Petition — Ogle v. United States
Supreme Court brief1980
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MAY
‘EILED
1 1980
r PHGHAEERGAAK JR, CLERR
IN THE
SUPREME COURT OF THE
UNITED STATES
October Term, 1979
ae €9-1799
TIM Z. OGLE,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
IRVIN M. KENT
315 Symes Building
820 - 16th Street
Denver, Colorado 80202
Telephone: (303) 623-1355
ARTHUR R. KARSTAEDT, III
Suite 413
160 Cook Street
Denver, Colorado 80206
Telephone: (303) 399-4520
ATTORNEYS FOR PETITIONER,
TIM Z. OGLE
ERED I | ok ve ew nndnadateneekauxnau™
TOTEM Acct Wenecncicavbiadeunaduces bas
QUESTIONS PRESENTED .................4..
DEAE WEE SUV CIV INED 2586s si cvervucwbecasens
STATEMENT OF THE CASE .....:............
REASONS FOR GRANTING THE WRIT .......
1. The Writ should be granted since, in at least
two important respects, the decision below is in
conflict with the decisions of other circuits. ..
A. The interpretation of the word “cor-
ruptig” Sh 30 U, tes vk deenskacteus
B. The propriety of the instruction given
at trial on specific intent, and whether such
instruction should be reversed as “plain
”
.
2. The Writ should be granted in this case be-
cause it involves two questions of great impor-
CRD. onde civicenea ssadued eens
A. The first and most important of these is
the chilling effect of the decision below on
the exercise of First Amendment Free-
GU ois scan ind ceetnwes eee
14
14
14
20
26
26
il
B. The second is whether the test of rea-
sonably effective assistance of competent
counsel includes the preservation of the
appellate rights of a defendant. .........
3. The Writ should be granted by this Court in
the exercise of its supervisory powers over the
lower courts, in order to sustain public confi-
dence in the administration of justice. ......
A. The Trial Court abused its discretion in
rejecting relevant evidence which the jury
should have, but was not allowed, to hear.
(1) with regard to Mr. Ogle’s specific
RO, csv chivgcues Uite a tcaeu ere
(2) With regard to whether Mr. Ogle’s
motives were “corrupt.” ............
B. This Court should not allow approval of
a deliberate knowing attempt to destroy a
witness by questions designed to force the
witness to claim her rights against self-
incrimination in front of the jury. ......
C. In light of the essential differences with
regard to the mens rea which the Congress
incorporated in 1503 as compared to the
requirements for conviction under 18
U.S.C. 1504, this Court should not allow
the lower courts to rewrite 1503 so that
evidence sufficient for a 1504 conviction is
automatically sufficient for a 1503 convic-
Sse ch akek dies eb erewde ee eewnndees
Page
29
33
33
37
42
46
ili
Page
D. The Writ should be granted in this case
to assure the public that even those whoare
accused of attacking the judicial system, as
we know it, will receive a full measure of
due process of law, a scrupulously fair trial,
and dispassionate, impartial appellate re-
ee Oe kee Raa DS ARIES BOE SS 48
a anes eee rer er ee 51
iv
TABLE OF CONTENTS
Page
APPENDICES
Ce nee ae e we ane e wh 6 9 53
Opinion of the United States Court of Appeals,
Tenth Circuit.
PN re cry ar Serr ae meee 2 81
Order Denying Petition for Rehearing.
I ee Bre Vi ae wake aws'e oaths 82
United States Constitutional Provisions and
United States Statutes.
AUTHORITIES CITED |
Cases:
Beasley v. United States, 491 F.2d 687 (6th Cir.
See ote Coon en ee eek 31
Buchanan v. United States, 233 Fed. 257 (8th Cir.
RES Ai ee eRe en Are Ah Sy emp Were Sea 41
Burns v. Alcala, 420 U.S. 575 (1975) ............ 27
Brown v. United States, 356 U.S. 148 (1958) ...... 49
Cohen v. United States, 378 F.2d 751 (9th Cir. 1967) 23
Cole v. United States, 329 F.2d 437 (9th Cir. 1964),
cert. den. 377 U.S. 954 (1964) .............. 19
Conway County Farmers Assn. v. United States, 588
Fe Gee ttn Cor. BBFG) gn odin icc des nte.
Copes vu. United States, 345 F.2d 723 (DC Cir. 1964)
Crawford v. United States, 212 U.S. 183 (1909) ..
Dombrowski v. Pfister, 380 U.S. 479 (1965) ......
Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978) ......
Goodwin v. Swenson, 287 F.Supp. 166 (WD Mo.
ig SEE Le re es Bint gc Ge
NEE os Shad cen ues es Sts cee eeee ve
gg PORE er ee
WEEE ah vas cdauy es ence bhekew dea
In re Brogna, 589 F.2d 24 (1st Cir. 1978) ........
Joint Anti-Fascist Refugee Committee v. McGrath,
Ok Uh RO MED cps wen dcqeuseuenuekeas
Kott v. Green, 303 F.Supp. 821 (ND Ohio 1968) ..
Kowalchuck v. United States. 176 F 2d 873 (6th Cir.
EE. id XK deka bbb cde eke eee eee
Landmark Communications, Inc. v. Virginia, 435
SP Se MOOR: 0 aca eebescuneebeueeae
31
19
31
49
vi
Paye
Marsullo v. State of Maryland, 561 F.2d 540 (4th Cir.
1977), cert. den. 435 U.S. 1011 (1978) ...... 30
McCarty v. United States, 409 F.2d 793 (10th Cir.
1969), cert. den. 396 U.S. 843 (1949) ....... 32
McMann v. Richardson, 397 U.S. 759 (1970) ..... 29, 30
Miller v. United States, 120 F.2d 968 (10th Cir.
wt s aes pad ora kee eae eek ea ts's 37
Moran v. Morris, 478 F.Supp. 145 (CD Calif. 1979) 31
Morrisette v. United States, 342 U.S. 246 (1952) .. 26, 27
Mullaney v. Wilbur, 421 U.S. 684 (1975) ........ 26
N.A.A.C.P. v. Button, 371 US. 415 (1965) ....... 27
Northcross v. Memphis Board of Education, 412 US.
Sl ale as Vi ot ducer ete xcs 18
Offutt v. United States, 348 U.S. 11 (1954) ....... 49
People v. Albrecht, 145 Colo. 202, 358 P.2d 4 (1960) 41
Poe v. United States, 233 F.Supp 173 (D DC 1964) 31
Robbins V. Small, 371 F.2d 793 (1st Cir. 1967), cert.
Gah. SES UE. BEG (BRET) iw vc ives cc ececcass 46
Rogers v. United States, 340 U.S. 367 (1951) .....
Sacher v. United States, 343 U.S. 1 (1952) .......
Sandstromv. Montana, __- U.S. ___ ,47 U.S. L.W.
EPG re RR REA, ep Me 21
vil
Schwab v. United States , 327 F.2d 11 (8th Cir. 1964)
Screws v. United States, 325 U.S. 91 (1945) ......
Simpson v. United States, 435 U.S. 6 (1978) .....
Sparf and Hansen v. United States, 156 U.S. 51
RE ot da Chad Pannen aun Sewiiee wees ws
Spies v. United States, 317 U.S. 492 (1943) ......
Swain v. Pressley, 480 U.S. 372 (1977) ..........
Thornhill v. Alabama, 310 U.S. 88 (1940) .......
United States v. Abrams, 427 F.2d 86 (2d Cir. 1970),
cert. den. 400 U.S. 832 (1970) ..............
United States v. Anton, 597 F.2d 371 (3rd Cir. 1979)
United States v. Ariza-Ibarra, 605 F.2d 1216 (1st
SE ee rr ere ek ea
United States v. Arthur, 544 F.2d 730 (4th Cir.
AP ep RI PL ee oa epi El tr se tye EPEDEN an AY cs OS
United States v. Bailey, ___. U.S. ___ ,48 U.S.L.W.
I CAC bois scenes + cal ea aba ess
United States v. Baker, 611 F.2d 964 (4th Cir. 1979)
United States v. Barclay, 560 F.2d 812 (7th Cir.
5 is aS od oS Eda CADE K eRe aha Kank
United States v. Barrentine, 591 F.2d 1069 (5th Cir.
ate ee pang aaa ws
41
26
35
Vill
Page
United States v. Batchelder, __.. U.S. ____ , 47
tf Se tek, eee errr en 48
United States v. Bishop, 412 U.S. 246 (1973) ..... 48
United States v. Brewster, 506 F.2d 62 (DC Cir.
BOER av bcbncwsew.cceekackteegee ae 16, 19
United States v. Campos-Serrano, 404 U.S. 293
RRO ED a... v0b05 Kncntndeueewd sehen eee 47
United States v. Chiantese, 560 F.2d 1244 (5th Cir.
SOGTE vedvecksisscknedin een ae 24
United States v. Davis, 608 F.2d 698 (6th Cir. 1979) 25
United States v. DeCoster, 487 F.2d 1197 (DC Cir.
BUT wkkesacke use 31
United States v. Diggs, 527 F.2d 509 (8th Cir. 1975) 23
United States v. Dougherty, 473 F.2d 1113 (DC Cir.
RETR | ees dik coke eee 28
United States v. Fasolino, 586 F.2d 939 (2nd Cir.
1978), affg 449 F.Supp 586 (WD NY 1978) .. 17
United States v. Fayer, 523 F.2d 661 (2d Cir. 1975) 17
United States v. Garrett, 574 F.2d 778 (8rd Cir.
1978), cert. den. 436 U.S. 919 (1978) ....... 24
United States v. Haas, 583 F.2d 216 (5th Cir. 1978) 19
United States v. Haigler, 172 F.2d 986 (10th Cir.
RG 683 so eeeoueEn ; : Pe ees 41
ix
Page
United States v. Haldeman, 559 F.2d 31 (DC Cir.
1976), cert. den. 431 U.S. 933 (1977) ....... 16
United States v. Harrigan, 586 F.2d 860 (1st Cir.
ne eS oi ee be ag 24
United States v. Heath, 580 F.2d 1011 (10th Cir
Se ne be ak ak oe a euens 21
United States v. Herrera, 600 F.2d 502 (5th Cir
TN a a a ae 41
United States v. Holladay, 566 F.2d 1018 (5th Cir
ee i ee Oe aes ais 41
United States v. Indiviglio, 352 F.2d 276 (2d Cir.
1965), cert. den. 383 U.S. 907 (1966) ....... 37
United States v. Irwin, 354 F.2d 192 (2d Cir. 1965),
cert. den. 383 U.S. 967 (1966) .............. 18
United States v. King, 461 F.2d 53 (8th Cir. 1972) 46
United States v. Lazzerini, 611 F.2d 940 (1st Cir.
UL eek a eae en ee) ou Bula 16
United States v. Maloney, 262 F.2d 535 (2d Cir
ce a A ce all a aes We are 45, 46
United States v. Martin, 166 F.2d 76 (4th Cir. 1948) 18
United States v. Miranda, 593 F.2d 590 (5th Cir.
IE Ea ag ODA a OC ae 46
United States v. Murdock, 290 U.S. 289 (1933) ... 38
United States v. Orrico, 599 F.2d 113 (6th Cir. 1979) 23
United States v. Palermo, 259 F.2d 872 (3rd Cir.
I es he es Oe a er a eats ae oe
United States v. Partin, 552 F.2d 621 (5th Cir. 1977)
United States v. Reeves, 594 F.2d 537 (6th Cir. 1979)
United States v. Roe, 529 F.2d 629 (4th Cir. 1975)
United States v. Robinson, 545 F.2d 301 (2d Cir.
ES gc aR ey ee teas Pee reer Teor
United States v. Ryan, 455 F.2d 728 (9th Cir. 1972)
United States v. Schilleci, 545 F.2d 519 (5th Cir.
ME die is we bach hie eee ik ae eK
SE sc Sai cod ak ee ak Ce Oe Ce
United States v. Tijerina, 407 F.2d 349 (10th Cir.
1969), cert. den. 396 U.S. 843 (1969) .......
United States v. United States Gypsum Co., 438 U.S.
ND kok baad <cud a cid eekasebeaaeets
United States v. Woodring, 464 F.2d 1248 (10th Cir.
SUE S05 s ao 54s oekas Carlee earl wcaeaaeeree
Vachon v. New Hampshire, 414 U.S. 478 (1974)
Zacher v. United States, 227 F.2d 219 (8th Cir.
I go AN ee Fe ns
Page
23
20
32
20
32
50
35
xi
Page
OTHER AUTHORITIES
CONSTITUTION OF THE UNITED STATES:
ee NS cea kthoeckeawe 3, 26, 27,
29, 39, 40
ae adueaeus 13, 42,
43, 44, 46
STATUTES:
EE CR ke sy eae ee a eu ae ak bh ws 4, 18,19
ee ee RO. a cic cdaweasai 3, 4, 7, 14, 16, 17, 18,
19, 20, 42, 46, 47, 48, 50
BD 6s cick ca cncow ec 4, 7, 16, 42, 46, 47, 48
NE CS icine yy nes Ke «en 4,14, 17,18
Ne vas 2
ABA, Standards Relating to the Prosecution and
Defense Function —
Defense Standards, Nos. 1.1(b) and 7.1(d) ... 30
Prosecution Standard, No. 5.7(c) ............ 45
81 Am. Jur.2d, Witnesses, Sec. 425 ............. 35
Devitt and Blackmar, Federal Jury Instructions,
ee ea eg NO a bee wee 20, 24
25, 32
Federal Rules of Evidence ...................... 41
xii
Page
4, Weinstein, Evidence, Sec. 801(c)(01) .......... 42
8, Wigmore, Evidence 3rd Ed., Sec. 2272 ........ 44
9A, Words and Phrases, pp. 576-579 ............ 27
2, Wright and Miller, Federal Practice and Proce-
dure (Criminal)
Cao cur iulieek usa ick akon RRes ten 36
DET Ushtnct0edl bunebeses dageuenemenens 37
IN THE
SUPREME COURT OF THE
UNITED STATES
October Term, 1979
No. —_.
TIM Z. OGLE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
te ARs AE AR aL ROO IN Af ONION SG I IN I I I ee
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Petitioner prays that a Writ of Cevtiorari issue to review
the judgment of the United States Court of Appeals for the
Tenth Circuit entered on November 1, 1979, and the Order of
Court denying rehearing entered on March 5, 1980.
CITATION TO OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Tenth Circuit, which affirmed the judgment of the Dis-
trict Court, is reported at 613 F.2d 233, and is printed in
Appendix A hereto.
The Order of Court denying rehearing and a suggestion
for rehearing en banc is not reported and is printed in Ap-
pendix B hereto.
JURISDICTION
The Opinion and Judgment of the Court of Appeals was
entered on November 1, 1979. Petition for Rehearing and
Suggestion of Rehearing en banc was denied on March 5,
1980.
A Stay of Mandate was granted on March 19, 1980, until
April 18, 1980 pending certiorari. Petitioner timely filed
an application with this Court for an Order Extending the
Time to File a Petition for Certiorari until May 4, 1980,
which application was granted by an Order of Mr. Justice
White on March 24, 1980.
On April 9, 1980, Petitioner filed with the United States
Court of Appeals for the Tenth Circuit a Motion for Exten-
sion of Stay of Mandate, which has been granted through
May 17, 1980, pending Certiorari and which will be contin-
ued if that Court is notified by that date that a Petition for
Writ of Certiorari has been filed.
The jurisdiction of this Court is invoked under the pro-
visions of 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Where the Congress of the United States specifically
set forth the term “corruptly” as an essential element of the
offense denounced in 18 U.S.C. 1503 (in the absence of any
indication of force, intimidz.tion or threats), may the United
States Court of Appeals for the Tenth Circuit (in contrast to
other circuits) read the term “corruptly” out of the statute by
equating it to merely “any endeavor” to influence a juror or
to influence, obstruct, or impede the due administration of
justice, regardless of the intent, motive or purpose of the
defendant, and thus make the statute subject to attack under
the First Amendment?
2. Whether the use of the phrase “unless the contrary
appears from the evidence” in an instruction to the jury on
the requisites of proof of the specific intent required for
conviction under 18 U.S.C. 1503 is plain error, especially
where, as here, the defendant was precluded by the rulings of
the trial court from fully explaining his intent, motives and
reasons to the jury?
3. Whether Mr. Ogle had effective assistance of counsel,
where counsel did not adequately prepare for the obvious
legal issues which would, of necessity, arise at trial, and
particularly did not prepare himself on the crucial issue of
proper instruction to the jury as to proof of specific intent,
and, thus, failed to protect the appellate rights of Mr. Ogle?
4. Whether Mr. Ogle has been denied due process of law,
when after having been cross-examined as to his specific
intent was denied the right to respond to the questions of his
counsel thereon in redirect examination?
5. Whether Mr. Ogle was denied due process of law, by
the rulings of the trial court which precluded him from
properly explaining the bases for his belief in the correctness
of the positions advocated by the book, “Handbook for
Jurors”, in a situation where the jury was instructed to
determine whether the contents of such book would influ-
ence a juror in thgperformance of his duties or would impede
or obstruct the due administration of justice?
