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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
"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
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
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
"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
 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.
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
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
"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).
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 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
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
"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
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 .
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
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
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
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
"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
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.,
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
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:
"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
 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
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.
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.
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
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
"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
* * *
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
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
"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
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
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.
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.
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
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
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
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
United States v. Calhoun, 726 F.2d 162, 164 (4th Cir.,
1984); United States v. Sanders, 862 F.2d 79 (4th Cir.,
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).