Petition — GJIELI v. UNITED STATES (Nos. 83-1046, 83-6087)

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83-1046

IN THE

Supreme Court of the Gnited

GJERGJ GJIELI,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent,

NICKOLA LULGJURAJ,

Petitioner,

vS.

UNITED STATES OF AMERICA,

Respondent,

ZEFF LULGJURAJ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Warren D. Bracy

1575 East Lafayette, Suite 201

Detroit, Michigan 48207

(313) 393-0047

Lesiit R. SEELIGSON

415 Detroit Street

Ann Arbor, Michigan 48104

(313) 995-1222

Attorneys for the Petitioner,

Gjergj Gjieli

Pandick Press Midwest, Inc. Chicago * 454-7600

QUESTIONS PRESENTED

Gjergj Giieli respectfully petitions that a Writ of Certiorari

issue to review the Order of the Court of Appeals for the Sixth

Circuit, entered in this proceeding on September 21, 1983.

1. Does 18 U. S. C. Section 201(b)(3) encompass bribery

of a federal employee where the action sought to be influenced

involves no federal or official function?

2. Is a case presented for exercise of the Court’s super-

visory powers by reversal of a conviction where the following

acts occurred in the investigatory and law enforcement phase of

a prosecution:

A] An Assistant United States Attorney prepared a simu-

lated writ of habea corpus ad testificandum calling for the

appearance of a state prisoner for purposes of a non-

existent grand jury investigation; and

B] The same Assistant United States Attorney procured

the signature of a United States District Judge on the writ

without advising of its specious origin; and

C] A federal Alcohol, Tobacco and Firearms Agent

impersonated a United States Marshall and used the

simulated writ to remove the prisoner from state custody,

in order to interrogate him at a remote location and thus to

further the investigation and prosecution of a perceived

bribery overture; and

D] The Record of this proceeding discloses that no

7 hank i ; er babe

were undertaken beyond a verbal admonition by the trial

judge and a referral to the District Judge who was

deceived into signing the specious writ of habeas

corpus—who undertook no inquiry or action at all.

3. Does the prosecutorial use at trial of evidence gathered

through the above acts violate the Defendants’ rights to Due

Process under the Fifth Amendment and a fair trial under the

Sixth Amendment?

4. Does a finding of harmless error by the Sixth Circuit

condone an injury to the judicial system, promote disrespect for

the administration of justice and disrupt the mutual trust upon

which comity of state-federal relations depends?

TABLE OF CONTENTS

Questions Presented ics

ETRE SEE SPA CEOs Ae er

Jurisdiction s

Constitutional Provisions Invoked ................cc-ssesseesesseeees

Statutory Provisions Involved sui aaiiiadlddicansbelentalaniectiihein

BINS GEOG CRB ann cceccecsnstccccediccsseece cesccesccsetees i

Reasons for Granting the WTrit..................ccccccssessserceseeeeees

The Sixth Circuit Opinion and Order Condones Fla-

grant Misconduct and Abuse of Office by an Assis-

tant United States Attorney

IL.

The Sixth Circuit Opinion and Order Expands Federal

Criminal Jurisdiction Beyond the Intent of Congress

and Beyond Appropriate Federal Policy and Interest .

Conclusion

Appendix. Opinion and Order of the Court of Ap-

peals for the Sixth Circuit :

Transcript of Proceedings Conducted

Before the Honorable Horace Gil-

more, United States District Judge on

November 21, 1980, post trial..............

Order of the Court of Appeals for the

Sixth Circuit Denying Petition For

Rehearing

33a

TABLE OF AUTHORITIES

Cases

Blunden v. United States, (6th Cir. 1948) 169

F. 2d 991

Hampton v. United States, (1976) 425 U. S. 484;

48 L. Ed. 2d 113; 96 Sup. Ct. 1646

Krogmann v. United States, (6th Cir. 1955) 225

F. 2d 220

Schneider v. United States, (9th Cir. 1951) 192

F. 2d 498; cert. den. (1952) 343 U. S. 914; 96

eR a een

Sherman v. United States, (1958) 356 U. S. 369; 2

L. Ed. 2d 848; 78 Sup. Ct. 819

Sorrells v. United States, (1932) 287 U.S. 435; 17

L. Ed. 413; 58 Sup. Ct. 210

United States v. Archer, (2d Cir. 1973) 486 F. 2d

670

United States v. Birdsall, (1914) 233 U. S. 223; 58

L. Ed. 930; 34 Sup. Ct. 512

United States v. Hastings, (1983) —. U. S.

——; 76 L. Ed. 2d 96; 103 Sup. Cr. 1974; 51

U. U.S. L. W. 4572 (5/23/83)

United States v. Janotti, (E. D. Pa. 1980) 501

F. Supp. 1182; rev'd. 673 F. 2d 578 (3d Cir) (en

banc), cert. den. 457 U. S. 1106; 72 L. Ed. 2d

——; 102 Sup. Ct. 2906 ( 1982)

United States v. Leja, (6th Cir. 1977), 568 F. 2d

244

United States v. Myers, (2d Cir. 1982) 692 F. 2d

823

United States v. Payner, (1980) 447 U. S. 727; 65

L. Ed. 2d 468; 100 Sup. Ct. 2439

PAGE

6, 7,8

United States v. Russell, (1972) 411 U. S. 423; 36

L. Ed. 2d 366; 93 Sup. Ct. 1637 6,7

United States v. Seagraves, (D. C. Guam 1951)

100 F. Supp. 424 10

Constitution and Statute

United States Constitution, Amendment 6............... 2

United States Code, Title 18, Sec. 201( a)...........00++ 3

United States Code, Title 18, Sec. 201(b)(3) ......... 3, 6, 10

IN THE

Supreme Court of the Anited States

GJERGJ GJIELI,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

NICKOLA LULGJURAJ,

vS.

UNITED STATES OF AMERICA,

ZEFF LULGJURAJ,

Petitioner,

vS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDERS BELOW

The Order of the Court of Appeals for the Sixth Circuit was

issued on September 21, 1983. It is scheduled for publication.

No citation is available. It appears in the Appendix hereto.

The Order of the Court of Appeals denyimg rehearing issued on

December 14, 1983. It appears in the Appendix hereto.

JURISDICTION.

The United States Court of Appeals for the Sixth Circuit

affirmed Petitioner’s criminal conviction by Opinion decided

and filed on September 21, 1983. An Order denying rehearing

was entered on December i4, 1983. On motion of Petitioner,

this Court, per the Honorable Sandra Day O’Conner, extended

the time for filing this Petition to December 20, 1983, by Order

dated November 18, 1983. This Court’s jurisdiction is invoked

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

CONSTITUTIONAL PROVISIONS INVOKED

United States Constitution, Amendment 5:

“No person shall be held to answer for a capital, or

otherwise 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 himself, 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 Constitution, Amendment 6:

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by impartial jury of the

state and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusations; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel

for his defense.”

