# Opposition — Ogle v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 825

## Text

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
SR ION is daa scheme nnclcninalavmbusNaumignilea cone tasbenaiaes
Sa a a sacuaunaagh I
SIIIED “picssinchicieabokicesnid pha eGhseskaesiaaiwniiien coceaphoneagietviehess I
SI Sicidnudanden ta tanussiscida talks thathontissninsescivetihabesdntaicons 3
NINE scccleh tiaeadiieailsbinddeaaa pacccinseniign density oonueeesvsatacls 15
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):

ME piidcnilheiisidacddttai cna ccskuiiensheccakueiimakentagalahvieh 9

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2328%3A2. Public record. Not legal advice.