6. Whether Mr. Ogle has been denied due process of law
by prosecutorial misconduct, in that the prosecutor, after
having been advised out of the presence of thejury that a key
witness would claim her right against self-incrimination if
asked questions about her W-4 forms, deliberately asked
such a question and forced that witness to claim her right
against self-incrimination in front of the jury?
CONSTITUTIONAL PROVISIONS AND
FEDERAL STATUTES INVOLVED OR APPLICABLE
The following are set forth in Appendix C: First
Amendment, Fifth Amendment, United States Constitu-
tion, 18 U.S.C. 201, 18 U.S.C. 1508, 18 U.S.C. 1504, and 18
U.S.C. 1505.
STATEMENT OF THE CASE
On April 5, 1978, an indictment presented by the Grand
Jury was filed against Tim Z. Ogle, alleging a violation of 18
U.S.C. 1508, for having willfully, knowingly and corruptly
endeavored to influence, obstruct and impede the due ad-
ministration of justice in a case then pending before the
United States District Court for the District of Colorado, by
endeavoring to cause to be communicated to one Colleen
Hansen, a petit juror, in such case, a pamphiet entitled,
“Handbook for Jurists”, (sic) (the actual name of the book
was “Handbook for Jurors”)
The allegations of the indictment arose from an incident
of February 21, 1978, when one Mr. Norman Gigax was the
defendant in a trial before Judge Winner, charged with
filing a false and fraudulent W-4 withholding allowance
ol
certificate. Mrs. Colleen Hansen, a flight attendant for Con-
tinental Airlines, was selected as one of the jurors in that
case.
The petitioner herein, Mr. Tim Z. Ogle, who was then
employed as a pilot with Continental Airlines was present as
a spectator at the trial of Mr. Gigax. Mr. Ogle had not
known Mr. Gigax prior to that day, and met him at one of the
recesses for the first time.
Mr. Ogle recognized Mrs. Colleen Hansen as a Conti-
nental flight attendant, whose name he did not know. Mrs.
Hansen said she didn’t know Mr. Ogle’s name, but had
known him for seven or eight years.
During the lunch recess, Mr. Ogle entered the same
elevator as Mrs. Colleen Hansen and introduced himself.
She then recognized him as a pilot working in the same
company.
After the lunch recess, Mr. Ogle was asked by Mr. Gigax
to assist him in taking notes in that case and with permis-
sion of Judge Winner, Mr. Ogle moved to the defense table
and did so. Mr. Ogle told Mr. Gigax he was acquainted with
the juror, Mrs. Colleen Hansen. The trial recessed about 5:00
p.m. for the evening.
Mr. Ogle then went with his wife and his parents to
dinner and then to the United Bank Tennis Classic. Mr. Ogle
left the tennis matches at about 8:00 p.m., because he had to
fly the following day in addition to attending the Gigax trial
and he wanted to get a good night’s sleep. (Tr. pp.
253 ,254,326,329)
Prior to February 21, the Ogles had planned to have
dinner with the Lagonis on February 28th. However, on that
morning Mrs. Ogle had received a phone call from Mr. Ogle’s
attorney that Mr. Ogle had an appointment in Washington,
D.C., on February 28th with regard to his tax position. Mrs.
Ogle suggested that Mr. Ogle call the Lagonis, tell them
about this and rearrange the dinner plans. Mr. Ogle called
from the Auditorium about 8:00 p.m., rather than waiting to
get home because Mr. Lagoni is a truck driver, who gets up
extremely early and goes to bed early. (Tr. pp. 257-259 ,327-
328,333)
—
Mr. Lagoni answered the telephone, and they discussed
the fact that the Ogles could not make the dinner on the
planned dinner date. Then, Mr. Ogle asked to speak to Mrs.
Lagoni, who was also a Continental flight attendant, at
which time he also discussed with her the cancellation of the
dinner engagement and possibly resetting the date in view of
his projected airline duties. Then, Mr. Ogle mentioned to
Mrs. Lagoni that he had seen Colleen Hansen on jury duty
that day and he was curious as to whether Mrs. Hansen had
ever seen the pamphlet, “Handbcok for Jurors”, since Mrs.
Hansen was the first person he had ever known personally
that had been a juror. (Tr. pp. 1334,135,260, 302)
Mrs. Lagoni, though not a social friend of Mrs. Hansen,
had known her for about ten years and had on many occa-
sions during that time worked with her asa flight attendant,
and had flown with her three or four times that month.
During the first trip together that month, Mrs. Hansen had
told Mrs. Lagoni she had been summoned for jury duty and
probably would not be at work the whole month because of it.
At that time, Mrs. Lagoni mentioned that she had a jury
pamphlet she wanted Mrs. Hansen to read but she kept
leaving it at home. On February 21st, Mrs. Lagoni knew
Mrs. Hansen was on jury duty, since when she checked in for
her flight, Mrs. Hansen’s name was crossed off for “jury”. (Tr.
pp. 82-83 ,129,156-157,256)
Mrs. Lagoni testified that after Mr. Ogle mentioned that
he had seen Mrs. Hansen that day at the court house and
asked if she new her, she said, “By the way I meant to give
her a juror handbook and forgot to.” To the best of Mrs.
Lagoni’s recollection, it was she who initiated the conversa-
tion about the handbook. This is confirmed by Mr. Lagoni
who heard his wife’s end of the conversation. (Tr. pp. 82-
83,135,157,195,256)
Mr. Ogle did not ask or suggest or infer to Mrs. Lagoni
that she call Mrs. Hansen. Mrs. Lagoni called Mrs. Hansen
that evening because the call from Ogle refreshed her mind
that Mrs. Hansen was on jury duty, and while it was on her
mind, she decided to call her and ask if she would like tohave
the booklet. She discussed this with her husband before she
made the call, but with no one else. (Tr. pp. 166,170,196,261)
After this discussion, Mrs. Lagoni called another flight
attendant to learn Mrs. Hansen’s telephone number. There-
after, Mrs. Lagoni called Mrs. Hansen. In view of the cen-
trality of this telephone conversation to the entire case! the
Lagoni version of this conversation will be set out, followed
by the Hansen version:
THE LAGONI VERSION:
(a) by Mrs. Lagoni:
A. Okay, I told her that I assumed she was on
jury duty or had been called that day since her name
had been crossed off the sheet at work and had been
marked “jury” and that I had a pamphiet that I had
meant to give her earlier in the month and I won-
dered if she would like to have it.
1Since if Mrs. Lagoni’s version were believed, Mr. Ogle could
not have been convicted either of a violation of 18 U.S.C. 1503 or
even of the lesser offense spelled out in 18 U.S.C. 1504.
She said to me, “How did you know I was here?” I
said, “Because your name was marked off and be-
cause a friend said he had seen you at the court-
house.”
And she said, “Who?” And I told her, “Tim,” and
she said, “Well, I can’t read anything that will com-
promise me.”
I said, “This is nothing that will compromise you.
It has nothing to do with any kind of case. It is a
general information booklet that I think is good for
anybody who is sitting on or might ever sit on jury
duty, and I thought you might like to have one.”
And she said she wasn’t interested and I said,
“Fine,” and then we talked about flying, and that was
it.
Q. Did you in that conversation tell her that you
had heard she was on a tax case?
A. No, I didn’t know what kind of case she was on.
I said only that I knew she was at jury duty.
Q. Did you tell her in that conversation or ask her
if Tim could bring by the jury pamphlet?
A. No, I said only if she wanted it that I would get
it to her. She said she didn’t want it, and I left it at
that.
Q. Did you tell her when you were going to bring
it over to her?
No, I did not. (Tr. pp. 131-132)
KKKKKK KEKE
Q. (By Mr. Nesland) When you talked to Colleen
Hansen, did you tell her anything about the jury
pamphlets?
A. Only that I thought that it was a good inform-
ative book that she would find interesting as she was
getting ready to sit on jury duty.
Q. Did you tell her that it was a book on juries
and tells you what the Court doesn’t tell you?
A. I think I told her something similar to that,
that there are things that Judges do not always in-
struct ajuror on. My husband was a policeman in L.A.
for many years.
Q. May I ask you to just answer the question.
A. Okay, I may have said that, yes. (Tr. pp. 152)
KKK KKKKKKK
(b) BY MR. LAGONI:
Q. And then she placed a call to Colleen Hansen?
Did you hear her end of the call?
A. Yes.
Q. Tell us what you recall of that part of the
conversation as you heard it that night.
A. I heard my wife say that she noticed she was
gone from work, and then I heard Tim’s name men-
tioned, and then my wife asked if she would be in-
terested in a book about jury duty, and I believe the
answer was no because the conversation changed to
flying and I believe they talked about babies a little
10
bit. 1am not sure exactly what they talked about, but
just general conversation.
Q. Prior to that conversation with Colleen, had
you had a discussion with your wife about when you
were going — when your wife would take over the
handbook?
A. I believe we did, yes.
Q. All right, tell us what your discussion was
with your wife?
A. Well, my recollection was that I would watch
the baby while Jackie, if Colleen wanted the book,
took it down to her.
Q. When?
A. I believe it was going to be — or it was going to
be that night. (Tr. pp. 200-201)
Kak KK KK KKK
THE HANSEN VERSION:
Q. Please tell us to the best of your recollection
what you said in that conversation over the telephone
and what Jackie Lagoni said.
A. Okay, she said, “Hello, this is Jackie.”
Q. Would you please speak up.
A. She said, “Hello, Colleen, this is Jackie.1. ur
you are on a tax case.” And I said, “How do you know
that?”
11
And she said, “A little birdie told me.” and then I
said, “Oh, you must have talked to Tim,” and she said,
“Yes.”
And I said, “I didn’t know you — I didn’t know
you knew each other,” and she said, “Yes, we are very
good friends.”
And then she said, ‘““Would you mind if Tim drop-
ped by a book this evening on juries and what the
Court does not tell you.” and I said, “No, I don’t want
Tim anywhere near the house.”
Then she said, “Would you mind if I brought the
book by?” And I said, “No, Jackie, I want to go with
what the Court tells me.”
And then she said, “Well, how is the case going.”
and I said, ‘““You know, I can’t talk about it,” and then
the conversation went on about work, and then that
was it.
Q. What conversation do you recall having with
her about work?
A. She said, “Hurry back, the flights are full
and Pa.
Q. Did that end the conversation?
A. Right. (Tr. pp. 89-90)
While Mr. Ogle did not author the pamphlet, “Hand-
book for Jurors,” he has read it several times and subscribes
to the general principles contained therein. Mr. Ogle has
distributed the handbook and believes there is nothing il-
legal in so doing. He started to explain that answer when cut
12
short by the Court with the statemerst.. ‘We are not here for a
Fourth of July speech of some kind.” (Tr., p. 264) In the past,
he has advocated passing the book out to private citizens and
jurors, although he has since withdrawn his recommenda-
tion about passing it out to jurors. The purpose of the pam-
phlet is not to influence jurors as to how they should vote in
any particular case and makes no reference to types of cases
(Tr., p. 266). Mr. Ogle denied any interest, other than
humanitarian, in the outcome of the Gigax case.
Mr. Ogle briefly explained his understanding of the
meaning of the pamphlet. He further stated that he had done
independent research on the subject and could relate the
materials on which he had relied, but was not permitted to
state to the jury what that research was or the materials
upon which he relied. (Tr., pp. 267-269)
On direct examination, Mr. Ogle stated that his call to
Mrs. Lagoni was not for the purpose of having the pamphlet
delivered or for her to influence Mrs. Hansen in any way on
the case in which she was sitting, nor did he try to contact
Mrs. Hansen for that purpose (Tr., pp. 269-270).
During cross-examination, the prosecutor queried Mr.
Ogle as to his intent and purpose in calling Mrs. Lagoni at
some length. Thereafter, on redirect examination, Mr.
Ogle’s counsel asked him about whether he took any action
designed to influence Mrs. Hansen with regard to her jury
duty, but an objection thereto was sustained, as well as toa
question about whether his call to Mrs. Lagoni was made
with the intent to influence Mrs. Hansen. No reason was
given for either the objections or the rulings. (Tr., p. 306)
Despite having been warned in open court (prior to
impanelment of the jury) that Mrs. Lagoni would claim her
rights against self-incrimination if asked about her W-4
forms (Tr., p. 10), the prosecutor did ask her if she changed
13
her W-4 forms, to which question she promptly claimed her
rights under the Fifth Amendment. The Court, during a
bench conference requested by Mr. Ogle’s counsel, ad-
monished the prosecutor not to proceed further with that
line of questioning (Tr., pp. 154-155), took no further cura-
tive action, nor did the trial judge, then or later, admonish
the jury to disregard the same.
At the close of the Government’s case in chief, in ruling
upon Mr. Ogle’s motion for a directed verdict, the trial court
stated that the “Handbook for Jurors” was in itself “... an
effort to impede and obstruct justice.” (Tr., p. 253) Later, at
the close of all the evidence, and after hearing counsel’s
argument on instructions, he apparently changed his mind
and submitted to the jury the issue of whether the handbook
would influence a juror or would impede the due administra-
tion of justice. This supplemental instruction made no men-
tion of the requirement that the jury find the element of
“corruptly.”
In his earlier instructions, the trial court defined “cor-
ruptly” for the jury as merely any endeavor to influence a
juror or to influence, impede or obstruct the due administra-
tion of justice. Mr. Ogle had requested and the trial court
refused to instruct that the word “corruptly” means a defen-
dant acted with improper motive or with bad or evil or
wicked purpose. The Court of Appeals in this case specifi-
cally upheld the trial court’s action in this and all other
challenged matters.
Mr. Ogle, despite a previously unblemished record, was
sentenced to confinement for a term of fifteen months and to
pay a fine of $500.00.
14
REASONS FOR GRANTING THE WR!
1. The write should be granted since, in at least two
important respects, the decision below is in conflict
with the decisions of other circuits:
A. The interpretation of the word “corruptly” in 18
U.S.C. 1503 (hereinafter 1503); and
B. The propriety of the instruction given at trial on
specific intent, and whether such an instruction should
be reversed as “plain error.”
These conflicts will be addressed in that order.
A. The interpretation of the word “corruptly” in
1503 by the Tenth Circuit is in conflict with the in-
terpretation given that word, in 1503, and in other sta-
tutes designed to protect the integrity of governmental
processes in other circuits.’
In the case at bar, Mr. Ogle tendered the following
instruction, which the trial court refused to give.
“The word ‘corruptly’ means an endeavor, done
with a wicked or evil purpose, to influence a juror in
the performance of his or her duties or to influence,
obstruct or impede the due administration of justice.
2It must be noted that 1503, as well as 18 U.S.C. 1505, can be
violated either “corruptly” or by threats or force. The latter t of
violations are in no way involved in the case at bar and are,
therefore, not in issue here. It must also be noted that in the case at
bar there is not even a hint of bribery or offer of economic advan-
tage of any type. (Cf. United States v. Roe, 529 F.2d 629, 631 (4th
Cir. 1975) Nor does this case involve any other methodology that
might be considered inherently corrupt. It should be noted that
while the stress may appear to be on the instructional problem,
this issue also necessarily encompasses the problem of whether the
evidence pertaining to “corruptly” was sufficient to send the case
to the jury under 1503; and also may govern the admissibility of
excluded evidence.
15
Specific intent to impede or influence a petit juror or
to impede or obstruct the administration of justice is
an essential element of the offense here charged.”
(quoted in the decision below at 613 F.2d 241). This instruc-
tion clearly should have been given since, when a defendant
is charged under a statute which requires proof of a
particular mental state as an essential element of the crime,
both the Government and the defendant may rightly insist
that the jury be adequately apprised thereof (United States
uv. Barclay, 560 F.2d 812, 818 (7th Cir. 1977) ).
The instruction given, in pertinent part, was that the
term “corruptly” meant:
“... [an] endeavor to influence a juror in the per-
formance of his or her duties, or influence; obstruct or
impede the due administration of justice.” (Quoted
at 613 F.2d 238)
The Tenth Circuit approved this instruction and said:
“All that they [the jury] had to find was that there
was a corrupt endeavor which was an effort to
wrongfully influence the jury.” (Emphasis supplied)
(At 613 F.2d 239)°
Other circuits interpreting this language have not
adopted this simplistic approach.
’The rationale of the Tenth Circuit in sa ter Icey instruc-
tion would be much more persuasive if the jury had been told that
they had to find ‘weengially” in order to convict. They were not so
instructed, nor were they given the definition from Bouvier’s Law
Dictionary, which the Court below quoted at 613 F.2d 238. Had the
jury been given either, this issue would not now be before this
Court. Further, despite the language of the Court below, the jury
was not told that the endeavor had to be an “unlawful” one.
