Petition for Writ of Certiorari — Pennell v. United States

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84 . es 26 /\ ee eo US.

No.

SEP 29 (994

IN THE MINCE “gi

SUPREME COURT

OF THE UNITED STATES

October Term 1984

GORDON PENNELL,

Petitioner,

VS.

THE UNITED STATES OF

AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WEITZMAN AND RE’

HOWARD L. WEITZMAN

DONALD M. RE” ~*

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

(213) 277-8366

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Whether the strong presumption of

prejudice from third party contacts

with jurors in a criminal case re-

quired by Remmer v. United States,

347 U.S. 227, 74 &.Ct. 450, 98 L.Ed.

654 (1959) has been nullified by the

decision in Smith v. Phillips, 455

U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d

78 (1982)?

Whether federal district courts have

the jurisdiction to immunize necessary

defense witnesses who are unavailable

as the result of an assertion of a

fifth amendment self-incrimination

claim, particularly, when the kev

prosecution witness has been immunized?

Whether, and under what circumstances

does the defense of impossibility

exist in prosecutions under the attempt

provisions of Title 21, United States

Code, Section 846?

il.

TOPICAL INDEX

Page

Questions Presented for Review i

Table of Authorities Vv

PETITION FOR WRIT OF CERTIORARI 1

OPINION BELOW 2

JURISDICTION 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 5

REASONS FOR GRANTING THE WRIT 12

I THE SIXTH CIRCUIT OPINION, WHICH

COUNTENANCED THREATS MADE TO THE

JURORS IN THIS CASE, DISREGARDED

THE~ORINION OF THIS COURT IN

REMMER V. UNITED STATES, 347

U.S. 227, 74 S.Ct. 450, 98 L.Ed.

654 (1954), IGNORED DIRECTLY

APPLICABLE PRECEDENT IN ITS OWN

CIRCUIT, AND CONFLICTS WITH THE

OPINION OF VIRTUALLY EVERY CIR-

CUIT TO HAVE CONSIDERED THE

APPROPRIATE PROCEDURES TO BE USED

ON A TAMPERED JURY IN A CRIMINAL

CASE 12

111.

II THE QUESTION OF THE AUTHORITY OF

FEDERAL DISTRICT COURTS TO IM-

MUNIZE POTENTIAL DEFENSE WIT-

NESSES HAS SPLIT THE CIRCUITS,

AND PANELS WITHIN VARIOUS CIR-

CUITS, THEREBY CREATING SUBSTAN-

TIALLY DISPARATE TREATMENT OF

THE FIFTH AND SIXTH AMENDMENT

RIGHTS OF CRIMINAL DEFENDANTS 21

III THE PROPRIETY OF A CONVICTION FOR

ATTEMPT TO POSSESS WITH INTENT TO

DISTRIBUTE A CONTROLLED SUBSTANCE

UNDER 21] U.S.C. SEC. 846 HAS BEEN

THE SUBJECT OF DISSENSION IN THE

VARIOUS CIRCUITS, AND THREATENS

THE LEGITIMACY OF THE PRESENT FED-

ERAL POLICY CONCERNING “REVERSE

STING" OPERATIONS 28

CONCLUSION 38

APPENDICES

(Under separate cover)

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TABLE OF AUTHORITIES

Cases Page

Autry v. McKaskle,

U.S. » 104 S.Ct. 1458

(1984) 27

Earl v. United States,

361 F.2d 531 (D.C. Cir. 1966) 23

Government of the Virgin Islands

v. Smith,

615 F.2d 964 (3d Cir. 1980) 22, 26

Krause v. Rhodes,

570 F.2d 563 (6th Cir. 1977)

cert. den., 435 U.S. 924, 98

S.Ct. 1488, 55 L.Ed.2d 517 (1978) 18

Owen v. Duckworth,

727 F.2d 643 (7th Cir. 1984) 17, 18

Polizzi v. United States,

550 F.2a€ 1133 (9th Cir. 1976) 17

Remmer v. United States,

347 U.S. 227, 74 S.Ct. 450, passim

98 L.Ed. 654 (1959) 12, 13, 14,

15, 16, 20

Rusher v. Spain,

U.S. » 104 §.Ct. 453

(1983) 19

Simpson v. United States,

435 U.S. 6, 98 S.Ct. 909,

55 L.Ed.2d 70 (1978) 33

Smith v. Phillips,

455 U.S. 209, 102 S.Ct. 940, passim

71 L.Ed.2d 78 (1982) 43, 14, 15

16, 18

Stone v. United States,

113 F.2d 70 (6th Cir. 1940) 18

United States v. Allstate Mortgage

Corporation,

507 F.2d 492 (7th Cir. 1974)

cert. den., 421 U.S. 999, 95

S.Ct. 2396, 44 L.Ed.2d 666

(1975) 22, 24

United States v. Berrigan,

462 F.2€ i771 (34 Cie. 1973) 35, 36, 37

United States v. Bounos,

693 F.2d 38 (7th Cir. 1982) Za, @28

United States v. Bowe,

698 F.2d 560 (2d Cir. 19383) 22

United states v. Brown,

571 F.2d 980 (6th Cir. 1978) 12

United States v. Brutzman,

711 F.2d 1449 (9th Cir. 1984) 22, 24

United States v. Bufalino,

576 F.2d 446 (2d Cir.) cert.

den., 439 U.S. 928, 99 S.Ct.

