Regas Brief
(This site was a mirror of http://www.flash.net/~rcoursey/regas.htm Last Updated 4/26/96
For further info, the address at one time was Richard Coursey rcoursey@flash.net)
What follows is a portion of the brief filed by attorney Nancy
Lord, MD, in the case of U.S. v. Yvonne Regas. Regas was
accused of jury tampering and related charges for causing FIJA
"True or False?" brochures to be placed on automobile
windshields around the federal courthouse in Reno, Nevada during
the trial of her son and ex-husband on drug charges.
This represents the first time federal criminal charges were
filed against a "fully informed jury" activist. The case ended
in a dismissal, offered Ms. Regas as a pre-trial diversion,
within a few days of this brief being filed. Since that time, a
"hands-off" policy seems to be in effect at most federal
courthouses around the nation when activists show up to
distribute literature. Thus, even though this case never went
to trial, and therefore never gave rise to case law, the brief
itself appears to have had a positive effect upon judicial
appreciation of the First Amendment's protection of free
political speech.
As with any legal materials made available by the Jury Power
Page, however, the publishers assume no responsibility for the
efficacy of this brief, or for the accuracy or pertinence of its
citations, and do not offer these materials as or in lieu of
professional legal advice.
IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEVADA
United States v. Yvonne Regas
* * *
II. THE SUPPRESSION OF GENERAL INFORMATION REGARDING A JURY'S
POWER OF NULLIFICATION IS NOT A COMPELLING GOVERNMENTAL INTEREST.
Defendant's pamphlets contained truthful information regarding
a jury's power of nullification, and advocating the use of this
power when appropriate. The government has no legitimate
interest in suppressing truthful information and opinions. The
government has no compelling interest in the prevention of jury
nullification.
The power of a jury to nullify a verdict in a criminal
prosecution has been well established for centuries.
Three states, Georgia, Maryland and Indiana,
specifically mention that the jury has the power to decide the law as well as
the facts of a case in their state constitutions.
The source of this power is derived by legal tradition and
by constitutional mandates of trial by jury, by
constitutional prohibitions against directed verdicts of guilt in criminal
cases, prohibitions against punishing juries for turning in
inconsistent verdicts or verdicts unsupported by the law or
facts of the case, and from prohibitions against requiring the
jury to justify its acquittal.
The power of nullification has been uniformly recognized by
courts. See United States v. Boardman, 419 F.2d 110
(1st Cir., 1969); Washington v. Watkins, 655 F.2d 1346
(5th Cir. 1981); United States v. Kzyske, 836 F.2d
1013 (6th Cir. 1988); United States v. Dougherty,
infra; United States v. Dellinger, 472 F.2d 340
(7th Cir. 1972); United States v. Wiley, 503 F.2d 106
(8th Cir. 1974); United States v. Trujillo, 714 F.2d
102 (11th Cir. 1983); State v. Butler, 153 S.E.2d 70
(N.C. 1967). The right to nullify a verdict is occasionally
questioned, the argument made that the jury has a duty to follow
the law as instructed by the court (and convict if it finds the
defendant guilty beyond a reasonable doubt). However, the fact
remains that
there is no means to compel a juror to convict a
defendant, and no way to punish a juror for refusing to convict.
As a result, the duty to apply the law as instructed by the
judge is not a legal duty; it is a moral duty.
Most jurisdictions do not permit specific jury instructions
regarding the jury's right of nullification or of its power to
decide the applicable law. The general trend has been to inform
the jurors that they have a duty to follow the court's
instructions, and leave information regarding the right to jury
nullification to informal or unofficial sources. The court in
U.S. v. Dougherty, 473 F.2d 1113, 1135 (D.C. Cir.,1972), in
considering whether to instruct on the right of jury
nullification observed, reasoned that:
"The way the jury operates may be radically altered if there is
alteration in the way it is told to operate. The jury knows
well enough that its prerogative is not limited to the choices
articulated in the formal instructions of the court. The jury
gets its understanding as to the arrangements in the legal
system from more than one voice. There is the formal
communication from the judge. There is the informal
communication from the total culture -- literature (novel,
drama, film, and television); current comment (newspapers,
magazines and television); conversation; and, of course history
and tradition. The totality of input generally convey
adequately enough the idea of prerogative, of freedom in an
occasional case to depart from what the judge says."
Even if a criminal defendant is found to have no right to have
a judge instruct the jurors in their right of jury
nullification, it does not follow that the government has a
right to suppress all information regarding jury nullification.
It is one thing to disallow a jury instruction at trial. Judicial instructions
re
taken very seriously by jurors. The courtroom is a controlled
setting where a trial judge is given a great deal of deference
and respect and there is a possibility that nullification
instructions could be misconstrued to mean that a jury should
nullify, (rather than it may nullify). There is the further
possibility that other judicial instructions would become
diluted or confused.
However, it is quite another thing to say that just because a
defendant is not entitled to get a jury nullification
instruction at trial, the government may criminally prosecute
individuals for issuing pamphlets on jury nullification outside
the courtroom in a public parking lot.
The power and right of
jury nullification in this country exists. It is a truthful
proposition to say that it does. It has been discussed in
American courts, in law review articles, and in books. To allow
the government to punish individuals for publicly discussing
laws (outside the courtroom) favorable to persons accused of
crimes is to make a mockery of the civil liberties and the
system of controls against overreaching governmental conduct
guaranteed to us by the Constitution.
Criminalizing the publication and distribution of literature
outside the courtroom that could have an effect on a trial is
not a compelling governmental justification for infringing upon
the speech rights of individuals. Indeed, were it so, every
public forum would be vulnerable to content-based suppression:
radio commentaries on the subject that reached those very same
cars in the parking lot, local newspapers and television that
discuss the same issues would be chilled. The government has no
compelling interest in suppressing public access to political
speech.
III. PERMITTING THE GOVERNMENT TO PROSECUTE PEACEFUL
PAMPHLETEERS FOR DISTRIBUTING GENERAL INFORMATION AND OPINIONS
REGARDING THE RIGHTS OF JURORS IS NOT A NARROWLY TAILORED REMEDY
FOR THE PROBLEM OF JURY TAMPERING AND OBSTRUCTION OF JUSTICE.
A more narrowly tailored solution for the problem of jury
tampering exists. Prosecutions can be limited (by judicial
interpretation) to people who in their literature, address the
jurors personally, mention specific pending cases, and request,
instruct, or coerce specific favors from the jury. Prosecutions
can be limited to persons who make personal contact or
physically confront a sworn juror during the course of a pending
case and specifically attempt to sway that juror in their
decision (out-of-court).
There are also alternate and less intrusive means available for
protecting the integrity of a trial -- namely, sequestration,
instructions to the jury to disregard publications that discuss
the case, and instructions to the jury not to seek out legal
research or commentary that may relate to the case on their own.
The Court in Nebraska Press Association v. Stuart, 427
U.S. 539 (1976), when confronting the issue of extensive
pretrial publicity noted the following less restrictive
alternatives to press restrictions: "change of trial venue to a
place less exposed to intense publicity"; "postponement of the
trial to allow public attention to subside"; searching
questioning of prospective jurors [to] screen out those with
fixed opinions as to guilt or innocence"; "[the] use of
emphatic and clear instructions on the sworn duty of each juror
to decide the issues only on evidence presented in open court";
"sequestration"; and restricting what the lawyers, the police,
and the witnesses may "say to anyone"; and closure "of pretrial
proceedings with the consent of the defendant."
The Court reasoned: "[w]e have noted earlier that pretrial
publicity, even if pervasive and concentrated, cannot be
regarded as leading automatically and in every kind of criminal
case to an unfair trial;" and that "[plainly,] a whole community
cannot be restrained from discussing a subject intimately
affecting life within it."
It should be remembered that this case involves the
distribution of handbills that were left on automobiles parked
in a public parking lot. These pamphlets were left on all cars
in the lot. Defendant had no way to distinguish (nor did she
attempt to distinguish) which cars belonged to selected jurors
empaneled to hear criminal cases. Presumably, the cars in the
lot belonged to judges, attorneys, clerks, court employees,
civil litigants, witnesses, friends and family members of
litigants, persons called in for jury duty who were not selected
to hear a case, jurors selected to sit on civil cases, and to
persons doing business in the area of the parking lot.
Presumably, it is legal for these people to read Defendant's
pamphlets.
If prosecutors are concerned that a juror in a criminal case
will refuse to convict as a result of learning about legal
theories unfavorable to the government, a more appropriate
remedy would be to request the judge to instruct the jury not to
conduct legal research while the trial is pending.
Allowing this prosecution to proceed leaves no acceptable
alternative avenue for getting Defendant's message across. Most
people will be asked to serve on a jury at some time in their
lives. There are criminal trials pending somewhere every day.
If this prosecution is permitted, discussions of jury
nullification will become chilled. At some point in time, any
potential listener or reader may be called to serve on a
criminal case, and the persons engaged in discussions would face
liability.
Speech criticizing the criminal justice system, or advocating
civil disobedience when a law is unjust would be chilled.
