Appendix — Pennell v. United States

No. | ~ ip 29 Oe,

INTHE _

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

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

WEITZMAN AND RE’

HOWARD L. WEITZMAN

Oe, DONALD M. RE’

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

(213) 277-8366

Attorneys for Petitioner

ae ee a eee

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Gordon PENNELL,

Defendant-Appellant.

No. 83-1243.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 27, 1984.

Decided June 8, 1984.

Rehearing and Rehearing En Banc

Denied July 31, 1984

Defendant was convicted in the United

States District Court for the Eastern Dis-

trict of Michigan, Julian Abele Cook, Jr.,

J., of one count of conspiracy to possess

with intent to distribute cocaine, one

count of attempt to possess with intent to

distribute cocaine, seven counts of unlaw-

ful use of a communications facility and

one count of unlawful carrying of a firearm

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during the commission of a felony, and he

appealed. The Court of Appeals, Contie,

Circuit Judge, held that: (1) purchase of

noncontrolled substance that defendant sub-

jectively believed to be a controlled sub-

stance can constitute an attempt to possess

with intent to distribute a controlled

substance; (2) evidence supported finding

that defendant intended to purchase real

cocaine, thereby supporting his conviction;

(3) federal courts do not have inherent

power to immunize witnesses who assert

privilege against self-incrimination;

(4) District Court did not abuse its dis-

cretion in denying mistrial after five

jurors received threatening telephone

calls, and (5) Government introduced suffi-

cient evidence to support guilty verdict

On conspiracy count.

Affirmed.

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Celebrezze, Senior Circuit Judge, fiied

dissenting opinion.

1. Drugs and Narcotics (key) 73

Purchase of noncontrolled substance

that defendant subjectively believes to be

a controlled substance can constitute an

attempt to possess with intent to distrib-

ute a controlled substance. Comprehensive

Drug Abuse Prevention and Control Act of

1970. §§ 40l(a), 406, 21 U.S.C.A.

§§ 841(a)(1), 846.

2. Drugs and Marcotics (key) 73

In order to convict a defendant of an

attempt to possess with intent to distribute

a controlled substance for defendant's pur-

chase of a noncontrolled substance that he

subjectively believes to be a controlled

substance, defendant's subjective conduct,

taken as a whole, must unequivocally

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corroborate the required subjective intent

to purchase or sell actual narcotics. Com-

prehensive Drug Abuse Prevention and Control

Act of 1970, § 406, 21 U.S.C.A. § 846.

3. Drugs and Narcotics (key) 123

Evidence, including proof that defend-

ant insisted upon obtaining sample of pur-

ported cocaine so that he could attempt to

ascertain its quality, and paid $43,000 for

two pounds of a white powdery substance

resembling cocaine, was sufficient to sup-

port finding that defendant intended to

purchase real cocaine, thereby supporting

his conviction of attempt to possess with

intent to distribute cocaine for his pur-

chase of “sham" cocaine from undercover

agents. Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 40l(a)(1), 406,

21 U.S.C.A. §§ 841 (a)(1), 846.

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4. Witnesses (key) 304(1)

Federal district court lacks power to

grant use immunity to witness under the

federal use immunity statute, or under com-

pulsory process Elause of Sixth Amendment.

U.S.C.A. Const.Amend. 6.

S. Witnesses (key) 304(1)

Federal courts do not have inherent

power to immunize witnesses who assert the

privilege against self-incrimination.

U.S.C.A. Const.Amend. 5.

6. Criminal Law (key) 1163(6)

Burden of proof rests upon defendant

to demonstrate that unauthorized communica-

tions with jurors resulted in actual juror

partiality; prejudice is not to be presumed.

7. Criminal Law (key) 1155

District court's decision not to grant

mistrial after investigating allegations of

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unauthorized contact with jurors should be

reviewed only for abuse of discretion.

8. Criminal Law (key) 868

If district court views juror assur-

ances of continued impartiality to be

credible despite unauthorized contact with

jurors, court may rely upon such assur-

ances in deciding whether a defendant has

satisfied burden of proving actual prejudice.

9. Criminal Law (key) 855(8)

District court did not abuse its dis-

cretion in refusing to grant mistrial after

five jurors were contacted at their homes

by an anonymous telephone caller and urged

to vote guilty, where, when notified that

jurors had received the threatening tele-

phone calls, court immediately conducted

hearing in order to determine whether im-

partiality of those jurors had been

A-6

compromised and whether other jurors had

learned of the calls, court thoroughly

questioned contacted jurors on an indivi-

dual basis and concluded that their

assertions of unimpaired impartiality were

worthy of belief, and court then sought to

ascertain whether the calls had affected

any of the other jurors.

10. Criminal Law (key) 37(3)

Central inquiry in entrapment cases is

whether law enforcement officials implant-

ed urteine) design in mind of an otherwise

law-abiding citizen or whether Government

merely provided an opportunity to commit

a crime to one who was already predisposed

to do so.

11. Criminal Law (key) 569

If defendant raises entrapment defense,

government bears burden of proving predis-

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position beyond reasonable doubt.

12. Criminal Law (key) 739.1(1)

In order for a claim of entrapment as

a matter of law to succeed, testimony and

facts must be undisputed; a court may not

choose between conflicting testimony or

make credibility determinations.

13. Criminal Law (key) 739.1(1)

In order for claim of entrapment to

succeed as a matter of law, the undisputed

evidence must demonstrate a patently clear

absence of predisposition.

14. Criminal Law (key) 569

Evidence supported finding that defen-

dant involved in "reverse ‘uy" of "sham"

cocaine from Drug Enforcement Administra-

tion undercover agents was predisposed

beyond a reasonable doupt to commit offenses

with which he was charged, thereby supporting

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conclusion that he was not entrapped.

15. Conspiracy (key) 24

Proof of an agreement between two

persons is an absolute prerequisite to

obtaining conspiracy conviction.

16. Conspiracy (key) 47(12)

Proof of mere negotiations between

drug traffickers will not suffice to prove

drug conspiracy; conspirators must actually

agree to accomplish an illegal objective

or accede to illegal terms that are ac-

ceptable to both.

17. Conspiracy (key) 23

Proof of an agreement between a defen-

dant and a government agent or informer

will not support a conspiracy conviction.

18. Criminal Law (key) 409(6)

Where defendant admits facts sufficient

to establish an element of a crime after

the crime has been committed, defendant's

out-of-court admission must be corrobor-

ated; however, corroborating evidence stand-

ing alone need not establish every element

of charged crime; rather, an out-of-court

admission is adequately corroborated if

corroborating evidence supports essential

facts admitted sufficiently to justify a

jury inference of their truth.

19. Conspiracy (key) 47(12)

Evidence that defendant, both before

and after commission of charged crimes,

made incriminating statements concerning

existence of drug distribution network,

plus circumstantial evidence, was suffici-

ent to support finding defendant agreed

with at least one other person to possess

A-10

with intent to distribute cocaine, thereby

supporting his conviction of conspiracy to

possess with intent to distribute cocaine.

Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 40l(a)(1), 406,

21 U.S.C.A. §§ 841l(a)(1), 846.

Peter J. Kelley, Ann Arbor, Mich., for

defendant-appellant.

Leonard R. Gilman, U.S. Atty., Maura

Corrigan, Asst. U.S. Atty. (argued), De-

troit, Mich., for plaintiff-appellee.

Before ENGEL and CONTIE, Circuit Judges,

and CELEBREZZE, Senior Circuit Judge.

CONTIE, Circuit Judge.

Gordon Pennell, the defendant, appeals

from jury convictions for one count of con-

Spiracy to possess with intent to distribute

cocaine (21 U.S.C. §§ 84l(a)(1) and 846),

one count of attempt to possess with intent

to distribute cocaine (21 U.S.C. §§ 841l(a)

(1) and 846), seven counts of unlawful use

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of a communications facility (21 U.S.C.

§ 843(b)) and one count of unlawful carry-

ing of a firearm during the commission of

a felony (18 U.S.C. § 942(c)(2)). For the

reasons set forth below, we affirm.

I.

This case involves a "reverse buy" in

which Pennell paid $43,000 in cash for two

pounds of sham cocaine from Drug Enforce-

ment Administration (DEA) undercover agents

who were posing as narcotics suppliers.

The DEA learned of Pennell from a confiden-

tial informant. This informart had sold

four ounces of cocaine weekly for the de-

fendant prior to September 1980. Pennell

had “fronted” the cocaine to the informant,

i.e., the informant took the cocaine and

paid for it from the proceeds of subsequent

sales.

By September 1980, the informant had

fallen $15,000 behind in his payments.

Consequently, Pennell refused to front

more cocaine and eventually "sold" the ac-

count receivable to a man named MacDonald.

MacDonald thereby obtained the right to

"collect" the debt. Fearing for his safety,

the informant contacted the DEA in October

1980 with hopes of receiving enough money

in exchange for his information that he

would be able to pay his debt.

The DEA declined to pay for the infor-

mation and insisted that the informant

fully cooperate by testifying against

Pennell and MacDonald. The informant re-

fused to testify for fear of reprisal. The

informant's last contact with the DEA was

in December 1980.