314, 58 L.Ed.2d 321 (1978) 17

United States v. Burns,

684 F.2d 1066 (2d Cir. 1982) 23

Vi.

ea)

e<).

ae a

Cnt

Sate par nee a 2 ee

ean

orks Nears elcid 2 SUNS Bela ad poke! nota hee

United States v. Buscia,

573 F.2d 827 (3d Cir.) cert.

den., 435 U.S. 911, 98 S.Ct.

2248, 56 L.Ed.2d 411 (1978) 17

United States v. Calvente,

722 F.2d 1019 (2d Cir. 1983) 23

United States v. Chagra,

669 F.2d 241 (5th Cir. 1982) 23

United States v. Everett,

700 F.2d 900 (ed Cir. 1983) 29, 30, 31

a he 245 oo

United States v. Flaherty,

668 F.2d 566 (lst Cir. 1981) 16, 17

United States v. Forrest,

620 F.2d 446 (5th Cir. 1980) 17

United States v. Gottesman,

724 F.2d 1517 (llth Cir. 1984) 23

United States v. Greer,

620 F.2d 1383 (10th Cir. 1980) 17

United States v. Hardrich,

707 F.2d 992 (8th Cir. 1983) 24

United States v. Heffington,

682 F.2d 1075 (5th Cir. 1982)

cert. den., sub nom. Giella v.

United States, U.S. P

103 S.ct. 734 (1983) ae 23

United States v. Herbst,

641 F.2d 1161 (5th Cir. 1981)

cert. den., 454 U.S. 841, 102

Soaee eee, (0 L.84. 141 (1981) 23

wih.

United States v. Herman,

539 F.2d 1191 (3d Cir.)

cert. den., 441 U.S. 913, 99

S.ct. 2014, 60 L.Ed.2d 386

(1978) 22,

United States v. Jackson,

560 F.2d 112 (2d Cir.)

cert. den., 434 U.S. 941,

$.Ce. ’ L.Ed.2d

(1977) rl 30,

United States. v. Jones,

597 F.2d 485 (5th Cir. 1979)

cert. den., 444 U.S. 1043, 100

S.Ct. 729, 62 L.Ed.2d 728 (1980)

United States v. Klauber,

611 F.2d 512 (4th Cir. 1979)

cert. den., 446 U.S. 908, 100

S.Ct. 5935, 64 4.84.24 261 (1960)

United States v. Lord,

7il F.24 O67 (3th Cir. 1983) a2.

United States v. Oviedo,

$25 F.2@ 661 (Sth Cir. i976) 34,

36,

United States v. Pennell,

437 *.24@ 522 (6th Cir. 1984) 2, 3s

22,

United States v. Reynolds,

489 F.2d 4 (6th Cir. 1973)

cert. denied, 416 U.S. 980, 94

S.Ct. 2395, 40 L.Ed.2d 766 (1974)

WARS a

United States v. Rivera-Sola,

713 F.2d 866 (lst Cir. 1983) 30

United States v. Heng Awkak Roman,

356 F.Supp. 434 (S.D.N.Y. 1973)

aff'd, 484 F.2d 1271 (2d Cir.

1973) 36, 37

United States v. Russell,

eae oe, 623, 93 8.Ct. 1637,

36 L.Ed.2d 366 (1973) 8

United States v. Taylor,

562 F.2d 1345 (2d Cir.)

cert. den., 432 U.S. 909, 97

S.Ct. 2958, 53 L.Ed.2d 1083

(1977) Ris 2S

United States v. Thevis,

665 F.2d 616 (5th Cir.) cert.

Gen., S32 U.S. 825, 103 §.Ct.

57 (1982) 23

United States v. Treatman,

524 F.2d 320 (8th Cir. 1975) ats SS

Constitution

United States Constitution,

Fifth Amendment passim

as Be @he 2ee ao

Sixth Amendment as Gan 20s 22

ht ANDI.

Aad Se Mle a he AB ps

Title 21, United States Code,

Section 841 | 30

Section 84l(a)(1) 4, 29

Section 846 passim

4, 7, 28, 29, 30, 32

Title 28, United States Code,

Section 1254(1) 3

Miscellaneous

H.R. 17463, 91st Cong., 2d Sess.

Section 504 (1970) 32

H.R. 18583, 91st Cong., 2d Sess.