STATUTORY PROVISIONS INVOLVED

18 U.S.C. Section 201 (a):

“(a) For the purpose of this section:

‘public official” means Member of Congress, 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 officially informed that he will

be so nominated or appointed; and

‘official act’ means any decision or action on any question,

matter, cause, suit, proceeding or controversy, 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.”

18 U.S.C. Section 201( b)(3):

“(b) Whoever, directly or indirectly, corruptly gives, offers

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

- >

(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

STATEMENT OF THE CASE

Petitioner appeals from a conviction for bribery of a

federal official and conspiracy to bribe a federal officer. He was

convicted following a jury trial conducted before the Honorable

Horace W. Gilmore, United States District Judge, in the

Eastern District of Michigan, Southern Division. Petitioner

Gjieli was sentenced to terms of five years and fifteen years, to

be served concurrently, on January 8, 1981. He was released on

$125,000 bond pending appeal on April 13, 1981, by Judge

Gilmore. On June 10, 1981, following the government’s Motion

to Revoke Bond, Judge Gilmore reduced the appeal bond to

$70,000 and Gijieli remains free on that bond. The Court of

Appeals for the Sixth Circuit affirmed Petitioner’s conviction on

September 21, 1983, the Honorable Pierce Lively dissenting.

The Court of Appeals has stayed issuance of its mandate and

appears to be considering Petitioner’s request for rehearing.

The facts pertinent to this appeal are as follows. On

August 22, 1980, a two count Indictment was returned against

Appellant Gjieli and two co-defendants ( Nickola Lulgjuraj and

Zeff Lulgjuraj) charging them with conspiracy to bribe a

federal Alcohol, Tobacco and Firearms agent by offering him

payment with intent to induce the agent to violate his official

duty and position by effecting the escape of Zeff Lulgjuraj from

the custody of the State of Michigan [Court I, violation of 18

U.S.C. 371] and bribing the agent by offering him $100,000

[Count II, violation of 18 U.S.C. 201(b)(3)].

Petitioner and his co-defendants repeatedly raised a de-

fense of “entrapment as a matter of law” throughout the trial

court proceedings. The thrust of their defense was that pre-trial

investigatory misconduct by the United States Attorney’s office

and the Alcohol, Tobacco and Firearms agents was so demon-

strably improper and outrageous that the prosecution could not

be permitted to stand as a matter of law. The District Judge

consistently denied their presentation. Petitioner Gjieli filed his

“Motion for Judgment Not Withstanding the Verdict or in the

Alternative for a New Trial” under Rule 33 of the Federal

Rules of Criminal Procedure on December 3, 1980, but the

docket does not reflect a disposition of this Motion, until

administratively closed on January 13, 1981.

For the purposes of a full statement of facts, Petitioner

adopts the Statement of Facts set out by Judge Kennedy in the

Opinion of the Court of Appeals. [App. la-5a; pp. 1-5 of Slip

Opinion]. The highlights of those facts are:

1] Petitioner is alleged to have sought to bribe a federal

Alcohol, Tobacco and Firearms agent to break co-

defendant, Zeff Lulgjuraj, out of state prison;

2] An Assistant United States Attorney prepared a simu-

lated writ of habeas corpus for the appearance of Zeff

Lulgjuraj before a non-existent grand jury investigation in

order to show Petitioner that the Alcohol, Tobacco and

Firearms agents could remove Zeff Lulgjuraj from custody.

3] This “ruse” was developed without the request or

knowledge of any defendant and was intended to stimulate

the defendants’ interest in pursuing a bribery plan.

4] The Assistant United States Attorney procured the

signature of a United States District Judge on the “writ”

without revealing its purpose or specious origin.

5] Zeff Lulgjuraj was removed from state custody by an

Alcohol, Tobacco and Firearms agent posing as a United

States Marshall. He was taken to a remote location where

he was interrogated and the agents suggested that his

release could be secured by bribery.

6] Tape recordings of all contacts between the agents and

the co-defendants were utilized at trial.

REASONS FOR GRANTING THE WRIT

This case presents two issues of continuing major signifi-

cance to the federal judiciary and the administration of criminal

justice. The narrower of the two issues requires construction of

the appropriate scope and reach of 18 USC 201(b)(3). The

broader issue questions the proper scope for exercise of the

federal court’s supervisory powers over law enforcement activi-

ty and thus requires an examination of the relationship between

the judiciary and the executive branch of the federal govern-

ment.

The Sixth Circuit Opinion and Order Condones Flagrant

Misconduct and Abuse of Office by an Assistant United

States Attorney.

The use of judicial supervisory powers to curb govern-

mental misconduct has frequently been before the Courts of

Appeal and before this court in recent cases. There are at

present no satisfactory guidelines by which the lower federal

courts, the United States attorneys or defense counsel may be

guided in assessing cases which come before them. The unique

facts of this case present a clear cut opportunity for this court to

establish workable and understandable rules for distinguishing

truly intolerable conduct from merely objectionable behavior

by law enforcement agents and government attorneys. Of

course, On more personal terms, the cc ‘rt should issue the writ

in order to reverse the convictions of ~. Gjieli and his two co-

defendants. These three men were convicted in the culmination

of the most egregious and cynical abuse of investigatory,

prosecutorial and judicial authority which this attorney has ever

witnessed or read about.

In Hampton v. United States, 425 U. S. 484 (1976) and

United States v. Russell, 411 U.S. 423 (1972) various members

of this court suggested that certain levels of outrageous or

overreaching behavior by law enforcement officials could result

in dismissal of otherwise valid criminal prosecutions. In

Russell, Justice Rehnquist, writing for the court, expressly

recognized this princip!c:

“While we may some day be presented with a situation in

which the conduct of law enforcement agents is so out-

rageous that due process >rinciples would absolutely bar

the government from invoking judicial processes to obtain

ot me cf. Rochin v. California, 342 U. S. 165

Justice Rehnquist subsequently recognized the continuing via-

bility of this principle in his plurality opinion in Hampton v.

United States, 425 U. S. 484, 490 (1976):

“The limitations of the Due Process Clause of the Fifth

Amendment come into play only when the Government

activity in question violates some protected right of the

Defendant...”

