Welch v. United States

Decision Date09 August 1966
Docket NumberNo. 8097.,8097.
PartiesEarl WELCH, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

V. P. Crowe, Oklahoma City, Okl. (Paul R. McDaniel of Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, Okl., and Tom Finney, Idabel, Okl., on the brief), for appellant.

Donald A. Hansen, Washington, D. C. (Richard M. Roberts, Acting Asst. Atty. Gen., Bruce Green, U. S. Atty., E. C. Nelson, Asst. U. S. Atty., Joseph M. Howard and Willard C. McBride, Washington, D. C., on the brief), for appellee.

Before LEWIS and BREITENSTEIN, Circuit Judges, and STANLEY, District Judge.

Certiorari Denied November 21, 1966. See 87 S.Ct. 395.

DAVID T. LEWIS, Circuit Judge.

Appellant, a former Justice of the Supreme Court of Oklahoma, was found guilty by a jury verdict on all five counts of an indictment charging him with wilfully and knowingly attempting to evade income taxes for the years 1957 through 1961 in violation of 26 U.S.C. § 7201 and was sentenced to concurrent prison terms of three years and fined $13,500. Thereafter appellant filed a motion for judgment of acquittal or alternatively a motion for a new trial, both of which were denied. He now seeks review of the order overruling his post-trial motions and of the judgment entered pursuant to the jury verdict. The issues before us arise in the main from appellant's contentions that jury prejudice should be presumed from the widespread news coverage preceding and during the trial and that the court erred in certain evidentiary rulings and in not allowing a new trial as a result of juror misconduct.

Using the net worth and nondeductible expenditure method of accounting the government determined that appellant had an unreported taxable income of $41,826.60 during the prosecution years of 1957-1961. The government's computation is premised upon an accounting of appellant's income and expenditures throughout his years of professional service from 1912 to 1955. During this period Justice Welch practiced law in Antlers, Oklahoma from 1911 to 1926, served as state district judge from 1927 to 1932 and was a Justice of the Oklahoma Supreme Court from 1933 to 1961.

Appellant claimed that his unreported, nondeductible expenditures for the years in question came from an accumulated cash fund of over $56,000 and not from income. The government, however, introduced extensive and detailed evidence, too voluminous for our definitive presentation, in establishing that its indictment was based upon the expenditure of unreported income rather than the claimed accumulated cash funds.

A summary of the government evidence showed that appellant spent $17,521.00 in excess of receipts from 1912 through 1955 making it impossible for him to have acquired a large cash fund. On the other hand appellant presented evidence that he had saved $56,000.00 in cash funds by the end of 1956. In refuting this claim the government contended that even if it used the figures furnished by the appellant, he would have accumulated no more than $36,750.00 by 1933 and that this cash fund would have necessarily been expended by 1956. The issue presented to the jury for factual determination was whether Justice Welch did or did not have a cash hoard sufficient to offset his expenditures during the prosecution years. The sufficiency of the evidence to support the verdict of guilty is not attacked directly on appeal but serves as a premise for the claim of error in the admission of evidence and as a background for the asserted prejudicial impact of publicity upon the trial.

Justice Welch was indicted on April 9, 1964, at Oklahoma City. Upon that same date and by the same grand jury Justice N. S. Corn, at such time a supernumerary member of the Supreme Court of Oklahoma, was charged in a separate indictment with similar offenses. On July 1, 1964, Justice Corn entered a plea of nolo contendere to the counts of his indictment and was sentenced to a fine and concurrent imprisonment terms of eighteen months. The United States represented to the sentencing judge that Justice Corn had received a bribe of $150,000 in return for a favorable judicial decision in a state supreme court case and that he had indicated to a witness that the money was to help him and "other members of the Supreme Court in meeting campaign expenses." This statement of the United States District Attorney together with Justice Corn's plea and sentencing received extensive publicity in all forms of news media. And securely packaged in the news coverage was the fact of appellant's pending trial, his association with Justice Corn, the assertion of corruption of Justice Corn and "others," and the linking of the name of Hugh A. Carroll, a former president of Selected Investments Corporation, as a "witness."1

