Opposition — Ogle v. United States

Supreme Court, U. S.

FILED

No. 79-1737 JUL 171980

Fe ee ee ae

. Ghee, JR. CLERK

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1979

Tim Z. OGLE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WanbeE H. McCrer, Jr.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-1737

Tim Z. OGLE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the district court's instructions to the jury

erroneously defined the word “corruptly” as used in the

obstruction of justice statute, 18 U.S.C. 1503.

2. Whether the district court’s instructions on proof of

intent constituted reversible error.

3. Whether defense counsel’s failure to object to the

jury instructions on intent deprived petitioner of the

effective assistance of counsel.

4. Whether the district court erred in sustaining

objections to questions asked petitioner on redirect

examination.

5. Whether the prosecutor's question to a witness who

claimed her Fifth Amendment privilege was reversible

error.

TABLE O¥ CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Broadbent v. United States, 149 F. 2d S580. ........ 4

Chambers v. Maroney, 399 U.S. 42. .....0....00000... 10

Cohen v. United States, 378 F. 2d 751. cert.

ae SN IT secctasties cscanccadiociencantatsbicces 8

Cooper v. Fitzharris, 551 F. 2d 1162 ................ 10

Dougias v. Alabama, 380 U.S. 415 ..........00000.. 15

Mann v. United States, 319 F. 2d 404. cert.

I, BIG TI, TID aso isvssessscscecsssicsccindccenssseecs 7

Martin v. United States, 166 F. 2d 76 ................ 6

McMann v. Richardson, 397 U.S. 759 ........ 10. WI

Namet v. United States, 373 U.S. 179 ........ 13, 15

Pettibone v. United States, 148 U.S. 197 oo... 6

Robbins v. Small, 371 F. 2d 793. cert.

UE, Wa WU ovkcctsic clade sncccsinssdsvicescsce 14

Salazar v. Estelle, 547 F. 2d 1226 ooo... 10

United States v. Abrams, 427 F. 2d 86. cert.

GOMOD, GID IG. BRE vnncsscvccessscccdensccesccsessesecseces 6

age

Cases—(Continued): .

United States v. Arthur, 544 F. 2d 730 ............ 10

United States v. Baker, 611 F. 2d 964 ......00.00..... 3"

United States v. Chiantese, 560 F. 2d 1244 ........ 7

United States v. Diggs, 527 F. 2d 509 ....... 7-8, 10

United States v. Fasolino, 586 F. 2d 939 ........... 5

United States v. Garrett, 574 F. 2d 778.

cert. denied, 436 U.S. 919 ooo... eee. 7

United States v. Haas, 583 F. 2d 216.

cert. denied, 440 U.S. 981 ooo... 5. 6

United States v. Haldeman, 559 F. 2d 31.

cert. denied, 431 U.S. 933 ooo... 5. 6. 8

United States v. Hearst, 563 F. 2d 1331.

cert. denied, 435 U.S. 1000.00.00... 14

United States v. Heath, 580 F. 2d 1011.

cert. Gemied, 499 U.S. 87S ......c.cccccccccsccccccccces. &

United States v. Jackson, 607 F. 2d 1219.

cert. denied, No. 79-993 (Feb. 19. 1980) .... 5, 7

United States v. Johnson, 585 F. 2d 119 ............ 5

United States v. King, 461 F. 2d 53. .........0....... 14

United States v. Lazzerini, 611 F. 2d 940. .......... 5

United States v. Malinowski, 472 F. 2d 850,

cert. denied, 411 U.S. 970 ..........00......0000.0...00 12

United States v. Orrico, 599 F. 2d 113 .....000.0... 10

United States v. Park, 421 U.S. 658 ..... ansesseneseses 4

United States v. Partin, 552 F. 2d 621 .......... 4. 5

**

IV

Page

Cases—(Continued):

United States v. Porth, 426 F. 2d 519. cert.

Ee 12

United States v. Quilty, 541 F. 2d 172 ............. 12

United States v. Reeves, 594 F. 2d 536.

EE | ee 7

United States v. Releford, 352 F. 2d 36.

| &

United States v. Robinson, 545 F. 2d 301 .... 7. 10

United States v. Rvan, 455 F. 2d 728 ............. 5-6

United States v. Smaldone, 484 F. 2d 311.