Discussions of criminal laws would be chilled. Anyone who
discusses the position that the right to jury nullification
exists would be in danger of being prosecuted for jury tampering
and obstruction of justice; general discussions made in public
could be said to influence future jury pools. Taking the
government's position to its rational conclusion would mean that
anyone discussing any law outside the courtroom (either
statutory or case law) that is favorable to the accused in a
pending criminal trial, (and yet deemed by the court to
inapplicable, unimportant or irrelevant,) would be engaging in
criminal behavior.
IV. DEFENDANT'S PAMPHLETS DO NOT PRESENT A CLEAR AND PRESENT
DANGER OF INTERFERENCE WITH THE FAIR ADMINISTRATION OF JUSTICE
OR WITH JURY TAMPERING.
Wood v. Georgia, 370 U.S. 375 (1962) held that a state
may not punish out-of-court statements critical of judicial
actions, absent special circumstances showing an extremely high
likelihood of serious interference with the administration of
justice. It approved the clear and present danger standard used
in Bridges v. California, Pennekamp v.
Florida, and Craig v. Harney. Id., at
314 U.S. 252 (1941); 328 U.S. 331 (1946); and 331 U.S. 367
(1947), respectively.
"The administration of the law is not the problem of the judge
or prosecuting attorney alone, but necessitates the active
cooperation of an enlightened public. Nothing is to be gained
by an attitude on the part of the citizenry of civic
irresponsibility and apathy in voicing their sentiments on
community problems. The petitioner's attack on the charge to
the grand jury would have been likely to have an impending
influence on the outcome of the investigation only if the charge
was so manifestly unjust that it could not stand inspection. In
this sense, discussion serves as a corrective force to
political, economic and other influences which are inevitably
present in matters of grave [importance]."
Defendant's pamphlets did advocate the use of jury
nullification when the case was unjustly prosecuted, and/or when
the law alleged to be broken is unjust, but Defendant did not
attempt to define or identify unjust cases or unjust laws.
Defendant specifically encouraged this assessment to be made by
the juror himself. More importantly, it is not illegal for a
juror to nullify a verdict. There is no criminal sanction
imposed if a juror simply refuses to convict (in spite of
overwhelming and/or uncontroverted evidence of guilt) because of
conscientious reasons. As discussed above, a juror cannot be directed or compelled to
convict, cannot be questioned about his/her reasons for
acquitting, and cannot be faced with criminal sanctions for refusing to
convict.
Cox v. Louisiana [Cox II], 379 U.S. 559 (1965), which
involved a violation of a state statute forbidding
demonstrations in front of courthouses used a different standard
of scrutiny in assessing the appellant's First Amendment claim.
This case, however can be distinguished from defendant's case
for the following reasons. It regulated conduct that
interfered with ingress to and egress from a courthouse, rather
than merely speech. This case is far more akin to Lakewood
v. Plain Dealer, 486 U.S. 750 (1988), than it is to Cox in
that the defendant's pamphlets were merely placed upon
automobiles in the courthouse parking lot. The defendant did
not obstruct ingress to or egress from the courthouse. Here, as
in Lakewood, the manner of expression is not basically
incompatible with the normal activity of the forum. See
Lakewood, 486 U.S. at 763, (...[T]he question is
whether 'the manner of expression is basically incompatible with
the normal activity of a particular place at a particular
time,'" citing Grayned v. Rockford, 408 U.S. 104, 116
(1972)). The statute at issue in Cox was more narrowly
tailored -- it prohibited specific conduct without respect to
the content of the speech; it was a time, place and manner
restriction. It expressly prohibited the picketing or parading
in front of the courthouse with the intent to interfere or
obstruct the administration of justice. "We deal in this case
not with free speech alone, but with expression mixed with
particular conduct." Cox, at 564. Defendant on the
other hand is being prosecuted solely because of the content of
her (pure) speech.
Defendant's case is also factually very different than the Cox
case. Unlike the defendants in Cox, Defendant's
expressions were published. This is an important distinction
because written material are passive expressions. A reader can
choose whether or not to expose himself to the expression.
Defendant's activities did not encompass the physical
components that the defendants in Cox engaged in.
Defendant did not create physical barriers or obstructions to
the courthouse. There was no intimidation, which was a concern
in Cox. Also the confrontational aspect that was
present in Cox is not present in defendant's case.
Defendant's expressions were anonymous and written. Ohralik
v. Ohio State Bar Ass'n., 436 U.S. 447 (1978) distinguishes
personal confrontations from written expression (when
restricting legal solicitations.)
Lastly, the expression in Cox was directed at
particular, named cases unlike defendant's expressions which
were generalized. Defendant did not mention any specific cases,
or types of cases in her pamphlet.
In Cox the Court was reluctant to use the clear and
present danger standard because it found that the issue as to
whether courthouse demonstrations presented a real threat to the
fair administration of justice had been specifically addressed
by the legislature. "[I]t is one thing to conclude that the
mere publication of a newspaper editorial or a telegram to a
Secretary of Labor, however critical of a court, present no
clear and present danger to the administration of justice and
quite another thing to conclude that crowds, such as this,
demonstrating before a courthouse may not be prohibited by a
legislative determination based upon experience that such
conduct inherently threatens the judicial process." Id., at
566.
In Landmark Communications v. Virginia, 435 U.S. 829
(1979) the Court returned to the use of the
Wood-Bridges-Pennekamp-Craig clear and present danger
test when analyzing whether restrictions on court-related
expressions are justified in light of the First Amendment. The
use of the standard has since been affirmed by the Court in
Gentile v. Nevada Bar Association, infra.
The clear and present danger standard requires a certain amount
of tangible danger of the expressions inciting action.
Organization for a Better Austin v. Keefe, infra,
invalidated a prior restraint (a civil injunction) which
prohibited the petitioner from distributing pamphlets which the
respondent claimed were coercive and inciting. The Court found
that the pamphlets at issue were intended to influence the
reader, but did not rise to the level of coercion or incitement.
It observed that "the Appellate Court was apparently of the
view that petitioners' purpose in distributing their literature
was not to inform the public, but to 'force' respondents to sign
a no-solicitation agreement. Petitioners plainly intended to
influence respondent's conduct by their activities; this is not
fundamentally different from the function of a newspaper."
Id., at 419.
In sum, Defendant's pamphlets did not present a clear and
present danger of imminent lawless action, or with the fair
administration of justice. Jury nullification does not present
a danger to the fair administration of justice; it is an
integral part of the fair administration of justice. See
U.S. v. Datcher, infra. Defendant did not approach
jurors. Her pamphlets were mass distributed. No specific cases
were mentioned, no specific instructions were given. Being
printed, and not individually addressed, they could be easily
ignored, especially by a juror instructed to disregard
information concerning the case not formally presented to
him/her in court.
Lastly, this case can be distinguished from United States
v. Ogle, 613 F.2d 233 (10th Cir.1979), a case which
involved a defendant who was convicted for, among other things,
distributing literature concerning jury nullification. The
jurors in Ogle were targeted and personally confronted.
The defendant in Ogle advocated tax evasion, and
provided untruthful information to the jurors concerning the
legality of failing to file income tax returns, and provided a
sample affidavit (which was misleading). He claimed the
Sixteenth Amendment was illegal and that "tax crimes are not
true crimes." The defendant in Ogle approached jurors
who were his coworkers and encouraged them to approach the other
empaneled jurors. There were telephone calls made to jurors, as
well as literature distributed. Most importantly, the jurors
were instructed by the defendant to use the literature in their
deliberations of the pending case. The defendant used the jury
nullification literature to lend credibility to his clearly
erroneous views on tax laws.
As discussed, Defendant's speech was generalized and
non-confrontational. The jurors were not addressed, and there
was no suggestion in the literature that the principals should
be connected to any particular case. There was no real danger
of a juror becoming unduly influenced in any way. The timing
and place of the distribution was sensible in light of the
subject. Defendant does not have unlimited resources, and hand
distribution is much less expensive than mass media broadcasts.
Applied to the Defendant, the law is a content-based
restriction of her speech. The application of jury tampering
and obstruction of justice laws to political speech in a public
forum cannot be justified as a time, place, and manner
regulation even were it content-neutral because "[a] government
regulation that allows arbitrary application is 'inherently
inconsistent with a valid time, place, and manner regulation"
due to the fact that "such discretion has the potential for
becoming a means of suppressing a particular point of view."
Forsyth County, Ga. v. Nationalist Movement, 112 S.Ct.
2395, 2401 (1992), citing Heffron v. International Society
for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981).
Moreover, there is considerable doubt concerning whether
political speech, such as that in issue here, is ever subject to
the secondary effects analysis of the time, place, and manner
regulation. Rappa v. New Castle County, 18 F.3d 1043,
1069 (3rd Cir. 1994), citing Boos, 485 U.S. at 320-21.
Yet, even were the Court to analyze the law as applied to
defendant under the tripartite test for content-neutral time, place, and manner
regulations, it must fail. To pass muster, a content-neutral
speech regulation must be "'narrowly tailored to serve a
significant governmental interest, and . . . leave open ample
alternative channels for communication of the information.'"
Ward, 491 U.S. at 791 (quoting Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 293 (1984)). The
test in Ward requires the state to prove (1) that the
restriction is content-neutral; (2) that it is narrowly tailored
to serve a significant governmental interest; and (3) that it
leaves open ample alternative channels of communication.
