United States v. Gordon Pennell

Gordon Pennell, the defendant, appeals from jury convictions for one count of conspiracy to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a)(1) and 846), one count of attempt to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a)(1) and 846), seven counts of unlawful use of a communications facility (21 U.S.C. Sec. 843(b)) and one count of unlawful carrying of a firearm during the commission of a felony (18 U.S.C. Sec. 924(c)(2)). For the reasons set forth below, we affirm.

This case involves a "reverse buy" in which Pennell paid $43,000 in cash for two pounds of sham cocaine from Drug Enforcement Administration (DEA) undercover agents who were posing as narcotics suppliers. The DEA learned of Pennell from a confidential informant. This informant had sold four ounces of cocaine weekly for the defendant prior to September 1980. Pennell had "fronted" the cocaine to the informant, i.e., the informant took the cocaine and paid for it from the proceeds of subsequent sales.

By September 1980, the informant had fallen $15,000 behind in his payments. Consequently, Pennell refused to front more cocaine and eventually "sold" the account receivable to a man named MacDonald. MacDonald thereby obtained the right to "collect" the debt. Fearing for his safety, the informant contacted the DEA in October 1980 with hopes of receiving enough money in exchange for his information that he would be able to pay his debt.

The DEA declined to pay for the information and insisted that the informant fully cooperate by testifying against Pennell and MacDonald. The informant refused to testify for fear of reprisal. The informant's last contact with the DEA was in December 1980.

In January 1981, the informant agreed to sell cocaine for MacDonald in order to clear his account. After this plan failed, the informant found himself $11,000 further in debt.

The informant next met Pennell in March 1981. The defendant claimed to have ceased selling cocaine and asked the informant if he had been approached by a DEA agent named Frank. The informant stated that he had not.1 The defendant then purported to forgive the informant's debt. A general conversation ensued. During this conversation, Pennell remarked that the informant had been a "dumb a--" for dealing with MacDonald at $33,000 per pound. The informant retorted that he knew the price had been inflated but that he currently could obtain cocaine for $22,500 per pound from a Florida source. Pennell immediately expressed interest in the Florida cocaine because the price was low enough to allow both he and the informant to make a profit upon resale. The defendant urged the informant to have the Florida people call Pennell's office. He promised to reduce the informant's debt by $5,000 for each pound of cocaine sold.

The informant telephoned DEA Agent Rodriquez the following day and warned the latter that Pennell was aware of Agent Frank Catalonga's true identity. The informant met with Rodriquez and Catalonga that evening. After the informant again expressed a reluctance to testify, Catalonga suggested that the former supply Pennell with the Florida telephone number of DEA Agent Pedro Valazco rather than the number of the purported Florida cocaine source. The informant agreed to this plan. Over the next week to ten days, Pennell repeatedly requested the telephone number of the Florida source. On April 16 or 17, the informant gave Pennell the number that had been supplied by Agent Catalonga.

Pennell, using the alias "Doug", called undercover Agent Velazco on April 21. The defendant offered to buy cocaine and Velazco quoted a price of $21,500 per pound. Pennell, however, demanded a sample of the cocaine before committing himself to the purchase.

Velazco then arranged for undercover Agent Wagner to meet the defendant and provide the sample. When Wagner called Pennell, a misunderstanding arose because Wagner offered to sell four pounds of cocaine whereas the defendant only wanted to purchase one pound. Pennell refused to accept Wagner's terms.

On April 29, Velazco telephoned the defendant and assured him that Wagner had been mistaken. During a subsequent conversation with Wagner, the defendant stated that he could sell at least one pound of cocaine, and possibly two pounds, immediately. Wagner agreed to meet Pennell at a local airport in order to provide the sample. On May 8, Wagner confirmed that he would arrive at the airport the following Tuesday and indicated that he might have a package of cocaine in addition to the sample if a Kansas City buyer did not want the package.

On May 12, Agents Wagner and Fredenburg met Pennell at Mettetal Airport. As Wagner showed the defendant four one-pound packages of sham cocaine, the latter remarked that he could immediately sell one pound to a "Mr. T" who was visiting Detroit from Los Angeles. After Wagner responded that the Kansas City customer still had an option to purchase the packages, Pennell indicated that he could hold his Los Angeles customer until Wagner determined whether the Kansas City buyer would be able to purchase the cocaine.

On May 13, Wagner informed the defendant that the Kansas City buyer had been unable to complete the transaction. Pennell increased his order to two pounds. On May 14 at a Detroit airport restaurant, the defendant purchased two pounds of sham cocaine from the agents for $43,000. He was immediately apprehended. The arresting agents discovered a .38 caliber revolver concealed on his person.