EE 8

United States v. Spiegel, 604 F. 2d 961.

cert. denied, Nos. 79-1184. 79-1194

aso asa dscccasasassosscnsessense 7

United States v. White, 557 F. 2d 233. .......0000.... 5

United States v. Woodring, 464 F. 2d 1248 ....... 8

Constitution and statutes: 5

United States Constitution:

i sccadhesddnocionecs 6

Fifth Amendment ................................5 1, 13, 14

Cs scubeevecessecocs i. 3.5.6

ESET REEF 6

Page

Miscellaneous:

E. Devitt & C. Blackmar. Federal Jury

Practice and Instructions (3d ed. 1977):

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OPINION BELOW

The opinion of the court of appeals (Pet. App. 53-80) is

reported at 613 F. 2d 233.

JURISDICTION

The judgment of the court of appeals was entered on

November |, 1979. A petition for rehearing was denied

on March 5, 1980 (Pet. App. 81). On March 24, 1980, Mr.

Justice White extended the time for filing a petition for a

writ of certiorari to May 4, 1980, and the petition was

filed on May 1, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Colorado. petitioner was

convicted of obstruction of justice. in violation of 18

U.S.C. 1503. He was sentenced to 15 months’

imprisonment and fined $500. The court of appeals

affirmed (Pet. App. 53-80).

The evidence at trial established that petitioner, a pilot

for Continental Airlines, was a member of a group

opposed to the federal income tax. Beginning in February

1978, petitioner conducted a tax course using a text

that he authored entitled “Good Citizenship with

Constitutional Tax Return and Procedures” (II R. 180-

181; Ill R. 277, 308; Gov't Exh. 2).' This book teaches

that tax crimes are not true crimes. and it gives

instructions and provides forms for filing W-4 Employee

Withholding Allowance Certificates designed to prevent

the withholding of taxes, for filing returns that invoke the

Fifth Amendment and disclose only the taxpayer's name

and address, and for filing nameless tax returns. The book

R.” refers to the record on appeal.

2

also explains that a jury has a right of nullification to

acquit for any reason, which it can exercise to protect

citizens against unjust laws (Gov't Exh. 2 at 9-10. 12).

A pamphlet entitled “Handbook for Jurors” was also

used in the tax course. This Handbook discusses the

principle of jury nullification, noting that juries are not

given instructions on this subject (Gov't Exh. I: I] R. 133-

134; III] R. 268, 296). The distribution of this pamphlet to

jurors was discussed in the tax class (II R. 147-149).

On February 21, 1978, petitioner was present at the

trial of one Norman Gigax, who was charged with filing a

faise W-4 employee withholding form (II R. 84-86).

Among the jurors selected was Colleen Hansen. whom

petitioner recognized as a Continental flight attendant (III

R. 249). At the morning recess, petitioner introduced

himself to Gigax and mentioned his acquaintanceship

with Mrs. Hansen (III R. 248, ‘252). Later. in the

courthouse elevator, petitioner said hello to Mrs. Hansen,

who recognized him as a Continental Airlines pilot. After

the luncheon recess, petitioner, at Gigax’s request, sat at

the defense table and took notes (II R. 86-87: III R. 249-

252).

That evening, petitioner telephoned Jacquelyn Lagoni,

another Continental flight attendant who was a student in

petitioner’s tax course and knew Colleen Hansen (II R.

127-129, 133-134). Petitioner stated that Mrs. Hansen was

a juror in a pending case and inquired whether she had

seen a copy of the “Handbook for Jurors” (11 R. 134-135,

195; III R. 260-261, 294). Approximately 15 minutes after

this conversation, Lagoni called Mrs. Hansen and said

that she knew Hansen was a juror on the Gigax case

because petitioner had seen her at the courthouse. Lagoni

mentioned the “Handbook for Jurors” and asked Hansen

if she would like a copy. Lagoni offered cither to have

3

petitioner deliver a copy or to do so herself. Mrs. Hansen

refused the offer and reported the incident to the judge (II

R. 87, 89-91, 131, 196, 200-201).

Petitioner was thereafter indicted for obstruction of

justice. In his own defense, petitioner testified that he

called the Lagonis to reschedule a dinner date and to

satisfy his curiosity whether Mrs. Hansen had seen the

Handbook. He denied that he had called with any

intention to have Mrs. Lagoni contact Mrs. Hansen or

that he had made any such suggestion to Mrs. Lagoni (III

R. 259-261, 269-270).

ARGUMENT

1. Petitioner contends (Pet. 14-20) that the district

court erred in instructing the jury as to the meaning of the

term “corruptly” in 18 U.S.C. 1503. After describing the

charges alleged in the indictment (V R. 3) and reading the

pertinent language of the statute (V R. 5). the court

instructed the jury as follows (V R. 6-7):