In January 1981, the informant agreed

to sell cocaine for MacDonald in order to

A-13

clear his account. After this plan failed,

the informant found himself $11,000 further

in debt.

The informant next met Pennell in March

1981. The defendant claimed to have ceased

selling cocaine and asked the informant if

he had been approached by a DEA agent named

Frank. The informant stated that he had

not. The defendant then purported to for-

give the informant's debt. A general con-

version ensued. During this conversation,

Pennell remarked that the informant had

been a “dumb a--" for dealing with MacDonald

at $33,000 per pound. The informant retorted

that he knew the price had been inflated

but that he currently could obtain cocaine

) ; ;

The informant knew this agent to be

Frank Catalonga. Pennell contends that

Catalonga and the informant initiated a

process by which he was entrapped. This

Claim will be considered in Part V of this

Opinion.

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for $22,500 per pound from a Florida source.

Pennell immediately expressed interest in

the Florida cocaine because the price was

low enough to allow both he and the in-

formant to make a profit upon resale. The

defendant urged the informant to have the

Florida people call Pennell's office. He

promised to reduce the informant's debt by

$5,000 for each pound of cocaine sold.

The informant telephoned DEA Agent

Rodriguez the following day and warned the

latter that Pennell was aware of Agent

Frank Catalonga's true identity. The in-

formant met with Rodriguez and Catalonga

that evening. After the informant again

expressed a reluctance to testify, Catalonga

suggested that the former supply Pennell

with the Florida telephone number of DEA

Agent Pedro Valazco rather than the number

of the purported Florida cocaine source.

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The informant agreed to this plan. Over the

next week to ten days, Pennell repeatedly

requested the telephone number of the

Florida source. On April 16 or 17, the in-

formant gave Pennell the number that had

been supplied by Agent Catalonga.

Pennell, using the alias "Doug", called

undercover Agent Velazco on April 21. The

defendant offered to buy cocaine and Velazco

quoted a price of $21,500 per pound. Pennell,

however, demanded a sample of the cocaine

before committing himself to the purchase.

Velazco then arranged for undercover

Agent Wagner to meet the defendant and pro-

vide the sample. When Wagner called Pennell,

a misunderstanding arose because Wagner

offered to sell four pounds of cocaine

whereas the defendant only wanted to pur-

chase one pound. Pennell refused to accept

Wagner's terms.

On April 29, Velazco telephoned the

defendant and assured him that Wagner had

been mistaken. During a subsequent conversa-

tion with Wagner, the defendant stated that

he could sell at least one pound of cocaine,

and possibly two pounds, immediately. Wagner

agreed to meet Pennell at a local airport

in order to provide the sample. On May 8,

Wagner confirmed that he would arrive at

the airport the following Tuesday and in-

dicated that he might have a package of

cocaine in addition to the sample if a

Kansas City buyer did not want the package.

On May 12, ‘Agent Wagner and Fredenburg

met Pennell at Mettetal Airport. As Wagner

showed the defendant four one-pound pack-

ages of sham cocaine, the latter remarked

that he could immediately sell one pound

to a "Mr. T." who was visiting Detroit from

Los Angeles. After Wagner responded that

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the Kansas City customer still had an op-

tion to purchase the packages, Pennell in-

dicated that he could hold his Los Angeles

customer until Wagner determined whether

the Kansas City buyer would be able to

purchase the cocaine.

On May 13, Wagner informed the defen-

dant that the Kansas City buyer had been

unable to complete the transaction. Pennell

"increased his order to two pounds. On May

14 at at Detroit airport restaurant, the

defendant purchased two pounds of sham

cocaine from the agents for $43,000. He

was immediately apprehended. The arresting

agents discovered a .38 caliber revolver

concealed on his person.

The grand jury returned an eleven count

indictment. The trial jury convicted the

defendant on all counts, save for count

Six, one of the unlawful use of a communi-

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cations facility counts. The district court

sentenced Pennell to concurrent nine-year

terms on the conspiracy and attempt counts,

to concurrent one-year terms on the unlaw-

ful use of a communications facility

counts and to a consecutive one-year term

on the weapons count. The court also as-

sessed fines totaling $50,000. It is from

this judgment that the defendant appeals.

II.

Pennell contends that he may not be

convicted of attempt to possess with in-

tent to distribute cocaine” as a matter of

law because the substance he purchased

from the undercover agents in fact was sham

cocaine. The defense essentially is one of

impossibility. The resolution of this

+ It bears emphasis that the defendant was

convicted of attempt to possess with intent

to distribute rather than with possession

with intent to distribute.

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question is important to the effective en-

forcement of the federal drug laws because

the DEA has adopted a policy in "reverse

buy" situations of not furnishing real

narcotics. If the defendant's claim is &

meritorious, the government will be forced

to supply real drugs in future “reverse

buy" cases. See United States v. Everett,

700 F.2d 900, 907-08 n. 16 (3d Cir. 1983).

[1] We agree with the Third Circuit's

thorough analysis in Everett and conclude

that Congress intended to eliminate the

impossibility defense in cases prosecuted

under, 21 U.S.C. §§ 841(a)(1) and 846. See

700 F.2d at 903-08. Thus, the purchase of

a noncontrolled substance that the defend-

ant subjectively believes to be a controlled

substance can constitute an attempt to pos-

sess with intent to distribute under § 846.

See id. at 908; United States v. Korn, 557

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F.2d4 1089, 1091 (5th Cir. 1977).°

[2] The government must, of course,

prove the defendant's subjective intent to

purchase (or sell) actual narcotics beyond

a reasonable doubt. Meeting this burden of

proof can be problematic if the substance

involved in a given situation is a fake

narcotic. In order to avoid unjust attempt

convictions in these types of cases, the

courts have fashioned the following eviden-

tiary rule:

In order for a defendant to be guilty

of a criminal attempt, the objective

acts performed, without any reliance

on the accompanying mens rea, [must]

mark the defendant's conduct as crimi-

nal in nature. The acts should be unique

3. Likewise, the sale of a noncontrolled

substance that the defendant subjectively

believes to be a controlled substance can

constitute an attempt to distribut under

§ 846.

A-21

s

rather than so commonplace that they

are engaged in by persons not in vio-

lation of the law.

Everett, 700 F.2d at 909; United States v.

Innella, 690 F.2d 834, 835 (llth Cir. 1982),

cert. denied, v.83. » Bes Ssbt. Lee,

75 L.Ed.2d 949 (1983); United States v.

Oviedo, 526 F.2d 881, 885 (5th Cir. 1976);

see also United States v. McDowell, 705

F.2d 426, 428 (llth Cir. 1983). In other

words, the defendant's objective conduct,

taken as a whole, must unequivocally cor-

roborate the required subjective intent to

purchase or sell actual narcotics. See

McDowell, 705 F.2d at 428: Innella, 690

F.2a@ at 635.

[3] In the present case, the jury clear-

ly could have concluded beyond a reasonable

doubt that Pennell intended to purchase

real cocaine. Among the defendant's objec-

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tive acts, we highlight two. First, Pennell

insisted upon obtaining a sample so that he

could attempt to ascertain the quality of

the cocaine that he was purchasing. Second,

the defendant paid $43,000 for two pounds

of a white powdery substance resembling

cocaine. No reasonable person would pay

such a price for two pounds of a white

powdery substance unless he believed the

substance to be genuine contraband. Cf.

Korn, 557 F.2d at 1091 ($20,000 paid for

sham methaqualone tablets). We hold, there-

fore, that Pennell's objective acts un-

equivocaily corroborated the necessary

intent to purchase real cocaine.

The Oviedo case, heavily relied upon by

the defendant, does not mandate a contrary

result. In Oviedo, the defendant sold sham

heroin rather than purchasing it. Under the

facts of that case, the Fifth Circuit held

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that the government had insutficiently cor-

roborated the defendant's subjective intent

to sell a narcotic substance. The court

reasoned that the defendant's act of seli-

ing was equivocal; selling a noncontrolled

substance, without more, was consistent

with both guilt and innocence.“ In the

present case, however, the act which the

defendant claims renders his conduct equi-

vocal (i.e., the use of sham cocaine) was

performed by the government. The govern-

ment's unannounced use of sham cocaine

cannot possibly be "a relevant reflection

of [Pennell's] underlying intent." McDowell,

705 F.2d at 428, Innella, 690 F.2d at 835;

Korn, 557 F.2d at 1091. Accordingly, the

4. The Fifth Circuit later emphasized that

adequate corroboration is possible in cases

involving sellers of fake narcotics. See

Korn, 557 F.2d at 1091; United States v.

Hough, 561 F.2d 594 (5th Cir. 1977). The

Third Circuit has reached the same conclu-

Sion. Everett, 700 F.2d at 908-09.

<

A-24

defendant's reliance upon Oviedo is mis-

placed.

III.

[4] A second assignment of error is

that the district court should have granted

use immunity to defense witness Charles

Massab, who invoked his fifth amendment

privilege against self-incrimination when

requested to testify. Although a federal

district court lacks power to grant use

immunity to a witness under the federal use

immunity statute, Pillsbury Co. v. Conboy,

459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430

(1983), or under the compulsory process

clause of the sixth amendment, United States

v. Lenz, 616 F.2d 960 (6th Cir.), cert.

denied, 447 U.S. 929, 100 S.Ct. 3028, 65

L.Ed.2da 1124 (1980), Pennell's claim arises

under the due process clause of the fifth

amendment.