The grand jury returned an eleven count indictment. The trial jury convicted the defendant on all counts, save for count six, one of the unlawful use of a communications facility counts. The district court sentenced Pennell to concurrent nine-year terms on the conspiracy and attempt counts, to concurrent one-year terms on the unlawful use of a communications facility counts and to a consecutive one-year term on the weapons count. The court also assessed fines totaling $50,000. It is from this judgment that the defendant appeals.

Pennell contends that he may not be convicted of attempt to possess with intent to distribute cocaine2 as a matter of law because the substance he purchased from the undercover agents in fact was sham cocaine. The defense essentially is one of impossibility. The resolution of this question is important to the effective enforcement of the federal drug laws because the DEA has adopted a policy in "reverse buy" situations of not furnishing real narcotics. If the defendant's claim is meritorious, the government will be forced to supply real drugs in future "reverse buy" cases. See United States v. Everett, 700 F.2d 900, 907-08 n. 16 (3d Cir.1983).

We agree with the Third Circuit's thorough analysis in Everett and conclude that Congress intended to eliminate the impossibility defense in cases prosecuted under 21 U.S.C. Secs. 841(a)(1) and 846. See 700 F.2d at 903-08. Thus, the purchase of a noncontrolled substance that the defendant subjectively believes to be a controlled substance can constitute an attempt to possess with intent to distribute under Sec. 846. See id. at 908; United States v. Korn, 557 F.2d 1089, 1091 (5th Cir.1977).3

The government must, of course, prove the defendant's subjective intent to purchase (or sell) actual narcotics beyond a reasonable doubt. Meeting this burden of proof can be problematic if the substance involved in a given situation is a fake narcotic. In order to avoid unjust attempt convictions in these types of cases, the courts have fashioned the following evidentiary rule:

In order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, [must] mark the defendant's conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.

Everett, 700 F.2d at 909; United States v. Innella, 690 F.2d 834, 835 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983); United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976); see also United States v. McDowell, 705 F.2d 426, 428 (11th Cir.1983). In other words, the defendant's objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics. See McDowell, 705 F.2d at 428; Innella, 690 F.2d at 835.

In the present case, the jury clearly could have concluded beyond a reasonable doubt that Pennell intended to purchase real cocaine. Among the defendant's objective acts, we highlight two. First, Pennell insisted upon obtaining a sample so that he could attempt to ascertain the quality of the cocaine that he was purchasing. Second, the defendant paid $43,000 for two pounds of a white powdery substance resembling cocaine. No reasonable person would pay such a price for two pounds of a white powdery substance unless he believed the substance to be genuine contraband. Cf. Korn, 557 F.2d at 1091 ($20,000 paid for sham methaqualone tablets). We hold, therefore, that Pennell's objective acts unequivocally corroborated the necessary intent to purchase real cocaine.

The Oviedo case, heavily relied upon by the defendant, does not mandate a contrary result. In Oviedo, the defendant sold sham heroin rather than purchasing it. Under the facts of that case, the Fifth Circuit held that the government had insufficiently corroborated the defendant's subjective intent to sell a narcotic substance. The court reasoned that the defendant's act of selling was equivocal; selling a noncontrolled substance, without more, was consistent with both guilt and innocence.4 In the present case, however, the act which the defendant claims renders his conduct equivocal (i.e., the use of sham cocaine) was performed by the government. The government's unannounced use of sham cocaine cannot possibly be "a relevant reflection of [Pennell's] underlying intent." McDowell, 705 F.2d at 428; Innella, 690 F.2d at 835; Korn, 557 F.2d at 1091. Accordingly, the defendant's reliance upon Oviedo is misplaced.

A second assignment of error is that the district court should have granted use immunity to defense witness Charles Massab, who invoked his fifth amendment privilege against self-incrimination when requested to testify. Although a federal district court lacks power to grant use immunity to a witness under the federal use immunity statute, Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983), or under the compulsory process clause of the sixth amendment, United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980), Pennell's claim arises under the due process clause of the fifth amendment.

