish sufficient evidence, "the prosecution need not affirmatively `rule out every hypothesis except that of guilt.'" Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). Moreover, "a reviewing court `faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. at 296-97. At the same time, "mere suspicion or speculation" has long been held to be insufficient to sustain a conviction. United States v. Messer, 197 F.3d 330, 343 (9th Cir. 1999). As a general rule, this Court "must respect the province of the jury to determine the credibility of witnesses...." Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). However, if the testimony of a witness is so incredible such that no rational trier of fact could have believed it, the evidence may be insufficient to sustain a conviction. United States v. Chancey, 715 F.2d 543, 546 (11th Cir. 1983). A. The Evidence Was Insufficient To Show That WHW Was An Endless Chain Scheme In this case, the evidence was insufficient to sustain petitioner's conviction for operating an endless chain scheme because WHW was not an endless chain scheme within the meaning of the statute ­ California Penal Code section 327. Section 327 makes it a crime to contrive, prepare, set up, propose or operate an endless chain scheme. It defines an "endless chain scheme" as "any scheme for the
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

disposal or distribution of property whereby a participant pays a valuable consideration for the chance to receive compensation for introducing one or more additional persons into participation in the scheme or for the chance to receive compensation when a person introduced by the participant introduces a new participant." Cal. Penal Code § 327. As the language of the statute shows, the definition of an endless chain scheme is one that requires its participants to bring in new members in order to receive compensation. Under the definition, a participant has the chance of receiving compensation if one of two things occurs: either 1) that participant "introduc[es] one or more additional persons into participation in the scheme" or 2) "a person introduced by the participant introduces a new participant." Either way, an endless chain scheme, as it is defined under section 327, is one that requires each of its members to introduce new members in order to have any chance of receiving compensation. WHW did not meet this definition because it did not make the receipt of a prospective payout contingent on the introduction of new members into the group. In fact, the evidence overwhelmingly shows the opposite to be true. Several of WHW's former members testified that one was not required to recruit new members into the organization in order to "birthday." Both Cathy Lovely and Cheryl Bean, two of the high-ranking members of the group, testified that recruitment was not mandatory. (RT 443, 592.) Other lesser-involved members, including Melody Hart, Geraldine Flanagan, and Doris Fitzpatrick, also testified that there was no requirement to introduce new participants. (RT 1060, 1074, 1170.) Even the official literature of WHW informed prospective members that no recruitment obligation existed. (CT Aug 8.) Petitioner is not aware of any published California case law addressing section 327's applicability to an organization such as WHW. That is, there appears
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

to be no California case involving an organization where a given individual member was not required to recruit additional members in order to receive her payout. However, the Court of Appeal ­ the last court to issue a reasoned decision in this case ­held that an organization such as WHW does indeed qualify as an endless chain scheme under the statute, the lack of a recruitment requirement notwithstanding. Acknowledging factually that "personal recruitment of new participants was not a `mandatory' requirement" in WHW, the state appellate court interpreted the statute in terms of "the group" as a whole. Thus, in the court's view, because the organization as a whole depended upon the recruitment of new members to sustain itself, WHW was an endless chain scheme. (Exhibit A at 4, 9.) In reaching this conclusion, the court relied chiefly on California Penal Code section 7, which provides: "[T]he singular number includes the plural, and the plural the singular." (Exhibit A at 9.) It further relied on a 1923 California Supreme Court case ­ Ex Parte Mathews, 191 Cal. 35, 214 P. 981 (Cal. 1923), a case involving an ordinance banning a person from keeping goats within a certain distance from another's property. The state Supreme Court in that case held that the statute, although it phrased the proscribed activity in terms of a singular person, applied also to goats owned by several individuals in common. Pointing to the rule that "in the absence of an express declaration that it shall include the plural, `person' may or may not include `persons,' according to the context," the Court held that the "ordinance involved herein would be entirely ineffectual, if not discriminatory, if it made the keeping of goats lawful when done by several persons and unlawful when done by one." Id. at 43. Turning to the case sub judice, the Court of Appeal's decision was an unreasonable application of the Jackson v. Virginia standard to the facts of this case. From a factual standpoint, the Court of Appeal may be correct that the
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