Tit. I (1970) 32, 33

S. 3246, 9lst Cong., 2d Sess.

Section 504 (1970) 32

Pub. L. 91-513, Title II,

Section 406, Oct. 27, 1970,

84 Stat. 1265 4

I Working Papers of the National

Commission on Reform of the

Federal Criminal Laws,

360 (1970) 31

Final Report of National Commission

on Reform of the Federal Criminal Laws,

Section 100(1) (1971) 31

34 Vand.L.Rev. 1665 (1981)

Note, Witness for the Defense:

a Right to Immunity

91 Harv.L.Rev. 1266 (1978)

Note, The Right to Have Use

Immunity Granted to Defense

Witnesses

xi.

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

GORDON PENNELL, Petitioner

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT:

This is a Petition for Writ of Certior-

ari brought by Gordon Pennell, seeking a

review of the judgment of the United States

Court of Appeals for the Sixth Circuit in

this case.

NEI BEE, CLIO AWS AS DAS Vs Ow

Ne Re Orne BE S|

This Petition raises several issues

which present conflicts among the circuits,

and in particular raises a disturbing ques-

tion concerning the affirmance of a con-

viction after several members of a jury

had been blatantly tampered with, and

threatened should they not return a ver-

dict of guilty. The court below, abandon-

ing all prior precedent, affirmed the

district court's determination of no

prejudice, although that district court

determination is at variance with the law

of the Sixth Circuit, virtually every

circuit to have considered the issue, and

the decisions of this court.

OPINION BELOW

The Opinion of the Court of Appeals

for the Sixth Circuit is reported at United

States v. Pennell, 737 F.2d 521 (6th Cir.

1984). (App. A).

JURISDICTION

The judgment of the Court of Appeals

was entered on June 8, 1984. Rehearing

and rehearing en banc were denied July 3l,

1984. (App. B). The jurisdiction of this

court is invoked under 28 U.S.C. Sec.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United

States Constitution provides in part:

--.- nor shall any person ... be

deprived of life, liberty, or

property without due process of

law."

The Sixth Amendment to the United

States Constitution provides in part:

"In all criminal prosecutions,

the accused shall enjoy the

cectereess

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PrP Ty Ore eee.

Per a ny a

right ... to have compulsory

process for obtaining witnesses

in his favor, and to have the

Assistance of Counsel for his

defense.

Title 21, United States Code, Section

841(a)(1) provides:

(a) Except as authorized by

this subchapter, it shall be un-

lawful for any person knowingly

or intentionally--

(1) to manufacture, dis-

tribute, or dispense, or

possess with intent to manu-

facture, distribute, or dis-

pense, a controlled substance;

Title 21, United States Code, Section

846 provides:

§ 846. Attempt and conspiracy

Any person who attempts or

conspires to commit any offense

defined in this subchapter is

punishable by imprisonment or

fine or both which may not ex-

ceed the maximum punishment pre-

scribed for the offense, the

commission Of which was the

object of the attempt or con-

spiracy.

Oct. 27, 1970, 84 Stat. 1265.)

STATEMENT OF THE CASE

THE STING

Petitioner, Gordon Pennell, a florist

in Lavonia, Michigan, reported to his

local police, the Lavonia Police Depart-

ment, in July, 1980, that he suspected

drug activity was occurring at his floral

shop, and offered to cooperate with the

authorities to cradicate the problem.

Through a series of bizarre twists, this

act of public awareness led to the peti-

tioner being ensnared by an insidious

Government "reverse sting" operation.

Pennell, in July, 1980, was referred

by the local authorities to Drug Enforce-

ment Administration Agent Frank Catalogna.

Through mid-August, 1980, Pennell relayed

information concerning suspected narcotics

trafficking to the authorities.

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In early October, 1980, petitioner's

life was threatened as a result of the

information he had conveyed to the Lavonia

Police Department and the D.E.A. Pennell

accused the agencies of having leaked the

fact of his cooperation to associates of

the drug dealers on whom he had informed.

In March, 1981, Agent Catalogna, who

claimed suspicion of Pennell's motives,

was informed by a confidential informant

that Pennell was desirous of purchasing a

quantity of cocaine. With the consent of

the Michigan agents, the informant provided

Pennell with the name and telephone number

of an undercover Florida D.E.A. agent

posing as a major drug supplier.

Pennell, on April 2], 1981, contacted

the undercover agent and discussed a drug

deal. Shortly thereafter Pennell informed

Agent Catalogna of the contact and that he

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had located a major cocaine supplier.

Agent Catalogna lied that he was about

to go on vacation and told Pe:inell they

would speak in a week.

The undercover agent completed negotia-

tions with Pennell and ultimately supplied

a quantity of bogus cocaine. Pennell was

arrested and charged with conspiring to

possess and distribute cocaine (21 U.S.C.

Sec. 846), attempt to possess and distrib-

ute cocaine (21 U.S.C. Sec. 846) and vari-

ous substantive counts.

TRIAL

Petitioner's first trial ended in a

mistrial, when a juror improperly received

prejudicial information concerning the

case from a third party. Petitioner's

second trial should have met a similar

fate, but did not.

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The primary witness at both trials was

the confidential informant whose testimony

was obtained under a grant of statutory

immunity. According to the informant,

Pennell initiated the contact regarding

the cocaine transaction, a fact which if

believed, would demonstrate pre-disposi-

tion and negate the entrapment defense.

