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 (Fully Informed Jury Association) "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:
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.
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:
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).
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:
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
 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:
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:
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:
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:
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).
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
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."
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:
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:
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:
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:
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
Dykstra, at 454. The statutes have since been similarly analogized by
the 9th Circuit:
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:
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.
 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:
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.
 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:
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.
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.