organization as a whole depended upon recruitment to sustain itself. But that is not how the legislature chose to define endless chain schemes. Had it done so, it easily could have drafted language referring to the scheme as a whole. For instance, it could have defined an endless chain scheme as one which requires the recruitment of new members in order to sustain itself, or words to that effect. Instead, it defined it in terms of the obligations of the individual participant. Section 327 defines an endless chain scheme as that in which "a participant," in exchange for the chance to receive compensation, introduces one or more additional persons into participation. The Court of Appeal is also correct that California Penal Code section 7 addresses the interchangeability of the singular and the plural. But as the Matthews case ­ the California Supreme Court case cited by the Court of Appeal ­ holds, under California law, that interchangeability is not applied automatically. Rather, the plural "may or may not" be substituted for the singular depending on the context of the statute. Matthews, 191 Cal. at 43. In Matthews, it made sense that the language of the ordinance, although expressed in the singular, included the plural since the nuisances created by goats (i.e the smell and noise) would be felt equally regardless of the number of people who owned the goats. The same cannot be said of endless chain schemes. An organization that makes payout contingent on the recruitment of new members is very different from one that does not. In the case of the former, a participant would suffer losses if she was not able to meet the recruitment requirement. Thus, under such a scheme, each individual would be required to take affirmative steps to bring in new members or suffer a monetary loss. On the other hand, in an organization such as WHW, where recruitment is not a requirement, a participant is not compelled to meet such a requirement. In WHW, a woman could receive her payout regardless of whether she was adept at recruiting new members or not. Thus, on an individual
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

basis, participants in an organization such as WHW are less likely to suffer losses than they would be in an organization that requires recruitment, even if the group as a whole needs new members to sustain itself. Therefore, Penal Code section 327 is not a statute whereby the plural should be substituted for the singular as it was in the Matthews case. Unlike the Matthews case, where the harm caused was the same regardless of the number of people involved, the possibility of harm differs depending on whether the singular or plural is used in section 327. Had the statute targeted organizations that, as a whole, required new members to sustain itself, then, yes, WHW would be an endless chain scheme. But because the statute targeted organizations that required each participant to bring in new members, WHW was not an endless chain scheme. Accordingly, the evidence was legally insufficient to sustain petitioner's conviction under section 327 because WHW was not an endless chain scheme. The state appellate court's holding otherwise was an unreasonable application of the sufficiency of the evidence standard set forth in Jackson v. Virginia. B. The Evidence Was Insufficient To Show That Petitioner Was An Operator Of WHW In addition to its burden of proving that WHW was an endless chain scheme, the prosecution also was required to prove that petitioner contrived, prepared, set up, proposed or operated such a scheme. Cal. Penal Code § 327. There was no evidence that petitioner contrived, prepared, set up or proposed WHW. Rather, the issue at trial was whether petitioner was an "operator." In a previous case by one of California's intermediate appellate courts ­ People v. Sanchez, 62 Cal.App.4th 460, 72 Cal.Rptr.2d 782 (Cal. App. 1998) ­ the court defined the term "operate" for purposes of section 327 as follows: "[T]o cause to function usually by direct personal effort: work (a car) (operating a drill press) ... to manage and put or keep in operation whether
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

with personal effort or not (operated a grocery store)." Unlike the words "contrives," "prepares," "sets up" or "proposes," which envision preparatory activity, the word "operates" denotes ongoing conduct which advances the progress of an existing entity. This term stands apart from the others, which describe various stages of formulation of the scheme; one who "operates" a scheme may carry it along after its inception.... The word "operate" does not, however, as the drafters well understood, encompass mere participation, as would the phrase "aids in the operation." The meaning of "operates"--to manage and to keep in operation--clearly precludes "participation" in an endless chain scheme as a basis of guilt. Id. at 471. The trial court in this case instructed the jury with this language. (CT 384.) The Court of Appeal held that petitioner was an operator of WHW. Citing the Sanchez case, the court pointed out that an operator does not need to "control [] the entire scheme." (Exhibit A at 14.) In the court's opinion, petitioner was an operator because she "kept the scheme going and growing by her active, energetic efforts." (Exhibit A at 14.) Petitioner believes the Court of Appeal's determination that the evidence was sufficient to show that she was one of WHW's operators was unreasonable. Petitioner is not suggesting that it is necessary for an individual to control the entire scheme in order to be considered an operator. However, under the Sanchez definition, that person does need to exert some form of managerial control over the organization. Here, petitioner unquestionably participated in the organization in several capacities -- presenter, counter, hostess, officiator, and chart leader. However, these positions were not managerial in nature and did not necessarily elevate one from participant to operator. As a presenter, petitioner gave presentations to prospective participants, providing them a general overview of the group. There was no evidence that presenters managed WHW or otherwise were responsible for keeping it in
16