The reported courts of appeals cases reflect that criminal defendants have used two theories in presenting this type of due process claim. One theory involves prosecutorial misconduct. Some courts of appeals have either held or strongly suggested that if a federal prosecutor grants use immunity to government witnesses but refuses to immunize defense witnesses with the deliberate intention of distorting the judicial factfinding process, then due process may have been violated. See United States v. Frans, 697 F.2d 188, 191 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 104, 78 L.Ed.2d 107 (1983); Government of the Virgin Islands v. Smith, 615 F.2d 964, 968-69 (3d Cir.1980); United States v. Klauber, 611 F.2d 512, 517-18 (4th Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980); Earl v. United States, 361 F.2d 531, 534 n. 1 (D.C.Cir.1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967); cf. United States v. Lord, 711 F.2d 887, 891 (9th Cir.1983) (prosecutor alleged to have intimidated defense witness into asserting fifth amendment privilege against self-incrimination). The recommended remedy in such cases has been that a court not grant use immunity to defense witnesses, but rather that the court set aside the conviction and remand the case to afford the prosecutor an opportunity to immunize both government and defense witnesses under the use immunity statute. See Lord, 711 F.2d at 891-92; Smith, 615 F.2d at 969; Klauber, 611 F.2d at 518. On the other hand, the Second Circuit has held that a prosecutor's decision to immunize only government witnesses does not violate due process under any circumstances. United States v. Turkish, 623 F.2d 769, 774 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981). But see United States v. Burns, 684 F.2d 1066, 1077 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983). This court adverted to the prosecutorial misconduct theory in the Lenz case, but declined either to accept or reject the theory. 616 F.2d at 963-64.

In the present case, Pennell has not asserted the prosecutorial misconduct theory on appeal. Consequently, we emphasize that the ensuing discussion of the defendant's due process claim intimates no view on the issues of: (1) whether prosecutorial misconduct in making immunity decisions can constitute a due process violation and (2) the appropriate remedy, assuming that such misconduct can be of constitutional magnitude. We expressly reserve those questions.

On this appeal, Pennell has relied solely upon the second theory used by defendants who seek use immunity for witnesses. This theory, which has been accepted by the Third Circuit, is that the federal courts have inherent power to immunize witnesses whose testimony is essential to an effective defense. This power is said to exist independently of the prosecutor's prerogative to grant statutory use immunity to witnesses and is to be exercised in order to protect the truthfinding function of the criminal trial. Smith, 615 F.2d at 969-71. The rationale underlying this theory is that a criminal defendant should not be convicted because a witness, whose testimony would exonerate the defendant, has invoked the privilege against self-incrimination.

The Third Circuit acknowledged that this approach implicates the separation of powers doctrine. Id. at 971. The court nevertheless held that a district court may exercise inherent power to immunize a defense witness if the witness is available, if the proffered testimony is both essential and clearly exculpatory and if no strong governmental interests countervail against a grant of immunity. Id. at 972. The court stressed that immunity should not be afforded to witnesses whose proffered testimony is ambiguous, cumulative, not clearly exculpatory or relevant only to credibility. Id. Moreover, the court identified the government's possible desire to prosecute the witness who the defendant seeks to have immunized as being the most obvious interest countervailing against an immunity grant. Id. at 973.

The primary question that must be addressed is whether the federal courts have inherent power to immunize witnesses.5 Despite the Third Circuit's holding to the contrary, we conclude that the federal courts do not. This court has twice stated that federal courts have no inherent power to grant immunity to witnesses who assert the privilege against self-incrimination. See United States v. Gullett, 713 F.2d 1203, 1209 (6th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 973, 79 L.Ed.2d 211 (1984); Lenz, 616 F.2d at 962. Since the potential availability of witness immunity is purely of legislative origin, Lenz, 616 F.2d at 962, the separation of powers doctrine compels us to hold that the district court lacked power to grant use immunity to witness Massab.

Other courts of appeals agree with this analysis. In an opinion authored by then Circuit Judge Burger, the court of appeals for the District of Columbia stated:

What Appellant asks this Court to do is command the Executive Branch of government to exercise the statutory power of the Executive to grant immunity in order to secure relevant testimony. This power is not inherent in the Executive and surely is not inherent in the judiciary. In the context of criminal justice it is one of the highest forms of discretion conferred by Congress on the Executive ... We conclude that the judicial creation of a procedure comparable to that enacted by Congress for the benefit of the Government is beyond our power. [Emphasis supplied.]

Earl, 361 F.2d at 534. The Seventh Circuit has also held that approving the use of judicially-created immunity would violate the separation of powers doctrine. See, e.g., In Re Daley, 549 F.2d 469, 479 (7th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977); United States v. Smith, 542 F.2d 711, 715 (7th Cir.1976)6. Thus, while the Third Circuit's desire to insure that criminal defendants will have every opportunity to present exculpatory evidence is admirable, the federal courts simply lack the power to effectuate that aim by immunizing witnesses.