The Supreme Court was severely divided in its disposition of

Hampton’s argument that his conviction was barred as a matter

of law by the use of governmental informants to supply the

narcotics for the sales of which he was convicted. Three

opinions were published, demonstrating the Court to be divided

3-2-3 im its approach to the doctrinal principles underlying

Hampton’s claim, but 5-3 in its decision that Hampton's

conviction should be affirmed. In his concurring opinion Justice

Powell, speaking for two Justices, expressly disclaimed any

intention to delimit a due process based government

overinvolvement defense:

“Nor have we had occasion yet to confront Government

overinvolvement in areas outside the realm of contraband

offenses. Cf. United States v. Archer, 486 F.2d 670 (CA 2

1973). In these circumstances, I am unwilling to conclude

that an analysis other than one limited to predisposition

would never be appropriate under due process principles.”

Hampton, supra at 493.

Mr. Justice Brennan, in dissent for three justices, also

plainly recognized the continuing viability of a due process

based defense:

“In addition, I agree with Mr. Justice Powell that Russell

does not foreclose imposition of a bar to conviction—based

upon our supervisory power or due process principles

where the conduct of law enforcement authorities is suffi-

ciently offensive, even though the individuals entitled to

invoke such a defense might be ‘predisposed’.” Hampton,

supra at 497.

Hampton and Russell were construed by defense counsel to

indicate that over involvement by law enforcement personnel in

the development of criminal offenses could lead to dis-

missals—on grounds of “legal entrapment,” generalized due

process grounds or as a consequence of the judiciary’s rather

vague “supervisory powers.” Numerous narcotics cases are

prime examples. See e.g. United States v. Leja, 568 F. 2d 244

(6th Cir. 1977).

The ingenuity of law enforcement officials in developing

“sting” operations whereby criminal opportunism may be

uncovered and effectively prosecuted has produced a series of

appellate decisions which appear to settle on the subjective fact-

oriented definition of entrapment as a recognized legal defense.

See e.g., Sorreills v. United States, U. S. 287, 435 (1932);

Sherman v. United States, 356 U. S. 369 (1958). The

“ABSCAM” prosecutions are particular examples. [See e.g.,

United States v. Myers, 692 F. 2d 823 (2d Cir. 1982); United

States v. Janotti, 501 F. Supp. 1182 (E. D. Pa. 1980), rev'd,

673 F. 2d 578 (3d Cir) (en banc), cert. den. 102 S. Ct. 2906

(1982)]

This Court’s most recent opinions in this area direct

attention to the impact of the objected-to law enforcement

activity on identifiable protected individual rights. While it is

clear that the federal court’s general supervisory powers include

the authority to remedy and deter serious misconduct by the

government in the investigation and prosecution of a criminal

defendant, reversals of convictions are said to be approached

“with some caution.” United States v. Payner, 447 U. S. 727,

734 (1980). Further, in United States v. Hastings, ___ U. S.

—; 51 U. S. L. W. 4572 (U. S. 5/23/83), this court

suggested that supervisory powers ought to be directed toward

disciplinary measures, rather than reversals of convictions. It

appears that this Court’s view of harmless error in Hastings was

central to its disposition of the case:

“Supervisory power to reverse a conviction is not needed

as a remedy when the error to which it is addressed is

harmless since by definition, the conviction would have

obtained notwithstanding the asserted error.” Hastings,

cemmnes Wo Se OE ceeny DE Ue Be he We OE GSF4.

This apparent guideline was picked up by Judge Cornelia

Kennedy in this case [App. 19a; Slip Opinion, page 19]

Unfortunately [in the view of the Petitioner], she severely

misconstrued the facts of the case and thus avoided the most

significant issue presented. Frankly, her assertion that “None

of the governmental activity with respect to the writ of habeas

corpus incident violated any protected rights of the defend-

ants.” [ App. 21a; Slip Opinion at 21] is suspect. The execution

of a bogus writ of habeas corpus most clearly infringed on Zeff

Lulgjuraj’s residual liberty rights.

Hastings involved prosecutorial misconduct before the trier

of fact. This case does not. Here, the prosecutor involved

himself in the investigatory phase of this prosecution and

invoked both grand jury and judicial authority ( without author-

ity to do so) in order to advance the investigation of a perceived

bribery attempt. His misconduct is conceded. However, it

occurred outside the court room and, as a consequence, Hast-

ings does not seem directly applicable.

Dismissal of this prosecution and conviction is a drastic

remedy. Nevertheless, it is the only effective remedy whereby

the prosecution excesses may be curbed. The routine utilization

of writs ad testificandum requires that all parties be able to rely

on the regularity and propriety of the process. It is apparent

that the United States Attorney for the Eastern District of

Michigan regards the ficticious issuance of grand jury process to

be a valid investigatory device [Appendix page 38a]. In fact,

the inference may be taken that the Chief Judge of the district

has acquiesced in this co-mingling of judicial and enforcement

powers.

IL.

The Sixth Circuit Opinion and Order Expands Federal Crimi-

nal Jurisdiction Beyond the Intent of Congress and Beyond

Appropriate Federal Policy and Interest.

The construction of 18 U. S. C. 201(b)(3) presents a

straight forward issue. If the Sixth Circuit Opinion is permitted

to stand, bribery of any federal employee becomes a federal

crime—regardless of the focus of the bribe. This construction is

contrary to United States v. Birdsall, 233 U. S. 223 (1914)

which construed the predecessor statute to Section 201. Birdsall

clearly construed federal bribery legislation to address the

subversion of an official act, duty or function.

Petitioner relied more directly on Blunden v. United Sees

169 F. 2d 991 (6th Cir. 1948) for its holding that the Federal

Bribery Statute was not violated unless the focus of the bribe

was to influence a federal official in his official act or duty. The

alleged recipient of the bribe in the instant case had no official

authority or duty with respect to custody of state prisoners.

Petitioner finds support for his position in United States v.

Seagraves, 100 F. Supp 424 [D. C. Guam 1951] and Krog-

mann v. United States, 225 F. 2d 220 (Sth Cir. 1955).

The majority opinion in the Sixth Circuit notes there are no

Sixth Circuit or Supreme Court opinions addressing Section

201(b) since the 1962 amendments to the statute. Accordingly,

the Court concluded that it was not bound by either Blunden,

supra ot Birdsall, supra. \t therefore construed Section 201(b)

to broadly address attempted subversion of federal officials

regardless of the focus of the bribe. On the contrary, Judge

Lively’s dissent goes beyond the majority opinion to point out

that bribery cases consistently require that the bribe or offer be

in connection with the federal official’s line of duty [Appendix

page ] Schneider v. United States, 192 F. 2d 498 ( 9th Cir.

1951), cert. den., 343 U. S. 914 (1952).