Id.
To be considered narrowly tailored, the regulation "need not be
the least-restrictive or least-intrusive means" of achieving the
government's goal but must "promote[] a substantial government
interest that would be achieved less effectively absent the
regulation." Ward, 491 U.S. at 789. A regulation that
"burden[s] substantially more speech than is necessary to
further the government's legitimate interests" is not narrowly
tailored. Id. If there are numerous less restrictive
alternatives, the Court will strike the law. See, e.g.,
Discovery Network, 113 S.Ct. at 1510.
As explained supra, the government lacks a significant
interest in banning political speech on the rights of jurors
from a public courthouse parking lot. It has not articulated
such an interest in applying the laws to the defendant nor could
such an interest be plausible given the paramount First
Amendment right of free speech in public places. Moreover,
numerous less restrictive alternatives exist, as set forth
supra. For example, the court could sequester the
jurors or could instruct them to ignore outside statements
whether by the press or by a lone speaker in a public park.
These restrictions would be prudent ones that would be far less
restrictive. As it stands, the government's approach suppresses
substantially more political speech outside the courthouse than
is necessary to protect deliberations within it.
It is therefore not narrowly tailored within the meaning of
Ward.
Moreover, the application of the laws to this Defendant's
political speech in the courthouse parking lot denies the
Defendant a unique channel for the communication of her message.
For a person of modest means who cannot afford to buy
advertising space, the political pamphlet affords an important
means to disseminate political information. When the content
concerns the rights of jurors, there could be no better point of
distribution sufficiently distant from the court to avoid
interference with its operations yet sufficiently connected to
it as to permit a meaningful opportunity to be heard than the
public courthouse parking lot. The unique effectiveness of
pamphleteering in the streets has been recognized by the Supreme
Court as affording a channel of communication that cannot be
restricted without denying pamphleteers meaningful opportunities
for expression. See, e.g., Schneider v. State, 308
U.S. 147, 164 (1939); Martin v. Struthers, 319 U.S.
141, 145-146 (1943).
It is thus the case that even were the government able to
convince this Court that the regulations in question are being
applied in a content-neutral manner, the government could not
surmount the intermediate scrutiny test applied to such
regulations. Its application of the law to punish the
defendant's speech is neither supported by a significant
governmental interest nor by a means narrowly tailored to serve
that interest. Moreover, there are not any reasonably
equivalent alternative channels available to a person who lacks
substantial means that could replace pamphleteering in the
courthouse parking lot when the content communicated concerns
the rights of jurors. Thus, the regulations fail the
intermediate scrutiny test.
A. Limits on Prosecution for Obstruction of Justice
The Sec. 371 conspiracy count must be dismissed if the charged
conduct fails to support the substantive counts of obstruction
of justice and Sec. 1503, both of which read in relevant part:
"or corruptly or by threats or force, or by any threatening
letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct or impede, the due
administrations of justice . . .."
Count 2 charges the defendant with obstruction of justice under
18 U.S.C. Sec. 1505, which contains, in relevant part, wording
that is identical to the above (known as the "omnibus clause").
Three essential elements of obstruction of justice are set
forth as charges under 18 U.S.C. Sec. 1505, and by analogy, the
omnibus clause of Sec. 1503. First, there must be a proceeding
pending before a department or agency of the United States;
second, the defendant must be aware of the pending proceeding;
third, the defendant must have intentionally endeavored
corruptly to influence, obstruct or impede the pending
proceeding. United States v. Price, 951 F.2d 1028 (9th
Cir. 1991). In this case, the facts averred in the indictment
fail to meet the third prong of this test.
No allegation of threats or force has been made. U.S. v.
Price, 951 F.2d at 1029-30, supra (taxpayer made
threats to congressional staff person that he would take a gun
to the IRS, and made false statements in 911 call against the
agents); Bagley v. U.S., 136 F.2d 567, supra.
Nor has this Defendant been charged with hiding records that
were the subject of a summons. United States v.
Laurens, 857 F.2d 529 (9th Cir. 1988), cert.den.
109 S.Ct. 3215. She has been charged with "corruptly" causing
pamplets to be placed on car windshields.
The interpretation of the word "corruptly," has undergone
several changes over past decades. Traditionally, a criminal
mens rea was required.
"The word 'corrupt' in the statute means for an evil or wicked
purpose. Specific intent to impede the administration of justice
is an essential element of the offense. Pettibone v. United
States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893)."
U.S. v. Ryan, 455 F.2d at 733.
For several years, "corruptly" was interpreted to mean no more
than with the purpose of obstructing justice. United States
v. Rasheed, 663 F.2d 843 (9th Cir. 1981), citing United
States v. Ogle, 613 F.2d 233 (10th Cir. 1979),
cert.den. 101 S.Ct. 87, reh.den. 1010 S.Ct.
594. The word "corrupt" is interchangeable with "willful."
United States v. Haas, 583 F.2d 216 5th Cir. 1978),
citing Seawright v. United States, 224 F.2d 482 (6th
Cir.) cert.den, 76 S.Ct. 76 (1955). "Willfulness" has
been well-studied in the context of criminal tax cases, and is
defined as a "voluntary, intentional violation of a known legal
duty." United States v. Powell, 955 F.2d 1206 (9th
Cir. 1991), citing, Cheek v. United States, 111 S.Ct.
604, 610 (1991); United States v. Pomponio, 97 S.Ct.
22, 23 (1976).
"'Evil motive' is merely a 'convenient shorthand expression to
distinguish liability based on conscious wrongdoing from
liability based on mere carelessness or mistake' [citations
omitted]. Thus, the government may prove willful conduct by
establishing either: (1) that the defendant acted with a bad
purpose or evil motive or (2) that the defendant
voluntarily, intentionally violated a known legal duty."
U.S. v. Powell, 955 F.2d at 1210-11. The government
must demonstrate that the defendants does not have a subjective
belief, however irrational or unreasonable, that the income tax
system did not apply to them. Id., at 1211, citing
Cheek, 111 S.Ct at 610-611; Richey v. U.S.I.R.S.,
9 F.3d 1407, 1412 (9th Cir. 1993).
In 1984, the 9th Circuit limited the definition of "corruptly,"
as used in 18 U.S.C. Sec. 1503 even further. United States
vs. Lester, 749 F.2d 1288 (1984) concerned a conviction for
witness tampering, in which a witness was taken out of town to
prevent his cooperation in an ongoing investigation. The
defendant had been granted a judgment of acquital on the basis
that the enactment of 18 U.S.C. Sec. 1512 in 1982 (which
proscribes witness tampering by intimidation, physical force,
threats, or misleading conduct), removed witness tampering from
the applicability of section 1503. The 9th Circuit ruled,
however, that the omnibus clause of Sec. 1503, "corruptly ...
endeavors to influence, obstruct, or impede, the due
administration of justice," remains in force for witness
tampering of a non-coercive nature. U.S. v.
Lester, 749 F.2d at 1293-4; 18 U.S.C. Sec. 1512; 18 U.S.C.
1503.
One year ago, the 9th Circuit returned to the strict
construction of the omnibus clause of Sec. 1503, with which this
Defendant is charged. In United States v. Aguilar, 21
F.3d 1475 (9th Cir. 1994), a federal judge had been convicted of
illegally disclosing a wiretap in violation of 18 U.S.C. Sec.
2232(c) and obstruction of justice, then later for making false
statements to the FBI in connection with a grand jury
investigation into his own conduct. The court held that the
making of false statements to a witness was clearly beyond the
reach of this statute, and to hold otherwise would expand the statute
far beyond its reasonable
construction:
"If a person sought to influence the testimony of a witness by
bribery or extortion, this would clearly fall within the
normally accepted meaning of corrupt. Simply making a false
statment to a potential witness is a far cry from any generally
accepted meaning of 'corruptly influence' or 'corrupt
persuasion.'"
U.S. v. Aguilar, 21 F.2d at 1485-6, citing United
States v. Poindexter, 951 F.2d 369 (D.C.Cir. 1991),
cert. denied, 113 S.Ct. 656 (1992).
"The court found that the term corruptly--although 'at least as
used in Sec. 1503...is something more specific than simply 'any
immoral method used to influence a proceeding,' did not give
constitutionally sufficient notice that it prohibited false
statements to Congress."
Id., FN 8, p. 1486. At this time, U.S. v.
Aguilar instructs that "corruptly" requires more than an
intent to influence a proceeding. No facts have been set forth
in the indictment that this Defendant used bribery or extortion
in an attempt to influence a juror or jurors. Under the
Aguilar decision, this Defendant's conduct, even
assuming the allegations to be true, falls far short of the
corrupt measures required for a conviction under the omnibus
clause of Sec. 1503, and Sec. 1505 by analogy.
Even if the court were to return to the earlier standard of
"with the purpose of obstructing justice", "purposefully", like
"corruptly", is synonymous with "willfully." It is well
established that "willfulness" requires more than the doing of
an act: the defendant must be aware of a legal duty, and
voluntarily and intentionally violate that duty. U.S. v.