Furthermore, the Second and Fifth Circuits have identified practical considerations that militate against recognizing the concept of judicially-created witness immunity. See Turkish, 623 F.2d at 775-79;7 United States v. Thevis, 665 F.2d 616, 638-41 (5th Cir.) cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). First, although the government theoretically is free to prosecute a witness who has obtained use immunity, the government as a practical matter may encounter great difficulty in satisfying the "heavy burden" of proving that its evidence against the witness is neither directly nor indirectly traceable to the immunized testimony.8 See Turkish, 623 F.2d at 775; Thevis, 665 F.2d at 640 & n. 26. This is particularly true where the investigation against the witness is not yet complete. In such situations, the government may have to assign a new team of prosecutors, who are totally unfamiliar with the case, to continue the investigation and to initiate any subsequent criminal proceedings. See id. Even this expedient would not be possible in smaller prosecutor's offices. See Thevis, 665 F.2d at 640 n. 26. Moreover, the government in almost all such cases would be constrained to curtail the cross-examination of the immunized witness in order to "narrow the scope of the testimony that the witness will later claim tainted his subsequent prosecution." Turkish, 623 F.2d at 775.

Second, assuming that the government in some cases will be unable to prove that immunized testimony will not taint a prosecution of the witness, the court in effect will have decided that the current defendant, rather than the witness, should be prosecuted. The choice of whom to prosecute rests, of course, with the government and not with the courts. See Thevis, 665 F.2d at 640. If the prosecution of either the current defendant or the witness must be sacrificed in order to obtain a conviction against the other, this election should be left to the government.

Third, both the Turkish and Thevis courts afforded considerable credence to the fear that judicially-created witness immunity would create opportunities for cooperative purgery among criminals. Co-defendants, for example, "could secure use immunity for each other, and each immunized witness could exonerate his co-defendant at a separate trial by falsely accepting sole responsibility for the crime, secure in the knowledge that his admission could not be used at his own trial for the substantive offense." Turkish, 623 F.2d at 775. Both courts were convinced that the threat of purgery prosecutions would not deter such tactics because the penalty for purgery often is significantly less severe than the penalty attaching to the substantive offense. See id; Thevis, 665 F.2d at 640 n. 27. Moreover, if a significant amount of purgery were to occur, then the goal of preserving the truth-finding function of the criminal trial might be impaired, rather than promoted, by granting use immunity to defense witnesses. See Thevis, 665 F.2d at 640. Since recognizing the concept of judicially-created witness immunity would violate the separation of powers doctrine and could result in serious practical consequences, we hold that the district court correctly refused to immunize defense witness Massab. Proponents of judicially-created witness immunity must seek relief from Congress rather than from the federal courts.

In the alternative, we hold that even if the Third Circuit's approach to this issue were correct, the content of Massab's testimony would not satisfy the Smith standards. According to Pennell, Massab would have testified that the confidential informant was both selling and consuming large amounts of cocaine while cooperating with the DEA, that to Massab's knowledge, Pennell's only association with the informant was to help the latter discharge his debts, and that Massab had never observed Pennell become involved in narcotics transactions.

At trial, defense counsel argued that Massab's testimony concerning the informant's use and distribution of cocaine was relevant to the informant's credibility (Tr.Vol. I at 22). The Smith case clearly indicates, however, that immunity should not be granted under such circumstances. 615 F.2d at 972. Moreover, since the informant admitted during his testimony that he had sold and ingested cocaine (Tr. Vol. XI at 14-19, 93-96), this portion of Massab's testimony would have been cumulative. Furthermore, we agree with the district court that the remainder of Massab's testimony would have been marginally exculpatory at best. That Massab personally did not observe the defendant engaging in narcotics transactions with anyone does little to rebut the testimony of the informant and of the DEA agents who testified that Pennell willingly and enthusiastically attempted to purchase two pounds of cocaine with the intent to distribute it. Massab's testimony simply was not as "clearly exculpatory" as was the proffered testimony in Smith. Thus, even if Smith were correctly decided, Pennell would not satisfy the standards set forth in that case.