The majority opinion effectively expands the scope of

Section 201(b) beyond any range of federal interest. The

defendants here were subject to prosecution under pertinent

state legislation. There being no federal function or duty

involved here, there appears to be no valid federal interest in

asserting jurisdiction. Further, there was no apparent congres-

sional intent to broaden this aspect of federal criminal jurisdic-

tion in the 1962 recodification of the bribery statute. The

limitations of the statute must be clarified.

CONCLUSION

The issue of the exercise of a federal court’s supervisory

powers to curb governmental misconduct and excess has pre-

viously been before this Court. The District and Circuit Court

orders show that more precise and directive guidance is re-

quired. Condonation of the behavior of the United States

Attorney’s office in this case will inevitably promote disrespect

for the administration of criminal justice. Further, it will

predictably encourage and generate future misconduct of the

type seen here. The Court of Appeals deference to “harmless

error” is dangerous and cynical. Only a strong and unmistak-

able sanction—reversal of this conviction—will deter repetition.

The construction of the Federal Bribery Statute is of broad

significance to future exercise of the federal criminal jurisdic-

tion. If permitted to stand, the Sixth Circuit construction

expands federal bribery legislation far beyond its historical

scope, and beyond any apparent intent of Congress.

Therefore, it is respectfully prayed that this Court grant a

writ of certiorari, reverse the conviction below and order the

prosecution dismissed.

Respectfully submitted,

WaRREN D. Bracy

1575 East Lafayette, Suite 201

Detroit, Michigan 48207

(313) 393-0047

Leste R. SEELIGSON

415 Detroit Street

Ann Arbor, Michigan 48104

(313) 995-1222

Attorneys for the Petitioner,

Gjergj Gjieli

APPENDIX

Nos. 81-1087, 1088, 1089

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unitep STATES OF AMERICA,

Pleintif-Appetiee,| . west from the

v. United States District

Gyency Gymu (81-1087), Court, for the Eastern

Nicxota Lutcyuray (81-1088), District of Michigan,

Zerr Luucjuraj (81-1089), Southern Division.

Defendants-Appellants.

Decided and Filed September 21, 1983

Before: Livery and Kennepy, Circuit Judges; and Wiznorr,°

District Judge.

Kennepr, Circuit Judge, delivered the opinion of the Court

in which Wuuorr, District Judge, joined. Livery, Circuit

Judge (pp. 23-32), filed a separate dissenting opinion.

Kennepy, Circuit Judge. Defendants Cjergj Gijieli, Nickola

Lulgjuraj and Zeff Luigjuraj appeal from their jury convictions

of bribery of a public official, 18 U.S.C. § 201(b)(3), and

* Honorable Henry R. Wilhoit, Jr., United States District Court

for the Eastern District of Kentucky, sitting by designation.

2 United States v. Gjieli, e: al. Nos. 81-1087- 1088-1080

conspiracy to bribe « public official, 18 U.S.C. §371. All

not warrant dismissal of the charges. We, therefore, affirm the

HoH

iat :

rtfieeea tl

; Ebegefileets

Ha Ht

Hil iiettel

HERE

Nos. 81-1087-1088-1088 United States v. Gjieli, et al. 3

theless suggested that Van Henge! might have contacts and

Police sergeant as well as an FBI agent? Van Hengel was

with a body recorder and a radio transmitter at this

line.” A test run was discussed, with Van Hengel sug-

gesting that would be “moved around a little bit to

2 The FBI subsequently declined an invitation to participate in the

3 In describing the “ruse” to the grand jury which indicted the de-

Nos. 81-1087-1088-1060

United States v. Gjieli, ct al.

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Nos. 81-1087-1088-1089 United States v. Gjieli, et al. 5

Nick to tell him to get in touch with Van Hengel either that

night or the next day.

Van Hengel received a telephone call from Nick Lulgjuraj

later on July 22 and returned the call the next day. After

talking with Nick, Van Hengel received a call from Giieli

who. said he was returning to Detroit on July 24. Late in the

afternoon of the 24th Van Hengel and another ATF agent

met Gjieli and Nick Lulgjuraj at a motel in Detroit and dis-

cussed the payment of $10,000 “front money.” The same

evening Gjieli and Nick delivered $10,000 in currency to the

agents. Both meetings were taped on hidden recorders. By

prearrangement Nick Lulgjuraj delivered $90,000 in currency

to Van Hengel at a motel room in Detroit on August 5. After

monitoring the meeting and determining that the delivery had

been made, Agent Covert entered the room and arrested Nick

Lulgjuraj. Gjieli was arrested the same day in New York.

On August 25, 1980, a federal grand jury in Detroit indicted

Gjergj Gjieli, Nick Lulgjuraj and Zeff Lulgjuraj of conspiracy

to bribe and bribery of a public official.*

Defendants assert that it is not a federal offense to offer

or to pay a bribe to an official of the United States for the

performance of an act which would violate state law but

which does not violate a statute of the United States and

not

of § 201(b)(3) cannot be satisfied.* We disagree.

6 United States v. Cjieli, et al. Nos. 81-1087-1088-1089

Statutory Requirements of

Section 201(b)(3) Violations

Title 18 U.S.C. § 201 provides in pertinent part:

or person who has been selected to be a public official

... with intent—

(1) to influence any official act; or

(3) to induce such public official . . . to do or

omit to do any action in violation of his lawful duty;

(e) .... Shall be fined . . . or imprisoned . . . or

both, and may be disqualified from holding any office

of honor, trust, or profit under the United States. (em-

phasis added )

The defendants in the present case were indicted and con-

victed of violating subsection (3) of § 201(b).

Three statutory elements must be satisfied to establish a

§ 201(b)(3) violation. First, the bribed individual must

Nos. §1-1087-1088-1089 United States vy. Gjieli, et al. 7

A. Public official requirement

The definitional section of the statute, § 201(a), states:

(a) eee hee

Fist:

itis

atl

fy (ae

lig

be eolhne wr a Slaaerng ce aaron =e

tlk

Ht abhi

8 United States v. Gjieli, et al. Nos. 81-1087-1088-1089

£595 6

ida.

Pte

I deg

or employee’ inserted in

Sieaid:

HALA

Hurley, 192 F.2d at 300.

Second, this reading of the statute 1s more consistent with

the legislative purpose of preventing the corruption of a

federal official. See Kemler v. United States, 133 F.2d 235,

Nos. 81-1087-1088-1088 United States v. Cjieli, et al. 9

238 (1st Cir. 1942). The potential for corruption occurs when

potential for corruption is limited to when they are acting

“for or on behalf of the United States . . . in any official

function.”