Powell, Cheek v. U.S., supra. Here, no allegation
has been made that the defendant knew that the distribution of
handbills was unlawful, or that she had a duty to restrain from
distributing First Amendment materials during the U.S. v.
Jay Regas trial. As discussed below, jury nullification is
lawful, this defendant knew that it is lawful, and this
defendant knew of no prohibition against the distribution of
handbills stating so.
B. Limits on prosecution for pamphleteering
[1] Court must honor Defendant's First Amendment rights,
and abide by strict definitions of terms used in the
indictment.
A survey of cases prosecuted on 18 U.S.C. Sec. 1503 reveals
that the identical sorts of "corrupt endeavor" required to
constitute an offense under the omnibus clause of Sec. 1503
discussed, supra, is also required for an attempt to
influence a juror. Prior to the enactment of 18 U.S.C. Sec.
1512 in 1982, the statute also applied to non-coercive
influencing of witnesses. See, U.S. v. Lester, U.S. v.
Aguilar, supra.
No allegation of coercive influencing has been made in this
case. The cases involving non-coercive attempts have always
included either 1) bribery of a juror or witness; or 2)
communications specific to the proceeding that the defendant
sought to influence. United States v. Kahn, 366 F.2d
259 (C.A.N.Y. 1966), cert.den., 87 S.Ct. 321, 324 (3
cases); reh. den., 87 S.Ct. 502, 503 (2 cases), the
Defendant was convicted of attempted bribery of a witness. Cash
payments to a juror were also the issue in deciding what
influence such pamphlets might have on any award. United
States v. Osticco, 563 F.Supp. 727 (D.C. Penn, 1983).
Other cases involved telephone communications regarding the
specific case, United States v. Ogle, 613 F.2d 233;
United States v. Haas, 583 F.2d 216 (5th Cir. 1978).
The pamphleteering at issue here is more similar to that at
issue in Hoffman v. Perruci, 117 F.Supp. 38 (E.D.Penn.
1953), a case in which civil plaintiffs were denied injunctive
relief against liability insurers who published advertisements
and pamphlets alleging that excessive jury awards were raising
insurance rates and thereby escalating living costs:
"We feel that the out-of-court publication of these
advertisements and the distribution of the pamphlet do not
interfere with the ordinary administration of justice in the
action before the court. There is not present that extremely
high degree of imminence of the substantive evil which would
justify punishment of the publications."
Id., at 40, citing, Bridges v. States of
California, 314 U.S. 252, 263 (1941). In Hoffman,
the court suggested that plaintiffs have an opportunity to
question prospective jurors concerning the possible effect such
advertisements and pamphlet may have on any award. The same
remedy might have been employed here.
Jury nullification, the subject of the pamphlets, itself has
never been held unlawful. It is a concept that allows the jury
to acquit the defendant even when the government has proven its
case beyond a reasonable doubt. U.S. v. Powell, 955
F.2d at 1212. In Sparf v. U.S., 156 U.S. 51 (1895) the
Supreme Court ruled that while the jurors had the right to
decide both law and fact, the court was not required to inform
them of this right.
Ogle, supra, involved a pamphlet similar to that at
issue here, but is inapposite because of additional facts not
found here. The overt act at issue was instructing an
accomplice, who worked with a particular juror as a stewardess,
to call her and offer her a pamphlet written by the defendant
(whom both the juror and accomplice knew) which discussed both
jury nullification and the unconstitutionality of the income
tax. The case at issue was a tax case. In this case, no
confrontations with jurors have been alleged, either by phone or
in person, and nothing in the pamphlets pertained to the case in
progress.
The issue of jury nullification was most recently addressed in
U.S. v. Datcher 830 F.Supp. 411:
"This respect for nullification flows from the role of the jury
as the 'conscience of the community' in our criminal justice
system.
...
"Argument equating jury nullification with anarchy misses the
point that in our criminal justice system the law as stated by a
judge is secondary to the justice as meted out by a jury of
defendant's peers. We have established the jury as the final
arbiter of truth and justice in our criminal justice system;
this court must grant the defendant's motion if the jury is to
fulfill this duty."
While jurors are not informed of their right to nullify
oppressive laws, and some federal courts question whether jurors
have the right to nullify, compare, U.S. v. Wilson
[cite], U.S. v. Datcher, 830 F.Supp. 411 (M.D.Tenn
1993) and United States v. Ogle, 613 F.2d 233
(curtailment of questioning on defendant's views on jury
nullification upheld because they were "entirely contrary to
law"), no jurisdiction permits a directed verdict of guilt, no
matter how overwhelming the evidence. United Brotherhood of
Carpenters, etc. v. United States, 1947, 330 U.S. 395, 408,
67 S.Ct. 775, 91 L.Ed. 273; Edwards v. United States,
286 F.2d 681 (5th Cir. 1960); United States v. Spock,
416 F.2d 165 (1st Cir., 1969). In Spock, conviction
for conspiracy to counsel, aid and abet draft resisters was
overturned because a special question was submitted to the jury
along with the general issue. Citing Morris v. United
States, 156 F.2d 525, 1946, the 1st Circuit stated:
"Uppermost of these considerations is the principle that the
jury, as the conscience of the community, must be permitted to
look at more than logic. Indeed, this is the principle upon
which we began our discussion. If it were otherwise there would
be no more reason why a verdict should not be directed against a
defendant in a criminal case than in a civil one. The
consitutional guarantees of due process and trial by jury
require that a criminal defendant be afforded the full
protection of a jury unfettered, directly or indirectly."
U.S. v. Spock, 416 F.2d at 182. The purpose of the
jury is to prevent the oppression by the government. Duncan
v. Louisiana, 391 U.S. 145, 155 (1968). Since the jury was
not being instructed to break the law, the defendant's speech
cannot be viewed as encouraging the commission of a crime.
U.S. v. Spock, 416 F.2d at 170-171, citing, Scales
v. United States, 81 S.Ct. 1469 (1961).
The sidewalks around a courthouse are public fora, and
distribution of pamphlets there is clearly protected by the
First Amendment. United States v. Grace, 103 S.Ct.
1702 (1983). This restriction is content-based and
unconstitutional. Where a statute might infringe on the right
to free speech, it must be construed so as to avoid
unconstitutionality. It is for this reason that specific illegal
intent be proved. Scales v. U.S., supra.
The specific intent required to sustain an indictment for jury
tampering, like obstruction of justice discussed supra,
can usually be demonstrated where, as traditionally, more is
involved than the mere distribution of pamphlets. The offense
charged must be similar to those specified in the statute,
applying the doctrine of ejusdem generis. United
States v. Essex, 407 F.2d 214 (6th Cir. 1969), quoted
in, United States v. Ryan, 455 F.2d 728, 733 (9th Cir.
1972), U.S. v. Aguilar, 21 F.2d 1486, FN 9.
Jurors have the right and power to determine guilt or innocence
according to their conscience. Informing them of that right
cannot be equated with urging a violation of law. But even
where pamphlets at issue advocated a clear violation of law,
such as draft avoidance, courts are reluctant to find that the
mere urging of others to violate the law comprises a Sec. 371
conspiracy.
Hammerschmidt v. United States, 265 U.S. 182,
188-189, 44 S.Ct. 511 (1924), was charged as a "defraud clause"
conspiracy, but could easily have been charged as on "offense
clause". The facts are similar to those at issue here. The
defendants had been charged with impeding the functions of the
draft board by distributing handbills and flyers advocating
non-compliance with the draft laws. In dismissing the indictment
charging such a conspiracy, the Supreme Court held:
"To conspire to defraud the United States means primarily to
cheat the government out of property or money, but it also means
to interfere with or obstruct one of its lawful governmental
functions by deceit, craft, trickery, or at least by means that
are dishonest. It is not necessary that the government shall be
subjected to property or pecuniary loss by the fraud, but only
that its legitimate official action and purpose shall be
defeated by misrepresentation, chicane, or the overreaching of
those charged with carrying out the governmental intention. It
is true that the words 'to defraud' as used in some statutes
have been given a wide meaning, wider than their ordinary
scope...Its construction in the Horman case cannot be used as
authority to include within the legal definition of a
conspiracy to defraud the United States a mere open defiance
of the governmental purpose to enforce a law by urging persons
subject to it to disobey it." (Emphasis added)
In this case, Hammerschmidt was engaged in an obvious exercise
of rights protected by the First Amendment, and the Court held
that such conduct was not subject to criminal proceedings under
a theory that it defrauded the government. The Court also
plainly noted that strenuously advising others to violate the
law simply is not defrauding the government or obstructing its
functions. See also United States v. Spock, 416 F.2d
165 (1st Cir., 1969).
[2]Intent is an essential element to be proven at
trial
Defendant has not been charged with "corruptly" causing
pamphlets to be placed on car windshields, she has been charged
with corruptly attempting to obstruct justice. Specific intent
to impede the administration of justice is an essential element
of the offense. Pettibone v. United States, 13 S.Ct.
542 (1893).
The interpretation of the word "corruptly," has undergone
several changes over past decades. Traditionally, a more
culpable mens rea was required to show "corruptness" than
is needed today.
"The word 'corrupt' in the statute means for an evil or wicked
purpose. Specific intent to impede the administration of justice
is an essential element of the offense. Pettibone v. United
States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893)."
