# Appendix — Pennell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2341%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1158 ## Text 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 A-i ae Os ST sete tt (co Rw 6 b i t t 4 , i Oe a thea i =e ieee hia a bined oe eae DEA —* ay eter _ vf ages yy; i : : ian ee i ae are ly 7 = M * dup. eas 73) . > ¢ 5 - i — =r => — 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 A-3 .v oe ne 7 rt sed a) rk) u a Saat ' * os 7 ~ ee _ 4 i Q 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. A-4 AMA hve ae - 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 A-5 2 a. ais +. eis: : eee ae a st pean ae ane iw Pa -- 34 ae 4 — 7) a er ats ioe ones 3 eh 4 x i be a a et 7 4 4 4 . a Si 7 odes rote a * Po _ f 2 i = Ps [ts Va : 4 4p de RA LARS ake en ARR ee & Leni 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- A-7 oe po aT ey) ort Ain ‘ Sates Pegs: so ee a ee ; n i ee ~ at 2 ’ he det As .. - ' * hs Lene —- + e : 2 a 1: i> > Fs aie 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 A-8 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 A-1ll ol 7 LA ie oe a >. Let tht) *. 2 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. A-14 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. A-15 | ne : baie 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 A-17 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- A-18 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. A-19 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 A-20 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- A-22 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 A-23 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. 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 re eae ee ee ee Mad . 7 : > 7 cs a 7 a i a alt Vig + = » 8 a ee ae ta eno nk ie eon ' ‘ = OF sc ~ pagel 7 ' ~. - “he = aT YS ee M sdy a a | i - az , | Fs ate rt o as _ af 9 -_ 2! ; — a Peet : p ie Pre = - a : - a eee) - * : _ en i i~ > 7 7 : . et ee Yo el him, a ie al ey ee i aR ee: oy av = 6s aa ae eo — : DC Tien LY pe he Us i ; Tl Ot A eT od ite, 7 oe here - crap eae _ ‘ 0 — = na. = aia) aye > 7 Los ox \ oe 7 : 7 nes (>a eee a eae = = 2 oe Sears ered) ar ou _ va =o at ean - ee ne eee ee 6a eer =r _— - ar oa =, =A. Y ho Or 4 re a ieee > Pat > _ ee ie ee ee ae a oa pais Co aE: ee eae a 7 Pu ae) i 7 nae - = 7 a tas ; at) ae > pe ey Ps he Pee an) : a 7 mae eg : : 8 - 2 s > frre 0 by 2) Rie em Se 5! slag to EP A AAAS ie 1c Ree Es A ae aA PG le GAARA AEDT 2 ae ti ch le Baie A Stall 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 ir oe! ‘ in. Line - ya ae : SE Nei aot ; i. + eee eat FOS "? ! ‘iy hs Bad? @ ‘ 7 aa: wf * “Wer = tT daa sD ee br gt ae eee oe PEs. —_—— = MIRE. a 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 pea we RR a aN ae ar a p a : 3 3 ; ui ee ee ee ee ee ee | a eT aes De Ei bs Neate oe : er eS OP ee ee ee ee ee ee Pek Cae oaty ABA Fors ale NS A site Se NY, Stk arta: ATOM Ba Rte Ona on oom SG a SALT aot Test de os 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 RR ati oa ive le AE? a > ee ~s en | 7 i 4 iad 4 “gj P y 4 ¢ a - a ‘ * 7 wae 5 as Pars , c u é fe 2s. ste ; 7 - “ a —e ' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2341%3A2. Public record. Not legal advice.