{An essential element of the offense is] that

[petitioner’s] acts in causing the petit juror to be

contacted were done corruptly and also with the

specific intent to impede or influence a petit juror or

to impede or obstruct the administration of justice.

* * * %* *

[T]he word “endeavor” means any effort to attempt

to accomplish the evil purpose that the statute was

?The statute reads in pertinent part:

Whoever corruptly * * * endeavors to influence, intimidate, or

impede any * * * petit juror * * * in the discharge of fis duty

*** or corruptly or by threats of force * * * influences,

obstructs, or impedes, or endeavors to influence. obstruct, or

impede, the due administration of justice, shall be fined not more

than $5,000 or imprisoned not more than five years. or both.

4

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 * * *.[*]

Petitioner claims that the district court erred in refusing

‘to give his. proposed instructions (Pet. 14-15; V R. 16-17):

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.

However, read as a whole (see, e.g... United States v.

Park, 421 U.S. 658, 674 (1975)), the court’s charge

adequately apprised the jury of the requisite mental

element of the offense. The court explained to the jury

that a finding of guilt must rest on a determination that

petitioner acted “with the specific intent to do something

that the law forbids, that is to say with a bad purpose

either to disobey or to disregard the law” (V R. 7). The

court several times reiterated that petitioner must have

acted “corruptly” in order to be convicted (V R. 3, 5, 6)

and explained that an “endeavor” undertaken “corruptly”

was “any effort to attempt to accomplish the evil purpose

that the statute was designed to protect * * *” (V R. 6).

Finally, the court’s repeated use of the phrases “influence

and impede” and “influence, obstruct. or impede”

(V R. 3, 5-7) also imparted to the jury the sense that

a wrongful intention is required under the statute.

See United States v. Partin, 552 F. 2d 621, 642 & nn. 26,

27 (Sth Cir. 1977). While the court's instructions

3These instructions were derived from Broadbent v. United States,

149 F. 2d 580, 581 (10th Cir. 1945), and are set out in 2 F. Devitt &

C. Blackmar, Federal Jury Practice and Instructions §§ 32.04, 32.05

(3d ed. 1977).

5

undoubtedly could have more clearly compartmentalized

the elements pertaining to “corruptly” and “endeavor,”

they sufficiently conveyed to a “reasonable jury exercising

common sense” (United States v. Johnson, 585 F. 2d 119,

128 (Sth Cir. 1978)) that it “had to find * * * there was a

corrupt endeavor which was an effort to wrongly

influence [Mrs. Hansen]” (Pet. App. 67) See also United

States v. Jackson, 607 F. 2d 1219, 1221-1222 (8th Cir.

1979), cert. denied, No. 79-993 (Feb. 19, 1980). The exact

wording requested by petitioner was only an alternative

formulation of an idea adequately expressed in the

instructions as given.4

Nor, contrary to petitioner’s assertion, does the decision

below create a conflict in the circuits. The courts of

appeals are uniformly in agreement that the word

“corruptly” in 18 U.S.C. 1503 means that the endeavor to

influence must be made with a specific intent to achieve a

wrongful purpose. See United States v. Baker, 611 F. 2d

964, 967-968 (4th Cir. 1979); United States v. Lazzerini,

611 F. 2d 940, 942 (Ist Cir. 1979): United States v.

Jackson, supra, 607 F. 2d at 1221-1222 (8th Cir.); United

States v. Fasolino, 586 F. 2d 939, 941 (2d Cir. 1978):

United States v. Haas, 583 F. 2d 216, 220 (Sth Cir. 1978),

cert. denied, 440 U.S. 981 (1979); United States v.