U.S. v. Ryan, 455 F.2d at 733. For several years,
"corruptly" was interpreted to mean no more than with the
purpose of obstructing justice. The word "corrupt" was then
used interchangeably with "willful." One year ago, the 9th
Circuit returned to a stricter construction of the term
"corruptly" within the omnibus clause of Sec. 1503, with which
this defendant is charged. In United States v.
Aguilar, 21 F.3d 1475 (9th Cir. 1994), the court held that
the making of false statements to a witness was clearly beyond
the reach of this statute, and to hold otherwise would expand
the statute far beyond its reasonable construction:
"If a person sought to influence the testimony of a witness by
bribery or extortion, this would clearly fall within the
normally accepted meaning of corrupt. Simply making a false
statement to a potential witness is a far cry from any generally
accepted meaning of 'corruptly influence' or 'corrupt
persuasion.'"
If Aguilar is followed, the indictment should be
dismissed, as there has been no allegation of bribery or
extortion, nor of any coercion whatsoever. In the alternative,
even under the "willfulness" standard, the Defendant has an
absolute right to present evidence that will disprove an
assertion that she acted willfully. In doing so, it is
unavoidable that Defendant must present evidence concerning jury
nullification to describe her innocent and honorable state of
mind. She held and maintains a sincere and reasonable belief
that the jury could, if it wished, decide a case according to
conscience, and that the result would be justice, and not a
miscarriage of justice. Regas further believed that the jury
had a right to information on nullification outside court, and
that she had a right, under the First Amendment, to broadcast
the information. Furthermore, she did not believe that the
pamphlets would create a criminal influence over any juror,
since the broadcasted material was anonymous, general, and
conditional and suggested no particular verdict. 18 U.S.C. Sec.
1503 and 2. She did not know that she had a duty to refrain
from pamphleteering in this way.
"Willfulness" has been a well-studied term within the context
of criminal tax cases, and is defined as a "voluntary,
intentional violation of a known legal duty."
"'Evil motive' is merely a 'convenient shorthand expression to
distinguish liability based on conscious wrongdoing from
liability based on mere carelessness or mistake' [citations
omitted]. Thus, the government may prove willful conduct by
establishing either: (1) that the defendant acted with a bad
purpose or evil motive or (2) that the defendant
voluntarily, intentionally violated a known legal duty."
Powell, at 1210-11, citing Cheek, 111 S.Ct at
610-611; Richey v. U.S.I.R.S., 9 F.3d 1407, 1412 (9th
Cir. 1993).
The right to present evidence of intent or willfulness is well-settled law,
and even the government concedes in its motion that Defendant's
intent will be an issue.
Because of the subtle distinctions
between lawful and unlawful conduct, evidence of intent is
particularly important when obstruction of justice is charged.
However, while acknowledging that intent is at issue, the
government's motion improperly attempts to limit the scope and
nature of that essential evidence. This case, where no other
person has been brought to trial under these statutes for the
distribution of anonymous, general information on jury
nullification, is one of first impression. A plethora of case
law exists concerning the intent of willfulness in tax cases,
which can be analogized to U.S. v. Regas.
The government's Motion in Limine misstates the reasoning of
Powell, at 1213. That case did not state that the jury
was sworn to follow the court's instructions, but that "while
jury nullification is a fact" the defense was not entitled to a
nullification instruction:
"Our circuit's precedent indicates that the Powells are not
entitled to jury nullification instructions. United States
v. Simpson, 460 F.2d 515, 519 (9th Cir. 1972). Therefore,
the district court did not abuse its discretion in refusing to
give the proposed instruction."
Id., at 1213. Mrs. Regas does not seek a nullification
instruction.
Mrs. Regas does rely on Powell for other reasons -- to
oppose the government's request that legal evidence negating
willfulness be excluded. The Powells asserted that the district
court erred in prohibiting them from introducing statutes and
case law into evidence that supported the sincerity of their
beliefs. The Court stated:
"The Supreme court in Cheek held that '[it is not
contrary to common sense, let alone impossible, for a defendant
to be ignorant of his duty based on an irrational belief that he
has no duty, and] forbidding the jury to consider evidence that
might negate willfulness would raise a serious question under
the Sixth Amendment's jury trial provision.' Cheek,
111 S.Ct. at 611 [1991]. Although a district court may exclude
evidence of what the law is or should be, see
United States v. Poshcwatta, 829 F.2d 1477, 1482 (9th
Cir. 1987), cert. denied, 108 S.Ct. 1024 (1988), it
ordinarily cannot exclude evidence relevant to the jury's
determination of what a defendant thought the law was
in Sec. 7203 cases because willfulness is an element of the
offense. In Sec. 7203 prosecutions, statutes or case law upon
which the defendant claims to have actually relied are
admissible to disprove that element if the defendant lays a
proper foundation which demonstrates such reliance."
Powell, at 1214 (emphasis supplied). The proposition
that a defendant charged with a willful violation is entitled to
admit into evidence the legal materials and other documents upon
which he relied is well settled since the Cheek
decision. United States v. Gaumer, 972 F.2d 723, 724
(6th Cir. 1992).
The application of Cheek has yet to be considered in a
non-tax case in the 9th Circuit where willfulness is an element
of the charged offense. For instance, it does not apply to a
statute, such as 26 U.S.C. Sec. 5861(d) which does not contain a
mens rea requirement. U.S. v. O'Mara, 963
F.2d 1288, 1293; (9th Cir. 1992) (concurring opinion). However,
the District Court of Oregon, relying on Cheek, 111
S.Ct. 604, determined that because willfulness is a requirement
of 18 U.S.C. 923(g)(1)(B), and the evidence must show knowledge:
"The subjective belief of Benjamin, even if unreasonable,
determines the issue of willfulness. Cheek v. U.S.,
111. S.Ct. 604. A good faith misunderstanding of the law or a
good faith belief that one is not violating the law negates the
element of willfulness, whether or not the claimed belief or
misunderstanding is objectively reasonable."
Benjamin v. B.A.T.F., 771 F.Supp. 307, 311 (D.Or.
1991). In U.S. v. Pitner, 979 F.2d 156 (9th Cir. 1992)
the court refused to apply Cheek to currency
transaction structuring laws, but that interpretation has since
been overturned. U.S. v. Ratzlaf, 114 S.Ct. 665
(1994). For a mail or property fraud case, reckless
indifference will support a conviction, and Cheek,
which interpreted sections 7201 and 7203 of the Internal Revenue
Code, which expressly conditions a defendant's guilt on a
finding that she or he acted "willfully," does not purport to speak to the
mens rea requirement of other federal statues where
willfulness is not an element of the crime. The requirement
that a reliance on governmental authority be reasonable as well
as sincere to assert a "public authority" defense has not
changed since the Cheek decision. U.S. v. Burrows, 36
F.3d 875 (9th Cir. 1994) (drug offense).
The determining factor in whether Cheek applies is
whether willfulness is an element of the crime. Where the
proffered evidence did not negate willfulness, Cheek
was not applied even in a tax case. U.S. v. Hardy, 941
F.2d 893 (9th 1991) (An evidentiary ruling of the court that
excluded testimony that his mother had told him of a man who had
failed to file his taxes for 12 years and suffered no
consequences, because it would not have bolstered Hardy's good
faith defens,e was not an abuse of discretion.) The Defendants
in U.S. v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993) were
charged for a redemption scheme involving fraudulent tax forms,
with inter alia, 18 U.S.C Sec. 371, 1001, and 1503.
They requested a good faith instruction for Sec. 371
(conspiracy) and e 1001 (filing false IRS forms) but
not for Sec. 1503, the offense for which Regas is charged.
In refusing to reverse their conviction, the Circuit noted that
"the traditional definition of willfulness relied on by the
Supreme court in Cheek, turns entirely on the 'special
treatment of criminal tax offenses...due to the complexity of
the tax laws.'" U.S. v. Lorenzo, 995 F.2d at 1455,
citing Cheek, 111. S.Ct. at 609.
The Cheek analysis has been applied to obstruction of
justice in a criminal tax case, 26 U.S.C. e 7212(a). The
language in that statute is nearly identical to that of 18
U.S.C. Sec. 1503:
"Appellant next contends that the government's evidence of
"willfulness" with respect to his conviction under 26 U.S.C.
Sec. 7206(1) (filing false tax documents) and its evidence of
"corruptness" with respect to his conviction under 26 U.S.C.
Sec. 7212(a) (endeavoring to obstruct the administration of the
internal revenue laws) was insufficient to support guilty
verdicts. Statutory willfulness, in the context of criminal tax
prosecutions, means a voluntary, intentional violation of a
known legal duty. Cheek [v. U.S.], supra, 498 U.S. at
200, 111 S.Ct. at 610. Appellant ignores the overwhelming
evidence that he acted willfully and corruptly. There is no
evidence to dispute the finding that appellant acted voluntarily
and intentionally in filing the false tax return and tax forms.