The reported courts of appeals cases

reflect that criminal defendants have used

two theories in presenting this type of

due process claim. One theory involves

prosecutorial misconduct. Some courts of

appeals have either held or strongly sug-

gested that if a federal prosecutor grants

use immunity to government witnesses but

refuses to immunize defense witnesses with

the deliberate intention of distorting the

judicial factfinding process, then due pro-

cess may have been violated. See United

States v. Franz, 697 F.2d 188, 191 (7th

Cir.), cert. denied, U.8. » £06 &.

Ct. 104, 78 L.Ed.2d 107 (1983); Government

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

964, 968-69 (3d Cir. 1980); United States

v. Klauber, 611 F.2d 512, 517-18 (4th Cir.

1979), cert. denied, 446 U.S. 908, 100 S.Ct.

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1835, 64 L.Ed.2d 261 (1980); Earl v. United

States, 264 F.426 $31, $34 ms 1 (D.C. Cir.

1966), cert. denied, 388 U.S. 921, 87 S.

Ct. 2121, 18 L.Ed.2d 1370 (1967); cf.

United States v. Lord, 711 F.2d 887, 891

(9th Cir. 1983) (prosecutor alleged to have

intimidated defense witness into asserting

fifth amendment privilege against self-

incrimination). The recommended remedy in

such cases has been that a court not grant

use immunity to defense witnesses, but

rather that the court set aside the convic-

tion and remand the case to afford the

prosecutor an opportunity to immunize both

government and defense witnesses under

the use immunity statute. See Lord, 71l

F.2d at 891-92; Smith, 615 F.2d at 969;

Klauber, 611 F.2d at 518. On the other

hand, the Second Circuit has held that a

prosecutor's decision to immunize only

government witnesses does not violate due

A-27

i

process under any circumstances. United

States v. Turkish, 623 F.2d 769, 774 (2d

Cir. 1980), cert. denied, 449 U.S. 1077,

101 S.Ct. 856, 66 L.Ed.2d 800 (1981). But

see United States v. Burns, 684 F.2d 1066,

1077 (2d Cir. 1982), cert. denied, 459 U.S.

1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983).

This court adverted to the prosecutorial

misconduct theory in the Lenz case, but

declined either to a@cept or reject the

theory. 616 F.2d at 963-64.

In the present case, Pennell has not

asserted the prosecutorial misconduct

theory on appeal. Consequently, we empha-

Size that the ensuing discussion of the

defendant's due process claim intimates no

view on the issues of: (1) whether prose-

cutorial misconduct in making immunity

decisions can constitute a due process

violation and (2) the appropriate remedy,

A-28

assuming that such misconduct can be of

constitutional magnitude. We expressly

reserve those questions.

{5] On this appeal, Pennell has relied

solely upon the second theory used by de-

fendants who seek use immunity for witness-

es. This theory, which has been accepted

by the Third Circuit, is that the federal

courts have inherent power to immunize

witnesses whose testimony is essential to

an effective defense. This power is said

to exist independently of the prosecutor's

prerogative to grant statutory use immun-

ity to witnesses and is to be exercised

in order to protect the truthfinding func-

tion of the criminal trial. Smith, 615 F.2d

at 969-71. The rationale underlying this

theory is that a criminal defendant should

not be convicted because a witness, whose

testimony would exonerate the defendant,

A-29

has invoked the privilege against self-

incrimination.

The Third Circuit acknowledged that

this approach implicates the separation of

powers doctrine. Id. at 971. The court

nevertheless held that a district court

may exercise inherent power to immunize a

defense witness if the witness is available,

if the proffered testimony is both essen-

tial and clearly exculpatory and if no

strong governmental interests countervail

against a grant of immunity. Id. at 972.

The court stressed that immunity should

not be afforded to witnesses whose proffer-

ed testimony is ambiguous, cumulative, not

Clearly exculpatory or selevent only to

credibility. Id. Moreover, the court iden-

tified the government's possible desire to

prosecute the witness who the defendant

seeks t«¢; have immunized as being the most

A-30

obvious interest countervailing against an

immunity grant. Id. at 973.

The primary question that must be

addressed is whether the federal courts

have inherent power to immunize witnesses.>

Despite the Third Circuit's holding to the

contrary, we conclude that the federal

courts have no inherent power to grant im-

munity to witnesses who assert the privilege

against self-incrimination. See United

States v. Gullett, 713 F.2d 1203, 1209 (6th

Cir. 1983), cert. denied, U.S. » «04

S.Ct. 973, 79 L.Ed.2d 211 (1984); Lenz, 616

F.2d at 962. Since the potential availability

5. The Supreme Court's opinion in Pillsbury

Co. v. Conboy does not control this question.

Although the Court remarked at one point

that “no court has authority to immunize a

witr» .s" 103 S.Ct. at 616, this statement

was made in the context of construing the

federal use immunity statute rather than

the due process clause. The Court's opinion

in United States v. Doe, U.S. , 104

S.Ct. 1237, 79 L.Ed.2d 552 (1984), did not

discuss the due process issue either.

A-31

of witness immunity is purely of legisla-

tive origin, Lenz, 616 F.2d at 962, the

separation of powers doctrine compels us

to hold that the district court lacked

power to grant use immunity to witness

Massab.

Other courts of appeals agree with

this analysis. In an opinion authored by

then C:rcuit Judge Burger, the court of

appeals for the District of Columbia stated:

What Appellant asks this Court to do

is command the Executive Branch of

government to exercise the statutory

power of the Executive to grant immuni-

ty in order to secure relevant testi-

mony. This power is not inherent in the

Executive and surely is not inherent

in the judiciary. In the context of

criminal justice it is one of the high-

est forms of discretion conferred by

A-32

Congress on the Executive ... We con-

clude that the judicial creation of a

procedure comparable to that enacted

by Congress for the benefit of the

Government is beyond our power. [Empha-

sis supplied. }

Earl, 361 F.2d at 534. The Seventh Circuit

has also held that approving the use of

judicially-created immunity would violate

the separation of powers doctrine. See

e.g., In Re Daley, 549 F.2d 469, 479 (7th

Cir.), cert. denied, 434 U.S. 839, 98 S.

Ct. 110, 54 L.Ed.2d 89 (1977); United States

v. Smith, 542 F.2d 711, 715 (7th Cir. 1976).°

Thus, while the Third Circuit's desire to

insure that criminal defendants will have

6. Although the Fourth Circuit avoided

ruling on the separation of powers issue in

Klauber, the court revealed its doubt that

judicially-created witness immunity is ten-

able under the separation of powers doctrine.

611 F.2d at $i7 n. 10.

A-33

every Opportunity to present exculpatory

evidence is admirable, the federal courts

simply lack the power to effectuate that

aim by immunizing witnesses.

Furthermore, the Second and Fifth Cir-

cuits have identified practical considera-

tions that militate against recognizing the

concept of judicially-created witness im-

munity. See Turkish, 623 F.2d at 775-79;

United States v. Thevis, 665 F.2d 616, 638-

41 (Sth Cir.), cert. denied, 459 U.S. 825,

103 S.Ct. 57, 74 L.Ed.2d 61 (1982). First,

although the government theoretically is

free to prosecute a witness who has obtained

7. We acknowledge that the Second Circuit's

recent Burns opinion, 684 F.2d at 1077,

though citing Turkish, can be read as adopt-

ing the Third Circuit's approach. Assuming

that this reading is accurate, we note that

Burns is not a reasoned rejection of Turkish.

Thus, we remain persuaded by the arguments

made in Turkish concerning the practical

effects of approving judicially-created

immunity.

A-34

te EEE EE

use immunity, the government as a practi-

cal matter may encounter great difficulty

in satisfying the "heavy burden" of prov-

ing that its evidence against the witness

is neither directly nor indirectly trace-

able to the immunized testimony. ® See

Turkish, 623 F.2d at 775; Thevis, 665 F.2d

at 640 & n. 26. This is particularly true

where the investigation against the witness

is not yet complete. In such Situations,

the government may have to assign a new

team of prosecutors, who are totally un-

familiar with the case, to continue aS

investigation and to initiate any subse-

fi

quent criminal proceedings. See id. Even

this expedient would not be possible in

smaller prosecutor's offices. See Thevis,

8. The "heavy burden" rule was enunciated

in Kastigar v. United States, 406 U.S. 441,

461-62, 92 S.Ct. 1653, 1665, 32 L.Ed.2a

212 (1972).

A-35

665 F.2d at 640 n. 26. Moreover, the

government in almost all such cases would

be constrained to curtail the cross-exam-

ination of the immunized witness in order

to “narrow the scope of the testimony that

the witness wili later claim tainted his

subsequent prosecution." Turkish, 623 F.2d

at 775.

Second, assuming that the government

in some cases will be unable to prove that

immunized testimony will not taint a prose-

cution of the witness, the court in effect

will have decided that the current defen-

dant, rather oaks the witness, should be

prosecuted. The choice of whom to prose-

cute rests, of course, with the government

and not with the courts. See Thevis, 665

F.2d at 640. If the prosecution of either

the current defendant or the witness must

be sacrificed in order to obtain a convic-

A-36

tion against the other, this election should

be left to the government.