United States v. Russell, 411 U.S. 423,

93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Pennell, in an effort to rebut this

evidence, and to establish that the initial

contacts between Pennell and the informant

were unrelated to narcotics, attempted to

introduce the testimony of Charles Massad,

a drug dealer who had been associated with

the informant .2/

~ An offer of proof was made to the district

court, which is summarized as follows: Mr.

Massad was involved with the informant dur-

ing the entire relevant period and could

(cont. )

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Massad, when called by Pennell, as-

serted his fifth amendment right against

self incrimination, and refused to testify.

Pennell sought an order of immunity for

Massad, which was refused. As a result,

the testimony was not presented to the

jury.

DELIBERATIONS

In the very early hours of a Sunday

morning, during a break in the jury delib-

erations in this case, five jurors were

1/ (cont.)

testify that the informant was dealing in

large quantities of cocaine from a number

of suppliers during the period of his co-

operation with the D.E.A. The informant

was also using large amounts of cocaine

for personal consumption. Mr. Massad would

testify that the informant approached

petitioner to request petitioner's assist-

ance in straightening out certain financial

obligations. Mr. Massad could testify that,

to his knowledge, petitioner's only asso-

Ciation with the informant was to resolve

financial obligations and that he never

observed petitioner become involved in any

narcotics transactions with the informant.

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contacted and told, in essence, that they

must return a verdict of guilty or they

would be “sorry.” The next morning, the

five jurors who had been contacted noti-

fied the court of the incident, and dis-

cussed the telephone calls with other

members of the jury. The foreman, in a

note to the court, asked whether the jury

was expected to continue its deliberations,

clearly evidencing the concern of all

jurors with further deliberation.

The court examined each of the five

jurors individually. Although none indi-

cated an inability to continue delibera-

tions, two indicated that a juror who had

not been contacted had expressed a concern

that she might not be able to continue.

This juror, a Ms. Saveski, stated to the

court directly, however, that she could

continue.

10.

After the jury returned to delibera-

tions, a subsequent note indicated that

still another juror had expressed an in-

ability to continue in light of the

threatening phone calls. This juror, Ms.

Lorenz, stated she was "nervous" and

offered to continue deliberation "with

some assurance that nothing would happen.”

Ms. Lorenz was sent back to deliberations,

although obviously no ‘aah assurances

were given.

Later the same day’, the court received

an additional communication indicating that

the jury was still concerned about the

phone calls and was having difficulty in

deliberations. Various defense motions for

mistrial and a motion for new trial on

this ground were denied.

REASONS FOR GRANTING THE WRIT

THE SIXTH CIRCUIT OPINION, WHICH

COUNTENANCED THREATS MADE TO THE

JURORS IN THIS CASE, DISREGARDED

THE OPINION OF THIS COURT IN

REMMMER V. UNITED STATES, 347

U.S. 227, 74 S.Ct. 450, 98 L.Ed.

654 (1954), IGNORED DIRECTLY

APPLICABLE PRECEDENT IN ITS OWN

CIRCUIT, AND CONFLICTS WITH THE

OPINION OF VIRTUALLY EVERY CIR-

CUIT TO HAVE CONSIDERED THE

APPROPRIATE PROCEDURES TO BE USED

ON A TAMPERED JURY IN A CRIMINAL

CASE.

The jury2/

anonymously, during deliberations to return

a verdict of guilty. This blatant, preju-

dicial tampering admittedly intimidated

~ As indicated above, five jurors' houses

were contacted directly. All jurors were

aware of the calls.

~ §uch contacts are recognized as threats,

United States v. Brown, 571 F.2d 980, 987

(6th Cir. 1978).

12.

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several jurors, but was countenanced by

the trial court and the court of appeals.

In affirming the conviction over a

strong dissent by Judge Celebrezze, the

court below disregarded the pronouncements

of this court in Remmer v. United States,

supra, ignored directly applicable prece-

dent in its own circuit, and rendered an

Opinion which is in direct conflict with

virtually every federal circuit to con-

Sider the issue.

The reported opinion of the Sixth Cir-

Cuit stands, furthermore, as a blatant

misinterpretation of this court's opinion

in Smith v. Phillips, 455 U.S. 209, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982), a case

Which, itself, was met with a thoughtful

dissent by three justices (Justices Marshall,

Brennan, and Stevens) and a limited concur-

rence by a fourth (Justice O'Connor).

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Properly considered, Remmer governs

this case. The majority opinion below

acknowledged that “were Remmer. . . con-

trolling, we would be hard pressed to

affirm Pennell's conviction." 737 F.2d at

532. Remmer requires not only that a hear-

ing be held in appropriate cases of jury

tampering or misconduct, but that a strong

presumption of prejudice be applied at

such a hearing. In this case, “there is

no evidence in the record to suggest that

the trial court applied [such a] presump-

tion." 737 F.2d 538, 540 (Celebrezze, J.

dissenting).

