# Petition — GJIELI v. UNITED STATES (Nos. 83-1046, 83-6087) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0993%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text 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 i 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 L 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 10 12 33a iv 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 10 6, 7,8 10 ll 10 v 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 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. => 2 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.” 3 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 4 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 5 “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. 6 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. L 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 9 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 10 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 ll 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. 12 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 la 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. 2a 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 | | | : 3a 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 i a iu iu =f Bi | go 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. 4 sapien Tipe lige i: Hanannll TES Batak + Ed Te er Ey pte he Hlnaeeial j 3 fajas 2f 2433 rt =2 “i F iH “spe at a's 3 gas i " HHH AHR Hae at ie i E . F e ra 5 g hi ‘ tt nin Tene i wT WHE: Ca Gebials lp Sa 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. 6a 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 7a 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 hd lig be eolhne wr a Slaaerng ce aaron =e tlk Ht abhi 8a 8 United States v. Gjieli, et al. Nos. 81-1087-1088-1089 5' it i: a 1 £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, 9a 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 | tt 7 igi ij 1 + it Hi HE t; : | : E mE h i i E 5 g nn i 4 EZ Ss : 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 od 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 to 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% a p45 £3 nit ty ae Ae if ait int auf 17 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 i tit aay ee ya ES utp £ >t ft g 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 i: 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 he Bae 1H el ecg ERLE i: 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. ; g hig Hi 3 il iit 45° ural phillies Butt Hi HH a gS TEES 3 Ty Ho THING TniHel g as : ee if «3 azié 43 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 t re: : | Bre eel “ai; itty tea INAH Tela Binoy Ustlabain ain “iHowd Way BSE lt Hat Stee RAE ried’ sea oes Fe 3] . ! idaddyst 2; lh Hi ike 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. hy é 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0993%3A1. Public record. Not legal advice.