Third, this distinction is recognized in § 201(a)’s limited

legislative history:

government, jurors and other persons carrying on activi-

maa (emphasis

S. Rep. No. 2213, 87 Cong, 2d Sess. (1962) reprinted in

[1962] U.S. Code Cong, & Ad. News 3852, 3856.

Fourth, §201(b) clearly does not provide any limita-

tion of “official function” with respect to a “person who has

10a

10 United States v. Gjieli, et al. Nos. 81-1087-1088-1089

581 F.2d 649 (7th Cir.), cert. denied, 439 U.S. 1069 (1978)

(201(c)); United States v. Evans, 572 F.2d 455, 480 (Sth

Cir.), cert. denied, 439 U.S. 870 (1978) (201(c)); United

States v. Anderson, 509 F.2d 312, 332 (D.C. Cir. 1974),

cert. denied, 420 U.S. 991 (1975) (201(b)); United States

v. Hall, 245 F.2d 338; 339 (2d Cir. 1957); United States ~.

Troop, 235 F.2d 123, 124-25 (7th Cir. 1956) (201(b)); Wil-

son v. United States, 230 F.2d 521 (4th Cir.), cert. denied,

351 U.S. 931 (1956); Hurley, 192 F.2d at 299 (4th Cir.);

United States v. Lubomski, 277 F.Supp. 713 (N.D. Ill 1967).

The defendants contend that Blunden v. United States, 169

F.2d 991 (6th Cir. 1948), a case decided prior to the 1962

amendments to § 201, is dispositive of this issue. While

language in Blunden does in fact support the defendants’

contentions, we are not persuaded that such language con-

trols our construction of the present revision of § 201(b).

The 1948 revision of § 201(b) considered by the Blunden

court made no cle=r distinctions between the alternative ways

lia

Nos. 81-1087-1088-1088 United States v. Cjicli, et al. H-

official,” “person who has been selected to be a public official,”

and “official act” are clearly set forth in $201(a) as def-

nitional provisions. In addition, the operative provisions of

§ 201(b)(1), (2) and (3) are now clearly set forth as three

igi

E mE

l2a

12 United States v. Gjieli, ct al. Nos. 81-1087-1088-1089

to Flisek, knowing him to be an employee of the United States

of America, certain things of value with the intent to influence

his :

the authority and jurisdiction to act” in the sale of the motors

the statute was not violated, even though Flisek’s position

gave him the opportunity to ship government property il-

legally. The Blunden Court noted that defendants could

successfully have been charged under the same section — but

were not — with the intent to influence Flisek to commit a

fraud on the United States. ‘hat statement makes it clear

the Court was not relying on any failure to meet the public

official definition because of an “official function” limitation.

Such a limitation on the definition of public official would

have prevented prosecution for fraud as well.

issue of whether the federal emnployee involved was a “public

official” as now defined in §201(a). Indeed, such official

status appears to have been assumed. Rather, the Court dis-

missed the charges because the government failed to prove

the offense charged. Since the employee had not been bribed

to act on a matter within his official capacity, the defendants’

conviction for bribing a public official with intent to influence

an official decision could not stand.

The defendants in the present case were not indicted for

bribing a public official with intent “to influence an official

act” within the public official's official capacity. Instead, they

were indicted for bribery to induce a public official to violate

his lawful duties. There is <:mply no requirement here that

the act induced fall within the federal employee's official

function. Blunden does not hold otherwise.

Nor is Birdsall v. United States, 233 U.S. 223 (1914), also

decided before the 1962 amendments to § 21, contrary to our

construction of the present statute. Birdsall, like Blunden,

l3a

United States v. Gjieli, et al. 13

is also an “official act” case which would not now be brou

under § 201(b)(1).

Nos. 81-1087-1088-1089

ght

gifts

Department of Indian

In Birdsall, the Supreme Court addressed whether

made to and received by officers in the

Affairs, for the purpose of influencing reports and recommen-

dations to federal judges with regard to sentences of persons

convicted for violating the liquor laws, constituted bribery.

The then effective version of § 201, with respect to the ac-

ATG

heed iat

jedi lth

#5 aa Esags

get gia Sezgoge

Al Hhasly ail

mer teeth pe

i and edb

mee TTI

14a

14 United States v. Cjieli, ct al. Nos. 81-1087-1088-1080

Sas Tr aSeESTTHIATE CESTERET

AUTRE i at a

eI ay

Guta yep

al Be tae be sa geass?

bailing | iit i

if tt Hit HL Hal

. ; : af

i A 18 lei aaa

lSa

United States v. Gjieli, et al. 15

B. The requirement of a promise, gift or offer of something

Nos. 81-1087-1088-1089

of value to a public official

The indictment alleged that defendants gave $100,000 to

Van: Hengel. This second requirement is ciearly satisfied and

is not an issue in this case.

C. Intent to induce the public official to act in violation of

his lawful duty

The third requirement for a § 201(b)(3) violation is that

the briber have the intent to induce the public official to act

psi he pleads anthony, We dager

salinaitbebahie dhe tied iokimiane ieee ace

fendants had, unrler what would now be § 201(b)(1), cor-

satel b auktie ellie? te Oncatindensen ous anavd

the

Cir.

that

theft of

official’s authority

2d 220, 225 (6th

l6a

16 United States v. Gjieli, et cl. Nos. 81-1087-10868-1089

The Sixth Circuit retreated from any contrary implication

drawn from the holding of Blunden in a subsequent opinion

written by

sass

aie

HEHE

;

35%

p45

£3

nit

ait

int

auf

17a

Nos. 81-1087-1088-1089 United States v. Gjieli, et al.

annie] Seu

dealt ities

patti

He jan it ites

t tani aE fie

o7e F.2d 455, 80

(1978) (201(c));

2d 312, 332 (D.C. Cir.

1974), cert. denied, 420 U.S. 991 (1975) (201(b)); United

States v. Hall, 245 F.2d 338, 338-339 (2d Cir. 1957); United

States v. Troop, 235 F.2d 123, 124-25 (7th Cir. 1956) (201(b) );

Wilson v. United States, 230 F.2d 521 (4th Cir.), cert. denied,

‘2 Lawful duties: Van Hengel was given $100

defendants to effect the escape of Zeff Lulgjuraj

18a

18 United States v. Cjieli, et el. Nos. 81-1067-1088-1080

prison, an act that would constitute a violation of Mich.Comp.

In Birdsall v. United States, 233 US. 223 (1914), the

19a

Nos. 81-1087-1088-1089 United States v. Cjieli, et el. 19

332, 340 (1943), permits it to “formulate procedural rules

not specifically required by the Constitution or by Congress.”