Trial of appellant's case began on October 5, 1964, at Muskogee, Oklahoma, after transfer from the Western to the Eastern District of Oklahoma. Publicity of the proceedings continued in the same vein and appellant's motion for continuance upon claim of prejudice therefrom was denied. During the course of the trial the government called as witnesses both Justice Corn and Hugh A. Carroll in an attempt to show a probable source of income to appellant. Justice Corn invoked the Fifth Amendment and declined to answer any questions. Carroll testified to the bribery of Justice Corn but did not implicate Justice Welch. The testimony was taken in open court but in the absence of the jury, appellant's motion to hear the witnesses in chambers having been denied. The court ruled the testimony to be inadmissible. News media headlined the appearance and testimony of these witnesses.

In urging that appellant did not receive a fair trial before an impartial jury because of the attendant publicity given the proceedings, no claim of actual prejudice or specific error in the application of traditional safeguards by the trial court is made. And the record reveals no proven prejudice nor trial error. Voir dire examination of prospective jurors was complete and, perhaps surprisingly, revealed that the panel members had little knowledge of the case beyond the fact of its existence. None was challenged for cause. The trial jury was properly and repeatedly instructed not to read or listen to news media during the trial and their responsibilities in such regard were made emphatically clear to them. The jury was allowed to separate at night and over a weekend but no request to impound them was made. But, says appellant, these traditional procedures of accepting as unprejudiced a juror who subjectively so states although exposed to publicity, of placing reliance upon the impact of court instructions to avoid juror exposure to trial publicity, of requiring an affirmative showing the existence of prejudice, are each but "reality-obscuring myths" which should be rejected in view of the present-day exposure and influence of news media on the common life. In sum, appellant says he did not have a fair trial because he could not have one under a reality-recognizing legal concept of justice and due process. We cannot approve such a legal philosophy and find no support for it in the decisions of the Supreme Court termed "revolutionary" by appellant.

In support of post-trial motions appellant submitted affidavits indicating that headlined papers were prominently displayed in the lobby of a hotel where some of the jurors stayed. Another affidavit indicated that some conversational speculation occurred among members of the trial jury as to what was occurring and who might be testifying (including mention of Corn and Carroll) during a period when the jury was excused. In regard to the latter we have no doubt that jurors often speculate about trial proceedings conducted out of their presence, sometimes accurately, as here, and sometimes inaccurately, also as here. And for what it is worth, we accept as a reality the natural and human frailties of jurors, such as curiosity, as potential instruments of prejudice.

Fairness in the administration of justice is not a one-way street to be approached only through an entrance limited to the accused. His cause cannot be submitted to automated jurors existing in complete sterility. And prominence of position deserves no special consideration. To the contrary, the administration of justice requires that the personal and professional conduct of any judge be a subject for public concern and knowledge, continued scrutiny, and, in proper instances, authoritative action. News media not only have a right to report upon the subject, Estes v. State of Texas, 381 U.S. 532, 541, 85 S.Ct. 1628, 14 L.Ed.2d 543, rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118, but have a professional duty to do so that extends beyond the term newsworthy. The exercise of free reporting, the so-called "extensive publicity" given to a case, is a right that must be balanced against the right of an accused to be tried by an impartial jury but does not dictate the conclusion that prominence brings prejudice. But we agree that the prominence of publicity may produce prejudice, actual or so inherent in the circumstance that realism requires its recognition. We reject, therefore, appellant's argument that he could not receive a fair trial because of his high position and the attendant publicity of his arrest and trial and turn to the question of whether he did receive a fair trial. And, in such regard, we consider the decisions of the Supreme Court that appellant terms "revolutionary" to be, indeed, realistic.

In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, jurors hearing a routine criminal case were exposed, during the course of the trial, to newspaper articles of a reckless nature covering matters far removed in time and space from a factual report of the trial occurrence. The accounts apprised the...

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