Haldeman, 559 F. 2d 31, 114 n. 226 (D.C. Cir. 1976), cert.

denied, 431 U.S. 933 (1977); United States v. White, 557

F. 2d 233, 235 (10th Cir. 1977); United States v. Ryan, 455

4Petitioner impliedly suggests that the court's instructions in this

case would allow a jury to convict an innocent or lawful endeavor to

influence a juror. As already discussed. however. the instructions

were adequate to foreclose this possibility. See also United States v.

Jackson, supra, United States v. Partin. supra. Moreover, petitioner's

defense at trial was not that he had endeavored to influence Mrs.

Hansen for some innocent or benevolent purpose. but rather that he

had not endeavored or caused anyone to endeavor to influence her at

all.

6

F. 2d 728, 734 (9th Cir. 1971); see also Pettibone v.

United States, 148 U.S. 197, 206 (1893). This central idea

is variously expressed by the courts in such terms as “for

an improper motive” (Martin v. United States, 166 F. 2d

76, 79 (4th Cir. 1948)), “for an evil or wicked purpose”

(United States v. Ryan, supra, 455 F. 2d at 734), or

“having an evil or improper purpose or intent” (United

States v. Haldeman, supra, 559 F. 2d at 114 n.226).

However, no specific terminology is required, provided

that, as occurred here, the jury is properly advised of the

nature of the defendant’s intent required to convict. See

United States v. Haas, supra, 583 F. 2d at 220: ct. United

States v. Abrams, 427 F. 2d 86, 90 (2d Cir.). cert. denied,

400 U.S. 832 (1970).5

2. Petitioner also challenges (Pet. 20-26) the district

c “rt’s instructions to the jury on the question of proof of

intent. The court’s charge included the following

statement (V R. 8):

While witnesses may see and hear and thus be able to

give direct evidence of what a defendant does or fails

‘Petitioner additionally argues (Pet. 46-48) that the district court's

instructions on the meaning of “corruptly” have climinated the

distinction between the offense of obstruction of justice defined in 18

U.S.C. 1503 and that defined in 18 U.S.C. 1504, which does not on its

face require that the attempt to influence be done corruptly. As

discussed above, however, the court's instructions in this regard

adequately informed the jury of the meaning of the term “corruptly”

as used in 18 U.S.C. 1503. Since the jury was correctly instructed on

this element of the offense, there is also no merit to petitioner's

argument (Pet. 26-29) that the court's charge has placed a chilling

effect upon the exercise of First Amendment rights innocently to

influence jurors. We also note that the jury was instructed that the

First Amendment protected the expression and dissemination of the

views contained in the “Handbook for Jurors” and petitioner's views

on the income tax system, that petitioner was not on trial for advo-

cating these views, and that a guilty verdict could not be based on the

fact that petitioner had promoted these views or distributed the

Handbook (V R. 26).

Ne

7

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 circumstances and possessing like

knowledge should reasonably have expected to result

from any act knowingly done or knowingly omitted

by the accused.

Petitioner claims that the Tenth Circuit is in conflict with

-he other courts of appeals regarding the propriety of this

30-called “Mann” charge (see Mann v. United States, 319

F. 2d 404, 407 (Sth Cir. 1963), cert. denied. 375 U.S. 986

(1964)), and that the court erred in holding that the

instruction, to which no objection was raised at trial, was

not “plain error” in this case.

Several court of appeals have disapproved the Mann

charge on the ground that it may be interpreted by a jury

to shift the burden of proof on criminal intent to the

defendant; however, they have generally found that other

parts of the instructions to the jury cured the problem in

individual cases. See, e.g., United States v. Jackson,

supra, 607 F. 2d at 1220-1221 (8th Cir.); United States v.

Spiegel, 604 F. 7d 961 (Sth Cir. 1979). cert. denied, Nos.

79-1184, 79-1194 (May 12, 1980): United States v. Reeves,

594 F. 2d 536, 540-541 (6th Cir.). cert. denied, 442 U.S.

946 (1979); United States vy. Garrett, 574 . 2d 778 (3d

Cir.), cert. denied, 436 U.S. 919 (1978): United States v.