United States v. Hastings, 51 U.S.L.W. 4572, 4574 (U.S. May

23, 1983), Slip Op. at 6. The exercise of such supervisory

powers serves three basic purposes. ,

[1] [T]o implement a remedy for violation of recog-

nized rights, McNabb, supra, 318 U.S. at 340; Rea

v. United States, 350 U.S. 214, 217 (1956);

[2] To preserve judicial integrity by ensuring that a

[3] And finally, as a remedy designed to deter illegal

Id. at 4574. Accordingly, the federal court’s supervisory

powers include the authority to remedy and deter serious

misconduct by the government in the investigation and prose-

cution of a criminal defendant.'® Reversals of convictions

under a court’s supervisory power, however, must be ap-

proached “with some caution.” United States v. Payner, 447

U.S. 727, 734 (1980).

In Hastings and Payner, the Court reviewed attempts by

lower courts to exclude evidence and reverse convictions using

supervisory powers. On both occasions the Court held that

the courts of appeals should not have reversed the conviction.

In Payner, key evidence against defendant was seized by the

government in an illegal search of a third person's briefcase.

'@The supervisory. powe-3 of a court are separate and distinct

rast cooepenve sunctions such en © perjury gresscution, sdministre-

tive discipline, contempt or a civil suit See v. Delaware, 438

a wee United States v. Cortina, 630 F.2d 1207, 1210 (7th

20a

20 United States v. Gjieli, et al. Nos. 81-1087-1088-1080

Government agents broke into a locked briefcase and stole

records. Defendant urged that although the illegal search

did not violate his personal fourth amendment rights, the

Federal District Court was required to exercise its supervisory

powers to suppress the evidence against him which was

tainted by the theft of the records in order to deter similar

misconduct in the future and prevent the judicial system from

where the illegal conduct did not violate the defendant's per-

sonal constitutional rights. Payner, 447 U.S. at 734-35 n. 7,

736 n. & See also, Id. at 737 n. 9. In Hastings, the Seventh

Circuit had held that the prosecutor violated defendants’ fifth

amendment right to remain silent when in summation he

commented on their failure to submit a defense. The Supreme

Court rejected the use of supervisory powers to set aside the

convictions (and remand for retrial). Reversal of otherwise

valid convictions, the Court reasoned, was an improper method

of punishing the prosecutor or deterring further misconduct.

The Hastings Court supplied guidelines for the future use

of supervisory powers to reverse a conviction.

power to reverse a conviction is not needed

is an inappropriate basis for reversal where, as here, the

2la

Nos. 81-1087-1088-1089 United States v. Gjieli, et al. 21

72.5.

22a

22 United States v. Gjieli, et al. Nos. 81-]087-1088-1089

involved in the improper removal of Zeff Lulgjuraj from a

prison.

The most serious misconduct here was that of the prosecu-

tor. The ATF agent who posed as a marshall was doing

Although we might well have imposed a harsher sanction we

do not believe the District Court abused its discretion."'

Accordingly, the judgments of conviction are affirmed.

portant that the court be to rely on their statements.

erate misrepresentations such as those made by the Assistant United

States Attorney the District Judge who issued the writ attack

' 23a

Nos. 81-1087-1088-1089 United States v. Gjieli, et al. 23

Livery, Circuit Judge, dissenting.

I respectfully dissent. As I view the case the question

There is no doubt that the defendants engaged in unlawful

activity. However, they were indicted and tried for the

specific offense of violating 18 U.S.C. § 201(b)(3) (1976).

Unlike the majority I see nothing in the language or history

of the federal bribery statute of which § 201(b)(3) is a part

to indicate that Congress ever intended to make it a federal

bri

found in § 201(b)(3). I am not convinced

g of the briber rather than the range

of official duties of the person bribed determines the appli-

24a

24 United States v. Cjieli, et al. Nos. 81-1087-1088-1080

tit

aay

utp

As codified in the Criminal Code of 1909 the bribery statute

was contained in sections 117 and 39 which are similar to

present-day 18 U.S.C. § 201(c)(1) and § 201(b) respectively.

In 1948 the bribery statute, along with all other criminal

laws, was placed in Title 18. From 1948 to 1962, 18 U.S.C.

§ 201 provided:

HRT

Hil

25a

Nos. 81-1087-1088-1089 United States v. Gjieli, et al. 25

the commission of any fraud, on the United States, or

to induce him to do or omit to do any act in violation

of his lawful duty, shall be fined not more than three

times the amount of such money or value of such thing

or imprisoned not more than three years, or both.

ee cast § 201 in its current form as part of

the Bribery, Graft and Conflicts of Interest Act. In the 1962

Act § 201(b) contains the same elements found in the 1878

statute and the 1909 and 1948 codifications, with only minor

changes. The legislative history of the 1962 Act reflects

primarily the concern of Congress with redefining conflicts

of interest of federal officials. However, the Senate Report

on the bill which became the 1962 Act, H.R. 8140, states the

purpose of that part of the Act dealing with bribery. After

discussing the conflicts of interest portions of the Act, the

report continues:

A secondary feature of the bill is the substitution of

a single comprehensive section of the Criminal Code

for a number of existing statutes concerned with bribery.

This consolidation would make no significant changes

of substance and, more particularly, would not restrict

the broad scope of the present bribery statutes as con-

strued by the courts.

S. Rep. No. 2213, 87th Cong., 2d Sess., reprinted in [1962]

U.S. Code Cong. & Ad. News 3852, 3853. In discussing § 201

in the section-by-section analysis the report summarizes § 201

(b) as follows:

Subsection (b) makes it unlawful for anyone to bribe

26a

Nos. 81-1087-1088-1080

26 United States v. Gjieli, et al.

ar anaes

i if

bbe

Hy EBs He

RARE ig HF il

SEH i A

reir aoe

| ale t in

ete et lie

27a

Nos. 81-1087-1088-1089 United States v. Cjieli, et al. 27

FE AG

ec taeqigtgs tea

i He A

qeh a ii

SH at

: fyhidiedivess |

ae bibs

Gun EAE <2)

a(t

AHH Ge

Section 117 of the Criminal Code (35 Stat. p. 1109),

with respect to the acceptance of bribes, provides that

28a

Nos. 81-1087-1085-1088

United States v. Gjieli, et al.

anus gana

iat ip: 4 it, UR aE %

Ss 2¢ uae Seek — sk a 351 sig ea 752

ai is ii tf FU dy i"

tet il ae fit} atin

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ites lo eAly ihn

ut figial iy " HAE et gai

HATLATH EE

29a

Nos. 81-1087-1088-1089 Uniied States v. Cjieli, et al. 2

This court dealt with 18 U.S.C. §201 under the 1948

Criminal Code in Blunden v. United States, 169 F.2d 991

(6th Cir. 1948). As has been pointed out, there is no ma-

terial difference between the final clause of § 201 (1948)

for in

and that the matter in which his decision is to be in-

fluenced be “before him in his official capacity.”