The majority disregarded the mandate

of Remmer through a tortured and illogical

application of Phillips. For, while Phillips

found no presumption of prejudice to exist

on the facts before it, the Sixth Circuit

opinion concluded in direct conflict with

14.

————————————EE OOO

Remmer, that Phillips held that a presump-

tion of prejudice was not to be applied

at all.

Specifically, the majority below con-

cluded that Phillips held that Remmer "does

not govern the question of burden of proof

where potential jury partiality is alleged,"

737 F.2d 532. It found further that while

"Remmer placed a heavy burden of proof

upon the government. . . Phillips worked

a substantial change in the law" by trans-

ferring that burden to the defendant. Ibid.

n.10.-Phillips, of course, did nothing of

the sort. Phillips simply found no irre-

butable presumption applicable, and left

undisturbed the heavy presumption of

prejudice to be overcome by the government.

While the ultimate burden of proof still

rests with the defendant, he is assisted,

under both Remmer and Phillips, by the

15.

presumption. Contrary to the conclusion

below that “prejudice is not to be pre-

sumed," the presumption is a vital and

integral part of a Remmer-Phillips hearing.

Nothing in the majority, concurring

Or dissenting opinions in Phillips sup-

ports the Sixth Circuit interpretation of

that case. Phillips, in fact, relied

heavily on Remmer, the very case which

the court below found to be overruled by

Phillips.

Virtually every circuit to have con-

sidered the issue is in conflict with the

decision of the Sixth Circuit in this case.

Each such circuit has found that a presump-

tion of prejudice exists in any irregular

contact with the jurors, and that a heavy

burden is imposed on the prosecution to

show that there is no prejudice. United

States v. Flaherty, 668 F.2d 566, 601-02

16.

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————————O Ss ——

(lst Cir. 1981); United States v. Bufalino,

576 F.2d 446 (2nd Cir.) cert. den., 439

U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321

(1978); United States v. Taylor, 562 F.2d

1345, 1365 (2nd Cir.) cert. den., 432 U.S.

909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977);

United States v. Buscia, 573 F.2d 827 (3d

Cir.) cert. den., 435 U.S. 911, 98 S.Ct.

2248, 56 L.Ed.2d 411 (1978); United States,

v. Forrest, 620 F.2d 446 (5th Cir. 1980);

United States v. Jones, 597 F.2d 485 (5th

Cir. 1979), cert. den., 444 U.S. 1043,

100 S.Ct. 729, 62 L.Ed.2d 728 (1980);

Owen v. Duckworth, 727 F.2d 643, 646 (7th

Cir. 1984); United States v. Treatman, 524

F.2@ 320, 323 (Sty) Cir. 1975); Polizzi v.

United States, 550 F.2d 1133, 1138 (9th

Cir. 1976); United States v. Greer, 620

F.2d 1383, 1385 (10th Cir. 1980).

17.

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Indeed, the court below recognized

that its decision was contrary to the

strict standard of presumptive prejudice

applied even in the Sixth Circuit. 737

F.2d 521, 531. See Krause v. Rhodes, 570

P.246 563 (6th Cic. i977), Cert. Gen., $35

U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 517

(1978); United States v. Reynolds, 489

F.2d 4, 8 (6th Cir. 1973), cert. den.,

416 U.S. 989, 94 S.Ct. 2395, 40 L.Ed.2d

766 (1974); Stone v. United States, 113

P.24 70 (6th Cir. 1940).

Several of the cases cited above were

acecided after this court's decision in

Phillips, notably Owen v. Duckworth, supra,

a post-Phillips case which specifically

discusses the Phillips rationale, and yet,

in contrast to the decision below, finds

that the prosecution bears a heavy burden

to dispel the presumption of prejudice

18.

from an unwarranted jury contact.-

This Court has recently had occasion

to decide, in summary fashion, and not

without dissention, a limited aspect of

this issue. Several courts had recognized

that an ex parte communication between the

judge and the jury was presumptively pre-

judicial. See United Sttes v. Taylor,

supra, United States v. Treatman, supra.

In Rushen v. Spain, U.S. » 104 S.Ct.

453 (1983), the court, in a per curiam

summary reversal of the affirmance of the

granting of a habeas corpus petition, con-

cluded that such ex parte contacts were

not necessarily prejudicial. While the

summary nature of the disposition disturbed

several justices, a review of the concurring

and dissenting opinions indicates the con-

trary streams of thought with regard to

Id. at 646.

19.

the jury contact issue. The existence of

the reported decision below serves to

further confuse this area.

In view of the threatening nature of

the anonymous calls, and the obvious con-

cerns of the jurors, the jurors‘' volun-

teered statements of concern, and the

highly equivocal response of some of the

jurors on the issue of their impartiality,

the proper application of the strong pre-

sumption mandated by Remmer would have

been decisive - a fact acknowledged by

the court below.

This case, therefore, is an appropriate

one to resolve the present conflict among

the circuits concerning the applicability

of a presumption of prejudice to jury

tampering hearings. The issue itself is

clearly an important one which goes to

the heart of the Constitution's guarantee

20.

of a fair trial, and the accuracy of the

fact-finding purpose of such a trial.