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

operation. On the contrary, presenters were nothing more than glorified announcers or speakers who relied on a previously prepared packet in making their presentations. (RT 478, 1066.) The same is also true of petitioner's roles as counter, officiator, and hostess. The counter just counted the money that was gifted at a birthday party and often was an attendee at the party who volunteered her service. (RT 335, 429-430.) The officiator coordinated the birthday party and, as Cathy Lovely testified, did little more than "just [keep] track of who showed up." (RT 430.) The hostess merely offered her home as a venue for the birthday party. (RT 430-431; Exhibit 40-Y at p. 9.) Finally, petitioner's position as "chart leader" did not make her an operator of WHW. Arguably this position required a higher degree of participation than those previously described. However, chart leaders still were not managers of the organization. The fact that there were "several hundred" of them is a good indication that they had little, if any, managerial say in the organization. (RT 423.) As Cheryl Bean acknowledged, a chart leader was nothing more than a "scribe." (RT 590.) Her job simply was to record the names of those on a particular chart and keep track of its progress. (RT 590-591.) A chart leader had no input in assigning the chart numbers or in determining how fast the positions on the chart filled. Moreover, she had no role in maintaining the group's master archives or in ensuring that the organization's rules were being followed. Those were the responsibilities of the monitor, a position in which petitioner did not serve. (RT 434, 573; CT Aug 15.) Therefore, even though the Court of Appeal was technically correct that one does not need to "control [] the entire scheme" in order to be an operator of an endless chain scheme, an operator still must exert some managerial control over

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

the scheme. (Exhibit A at 14.) Despite petitioner's service in the aforementioned positions, she did not manage WHW, unlike Cathy Lovely and Cheryl Bean. That petitioner may have helped "[keep] the scheme going and growing by her active, energetic efforts" also did not make her an operator. (Exhibit A at 14.) Many individuals played a role in WHW's maintainability, including mere participants who helped it along by virtue of their mere participation. Petitioner may have been particularly enthusiastic in her support of the organization than perhaps others. But that does not mean she exercised the requisite managerial control to make her an operator. Put differently, a person could perform many different tasks within an organization without necessarily being an operator. That was the case with petitioner. Accordingly, the evidence was insufficient to sustain petitioner's conviction because it failed to sufficiently show that she was an operator. The Court of Appeal's determination otherwise was an unreasonable application of the Jackson v. Virginia standard to the facts of this case. VII. PETITIONER'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WAS VIOLATED WHEN THE CALIFORNIA COURT OF APPEAL INTERPRETED PENAL CODE SECTION 327 IN A WAY CONTRARY TO THE PLAIN LANGUAGE OF THE STATUTE THEREBY DEPRIVING HER OF ADEQUATE NOTICE AND FAIR WARNING THAT HER CONDUCT WAS CRIMINAL "A penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Indeed, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618,
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

83 L.Ed.2d 888 (1939). A statute is unconstitutional vague when it is fails to give people "of ordinary intelligence a reasonable opportunity to know what is prohibited" or when it "encourages arbitrary or discriminatory enforcement." Gonzales v. Carhart, __ U.S. __, 127 S.Ct. 1610, 1628-1629, 167 L.Ed.2d 480 (2007). As the Supreme Court explained in a case involving the interpretation of the term "motor vehicle" in a criminal statute: Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used. McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1932). The central principle underlying the vagueness doctrine is that of "fair warning." Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987). Deprivation of the right to fair warning "can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face." Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001)(emphasis added). The seminal case addressing this latter situation is Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In that case, two African-American men were convicted of criminal trespass after they sat at a restaurant reserved for whites only. They were not informed that they were prohibited from being there until only after they had already sat down. The South Carolina Supreme Court affirmed their convictions construing "the statute to cover
19

