U.S. v. Ogle, 78-1625

• Decision Date: 01 November 1979
• Docket Number: No. 78-1625,78-1625
• Citation: 613 F.2d 233
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tim Z. OGLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 233

613 F.2d 233

UNITED STATES of America, Plaintiff-Appellee, v. Tim Z. OGLE, Defendant-Appellant.

No. 78-1625.

United States Court of Appeals Tenth Circuit.

Nov. 1, 1979.

Rehearing Denied March 5, 1980.

Richard N. Stuckey, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., and James E. Nesland, Asst. U. S. Atty., Denver, Colo., of counsel, on the brief), for plaintiff-appellee.

Irvin M. Kent, Denver, Colo. (Arthur R. Karstaedt, III, Denver, Colo., on the brief), for defendant-appellant.

Before HOLLOWAY and DOYLE, Circuit Judges, and BOHANON, ^* Senior District Judge.

WILLIAM E. DOYLE, Circuit Judge.

The defendant-appellant seeks reversal of a judgment of conviction which was entered on June 15, 1978, in the United States District Court for the District of Colorado. The indictment described a violation of Title 18 U.S.C. § 1503. ¹ Thus, the defendant was accused of knowingly and corruptly endeavoring to influence, impede and obstruct the due administration of justice in a case then pending in the United States District Court. A further specific allegation identified Colleen Hansen as a juror in a case then being tried and stated that he endeavored to deliver to her a pamphlet called "A Handbook for Jurors."

There are two fundamental questions which go to the crux of the case. First, whether, in fact, the defendant, Ogle, had endeavored to communicate with the juror, Colleen Hansen. This question, being one of fact, was resolved by the jury, and the only appellate issue is whether the evidence is sufficient to justify its submission to the jury. The second question is whether he endeavored to deliver to Mrs. Hansen the pamphlet entitled "A Handbook for Jurors." The government's theory is that he had endeavored to do this through an agent, Jacquelyn Lagoni. The question of law which threads through the entire case and which is raised in various ways by the appellant is whether a belief by the defendant, subjective in nature, as to the validity of a law, constitutes a justification for his taking action which would effectively nullify it.

At the times in question, Ogle was a pilot for Continental Airlines. Two of the witnesses in this case, Colleen Hansen, the juror, and Jacquelyn Lagoni, the important witness, were stewardesses for Continental Airlines and were well acquainted with Ogle. Jacquelyn Lagoni had made flights on planes which Ogle had been piloting. Also, she and her husband, William Lagoni, had attended a several weeks' course which was conducted by Ogle. This course was variously described as being one in good citizenship which centered around the Constitution, the Bill of Rights and our system of government. The textbook used in this course had been written by the defendant Ogle and was entitled "Good Citizenship with Constitutional Tax Return and Procedures," Exhibit 2. There was also a pamphlet which was a small version of the mentioned book. It was entitled "A Handbook for Jurors," Exhibit 1.

The tax return book advised that the jury was more powerful than all three branches of the government combined, and that after jurors are armed with the Constitution and are aware of their power, they have the final authority to acquit one of their fellow citizens accused of a crime that the jurors do not consider to be a crime based on their consideration or determination of the justice of the law. This is described as the jury's right of nullification. The book goes on to say that this is a protection against unjust laws and that the verdict of the jury cannot be challenged or retried or overturned by any higher court. It further says that a juror has more power than the President of the United States, the United States Congress, and the United States Supreme Court.

Much of the book's space is addressed to tax matters. It tells the reader how to make out the income tax return with a view toward convincing a potential jury of their good faith in obeying the law. Use of attachments such as Honorable Discharge from the service, evidence of civic service, letters to Congress and clippings from newspapers is advocated. It sets forth an income tax return which is filled out in blank with asterisks. It seeks to establish that the Sixteenth Amendment validating the federal income tax is subject to being itself declared unconstitutional. Included is an affidavit of insufficient income which reads: I swear, under penalty of perjury, that the income I received in 19 was less than $750 Statutory dollars, as I understand that term. Signed ." (Emphasis supplied.)