16
DISTRICT OF COLUMBIA CIRCUIT:
Judge Sirica, in one of the Watergate cases was held to
have properly defined “corruptly” as “Having an evil or
improper purpose or intent.” (United States v. Haldeman,
559 F.2d 31, 114, ft. 226 (DC Cir., en banc, 1976), cert. den.
431 U.S. 933 (1977) ).
This Circuit also analyzed in detail the requirements for
conviction under the various subsections of 18 U.S.C. 201,
and set forth the differences in proof for those subsections
which required that the act be done corruptly and those
which had not such requirements (United States v. Brewster,
506 F.2d 62, 67-76 (DC Cir. 1974)). There, the court held that
those subsections which included the element of “corruptly”
required a “... higher degree of criminal knowledge and
purpose...” (at 506 F.2d 71) than those which did not. (The
comparable statutory scheme here involves 1503 and 18
U.S.C. 1504, which makes unlawful (but a mere mis-
demeanor) the act of writing or sending a juror a written
communication for the purpose of influencing such juror in a
pending matter, but does not require that the same be done
“corruptly.”
FIRST CIRCUIT:
In a case in which there was no doubt that an endeavor
to influence a juror had been made, Chief Judge Coffin,
speaking for this Court, stated that the “critical ingredient”
was “corrupt motive.” (United States v. Lazzerini, 611 F.2d
940, 942 (1st Cir. 1979) ) In Lazzerini, the defendant en-
deavored to utilize the services of a juror’s sister to influence
thatjuror and tell the juror that the defendant was a nice guy
and innocent (at 611 F.2d 941).
17
SECOND CIRCUIT:
“Whether the endeavor was ‘corrupt’ was a question
for the jury ... , under proper instructions emphasiz-
ing that the endeavor had to be ‘motivated by an
improper purpose.’ ”
(United States v. Fasolino, 586 F.2d 939, 941 (2d Cir. 1978),
affirming 449 F.Supp 586 (WD NY 1978)), wherein the trial
court had specifically held that not every endeavor to influ-
ence can be deemed to be “corrupt” (at 449 F.Supp. 587).4
In affirming a decision of acquittal by Judge Weinstein,
at the trial level, the court held that the finder of fact would
have to determine if the endeavor was made “corruptly,” and
then said: “This is a mixed question of law and fact, if not one
of fact alone;” (United States v. Fayer, 523 F.2d 661, 664 (2d
Cir. 1975)).
‘The trial court’s charge, which included an instruc-
tion to the effect, that appellant must be found, be-
yond a reasonable doubt, to have acted ‘corruptly,’
defined as ‘with improper motive, a bad and evil pur-
pose,’ was adequate to apprise the jury that appellant
could not be convicted for attempting to obtain what
he believed to be a true statement.”
(United States v. Abrams, 427 F.2d 86, 90 (2d Cir. 1970), cert.
den. 400 U.S. 832 (1970)) (While the Abrams case dealt
with a violation of 18 U.S.C. 1505, a comparison of that
statute with 1503 shows that the word “corruptly” is used for
the same purpose in each and that there is no reason in
either law or logic that the word would have different mean-
4It should be noted that in Fasolino, as in the case at bar, the
Government argued that any endeavor to influence is, per se,
corrupt. Neither the trial court nor the Second Circuit accepted
that argument in contrast to the views of the Tenth Circuit here.
18
ings as between the two statutes. The two of them and 18
U.S.C. 201 are all designed to protect the integrity of gov-
ernmental process. The similarity in language structure and
raison d’etre indicates that 1503 and 1505 should be inter-
preted pari passu. (Northcross v. Memphis Board of Educa-
tion, 412 U.S. 427, 428 (1973) ).
This Circuit also made the same distinctions between
those subsections of 18 U.S.C. 201 which require the element
of corruptly and those which do not as did the DC Circuit.
(United States v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965), cert.
den. 383 U.S. 967 (1966) )
FOURTH CIRCUIT:
“The statute requires only proof of an endeavor,... ,
and makes that act a crime, if the endeavor is a cor-
rupt one... . Under Section 1503, the intent or mo-
tive of the person charged as an inducer is of
paramount importance.” (Emphasis supplied)
(United States v. Baker, 611 F.2d 964, 967, 968 (4th Cir.
1979) )
“.., the term corruptly means for an improper mo-
tive.”
(United States v. Martin, 166 F.2d 76, 79 (4th Cir. 1948) )
FIFTH CIRCUIT:
In discussing the sufficiency of an instruction at the
trial level, the court held:
“The second paragraph begins by stating, correctly,
that the word ‘corruptly’ in Section 1503 ‘means a
19
defendant acted with improper motive or with bad or
evil or wicked purpose.”
(United States v. Partin, 552 F.2d 621, 642 (5th Cir. 1977);
accord: United States v. Haas, 583 F.2d 216, 220 (5th Cir.
1978) )
EIGHTH CIRCUIT:
The mere act of endeavoring to influence a witness to
change her story is not necessarily a violation of a predeces-
sor statute of 1503, if the person making such endeavor
believes the earlier version to have been false and seeks to
have the witness now tell the truth. That endeavor is not
corrupt conduct. (Harrington v. United States, 267 Fed. 97,
101 (8th Cir. 1920) )
NINTH CIRCUIT:
“The word ‘corrupt’ in the statute [1503] means for an
evil or wicked purpose.”
(United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1972) )
In an earlier case, this Circuit analyzed several prev-
iously decided cases and arrived at the conclusion that the
same acts might or might not be violative of 1503. The
difference was in the intent or motive of the person charged
with the act. Thus, influencing a witness to tell the truth, as
in Harrington, supra, would not be violative of the act be-
cause that would not be corrupt. (Cole v. United States, 329
F.2d 437, 440-441 (9th Cir. 1964), cert. den. 377 U.S. 954
(1964) )
This Circuit has also adopted the “heightened criminal
intent” test used by the DC Circuit, in Brewster, supra, in
distinguishing between those subsections of 18 U.S. 201
20
which require proof that the act was done “corruptly” and
those which do not. (United States v. Strand, 574 F.2d 993,
995 (9th Cir. 1978))
(Counsel have been unable to find any specific ex-
pressions as to the meaning of the word “corruptly” in 1503
from any of the remaining circuits.)
If this were the only error in this record, this conviction
could not stand since the instruction on the meaning of
“corruptly” used an “effects only” test, in a situation where
state of mind is critical. (United States vs. United State
Gypsum Company, 438 U.S. 422, 46 U.S.L.W. 4937, 4941
(1978))
B. The decision of the Tenth Circuit in the case at bar on
the legal adequacy of the trial court’s instruction on specific
intent conflicts with decisions in other circuits, as does its
use of the “plain error” test.
The trial court gave an instruction which has been aptly
described as “an invitation to reversal” (Devitt & Blackmar,
Federal Jury Instructions, Section 14.13, p. 403), in these
words:
“While witnesses may see and hear and thus be able to
give direct evidence of what a defendant does not fail
to do, there can be no eyewitness account of the state
of mind with which the acts were done or omitted, but
what a defendant does or fails to do may indicate
intent or lack of intent to commit the offense charged,
and it is reasonable to infer that a person ordinarily
intends the natural and probable consequences of
acts knowingly done or knowingly omitted, so unless
the contrary appears from the evidence the jury may
draw the inference that the accused intended all of
the consequences which one standing in like circum-
stances and possessing like knowledge should rea-
21
sonably have expected to result from any act know-
ingly omitted by the accused.” (Tr., May 9, 1978, p. 8,
1. 5-18)
The Tenth Circuit after distinguishing Sandstrom uv.
Montana, U.S. ___ , 47 U.S.L.W.. 4719 (1978), on the
basis that the instruction in Sandstrom used the word
“presumes” rather than “infer” as was done here, went on to
hold:
“... The instruction in our case simply allowed the
jury to draw a permissive inference from a basic fact,
a process which is nothing more than the deductive
reasoning which is employed in the consideration of
all circumstantial evidence. To allow the jury to pur-
sue a deductive process on a permissive basis is far
different from advising the jury that the law
presumes that a person intends the ordinary conse-
quences of his voluntary acts. The latter form re-
verses the burden of proof, the former does not.
(At 613 F.2d 243). In so holding, the Tenth Circuit was
following its earlier holding in United Staies v. Heath, 580
F.2d 1011, 1025 (10th Cir. 1978). Generally, it may be truly
said that the Tenth Circuit is more favorably inclined to this
burden shifting instruction than most, if not all, ofthe other
circuits.
While the Tenth Circuit’s position is not as much in the
minority as it is in the definition of “corruptly,” there is
sufficient conflict both as to the propriety of the instruction
and as to the application of the plain error test, where timely
objection was not made, to make this case worthy of the
grant of a writ. The various United States courts of appeal
should all be applying the same rule and the same standard
of appellate review on instructions to the jury with regard to
finding specific intent from circumstantial evidence. This is
22
an issue common to a very high percentage of criminal trials
and the fate of the defendant should not be dependent on the
geographic location of his trial. Today, it unfortunately is
and will continue to be until this Court speaks clearly on the
issue.
The conflict between the circuits on this point is clearest
when one compares the result reached by the Tenth Circuit
with that of the Second.
An almost identical charge to that given in the case at
bar was held to be plain error of constitutional proportions
despite a failure to object thereto at trial. (United States v.
Robinson, 545 F.2d 301, 305-306 (2d Cir. 1976) ) In Robin-
son, the condemned charge read:
“In determining the issue of intent in this case a
jury may reasonably infer, as I said before, that a
person ordinarily intends the natural and probable
consequences of acts knowingly done or knowingly
omitted.
So, unless the contrary appears from the evi-
dence, the jury may draw the inference that the de-
fendant intended all the consequences which one in
like circumstances and possessing like knowledge
should reasonably have expected to result from any
act knowingly done or knowingly omitted by the de-
fendant. (At 545 F.2d 305)
If anything, the charge quoted above was a more per-
missive one than that given by Judge Arraj in the case at
bar. Nevertheless the Second Circuit held:
“Thus, the ‘natural and probable consequences’
charge, particularly when, as here, it contains the
phrase ‘unless the contrary appears from the evi-
23
dence, is a burden-shifting charge which has the
potential for misleading the jury with respect to the
requirement that the government must prove every
element of an offense beyond a reasonabie doubt.” (At
545 F.2d 306)
In that same year, another Circuit, the Fourth, indi-
cated that it might well have held a burden-shifting instruc-
tion to be “plain error” but did not need to reach that decision
since it reversed the decision below for other reasons (United
States v. Arthur, 544 F.2d 730, 736-737 (5th Cir. 1976) )
Other circuits have reached similar results (e.g., United
States v. Orrico, 599 F.2d 113, 119, ft. 5 (6th Cir. 1979);
United States v. Diggs, 527 F.2d 509, 514-515 (8th Cir.
1975) ).
Many circuits appear to apply a variety of standards to
burden-shifting instructions, dependent upon such factors
as:
a. The strength of the Government’s case,
particularly where the only issue was the identity ofthe
defendant as the wrongdoer (e.g., United States v. Re-
eves, 594 F.2d 537, 540-541 (6th Cir. 1979); but reach the
opposite result where specific intent was, as in the case
at bar, a key element in dispute (United States v. Schil-
leci, 545 F.2d 519, 524-526 (5th Cir. 1977).)
b. The instructions taken as a whole show that the de-
fendant could not have been prejudiced or the jury mis-
led (Cohen v. United States, 378 F.2d 751, 755 (9th Cir.
1967). This approach has now been condemned in an en
banc decision of the Fifth Circuit, which declared that
prospectively it would not approve a burden-shifting
instruction and would not consider the same to “.. . be
absolved because other phrases defining the proper bur-
24
den of proof are included in the instructions, no matter
how often such corrective phrases are repeated.” United
States v. Chiantese, 560 F.2d 1244, 1255 (5th Cir. 1977).
That Court went on to declare that the error would not
be one requiring automatic reversal, but that considera-
tion of the issue “. . . shall not include consideration of
whether a defective charge has been cured by prior or
subsequent statements.” (/d.) Thereafter, the Third Cir-
cuit has also prospectively adopted the rule as enun-
ciated in Chiantese (United States v. Garrett, 574 F.2d
778, 780-783 (3rd Cir. 1978), cert. den. 436 U.S. 919
(1978)).
c. The erroneous instruction on burden of proof was
harmless beyond a reasonable doubt (e.g., Dunn v. Per-
rin, 570 F.2d 21, 24-25 (1st Cir. 1978); United States v.
Harrigan, 586 F.2d 860, 862-863 (1st Cir. 1978).
This multiplicity of standards of appellate review
makes the law appear to be what equity was once called:
“The length of the Chancellor’s foot.”
Regardless of how it is approached, the fundamental
question remains: What is the vice of the burden-shifting
instruction given in this case? Lest counsel be accused of a
partisan analysis, the analysis made by Devitt & Blackmar,
supra, at Section 14.13, p. 404, is:
“The jury may mistakenly believe that it is permissi-
ble to infer specific knowledge or intent solely from
the doing of a particuiar act, without regard to the
totality of circumstances; or that the occurrence of
that particular act shifts the burden of proof of
knowledge or intent from the prosecution to the de-
fense; or that the question is whether a reasonable
man in similar circumstances would have had the
requisite knowledge or intent, rather than whether
the accused actually had it.”
25
The instruction currently recommended by Devitt &
Blackmar on this issue is:
“Sec. 14.13 Proof of Intent
Intent ordinarily may not be proved directly, because
there is no way of fathoming or scrutinizing the oper-
ations of the human mind. But you may infer the
defendant's intent from the surrounding circum-
stances. You may consider any statement made and
done or omitted by the defendant, and all other facts
and circumstances in evidence which indicate his
state of mind.
You may consider it reasonable to draw the inference
and find that a person intends the natural and proba-
ble consequences of acts knowingly done or know-
ingly omitted. As Ihave said, it is entirely up to you to
decide what facts to find from the evidence.” (p. 401)
Even a cursory comparison of the above with the in-
struction given will show the tremendous difference in the
freedom of decision allowed to the jury. For one thing, they
are told that they may consider it reasonable to draw the
inference and find that a person intends the natural and
probable consequences of his acts, rather than as they were
told in this case “it is reasonable to infer” (emphasis
supplied), etic. Thus, despite the fact that 1503 is a specific
intent offense, the instruction given to this jury told them, in
effect, that it is always reasonable to so infer, rather than
permitting them to decide if it was reasonable in the case at
bar. Therefore, the mere fact that Mr. Ogle’s call to Mrs.
Lagoni might have triggered her call to the juror might well
have seemed to the jury sufficient to prove specific intent by
itself and without requiring further determination on their
part. This was compounded by the “unless the contrary ap-
pears from the evidence” instruction. (United States v. Davis,
26
608 F.2d 698, 699 (6th Cir. 1979); United States v. Ariza-
Ibarra, 605 F.2d 1216, 1227-1288 (1st Cir. 1979)). In testing
this error, the Court is urged to remember that Mr. Ogle was
denied the right, on redirect examination, to make a specific
denial, under oath, of the requisite criminal intent.
Under these circumstances, especially, this was plain
error. Whatever the ultimate outcome may be, whichever
standard of appellate review this Court may choose, it is
clearly under a duty to choose one. This thicket must be
cleared. The federal courts must speak with one voice as to
the standard to be applied in jury instructions on specific
intent, which have a tendency to impermissibly shift the
burden of proof, (which this Court has reiterated is in itself an
error of constitutional proportions (Mullaney v. Wilbur, 421
U.S. 684, 699-701 (1975)), as to the standard of appellate
review, and as to the application of that standard to situa-
tions where timely objection has, or has not been made.®
2. The Writ should be granted in this case because it
involves two questions of great public importance.
A. The first and most important of these is the chil-
ling effect of the decision below on the exercise of First
Amendment Freedoms.
While not expressly stated, it is obvious from a reading
of the opinion of the Tenth Circuit, and even more obvious
from the remarks of the trial court, in the transcript, that the
ideas expressed in “Handbook for Jurors” were allowed to
-serve, in lieu of evidence, of the required element “cor-
ruptly.” Since the Court could not openly so state, it had to
define “corruptly” in such a way as to totally remove it from
the “cluster of ideas,” which the Congress adopted in incor-
porating that word into 1503 (see Morrisette v. United States,
5And as will be seen below on the duty of defense counsel with
regard thereto.
27
342 U.S. 246, 263 (1952)). That cluster of ideas has been
illustrated by the many decisions of the federal courts set
forth above. These are far from new. The attention of the
Court is respectfully invited to the many cases cited and
definitions given to the term “corruptly” in 9A, Words and
Phrases, pp. 576-579, which illustrate the common law
meaning of the term. Since Congress provided no other defi-
nition, the term should be interpreted according to that
meaning. (Morrisette v. United States, supra, at 342 U.S. 263);
see also: Burns v. Alcala, 420 U.S. 575, 580-581 (1975)).
The equation of “corruptly” with “any endeavor” places
a chilling effect upon the exercise of First Amendment free-
doms. Despite the specific factual situation of the case at bar,
there can be no question of Mr. Ogle’s standing to attack an
interpretation which would convert 1503 into a barrier to
freedom of expression (Dombrowski v. Pfister, 380 U.S. 479,
486-487 (1965); N.A.A.C.P. v. Button, 371 U.S. 415, 432-433
(1965)).
“Where the regulations of the liberty of free dis-
cussion are concerned, there are special reasons for
observing the rule that it is the statute and not the
accusation or evidence under it, which prescribes the
limits of permissible conduct and warns against
transgression.”