THE QUESTION OF THE AUTHORITY OF

FEDERAL DISTRICT COURTS TO IM-

MUNIZE POTENTIAL DEFENSE WIT-

NESSES HAS SPLIT THE CIRCUITS,

AND PANELS WITHIN VARIOUS CIR-

CUITS, THEREBY CREATING SUBSTAN-

TIALLY DISPARATE TREATMENT OF

THE FIFTH AND SIXTH AMENDMENT

RIGHTS OF CRIMINAL DEFENDANTS.

Although the Government immunized its

key witness against the petitioner to

obtain his testimony, Pennell was preclud-

ed from rebutting this testimony because

a proposed defense witness asserted his

Fifth amendment claim against self-incrim-

ination. The trial court refused to grant

immunity to petitioner's witness, although

a detailed offer of proof regarding this

testimony was made. The court below

21.

specifically held that federal courts do

not “have inherent power to immunize wit-

nesses." 737 F.2d at 527.

This issue is one which continues to

divide the circuits, 2/ has produced contrary

3/ The Third Circuit has taken the lead in

recognizing the availability of judicial

immunity either in cases of deliberate dis-

tortion of the fact-finding process by the

government, or under the theory of the in-

herent authority of the court. Government

of the Virgin Islands v. Smith, 615 F.2d

964 (3d Cir. 1980); United States v. Herman,

589 F.2d 1191 (3d Cir.) cert. den., 441

U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386

(1978). The Third Circuit rule was approved

by the Ninth Circuit in United States v.

Lord, 711 F.2d 887, 891 (9th Cir. 1983),

but see United States v. Brutzman, 731 F.2d

1449, 1452 (9th Cir. 1984). The Seventh

Circuit, in dicta, indicated that sanctions

may be imposed against a prosecution which

refuses tc immunize defense witnesses.

United States v. Allstate Mortgage Corpora-

tion, 507 F.2a 492, 495 (7th Cir. 15744,

cert. den., 421 U.S. 999, 95 S.Ct. 2396,

44 L.Ed.2d 666 (1975). But see United States

v. Bounos, 693 F.2d 38 (7th Cir. 1982).

The Second Circuit has adopted strict

rules for the use of such immunity, and

has indicated that it has “not been recep-

tive to the idea.” United States v. Bowe,

698 F.2d 560, 565, n.5 (2d Cir. 1983).

(cont. )

22.

decisions within the same circuit,— and

has generated substantial commentary.—

5S/ (cont.)

See also United States v. Burns, 684 F.2d

1066 (2d Cir. 1982); United States v.

Calvente, 722 F.2d 1019, 1025 (2d Cir.

1983).

Several Circuits have held that the

court is without jurisdiction to immunize

witnesses:

Fourth (United States v. Klauber, 61ll

F.2d 512, 517-20 (4th Cir. 19/79) cert. den.,

446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d

261 (1980));

Fifth (United States v. Heffington, 682

F.2d 1075, 1080-81 (5th Cir. 1982), cert.

den. sgub nom., Giella v. United States,

i # , 103 S.Ct. 734 (1983); United

States v. Thevis, 665 F.2d 616, 639 (5th |

Ci£.}), Gere. Gen., $53 0.8. 625, 103 8.Ct.

57 (1982); “United States v. Herbst, 641

F.2d 1161 (5th Cir. 1981) cert. den., 454

0.8. @@i- 208 BiCSs 2See FO cBG. 241 (2961) 1

United States v. Chagra, 669 F.2d 241, 259-

60 (5th Cir. 1982));

Eleventh (United States v. Gottesman,

724 F.2d 1517, 1524 (llth Cir. 1984)); and

District of Columbia Circuits (Earl v.

United States, 361 F.2d 531, 534-535 (D.C.

CAks Beetle

(cont. )

6/ and 7/ (see page 24)

It is an issue which implicates basic

fifth amendment due process and sixth

amendment compulsory process claims on

the one hand, and separation of powers

issues on the other. Left unresolved, this

issue threatens to work substantial in-

justice to defendants unable to present

necessary exculpatory evidence, will lead

to substantially different treatment of

defendants depending on the jurisdiction

— The Eighth Circuit, in United States v.

Hardrich, 707 F.2d 992, 994 (8th Cir. 1983)

found it was “doubtful that a district

judge may order ‘judicial immunity' for a

reluctant witness in this circuit." t

&/ Compare United States v. Bounos, 693

F.2d 38 (7th Cir. 1982) with United States

v. Allstate Mortgage Corp., supra; United

States v. Lord, 711 F.2d 887, o91 (9th Cir.

1983) with United States v. Brutzman, 731

F.2d 1449, 1452 (9th Cir. 1984).

es See, e.g., Note, The Right to Have Use

Immunity Granted to Defense Witnesses, 91

Harv.L.Rev. 1266 (1978); Note, Witness for

the Defense: a Right to Immunity, 34 Vand.