Third, both the Turkish and Thevis

courts afforded considerable credence to

the fear that judically-created witness

immunity would create opportunities for

cooperative purgery among criminals. Co-

defendants, for example, “could secure use

immunity for each other, and each immun-

ized witness could exonerate his co-defen-

dant at a separate trial by falsely accept-

ing sole responsibility for the crime,

secure in the knowledge that his admission

could not be used at his own trial for the

substantive offense." Turkish, 623 F.2d at

775. Both courts were convinced that the

threat of purgery prosecutions would not

deter such tactics because the penalty for

purgery often is significantly less severe

than the penalty attaching to the substan-

A-37

tive offense. See id; Thevis, 665 F.2d at

640 n. 27. Moreover, if a significant

amount of purgery were to occur, then the

goal of preserving the truth-finding func-

tion of the criminal trial might be im-

paired, rather than promoted, by granting

use immunity to defense witnesses. See

Thevis, 665 F.2d at 640. Since recognizing

the concept of judicially-created witness

: immunity would violate the separation of

| 4 powers doctrine and could result in serious

—

practical consequences, we hold that the sf

district court correctly refused to immun- Sf

. a .

1ze defense witness Massab. Proponents of

judicially-created witness immunity must

seek relief from Congress rather than from

the federal courts.

In the alternative, we hold that even |

if the Third Circuit's approach to this

lssue were correct, the content of Massab's

A-38

ee ae ee oe

testimony would not satisfy the Smith

standards. According to Pennell, Massab

would have testified that the confidential

informant was both selling and consuming

large amounts of cocaine while cooperating

with the DEA, that to Massab's knowledge,

Pennell's only association with the infor-

mant was to help the latter discharge his

debts, and that Massab had never observed

Pennell become involved in narcotics

transactions.

At trial, defense counsel argued that

Massab's testimony concerning the infor-

mant's use and distribution of cocaine was

relevant to the informant's credibility

(Tr. Vol. I at 22). The Smith case clearly

indicates, however, that immunity should

not be granted under such circumstances.

615 F.2d at 972. Moreover, since the in-

formant admitted during his testimony that

A-39

Pen, a

he had sold and ingested cocaine (Tr. Vol.

XI at 14-19, 93-96), this portion of

Massab's testimony would have been cumula-

tive. Furthermore, we agree with the

district court that the remainder of

Massab's testimony would have been margin-

ally exculpatory at best. That Massab per-

sonally did not observe the defendant

engaging in narcotics transactions with

anyone does little to rebut the testimony

of the informant and of the DEA agents who

testified that Pennell willingly and en-

thusiastically attempted to purchase two

pounds of cocaine with the intent to dis-

tribute it. Massab's testimony simply was

not as “clearly exculpatory” as was the

proffered testimony in Smith. Thus, even

if Smith were correctly decided, Pennell

would not satisfy the standards set forth

in that case.

eee Ree

IV.

Pennell further contends that the dis-

trict court should have declared a mistrial

after five jurors were contacted at their

homes by an anonymous telephone caller.

Jury deliberations began on Friday, January

28, 1983. Between 1:00 A.M. and 1:30 A.M.

on Sunday, January 30, five jurors received

anonymous telephone calls. Juror Larson was

told, "Urness Larson, you had better find

him guilty." Juror Page's daughter answered

her father's telephone and was told, "tell

Charles [Page] he better vote gu _lty.”

Juror Burgess was told, "Mrs. Burgess, find

him guilty or you will wish you had.” The

caller told Juror Saveski, "is this Janet?

You had better find him guilty." Finally,

the caller in structed juror Wilcox, "Ms.

Wilcox, find him guilty" (Tr. Vo. XVI at

6-7). In all five instances the caller

A-41

urged the juror to convict and then quickly

hung up.”

On the morning of Monday, January 31,

the five jurors informed their counterparts

of what had happened and then notified the

court. The court proceeded individually to

question the five who had received calls

out of the presence of the other jurors.

Juror Wilcox stated that her impartiality

had not — compromised and that she did

not feel intimidated. She indicated that

the call could have been a prank by a

young person attending the school at which

she taught. Juror Burgess also assured the

court that her impartiality had not been

affected, but indicated that Juror Saveski

had exhibited apprehension and nervousness

9. Although the government contends that

the caller's statements should not be re-

garded as threats, similar statements were

so regarded in United States v. Brown, 571

F.2d 980, 987 (6th Cir. 1978).

A-42

BE EATS DM Acre Be Beat he ~s

about the telephone calls. Burgess also

Stated that Saveski had not said "one way

or the other whether the [telephone call]

would have anything to do with her decision."

When asked if the telephone call would

impair his ability to render a fair verdict,

Juror Page responded, "I don't believe it

ls impaired in the least.” Page did indicate,

however, that Juror Saveski was "disturbed"

about the matter and was "unsure" of her-

self. The court next questioned Saveski.

During the ensuing discussion, Saveski

stated four times in response to different

questions that the telephone call had not

affected her impartiality or her ability

to decide the case on the basis of the

testimony and exhibits. Finally, Juror

Larson assured the court three times that

she would exclude the telephone calls from

consideration during deliberations.

A-43

With the concurrence of counsel for

both parties, the court then summoned the

entire jury and asked a series of questions

designed to elicit whether any juror's im-

partiality had been compromised and whether

any juror would find it difficult to render

a verdict based upon the evidence and the

court's instructions. When no juror re-

sponded, the court ordered the jury to re-

sume deliberations. Defense counsel then

moved for a mistrial.

After the jury resumed deliberations,

the forewoman sent a note to the court

which read in igs entirety:

Attention fionorable Judge Cook. We do

have a juror Linda Lorenz, that does

feel that the phone calls will influ-

ence her judgment in this case. Fore-

woman Darlene Patterson. (Tr. Vol. XVI

at 36).

(anal Saws OBE Fam F

The court immediately summoned Juror Lorenz,

who had not received a telephone call, back

to the courtroom. In response to questions,

Lorenz stated that listening to the other

jurors had made her nervous and that she

did not wish to receive a telephone call.

Nevertheless, she twice indicated that the

calls received by the others would not

affect her verdict. In response to addition-

al questioning, Lorenz stated three times

that the calls would not affect her delib-

erations and further stated that she could

Still abide by her juror's oath. The court

then asked Lorenz if she were concerned

about possible safety, to which Lorenz re-

sponded by nodding her head. When asked

Whether her nervousness would prevent her

from continuing deliberations, Lorenz re-

sponded, "I don't know." The follwing

transpired shortly thereafter:

A-45

The Court: ... But what I need to

know from you is whether you can still

perform your responsibilities as a

juror?

Juror Lorenz: I believe so. As

long as I have something stating or

somebody stating that nothing is going

to become of all this. I mean ...

The Court: I have every reason

to believe that nothing will. And the

Court has initiated some processes on

this matter. I will say nothing more

than simply that.

All right. Thank you very much. We

will be back with you. (Tr. Vol. XVI

ae 43}.

Oa anal

ee ee

After Juror Lorenz returned to the jury

room, the court denied the motion for mis-

trial. As to Juror Lorenz, the court found:

After examining Ms. Lorenz in the

A-46

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presence of counsel and on the record,

this Court believes that Ms. Lorenz,

while nervous and apprehensive about

potential harm to herself, that she is

nevertheless able and willing to con-

tinue as a juror and, moreover, that I

am satisfied that Ms. Lorenz, being

aware of her responsibilities as a

juror, will confine her assessment of

the facts in this case to the testi-

mony of the witnesses, the exhibits

that have been received into evidence

and the instructions that were pre-

sented to the Jury by the Court. More-

over, the last juror, Linda Lorenz,

advised the Court that she could con-

fine her evaluations to those three

categories that I have just mentioned.

(Tr. Vol. XVI at 48).

Regarding the jury as a whole, the court

A-47

E

'

i

,

'

F

found:

It is my personal opinion, in speaking

with the jurors prior to the--to this

session and during the session that

they were resolute in their belief

that their opinion would not be swayed

one way or the other by the telephone

call. More specifically, I am satisfied

that the jurors, in responding to my

questions, were desirous of continuing

in their roles as jurors and that the

telephone calls would not play any part

in their decisior. Thus, I am satisfied

that a verdict from the Jury, whether

it 1s guilty or not guilty, will not

be tainted or affected in any way by

the telephone calls that were received

by them on Sunday morning, between the

hours of 1:00 and 1:30. (Tr. Voi. XVI

at 48-49).

The Court did offer the jury the opportun-

ity to be sequestered. The jury declined

this offer and deliberated for three more

days without incident before rendering its

verdict.

Remmer v. United States, 347 U.S. 227,

74 S.Ct. 450, 98 L.Ed. 654 (1954), has

generally been regarded as the leading case

on the issue of how a district court should

treat unauthorized communications with

jurors. The Supreme Court in Remmer fash-

ioned the following rule:

In a criminal case, any private com-

munication, contact, or tampering,

Girectly or indirectly, with a juror

during a trial about the matter pending

before the jury is, for obvious reasons,

deemed presumptively prejudicial, if

not made in pursuance of known rules

of the court and the instructions and

A-49

directions of the court mad during the

trial, witn full knowledge of the par-

ties. The nrecumption is not conclusive,

but the burden rests heavily upon the

Government to establish, after notice

to and hearing of the defendant, that

such contact with the juror was harm-

less to the defendant. [Emphasis

supplied. ]

at 229, 74.8.Ct. at 31.

