400 F.2d 627 (9th Cir. 1968), 21221, Silverthorne v. United States

Docket Nº:21221.
Citation:400 F.2d 627
Party Name:Don C. SILVERTHORNE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 27, 1968
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 627

400 F.2d 627 (9th Cir. 1968)

Don C. SILVERTHORNE, Appellant,

v.

UNITED STATES of America, Appellee.

No. 21221.

United States Court of Appeals, Ninth Circuit.

Aug. 27, 1968

Rehearing Denied Sept. 23, 1968.

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George C. Martinez (argued), San Francisco, Cal., for appellant.

Cecil F. Poole (argued), U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

BARNES, Circuit Judge:

Appellant Don C. Silverthorne was convicted of violating 18 U.S.C. §§ 656 and 1005; the misapplication of bank funds and the making of false entries in bank records, respectively. The primary error urged by Silverthorne in this appeal is that the trial court failed to ascertain, during the voir dire examination and at certain specific points in the trial, whether, in light of massive news-media publicity which antedated and which was contemporary with the trial, the jurors bore any prejudice toward appellant. Further assignments of error related to the claimed prejudicial publicity are the denials by the district court of a motion to dismiss the indictment and a motion for continuance. In addition, Silverthorne asserts the commission of sixteen other errors by the court below, including the denial of a motion to sever. 1 We have carefully studied the additional allegations of error and find them to be without merit. However, our evaluation of the publicity surrounding appellant's trial and the methods and procedures adopted by the trial court with respect thereto, compel the conclusion that appellant was not accorded a fair trial, free from prejudice or, as the more recent cases require, free from the probability of prejudice. 2

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Accordingly, we reverse the judgment of conviction.

The San Francisco National Bank was authorized to begin doing business in June, 1962 with a capitalization of $4,500,000. Silverthorne was the president and principal organizer of the bank. At the end of the year 1964, the bank's statement reflected assets of some $54,000,000. On January 22, 1965, the bank was ordered closed by the United States Comptroller of Currency because of insolvency. Beginning on that day and continuing through appellant's trial during January and February, 1966, the San Francisco Bay area newspapers were saturated with more than 300 articles concerning Silverthorne and the alleged reasons for the closing of the bank. Radio and television coverage was likewise extensive.

The publicity Silverthorne received could not, of course, be avoided: a bank failure of the proportion here present, the nature of the closing, the criminal charges filed against Silverthorne in the state courts, 3 his testimony and the testimony of witnesses against him before the investigation committee of the Senate Committee on Governmental Operations, the indictment returned by the federal grand jury, Silverthorne's flamboyant and bizarre conduct including his marital and gambling activities with losses of almost one-half million dollars, the civil suit filed against him by the Federal Deposit Insurance Corporation predicated on Silverthorne's alleged malfeasance, and the resignation of Silverthorne's attorney and the latter's filing suit against him for unpaid attorney's fees, all made certain there would be a great plenitude of publicity concerning this federal trial. While much of the publicity was adverse to codefendant Bennett, it was particularly adverse to Silverthorne. In a trial such as this, after the occurrence of such circumstances as are briefly related above, it would have been impossible to avoid public interest, scrutiny and publicity: it is most doubtful that publicity adverse to Silverthorne could have been avoided. 4

We are not concerned with the fact of publicity but with the assessment of its nature. 5 We concentrate, therefore, on (a) whether the publicity was such as to require the court to grant Silverthorne's motions for dismissal or for a continuance, and (b) whether the trial judge and counsel for both sides did all the law requires to ascertain if there was (and if so, to avoid or minimize) prejudice to Silverthorne in the eyes of the jury.