(Thornhill v. Alabama, 310 U.S. 88, 98 (1940)).
This case did not start as, and should never have be-
come, a First Amendment cause celebre. It is one now,
largely because of the fact that the Court below not only
chose to affirm the conviction, but also to publish its deci-
sion. Had that decision remained unpublished only the un-
fortunate Mr. Ogle would have been affected.
The problem is that if “any endeavor” to influence a
juror or to influence the due administration of justice is, ipso
facto, “corrupt” many otherwise protected activities would
28
fall under the ban of 1503. (For this purpose, we need not
even consider lawyer’s arguments, judge’s comments and
instructions, or the expressions of witnesses, although car-
ried to its ultimate conclusion, these too would be suspect.) A
simple illustration may suffice. Suppose a group were to be
formed whose purpose was to reestablish trial by jury, in the
sense of the powers of the common law jury, extant at the
time of the adoption of our Constitution, and paraphrasing
his famous dictum in Horning v. District of Columbia, 254
U.S. 135, 138 (1920), were to take out prominent advertise-
ments in major newspapers throughout the United States
and place ads in television and on radio for prolonged
periods, with the stated purpose of “educating” sitting and
potential jurors:
ONE OF THE GREATEST AMERICAN JURISTS,
MR. JUSTICE HOLMES, SAID THAT EVERY
JURY HAS THE POWER TO ACQUIT IN THE
TEETH OF THE LAW AND THE EVIDENCE.
There can be no question that such an effort would be an
endeavor to influence jurors and to influence the due ad-
ministration of justice in the United States.
Another analogy may also be instructive. Suppose such
a group raised funds for the avowed and accomplished pur-
pose of distributing, gratis, a copy of Chief Judge Bazelon’s
separate opinion in United States v. Dougherty, 473 F.2d
1113, 1138-1144 (DC Cir. 1972), to every household in the
United States with this inscription on the cover:
READ, KEEP AND REMEMBER IF YOU ARE
NOW ON JURY DUTY OR ARE EVERCALLED TO
BE A JUROR.
There can be no question that such an effort would be an
attempt to influence jurors or to influence the due adminis-
tration ofjustice (1503). (It must be noted the statute is in the
disjunctive, and does not require that such endeavor to
influence be for the purpose of impeding or obstructing the
due administrative of justice.)
29
There can equally be no question that such endeavors
would be in violation of 1503 if the word “corruptly” was
equated to “any endeavor”. There can he equally no ques-
tion, that if 1503 were so interpreted it would violate the
First Amendment. While one may despise the doctrine of
“jury nullification,” it may be lawfully espoused, if the First
Amendment means what this Court has so frequently said it
means.
Such a construction would put 1503 on a direct collision
course with the First Amendment.
Such a collision course is at the same time unnecessary
and foolish. Where. the language of the statute leaves the
Court any freedom of decision, it should and must interpret
that statute to avoid constitutional infirmities (Swain v.
Pressley, 430 U.S. 372, 278, n. 11 (1977)).
As demonstrated above, it appears doubtful that any
circuit, but the Tenth, has or is likely to (unless this Court
allows the decision below to stand) follow the doctrine that
“corruptly” means simply “any endeavor.” The chilling ef-
fect of such a decision on First Amendment freedoms, even if
limited to the states of Colorado, Kansas, New Mexico, Ok-
lahoma, Utah and Wyoming, cannot be allowed by this
Court.
B. The second issue of great public importance is
whether the test of reasonably effective assistance of
competent counsel includes the preservation of the
appellate rights of a defendant.
Is the effective assistance of competent counsel, which is
the right of a defendant in a felony case (McMann v.
Richardson, 397 U.S. 759, 771 (1970)), limited to trial tactics
and advocacy? Does it, as we submit that it should, also
encompass the preservation of the appeilate rights of the
defendant by timely motions or objections supported by
appropriate legal research. There can be no question of the
right ofcounsel to doso and obtain “. . . the court’s considered
ruling.” (Sacher v. United States, 343 U.S. 1, 9 (1951).)
30
Having the right does defense counsel have a concomi-
tant duty to make such objections?, beyond question he does.
(ABA, Standards Relating to the Prosecution und Defense
Function, Defense Nos. 1.1 (b) and 7.1 (d)).
Where counsel fails in such duty, especially through
ignorance or lack of adequate legal preparation, has the
defendant had the requisite effective assistance of compe-
tent counsel? Is such failure to make timely objections and/or
submission of proper jury instruction “... within the range
of competence of attorneys in criminal cases.”? (McMann uv.
Richardson, supra)
While clearly an attorney may make errors, and who
among us have not, such errors cannot be “... so flagrant
that a court can conclude it resulted from neglect or ignor-
ance rather than from informed professional deliberation.”
(Marsullo v. State of Maryland, 561 F.2d 540, 544 (4th Cir.
1977), cert. den. 435 U.S. 1011 (1978) ).
Obviously, the Tenth Circuit is not so persuaded:
“Ogle further maintains that he is entitled to a rever-
sal based on lack of effective assistance of counsel. He
points to failures to make objections and form an
adequate record for appeal by the trial attorney. An
issue was raised as to what standard is to be applied
to determine when counsel is incompetent. Note:
There is no evidence whatever that there was incom-
petent counsel. The representation was found by
Judge Arraj to have been highly adequate, and from
our view of the record we agree with this appraisal.”
(At 613 F.2d 228)
While normally the determination on this issue of the
trial judge is highly persuasive, this judgment cannot be
given the same weight where, as here, the failure at trial is
the failure to protect appellate rights. After all, if the trial
judge thought his rulings and instructions were erroneous,
31
he would not have made them. Therefore, a failure to make
objection to what the judge considers to be a correct legal
position will not impress him as inadequacy of counsel.
The Tenth Circuit correctly points out that Mr. Ogle’s
objection to his representation by his counsel at trial was
precisely in that area. Thereafter, the decision below never
addresses the point, but instead on at least three occasions
(at 613 F.2d 238, paragraphs 4 and 5; p. 242), the Court
below stated that since there was a failure to object to the
inferred intent instruction this left such instruction to be
tested under the plain error rule and indicated that such
failure “... weakens the position of the defendant appel-
lant” (at 613 F.2d 242).
The effectiveness of counsel is not tested merely by his
performance in the court room, but must also be measured by
his familiarity with both the facts and applicable law (Hol-
linghead v. Wainwright, 423 F.2d 1059, 1060 (5th Cir. 1970);
Goodwin v. Swenson, 287 F.Supp. 166, 176 (WD Mo. 1968) ).
The duties of counsel for the defense include having per-
formed adequate legal research (United States v. DeCoster,
487 F.2d 1197, 1204 (DC Cir. 1973)), and his failure to do so
and to bring the correct statement of the law to the attention
of the trial court is sufficient to establish ineffective assis-
tance of counsel (Moran v. Morris, 478 F.Supp 145, 162-163
(CD Calif. 1979); Kott v. Green, 303 F.Supp. 821, 823 (ND
Ohio 1968) ).
“Where the defense is substantially weakened be-
cause of the awareness on the part of defense counsel
of a rule of law basic to the case, the accused is not
given the effective representation guaranteed him by
the Constitution.”
(Beasley v. United States, 491 F.2d 687, 695 (6th Cir. 1974)),
quoting with approval from (Poe v. United States, 233
F Supp. 173, 1978 (D DC 1964)).
32
These rules have clear application to the case at bar. The
most important omission was the failure to object to the
instructions on specific intent and to tender proper ones.
This failure simply cannot have been a matter of trial tac-
tics. An obviously critical issue in this trial was the issue of
the requisite specific intent to violate 1503. Long prior to
this trial, the Tenth Circuit had said that instructions such
as those given in the case at bar would leave a defendant to
the tender mercies of the plain error rule where no objection
was timely made (United States v. Woodring, 464 F.2d 1248,
1251 (10th Cir. 1972); McCarty v. United States, 409 F.2d
793, 799-801 (10th Cir. 1969), cert. den. 396 U.S. 843 (1949));
and United States v. Tijerina, 407 F.2d 349, 355 (10th Cir.
1969), cert. den. 396 U.S. 843 (1959) ).
Even rudimentary preparation for trial of a specific
intent case would have led counsel to consideration of appro-
priate instructions on specific intent measured against the
factual posture of his case. Elementary research would at
least have required examination of the 1977 edition of Dev-
itt and Blackmar which would have shown the very substan-
tial changes in what is now Section 14.13, from even the
1970 edition.
A bit more research would have shown him, and he then
the trial court, that the Tenth Circuit has specifically held it
error to instruct that “it is reasonable to infer that a person
ordinarily intends the natural or probable consequences of
acts knowingly done or knowingly omitted” (Tr., p. 8, 1.
10-12) in a specific intent case (United States v. Woodring,
supra, at 464 F.2d 1251). In Woodring, the Tenth Circuit
held that while error, since no objection had been made
thereto, the error would be tested under the plain error rule
(id.). When a counsel, who has and does practice in the
federal! courts, allows an erroneous instruction, which ne-
gates the correct specific intent and burden of proof instruc-
tions go unchallenged, can it be truly said that he has pro-
vided his client with effective assistance of counsel?
33
The probable efficacy of such an approach is established
by the comments of Judge Arraj at the hearing on the Motion
for New Trial. In that Motion, a generalized objection was
made to the adequacy of instructions on specific intent. In
response thereto Judge Arraj said. in pertinent part:
“Specific intent instructions, if I recall right, are the
stock instructions that are taken out of the third
edition of Devit (sic) and Blackmar, used in this
Court, all divisions. Amost (sic) on a daily basis.”
(Tr., Hearing on June 15, 1978, p. 8, 9)
From Judge Arraj’s comments, it would appear that had
he been shown at trial, the then current edition of Devitt
and Blackmar on this point, the burden-shifting instruction
probably would not have been given.
It would be difficult, to say the least, to contend that this
failure by counsel led to only harmless error.
3. The Writ should be granted by this Court in the
exercise of its supervisory powers over the lower fed-
eral courts, in order to sustain public confidence in the
administration of justice.
A. The trial court abused its discretion in rejecting
relevant evidence which the jury should have, but was
not allowed, to hear.
(1) With regard to his specific intent.
Mr. Ogle’s testimony on this point in direct
examination was:
Q. Now, Mr. Ogle, going back to February 21,
1978, the date of the telephone conversation between
you and Jacquelyn Lagoni, did you on that day or at
34
any other time attempt to contact Colleen Hansen,
who was ajuror in the case of United States vs. Gigax,
for the purpose of influencing her decision in that
trial?
A. No, I did not.
Q. Did you on or about February 21st of 1978
have Jacquelyn Lagoni contact Colleen Hansen for
the purpose of delivering to her a copy of this hand-
book?
A. No, I did not do that.
Q. Did you on or about that date, February 21,
1978, contact Jacquelyn Lagoni for the purpose of
having her see if she could influence the juror Colleen
Hansen in any way in that case?
A. No, I did not. (Tr., pp. 269-270)
During cross-examination, the prosecutor made de-
tailed inquiry (Tr., pp. 286-301) into Mr. Ogle’s purposes and
intent in making his call to the Lagonis. Then on redirect
examination, the following occurred:
Q. Now, did you, Mr. Ogle, on the night of Feb-
ruary 21st of 1978, to your recollection and to your
belief, take any action designed to influence Colleen
Hansen with respect to that Gigax case?
MR. NESLAND: Objection.
THE COURT: Objection sustained.
35
Q. When you called Jackie Lagoni on the night of
February 21, 1978, did you do so with the intent to
influence Colleen Hansen in the exercise of her duty?
MR. NESLAND: Same objection.
THE COURT: Same ruling. Sustained.(Tr., pp.
305-306)
The decision below held that the exclusion of this evi-
dence was not prejudicial, essentially because it was re-
petitious.
If the Government had not chosen to go into Mr. Ogle’s
intent during cross-examination, it might have been proper,
or at least not an abuse of discretion to refuse to allow him to
reiterate his true intentions at the time in question on redi-
rect. However, the Government did vigorously cross-
examine him on his intent and, therefore, he should have
had an opportunity to. . . explain and clarify relevant mat-
ters in his testimony which have been weakened, distorted,
or obscured by his cross examination.” (81 Am. Jr. 2d, Wit-
ness, Sec. 425, p. 433)
“Cross examination on a part of a transaction enables
the opposing party to elicit evidence on redirect
examination of the whole transaction at least to the
extent that it relates to the same subject.”
(United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir.
1979))
It is proper on redirect examination to have a witness
explain and complete his testimony which was the subject of
cross-examination (Copes v. United States, 345 F.2d 723, 724
(DC Cir. 1964); Zacher v. United States, 227 F.2d 219, 227
(8th Cir. 1955), cert. den. 350 U.S. 993 (1956); Kowalchuk v.
36
United States, 176 F.2d 873, 878 (6th cir. 1949); see also 2
Wright and Miller, Federal Practice and Procedure (Crimi-
nal), Sec. 416, p. 185).
On this point, i.e., the right to clearly make denial of
specific intent, this case is remarkably similar to one de-
cided, early in this century, by this Court (Crawford v.
United States, 212 U.S. 183, 202 (1909)).
“It is hardly possible to imagine a case where greater
care was necessary in regard to the exclusion of pro-
per and admissable evidence than in the case before
us. As we have said, it was entirely possible that the
jury might believe that both Lorenz and Machen were
guilty, as alleged, in the indictment for conspiracy,
and that the defendant was, nevertheless, perfectly
innocent. No material and proper evidence upon that
issue should have been excluded, and the error com-
mitted was not, in our opinion, clearly shown to have
been harmless.” (At 212 U.S. 205)
Similarly in the case at bar, the jury could well have
believed that Mrs. Lagoni (who had been granted immunity)
intended by her phone call to have endeavored to influence
the juror, but could also have found that Mr. Ogle did not
intend for her to make that call or any such endeavor. Under
such circumstances, the rule as stated in Crawford is that:
“There is a presumption of harm arising from the
existence of an error committed by a trial court
against the party complaining, in excluding material
evidence on a trial, especially before a jury. It is only
in cases where the absence of harm is clearly shown
from the record that the commission of such an error
against a party seeking to review it is not cause for
reversal of the judgment. (Deery v. Cray, 5 Wall. 795;
807; Smiths v. Shoemaker, 17 Wall. 630.)”
37
(At 212 U.S. 203); accord: (Miller v. United States, 120 F.2d
968, 973 (10th Cir. 1941))
This error in the case at bar is compounded by the fact
that no reason was stated by the prosecutor for his objection,
nor by the trial court for sustaining the same. An objection to
the admission of evidence should state accurately and witha
reasonable degree of specifity the basis for such objection
(United States v. Indiviglio, 352 F.2d 276, 279 (2nd Cir., en
banc, 1965), cert. den. 383 U.S. 907 (1966)).
The sequence of events, where objection was made and
sustained with no reasons given by either prosecutor or
judge, could only have left the jury with the impression that
the trial court considered that any answers Mr. Ogle might
have given were unimportant. Nevertheless, this was a
specific intent offense and those answers were absolutely
crucial to his defense. Such a gross error in the exclusion of
critical evidence would alone warrant reversal (2 Wright
and Miller, supra, Sec. 556, p. 509), and justifies the exercise
by this Court of its supervisory powers.
(2) Evidence which would have assisted Mr. Ogle in
persuading the jury that his motives were not “corrupt” was
improperly excluded. It must be frankly stated here that if
the decision below is correct ag to the meaning of the term
“corruptly,” then the decision ofthe trial court to exclude the
evidence referred to herein may have been correct or at least
harmless. Conversely, if “corruptly” means “with an evil
intent, purpose or motive” then Mr. Ogle was improperly
prevented from presenting a critical defense and thus denied
due process.
Mr. Ogle was improperly refused permission to present
evidence which might well have persuaded the jury that
he had not acted “corruptly” within the proper meaning of
that term. Even in a case of a violation of a statute where the
38
mens rea is minimal, this Court has recently said that an
accused person may properly present evidence of the circum-
stances which led to his unlawful actions (United States v.
Bailey, US. , 48 U.S.L.W. 4104, 4106-4107,
4109 (1980)).
Despite undoubted proof of an intentional act an ac-
cused may submit evidence from which ". . . the jury might
nevertheless find that it was not prompted by bad faith or
evil intent which the statute makes an element of the of-
fense.” (United States v. Murdock, 290 U.S. 289, 397-398
(1933)).
In any event, these questioned rulings denied Mr. Ogle
“.,. the opportunity to be heard respecting the justice of the
judgment sought.” (Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 162 (1952) (Mr. Justice Frankfurter
concurring).
The pertinent portion of the record shows that after Mr.
Ogle had briefly explained his understanding of the contents
of “Handbook for Jurors”, the following occurred:
“Q. And is your belief in these propositions based
solely upon what you have read in this pamphlet,
Exhibit 3-B?
A. No, it is not. That’s just a synopsis that some-
one else prepared, and I have done some independent
study on the subject also.
Q. Okay, and just briefly could you relate to us
what other materials you have relied on in arriving
at your belief that the propositions in this handbook
are valid and proper statements?