Both prior to and after Remmer,

this court strictly applied the presumptive

prejudice standard. See Krause v. Rhodes,

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

435 U.S. 924, 98 S.Ct. 1486, 55 L.Ed.2d

917

(1978) (civil case); United States v.

Ferguson, 486 F.2d 968 (6th Cir. 1973);

Stone v. United States, 113 F.2d 70 (6th

Cots

1940). The Stone and Ferguson cases

are instructive.

In Stone a juror was approached by a

third party. The juror immediately reported

the incident to the court and swore under

oath that he had not told other jurors of

the approach. The juror further assured

the court that he would decide the case as

though the incident had not occurred. The

court then asked each juror, except for

the one approached, if anything that might

prejudice him had taken place, including

discussions with third parties. Each juror

responded in the negative. Despite the

assurances obtained by the district court,

this court reversed. Although the eleven

jurors apparently never were informed of

the content of the conversation between

the approached juror and the outside party

(unlike the present case), the court feared

that the eleven would suspect that the one

juror who had not been questioned had been

A-51

approached. This was held to be sufficient

to raise the presumption of prejudice.

Moreover, the court refused to accept the

jurors' assurances as proof that no juror

had been prejudiced. In reference, for

instance, to the approached juror, the

court commented:

Jurors are human and not always con-

scious to what extent they are in fact

biased or prejudiced and their inward

sentiments cannot always be ascertained.

In the present case, the juror commend-

ably showed anxiety at the approach to

him concerning the case and whether he

leaned one way or the other because of

the occurrence, is beyond ascertainment.

113 F.2d at 77. Taken to its logical conclu-

Sion, this statement holds that juror assur-

ances of impartiality can never be relied

upon as rebutting the presumption of preju-

A-52

dice because jurors are incapable of deter-

mining whether or not their impartiality

has been compromised.

In Ferguson, a juror named Austin visit-

ed a mutual friend of the defendant and

himself. The two discussed the case against

the defendant for ten or twelve minutes.

Austin later remarked to a fellow juror

named Hampton that the government's check

kiting allegations were weak. Austin used

language very similar to that which had

been used by his friend. Austin also made

comments to a juror named Jordan. The dis-

trict court excused Austin from further

service. Hampton was allowed to remain

after admitting that he had heard Austin's

remarks but also after assuring the court

that his opinion had not been influenced.

Jordan denied discussing the case with

Austin.

SATE ae a

The court reversed, indicating that the

presumption of prejudice, “although rebut-

table, is a rigid one." 486 F.2d at 972.

Two points in Ferguson merit emphasis.

First, the presumption of prejudice was

not rebutted by excusing the juror who had

been approached by the outside party and

who had informed two other jurors of the

incident. The court appears to have thought

that once other jurors become aware of an

unauthorized communication, the presump-

tion of prejudice is nearly impossible to

overcome.

The district judge acted commendably

in his attempts to eliminate any pos-

sible prejudice so that the trial could

proceed. Unfortunately, the matter did

not come to the attention of the court

until after Austin had already dis-

cussed the case with other jurors. By

A-54

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then it was too late.

Id. In the present case, of course, none

of the jurors who received telephone calls

were excused and the entire jury heard

about the calls.

Second, the court in Ferguson expressed

its distrust toward juror assurances of im-

partiality, much as it had done in Stone:

Although Hampton assured the court

that he still had an open mind on the

case, and we have no reason not to be-

lieve that he made that statement hon-

estly, we cannot ignore the fact that

Jurors are iaeslis beings, subject to

the same suspicions, perhaps subconsci-

ously, as all other persons. It is not

unreasonable to believe that Hampton

may have had his suspicions aroused

that Austin's statements to him were

related to Austin's excusai from the

A-55

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jury and indicative of a possible at-

tempt by defendants to influence the

jury improperly.

Id. at 971-72. The court then stated with

reference to the entire jury that "we can

only speculate on whether suspicions were

formed that were later carried into the

deliberations." Id. at 972.

Were, Remmer, Ferguson and Stone con-

trolling, we would be hard pressed to af-

firm Pennell's conviction. As has been in-

dicated, the opinions in Ferguson and Stone

found the presumption of prejudice unre-

butted where a jury learned of an approach

to one of its members. Moreover, both

Opinions clearly exhibited a distrust of

juror assurances of impartiality. The

Supreme Court, however, has recently filed

an opinion that is relevant to the case as

hand. Smith v. Phillips, 455 U.S. 209,

A-56

be Pati ae eae

102 S.ct. 940, 71 L.Ed.2d 78 (1982). Thus,

the question is whether Phillips has so

changed the rules relating to unauthorized

communications with jurors that the pre-

sumptive prejudice standard as applied in

Ferguson and Stone no longer governs. We

conclude that Phillips has indeed altered

the law concerning unauthorized communica-

tions with jurors.

[6] Although Phillips involved bias

resulting from a juror's potential employ-

ment relationship with a law enforcement

agency, the principles set forth in the

opinion apply to allegations of jury par-

tiality generally. In essence, Phillips

reinterpreted Remmer. Although the Court

in Phillips referred to the Remmer pre-

sumptive prejudice standard, the Court

nevertheless stated:

This court has long held that the

A-57

Ree ae

Pr eT Pee ee aN PRE

Ae a ee

TT. PRS ee Oe

remedy for allegations of juror par-

tiality is a hearing in which the

defendant has the opportunity to prove

actual bias. [Emphasis supplied. ]

455 U.S. at 215, 102 S.Ct. at 945. Thus,

the Court held that Remmer does not govern

the question of the burden of proof where

potential jury partiality is alleged. In-

stead, Remmer only controls the question

of how the district court should proceed

where such allegations are made, i.e., a

hearing must be held during which the de-

fendant is entitled to be heard. 455 U.S.

at 216, 102 S.Ct. at 945. In light of

Phillips, the burden of proof rests upon a

defendant to demonstrate that unauthorized

communications with jurors resulted in

actual juror partiality. Prejudice is not

to be presumea.?°

10. Unlike the dissenting opinion, we read

Remmer as requiring the government to do

(cont. )

A-58

&S

[7] Moreover, the Court in Phillips

implied that deference should be accorded

a district court's findings made after a

properly conducted hearing:

The safeguards of juror impartiality,

such as voir dire and protective in-

structions from the trial judge, are

not infallible; it is virtually impos-

sible to shield jurors from every

contact or influence that might theo-

retically affect their vote. Due process

means a jury capable and willing to —

decide the case solely on the evidence

before it, and a trial judge ever watch-

ful to prevent prejudicial occurrences

10. (cont. )

more than come forward with evidence that

unauthorized communications with jurors

were harmless. As the quotation cited at

17 supra, indicates, Remmer placed a heavy

burden of proof upon the government. Ac-

cordingly, Phillips worked a substantive

change in the law.

A-59

and to determine the effect of such

occurrences when they happen. Such

determinations may properly be made

at a hearing like that ordered in

Remmer and held in this case. [empha-

sis supplied. ]

455 U.S. at 217, 102 S.Ct. at 946. This

language is consistent with the rule,

adopted by several courts of appeals prior

to Phillips, that a district court's deci-

sion not to grant a mistrial after investi-

tating allegations of unauthorized contact

with jurors should be reviewed only for

abuse of discretion. See United States v.

Phillips, 664 F.2d 971, 998-99 (Sth Cir.

1981), cert. denied, 457 U.S. 1136, 102

S.Ct. 2965, 73 L.Ed.2d 1354 91982); United

States v. Armstrong, 654 F.2d 1328, 1332

(9th Cir. 1981), cert. denied, 454 U.S.

1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982);

A-60

United States v. Almonte, 594 F.2d 26l,

265-66 (lst Cir. 1979); United States v.

Fleming, 594 F.2d 598, 608 (7th Cir.),

cert. denied, 442 U.S. 931, 99 S.Ct. 2863,

61 L.Ed.wd 299 (1970). We hereby adopt the

abuse of discretion standard of review.

{8] Finally, in contrast with this

court's opinions in Ferguson and Stone,

the Supreme Court in Phillips stated that

juror testimony at Remmer hearings, often

the evidence upon which such hearings will

turn, should not be regarded as "inherently

; suspect." 455 U.S. at 217 n. 7, 102 S.Ct.

at 946 n. 7. Indeed, the Court emphasized

that “one who is trying as an honest man

' to live up to the sanctity of his oath is

well qualified to say whether he has an

unbiased mind in a certain matter." Id.;

cf. United States v. Blanton, 719 F.2d 815

(6th Cir. 1983) (en banc) (juror self-

FEMI ET SE Ee eT a ee

A-61

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evaluation during voir dire concerning

whether pretrial publicity had resulted

in opinions about guilt or innocence that

could not be set aside). Even the dissent

in Phillips recognized that juror testi-

mony at a Remmer hearing involving unau-

thorized communications with outsiders is

likely to be reliable because "a juror will

be less reluctant to admit that he was

disturbed or upset by the misconduct of a

third party, than to admit that he himself

acted improperly." 455 U.S. at 236, 102

S.Ct. at 955 (Marshall, J., dissenting).