L.Rev. 1665 (1981).

24.

in which they are charged, and will im-

Pinge directly on the truth-finding pro-

cess of criminal trials.

The theory of judicial power to im-

munize witnesses finds a dual basis. First,

the due process clause should prevent

Government overreaching such as in this

case, in which evidence on one side of the

issue - the Government's side - is pre-

sented to the jury through a statutory

immunity grant, while evidence on the other

is withheld, because the defendant is not

in the same position as the Government to

compel testimony over fifth amendment

objections.

Second, the sixth amendment right to

compulsory process is nullified if material

defense evidence becomes completely un-

available because of the assertion of a

self-incrimination claim by the witness.

25.

Under either rubric, the effect is the

same, a defendant is unfairly tried by a

jury that is factually misled.

This state of affairs has led several

circuits to conclude that, potentially,

two forms of immunity are available.

Thus, if the Government uses its immunity

powers in a deliberate and intentional

distortion of the judicial fact-finding

process, it has been held that immunity

for defense witnesses would be appropriate.

See, for example, Government of the Virgin

Islands v. Smith, supra, 615 F.2d 964, 968;

United States v. Herman, supra. Further-

more, several cases have held that the

court has inherent authority to grant

judicial immunity when the privileged

testimony is essential to an effective

defense. Id.

26.

The question has been before the court

on previous occasions (see, e.g., Autry v.

McKaskle, Pe , 104 B.Ge. 1458,

1459 (Marshall and Brennan dissenting from

Genial of certiorari (1984)), but has not

been decided by it. This case is a highly

appropriate vehicle for resolving this

issue, inasmuch as a review of the entire

record is unnecessary, and the proposed

testimony of the excluded witness has

been preserved in a succinct offer of

proof.

Additionally, the unique facts of this

case, in which the petitioner asserted he

was acting in aid of law enforcement, made

a conviction dependent on the informant's

credibility, and his unrebutted, but un-

corroborated, story of prior drug dealings

with the petitioner. Had this case been

tried under the Third or Ninth Circuit

27.

Rules, the withheld testimony would have

been admitted, and the petitioner likely

would have been acquitted.

The importance of the issue, as noted

above, transcends this case, and demands

resolution by this court.

III

THE PROPRIETY OF A CONVICTION FOR

ATTEMPT TO POSSESS WITH INTENT TO

DISTRIBUTE A CONTROLLED SUBSTANCE

UNDER 21 U.S.C. SEC. 846 HAS BEEN

THE SUBJECT OF DISSENSION IN THE

VARIOUS CIRCUITS, AND THREATENS

THE LEGITIMACY OF THE PRESENT FED-

ERAL POLICY CONCERNING "REVERSE

STING" OPERATIONS.

The federal government maintains a

policy in “reverse sting" cases, that is

undercover operations in which the govern-

ment agents pose as sellers of narcotics,

of not providing actual narcotics. There

is, at present, serious conflict in the

28,

circuits regarding the ability to prose-

cute successful “reverse sting” cases as

attempts under 21 U.S.C. Sec. 846. This

conflict also implicates the/age-old

controversy over the defense of impossi-

bility, and threatens a notion basic to

the American system of justice, that a

person cannot be prosecuted for his

thoughts or intentions.

The court below adopted the analysis

of the Third Circuit in United States v.

Everett, 700 F.2d 900 (3d Cir. 1983) to

the effect that Congress intended to

eliminate the impossibility defense in

cases prosecuted under 21 U.S.C. Sections

84l1(a)(1) and 846. 737 F.2d 521, 525.

Although the accuracy or statutory inter-

pretations performed by Everett is in

question, this case presents a subsidiary

issue of the standards to be used in

29.

determining whether a substantive crime

of intent has been committed. Each of

these issues is appropriate for review by

this court.

STATUTORY INTERPRETATION OF 21 U.S.C.

SECTIONS 841 and 846.

Everett undertook an analysis of the

intent of Congress in enacting the Compre-

hensive Drug Abuse Prevention and Control

Act, and concluded that Congress intended

to eliminate the defens of impossibility

when it enacted Section 846. 700 F.2d 900,

904. The court below completely adopted

the facially invalid analysis made in

Everett.

The starting point in such a review

is a recognition that no federal statute

contains a comprehensive definition of

attempt. United States v. Rivera-Sola, 713

F.2d 866, 869 (lst Cir. 1983); United States

30.

v. Jackson, 560 F.2d 112, 116 (2d Cir.),

cert. den., 434 U.S. 941, S.Ct. ’

__ -iL.Ed.2d ss (1977). Consequently, the

common law definition of attempt, includ-

ing its recognition of impossibility as a

defense, would apply unless some contrary

intent could be divined. Two facts relied

upon in Everett to interpret Congress’

intent actually argue against Everett's

conclusion.