A. Yes, I could.
39
Mr. Nesland: Is that the end of the question?
Objection.
The Court: On what grounds?
Mr. Nesland: It is irrelevant. We are talking
about this jury pamphlet and what it says.
The Court: Sustained.
Q. Mr. Ogle, have you done any research to
satisfy yourself in your mind that the propositions in
this pamphlet are correct?
A. Yes, I have.
Q. And could you tell us of what that research
consisted?
MR. NESLAND: Objection.
THE COURT: Yes, same question, and it is the
same ruling. “Sustained.” (Tr., pp. 268-269)
Not only did these rulings improperly deny Mr. Ogle’s
explanation to the jury of the foundation for his beliefs,
which would have negated the aspect of “corruptly” required
by the statute, but the error of the ruling was compounded in
its effect by another instruction given by the Court. In the
supplementary instructions given by the Court tothe jury on
the First Amendment issue, the Court told the jurors, in
pertinent part:
“However, if you find that the contents of the ‘Hand-
book for Jurors’, copies of which you will have with
you as Exhibits 1 and 3-B, would influence a juror in
his or her duties or would impede or obstruct the due
40
administration of justice, then I instruct you that the
First Amendment does not permit a person to dis-
tribute or endeavor to distribute such a ‘Handbook for
Jurors’ to a juror sitting in a pending case in federal
court.” (Tr. of Instructions, p. 26) (Emphasis
supplied)
Thus, the jury was told that they might convict upon
either of the two theories:
(a) If they found that the handbook would influ-
ence a juror,® or
(b) If they found that the handbook would impede
or obstruct the due administration of justice.
Since there was only a general verdict, there is no way of
knowing if the jury convicted on the basis of the first theory,
the second, or both. One thing is certain and that is that no
one can say with any degree of certainty that Mr. Ogle’s
description of his independent research, and the authorities
upon which he relied, might not have influenced the jury, in
his favor, especially as to the second theory.
Not only did the trial court, upon objection by the pros-
ecution, prevent Mr. Ogle from presenting his evidence to
the jury on these matters, but at another point did so sua
sponte, characterizing Mr. Ogle’s testimony as a Fourth of
July speech (Tr., pp. 264, 265). This occurred as Mr. Ogle was
attempting to respond to his counsel’s question pertaining to
the First Amendment. Thereafter, the trial court recognized
the First Amendment implications and submitted them to
8It should be noted here that this instruction did not require
the jury to find that the contents of “Handbook for Jurors” would
rly gL unlawfully or wrongly influence a juror - all they had to
find to bring a verdict of guilty was that the handbook would
influence a juror.
41
the jury. But that same jury had heard the Judge state that
Mr. Ogle’s views were irrelevant and nothing but a Fourth of
July speech.? Under these circumstances, Mr. Ogle was
plainly entitled to have the jury hear his understanding of
the applicable law (United States v. Haigler, 172 F.2d 986,
988 (10th Cir. 1949)).
The most succinct statement of the law on this point was
made by the Supreme Court of Colorado:
“It is axiomatic that a defendant in a trial on a crimi-
nal charge, can always be heard to advocate, and
introduce evidence to support, the defense and justifi-
cation claimed for the alleged unlawful acts.”
(People v. Albrecht, 145 Colo. 202, 206, 358 P.2d 4, 7 (1960))
In evaluating the exclusion of this evidence, it is essen-
tial to consider that the Federal Rules of Evidence favor
admission rather than exclusion of evidence, if it has any
probative value at all (United States v. Holladay, 566 F.2d
1018, 1020 (5th Cir. 1978)). This evidence had probative
value in that it showed the grounds of Mr. Ogle’s beliefs, and
would have tended to show that his actions were not moti-
vated by an evil purpose. As such, it was prejudicial error to
deny him the opportunity to present the same (Buchanan v.
United States, 233 Fed. 257, 259 (8th Cir. 1916)). This rule is
especially applicable where the jury must determine the
defendant’s state of mind in order to convict (United States v.
Herrera, 600 F.2d 502, 504 (5th Cir. 1979)).
Even though the source of a witness’ beliefs, might
otherwise be inadmissible hearsay, the witness may never-
7™“Where a court has expressed its opinion on a pivotal issue in
the case, and has expre that opinion in a ane, unequivocal
and one-sided fashion, abstract instructions regarding the jury’s
role as fact finder are not a sufficient remedy.’
(United States v. Anton, 597 F.2d 371, 375 (3rd Cir. 1979))
42
theless testify about utterances or writings, when the same
is offered to establish his state of mind, rather than as proof
of the truth of the matter stated (4 Weinstein, Evidence, Sec.
801(c)(01), pp. 801-70 - 801-72).
B. This Court should not allow approval of a delib-
erate attempt to destroy a witness by questioning de-
signed to force that witness to claim her rights against
self-incrimination in front of the jury.
Mrs. Lagoni’s credibility was central to this case. If she
were believed that Mr. Ogle did not ask or suggest to her that
she contact Mrs. Hansen, then Mr. Ogle could not have been
convicted even of the misdemeanor in 18 U.S.C. 1504, let
alone the felony under 1503.
It would be difficult to imagine a situation where the
prosecutor was on firmer notice that a question about the
W-4 form would elicit a Fifth Amendment claim. At the very
outset of the trial and before a jury had been impaneled, Mrs.
Lagoni appeared with her attorney and this exchange took
place:
MR. RANSOM: May it please the Court, my
name is William Ransom. I appear on behalf of the
Lagonis. I represent them, and it is my understand-
ing if asked about these W-4 forms that Mr. Nesland
has referred to, they would assert their Fifth
Amendment privilege.
I think the government should be put on notice
that with respect to any questions about their per-
sonal returns or W-4 forms, it is my understanding
that they would assert their Fifth Amendment
rights.
THE COURT: All right, he is on notice.
(Tr., p. 10)
43
A scant few hours later, the prosecutor, who had called
Mrs. Lagoni to the stand, struck not only a hard blow, but a
foul one:
Q. You testified that during the tax class you did
have discussions about W-4 forms, is that correct?
A. We discussed that aspect, yes.
Q. And during the period of time that you took
this class, did you change your W-4 form?
A. I would like to refuse to answer that on the
grounds of my Fifth Amendment rights.
MR. SLIVKA: Your Honor, may we approach the
bench?
THE COURT: All right.
AT THE BENCH
MR. SLIVKA: Your Honor, I believe this line of
inquiry is totally improper, and Mr. Ransom, who is
this witness’ attorney, appeared this morning and
informed counsel and informed the Court that if he
pursued this line of questioning, he would advise his
client and his client would in fact take the Fifth
Amendment.
We believe it is improper from our understand-
ing of the law and procedure for an attorney to ask a
witness a question on the stand knowing in advance
that they would take the Fifth Amendment.
MR. NESLAND: I don’t believe she has a Fifth
Amendment right with respect to that question. It
44
never entered my head she would have a Fifth
Amendment right whether or not she changed or
withdrew a W-4. If I offered her the form, that’s an-
other question.
THE COURT: That's right, she can change her
form. Even my form isn’t accurate. I don’t claim being
65 years old and I give them a little extra each month.
He can’t go any further.
MR. SLIVKA: But, Your Honor, the inference is
there. |
THE COURT: Well, he is not going into it any
more. I would just as soon that he hadn’t gone into it,
but I don’t think it is that damaging. Don’t go into it
any further.
MR. NESLAND: Okay. (Tr., pp. 154-155)
It is inherently incredible that the prosecutor actually
believed (and even more so that the trial court and the Court
of Appeals supported him in this) that Mrs. Lagoni had no
Fifth Amendment rights with regard to her W-4 forms. This
entire case arose from the trial of Mr. Gigax for filing false
W-4 forms. While the answer to this one question might not
alone, have subjected Mrs. Lagoni to possible prosecution,
had she answered that question she would have been subject
to the rule that: “Disclosure of a fact waives the privilege as
to details.” (Rogers v. United States, 340 U.S. 367, 373
(1951); see also: Malloy v. Hogan, 378 US. 1, 11-12 (1964);
and Jn re Brogna, 589 F.2d 24, 27 (1st Cir. 1978).
While the Government may impeach a witness, includ-
ing its own, essential unfairness in such attempt is prohib-
ited (Schwab v. United States, 327 F.2d 11, 167-177 (8th Cir.
1964)).
45
It must be observed that his question about Mrs. La-
goni’s W-4’s could not possibly have brought in any evidence
relevant to the merits of the case. It was clearly and solely
designed to impeach her in the eyes of the jury.
“The layman’s natural first suggestion would prob-
ably be that the resort to the privilege is a clear
confession of a crime.”
(8 Wigmore, Evidence, 3rd Ed., Sec. 2272, p. 426)
Essentially, the same thought and its result in a trial
has been expressed in a leading case as:
“When a witness claims his privilege, a natural, in-
deed an almost inevitable, inference arises as to what
would have been his answer if he had refused. If the
prosecution knows when it puts the question that he
will claim the privilege, it is charged with notice of
the probable effect of his refusal upon the jury’s
mind.”
(United States v. Maloney, 262 F.2d 535, 537 (2d Cir. 1959))
Indeed, the organized bar has clearly denounced such a
practice:
“(c) It is unprofessional conduct for a prosecutor to
call a witness who he knows will claim a valid
privilege not to testify, for the purpose of impressing
upon the jury the fact of the claim of the privilege.”
(ABA, Standards Relating to the Prosecution Function and
Defense Function - Prosecution Standard 5.7(c))
It must be noted that at no time during the trial did the
Court give any sort of cautionary instruction to the jury on
46
this incident. It must also be frankly stated that defense
counsel did not ask for one. This may well have been deliber-
ate trial strategy on his part since it has been wisely noted
that such a cautionary instruction is really not helpful
(United States v. Maloney, supra).
Where, as here, the evidence was weak, and where, as
here, the prosecutor knew in advance that the witness would
claim her Fifth Amendment privilege, even a prompt
cautionary instruction will not save the conviction (United
States v. King, 461 F.2d 53, 57 (8th Cir. 1972); Robbins uv.
Small, 371 F.2d 793, 795-796 (1st Cir. 1967), cert. den. 386
U.S. 1033 (1967)).
In the face of such prosecutorial misconduct, the harm-
less error rule “... only operates to excuse error where evi-
dence of the defendant’s guilt is exceptionally strong and the
error appears to have been harmless beyond a reasonable
doubt.” (United States v. Miranda, 593 F.2d 590, 596 (5th
Cir. 1979)) In that case, the court held that despite a failure
to object they would consider the error, and went on to hold:
“And where, as here, we cannot say with certainty
that a prompt curative instruction would have elimi-
nated the prejudice, we resolve any doubts in favor of
the accused and do not find the absence ofan objection
to be fatal.” (Id.)
C. In light of the essential differences with regard
to mens rea which the Congress incorporated in 1503 as
compared to the requirements for conviction of 18
U.S.C. 1504, this Court should not allow the lower
courts to rewrite 1503 so that evidence sufficient for a
1504 conviction is automatically sufficient for a 1503
conviction.
Again, as to this point it must be admitted that if the
Court below was correct in its interpretation of the word
“corruptly” this issue must fail.
47
In its effort to avoid having to reverse for a failure to
prove and instruct the jury properly on “corruptly,” the
Tenth Circuit said that it meant merely “unlawful” (at 613
F.2d 238 and at 242).
Of course, if the jury believed that Mr. Ogle had at-
tempted to have a copy of the ‘Handbook for Jurors” given to
a sitting juror as an attempt to influence such juror, such
would be unlawful because it would have been a violation of
Section 1504.
Thus, if the Court of Appeals’ holding that “corruptly”
equals nothing more than “unlawfully” is correct, no pur-
pose would be served by having the lesser offense of 1504
since every 1504 offense would also automatically be a cor-
rupt endeavor and a violation of 1503. This is dubious since it
violates the rules of statutory construction that:
“It is well established that statutes will not be inter-
preted as though Congress enacted superfluous pro-
visions.”
(Conway County Farmers Assn. v. United States, 588 F.2d
592, 598 (8th Cir. 1978))
This Court has not looked with favor on cases in which
the Government is able to prove violations of two separate
criminal statutes with precisely the same factual showing
- (Simpson v. United States, 435 U.S. 6, 11 (1978)).
Such an expansive reading of a criminal statute, which
would make proof of a violation thereof no more difficult
than that of a misdemeanor not requiring the element of
corruptly, is contrary to the rules of construction for criminal
statutes (United States v. Campos-Serrano, 404 U.S. 293,
297 (1971)).
48
Of course, the Congress may deliberately denounce
identical conduct in two different statutes, with different
penalities, provided that the Congress makes proof of the
same elements a requirement for a conviction of either sta-
tute (United States v. Batchelder, ___. U.S. ____ , 47
U.S.L.W. 4611 (1979)). The Congress has done this with re-
gard to some of the tax statutes (see United States v. Bishop,
412 U.S. 246, 350-362 (1973)), where in certain situations
both the felony and the misdemeanor statutes require the
same mens rea, “willfully.” (The statutes invoived are
quoted at 412 U.S. 347-348). (Cf. Spies v. United States, 317
U.S. 492, 497-498 (1943)): and the excellent analysis on this
point in (United States v. Palermo, 259 F.2d 872, 878-879
(8rd Cir. 1958))
In the case at bar, only 1503 requires that the attempt to
influence be corruptly done, while 1504 only requires an
attempt to influence a juror by writing to him or sending him
a written communication.
To equate the two statutes is truly impermissible judi-
cial legislation, and if this was the only error (out of a day
anda halftrial replete with errors), it would justify the grant
of a writ and summary reversal.
D. Finally, and perhaps in the long run, the most
important reason why a writ should be granted in this
case, is to assure the public that even those who are
accused of criticizing the judicial system, as we know
it, will receive a full measure of due process of law, a
scrupulously fair trial, and dispassionate, impartial
appellate review.
In the words of this Court:
“The operations of the courts and the judicial conduct
of judges are matters of utmost public concern.”
49
(Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
46 U.S.L.W. 4389, 4393 (1978))
and
“Justice must satisfy the appearance of justice.”
(Offutt v. United States, 348 U.S. 11, 14 (1954))
It must be remembered at all times, especially in the
consideration of a case such as this that the courts must
“...be on guard against confusing offenses to their sen-
sibilities with obstructions to the administration of justice.”
(Brown v. United States, 356 U.S. 148, 153 (1958))
There can be little doubt tha. many of the ideas ex-
pressed in the book, “Handbook for Jurors,’ must repre-
sent severe criticism of every person who today wears the
judicial robe. Its philosophy is a throwback to the Magna
Carta, the trial of John Peter Zenger on this continent, and
the common law jury trials that were practiced during the
early years of the Republic. Indeed, it was not until the de-
cision of this Court in the last decade of the last Century that
the rule, for the federal] courts, was clearly laid down (over
the vigorous dissent of Justices Gray and Shiras) that the
judge was the absolute authority at trial of the law and that
the jury’s only proper function was to judge the facts (Sparf
and Hansen v. United States, 156 U.S. 51 (1895)).
This petition is not one for the relitigation of the issues
of Sparf and Hansen. It is mentioned only to demonstrate
that there is respectable historical authority for the views
which Mr. Ogle advocated, and that the advocacy of such
views is not per se proof of a corrupt motive, nor is it a proper
basis for denying fundamental due process rights. Among
the most important of these is the proposition that a convic-
tion cannot stand when evidence is missing as to an essential
50
element of the purported violation (Vachon v. New Hamp-
shire, 414 U.S. 478, 480 (1974)).
Put another way, this Court has expressed the rule that:
“Whatever the degrees of guilt, those charged with a
federal crime are entitled to be tried by the standards
of guilt which Congress has prescribed.”
(Screws v. United States, 325 U.S. 91, 107 (1945))
As shown above that fundamental principle has been
violated by the effective elimination of the requirement that
the act be done “corruptly” in order to violate 1503. The
elimination of this requirement is, at least in recent years, a
Tenth Circuit deviation from the role enunciated by many
other circuits as to this offense. Its application allows a
conviction for a felony upon evidence which, if believed by
the jury, would justify no more than a conviction for a mis-
demeanor.
The impression must not be allowed that such a result is
permissible for a purported attack on the judiciary, when it
would obviously be struck down in other circumstances.
51
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Tenth Circuit.
MAY 4, 1980
Respectfully submitted,
IRVIN M. KENT Reg. No. 10
315 Symes Building
820 - 16th Street
Denver, CO 80202
Telephone: (303) 623-1355
and
ARTHUR R. KARSTAEDT, III
180 Cook Streeet
Suite 413
Denver, CO 80206
Telephone: (303) 399-4520
ATTORNEYS FOR PETITIONER
52
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of May, 1980, three
copies of the Petition for a Writ of Certiorari were mailed,
postage prepaid, to: The Honorable Wade McCrea, Jr., Sol-
icitor General of the United States, Department of Justice,
Washington, D.C. 20530. I further certify that all parties
required to be served, have been served.