Accordingly, we hold that if a district

court views juror assurances of continued

impartiality to be credible, the court may

rely upon such assurances in deciding

whether a defendant has satisfied the

burden of proving actual prejudice.+}

ll. (See p. A-63)

Pennell would distinguish Phillips on

the basis that the decision involved a

habeas corpus petition brought pursuant to

18 U.S.C. § 2254. The majority in Phillips

did state:

7

7

ll. The dissenting opinion contends that

Phillips does not govern this case because

it involved juror misconduct whereas this

case involves unauthorized contacts by an

anonymous third party. Juror misconduct is

said to be potentially more prejudicial

than third party misconduct. In some cases,

juror misconduct may be so potentially

prejudicial that bias must be conclusively

presumed.

We agree that juror misconduct can be

more prejudicial than unauthorized communi-

cations by third parties. We conclude,

however, that this fact supports the result

reached in this opinion. If a Remmer hear-

ing at which the defendant has the burden

of proving actual bias (as opposed to a

hearing at which the government bears a

heavy burden of disproving prejudice) is

adequate to most cases involving potenti-

ally’ more prejudicial juror misconduct,

then a fortiori such a hearing should suf-

fice where unauthorized contacts by third

parties are involved. Furthermore, if juror

assurances of impartiality can be reliable

in juror misconduct cases where the poten-

tial for prejudice is greater, such assur-

ances should be reliable in cases involving

unauthorized communications by third parties.

A-63

Of equal importance, this case is a

federal habeas action in which Justice

Birns’ findings are presumptively cor-

rect under 28 U.S.C. § 2254(d).

455 U.S. at 218, 102 S.Ct. at 946. We view

this statement as an independent and

alternative ground upon which the Supreme

Court rested its decision not to disturb

the state court's finding of nc juror

12

bias. Hence, we are convinced that had

Phillips involved a direct appeal from a

federal conviction, the Court would have

promulgated the same guidelines concerning

the burden of proof at Remmer hearings and

the probative value of juror testimony at

such hearings.

[9] Turning to the facts of this case,

12. The presumption of correctness does not

apply, of course, to direct appeals of

federal criminal ccnvictions.

A-64

we hold that the district court did not

abuse its discretion in refusing to grant

the mistrial motion. When notified that

five jurors had received threatening tele-

phone calls, the court immediately con-

ducted a Remmer hearing in order to deter-

mine whether the impartiality of the five

contacted jurors had been compromised ana

whether the other jurors had learned of

the telephone calls. The court thoroughly

questioned the contactee jurors on an

individual basis and concluded that their

assertions of unimpartiality were worthy

of belief. In particular, the court closely

questioned Juror Saveski, who two other

jurors had described as apprehensive and

nervous. In light of Saveski's repeated

assertions of her continued ability to

decide the case solely upon the evidence,

the district court was entitled to find

A-65

that she remained impartial.

The court then sought to ascertain

whether the telephcne calls had affected

ary of the other jurors. The court obvious-

ly was successful in this endeavor because

Juror Lorerz informed the court through

the foreworan's ncte that her ability to

Celiberate might have been impaired. Again,

the court engaged in extensive questioning

which revealed that although Lorerz was

nervous and somewhat apprehersive about

the telephone calls, this nervousness would

not affect her verdict. The district judge,

who waS in a pesition to evaluate Lcrenz's

iemeanor and attitude as she answered, was

“satisfied that she would remain impartial.

In view of the Supreme Ccurt's hclding that

jurors are well qualified to say whether

Or net their impartiality has been com-

promised, and further in view of the fact

A-66

that the district court found the jurors'

repeated assertions of unimpaired impar-

tiality worthy of belief, we conclude that

the district court did not abuse its dis-

cretion in holding that Pennell had not

demonstrated actual prejudice.

Ve

A fourth assignment of error is that

the government entrapped the defendant.

Pennell contends that he also was a con-

fidential informant for Agent Catalonga.

After obtaining the information about the

Florida cocaine source in March 1981,

Pennell telephoned Catalonga on April 17

to inform him that he was in a position to

infiltrate a narcotics distribution ring.

Thus, Pennell asserts that he acted there-

after in the belief that he was working

for Catalonga. Catalonga and the other

A-67

informant purportedly entrapped him by

giving him the telephone number of Florida

DEA Agent Velazco.

{10, 11] The central inquiry in en-

trapment cases is whether law enforcement

officials implanted a criminal design in

the mind of an otherwise law-abiding citi-

zen or whether the government merely pro-

vided an opportunity to commit a crime to

one who was already predisposed to do so.

See, e.g., United States v. Russell, 41ll

U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366

(1973); Sherman v. United States, 356 U.S.

369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958);

United States v. Norton, 700 F.2d 1072,

1075 (6th Cir.), cert. denied, U.S.

» 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983).

If a defendant raises the entrapment de-

fense, the government bears the burden of

proving predisposition beyond a reasonable

A-68

doulbt. United States v. Jones, 575 F.2d

81, 83 (6th Cir. 1978).

{[12, 13] Second, in order for a claim

of entrapment as a matter of law to succeed,

the testimony and facts must be undisputed;

a court may not choose between conflicting

testimony or make credibility determina-

y

tions. Sherman, 356 U.S. at 373, 78 S.Ct.

at 821; United States v. Henciar, 568 F.2d

489, 491 (6th Cir. 1977), cert. denied,

435 U.S. 953, 98 $.Ct. 1582, 55 L.Ed.24

803 (1978). Furthermore, the undisputed

evidence must demonstrate a "patently

Clear" absence of predisposition. Henciar,

568 F.2d at 491. If either of these ele-

ments 1S missing, then the predisposition

guestion is for the jury to decide. Having

thoroughly reviewed the record, we conclude

that Pennell's and the government's ver-

Sions of the events in question were con-

A-69

flicting and that the government introduced

a substantial quantity of evidence on the

predisposition question. Since neither

element necessary for a finding of entrap-

ment as a matter of law is present, the

district court properly submitted the en-

trapment claims to the jury.

[14] As has been indicated, the govern-

ment's version of what transpired differs

markedly from Pennell's. The defendant

approached Livonia police officer Morris

and Agent Catalonga on July 30 and 3l,

1980 with information about narcotics traf-

ficking that was occurring in his store.

After listening to Pennell on July 31,

Catalonga became convinced that Pennell

himself was selling narcotics. Catalonga

specifically warned the defendant that

he would be prosecuted if he were involved

in any illegal activity. Both the official

A-70

report of the meeting (App. at 97-98) and

Catalonga's testimony (Tr. Vol. X at 114)

support the conclusion that this warning

was given. According to the government,

Pennell could not have left the July 31

meeting thinking that he was a DEA infor-

mant.??

The government further contends that

nothing occurred between July 31, 1980 and

April 17, 1981 that could have changed

this impression. Indeed, when Pennell

called Catalonga on the latter date, he

acknowledged that he had no authority to

engage in narcotics transactions on behalf

of the DEA. Early in the conversation, the

13. Any status that Pennell may have had

as a Livonia police department informant

clearly ended on October 6, 1980 when he

informed Officer Morris in rather strong

language that he no longer wished to be

associated with the Livonia police (App.

at 91-93).

following exchange occurred:

App.

Pennell: ... Now, I have done some

work tht maybe I shouldn't have done.

That I told you that I was going to do

when I met you last summer. And I'm

in a position now where I got a lot of

trust, a lot of faith with a lot of

people.

Catalonga: Ah huh.

Pennell: And if you really want to put

something together and really take a

lot of people down. We can do it.

Catalonga: What kind of people?

Pennell: Big! You told me not to do it.

Not to get involve [sic] and all the

rest of that s---. You and ah you and

that ah re that imbecile from Lo

Livonia. [Emphasis supplied. ]

at 65. Later in the same discussion,

Pennell again acknowledged that he did not

A-72

have permission to commit otherwise illegal

acts:

Pennell: And I'm telling you I'm bac

position right now to really really

take a whole bunch of people down. I

mean big suckers boy.

Catalonga: And they're part of Mac-

Donald's people.

Pennell: Some of them are. I ran into

another ah organization that isn't.

Catalonga: All right, but you had

nothing to do with these people huh.

Pennell: I've never done business with

them.

Catalonga: But you've been out of the

country and you've seen their stuff

and.

Pennell: But I've never but I I've

never been in possession of merchan-

dise.

A-73

Catalonga: Cause, you know that would

be ah, you know that's the way I ex-

plained it before.

Pennell: I know. [Emphasis supplied. ]

App. at 68. Nor did Agent Catalonga author-

ize Pennell to engage in narcotics trans-

actions during the April 17th conversation

itself. Suspecting that Pennell was attempt-

ing to establish a defense if later appre-

hended for drug trafficking, Catalonga

stated that he would call Pennell back in

approximately a week (App. at 68). Catalonga

never did so (Tr. Vol. X at 110-12). Hence,

the government concludes that the defendant

could not have considered himself a DEA

informant when he engaged in the conduct

that led to his arrest.