Chiantese, 560 F. 2d 1244 (Sth Cir. 1977) (en banc):

United States v. Robinson, 545 F. 2d 301 (2d Cir. 1976);

8

United States v. Diggs, 527 F. 2d 509 (8th Cir. 1975);

Cohen v. United States, 378 F. 2d 751 (9th Cir.), cert.

denied, 389 U.S. 897 (1967); United States v. Releford,

352 F. 2d 36 (6th Cir. 1965), cert. denied. 382 U.S. 984

(1966). Indeed, contrary to petitioner's assertion, the

Tenth Circuit does not favor this charge. See United

States v. Heath, 580 F. 2d 1011, 1025 (10th Cir. 1978),

cert. denied, 439 U.S. 1075 (1979): United States v.

Smaldone, 484 F. 2d 311, 321 (10th Cir. 1973), cert.

denied, 415 U.S. 915 (1974); United States v. Woodring,

464 F. 2d 1248, 1251 (1972). In line with the approach

generally followed by the other courts of appeals, the

Tenth Circuit examines the charge in the context of the

entire set of instructions to determine whether, in a given

case, the jury was likely to have been misled as to the

proper allocation of the burden of proof. What petitioner

claims to be a multiplicity of standards is really a case-by-

case determination of the adequacy of the overall

instruction in light of the particular circumstances. Sce

also United States v. Haldeman, 559 F. 2d 31. 116-117

(D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977).¢

We recognize that the Fifth Circuit has prospectively established a

stricter standard of review for Mann charges. holding that such

instructions, although not automatically grounds for reversal, are

erroneous and cannot be cured in future cases by reference to correct

statements elsewhere in the charge regarding the government's burden

of proof. Whatever differences may ultimately result from this

exercise of the Fifth Circuit’s supervisory power. we do not believe

that the situation warrants the intervention of this Court at present.

The courts of appeals have recognized the potential danger of Mann

charges and have carefully reviewed claims that such a charge was

likely to have prejudiced a defendant. We submit that the precise

approach to resolving the Mann issue—either to adhere to a case-by-

case determination or to follow the Fifth Circuit in establishing a

supervisory rule—is best left at this point to the informed judgment

of each circuit.

9

Applying this standard: in the instant case, it is clear

that the instructions in their entirety adequately conveyed

the nature of the government’s burden of proof on the

issue of intent. At the outset, the jury was told that it was

not to single out any particular instruction but instead

was to consider all the instructions (V R. 2), and this

admonition to consider the instructions as a whole was

repeated at the conclusion of the charge (V R. 15). The

court further informed the jury that “[t]he burden its

always on the prosecution to prove guilt beyond a

reasonable doubt, and this burden never shifts to a

defendant, for the law never imposes upon a defendant

the duty of calling any witnesses or producing any

evidence” (V R. 4-5); this instruction was repeated several

times (V R. 6, 12, 13). Moreover, immediately before the

challenged portion of the charge. the court explained to

the jury that “[w]ith respect to lesser offenses. * * * intent

may be presumed from the voluntary doing of the

forbidden act, but with respect to major crimes such as

charged in this case specific intent must be proved before

there can be a conviction. Specific intent. as the term itself

suggests, requires more than a mere gencral intent to

engage in certain conduct” (V R. 7-8). And. directly

following the contested instruction. the court specifically

stated that “[i]Jn determining the issue as to intent. the jury

are entitled to consider any statement made and acts done

or omitted by the accused and all facts and circumstances

in evidence which may aid determination of state of

mind” (V R. 8).

Thus, notwithstanding general criticisms of the Mann

charge (see | E. Devitt & C. Blackmar. /ederal Jury

Practice and Instructions § 14.13 (3d ed. 1977)), it is clear

that in this case the instructions as a whole neither shifted

the burden of proof to the defendant nor invited the jury

to disregard the totality of the circumstances concerning

petitioner’s intent. Since the objectionable phrase in the

10

court’s charge was but one small part of a complete and

correct exposition of how the jury should proceed in

determining whether the government had proved

petitioner’s intent, the court of appeals properly

concluded that the instructions were not plain error.’

3. Petitioner next claims (Pet. 29-33) that he was

denied the effective assistance of counsel at trial because

his attorney failed to object to the court's instruction on

proof of intent. This one alleged error on the part of

defense counsel is not enough to demonstrate inadequate

representation. The assistance of counsel need not be

errorless to be effective. See Cooper v. Fitzharris, 551 F.

2d 1162 (9th Cir. 1977); Salazar v. Estelle, 547 F. 2d 1226

(Sth Cir. 1977). Moreover, as discussed above, the

instructions in their entirety were proper. and the one

objectionable portion of the court’s charge on intent was

very unlikely to have misled the jury. Cf. Chambers vy.