IRVIN M. KENT
315 Symes Building
820 - 16th Street
Denver, CO 80202
Attorney for Petitioner
53
APPENDIX A
UNITED STATES of America,
Plaintiff-Appellee,
v.
Tim Z. OGLE, Defendant-Appellant.
No. 78—1625.
United States Court of Appeals,
Tenth Circuit.
Nov. 1, 1979.
Rehearing Denied March 5, 1980.
Defendant was convicted before the United States Dis-
trict Court for the District of Colorado, Alfred A. Arraj,
Senior District Judge, of knowingly and corruptly endeavor-
ing to influence, impede and obstruct the due administration
of justice in a case pending in United States District Court,
and he appealed. The Court of Appeals, William E. Doyle,
Circuit Judge, held that: (1) instruction on word corruptly
was not deficient for failure to include reference to an evil
motive; (2) conviction was supported by evidence, including
evidence that defendant attempted to get into one juror’s
hands a hand book teaching that tax crimes are not true
crimes and that it was unnecessary for jurors to follow the
law of the land where they conceive that the law is contrary
to their concepts of morals; (3) mere good-faith belief in
unconstitutionality of income tax laws was not a good de-
fense.
Affirmed.
54
1. Obstructing Justice § 6
For purpose of statute making it an offense to knowingly
and corruptly endeavor to influence, impede and obstruct
the administration of justice, an endeavor to influence a
juror in performance of his or her duty is per se unlawful and
is tantamount to doing the act corruptly. 18 U.S.CA. § 1503.
2. Obstructing Justice § 6
Force or threats need not be used before there is a cor-
rupt effort to influence a juror for purpose of offense of know-
ingly and corruptly endeavoring to influence, impede and
obstruct the due administration of justice. 18 U.S.C.A. §
1503.
3. Obstructing Justice § 6
Term “corruptly,” as used in statute making it an of-
fense to corruptly endeavor to influence, impede or obstruct
due administration of justice, does not superimpose a special
and additional element of the offense such as a desire to
undermine the moral character of a juror; rather, it is di-
rected to the effort to bring about a particular result such as
affecting the verdict of a jury or the testimony of a witness
and such is per se an obstruction of justice. 18 U.S.C.A. §
1503.
4. Obstructing Justice § 18
Failure to include reference to evil motive in defining
word “corruptly,” in prosecution for attempting to corruptly
influence a juror, was not fundamental error since if jury
believed the evidence indicating that defendant attempted
to deliver to a juror a handbook espousing his belief that a
juror is empowered to acquit where he feels that the law is
unfair, his motives were inherently evil and it was not
55
necessary to so specifically inform the jury, and all that the
jury had to find was that there was a corrupt endeavor which
was an effort to wrongfully influence the juror. 18 U.S.C.A. §
1503.
5. Obstructing Justice § 16
Evidence on issue of whether defendant, charged with
corruptly endeavoring to influence a juror, acted corruptly
by attempting to distribute to juror a handbook emphasizing
defendant’s views that a juror is empowered to acquit where
he feels that the law is unfair or infringes on fundamental
rights was sufficient to support conviction. 18 U.S.C.A. §
1503.
6. Obstructing Justice § 15
Refusal to allow defendant, charged with corruptly en-
deavoring to influence a juror by attempting to distribute a
handbook representing defendant’s views on concept of jury
nullification, to repeat that he did not intend to influence the
juror was not error since defendant was not precluded from
presenting his theory and questions to which objections were
sustained were merely repetitive. 18 U.S.C.A. § 1503.
7. Obstructing Justice § 15
It was not error to curtail attempts of defendant,
charged with corruptly endeavoring to influence a juror by
attempting to distribute to her a handbook esposing defen-
dant’s view of jury nullification, i.e., that if a juror’s « »-
science dictated against enforcement of a particular law he
could vote for acquittal, to explain the research and study
which were the basis of his beliefs since defendant’s views
were entirely contrary ic law and were merely a variation of
the unacceptable concept that individual good faith is a
complete defense. 18 U.S.C.A. § 1503.
56
8. Criminal Law § 829(3) _
Requested instruction that word “corruptly,” as used in
offense of corruptly endeavoring to influence a juror, meant
an endeavor, done with a wicked or evil purpose, to influence
a juror in performance of his or her duties or to influence,
obstruct or impede the due administration of justice unless
specific intent to impede or influence was essential element
of the offense was properly refused, in view of instruction
given. 18 U.S.C.A. § 1503.
9. Obstructing Justice § 6
Evil purpose in the sense of a fiendish motive is not a
necessary element of offense of knowingly and corruptly
endeavoring to influence, impede and obstruct the due ad-
ministration of justice, such as by attempting to influence a
juror. 18 U.S.C.A. § 1503.
10. Criminal Law § 1038.1(4)
Instruction to effect that what a defendant does or fails
to do may indicate intent or lack of intent to commit the
offense charged and that it is reasonable to infer that a
person ordinarily intends the natural and probable conse-
quences of acts knowingly done or knowingly omitted, with
the court informing the jury that they may draw the infer-
ence that the accused intended the natural results of acts he
knowingly did or failed to do, was not plain error.
11. Criminal Law § 759(1)
An instruction allowing the jury to draw a permissive
inference from a basic fact is not objectionable since it in-
volves a process which is nothing more than the deductive
reasoning that is employed in the consideration of all cir-
cumstantial evidence; allowing the jury to pursue a deduc-
57
tive process on a permissive basis is far different from advis-
ing the jury that the law presumes that a person intends the
ordinary consequences of his voluntary acts, as the latter
form reverses the burden of proof, while the former does not.
12. Criminal Law § 805(3)
There was no error, in prosecution for corruptly en-
deavoring to influence a juror by attempting to distribute to
her a handbook espousing defendant’s view of “jury nullifi-
cation,” in omitting word “corruptly” in instructing on de-
fendant’s First Amendment rights since the term, in its
proper context, was used in the instruction and the court
gave a sufficient definition thereof. 18 U.S.C.A. § 1503;
U.S.C.A. Const. Amend. 1.
13. Criminal Law § 706(3)
Prosecutor’s inquiry of principal witness whether she
changed her W-4 form while she took defendant’s tax class,
whereon witness asserted Fifth Amendment privilege, did
not require mistrial on ground of prosecutorial misconduct
absent showing that prosecutor realized that the witness
would assert the privilege in response to the question.
U.S.C.A. Const. Amend. 5.
14. Criminal Law § 31
Conscientious belief that a law is unconstitutional or
contrary to the common law is no defense to a criminal
charge; hence, a defendant’s belief that the Sixteenth
Amendment validating the federal income tax was uncon-
stitutional was no defense to charge of attempting to cor-
ruptly influence a juror sitting in a tax case by attempting to
distribute to her a book teaching that tax crimes are not true
crimes and espousing defendant’s view of “jury nullifica-
tion,” i.e., that a juror may acquit when he feels that the law
58
is unfair and infringes on fundamental rights. 18 U.S.C.A. §
1503; U.S.C.A. Const. Amend. 16.
KaeKKKK KKK K
Richard N. Stuckey, Asst. U.S. Atty., Denver, Colo.
(Joseph F. Dolan, U.S. Atty., and James E. Nesland, Asst.
U.S. Atty., Denver, Colo., of counsel, on the brief), for plain-
tiff-appellee.
Irvin M. Kent, Denver, Colo. (Arthur R. Karstaedt, III,
Denver, Colo., on the brief), for defendant-appellant.
Before HOLLOWAY and DOYLE, Circuit Judges, and
BOHANON,”* Senior District Judge.
WILLIAM E. DOYLE, Circuit Judge.
The defendant-appellant seeks reversal of ajudgment of
conviction which was entered on June 15, 1978, in the
United States District Court for the District of Colorado. The
indictment described a violation of Title 18 U.S.C. § 1503.!
Thus, the defendant was accused of knowingly and corruptly
endeavoring to influence, impede and obstruct the due
administration of justice in a case then pending in the
“Of the Northern, Eastern and Western Districts of Ok-
lahoma, sitting by designation.
1The indictment alleged that:
On or about February 21, 1978, in the state and Dis-
trict of Colorado, defendant, TIM Z. OGLE, aided and abet-
ted by Jacquelyn C. Lagoni, not named herein as a defen-
dant, willfully, knowingly and corruptly endeavored to
influence, obstruct and impede the due administration of
justice in the case of United States of America v. Norman A.
Gigax, Criminal Case No. 78-CR-3, which was then pend-
ing before the United States District Court for the District of
Colorado, in that TIM Z. OGLE did endeavor to communi-
cate and caused to be communicated with Colleen Hansen, a
petit juror in said case, and did endeavor to deliver to said
petit juror a pamphlet entitled “Handbook for Jurists,” all in
violation of Title 18, United States Code, Section 1503.
59
United States District Court. A further specific allegation
identified Colleen Hansen as a juror in a case then being
tried and stated that he endeavored to deliver to her a pam-
phlet called “A Handbook for Jurors.”
There are two fundamental questions which go to the
crux of the case. First, whether, in fact, the defendant, Ogle,
had endeavored to communicate with the juror, Colleen
Hansen. This question, being one of fact, was resolved by the
jury, and the only appellate issue is whether the evidence is
sufficient to justify its submission to the jury. The second
question is whether he endeavored to deliver to Mrs. Hansen
the pamphlet entitled “A Handbook for Jurors.” The gov-
ernment’s theory is that he had endeavored to do this
through an agent, Jacquelyn Lagoni. The question of law
which threads through the entire case and which is raised in
various ways by the appellant is whether a belief by the
defendant, subjective in nature, as to the validity of a law,
constitutes a justification for his taking action which would
effectively nullify it.
At the times in question, Ogle was a pilot for Continen-
tal Airlines. Two of the witnesses in this case, Colleen Han-
sen, the juror, and Jacquelyn Lagoni, the important wit-
ness, were stewardesses for Continental Airlines and were
well acquainted with Ogle. Jacquelyn Lagoni had made
flights on planes which Ogle had been piloting. Also, she
and her husband, William Lagoni, had attended a several
weeks’ course which was conducted by Ogle. This course
was variously described as being one in good citizenship
which centered around the Constitution, the Bill of Rights
and our system of government. The textbook used in this
course had been written by the defendant Ogle and was
entitled “Good Citizenship with Constitutional Tax Return
and Procedures,” Exhibit 2. There was also a pamphlet
which was a small version of the mentioned book. It was
entitled “A Handbook for Jurors,” Exhibit 1.
60
The tax return book advised that the jury was more
powerful than all three branches of the government com-
bined, and that after jurors are armed with the Constitu-
tion and are aware of their power, they have the final
authority to acquit one of their fellow citizens accused of a
crime that the jurors do not consider to be a crime based on
their consideration or determination of the justice of the
law. This is described as the jury’s right of nullification.
The book goes on to say that this is a protection against
unjust laws and that the verdict of the jury cannot be chal-
lenged or retried or overturned by any higher court. It
further says that a juror has more power than the President
of the United States, the United States Congress, and the
United States Supreme Court.
Much of the book’s space is addressed to tax matters. It
tells the reader how to make out the income tax return with
a view toward convincing a potential jury of their good faith
in obeying the law. Use of attachments such as Honorable
Discharge from the service, evidence of civic service, letters
to Congress and clippings from newspapers is advocated. It
sets forth an income tax return which is filled out in blank
with asterisks. It seeks to establish that the Sixteenth
Amendment validating the federal income tax is subject to
being itself declared unconstitutional. Included is an af-
fidavit of insufficient income which reads: I swear, under
penalty of perjury, that the income I received in 19 ____ was
less than $750 statutory dollars, as I understand that term.
Signed ” (Emphasis supplied.)
The pamphlet, “A Handbook for Jurors,” teaches that
tax crimes are not true crimes and that it is unnecessary for
jurors to follow the law of the land where they conceive of
the law being contrary to their concepts of morals. The book
also teaches that a juror is empowered to determine if a law
under which a person is charged is contrary to the Constitu-
tion or common law and acquittal is appropriate. The em-
61
phasis in the handbook is that the juror is empowered to
acquit where he feels that the law is unfair or that it in-
fringes on fundamental rights.
The trouble started when Colleen Hansen, a stewar-
dess for Continental Airlines, was empaneled as a juror ina
case against one Norman Gigax, who had been involved in
the tax protest movement and was on trial for filing a false
W-4 employee withholding form. Ogle, as we have prev-
iously mentioned, also had an intense interest in this tax
protest movement in that he conducted the school and
wrote the literature which was used in the classes. He was
present at the trial of Gigax and recognized Mrs. Hansen,
who was a stewardess for Continental Airlines. Also, on the
first day that he was at the trial, he had some brief com-
munication with Mrs. Hansen in the elevator. That same
evening, Ogle contacted Jacquelyn Lagoni by telephone.
She was not only a stewardess for Continental Airlines, she
was also a student of Ogle’s in the tax course and was a
personal acquaintance of Mrs. Hansen’s. This telephone
communication was made by Ogle from the auditorium
where he had been a spectator at some tennis matches
which were being played there.
The conversation between Ogle and Mrs. Lagoni, ac-
cording to the latter, pertained to whether or not Mrs. Han-
sen had a copy of the booklet entitled “A Handbook for
Jurors,” which discussed and advocated the concept of jury
nullification. Shortly after this conversation, Lagoni called
Mrs. Hansen and revealed that she knew that Mrs. Hansen
was a juror on the Gigax case, and that Mrs. Lagoni told
Mrs. Hansen, as a result of inquiry by the latter, that Ogle
had been the source of her information. Mention was made
of the pamphlet “A Handbook for Jurors,” and Mrs. Hansen
was asked if she would like to have a copy. Moreover, Mrs.
Lagoni offered either to have Ogle deliver a copy or to de-
liver a copy herself. Mrs. Hansen refused the offer and re-
ported the incident to the judge.
62
Immunity was offered to Mr. and Mrs. Lagoni in return
for their cooperation at trial. They accepted this, but in-
formed the judge that they intended to invoke their Fifth
Amendment privilege against self-incrimination if they
were asked any questions about their personal return. It
was on this basis that they were called as witnesses.
The theory of the prosecution’s case was that Ogle’s
telephone call to Mrs. Lagoni was part of an attempt to
communicate to her his desire that the pamphlet mentioned
above, “A Handbook for Jurors,” should be delivered to Mrs.
Hansen. The government also contended that this was an
effort by Ogle to manipulate Mrs. Hansen’s actions as a
juror.
Ogle enumerates a number of errors as a basis for re-
versing the judgment of the trial court:
1. He contends that the trial court erred in refusing to
allow him to testify that he had no intention of influenciag
a juror, which refusal of the trial court would leave the jury
with the impression that intent was unimportant to a deci-
sion in the case. An objection to questions asked on redirect
examination concerning Ogle’s intent to influence the jury
was sustained. The government’s response is that Ogle did
testify regarding his lack of intent on direct examination
and there was no need for him to repeat it on redirect. The
argument is that the objection on redirect was valid be-
cause the evidence was repetitive. Ogle’s position is that
the issue of intent was explored on cross-examination and
that he had a right to again assert on redirect that he had
no such intent se as to prevent confusion.
2. Ogle criticizes an instruction of the court defining
“corruption” as used in the statute. The court told the jury
that “corruptly” means any endeavor to influence a juror in
the performance of his or her duties or to influence, obstruct
63
or impede the due administration of justice. He argues that
reference to evil or wicked purpose should have been in-
cluded in the definition and that its absence effectively
eliminated the corrupt element of the crime. He maintains
that the word “corrupt” means something that is especially
diabolic, above and outside the letter and spirit of the law.
The government’s argument in response to this is that
the instructions considered as a whole clearly bring home to
the jury the fact that specific intent requiring a bad motive
is an element of the crime. A Tenth Circuit case is cited to
prove the propriety of the definition of “corrupt” which was
given by the judge. This was Broadbent v. United States,
149 F.2d 580 (10th Cir. 1945).
3. The next point is that the trial court committed
error in refusing to allow Ogle to testify as to the materials
he studied and relied upon in arriving at his convictions
which were set forth in “A Handbook for Jurors.” His posi-
tion was that such testimony would have aided him in
showing the jury that he did not have a corrupt motive; that
it was in good faith, undoubtedly.
The government responds that the testimony is irrele-
vant and that Ogle’s defense was that the phone call to
Lagoni was not intended to get her to make any further
communication to the juror, not that such communication
was made in good faith and therefore not corrupt. They also
argue that even if such a defense had been made, it would
have been to no avail because the genuineness of Ogle’s
belief and his ideas in the book do not constitute a legal
defense to the charge.
4. Ogle maintains that it was error for an instruction
concerning the effect of the First Amendment to omit the
word “corruptly” from the description of the activity forbid-
den. The instruction was not objected to at the trial. It is
64
also claimed that there was error in the instruction given
concerning the proof of specific intent. Again, no objection
was made at trial.
5. Ogle requests a new trial based upon the alleged
misconduct of the prosecutor in asking Mrs. Lagoni
whether she changed her W-4 form. She claimed the Fifth
Amendment privilege. The claim is that this was a deliber-
ate effort to discredit Lagoni in an impermissible way, and
that the government knew very well that she was going to
invoke the Fifth Amendment privilege if some mention was
made in her questioning as to her own personal return.
