Margoles v. United States
Decision Date | 04 March 1969 |
Docket Number | No. 16812.,16812. |
Citation | 407 F.2d 727 |
Parties | Milton MARGOLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
John P. Diuguid, Louis M. Kaplan, Philip A. Gorelick, Washington, D. C., James M. Shellow, Milwaukee, Wis., for appellant, Carr, Bonner, O'Connell, Kaplan & Scott, Washington, D. C., Shellow, Shellow & Coffey, Milwaukee, Wis., of counsel.
James B. Brennan, U. S. Atty., Richard E. Reilly, Robert J. Lerner, Asst. U. S. Attys., Milwaukee, Wis., for appellee.
Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.
This appeal arises from the denial by the district court of petitioner's motion to vacate his sentence, under 28 U.S.C. § 2255. Petitioner was convicted in 1960 of attempting to obstruct justice and unlawfully influence a federal officer, in violation of 18 U.S.C. § 1503. The case arose out of an alleged attempted bribe of a federal judge who had previously sentenced petitioner to a one-year prison term after a plea of nolo contendere to charges of income tax evasion.1 Petitioner's conviction for obstructing justice was affirmed by this court in United States v. Margoles, 294 F.2d 371 (7th Cir. 1961), in which the issues presented on this appeal were not raised.
Specifically, those issues concern petitioner's contention that because of widespread prejudicial publicity regarding the alleged bribery, he was denied his constitutional right to a fair trial. The main question centers around the conduct of the trial judge, toward the prospective and chosen jurors, in taking precautions against the effect of the publicity, both before and during the trial.
Petitioner's defense at trial was entrapment. Thus, the issue presented to the jury turned on the question of whose version of the transaction was to be believed — petitioner's or the Government's chief witness. The jury returned a verdict of not guilty on the bribery count and guilty on the other two counts. Petitioner has served the two concurrent five-year sentences imposed by the district court and his parole expired on October 20, 1966.
Since the existence of prejudicial publicity both before and during the trial present different legal issues, we shall discuss each separately.
The pretrial publicity consisted mainly of twenty-four different articles in Milwaukee's two major newspapers, which appeared on sixteen separate days on either the front page or the "second front page."2 The combined circulation of these two newspapers reaches the great majority of households in Milwaukee County, where the trial was held. Comparable radio and television coverage is also alleged by petitioner.
Petitioner contends that most of the newspaper articles were harmful to him, that many were inaccurate, and that Government officials assisted the press in obtaining the information used in the articles. Perhaps the primary example of prejudicial pre-trial publicity cited by petitioner is contained in two articles which concerned a letter, made public by the judge who was the object of the attempted bribe, praising the informer who, according to the judge, "unwittingly and innocently became the vehicle for the alleged attempt by Dr. Milton Margoles to bribe" the judge. This article and the letter on which it was based, petitioner claims, destroyed the defense of entrapment, which was petitioner's only defense presented at trial.
Petitioner's counsel did not move for a continuance on the basis of the publicity, although a continuance was requested on other grounds. The trial court, however, began its handling of the case on the assumption that there was possible prejudicial publicity. Although most of the newspaper articles appeared some time before the trial began, the response of some of the veniremen indicated that the publicity surrounding this case was in fact known to at least some of the prospective jurors. Assuming for purposes of this opinion that prejudicial publicity was present, the question before us is whether the procedures employed by the trial court adequately protected petitioner's right to a fair trial.
Petitioner contends that the district court "did virtually nothing to safeguard the accused's constitutional right to have his guilt or innocence determined by an unbiased jury." We strongly disagree. The record discloses that the trial court thoroughly instructed and questioned the jurors on the effect of the publicity. During the voir dire examination, the court began by stating:
After further explanation by the court, some veniremen responded that they had read about the case. All but one of these were ultimately excused from jury duty. That one, Mr. Dix, was examined by the court and later by defense counsel. The following dialogue took place between the court and Mr. Dix:
There then followed more extensive instructions and questions by the court, including a strong, thorough statement on the presumption of innocence. Similar statements were later made by defense counsel. From the responses given by some of the veniremen, there does not appear to have been any hesitance on their part to answer frankly and candidly. Indeed, both the court and counsel commendably created an atmosphere conducive to honest admissions by the jurors. Those who admitted that they had formed a prejudicial opinion about the case were excused and defense counsel voiced no objection to either the method of examination or to the jurors who were finally selected.
We hold that the procedures employed by the district court at the voir dire examination of prospective jurors were adequate to safeguard petitioner against the effect of prejudicial pre-trial publicity, protected his right to a fair trial, and met the standards set by the Supreme Court and by this Court in dealing with similar cases.
In Irvin v. Doud, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court, in a case involving prejudicial pre-trial publicity, set out the applicable standards:
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