The Motions

Silverthorne's counsel filed a motion to dismiss the indictment under Rule 12, Federal Rules of Criminal Procedure, on the ground that highly prejudicial publicity had infected the grand jury's deliberations. That motion pointed out that (1) Silverthorne was charged before the Senate subcommittee with 'certain unspecified crimes'; (2) that evidence which was inadmissible at his trial had been introduced at the subcommittee hearings, and thereafter publicized in daily local papers and in

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national magazines; (3) that the United States Attorney had accused appellant of acts of misconduct not charged in the indictments (to the effect that he had allegedly misappropriated bank funds to pay gambling debts, that he was under investigation for income tax evasion), and had expressed a personal belief in the defendants' guilt; and (4) that at least two governmental officials had been quoted by the press as expressing belief Silverthorne was guilty 6 of unlawful banking activities, gross misconduct and deception. Silverthorne's sworn affidavit, attached to the motion to dismiss, was accompanied by some 116 exhibits of alleged adverse publicity, some consisting of four or five articles in one exhibit. 7 The United States Attorney requested the court's permission to file an answer to the 'conclusory portion of the affidavits now on file by counsel so that it would not appear * * * (the government) failed to acquiesce or failed to object to them. * * *' However, the court apparently did not act on the request of the Government by way of any order. Nowhere in the record can be found affidavits from the Government contesting or contradicting the affidavits filed by the appellant.

The record does contain, however, a government memorandum in opposition to the motion to dismiss. This pleading relies on two points, the first that there existed no proof that the indictment rendered by the grand jury was influenced in any way by the publicity cited, and the second, that some of the publicity had to do with the bank and not with the appellant, and that 'statements made by the United States Attorney at the time of the returning of the indictments, when viewed in context, should not in any way be prejudicial to the defendant at the time of the trial.' (Emphasis added.) The memorandum expressed that 'the statements made by the United States Attorney were not a deliberate and structured or prolonged intent to inflame public opinion, but * * * were statements made on the return of the indictment * * *.'

Appellant relies on the much-cited case of Delaney v. United States, 199 F.2d 107 (1st Cir. 1952) in support of his position that the indictment should have been dismissed by the trial court because the grand jury deliberations were infected by prejudicial publicity arising out of actions by government agencies and agents. Delaney was a district collector of Internal Revenue. He was indicted and convicted of certain criminal acts engaged in during his term of office. Following the return of the federal indictment against Delaney, an investigation of his office was undertaken by a Senate subcommittee on the administration of Internal Revenue laws. Public hearings were held, and the publicity attendant thereto was nationwide and most adverse to Delaney. Two months after the conclusion of the Senate hearings Delaney's case went to trial, over his objection and after the denial of two motions for continuance.

In reversing Delaney's judgment of conviction because the district court failed to grant a continuance in the wake of the prejudicial Senate hearings, instigated by the United States Government, the Court of Appeals said:

'So far as our present problem is concerned, we perceive no difference between prejudicial publicity instigated by the United States through its executive arm and prejudicial publicity instigated by the United States through its legislative arm. The prosecution is by the 'United States of America' against Denis W. Delaney. After the United States has imposed this burden upon the defendant, by

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making it difficult to determine his guilt or innocence solely on the basis of evidence to be presented at the impending trial, it seems to us neither right, nor in harmony with the spirit of the Sixth Amendment, for the United States to make him stand trial while the damaging effect of all that hostile publicity may reasonably be thought not to have been erased from the public mind.' 199 F.2d at 114.

It is appellant's position that the adverse publicity in the instant case, instigated by a Senate committee and by officers of the federal government, bears the same relation to the grand jury deliberations as the prejudicial publicity in Delaney bore to the trial on the merits: it is as improper to sanction the indictments herein as it was to sanction a guilty verdict in Delaney.

Of course it goes without saying that a pertinent distinction exists between the Senate investigations commencing after a federal indictment and those undertaken before a federal grand jury acts. In the former case, Congress is most certainly warned that its actions may well affect an impending trial. But such a distinction is not the complete answer to the question. Other considerations become manifest, and we think the Delaney court, in broaching the problem now before us, provides us with a proper guideline for decision:

'We limit our discussion to the case before us, and do not stop to consider what would be the...

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