The government’s answer is that the Fifth Amendment
was not properly invoked in this instance and therefore the
prosecutor was not at fault. The goverment calls attention
to the fact that a mistrial was not requested when the inci-
dent occurred at trial.
6. Ogle further maintains that he is entitled to a re-
versal based on lack of effective assistance of counsel. He
points to failures to make objections and form an adequate
record for appeal by the trial attorney. An issue was raised
as to what standard is to be applied to determine when
counsel is incompetent. Note: There is no evidence what-
ever that there was incompetent counsel. The representa-
tion was found by Judge Arraj to have been highly
adequate, and from our view of the record we agree with
this appraisal.
7. Ogle raises an issue as to whether the trial court
committed error in refusing to conduct an evidentiary hear-
ing into alleged jury misconduct. The claim is supported by
affidavits of persons who had been in the courtroom during
trial.
65
A government agent seated at the prosecution table is
alleged to have been contacted by the juror.?
I.
THE INSTRUCTION DEFINING THE
WORD “CORRUPTLY”
We first consider the argument that the trial court mis-
interpreted and misapplied 18 U.S.C. § 1503 and in doing so
effectively eliminated the word “corruptly” from the statute.
The trial court concluded and instructed the jury that
“corruptly” was used in the present context as being an
“ * * * endeavor to influence a juror in the performance of his
or her duties, or to influence, obstruct or impede the due
administration of justice.” It is contended that this was a
fundamental error and that it should have included refer-
ence to an evil motive, something bad, wicked, or having an
evil purpose.
[1] Volume I of Bouvier’s Law Dictionary defines the
term “corruption” as follows: “An act done with an intent to
give some advantage inconsistent with official duty and
rights of others.” The author continues: “It includes bribery
but is more comprehensive; because an act may be corruptly
done though the advantage to be derived from it be not
offered by another. Something against law; as a contract by
which the borrower agreed to pay the lender his interest. It is
said, in such case, that it was corruptly agreed, etc.” This,
2We find that the judge did not err in his handling of this
matter. Based upon affidavits, the judge determined that there
was not actually any contact. An effort was made to make a
mountain out of a molehill. We find nothing to even discuss.
66
then, is the common definition. It really means unlawful,
and this is the way that Judge Arraj interpreted it and put it
in terms of the facts of this case. In other words, he said that
an endeavor to influence a juror in the performance of his or
her duty or to influence, obstruct or impede the due adminis-
tration of justice is per se unlawful and is tantamount to
doing the act corruptly. We approve fully the trial court’s
interpretation.
The basic fact issue in this case is whether the defendant
obtained the services of Mrs. Lagoni as an agent to contact
the juror, Mrs. Hansen, and endeavored to have a copy of the
pamphlet “A Handbook for Jurors” delivered to her. The
government maintains that this was actually done and that
this and other corroborative acts of the defendant show that
he intended to influence the conduct of the juror, Mrs. Han-
sen. Defendant, on the other hand, had a theory of his own.
He claims he was merely calling Mrs. Lagoni for the purpose
of discussing other matters and that he did not really seek to
contact Mrs. Hansen. This, of course, is a conflict in the
evidence which has to be resolved by the jury.
[2] But the defendant has still another theory, a legal
one, which is found in his contention that in order to havea
condition in which there is a corrupt effort to influence a jury
that force or threats have to be used; that a mere attempt
would not be sufficient. We disagree. In the present context
it is a question whether he actually endeavored to influence
or impede justice.
On the meaning of the term “corruptly,” this circuit has
spoken in Broadbent v. United States, supra. This 1945 deci-
sion of this court was handed down in relationship to a
charge of corruptly endeavoring to influence a witness. The
question was whether the evidence was sufficient. The de-
fendant had made promises to the witness of financial se-
curity and had made threats of character defamation. The
67
court said that the evidence in support of this charge, en-
deavoring to influence a witness or to impede and obstruct
justice, falls within the connotation of the word “corruptly.”
The court said that the statute was designed to protect wit-
nesses in federal courts and to prevent a miscarriage of
justice by corrupt methods. The court acknowledged that
“corruptly” was subject to other meanings, but that in the
present context, one similar to that which we have at bar,
included, according to the opinion, “any endeavor to influ-
ence a witness or to impede and obstruct justice.”
[3] Thus, the view that this court has taken and which
most of the other courts have taken is that the term “cor-
ruptly” does not superimpose a special and additional ele-
ment on the offense such as a desire to undermine the moral
character of a juror. Rather, it is directed to the effort to
bring about a particular result such as affecting the verdict
of ajury or the testimony ofa witness as in Broadbent. This is
per se an obstruction of justice and was so recognized in
Broadbent and by the trial court in this case. The trial court’s
legal view of this was correct.
[4] Counsel for appellant argues that both Bosselman v.
United States, 239 F. 82 (2d Cir. 1917), and United States v.
Polakoff, 121 F.2d 333 (2d Cir. 1941), involved inherently
evil motives. No doubt. But if the jury believed the evidence
in this case, the motives were inherently evil and it was not
necessary to tell the jury that they were evil. All that they
had to find was that there was a corrupt endeavor which was
an effort to wrongly influence the injury.
[5] The defendant also argues that the evidence is leg-
ally inadequate to establish that the defendant acted cor-
ruptly. However, if the jury believed the testimony of Mrs.
Lagoni and that of Mrs. Hansen with respect to their conver-
sations with the defendant and with one another, the evi-
dence cannot be said to be insufficient. The defendant went
68
into court and was given permission by the judge to take
notes, and according to Mrs. Hansen he caught her eye. This,
in addition to the testimony of Mrs. Lagoni, which has been
detailed above, supports the conclusion that he sought to
influence her decision in the case, particularly if the jury
believed that he was seeking to get a copy of the pamphlet “A
Handbook for Jurors” into her hands. The inference could
flow from all of this that there existed an intent on the part of
Ogle to willfully and corruptly obstruct and impede the due
administration of justice. The jury was, of course, at liberty
to accept the testimony given by Mrs. Lagoni and Mrs. Han-
sen and to reject that of the defendant that he was merely
calling in order to rearrange 2 dinner engagement.
II.
REFUSAL OF THE COURT TO ALLOW THE
DEFENDANT TO REPEAT THAT HE DID NOT INTEND
TO INFLUENCE A JUROR
On the question of his intent, the defendant was asked
whether he had ever advocated handing this pamphlet out to
individuals on jury duty. He said that he had. He was then
asked whether he believed the purpose of the pamphlet was
to influence a jury in any way as to how they should vote ina
particular case, to which he answered “No, I do not believe
that that is the purpose of the book at all.” He was asked
whether he had advocated that the pamphlet be handed out
to jurors, and he said that he did not recommend it at the
present time because of the confusion, and added that “I have
withdrawn my recommendation that it be handed to jurors.”
69
The defendant stated his understanding of the pamphlet as
shown below.3
He then proceeded to discuss his idea of jury nullifica-
tion as explained in the pamphlet, his theory being that a
juror is not required to follow the law if he disagrees with it,
and that jurors are free to resort to some higher sense of
morality. He was also asked whether in talking to Mrs.
Lagoni he did not attempt to contact Colleen Hansen, who
was then a juror in the Gigax case, for the purpose of in-
fluencing her decision in that trial. He also said that he did
not call Jacquelyn Lagoni for the purpose of having her see if
she could influence the juror, Colleen Hansen. He conceded
on redirect examination that he had asked Mrs. Lagoni
whether she knew Colleen Hansen.
The defendant was asked by his counsel (on redirect
examination) whether on the night of February 21, he took
any action designed to influence Colleen Hansen with re-
spect to the Gigax case. Objection was made by the United
States Attorney, and the court sustained the objection.
Counsel for the defendant then asked whether when he
called Jacquelyn Lagoni on the night of February 21, 1978,
he did so with the intent of influencing Colleen Hansen in
the exercise of her duty. This was objected to by the United
States Attorney, and the court sustained it. He then testified
that he has called Lagoni for two reasons, first, to discuss the
dinner plans, and, second, to satisfy his curiosity whether or
3““Well, my understanding of the or is that it encour-
ages people to use their own sense of conscience and their own
sense of justice in arriving at verdicts, whether it is a verdict to
acquit or a verdict to convict, but, in either case, a jury, I think the
primary function of a jury, the way that I understand this book, is
to use their own sense of morality, their own sense of conscience in
arriving at their decisions, so that we can then use the people
through their function in the jury box as a tempering influence on
our overall system of justice in this country.”
70
not Colleen had seen his little handbook. Defendant was
allowed to discuss at some length one of his other books,
“Good Citizenship with Constitutiona! Tax Return and Pro-
cedures,” government’s Exhibit 2, which he explained was
an alternative to filing a regular tax return.
[6] We have detailed the testimony of the defendant in
an effort to ascertain whether he suffered prejudice as a
result of the trial court’s ruling which sustained objections
as to his testifying regarding his intent. Our conclusion is
that he was allowed to testify extensively as to what his
motive and his intent were, and he was allowed to say that he
did not seek to influence the juror, Mrs. Hansen. In view of
the broad presentation that was made by him and on his
behalf, we fail to see prejudice as a result of the sustaining of
objections to questions which called for answers which
summarized the evidence and reiterated his lack of intent to
influence the juror. Since this was his entire theme, the court
acted within its discretion in sustaining the objections to the
two repetitive questions in controversy.
Ill.
THE CONTENTION THAT THE COURT ERRED IN
SUSTAINING OBJECTIONS OF THE U.S. ATTORNEY
TO QUESTIONS WHICH WOULD HAVE ALLOWED THE
DEFENDANT TO EXPLAIN THE RESEARCH AND
STUDY WHICH FORMED THE BASIS FOR HIS BELIEFS
[7] Ogle was allowed to explain his beliefs to some ex-
tent, but the trial court cut him off after a certain point. The
whole purpose of the small pamphlet, ‘A Handbook for
Jurors,” was to persuade the juror that if his conscience
dictated against enforcement of the particular law, that the
Constitution and nature of the jury system allowed him to
71
vote for acquittal regardless of what the law said. As we
mentioned above, he said that he had changed his policy and
no longer recommended distribution to jurors. He explained
his understanding of the pamphlet as being to encourage
people to use their own sense of conscience and their own
sense of justice in arriving at verdicts, whether it is a verdict
to acquit or a verdict to convict, but in either case “the
primary function of a jury, the way that I understand this
book, is to use their own sense of morality, their own sense of
conscience in arriving at their decisions, so that we can then
use the people through their function in the jury box as a
tempering influence on our overall system of justice in this
country.”
It is not surprising that the court stopped this line of
questioning because it is entirely contrary to law. Any sys-
tem must be based upon upholding the law. To empower each
individual to decide whether the particular law is worthy or
runs against the individual’s private beliefs would necessar-
ily produce a lawless society and chaos. Quite apart from the
fact of invalidity of such a system, it has no practical social
value. Such a government would fail in a very short time, for
carried to its logical conclusion it is anarchy and revolution.
The revolutionary government would not abolish taxes.
This concept is merely a variation of the idea that indi-
vidual good faith is a complete defense. This is not accepted
either, and neither defendant nor his counsel maintain that
subjective good faith is a defense to the commission of a
crime. Nevertheless, they use this individual conscience
analysis in an attempt to disguise the good faith.
In summary, the efforts of the defendant to extend his
testimony after having made his explanation were properly
curtailed. Judge Arraj had been liberal in allowing him to
restate theories to the point that no one present could have
failed to understand his premise. The judge did on one occa-
72
sion mention that he did not want him to present a Fourth of
July speech. This characterization was not inaccurate in
that the speech offered was not based upon our law or upon
our system of government. In other words, our system is one
of laws and not of men.
IV.
THE REJECTION BY THE TRIAL COURT OF
TENDERED INSTRUCTION NUMBER 4, WHICH
CONTAINED THE DEFENDANT'S DEFINITION OF THE
TERM “CORRUPTLY”
The tendered instruction mentioned is as follows:
The word “corruptly” means an endeavor, done witha
wicked or evil purpose, to influence a juror in the
performance of his or her duties or to influence,
obstruct or impede the due administration of justice.
Specific intent to impede or influence a petit juror or
to impede or obstruct the administration of justice is
an essential element of the offense here charged.
The argument of appellant that the court erred in not
giving his tendered instruction is that the above-quoted
instruction was his theory of the case. While he concedes
that the judge did not have to give the exact language, he
claims the judge was required to embody his theory in an
instruction. The instruction given was not substantially dif-
ferent from that which was requested. The court defined the
key words in the charge as follows: “Now, the word “en-
deavor” means any effort to attempt to accomplish the evil
purpose that the statute was designed to protect, and the
word “corruptly” means any endeavor to influence a juror in
the performance of his or her duties or to influence, obstruct
or impede the due administration of justice, and the term
“due administration of justice” contemplates and imports a
73
free and fair opportunity for every litigant in a pending case
to have a just and honest trial without outside corrupting
influences.”
[8,9] We hold that the court’s instruction sufficiently
advised the jury on the subject. As we pointed out above, the
term “corruptly” in this present context, at least, means
acting illegally or unlawfully. The defendant is seeking to
add to that by requiring, in addition, a wicked or evil pur-
pose. The court’s instruction used the term “evil,” but limits
it to the endeavor to accomplish that which the statute was
designed to protect rather than evil purpose in the sense of a
fiendish motive. Such a motive is not a necessary element of
the crime. The instruction would, had it been given, have
been potentially confusing to the jury.
The trial court’s instruction was that which was adopted
by Devitt & Blackmar, Federal Jury Practice and Instruc-
tions (3rd ed. 1977), § 32.05. Contrary to counsel’s conten-
tion, United States v. Partin, 552 F.2d 621 (5th Cir. 1977),
does not modify the original Devitt & Blackmar version. The
case was merely cited in the pocket part of Devitt &
Blackmar for information. The defendant in Partin objected
to the form of the instruction. The court held that it was not
plain error. The Court of Appeals for the Fifth Circuit did not
endorse the instruction. Contrary to that which the appel-
lant maintains, the refusal of Judge Arraj to include the
words “evil, bad motive and evil or wicked purpose” was not,
in our opinion necessary.
V.
THE INSTRUCTION ON INFERRED INTENT
It is next urged that the trial court committed error by
giving an instruction to the effect that what a defendant does
or fails to do may indicate intent or lack of intent to commit
74
the offense charge, and it is reasonable to infer that a person
ordinarily intends the natural and probable consequences of
acts knowingly done or knowingly. omitted. The instruction
informs the jury that they may draw the inference that the
accused intended the natural results of acts he knowingly
did or failed to do.
Counsel has conceded that there was no objection made
to the giving of this instruction. See United States v.
Tijerina, 407 F.2d 349, 355 (10th Cir. 1969), and United
States v. Woodring, 464 F.2d 1248, 1251 (10th Cir. 1972).
Under these cases, the plain error test was held to have been
applicable. Counsel says that we should establish a rule that
the giving of the instruction, even though attended by a
proper instruction on burden of proof, is error regardless of
whether there was objection. He relies on the Fifth Circuit
case of Mann v. United States, 329 F.2d 404 (5th Cir. 1963).
The fact that there was no objection made, of course,
weakens the position of the defendant-appellant. There is
another factor which should be mentioned. The Supreme
Court at the last term in Sandstrom v. Montana,
_— US. —— ,99S. Ct. 2450, 61 L.Ed.2d 39, (1979), consid-
ered an instruction which was somewhat similar but, at the
same time, very different. There the trial court in a homicide
case instructed the jury that “the law presumes that a person
intends the ordinary consequences of his voluntary acts.”
The Supreme Court pointed out that this was given over the
petitioner’s objection and that such instruction had the effect
of shifting the burden of proof on the issue of purpose or
knowledge. The defendant was found guilty, and the convic-
tion was affirmed by the Supreme Court of Montana. The
Supreme Court of Montana recognized the evil of shifting
the burden of proof by means of a presumption. However, the
Montana court ruled that the instruction did not violate due
process standards. The Supreme Court, however, con-
demned the instruction, citing its opinions in United States
75
Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854
(1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44
L.Ed.2d 508 (1975), and Morissette v. United States, 342 U.S.
246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). It held that since the
jury may have interpreted the instruction as mandatory, the
giving of it was a violation of the petitioner’s constitutional
rights. The basic premise for the decision was that the giving
of an instruction requiring the jury to presume from a proven
fact, the existence of another fact as to an element of the
offense overrides presumption of innocence.
{10, 11] In our view, Sandstrom v. Montana, supra, is
clearly distinguishable from the case at bar so that we need
not base our decision on the proposition of alleged plain
error. The instruction in our case simply allowed the jury to
draw a permissive inference from a basic fact, a process
which is nothing more than the deductive reasoning which is
employed in the consideration of all circumstantial evi-
dence. To allow the jury to pursue a deductive process on a
permissive basis is far different from advising the jury that
the law presumes that a person intends the ordinary conse-
quences of his voluntary acts. The latter form reverses the
burden of proof, the former does not.
VI.