The pamphlet, "A Handbook for Jurors," teaches that tax crimes are not true crimes and that it is unnecessary for jurors to follow the law of the land where they conceive of the law being contrary to their concepts of morals. The book also teaches that a juror is empowered to determine if a law under which a person is charged is contrary to the Constitution or common law and acquittal is appropriate. The emphasis in the handbook is that the juror is empowered to acquit where he feels that the law is unfair or that it infringes on fundamental rights.

The trouble started when Colleen Hansen, a stewardess for Continental Airlines, was empaneled as a juror in a case against one Norman Gigax, who had been involved in the tax protest movement and was on trial for filing a false W-4 employee withholding form. Ogle, as we have previously mentioned, also had an intense interest in this tax protest movement in that he conducted the school and wrote the literature which was used in the classes. He was present at the trial of Gigax and recognized Mrs. Hansen, who was a stewardess for Continental Airlines. Also, on the first day that he was at the trial, he had some brief communication with Mrs. Hansen in the elevator. That same evening, Ogle contacted Jacquelyn Lagoni by telephone. She was not only a stewardess for Continental Airlines, she was also a student of Ogle's in the tax course and was a personal acquaintance of Mrs. Hansen's. This telephone communication was made by Ogle from the auditorium where he had been a spectator at some tennis matches which were being played there.

The conversation between Ogle and Mrs. Lagoni, according to the latter, pertained to whether or not Mrs. Hansen had a copy of the booklet entitled "A Handbook for Jurors," which discussed and advocated the concept of jury nullification. Shortly after this conversation, Lagoni called Mrs. Hansen and revealed that she knew that Mrs. Hansen was a juror on the Gigax case, and that Mrs. Lagoni told Mrs. Hansen, as a result of inquiry by the latter, that Ogle had been the source of her information. Mention was made of the pamphlet "A Handbook for Jurors," and Mrs. Hansen was asked if she would like to have a copy. Moreover, Mrs. Lagoni offered either to have Ogle deliver a copy or to deliver a copy herself. Mrs. Hansen refused the offer and reported the incident to the judge.

Immunity was offered to Mr. and Mrs. Lagoni in return for their cooperation at trial. They accepted this, but informed the judge that they intended to invoke their Fifth Amendment privilege against self-incrimination if they were asked any questions about their personal return. It was on this basis that they were called as witnesses.

The theory of the prosecution's case was that Ogle's telephone call to Mrs. Lagoni was part of an attempt to communicate to her his desire that the pamphlet mentioned above, "A Handbook for Jurors," should be delivered to Mrs. Hansen. The government also contended that this was an effort by Ogle to manipulate Mrs. Hansen's actions as a juror.

Ogle enumerates a number of errors as a basis for reversing the judgment of the trial court:

1. He contends that the trial court erred in refusing to allow him to testify that he had no intention of influencing a juror, which refusal of the trial court would leave the jury with the impression that intent was unimportant to a decision in the case. An objection to questions asked on redirect examination concerning Ogle's intent to influence the jury was sustained. The government's response is that Ogle did testify regarding his lack of intent on direct examination and there was no need for him to repeat it on redirect. The argument is that the objection on redirect was valid because the evidence was repetitive. Ogle's position is that the issue of intent was explored on cross-examination and that he had a right to again assert on redirect that he had no such intent so as to prevent confusion.

2. Ogle criticizes an instruction of the court defining "corruption" as used in the statute. The court told the jury that "corruptly" means any endeavor to influence a juror in the performance of his or her duties or to influence, obstruct or impede the due administration of justice. He argues that reference to evil or wicked purpose should have been included in the definition and that its absence effectively eliminated the corrupt element of the crime. He maintains that the word "corrupt" means something that is especially diabolic, above and outside the letter and spirit of the law.

The government's argument in response to this is that the instructions considered as a whole clearly bring home to the jury the fact that specific intent requiring a bad motive is an element of the crime. A Tenth Circuit case is cited to prove the propriety of the definition of "corrupt" which was given by the judge. This was Broadbent v. United States, 149 F.2d 580 (10th Cir. 1945).

3. The next point is that the trial court committed error in refusing to allow Ogle to testify as to the materials he studied and relied upon in arriving at his convictions which were set forth in "A Handbook for Jurors." His position was that such testimony would have aided him in showing the jury that he did not have a corrupt motive; that it was in good faith, undoubtedly.

The government responds that the testimony is irrelevant and that Ogle's defense was that the...