Maroney, 399 U.S. 42, 53-54 (1970).

The general rule is that the question of the effective

assistance of counsel should ordinarily be left to the

“good sense and discretion of the trial courts.” Af¢eMann

v. Richardson, 397 U.S. 759, 771 (1970). Here. the district

’Petitioner’s reliance (Pet. 22-23) on United States vy. Robinson,

545 F. 2d 301 (2d Cir. 1976), is misplaced. Although the charge given

in that case was very similar to the one in the instant case. it was the

only instruction given the jury on proof of intent. Thus. the court of

appeals concluded that, in the absence of a more complete and

accurate explanation in the instructions as a whole. the jury probably

had a mistaken view of the government's burden of proof on the issue

of intent. Other cases cited by petitioner also presented quite different

circumstances. In United States v. Arthur. 544 F. 2d 730, 736-737

(4th Cir. 1976), the instruction, instead of being phrased as a

permissive inference, directed the jury to find intent from “the natural

result of [the defendant's] actions.” And. in both United States v.

Orrico, 599 F. 2d 113, 119 n.5 (6th Cir. 1979). and United States v.

Diggs, 527 F. 2d 509. 514-515 (8th Cir. 1975). the court reversed for

insufficiency of the evidence and found a Mann charge prejudicially

erroneous in light of the weakness of the government's case.

court specifically found that counsel was competent,

stating that he “did a good job * * * he did as well as

anybody could” (VIII R. 20-21), and the court of appeals

agreed with that judgment (Pet. App. 64). The record

demonstrates that defense counsel in this case performed

“within the range of competence demanded of attorneys

in criminal cases” (McMann v. Richardson, supra, 397

U.S. at 771), and there is simply no basis for a conclusion

of incompetent representation.

4. Petitioner further contends (Pet. 33-42) that the

district court erred in excluding certain defense testimony

that pertained to the issue of petitioner's criminal intent.

a. On redirect examination, petitioner was asked by his

counsel whether he had taken any action designed to

influence Colleen Hansen with respect to the Gigax case

and whether his telephone call to Jacquelyn Lagoni was

made with the intent to influence Mrs. Hansen in the

exercise of her duty. The district court sustained objec-

tions to both questions (III R. 305-306). Petitioner claims

that this was an erroneous exclusion of evidence critical

to his defense.

The record establishes, however, that the answers to

these questions would in fact have been entirely

repetitious of petitioner’s other testimony. Petitioner

testified on direct examination, on cross examination, and

on redirect (immediately following the excluded

questions) that his intent in calling Mrs. Lagoni was to

rearrange a dinner date and to satisfy his curiosity

whether Mrs. Hansen had seen the Handbook (III R. 258-

260, 287, 306). His similar testimony before the grand jury

was also in evidence (III R. 288-291). In addition,

petitioner testified that he did not ask Mrs. Lagoni to call

Mrs. Hansen; that he said nothing that would have led

Mrs. Lagoni to believe he wanted her to call Mrs.

12

Hansen; and, in answer to questions almost identical to

those later objected to, that he never attempted cither to

contact Mrs. Hansen or to have Mrs. Lagoni do so for the

purpose of influencing Mrs. Hansen’s decision as a juror

(111 R. 261, 269-270). In these circumstances, the court of

appeals correctly held (Pet. App. 70) that the district

court acted within its discretion in disallowing the

repetitive testimony.

b. The district court also excluded petitioner's

testimony about the research he had conducted that

formed the basis for his beliefs on jury nullification (III R.

268-269). Petitioner’s contention that this testimony

would have negated the element of criminal intent ts

incorrect. As the jury was expressly instructed (V R. 26),

petitioner was on trial for his efforts to obstruct justice,

not for disseminating the Handbook or for believing or

advocating the views contained therein. Whatever

petitioner’s beliefs in the correctness of the ideas taught in

the Handbook, and whatever his motives may have been

in advocating those ideas, they were not relevant to the

question of his intent to violate the statute. See United

States v. Quilty, 541 F. 2d 172, 175 (7th Cir. 1976); United

States v. Malinowski, 472 F. 2d 850, 855-859 (3d Cir.),

cert. denied, 411 U.S. 970 (1973); United States v. Porth,

426 F. 2d 519, 523 (10th Cir.), cert. denied. 400 U.S. 824

(1970). Moreover, petitioner did not in facf’seek to offer a

defense that he had endeavored to influence Mrs. Hansen

in good faith; rather, the entire thrust of his defense was a

complete denial of any effort to offer the Handbook to

Colleen Hansen or to influence her in any way.