He voluntarily made the decision to purchase and use Roger
Elvick's "redemption program," and he admitted that he did not
pay any of the purported recipients any of the amounts reflected
on the 1099 Forms. Because he knew he never paid the
individuals, he could not have believed that the forms, which he
signed under penalties of perjury, were in fact true and
correct. The evidence also established that appellant acted
corruptly in pursuing the retaliation scheme, in violation of
26 U.S.C. Sec. 7212(a). This court has defined "corruptly," in
part, as "an effort to 'secure an unlawful advantage or
benefit,' and, in particular, to secure a financial gain."
United States v. Yagow, 953 F.2d 423, 427 (8th
Cir.1992).
U.S. v. Dykstra, 991 F.2d 450, 453 (8th Cir. 1994),
cert. denied, 114 S.Ct. 222, (1993). The
Dykstra court went on to note, in considering
sentencing:
"As this court noted in United States v. Williams, 644
F.2d 696, 699 n. 11 (8th Cir.), cert. denied, 454 U.S.
841, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981), '[t]he language and
structure of Sec. 7212 track part of certain federal obstruction
of justice statutes, specifically 18 U.S.C. Sections 1503 and
1505 (1976).' In interpreting Sec. 7212(a), courts have often
resorted to the obstruction of justice provision of Title 18.
See, e.g., United States v. Mitchell, 985 F.2d 1275,
1278 (4th Cir.1993); United States v. Popkin, supra,
943 F.2d 1535, 1539-40 (11th Cir.1991); United States v.
Reeves, 752 F.2d 995, 998-1001 (5th Cir.), cert. denied,
474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985). Similar to
26 U.S.C. Sec. 7212(a), a person is guilty of an offense under
18 U.S.C. Sec. 1503 if he, inter alia, "corruptly, or
by threats or force ... influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due
administration of justice."
Dykstra, at 454. The statutes have since been
similarly analogized by the 9th Circuit:
"Relying on United States v. Dykstra, 991 F.2d 450 (8th
Cir.), cert. denied, 114 S.Ct. 222 (1993), the district
court found Sec. 2J1.2, Obstruction of Justice, with a base
offense level of 12, to be most analogous. [U.S. v.]
Hanson, 2 F.3d 942, 947 (9th Cir.1993), a Ninth Circuit
case decided several weeks before the Koffs were sentenced,
found instead that Sec. 2T1.5, Fraudulent Returns, Statements,
or Other Documents, with a base offense level of 6, was the most
analogous guideline in another s 7212(a) case. After receiving
briefs on this question, we now conclude that the district court
properly applied Sec. 2J1.2."
U.S. v. Koff, 43 F.3d, 417, 419 (9th Cir. 1994).
This case is one of first impression, both in regards to
whether distributing FIJA pamphlets is unlawful, and in whether
Cheek should apply to 18 U.S.C. Sec. 1503 offenses.
Its application in 26 U.S.C. Sec. 7212 cases supports Regas'
position that it should. Further, Regas is not, at this point,
requesting a "Cheek" jury instruction, but merely the ability to
present documentary and testimonial evidence of how she formed
her good faith belief that her actions were proper pursuant to
Cheek. The law regarding jury nullification and the
right to inform the public (including jurors) of that
prerogative is, like tax law, complex. It involves an interplay
between First and Sixth Amendments, the jurors oath, and whether
moral and religious considerations should override that oath.
To disprove willfulness -- the intentional violation of a known
legal duty -- Defendant has a right to show that she did not
know that she had a duty to refrain from pamphleteering as
alleged. Cheek, at 604; U.S. v. Ratzlaf, at
665.
The evidence that is essential to negate the element of
"corrupt endeavor" or "willfulness" consists of the following:
1) The pamphlet, "True or False?", which was distributed; 2) the
Jury Power Information Kit and the FIJActivist
(Summer, 1993); 3) Testimony of persons who spoke with Regas
about the pamphlets, and authors of articles upon which she
relied upon to form her belief that distribution was lawful; 3)
Expert testimony of Alan Scheflin, LL.M., M.A.
[3]The Pamphlets Distributed on June 2, 1994 are
Exculpatory.
The pamphlet itself is a key ingredient of Mrs. Regas' defense
that she did not, corruptly or willfully, endeavor to obstruct
justice or influence a juror or jurors. The pamphlets
themselves must be presented to the jury for determination of
whether they can be characterized as a corrupt endeavor to
influence a juror or juror. For the jury to be able to
determine that issue, they must view the pamphlet so that they
might assess its message for themselves, not merely from the
stance of a juror who was to receive it, but from the stance of
a person who would distribute it. They would then observe,
inter alia, quotes from the founding fathers, truthful
information about the criminal justice system, and no
information regarding any specific case or the suggestion of any
particular verdict. The jury might find the pamphlet less
influential than, for instance, a demonstration at a highly
publicized trial or a news article about jury nullification,
which are legal expressions.
Regas does not dispute that information concerning jury
nullification is traditionally not presented to the jury in
court (in fact, this reality forms an essential ingredient to
her defense). This suppression is usually limited to the
suppression of instructions. Witness statements concerning jury
nullification have been presented for other purposes. The
government, for example, has introduced nullification
endorsements as impeachment evidence in U.S. v. Benson,. 941
F.2d 598, 609-10 (7th Cir. 1991).
In this case, information concerning jury nullification is
necessary to negate intent. The exclusion of evidence on jury
nullification would require, for the case to proceed, an
instruction from the court that Defendant's behavior constituted
two essential elements of the crime: 1) whether the literature
in question proves that the Defendant attempted to influence a
juror or jurors; and 2) that the pamphlets prove that the
defendant acted with an intent to obstruct justice and/or
influence a juror or jurors. The prosecution, by this motion,
is in effect asking the Court for permission to say: "The
Defendant has handed out illegal pamphlets -- pamphlets that you
can't see, but take our word for it, they're illegal." To allow
this is tantamount to an instruction that the most important
element of the crime charged has already been judicially
determined to be present. In this case, if the Defendant
attempts to offer any evidence concerning any or all of the
elements which must be proven herein to convict her, that
evidence not only should be admitted, but this Court cannot
legally exclude such proof. To do so would be to direct a
verdict as to the contested element.
The pamphlets may be considered by a jury to be no more of an
attempt to affect the outcome of U.S. v. Regas than a
dry-cleaning coupon or a political advertisement for a candidate
whose agenda includes "getting tough on crime". Whether or not
the Court agrees with the majority of jurisdictions in the
country that deem jury nullification (trial) instructions
impermissible is not the issue here. The issue is whether the
information and opinions contained in these pamphlets, which
were distributed anonymously outside the courtroom, constitute
an attempt to obstruct justice via jury tampering. That issue
is factual, and properly forwarded for the jury's consideration
in accordance with the Sixth Amendment.
As discussed in other pleadings, these pamphlets contained
generalized, non-coercive language, and contained no references
to any specific case. The language, therefore, is important
exculpatory evidence. Furthermore, the language of the
pamphlets that would constitute an attempt to incite a juror to
action was composed in the conditional: "it is your
responsibility to 'hang' the jury with your vote if you disagree
with the other jurors," "[Jurors] should never have to
explain 'I wanted to use my conscience, but the judge made us
take an oath to apply the law as given to us, like it or not."
The conditional language is therefore exculpatory, and must be
considered by the jury. It is possible that the jury may feel
the conditional nature of the language raises a reasonable doubt
as to whether there was an attempt to influence a juror's
actions as jurors. It may well be that since the language was
generalized and conditional -- that the decision of which cases
were appropriate candidates for nullification was left to the
jury -- that the pamphlets should be properly regarded as a
(legal) political attempt to educate the jury about the criminal
justice system as a whole.
Secondly, the pamphlets state that jury nullification itself is
legal in the entire country, as are jury nullification
instructions in a minority of jurisdictions. This is a correct
statement of law, and as such it is an important exculpatory
fact.
"To ask the jury special questions might be said to infringe on
its power to deliberate free from legal fetters; on its power to
arrive at a general verdict without having to support it by
reasons or by a report of its deliberations; and on its power to
follow or not to follow the instructions of the court.
Moreover, any abridgement or modification of this institution
would partly restrict its historic function, that of tempering
rules of law by common sense brought to bear upon the facts of a
specific case."
United States v. Spock, 416 F.2d 165, 181 (1st Cir.
1969); Sparf v. United States, 156 U.S. 343, at 72
(1894), etc., in Defendant's Response to Motion in Limine to
Exclude Expert Testimony. A jury may find that the
dissemination of generalized truthful information concerning the
legal system and how it works can not be considered an attempt
to corruptly influence a jury (that such information is
protected expression).
The Defendant also has a right to testify before the jury as to
why she arranged for the pamphlets to be broadcast, and that can
only be done if the pamphlets are entered into evidence. The
statements in the pamphlets were adopted by the Defendant, and
form the corpus delecti of the crime. A variety of
cases hold it to be error to exclude relevant testimony from the
Defendant or offered on his behalf.
These are factual issues which are required to be resolved by
the jury, not the court. The Court may not direct a verdict as
to any element of the case. Exclusion of this evidence would
constitute an impermissible violation of Defendant's Sixth
Amendment Rights.
[4] FIJA Publications Should be Admitted to Negate Corrupt
Intent.