First, Congress has considered and

rejected a generally applicable attempt

statute which would have removed impossi-

bility as a defense. See Final Report of

National Commission on Reform of the

Federal Criminal Law, Sec. 1001(1) (1971);

see, I Working Papers of the National

Commission on Reform of the Federal Crimi-

nal Laws, 360 (1970).

31.

Consequently, Congress had before it,

and refused to enact, legislation which

would have eliminated impossibility, in

general, as a defense.

In addition, however, the history of

Section 846, as restated in Everett simply

does not support the conclusion that

Congress ei ininated the defense of im-

possibility in Section 846.

The Senate version of the bill sub-

stituted the word "endeavor" for "attempt"

for the stated purpose of eliminating the

impossibility defense. S. 3246, 9lst Cong.,

2d Sess, Sec. 504 (1970); 700 F.2d 905-906.

The House eventually passed the Senate-

backed bill using the same language. H.R.

17463, 91st Cong., 2d Sess. Sec. 504 (1970).

After hearings, the new bill was introduced

which used the language "attempt" rather

than "endeavor." H.R. 18583, 9lst Cong.,

32.

Nay iNet *

4 wd,

» i “ FA.

eat

ia are

a are

“**

2d Sess., Tit.I (1970).

Rationally, the use of the word

"attempt" should be interpreted to imply

that the new bill intended to include the

impossibility defense which had been sub-

sumed within the attempt language. Everett,

however, interprets the course of events

as indicating a clear intent by Congress

to remove the impossibility defense, a

conclusion which is not justified by the

facts, nor consistent with the rule of

statutory construction that ambiguity

concerning the ambit of a criminal statute

must be resolved in favor of lenity.

Simpson v. United States, 435 U.S. 6, 14,

96 $.Ct. 909, 913, 55 L.Ed.2d 70 (1978).

Had Congress intended to eliminate

the defense of impossibility, it could

have, and it was required to do so, unam-

biguously. The interpretation made by

33.

FD Wee sa ot =

Everett, and adopted by the Sixth Circuit

below runs afoul of common statutory

analysis, and should be clarified by

this court.

CONFLICT IN THE CIRCUITS EXISTS WITH RE-

GARD TO ANALYSIS OF ATTEMPT PROVISIONS.

Clearly. had the impossibility defense

Survived the Everett analysis, the peti-

tioner in this case could not have been

found guilty of attempted possession of

narcotics when no narcotics were involved.

Even if the defense of impossibility, as

such, does not exist, chargings such as

that involved in this case necessarily

drag appellate courts through a morass of

conflicting, contradictory, and largely

indecipherable analyses. |

Both Everett and United States v.

Oviedo, 525 F.2d 861 (5th Cir. 1976) re-

cognize that in attempt cases a substantial

34.

danger exists that a prosecution may be

bined solely upon the defendant's intent.

Oviedo makes the analysis in the terms of

the impossibility defense and to that

degree is directly contrary to Everett

and the Opinion below which reject com-

pletely the impossibility analysis. Oviedo

points out, moreover, that at least three

analyses of attempt provisions have been

made.

The first is exemplified by the deci-

Sion in United States v. Berrigan, 482

F.2d 171 (3d Cir. 1973). The Berrigan

court drew a strict distinction between

the intent to perform the act and the

performance of the act on one hand, and

whether the completed conduct constituted

a crime on tne other. Absent the commis-

Sion vt an ultimate crime, Berrigan would

preclude a conviction. At tke other extreme

35.

United States v. Heng Awkak Roman, 356 F.

Supp. 434 (S.D.N.Y. 1973) affirmed, 484

F.2d 1271 (2d Cir. 1973), examines the

objective of the defendants, i.e., their

intent, and authorizes a conviction in

any case in which intent to commit the

crime exists.

The Oviedo court found difficulty with

both analyses. Berrigan would eliminate

the distinction between factual and legal

impossibility; while Roman would justify

prosecution based upon mens rea alone.

Oviedo, therefore, took the third, or

middle, ground, and permitted prosecution

only in those cases in which the objective

acts of the defendant, "without any reli-

ance on the accompanying mens rea, marked

the defendant's conduct as criminal in

nature." 52° F.2d 881, 885.

36.

Consequently, under Berrigan no at-

tempt was committed by Pennell. Similarly,

as a result of the unique facts of this

case in which Pennell claimed to be acting

in aid of law enforcement and without

Criminal intent, his ambiguous conduct

could not corroborate his mens rea, within

the meaning of Oviedo and Everett. And,

finally, under Roman, Pennell did not ex-

hibit the requisite mens rea, if indeed

he was assisting law enforcement, but

corroboration of his intent with his

conduct would be unnecessary.

The confusion in this area is one

which will floruish and persist without

guidance from this court. Review should,

therefore, be granted.

37.

CONCLUSION

For the reasons cited above, it is re-

spectfully submitted that this case is one

which presents a series of important, sub-

stantial issues which have plagued the

federal system and which require immediate

resolution by way of granting the instant

Petition.

Respectfully submitted,

WEITZMAN & RE

HOWARD L. WEITZMAN

DONALD M. RE

DATED: September 28, 1984

38.

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