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

... the act of remaining on the premises of another after receiving notice to leave." Id. at 350. Under that plain language of the statute, however, the prohibited conduct was entry upon land of another after notice. Remaining on the premises after receiving notice to leave was not proscribed by the statute, and the statute had never been interpreted in such a way as to proscribe that conduct. The United States Supreme Court reversed. While acknowledging that the evidence was sufficient to sustain the defendants' convictions under the state supreme court's new interpretation of the trespass statute, it held that their right to due process was violated because they were deprived of not only fair warning, but any warning whatsoever that their conduct violated the trespass statute. Id. at 355. It held, "If the Fourteenth Amendment is violated when a person is required `to speculate as to the meaning of penal statutes,' ... or to `guess at (the statute's) meaning and differ as to its application,' ... the violation is that much greater when, because the uncertainty as to the statute's meaning is itself not revealed until the court's decision, a person is not even afforded an opportunity to engage in such speculation before committing the act in question." Id. at 352. The Court pointed out that there was nothing in the wording of the statute itself nor in any prior South Carolina judicial decisions that gave the defendants warning that their conduct would be considered criminal. On the contrary, the statute was "narrow and precise." Id. Other decisions following Bouie resulted in similar outcomes. In Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973), a defendant's probation was revoked after he failed to report a traffic citation that he had received. The probation condition he was alleged to have violated required him to report all "arrests." Id. at 430. The Supreme Court rejected the state's argument that the traffic citation should be deemed an arrest. Relying on Bouie, the Court noted the absence of any prior decisions treating traffic citations as arrests. As a result, any
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

such expansive interpretation would violate the defendant's right to due process. Id. at 432. The Supreme Court reached the same result in Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972), a case in which the operator of a Drive-In movie theatre was convicted for showing a racy movie under the state's obscenity statute. The state Supreme Court acknowledged that the movie was not technically obscene, but interpreted the statute in such a way that a non-obscene movie could be deemed obscene by virtue of "the context of its exhibition." Id. at 315. The state court felt that because the movie was shown at a drive-in, the context of the movie's exhibition rendered it obscene. The United States Supreme Court reversed, holding that the statute "so construed, is impermissibly vague as applied to petitioner because of its failure to give him fair notice that criminal liability is dependent upon the place where the film is shown." Id. at 315-16. The Court pointed out that the statute made no reference to the context or location where the movie was shown. As a result, the defendant's "conviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating." Id. at 315. And in Clark v. Brown, 450 F.3d 898 (9th Cir. 2006), the Ninth Circuit found the California Supreme Court had violated a capital defendant's right to due process when it re-interpreted one of its previous cases ­ People v. Green ­ that defined the scope of the felony-murder special circumstances statute used to impose the death penalty. After examining the state supreme court's previous decisions from the time of Green to the present, the Ninth Circuit found the state court's new interpretation to be a sea-change that "retroactively chang[ed] the felony-murder special circumstance statute to reach [the defendant's] conduct." Id. at 909. The state court's new interpretation was thus unforeseeable.

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

By contrast, the Ninth Circuit rejected the defendant's due process argument in Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004). In that case, the defendant, who was convicted of robbery-murder, challenged the state supreme court's interpretation of the felony-murder and lying-in-wait special-circumstance statutes that made him eligible for the death penalty. Addressing the felonymurder statute, the defendant first argued that because the car he stole was a quarter-mile away from the location of the murder, it did not occur in the "immediate presence" of his victim and no judicial construction of the phrase put him on notice otherwise. Id. at 1070. The state supreme court, however, interpreted the statute to include a quarter-mile distance within the defendant's immediate presence. The Ninth Circuit rejected the defendant's argument in large part because prior California Supreme Court decisions had long-held that that one could be convicted of robbery, which requires "immediate presence," by taking property outside the victim's sensory perception and by being in constructive, and not actual possession of the property. Id. at 1071-72. Such decisions put the defendant on notice that his actions constituted robbery. The Ninth Circuit also rejected the defendant's argument that the state supreme court's determination that a jury could find the special circumstance of "lying in wait" in the absence of physical concealment was an unforeseen expansion of the statutory elements in violation of his due process rights. As was the case with the felony-murder statute, the California Supreme Court's prior decisions made it foreseeable that it would reach the interpretation it did in the current case. Id. at 1073-74. In Knutson v. Brewer, 619 F.2d 747 (8th Cir. 1980), the Eighth Circuit reached the same result in the case of an Iowa state defendant convicted of kidnapping for ransom. The statute defined "ransom" as "any money, property, or thing of value." The Iowa Supreme Court held that the defendant was guilty of kidnapping for ransom because the sexual gratification he obtained while he
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