The informational tabloids send to Regas by FIJA should be
admissable as evidence of Defendant's character and of evidence
of Defendant's state of mind. These newspapers, which Defendant
read and relied upon, encourage pamphleteering. They reassure
potential distributors that courthouse pamphleteering is a
legal, appropriate means of political activity and that many,
many people are doing it. They provide a rationale for the
dissemination of information regarding the power of jury
nullification (civil libertarianism) that was adopted by
Defendant. That rationale has nothing to do with obstructing
justice via jury tampering, and in fact, the organization has at
its purported goal the furtherance of justice, through education.
Also, Defendant should be able to show that her political
affiliations would prevent her from attempting to obstruct
justice. She should be able to show that she had a deep respect
for rugged individualism, that she was patriotic and would
therefore not attempt to corruptly influence a judicial
proceeding by telling a juror how to vote. This is important
character evidence. In United States v. Geise, 597
F.2d 1170 (9th Cir., 1979), the defendant was permitted to
summarize and read from eighteen books, which he introduced into
evidence as character evidence of his strong belief in pacifism.
The Court held:
"Because character testimony alone may be enough to raise a
reasonable doubt, defendant's traditionally have been afforded
considerable latitude when they testify as to their personal
histories." Id., at 1190.
In sum, the FIJA newspapers evidence the following exculpatory
information: 1) That Defendant had a deep respect for the
American legal system, which negates an allegation that her
motives and intent was to obstruct justice; 2) That Defendant's
involvement with FIJA evidences that her motives were political
-- that she sought to educate potential jurors through
acceptable, political means, and not through improper means; 3)
That Defendant reasonably believed her actions to be legal,
acceptable and honorable, which negates the conspiracy charge as
well as the obstruction and jury tampering charges.
[5] Testimonial Evidence of Activists and Authors Should
be Allowed.
Mrs. Regas attended a several meetings and political functions
during the summer of 1993, which led to her ordering the
pamphlets. During that time, she engaged in discussions with
several political activists who will testify as to what they
told her. This includes a FIJA official who sent the pamphlets
to her. His testimony is essential to corroborate her honorable
intent at the time she ordered the pamphlets.
The jury may find that Defendant's beliefs, though sincere,
were unreasonable, but that does not support a finding of
corruption or willfulness. The Supreme Court has recognized
that the more unreasonable the asserted beliefs of the defendant
are, the more likely the jury will consider them to be no more
than a simple disagreement with the law:
"It is thus highly probative for the defense to show that the
defendant's belief--whether or not mistaken--was reasonable;
evidence of a belief's reasonableness tends to negate a finding
of willfulness and to support a finding that the defendant's
belief was held in food faith."
U.S. v. Lankford, 955 F.2d 1545, 1550 (11th Cir. 1992),
quoting, Cheeks at 611-12. The activists with whom
Regas spoke can tell the jury what they told her, and allow the
jury to determine whether her resultant actions were performed
corruptly. The authors of some of the articles upon which she
relied can tell the jury of the research, study, and factual
transactions that supported those articles, so that the jury can
assess whether Regas' reliance on that information was
reasonable or at least credible.
[6] Conclusion
To defend herself, Regas must be given the full opportunity to
explain to the jury that she lacked the requisite knowledge to
commit this crime. To accomplish such, she has both the right
to fully testify, and further she may offer into evidence
relevant items to prove her lack of corrupt intent as to the
pamphleteering. The right to testify in one's own behalf and to
call witnesses is an essential part of due process; see
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct.
1038, 1045 (1973). It has often been held as reversible error
to limit exculpatory testimony and evidence.
Evidence requires reversal if there is reasonable probability
that the suppressed or false evidence affected the verdict.
For the reasons expressed above, Regas should be permitted to
fully and completely testify herein and offer documentary and
testimonial evidence in support of her belief that the jury has
the right to decide a case according to the conscience of its
members, and that she had a right to inform them of that
prerogative. The court should allow conflicting evidence on all
elements of proof in this case.
Mrs. Regas further requests that the government be precluded
from alleging or implying in any way that Mrs. Regas does not
accept responsibility for the occurrence, or that she seeks a
nullification verdict in her own case.
NOTES
- See Georgia Const. 2-108;
Indiana Const. arts.1,8,19; Maryland Const. art. 27, Sec. 593.
- U.S. v. Datcher, 830 F.Supp. 411
(M.D.Tenn. 1993)
discusses the background and some positive aspects of jury
nullification as follows: "This respect for nullification flows
from the role of the jury as the 'conscience of the community'
in our criminal justice system. Witherspoon v. Illinois, 391
U.S. 510, 519 & n. 15, 88 S.Ct. 1770, 1775 & n. 15, 20 L.Ed.2d
776 (1968). As Justice White wrote in Williams v.
Florida, 399 U.S. 78, 90 S.Ct. 1983, 26 L.Ed.2d 446 (1970)
(considering whether a criminal jury must have twelve members),
'the essential feature of a jury obviously lies in the
interposition between the accused and his accuser of the
common-sense judgment of a group of laymen, and in the community
participation and shared responsibility that results from that
group's determination of guilt or innocence.' Id. at 100, 90
S.Ct. at 1905. This interposition serves the essential purpose
that is to be used in determining the constitutional
requirements of a jury trial. Id. at 99-100, 90 S.Ct. at
1905 ('The relevant inquiry [in determining the
constitutionality of factors affecting jury deliberations], as
we see it, must be the function that the particular feature [of
the jury feature] performs and its relation to the purposes of
the jury trial.')
"When measured by this standard, a defendant's right to
inform the jury of that information essential 'to prevent
oppression by the government' is clearly of constitutional
magnitude. That is, if community oversight of a criminal
prosecution is the primary purpose of a jury trial, then to deny
a jury information necessary to such oversight is to deny a
defendant full protection to be afforded by jury trial. Indeed,
to deny a defendant the possibility of jury nullification would
be to defeat the central purpose of the jury system.
"Argument against allowing the jury to hear information that
might lead to nullification evinces a fear that the jury might
actually serve its primary purpose, that is, it evinces a fear
that the community might in fact think a law unjust. The
government, whose duty it is to seek justice and not merely
conviction, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct.
629, 633, 79 L.Ed. 1314 (1935), should not shy away from having
a jury know of the full facts and law of a case. Argument
equating jury nullification with anarchy misses the point that
in our criminal justice system the law as stated by a judge is
secondary to the justice as meted out by a jury of defendant's
peers. We have established the jury as the final arbiter of
truth and justice in our criminal justice system; this court
must grant the defendant's motion if the jury is to fulfill this
duty."
- See, Constitution of the United States, Art. 3, Sec.3,
which provides "the trial of all crimes except in cases of
impeachment, shall be by jury..."; United Brotherhood of
Carpenters and Joiners of America v. United States, 330 U.S.
395, 408 (1946): "...a judge may not direct a verdict of guilty
no matter how conclusive the evidence"; and United States v.
Martin Linen Supply Co., 430 U.S. 564, 572-3 (1977): "[The
jury's] overriding responsibility is to stand between the
accused and a potential arbitrary or abusive Government that is
in command of the criminal sanction. For this reason, a trial
judge is prohibited from entering a judgment of conviction or
directing a jury to come forward with such a verdict, regardless
of how overwhelming the evidence may point in that direction."
(Citations omitted.)
- For example, see, United States v. Sae-Chua, 725 F.2d
530 (9th Cir. 1984) where the Court held that by instructing the
jury to reconsider its verdict when the judge was aware that
only one juror had voted to acquit (and that juror knew that the
judge was aware that that juror was alone in his decision to
acquit) was overly coercive and constituted reversible error.
- See, United States v. Spock, 416 F.2d 165 (1st Cir. 1969)
which held that special verdicts "infringe on its [the
jury's] power to deliberate free from legal fetters; on its
power to arrive at a general verdict without having to support
it by reasons or by report of its deliberations; and on its
power to follow or not to follow the instructions of the court."
See also, United States v. Wilson, 629 F.2d 439, 443
(6th Cir. 1980) which held: "[i]n criminal cases, a jury is
entitled to acquit the defendant because it has no sympathy for
the government's position. It has a general veto power, and
this power should not be attenuated by requiring the jury to
answer in writing a detailed list of questions or explain its
reasons."
- See, Sparf v. United States,
156 U.S. 51 (1895) where
Justice Gray, with whom Justice Shiras concurred, dissented from
the majority's decision to let stand a conviction where the
judge instructed the jury that they could not acquit on the
charged offense and convict on a lesser charge not presented.
The dissenting justices reasoned that the judge overstepped his
authority in passing upon the evidence, and infringed upon the
rights of the jury to decide the law, as well as the facts of
the case, and provided a compelling argument for the legitimacy
of jury nullification:
"It is our deep and settled conviction, confirmed by a
re-examination of the authorities under the responsibility of
taking part in the consideration and decision of the capital
case now before the court, that the jury, upon the general
issues of guilty or not guilty in a criminal case, have the
right, as well as the power, to decide, according to their own
judgment and consciences, all questions of law and fact,
involved in that issue."
The question of the right of the jury to decide the law in
criminal cases has been the subject of repeated controversy in
England and America, and eminent jurists have differed in their
conclusions on the subject.