Pennell further contends that the district court should have declared a mistrial after five jurors were contacted at their homes by an anonymous telephone caller. Jury deliberations began on Friday, January 28, 1983. Between 1:00 A.M. and 1:30 A.M. on Sunday, January 30, five jurors received anonymous telephone calls. Juror Larson was told, "Urness Larson, you had better find him guilty." Juror Page's daughter answered her father's telephone and was told, "tell Charles [Page] he better vote guilty." Juror Burgess was told, "Mrs. Burgess, find him guilty or you will wish you had." The caller told Juror Saveski, "is this Janet? You had better find him guilty." Finally, the caller instructed Juror Wilcox, "Ms. Wilcox, find him guilty" (Tr. Vol. XVI at 6-7). In all five instances, the caller urged the juror to convict and then quickly hung up.9

On the morning of Monday, January 31, the five jurors informed their counterparts of what had happened and then notified the court. The court proceeded individually to question the five who had received calls out of the presence of the other jurors. Juror Wilcox stated that her impartiality had not been compromised and that she did not feel intimidated. She indicated that the call could have been a prank by a young person attending the school at which she taught. Juror Burgess also assured the court that her impartiality had not been affected, but indicated that Juror Saveski had exhibited apprehension and nervousness about the telephone calls. Burgess also stated that Saveski had not said "one way or the other whether the [telephone call] would have anything to do with her decision."

When asked if the telephone call would impair his ability to render a fair verdict, Juror Page responded, "I don't believe it is impaired in the least." Page did indicate, however, that Juror Saveski was "disturbed" about the matter and was "unsure" of herself. The court next questioned Saveski. During the ensuing discussion, Saveski stated four times in response to different questions that the telephone call had not affected her impartiality or her ability to decide the case on the basis of the testimony and exhibits. Finally, Juror Larson assured the court three times that she would exclude the telephone calls from consideration during deliberations.

With the concurrence of counsel for both parties, the court then summoned the entire jury and asked a series of questions designed to elicit whether any juror's impartiality had been compromised and whether any juror would find it difficult to render a verdict based upon the evidence and the court's instructions. When no juror responded, the court ordered the jury to resume deliberations. Defense counsel then moved for a mistrial.

After the jury resumed deliberations, the forewoman sent a note to the court which read in its entirety:

Attention Honorable Judge Cook. We do have a juror Linda Lorenz, that does feel that the phone calls will influence her judgment in this case. Forewoman Darlene Patterson. (Tr.Vol. XVI at 36).

The court immediately summoned Juror Lorenz, who had not received a telephone call, back to the courtroom. In response to questions, Lorenz stated that listening to the other jurors had made her nervous and that she did not wish to receive a telephone call. Nevertheless, she twice indicated that the calls received by the others would not affect her verdict. In response to additional questioning, Lorenz stated three times that the calls would not affect her deliberations and further stated that she could still abide by her juror's oath. The court then asked Lorenz if she were concerned about possible safety, to which Lorenz responded by nodding her head. When asked whether her nervousness would prevent her from continuing deliberations, Lorenz responded, "I don't know." The following transpired shortly thereafter:

The Court: ... But what I need to know from you is whether you can still perform your responsibilities as a juror?

Juror Lorenz: I believe so. As long as I have something stating or somebody stating that nothing is going to become of all this. I mean ...

The Court: I have every reason to believe that nothing will. And the Court has initiated some processes on this matter. I will say nothing more than simply that.

All right. Thank you very much. We will be back with you. (Tr. Vol. XVI at 43).

After Juror Lorenz returned to the jury room, the court denied the motion for mistrial. As to Juror Lorenz, the court found:

After examining Ms. Lorenz in the presence of counsel and on the record, this Court believes that Ms. Lorenz, while nervous and apprehensive about potential harm to herself, that she is nevertheless able and willing to continue as a juror and, moreover, that I am satisfied that Ms. Lorenz, being aware of her responsibilities as a juror, will confine her assessment of the facts in this case to the testimony of the witnesses, the exhibits that have been received into evidence and the instructions that were presented to the Jury by the Court.

Moreover, the last juror, Linda Lorenz, advised the Court that she could confine her evaluations to those three categories that I have just mentioned. (Tr. Vol. XVI at 48).

Regarding the jury as a whole, the court found:

It is my personal opinion, in speaking with the jurors prior to the--to this session and during the session that they were resolute in their belief that their opinion would not be swayed one way or the other by the telephone call. More specifically, I am satisfied that the jurors, in responding to my questions, were desirous of continuing in their roles as jurors and that the telephone calls would not play any part in their decision. Thus, I am satisfied that a verdict from the Jury, whether it is guilty or not guilty, will not be tainted or affected in any way by the telephone calls that were received by them on Sunday morning, between the hours of 1:00 and 1:30. (Tr. Vol. XVI at 48-49).

The court did offer the jury the opportunity to be sequestered. The jury declined this offer and deliberated for three more days without incident before rendering its verdict.

Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), has generally been regarded as the leading case on the issue of how a district court should treat unauthorized communications with jurors. The Supreme Court in Remmer fashioned the following rule:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. [Emphasis supplied.]