Id. (Emphasis in original). In a subsequent § 201 case this

court distinguished Blunden but did not depart in any respect

from its holding. See Krogmann v. United States, 255 F.2d

interpreting § 201. See, ¢.g., Hurley v. United States, 192

F.2d 297, 300 (4th Cir. 1951). See also Schneider v. United

States, 192 F.2d 498 (9th Cir. 1951), cert. denied, 343 U.S.

914 (1952), where the result would have been different if

30a

Nos. 81-1087-1088-1089

30 United States v. Cjieli, et al.

;

hig

iit

45°

ural

phillies

Butt

Hi HH

a gS TEES 3

Ty Ho

THING

TniHel

g as

: ee

if «3

azié

3la

Nos. 81-1087-1088-1089 United States v. Gjieli, et al. 31

or employee or person acting

individual bribed or attempted

an o

of the United States or a department or

that the bribe or the offer is in

his line of duty. The duties of him to

bri

is made or the

re: :

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INAH Tela

Binoy Ustlabain

ain “iHowd Way

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32a

Nos. 81-1087-1088- 1089

The decision to prosecute the defendants under the federal

bribery statute is puzzling in view of the fact that the Michi-

gan State Police were involved in the investigation from the

beginning. The endeavor to free Lulgjuraj would have vio-

lated Michigan la:v as set forth in M.C.L.A. § 750.183, “Aiding

enough. He was not paid to do or omit to do any act

32 United States v. Cjieli, e: al.

related to his official duties.

should have granted the defendants’

33a

IN THE UNITED States District Court

Eastern District of Michigan

Southern Division

UNITED STATES OF AMERICA,

Plaintiff,

v. Criminal No. 80-80529

GJERGJ GJIELI, NICKOLA

LULGJURAJ a/k/a NICK

LULGJURAJ, and ZEFF

LULGJURAJ,

Defendants.

Before The HONORABLE HORACE W. GILMORE

Detroit, Michigan—Friday, November 21, 1980

APPEARANCES:

Mr. John N. Thompson

Assistant U.S. Attorney

Mr. Richard Rossman

Chief Assistant U.S. Attorney

Appearing on Behalf of the United States

ALSO PRESENT:

Mr. James Covert

Special Agent—Alcohol, Tobacco & Firearms

Mr. Robert Van Hengel

Special Agent—Alcohol, Tobacco & Firearms

REPORTED BY:

ELIZABETH A. HIGDON

Official Court Reporter

34a

Detroit, Michigan

Friday, November 21, 1980

THE COURT: United States versus Gjieli, et al.

The jury returned a verdict of guilty as to all three

Defendants on two counts. The reason we are here today is

because—is for me to inquire about the writ of habeas corpus

which was obtained for Zeff Lulgjuraj from Judge Boyle on

July 21, 1980. The court in the case clearly shows, and the

testimony of Agent Covert shows that this was obtained as a

ruse and for the purpose of getting Zeff Lulgjuraj out of jail so it

could be shown to Zeff and to Nickola Lulgjuraj and Gjergj

Gijieli that they would be able to get him out of jail so they

could continue with the investigation of the bribe and con-

spiracy to bribe case.

Now the record should reflect that I have talked with

Judge Boyle, who issued the writ, and she knew nothing about

this. I think we better get the facts straight.

The writ was obtained on July 21, 1980, I have it here in

front of me, and a petition signed by John Thompson, which

says,

“Now comes the United States of America, by its At-

torneys, and respectfully states that Zeff Lulgjuraj, who is

now in the custody of the Warden, Sheriff or Jailor in the

State Prison of Southern Michigan, that said prisoner is a

witness in the prosecution of the above-entitled action,”

and the above-entitled action is In Re Grand Jury Investi-

gation, “which is set for proceedings in this Court and that

in order to obtain the attendance of said prisoner it is

necessary that a Writ of Habeas Corpus be issued com-

manding the appropriate custodian to produce said prison-

er in this Court, Federal Building and United States

Courthouse, 231 West Lafayette, Detroit, Michigan, Room

842, on Tuesday, July 22, 1980, ai one p.m.”

35a

That was presented to Judge Boyle of this Court on the

2\st of July and Judge Boyle issued the writ of habeas corpus.

Attached to the writ was a motion to seal by Mr. Thomp-

son, which says, “Now comes the United States of America and

moves this Court to seal all papers in connection with the

above-entitled matter, including the name of the witness, for

the reason that the investigation is of a sensitive nature and

disclosure could result in serious bodily harm,” and Judge

Boyle signed an order that the docket entries shall not disclose

the name of the person to whom the writ was issued, and that

the motion to seal was granted and the order was sealed until

the further order of the Court.

Now the testimony in this case showed that there was no

intention whatever on the part of the United States Attorney or

the investigating officers to bring Mr. Zeff Lulgjuraj back to this

Court for the purpose of testifying before the grand jury. The

testimony shows that this was a ruse. The testimony further

shows that the whole purpose was to get—to show that they

could get Zeff Lulgjuraj out of jail.

As I said, I have, since this came up, talked to Judge Boyle,

and Judge Boyle informs me that she knew, and I have also

learned by conversation with the Chief Assistant United States

Attorney, that she knew nothing about this, that she signed this

writ of habeas corpus in good faith, thinking that it was for the

purpose of bringing this Defendant back to testify before a

grand jury.

First, I want to ask for an explanation from the United

States Attorney's Office and from the Agents in Charge. By

what license do you mislead a United States District Judge to

obtain a writ of habeas corpus when you had no intention

whatever of doing what is said in the writ, and the second

question I have is if you were going to do this, why was not the

Judge advised of this so that the Judge could make the decision

whether to issue the writ or not for this purpose?

36a

MR. ROSSMAN: If it please the Court, if I may speak

first, for the record, I am Richard Rossman, currently the Chief

Assistant United States Attorney.

Your Honor, I did not personally learn of this matter until

after the writ was signed by Judge Boyle. As soon as I learned

of it, I directed that some action be taken to advise the Court of

that matter, and it’s my understanding that Sam Damren of our

office, who is sitting in the back of the courtroom at the present

time, was the Assistant Chief of the Criminal Division, and Mr.

Thompson's immediate supervisor, did speak with Judge Boyle,

but it would have been after the fact, to have her alerted to that

matter. I don’t believe that anyone if our office except for Mr.