Furthermore, the government introduced

Strong evidence of predisposition. The con-

fidential informant testified, for instance,

A-74

that Pennell was "fronting" him four ounces

of cocaine per week during the summer of

1980. Catalonga testified that after listen-

ing to the defendant on July 31, 1980, he

became convinced that Pennell was traffick-

ing in narcotics because Pennell admitted,

among other things, that he nae invested

$30,000 in MacDonald's drug business and

had accompanied MacDonald on narcotics

deliveries. Thus, the jury could have be-

lieved that the defendant had freely en-

gaged in cocaine distribution in the past

and was inclined to do likewise during the

time period covered by the indictment.

Second, the record reflects that Pennell

agreed with the informant to tap the Florida

cocaine source well before he callec

Catalonga on April 17, 1981. The jury could

have found this sequence of events to be

evidence that Pennell's telephone call was

A-75

oS

merely an attempt to establish a defense

in the event of future apprehension.

Third, some of the defendant's state-

ments made to the undercover agents during

the negotiations for the two pounds of co-

caine were highly probative on the pre-

disposition issue. Pennell told the agents,

for example, that he had made over seventy

airplane trips to Columbia and to the

Caribbean in order to import illegal drugs

into this country. Furthermore, the defen-

dant related to the agents the details of

a secret Customs Service anti-drug smug-

gling operation that had been in effect

for less than two weeks. The defendant knew

what type of aircraft that Customs was

using and the flight altitudes that the

Service was monitoring. Pennell also sum-

marized measures that could be taken to

evade detection, such as flying below fifty

A-76

feet or above 14,500 feet, rapidly changing

radio frequencies and using side-view mir-

rors so that government planes could not

approach unseen from the rear. Taken as a

whole, the government's evidence could

easily have convinced the jury that Pennell

was predisposed beyond a reasonable doubt

to commit the offenses with which he was

charged. The defendant's entrapment argu-

ment is without merit.

VI.

(15, 17] A final contention is that

the government introduced insufficient evi-

dence to support a guilty verdict on the

conspiracy count. Specificaliy, Pennell

asserts that the government failed to prove

an agreement between himself and at least

one other person. The defendant correctly

argues that proof of an agreement between

A-77

re

ay

OS ae

Oy ae he |

two persons is an absolute prerequisite to

obtaining a conspiracy conviction. Iannelli

v. United States, 420 U.S. 770, 777, 95

S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975).

Proof of mere negotiations between drug

traffickers will not suffice; the conspir-

ators must actually agree to accomplish an

illegal objective or accede to illegal terms

that are acceptable to both. See United

States v. Tombrello, 666 F.2d 485, 490 n.

3 (llth Cir.), cert. denied, 456 U.S. 994,

102 S§.Ct. 2279, 73 L.Ed.2d 1291 (1982);

United States v. Martino, 648 F.2d 367,

405 (5th Cir. 1981), cert. denied, 456

U.S. 943, 949, 102 S.Ct. 2006, 2007, 2020,

72 L.Ed.2d 465, 474 (1982); United States

vw. Bnetanm, 622 8.26 857, 867 (35th. Cizc. i980),

cert. denied, 450 U.S. 912, 101 S.Ct. 1351,

67 L.Ed.2d 336 (1981), cert. denied sub nom.

Holley v. United States, 451 U.S. 907, 101

A-78

ge coat

eae x 1s

7 ¢

is)

oe

S.Ct. 1974, 68 L.Ed.2d 294 (1981).

[18] The last point merits particular

emphasis because the bulk of the govern-

ment's evidence in this case concerned

Pennell's dealings with the informant and

the DEA agents. To establish an agreement

between Pennell and a non-government attil-{

iated party, the government relied primari-

ly upon statements made by the defendant

both before and after the commission of

the charged crimes.+4 Before proceeding,

it must be noted that the courts have dis-

tinguished between a defendant who admits

facts sufficient to establish an element

of a crime after the crime has been com-

mitted and a defendant who admits similar

facts before, or during the commission of,

a crime. The defendant's out-of-court

14. Pennell stood trial alone. The indict-

ments did not name the person or persons

with whom he was alleged to have conspired.

A-79

admission must be corroborated in the

former situation. Opper v. United States,

348 U.S. 84, 89-91, 75 S.Ct. 158, 162-63,

99 L.Ed. 101 (1954); Smith v. United States,

348 U.S. 147, 154-55, 75 &.Ct. 194, 198,

99 L.Ed. 192 (1954); United States v. Todd,

657 F.2d 212, 216-17 (8th Cir. 1981), cert.

denied, 455 U.S. 926, 102 S.Ct. 1288, 71

L.Ed.2d 469 (1982), but need not be corrob-

orated in the latter instance. Warszower

v. United States, 312 U.S. 342, 347, 61

S.Ct. 603, 606, 85 L.Ed. 876 (1941) (admis-

sion before the crime); United States v.

Head, 546 F.24 6. 9 (2a Cir. i376), cert.

denied sub nom. Wheaton v. United States,

430 0.6. 931, 97 &.Ct. L551, 31 &.BC.2¢

775 (1977) (admission during the pendency

of a conspiracy); United States v. Nichols,

421 F.2d 570, 574 (8th Cir. 1970) (admis-

sion before the crime). The rationale

A-80

underlying this rule is that out-of-court

admissions occurring after a crime has

been completed are less reliable than

Similar admissions made beforehand.

The corroborating evidence standing

alone need not establish every element of

the charged crime. Opper, 348 U.S. at 92-

93, 75 S.Ct. at 164: United States v.

O'Connell, 703 F.2d 645, 648 (lst Cir.

1983). An out-of-court admission is ade-

quately corroborated if the corroborating

evidence “supports the essential facts

admitted sufficiently to justify a jury

inference of their truth." Id.

[19] We hold that the evidence, when

viewed in the light most favorable to the

government, could have been accepted by a

reasonable jury as adequate to support the

conclusion that Pennell agreed with at least

one other person to possess with intent to

A-81

distribute cocaine. See Meyers, 646 F.2d

1142, 1143 (6th Cir. 1981). First, the de-

fendant admitted, in a May 5, 1981 tele-

phone conversation with Agent Wagner, that

he was part of a drug distribution chain.

During this conversation, Pennell indicated

that he could send a pound of cocaine "down

the pike" immediately and that he had one

pound of the drug “down the tubes right

now." When Wagner asked the defendant if

he could “take a double header," i.e., two

pounds of cocaine, Pennell responded, "I

got the green, and I got the outlets...."

Since this statement was made before the

completion of the criminal acts for which

he was charged, the statement did not have

to be corroborated.

Second, after Penneli was arrested and

given the Miranda warnings, he made the

following statement:

A-82

Look, I got to get the money or the

cocaine back to my people. If I don't

get the money back or the cocaine back

to my people, they are going to kill

me. They might even kill my family.

(Tr. Vol. VI at 74).

The defendant also indicated that the "peo-

ple" he referred to were from the south

and were of Spanish descent.

Since this admission was made after

the crimes in question were completed,

corroboration was necessary. Corroboration

was supplied, however, by the May 5 state-

ment made to Agent Wagner. Moreover, the

government introduced evidence that the

street value of the two pounds of cocaine

was between $80,000 and $125,000, that

Pennell distributed drugs to Montreal and

to the west coast, and that Pennell's car,

at the time of the arrest, contained para-

A-83

phenalia useful for "cutting" cocaine.

The paraphenalia included a triple beam

balance, a teaspoon, a razor blade, rubber

syringes, forceps, rubber gloves, aluminum

foil and seventeen plastic bags. The large

amount of cocaine involved, the outlying

markets in which the cocaine would be dis-

tributed and Pennell's possession of equip-

ment useful for dividing the cocaine into

smaller quantities for various distributors

all support the conclusion that Pennell

was not working alone. Consequently, the

Circumstantial evidence supports the essen-

tial fact admitted in the post-arrest

statement (i.e., the existence of a cocaine

distribution network) enough to justify

an inference of the statement's truth.

Viewing the defendant's admissions and

the circumstantial evidence as a whole, we

hold that a reasonable jury could have

A-84

concluded beyond a reasonable doubt tnat

the defendant was a member of a cocaine

distribution system. The jury reasonably

could have inferred that such a system was

the product of an agreement and that a

member of the system such as Pennell must

have agreed with others to perform acts

necessary to achieve the purposes for which

this system was constructed. One such act

would be possession of cocaine with the

intent to distribute it. Although the

government did not produce a witness who

could directly testify that he and Pennell

entered inte “an agreement, direct evidence

of the elements of a conspiracy is not

required. Meyers, 646 F.2d at 1144.

One final point merits attention.

Throughout this litigation, the government

has contended that the defendant's refer-

ences to "Mr. T." constituted evidence of

A-85

an agreement. Having reviewed the record,

however, we conclude that Pennell only in-

dicated that he would be able to negotiate

a deal with Mr. T in the near future. He

did not state that an agreement with Mr.

T was already in place. Accordingly, we

have not treated the references to Mr. T

as evidence of an agreement. See Melchor-

Lopez, 627 F.2d at 888-91. Sufficient

other evidence nevertheless exists to sup-

port the verdict on the conspiracy count.