forced the victim to sodomize him constituted a "thing of value." The Eighth Circuit distinguished the case from that of Bouie in that the defendant was "far from innocent." It held: "[W]e think it significant that the issue of construction involved here is not the drawing of a line between legal conduct and illegal conduct. What Knutson did was unlawful under any interpretation of Iowa law, and he makes no contention to the contrary. His position, reduced to its simplest terms, is that he had a right to expect that he would be convicted for kidnapping only, rather than for kidnapping for ransom. This kind of reliance interest is not, in our view, entitled to a great deal of weight. When a person does an act that he well knows to be a violation of some law, and when a statute is later interpreted to cover his conduct in a way that does not do violence to the ordinary understanding of the English language, the Fourteenth Amendment is not offended. Id. at 750. Applying these principles to the instant case, petitioner's right to due process was violated by the state appellate court's unforeseen interpretation of Penal Code section 327. Like the trespass statute in Bouie, section 327 is "narrow and precise." Bouie, 378 U.S at 352. It specifically defines an illegal endless chain scheme as one "whereby a participant pays a valuable consideration for the chance to receive compensation for introducing one or more additional persons into participation in the scheme or for the chance to receive compensation when a person introduced by the participant introduces a new participant." It says nothing about the group as a whole and its need to recruit new members, but rather precisely delineates a recruitment requirement for each individual participant. Just as the defendants in Bouie had no fair warning that their act of remaining at the restaurant would be criminal under a statute that predicated the crime of trespass on the person's knowledge at the time of entry, petitioner had no fair warning that her participation in WHW would be criminal under a statute that defines an endless chain scheme as one where each participant must recruit members in order to receive a payout.
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Also, like in Bouie, Douglas, and Clark, and unlike in Webster, there appear to be no prior California cases that addressed a scheme such as WHW, which might have given petitioner fair warning that it was illegal. Indeed, petitioner is not aware of any case law that would have put her on notice that WHW fell within the purview of the statute despite the language defining an endless chain scheme in terms of the individual participant. Moreover, unlike in Knutson, where the defendant knew he was engaging in illegal activity, petitioner's activity was not illegal under any criminal statute other than section 327 as interpreted by the Court of Appeal. It was not as if petitioner knew she was in violation of "some law," as Knutson himself was. The Court of Appeal rejected petitioner's vagueness argument based on the maxim that "[i]t is common knowledge you do not get something for nothing. An eightfold return from new subscriptions manifestly cannot be sustained indefinitely." (Exhibit A at 12.) This is an unreasonable application of the Bouie vagueness doctrine to the facts of this case. Whether petitioner subscribed to this principle of "common knowledge," or understood that WHW could not sustain itself indefinitely is beside the point. The fact is that without any other case law stating otherwise, petitioner was entitled to rely on the "narrow and precise" language of the statute to determine whether her own conduct was legal. As the Bouie court held, she should not have "to speculate as to the meaning of penal statutes,' ... or to `guess at (the statute's) meaning and differ as to its application...." Bouie, 378 U.S at 352. As the McBoyl court held, a "statute should not be extended ... simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used." McBoyl, 283 U.S. at 27. Petitioner should not be expected to know that section 327, even though it frames the recruitment requirement in terms of the individual participant, really refers to the group as a
Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

whole because the group cannot sustain itself indefinitely. If in fact the statute does mean the latter, as the Court of Appeal held, then petitioner was not given fair warning of this given that the plain language of the statute does not state this and was only interpreted in this way after she had already engaged in such conduct. The fact that a district attorney from a neighboring county expressed his opinion that WHW was a legal organization, while admittedly not dispositive of the fact itself, is at least empirical evidence that the statute was vague and failed to provide fair warning to its illegality. (CT 616, 625.) For these reasons, the statute was vague as interpreted by the Court of Appeal and petitioner's right to due process was denied. Her conviction should be reversed. CONCLUSION WHEREFORE, Petitioner Christine Ney moves this Honorable Court to grant the following relief: a) b) c) d) Accept jurisdiction over this case; Require the respondent to answer the allegations in this Petition and Points and Authorities in Support; Order the State to lodge the record on appeal with this Court; Issue a Writ of Habeas Corpus freeing petitioner from his unconstitutional confinement. Respectfully Submitted, /s/ Randy S. Kravis Randy Kravis, #214100 Attorney for Petitioner DATED: January 4, 2008
25

Memorandum Of Points And Authorities In Support Of Petition For Writ Of Habeas Corpus