* * *
The jury to whom the case is submitted, upon the general issue
of guilty or not guilty, are entrusted with the decision of the
law and the facts involved in that issue. To assist them in the
decision of the facts, they hear the testimony of witnesses; but
they are no bound to believe the testimony. To assist them in
the decision of the law, they receive the instruction of the
judge; but they are not obliged to follow his instructions.
* * *
The duty of the jury, indeed, like any other duty imposed upon
any officer or private person by the law of his country, must be
governed by the law, and not by willingness or caprice. The
jury must ascertain the law as well as they can. Usually they
will, and safely they may, take it from the instructions of the
court. But if they are satisfied on their consciences that the
law is other than as laid down to them by the court, it is their
right and their duty to decide by the law as they know or
believe it to be.
* * *
It has sometimes, however, been asserted that, although they
have the power, they have no right to do this, and that it is
their legal, or at least their moral duty, in every criminal
case, to obey and follow the judge's instructions in matter of
law. The suggestion is not that the jury ought not to exercise
the power wrongfully, but that, whether the instructions of the
court be right or wrong, just or arbitrary, according to the law
as known of all men, or directly contrary to it, the jury must
be controlled by and follow them.
But a legal duty which cannot in any way, directly or
indirectly, be enforced, and a legal power, of which there can
never, under any circumstances, be a rightful and lawful
exercise, are anomalies. (Emphasis supplied)
* * *
[I]t is a matter of common observation, that judges and
lawyers, even the most upright, able and learned, are sometimes
too influenced by technical rules; and that those judges who
are wholly or chiefly occupied in the administration of criminal
justice are apt, not only to grow severe in their sentences, but
to decide questions of law too unfavorably to the accused.
The jury having the undoubted and uncontrollable power to
determine for themselves the law as well as the fact by a
general verdict of acquittal, a denial by the court of their
right to exercise this power will be apt to excite in them a
spirit of jealousy and contradiction, and prevent them from
giving due consideration and weight to the instructions of the
court in matter of law."
- See generally, United States v. Dougherty, supra.; Miller
v. State, 391 S.E.2d 642 (Ga.1990); Howe, Juries as Judges
of Criminal Law, 52 Harv.L.Rev. 582 (1939); R.Pound, Law in
Books and Law in Action, 44 Am.L.Rev. 12,18 (1910); Simpson,
Jury Nullification in the American System: A Skeptical View, 64
Tex.L.Rev. 488 (1976); Scheflin, Jury Nullification: The Right
to Say "No", 45 S.Cal.L.Rev. 168 (1972); M. Kadish and S.
Kadish, Discretion to Disobey, (1973).
- Two thousand persons protested in Cox necessitating police
involvement, and the use of tear gas.
- Gentile, infra. addressed the sensitivities a court
should have concerning the proximity of speech to the topic as
follows:
"As we said in Bridges v. California, 314 US 252 (1941),
limits upon public comment about pending cases are 'likely to
fall not only at a crucial time but upon the most important
topics of discussion...' No suggestion can be found in the
Constitution that the freedom there guaranteed for speech and
the press bears an inverse ratio to the timeliness and
importance of the ideas seeking to be expression." Id., at
268-269.
In Sheppard v. Maxwell, 384 U.S. 333 (1966) we are
reminded that "[t]he press...guards against the miscarriage of
justice by subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism."
- See Defendant's Motion to Dismiss for Violation of the First
Amendment.
- United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981),
citing United States v. Ogle, 613 F.2d
233 (10th
Cir. 1979), cert.den. 101 S.Ct. 87, reh.den. 1010
S.Ct. 594.
- United States v. Haas, 583 F.2d 216 5th Cir. 1978),
citing Seawright v. United States, 224 F.2d 482 (6th
Cir.) cert.den., 76 S.Ct. 76 (1955).
- U.S. v. Aguilar, 21 F.2d at 1485-6, citing United
States v. Poindexter, 951 F.2d 369 (D.C.Cir. 1991), cert.
denied, 113 S.Ct. 656 (1992).
- United States v. Powell, 955 F.2d 1206 (9th Cir.
1991), citing Cheek v. United States, 111 S.Ct. 604, 610
(1991); United States v. Pomponio, 97 S.Ct. 22, 23 (1976).
- Hamman v. U.S., 340 F.2d 145 (9th Cir. 1965)
cert. denied,
380 U.S. 977; Anderson v. Knox, 297 F.2d 702 (9th Cir.
1961); State Farm Fire and Casualty Co. v. Nycum, 943
F.2d 1100 (9th Cir. 1991);United States v. Loera, 923
F.2d 725, (9th Cir. 1991), cert. denied, 502 U.S. 854;
United States v. Boise, 916 F.2d 497 (9th Cir. 1990);
United States v. Soliman, 813 F.2d 277 (9th Cir. 1987);
But see, United States v. Colarcurcio, 514 F.2d 1. (9th
Cir. 1975) (admission of evidence of willfulness with improper
instruction held as reversible error).
- Hoffman v. Perruci, 117 F.Supp. 38 (E.D.Penn. 1953)
(out-of-court publication of advertisements and pamphlet
distribution does not interfere with the ordinary administration
of justice); U.S. v. Ryan, 455 F.2d at 734; U.S. v.
Aguilar, 221 F.3d at 1486; U.S. v. Ogle, 613 F.2d 233
(1979) (defendant was allowed to discuss at length one of his
books, "Good Citizenship with Constitutional Tax Procedures");
and U.S. v. Price, 951 F.2d 1028 (9th Cir. 1991).
- United States v. Ogle, 613 F.2d 233 (10th Cir. 1979),
cert.den. 101 S.Ct. 87, reh.den. 1010 S.Ct. 594.
is distinguished because the pamphlets there contained case
specific information on the income tax, and were offered to a
juror (who knew the defendant) in a personal communication by a
mutual acquaintance.
- U.S. v. Gay, 967 F.2d 322 (9th Cir. 1992), citing
United States v. Hildebrandt, 961 F.2d 116 (8th Cir.
1992); See also, U.S. v. Mullins, 992 F.2d 1472, 1477
(9th Cir. 1993) (District Court did not err by excluding
evidence concerning the purported "non-property" status of
frequent flyer mileage, as it had nothing do with the claim that he lacked
willfulness).
- United Brotherhood of Carpenters and Joiners of America
v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782
(1947); United States v. Martin Linen Supply Co., 430
U.S. 564, 572, 97 S.Ct. 1349, 1355 (1977); Connecticut v.
Johnson, 460 U.S. 73, 83, 103 S.Ct. 969, 975 (1983);
United States v. Hayward, 420 F.2d 142, 144 (D.C. Cir.,
1969); United States v. Spock, 416 F.2d 165, 180 (1st
Cir., 1969); United States v. Manuszak, 234 F.2d 421, 425
(3rd Cir.,1956); United States v. Johnson, 718 F.2d 1317
(5th Cir., 1983); United States v. Burton, 737 F.2d 439,
441 (5th Cir., 1984); United States v. Bass, 785 F.2d
1282, 1285 (5th Cir., 1986); Schwachter v. United States,
237 F.2d 640, 644 (6th Cir., 1956); Buchanan v. United
States, 244 F.2d 916, 920 (6th Cir., 1957); United States
v. Rowan, 518 F.2d 685, 693 (6th Cir., 1975); United
States v. England, 347 F.2d 425 (7th Cir., 1965); United
States v. Kerley, 838 F.2d 932, 937 (7th Cir., 1988); Compton
v. United States, 377 F.2d 408, 411 (8th Cir., 1967); United
States v. Goings, 517 F.2d 891, 892 (8th Cir., 1975); United
States v. Garaway, 425 F.2d 185 (9th Cir., 1970); and
United States v. Goetz, 746 F.2d 705, 708 (11th Cir.,
1984).
- Crane v. Kentucky, 476 U.S. 683, 688, 106 S.Ct. 2142
(1986), at 688; United States v. Roark, 753 F.2d 991
(11th Cir., 1985); United States v. Cohen, 888 F.2d 770,
777 (11th Cir., 1989).
- U.S. v. Powell, 955 F.2d at 1214; U.S. v. Gaumer,
972 F.2d at 724; Cheek v. U.S., 111 S.Ct. at 611.
- The issue before the court was whether by introducing the
literary testimony, the defendant opened the door to the
admission of evidence that Defendant had extensive contact with
a book advocating violence.
- United States v. Calhoun, 726 F.2d 162, 164 (4th
Cir., 1984); United States v. Sanders, 862 F.2d 79 (4th
Cir., 1988);
United States v. Quimette, 753 F.2d 188 (1st Cir., 1985);
Rosario v. Kuhlman, 839 F.2d 918 (2nd Cir., 1988);
United States v. Slaughter, 891 F.2d 691 (9th Cir.,
1989), cert. denied, 112 S.Ct. 3053; Lufty v. United
States, 198 F.2d 760 (9th Cir., 1952); United States v.
Bagley, 473 U.S. 667, 679 (1985) cited in United States
v. Gillespie, 852 F.2d 475 (9th Cir., 1988); United
States v. Cantu, 876 F.2d 1134 (5th Cir., 1989).
MORE LAWNOTES