# Petition for Writ of Certiorari — Pennell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1158

## Text

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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

N
.

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)
sy
a.

Ry
e<).

ae a
7

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

26

31

17

23

24

35
37

18
29

18

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

+

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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

-
8
'

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.

24

24

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NO.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

7

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.

2.

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

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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;
or

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.)

4.

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/

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~ 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

I

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

2/

~ As indicated above, five jurors' houses
were contacted directly. All jurors were
aware of the calls.

3/

~ §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).

13.

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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.

4/

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

4/
Id. at 646.

19.

es

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.

ae

of a fair trial, and the accuracy of the

fact-finding purpose of such a trial.

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.

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.

6/

decisions within the same circuit,— and

7/

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

57

— 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.

re
Nay iNet *

4 wd,
» i “ FA.
eat
ia are

a are
cs

“**

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2341%3A1. Public record. Not legal advice.