Vil.

The judgment of the district court is

AFFIRMED.

CELEBREZZE, Senior Circuit Judge, dis-

senting.

F /

The majority holds that a presumption

of prejudice should not be applied in a

hearing to Getermine jurore bias when five

A-86

jurors receive late night threatening

phone calls, the entire jury discusses the

phone calls during deliberations, and one

juror expresses privately doubts as to

whether she can render an objective deci-

Sion solely on the evidence. Respectfully,

I dissent.

Generally, the remedy for allegations

of juror bias is a hearing to determine

whether actual bias exists. E.g., Smith v.

Phillips, 455 U.S. 209, 102 S.Ct. 940, 71

L.Ed.2d 78 (1982). The rule to be applied

at such a hearing has long been that un-

authorized contact with a juror ina crim-

inal case is presumptively prejudicial.

This rule was set forth by the Supcone

Court in 1892:

Private communications, possibly preju-

dicial, between jurors and third per-

sons ... are absolutely forbidden and

A-87

invalidate the verdict at least unless

their harmlessness is made to appear.

(emphasis added).

Mattox v. United States, 146 U.S. 140, 150,

13 S.Ct. 50, 53, 36 L.Ed. 917 (1892). The

rule that any unauthorized contact with a

juror during a@rial is presumptively

prejudicial was restated by the Supreme

Court in Remmer v. United States, 350 U.S.

377, 76 S.Ct. 425, 100 L.Ed. 435 (1956).

The Court in Remmer admonished that the

government has a heavy burden in overcoming

the rebuttable presumption; it must demon-

strate that “such contact with the juror

was harmless to the defendant.” Id. at 229,

102 S.Ct. at 952; Mattox v. United States,

146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).

As the majority concedes, this Court

“strictly applied the presumptive prejudice

standard” in both criminal and civil cases.

A-88

United States v. Ferguson, 486 F.2d 968

(6th Cir. 1973); Stone v. United States,

113 F.2d 78 (6th Cir. 1940). See Krause v.

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

denied, 435 U.S. 924, 98 S.Ct. 1488, 55

L.Ed.2d 517 (1978); Stiles v. Lawrie, 21l

F.2d 188 (6th Cir. 1954). Other circuits

have also applied the presumption of preju-

dice in Remmer type hearings to determine

juror bias. See Rinker v. County of Napa,

724 F.2d 1352 (9th Cir. 1983) (unauthorized

communication with jury creates presumption

of prejudice and government has heavy bur-

den to demonstrate that no prejudice re-

sulted from such communication) ; United

States v. Flaherty, 668 F.2d 566 (lst Cir.

1981); Misller v. Estelle, 677 F.2d 1089

(Sth Cig. bs Gere. denied, 459 0.8. 1072,

103 S.Ct. 494, 74 L .d.2d 636 (1982); United

States v. Greer, 620 F.2d 1383 (10th Cir.

A-89

1980); United States v. Fleming, 594 F.2d

596 (7th Cir.), cert. denied, 442 U.S. 931,

99 S.Ct. 2863, 61 L.Ed.2d 299 (1979); United

States v Boscia, 573 F.2d 827 (3d Cir.),

cert. denied, 436 U.S. 9ll, 98 S.Ct. 2248,

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

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

Genied, 439 U.S. 928, $39 S.Ct. 314, 58 L.

Ed.2d 321 (1978) (dicta). The majority dis-

regards this overwhelming case law and holds

that the Supreme Court in Smith v. Phillips,

45$ U.S. 209, 102 $.Ct. 940, 71 L.EG.2d 78

(1982), has "reinterpreted" Kemmer. In

essence, the majority believes that

Phillips not only departs from Supreme Court

precedent, but also, overrules precedent

established by this court and at least

seven other federal courts of appeal.

The majority infers that the presumptive

prejudice standard was altered by Phillips

A-90

Vy ea

oe ae

A lie

uy

ial L

a ae ee ~

5 a ome a

A

because the Supreme Court noted that the

defendant must prove actual bias at a

Remmer style hearing. The majority must

have reasoned that Remmer placed the bur-

den of proof from the government to the

defendant. Accordingly, the majority holds

that the presumption of prejudice no longer

applies. In my view, the majority misap-

prehends the role of the presumption in

both Remmer and Phillips.

A presumption has a narrow effect:

A presumption imposes on the party

against whom it is directed the bur-

den of going forward with evidence to

rebut or meet the presumption, but

does not shift to such party the

burden of proof.

10 J. Moore, Federal Practice Sec. 300.01

(1970). Under Remmer, a defendant has the

burden of establishing that the unauthorized

A-91

Semel me Sth ene ee

Jame . . 5 meas il 7

ee

)

juror contact was prejudicial; the defen-

dant is aided by a presumption that prej-

udice did arise from unauthorized juror

contact. In the shenaes of evidence to the

contrary, a presumption operates to inval-

idate any verdict. In contrast, if the

government introduces evidence which rebuts

effectively the presumption that unauthor-

ized juror contact was prejudicial, the

court would allow the case to continue to

a final jury resolution. Thus, the govern-

ment has the burden of going forward with

evidence to rebut the presumption. Remmer

vw, Umseea States. 330 0.8. 3774 76 8.6.

425, 100 L.Ed. 435 (1956). The Supreme

Court's decision in Phillips it is not in-

consistent with this procedure.

In Phillips, the issue was whether a

conclusive presumption of prejudice should

apply. The issue of a conclusive presump-

tion, more often termed the doctrine of

A-92

"implied bias," involves a different line

of cases than those which address a presump-

tion of prejudice.? Phillips is merely an-

other case which rejects the use of a con-

Cclusive presumption of prejudice under cir-

cumstances which are not extreme. In less

. The presumption of prejudice doctrine

is represented by Remmer v. United States,

350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435

(1956), and its progeny. In contrast, the

doctrine of implied bias is represented

by cases such as Dennis v. United States,

339 U.S. 162, 70 S.ct. 519, 94 L.Ed. 734

(1950) and Leonard v. United States, 378

U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028

(1964) (per curiam).

Justice O'Connor's concurrence in

Phillips indicates clearly that under ex-

treme circumstances, for example when a

juror actually participates in the criminal

act with a defendant, a postconviction

Remmer type hearing is inadequate to safe-

guard a defendant's right to a fair and

impartial jury. In such extreme circum-

stances, juror bias may be implied conclu-

Sively without a hearing. Justice O'Connor

was concerned that the majority's opinion

in Phillips would be read as a rejection

of the implied bias doctrine in all circum-

stances.

Phillips and Remmer represent two dif-

ferent doctrines. Which doctrine applies

(cont. )

A-93

extreme cases, such as those in Phillips

and the case at bar, a post-conviction hear-

ing, where the defendant is aided by the

presumption of prejudice, will suffice to

determine whether juror bias exists.

There is no precedent in support cf

the majority's conclusion that the Supreme

Court has abandoned the application of the

presumption of prejudice when unauthorized

contacts are made with jurors.? Moreover,

the majority has acknowledged that if

l (cont. )

depends upon the gravity of the breach of

the jury's integrity. In extreme cases,

such as when a juror is involved in serious

misconduct, bias 1s to be presumed conclu-

Sively. Under less serious circumstances,

such as when a jury might be affected by

the misconduct of a third party, a Remmer

type hearing safeguards adequately a de-

fendant's right to an impartial jury.

2 If the Supreme Court had intended

Phillips to overrule Remmer and its estab-

lished progeny, it would have done so

Clearly. Absent a clear indication that

the Supreme Court has "reinterpreted"

Remmer, I cannot agree with the majority's

assertion that the presumption of prejudice

(cont. )

A-94

Remmer and Sixth Circuit precedent did con-

trol this case, it would be “hard pressed

to affirm the defendant's conviction." In

my view, Remmer controls the disposition

of this case.

There is no evidence in the record to

suggest that the trial court applied the

presumption of prejudice at the hearing

to determine whether the improper jury con-

tact was prejudicial. Because the court

did not apply a presumption required by

the law, the hearing was defective. In my

view, the conviction should be reversed

and the case remanded for a new trial.

2 (cont. )

standard has been abandoned. In my view,

the Supreme Court's opinion in Phillips

does not address the dispositive issue in

this case; namely, whether the court ap-

plied a presumption of prejudice at the

hearing to determine whether jurors were

biased by the threatening phone calls.

A-95

FILED

JUL 31, 1984

JOHN P. HEHMAN, CLERK

NO. 83-1243

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee

)

)

)

)

vs. ) ORDER

)

GORDON PENNELL )

)

)

Defendant-Appellant

Before: ENGEL and CONTIE, Circuit Judges;

and CELEBREZZE, Senior Circuit

Judge.

The Ccurt having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

Original panel members but also to all other

active judges of this Court, and less than

a majority of the judges having favored

the suggestion, the pet;ition for rehearing

has been referred to the original hearing

panel.

A-96

The panel has further reviewed the

petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission

and decision of the case. Accordingly, the

*

petition is denied.

*

The Honorable Anthony J. Celebrezze

dissents from this order.

ENTERED BY ORDER OF THE COURT

/s/

John P. Hehman, Clerk

97

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