Thompson had advance knowledge that there was going to be

an attempt to obtain such writ from the Court.

I have spoken to Mr. Thompson subsequent, your Honor.

I think it is perhaps best that he speak to the Court regarding

his dealings, although I would like to add one last thing. It

would be my understanding that unlike state practice, let’s say,

that the agents from ATF would really have had no responsi-

bility for this whatsoever, that they did not obtain or seek the

writ from Judge Boyle. I think that our office would take full

responsibility, and I really don’t feel that the agents should in

any way, from what I understand about procedures, be held

accountable for any inappropriate or more serious action that

the Court sees here.

THE COURT: Let me say—I want to hear from Mr.

Thompson—let me say that I am very surprised about this

because, as I have told you and Mr. Rossman, aad I will say on

the record, Mr. Thompson did an excellent job in the trial of

this lawsuit, an absolutely fine job as a lawyer. He was a good

advocate, he was well-prepared, he was prepared on the facts,

he was prepared on the law, he questioned witnesses well, he

was alert on objections, he did an excellent job in cross

examination and conducted himself as a top lawyer in the

prosecution of this case. Therefore, I am doubly amazed, Mr.

Thompson, that this happened. Would you like to explain it?

37a

MR. THOMPSON: Yes, your Honor.

Your Honor, during the course of this particular investiga-

tion, there had been discussions as to whether or not Mr. Zeff

Lulgjuraj could be removed from the prison. No details were

discussed for a couple of days. Basically what happened is

Agent Covert checked the records of the Bureau of Alcohol,

Tobacco and Firearms and learned that there had been an

arson investigation where Mr. Lulgjuraj, I believe it was his

restaurant a business place owned by him, and had suffered a

fire of rather suspicious origin and was believed to have been

an arson. I discussed this with Mr. Covert, and it was my

feeling that since the Bureau of Alcohol, Tobacco and Firearms

did have jurisdiction to investigate arsons, that this was a

matter that could properly be investigated.

Let me back up. It was my belief that under no circum-

stances would I make any attempt to obtain a writ unless there

was some valid—some basis upon which such a writ could have

been issued. When I learned that there was in fact an arson

investigation that had never been closed, at least not been

solved, I felt that this was a basis upon which a writ could

legally have been issued. By the time this—the matter reached

this point, it was approximately four-thirty, four thirty-five on

the afternoon of the 21st. It had been decided that the move

would be made on the 22nd. It was felt that the prison officials

on the one hand should not be notified because as the agents

testified during the trial, we were concerned about the grape-

vine.

The fact that Judge Boyle was not informed was totally

and completely my mistake, my error. It was, as I said, around

four-thirty, four forty-five in the afternoon. I rushed the writ

down to Judge Boyle, who was at that point in the process of

going back on the Bench. She had been in a recess. I had

notified her Clerk that I did have a matter that I needed signed

right away and that I would be down as soon as it was typed.

However, once it was typed and the proposed order to seal it,

" 38a

when I got down to her courtroom, to her chambers rather, she

was then about to go back onto the Bench. I simply left the writ

with the motion and a proposed order with the Judge’s

secretary and indicated that it was urgent and that we needed it

signed. I did not—simply my error. I was fully aware that I

should have advised the Judge. I will state that I have, on at

least one prior occasion, obtained a writ for a person who we

did not intend to bring before a grand jury. This was done

before Chief Judge Feikens. At that time it was not a rush

matter, I had plenty of time, and I did sit down with the Judge

and advise him of what in fact I was actually doing, at which

point the Judge did sign it.

I am fully aware that I should have advised Judge Boyle.

The only thing I can say is what I have said. I was rushing, it

was late. I did not do it that afternoon. Why I did not do it the

next day, I simply have no explanation for that. I understand

that it was a mistake on my part.

THE COURT: Well, I think it was more than a mistake. I

think the writ of habeas corpus is certainly, to bring a prisoner

to testify, one of the most sacred writs any court can issue, and

courts will issue them when there is reason. As I say, I am very

surprised you did that and did not advise her, because my

observation of your work has been that you do an excellent job.

I think it was totally wrong and I want to reprimand you for

doing it.

Now Mr. Rossman says that the agents had nothing to do

with this, they assume full responsibility. I want to also say that

I, as far as I am concerned, I don’t want to ever see something

like this again in this Court. Of course, this wasn’t in this Court,

but if at any time you need a writ for whatever purpose, there

will have to be an absolutely full disclosure with me, because if

it happens before me in the future, there are going to be serious

consequences.

MR. ROSSMAN: I can assure the Court in that regard,

and let me say also for the record, and in support of Mr.

Thompson, that I believe, your Honor, that this was a rare lapse

of judgment by Mr. Thompson.

39a

THE COURT: I hope that is the case because I have had

great respect for Mr. Thompson as a result of seeing him

firsthand the last three weeks, and I hope it’s a rare lapse, and I

hope it never happens again.

MR. THOMPSON: I can assure you it will not, your

Honor.

THE COURT: Now as I told you, I talked to Judge Boyle,

I told Judge Boyle I was having all of you here, and that I was

going to raise this matter in open court. Shesasked that when I

was finished, that the two agents and Mr. Thompson come to

her courtroom, so I will ask you to go down to Judge Boyle’s

now.

( Proceedings concluded )

CERTIFICATE

I, Elizabeth A. Higdon, do hereby certify that I reported

stenographically the proceedings had in the above-entitled

cause before the Honorable Horace W. Gilmore, United States

District Judge, at the time and place hereinbefore set forth; that

the same was thereafter reduced to typewritten form under my

supervision; and I do further certify that the foregoing tran-

script is a full, true and correct transcript of my stenographic

notes.

ELIZABETH A. HIGDON

Elizabeth A. Higdon

Official Court Reporter

40a

No. 81-1087

UNTTED STATES COURT OF APPEALS

For the Sixth Circuit

United States of America,

Plaintiff-Appellee,

v. ORDER

Gjergj Gijieli,

Defendant-Appellant

Before: LIVELY, Chief Circuit Judge; KENNEDY, Cir-

cuit Judge; and WILHOIT,* District Judge.

_ The Court not having favored rehearing en banc in this

case, the petition for rehearing in the matter of Gjergj Gjieli is

referred to our panel for disposition.

Upon consideration, IT IS ORDERED that the petition for

rehearing be and hereby is DENIED.

ENTERED BY ORDER OF THE

COURT

/s/ JOHN P. HEHMAN

John P. Hehman

Clerk

* Honorable Henry R. Wilhoit, Jr., United States District Court

for the Eastern District of Kentucky, sitting by designation.

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