OMMISSION OF “CORRUPTLY” FROM
FIRST AMENDMENT INSTRUCTION
[12] We next consider the further contention of the de-
fendant that it was error to omit the word “corruptly” in
instructing the jury on the defendant’s First Amendment
rights.
In connection with the First Amendment, the court fi-
nally instructed the jury that whether there was First
Amendment protection for the distribution of “A Handbook
76
for Jurors” pamphlet depended on whether the contents
would influence the jury. It is argued that the term “cor-
ruptly” should have been put in. However, the term “cor-
ruptly” in its proper context was used jn the instruction and
the court gave its definition of it which we have held to be
sufficient.
We find no error in this instruction.
Vil.
CLAIM OF FIFTH AMENDMENT PRIVILEGE
[13] The next contention is that the district attorney
improperly asked Mrs. Lagoni whether they discussed in the
defendant’s tax class the W-4 forms. She said “Yes.” The
district attorney continued “And during the period of time
that you took this class, did you change your W-4 form?” She
said “I would like to refuse to answer that on the grounds of
my Fifth Amendment rights.” Counsel for the appellant
maintains that this was a deliberate effort to bring about a
Fifth Amendment claim on the part of the witness. The trial
court ruled to the contrary. The U.S. Attorney said “I don’t
believe she has a Fifth Amendment right with respect to that
question. It never entered my head she would have a Fifth
Amendment right whether or not she changed or withdrew a
W-4.” The court said “That’s right, she can change her form.
Even my form isn’t accurate. I don’t claim being 65 years old
and I give them a little extra each month. He can’t go any
further.” The court added further, after the defense counsel
objected, “Well, he is not going into it any more. I would just
as soon that he hadn’t gone into it, but I don’t think it is that
damaging. Don’t go into it any further.”
There is no reason to believe that the U.S. Attorney
realized that she would use this claim in response to the
question asked. That being the case, we disagree with the
77
present argument that this was asked for the purpose of
having her claim privilege in open court before the jury. The
trial judge believed that counsel did not expect the answer,
and we do not agree that the ruling of the trial court consti-
tuted error.
KKEKKKKKKKK
[14] Finally, there is a considerable body of law which
holds that mistaken beliefin the unconstitutionality ofa law
is not a good defense in a criminal action. A brief annotation
which is reported in 61 A.L.R. 1148, 1154 deals with the
question whether a mistake of law is a defense in a criminal
case. It holds that it is not. This annotation is a note to the
Tennessee case of Hunter v. State, 158 Tenn. 63, 12 S.W.2d
361. In Hunter, a public officer believed that a statute which
deprived him of fees of his office to which he had been for-
merly entitled was unconstitutional. He set up this belief as
a defense to a charge of embezzlement growing out of his
conversion of the fees in acordance with the prior custom.
The Tennessee court refused to accept his contention. The
court recognized that mistake of fact is capable of constitut-
ing a defense, whereas a mistaken belief as to the law can
never justify the commission of a crime. The court said that
the authorities uniformly recognize and give effect to this
distinction, sometimes excusing the accused in a fact situa-
tion, but refusing always to do so in the law area. The court
said the claim of belief in the unconstitutionality of the law
comes within the latter class. It is a plea of ignorance of the
law which is never admissible to excuse crime.
The note cited declares:
It is generally held that mistaken belief in, or
reliance upon, the unconstitutionality ofa statute, is
no defense to a criminal prosecution.
61 A.L.R. 1154.
78
A number of other cases are annotated. One which is
very much in point here is Reynolds v. United States, 98 U.S.
145, 25 L.Ed. 244 (1878). In Reynolds, it was held that
although freedom of religion is guaranteed by the Constitu-
tion, religious belief was not a valid defense in a prosecution
for bigamy. Reliance was on the religious belief itself. In
ruling that a religious belief could not constitute a defense,
the Court explained its decision in this way: that a criminal
intent is generally an element of a crime, and every man is
presumed to intend the necessary and legitimate conse-
quences of what he knowingly does. Here, the accused knew
that he had been married and that his first wife was living.
He was also aware that there was a law that prohibited his
having a second wife. Under those circumstances,the Court
said that he was guilty of the crime, and that while ignor-
ance ofa fact could sometimes be taken as evidence of a want
of criminal intent, ignorance of the law could not. The Su-
preme Court continued that the only defense of the accused
in the case before it was his belief that the law ought not to
have been enacted. The Court finally concluded: “It matters
not that his belief was part of his professed religion; it was
still belief and belief only.” When the offense consists of a
positive act knowingly done it would be dangerous, the
Court said, to hold that the offender might escape punish-
ment because he religiously believed the law he knowingly
broke ought never to have been made. “No case, we believe,
can be found that has gone so far.”
A Tenth Circuit case, Warren v. United States, 177 F.2d
596 (10th Cir. 1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485,
94 L.Ed. 584 (1950), in an opinion by Chief Judge Phillips,
ruled that membership in the Unitarian church, the doctrine
of which was believed by the defendant to oppose war, did not
constitute a defense to charges that the defendant had ad-
vised his stepson not to register for the draft as required by
law. The defendant testified that he believed war to be a
great evil, that without compulsory military training war
79
could not be carried on, and that war could be prevented if
the draft were not enforced. He also said that he believed
certain laws to be detrimental to man as a whole and that
they therefore should be disobeyed. He was shown to have
frequently instructed his stepson as to moral, social and
religious matters in accordance with his beliefs. He admitted
that he advised his stepson not to register and told him that
he should go to Canada and that he would pay his expenses.
This court rejected the contention of the defendant that he
had the right and duty to give his stepson religious training
and instruction and good faith to teach him that war was
wrong and that registration is likewise wrong. The court
concluded, however, that the First Amendment did not jus-
tify his counseling his stepson to refuse or to evade registra-
tion.
The court said:
It is one thing for a person to entertain religious
beliefs, to express those beliefs, and to teach them to
his children. It is another thing to counsel and urge
violation of valid penal legislation. “Freedom of con-
science and freedom to adhere to such religious
organization or form of worship as the individual may
choose cannot be restricted by law. On the other
hand, it safeguards the free exercise of the chosen
form of religion. Thus the Amendment embraces two
concepts, — freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regula-
tion for the protection of society.
177 F.2d at 599-600.
The court distinguished between interference with reli-
gious belief, which the government cannot do, and interfer-
ence with practices, which they can do, and added that man
80
may not excuse his practices that are contrary to law because
of his religious beliefs.
In support of its opinion, this court cited the well-
accepted proposition that one with innocent motives, while
awaiting a judicial decision upholding a doubtfully valid
law, might regard it as not obligatory prior to its having been
construed and upheld by acourt, saying that this was not the
situation in the case before it. Similarly, it is not the case
here. There can be no doubt as to the constitutional validity
of the statute which prohibits jury tampering.
Other cases are annotated in 21 Am. Jur.2d, Criminal
Law § 95 (those dealing with the mistaken belief of the .
constitutionality of a statute, hold that it is not a valid
excuse), § 92 (religious belief cannot be accepted as a justifi-
cation of an act made criminal by the law of the land), § 85
(distinguishes a good motive from the intent to commit a
crime). See also 22 C.J.S. Criminal Law, §§ 48, 51, which
contains a discussion on ignorance or mistake of law as nota
defense, and religious belief as not being justification or
excuse for commission of a crime.
We conclude that the trial court was correct in submit-
ting the cause to the jury, and also in its interpretation of the
applicable law in this case. There is no support for the defen-
dant’s position that a conscientious belief that a law is un-
constitutional or contrary to the common law constitutes a
good defense. This is an illfounded notion.
Accordingly, the judgment of the district court should be
and the same is hereby affirmed.
81
APPENDIX B
JANUARY TERM - March 5, 1980
Before Honorable Oliver Seth, Chief Judge, Honorable
William J. Holloway, Jr., Honorable Robert H. McWilliams,
Honorable James E. Barrett, Honorable William E. Doyle,
Honorable Monroe G. McKay, Honorable James K. Logan,
Honorable Stephanie K. Seymour, Circuit Judges, and Hon-
orable Luther L. Bohanon, District Judge”
UNITED STATES of America,
Plaintiff-Apellee,
v.
Tim Z. OGLE, Defendant-Appellant.
No. 78—1625
This matter comes on for consideration of the petition
for rehearing with suggestion for rehearing en banc filed by
the appellant.
Upon consideration whereof, the petition for rehearing
is denied by Circuit Judges Holloway and Doyle and District
Judge Bohanon, the panel to whom the case was argued and
submitted.
The petition for rehearing having been denied by the
panel to whom the case was argued and submitted, and no
member of the panel nor judge in regular active service on
the Court having requested ihat the Court be polled on
rehearing en banc, Rule 35, Federal Rules of Appellate Pro-
cedure, the suggestion for rehearing en banc is denied.
HOWARD K. PHILLIPS, Clerk
*Ofthe Western District of Oklahoma, sitting by designation.
82
APPENDIX C
UNITED STATES CONSTITUTIONAL PROVISIONS
FIRST AMENDMENT,
UNITED STATES CONSTITUTION
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble and to petition the Gov-
ernment for a redress of grievances.
FIFTH AMENDMENT,
UNITED STATES CONSTITUTION
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
use, without just compensation.
UNITED STATES STATUTES
18 USC 201
§ 201. Bribery of public officials and witnesses
(a) For the purpose of this section:
83
“public official” means Member of Congress, the
Delegate from the District of Columbia, or Resident
Commissioner, either before or after he has qualified,
or an officer or employee or person acting for or on
behalf of the United States, or any department,
agency or branch of Government thereof, including
the District of Columbia, in any official function,
under or by authority of any such department,
agency, or branch of Government or a juror; and
“person who has been selected to be a public
official” means any person who has been nominated
or appointed to be a public official, or has been offi-
cially informed that he will be so nominated or ap-
pointed; and
“official act” means any decision or action on any
question, matter, cause, suit, proceeding or con-
troversy, which may at any time be pending, or which
may by law be brought before any public official, in
his official capacity, or in his place of trust or profit.
(b) Whoever, directly or indirectly, corruptly gives, of-
fers or promises anything of value to any public official or
person who has been selected to be a public official, or offers
or promises any public official or any person who has been
selected to be a public official to give anything of value to any
other person or entity, with intent —
(1) to influence any official act; or
(2) to influence such public official or person who
has been selected to be a public official to commit or aid
in committing, or collude in, or allow, any fraud, or
make opportunity for the commission of any fraud, on
the United States; or
84
(3) to induce such public official or such person who
has been selected to be a public official to do or omit to do
any act in violation of his lawful duty, or
(c) Whoever, being a public official or person selected to
be a public official, directly or indirectly, corruptly asks,
demands, exacts, solicits, seeks, accepts, receives, or agrees
to receive anything of value for himself or for any other
person or entity, in return for:
(1) being influenced in his performance of any offi-
cial act; or
(2) being influenced to commit or aid in commit-
ting, or to collude in, or allow, any fraud, or make oppor-
tunity for the commission of any fraud, on the United
States; or
(3) being induced to do or omit to do any act in
violation of his official duty; or
(d) Whoever, directly or indirectly, corruptly gives, of-
fers, or promises anything of value to any person, or offers or
promises such person to give anything of value to any cther
person or entity, with intent to influence the testin.
under oath or affirmation of such first-mentioned person a
witness upon a trial, hearing, or other proceeding, before ar.
court, any committee of either House or both Houses o
Congress, or any agency, commission, or officer authorized
by the laws of the United States to hear evidence or take
testimony, or with intent to influence such person to absent
himself therefrom; or
(e) Whoever, directly or indirectly, corruptly asks, de-
mands, exerts, solicits seeks, accepts, receives, or agrees to
receive anything of value for himself or for any other person
85
or entity in return for being influenced in his testimony
under oath or affirmation as a witness upon any such trial,
hearing, or other proceeding, or in return for absenting him-
self therefrom —
Shall be fined not more than $20,000 or three times the
monetary equivalent of the thing of value, whichever is
greater, or imprisoned for not more than fifteen years, or
both, and may be disqualified from holding any office of
honor, trust, or profit under the United States.
(f) Whoever, otherwise than as provided by law for the
proper discharge of official duty, directly or indirectly gives,
offers, or promises anything of value to any public official,
former public official, or person selected to be a public offi-
cial, for or because of any official act performed or to be
performed by such public official, former public official, or
person selected to be a public official; or
(g) Whoever, being a public official, former public offi-
cial, or person selected to be a public official, otherwise than
as provided by law for the proper discharge of official duty,
directly or indirectly asks, demands, exacts, solicits, seeks,
accepts, receives, or agrees to receive anything of value for
himself for or because of any official act performed or to be
performed by him; or
(h) Whoever, directly or indirectly, gives, offers, or
promises anything of value to any person, for or because of
the testimony under oath or affirmation given or to be given
by such person as a witness upon a trial, hearing, or other
proceeding, before any court, any committee of either House
or both Houses of Congress, or any agency, commission, or
officer authorized by the laws of the United States to hear
evidence or take testimony, or for or because of his absence
therefrom; or
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(i) Whoever, directly or indirectly, asks, demands,
exacts, solicits, seeks, accepts, receives, or agrees to receive
anything of value for himself for or because of the testimony
under oath or affirmation given or to be given by him as a
witness upon any such trial, hearing, or other proceeding, or
for or because of his absence therefrom —
Shall be fined not more than $10,000 or imprisoned for
not more than two years, or both.
(j) Subsections (d), (e), (h), and (i) shall not be construed
to prohibit the payment or receipt of witness fees provided by
law, or the payment, by the party upon whose behalf a
witness is called and receipt by a witness, of the reasonable
cost of travel and subsistence incurred and the reasonable
value of time lost in attendance at any such trial hearing, or
proceeding, or in the case of expert witnesses, involving a
technical or professional opinion, a reasonable fee for time
spent in the preparation of such opinion, and in appearing
and testifying.
(k) The offenses and penalties prescribed in this section
are separate from and in addition to those prescribed in
sections 1503, 1504 and 1505 of this title.
18 USC 1503
§ 1503. Influencing or injuring officer, juror or witness
generally
Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influ-
ence, intimidate, or impede any witness, in any court of the
United States or before any United States commissioner or
other committing magistrate, or any grand or petit juror, or
officer in or of any court of the United States, or officer who
may be serving at any examination or other proceeding
87
before any United States commissioner or other committing
magistrate, in the discharge of his duty, or injures any party
or witness in his person or property on account of his attend-
ing or having attended such court or examination before
such officer, commissioner, or other committing magistrate,
or on account of his testifying or having testified to any
matter pending therein, or injures any such grand or petit
juror in his person or property on account of any verdict or
indictment assented to by him, or on account of his being or
having been such juror, or injures any such officer, commis-
sioner, or other committing magistrate in his person or prop-
erty on account of the performance of his official duties, or
corruptly or by threats or force, or by any threatening letter
or communication, influences, obstructs, or impedes, or en-
deavors to influence, obstruct, or impede, the due administ-
ration of justice, shall be fined not more than $5,000 or
imprisoned not more than five years, or both. June 25, 1948,
c. 645, 62 Stat. 769.
18 USC 1504
§ 1504. Influencing juror by writing
Whoever attempts to influence the action or decision of
any grand or petit juror of any court of the United States
upon any issue or matter pending before such juror, or before
the jury of which he is a member, or pertaining to his duties,
by writing or sending to him any written communication, in
relation to such issue or matter, shall be fined not more than
$1,000 or imprisoned not more than six months, or both.
Nothing in this section shall be construed to prohibit the
communication of a request to appear before the grand jury.
June 25, 1948, c. 645, 62 Stat. 770.
18 USC 1505
88
§ 1505. Obstruction of proceedings before de-
partments, agencies, and committees
Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influ-
ence, intimidate, or impede any witness in any proceeding
pending before any department or agency of the United
States, or in connection with any inquiry or investigation
being had by either House, or any committee of either House,
or any joint committee of the Congress; or
Whoever injures any party or witness in his person or
property on account of his attending or having attended such
proceeding, inquiry, or investigation, or on account of his
testifying or having testified to any matter pending therein;
or
Whoever, with intent to avoid, evade, prevent, or
obstruct compliance, in whole or in part, with any civil
investigative demand duly and properly made under the
Antitrust Civil Process Act, willfully withholds, misrepre-
sents, removes from any place, conceals, covers up, destroys,
mutilates, alters, or by other means falsifies any documen-
tary material, answers to written interrogatories, or oral
testimony, which is the subject of such demand; or attempts
to do so or solicits another to do so; or
Whoever corruptly, or by threats or force, or by any
threatening letter or communication influences, obstructs,
or impedes or endeavors to influence, obstruct, or impede the
due and proper administration of the law under which such
proceeding is being had before such department or agency of
the United States, or the due and proper exercise of the
power of inquiry under which such inquiry or investigation
is being had by either House, or any committee of either
House or any joint committee of the Congress —
89
Shall be fined not more than $5,000 or imprisoned not
more than five years, or both.
As amended Oct. 15, 1970, Pub.L. 91-452, title IX, § 903,
84 Stat. 947; Sept. 30, 1976, Pub.L. 94-435, Title I, § 105, 90
Stat. 1389.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.