McWilliams v. United States

• Decision Date: 27 May 1968
• Docket Number: No. 18925.,18925.
• Citation: 394 F.2d 41
• Parties: John McWILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 41 (1968)

John McWILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 18925.

United States Court of Appeals Eighth Circuit.

May 1, 1968.

Rehearing Denied May 27, 1968.

Norman S. London, St. Louis, Mo., for appellant; Lawrence Lee, St. Louis, Mo., on the brief.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.

Before MATTHES, GIBSON and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

This is an appeal from a judgment of conviction entered upon jury verdicts finding the appellant guilty of the unlawful purchase and sale of heroin in violation of 26 U.S.C. §§ 4704(a), 4705(a), respectively. Counts I and III of the indictment charged the appellant with the purchase of heroin on March 7, 1967 and March 8, 1967, respectively. Counts II and IV alleged that he sold the heroin on the same dates.

Appellant does not challenge the sufficiency of the evidence to sustain the verdicts. He does, however, contend that the court erred in denying his motion for judgment of acquittal on the ground that the evidence established entrapment as a matter of law. Additionally, he asserts several procedural and substantive errors which allegedly deprived him of a fair trial. In view of the posture of the case a brief resume of the uncontradicted evidence will suffice.

The course pursued by the government in constructing its case followed a pattern frequently found in narcotic cases. An informer, Miss Kimberly Robinson, in cooperation with narcotic agents Richard M. Patch and Dan C. Hoerner, entered into a narcotic purchase arrangement under their surveillance.

Evidence Germane to Counts I and II.

Following a telephone conversation on the night of March 6, 1967 between the informer and appellant, monitored by Agent Patch with the consent of the informer, the appellant appeared at room 221 in the Diplomat Motel, St. Louis, Missouri, which was occupied by Miss Robinson. Prior to the appellant's arrival Agent Patch had placed $50.00 on a table in the room. Miss Robinson testified that appellant communicated with some person by telephone and asked that party to send Marian Gray over with the "stuff." After this call Marian Gray came to the room and delivered five capsules wrapped in aluminum foil to the appellant, who placed them on the table. He took $35.00 out of the $50.00 and departed shortly thereafter. During his stay in the room the informer placed another order for heroin which appellant promised to deliver. The entire transaction was consummated in the early morning hours of March 7th. All of the events that transpired as well as the conversations between the informer and appellant were witnessed and overheard by the agents who were stationed in an adjoining room. After appellant's departure the agents immediately took possession of the five capsules which were untouched by the informer.

Evidence Germane to Counts III and IV.

The events relating to the March 8th offenses were substantially similar to those of March 6th and 7th. Again, as the result of communications between the informer and appellant, the latter, through an emissary, delivered six capsules to Miss Robinson in room 221. A total of $23.00 furnished by the agents was paid for this contraband. As before, all of the events were observed by the agents from the adjoining room.

The heroin seized on both dates was sealed, initialed, and forwarded to a government chemist in Chicago. The latter's testimony at trial established that the capsules contained a quantity of heroin known as hydrochloride.

Appellant offered no evidence to exculpate himself. His retained attorney, skilled in the defense of criminal cases, launched a vigorous attack upon the character of Miss Robinson in an attempt to completely discredit her testimony.¹

I.

The main thrust of appellant's attack on the validity of his conviction centers around the district court's denial of his motions for continuance and change of venue, spawned by certain pre-trial adverse publicity.

The attendant publicity, which appellant contends deprived him of a fair trial, involves various newspaper articles and radio and television broadcasts concerning an alleged attempt on the life of the government witness, Miss Robinson. The articles and scripts characterize appellant as the "kingpin of St. Louis heroin dealers" and indicate that the purported assault on Miss Robinson was perpetrated at his direction. Appellant does not claim that the jurors were actually prejudiced by reason of exposure to the news coverage. Rather he argues that these accounts which appeared in the news media between June 20 and June 23, 1967, some three to six days prior to trial, so permeated and pervaded the atmosphere of the community as to inherently prejudice his right to an impartial jury. We disagree.

Despite appellant's suggestions to the contrary we do not believe that the pre-trial publicity in the case at bar even remotely resembles the magnitude of prejudicial publicity recently condemned by the Supreme Court. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). We are cognizant that neither a showing of prejudice nor actual exposure of individual members of the jury panel to adverse publicity is required for reversal where outside influences have so infiltrated the community at large as to render the existence of community prejudice against the defendant highly probable.

While the Supreme Court has sustained a broad challenge to the validity of criminal convictions occurring in an atmosphere of pervasive publicity, the circumstances in these cases giving rise to the probability of prejudice were held to be "inherently suspect." Estes v. State of Texas, 381 U.S. 532, 544, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). See, e. g., Sheppard v. Maxwell, supra (exposure of the jury to highly publicized and prejudicial information outside the courtroom and disruptive influences inside the courtroom); Estes v. State of Texas, supra (extensive televising and broadcasting of pre-trial hearing and portions of defendant's trial); Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed. 2d 663 (1963) (televised interview and interrogation of the defendant by the sheriff, in which the former confessed his perpetration of a bank robbery, kidnapping and murder). Cf. Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed.2d 424 (1965) (testimony of two deputy sheriffs, key government witnesses, who also served as custodians of the jury); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (expression by two-thirds of the jurors of a sentiment of partiality against the accused in an atmosphere of intensive community prejudice, and extensive newspaper dissemination throughout a small Indiana county of defendant's prior criminal record, police line-up identification, lie detector test, negotiations with the prosecutor, and confessions to similar crimes).

Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity generated by the news articles, radio and television broadcasts and the existence of actual jury prejudice. See, e. g., Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967); United States v. McElrath, 377 F.2d 508 (6th Cir. 1967); Welch v. United States, 371 F.2d 287 (10th Cir. 1966), cert. denied, 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed. 303 (1966), where the publicity which focused on the defendant, a former justice of the Oklahoma Supreme Court, reached widespread proportions and continued during the actual trial; United States v. Andreadis, 366 F.2d 423 (2d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S. Ct. 703, 17 L.Ed.2d 541 (1967); United States v. Armone, 363 F.2d 385 (2d Cir. 1966), cert. denied, Viscardi v. U. S., 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966).

In Estes v. State of Texas, supra, the Supreme Court recognized the rule that absent appropriate circumstances the courts must carefully examine the facts to determine whether actual prejudice has resulted:

"It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process." 381 U.S. at 542-543, 85 S.Ct. at 1632-1633.

See, e. g., Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).

Appellant's claim of prejudice is readily dissipated when considered in light of the means adopted by the district court to shield the jury from exposure to outside influences. Although the publicity occurred only a few days prior to the commencement of trial, the district court had previously admonished the prospective jurors to avoid all contact with any publicity affecting the central figures in the case. Appellant's counsel, moreover, was afforded a full opportunity on voir dire to analyze the potential, prejudicial impact which the publicity may have had.

This examination revealed that only two of the twenty-eight prospective jurors had casually observed one of the news articles. Each had refrained, however, from reading its contents. Both were excluded from the trial panel.

Considering the totality of the circumstances, we reject the claim of error in the denial of appellant's motions for continuance and change of venue. We believe that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as expounded in the court's instructions.

II.

The next claim of error is focused upon the rejection of evidence proferred by appellant for the purpose of showing that Miss Robinson had indirectly received some consideration for her efforts in cooperating with and testifying for the government.

The parties...