## Facts

- Federal agents conducted a DEA “reverse buy” in which Gordon Pennell arranged to purchase two pounds of cocaine through an intermediary informant.
- The informant had previously sold cocaine for Pennell on a regular basis and had accrued a substantial drug debt connected to Pennell and an associate.
- Using the informant as a go-between, agents negotiated the sale; Pennell demanded a sample, negotiated price, and delivered $43,000 in cash.
- The “cocaine” delivered by undercover agents was sham cocaine; Pennell was arrested at the transaction.
- Pennell was carrying a concealed firearm at the time of arrest.
- The government introduced evidence of multiple telephone communications used to arrange and further the drug transaction.
- During jury deliberations, five jurors received late-night calls urging conviction; the court questioned affected jurors individually, questioned the full jury with the parties’ consent, and offered sequestration, which the jury declined.
- A jury convicted Pennell of conspiracy and attempt to possess with intent to distribute cocaine, multiple counts of unlawful use of a communications facility, and carrying a firearm during commission of a felony.

## Issues

1. Whether attempted possession with intent to distribute under 21 U.S.C. §§ 841(a)(1), 846 can be proved when the substance delivered is sham cocaine.
2. Whether a district court must compel or confer immunity for a defense witness.
3. Whether unauthorized calls to jurors required a mistrial due to presumed or actual bias.
4. Whether the evidence was sufficient to reject entrapment and prove predisposition and the charged offenses.

## Decision

- The Sixth Circuit affirmed all convictions.
- The court held the attempt conviction was valid despite sham cocaine because Pennell believed the substance was cocaine and took substantial steps toward obtaining it.
- The court held the district court did not err by refusing to require immunity for a defense witness and that courts lack general inherent authority to grant use immunity over the government’s objection.
- The court held a mistrial was not required because Pennell failed to show actual juror bias and the district court’s inquiry and remedial steps were adequate.
- The court held the entrapment defense failed because the record supported predisposition; the remaining counts were supported by the evidence, including Pennell’s armed presence at the drug transaction and use of communications to further the offenses.

## Legal Principles

- Under 21 U.S.C. § 846, attempt liability turns on the defendant’s intent and substantial steps; factual or “impossibility” based on sham drugs does not bar conviction when the defendant believes he is acquiring a controlled substance.
- Federal courts generally lack inherent power to grant defense-witness use immunity absent statutory authorization; immunity decisions primarily rest with the executive.
- Due process challenges based on outside juror contact require a hearing adequate to assess impartiality; the defendant bears the burden to prove actual bias, and remedial questioning can suffice.
- Entrapment is defeated by proof of predisposition; prior trafficking activity, negotiation of a large purchase, and readiness to pay substantial funds can support predisposition and permit jury rejection of entrapment.

## Conclusion

The court affirmed Pennell’s drug, communications, and firearm convictions, holding that sham cocaine does not defeat an attempt charge where the defendant intended to buy real cocaine and acted to complete the deal, that courts cannot generally immunize defense witnesses over prosecutorial objection, and that juror contact warrants relief only upon proof of actual bias after an adequate inquiry.


United States v. Pennell, 737 F.2d 521 (6th Cir. 1984)