Petitioner had already been allowed to testify at some

length regarding his personal beliefs on jury nullification

and the purpose of the Handbook (III R. 263-268),

although this evidence was not strictly material to any

valid defense. When the district court refused to allow

13

him to discuss his underlying research, it was acting well

within its discretion to exclude irrelevant and cumulative

evidence.

5. Petitioner lastly argues (Pet. 42-46) that the

prosecutor engaged in misconduct by asking Jacquelyn

Lagoni about her W-4 tax withholding form, since he had

previously been informed of her intention to claim her

Fifth Amendment privilege with regard to that subject (II

R. 10).

The single disputed question occurred after Mrs. Lagoni

had been called as a government witness* and testified

that the subject of filing W-4 forms was discussed in

petitioner’s tax class. The prosecutor then inquired, “And

during the period of time that you took this class, did you

change your W-4 form?” (II R. 154). Mrs. Lagoni invoked

the Fifth Amendment and refused to answer the question.

Petitioner’s counsel objected, referring to the advance

notice given to the government that the witness intended

to assert her privilege if questioned on that subject. The

prosecutor responded that he did not believe Mrs. Lagoni

had a valid claim of privilege regarding the one question

he had posed. The district judge agreed. but advised the

prosecutor not to continue that line of examination (II R.

155). No further questions on the subject were asked.

In this case, as in Namet v. United States, 373 U.S. 179,

188 (1963), the prosecutor did not believe that Mrs.

Lagoni could properly invoke her privilege against self-

incrimination in response to the simple question whether

she had changed her W-4 form, and his position was

upheld by the district court. Government questioning that

elicits a claim of privilege can only be error when the

‘The government had granted immunity to Mrs. Lagoni with

respect to the charge of obstruction of justice.

14

witness has a valid Fifth Amendment claim. United State:

v. Hearst, 563 F. 2d 1331, 1341-1342 (9th Cir. 1977), cert

denied, 435 U.S. 1000 (1978). And “certainly the

prosecutor need not accept at face value every asserted

claim of privilege, no matter how frivolous.” Namet v.

United States, supra, 373 U.S. at 188.

In contrast to United-States v. King, 461 F. 2d 53, 56-

57 (8th Cir. 1972), and Robbins v. Small, 371 F. 2d 793,

794-795 (Ist Cir.), cert. denied, 386 U.S. 1033 (1967),

upon which petitioner relies (Pet. 46). the government in

the instant case neither called Mrs. Lagoni for the sole

purpose of eliciting a claim of privilege nor exploited her

silence by asking a series of questions designed to leave

damaging inferences in the minds of the jurors. Rather, as

in Namet, the witness here had considerable evidence to

offer that supported the government's case. Moreover,

petitioner’s objection relates to only a single question

during a lengthy examination, and it is most unlikely that

this brief episode adversely affected the jury.’ Finally, as

the court of appeals observed (Pet. App. 76-77), there is

no indication whatever of a deliberate attempt by the

prosecutor to prejudice petitioner’s case. Accordingly, it

cannot be concluded that the government was guilty of

misconduct by making “a conscious and flagrant attempt

to build its case out of inferences arising from use of the

testimonial privilege” or by seeking to use such inferences

to add “critical weight to the prosecution's case in a form

*We also note that the aspects of Mrs. Lagoni’s testimony that

tended to exonerate petitioner were materially different from the

testimony given by her husband and were directly contradicted by the

testimony of Mrs. Hansen. Thus, in comparison to this substantial

evidence casting serious doubt on her testimony. Mrs. Lagoni could

have been discredited only minimally, if at all. by the single question

concerning her W-4 form.

15

not subject to cross-examination.” Namer vy. United

States, supra, 373 U.S. at 186-187. See also Douglas v.

Alabama, 380 U.S. 415, 419-420 (1965).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapDE H. McCrer, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

JuLy 1980

DOJ-1980-07