409 F.2d 1399 (9th Cir. 1969), 21914, Gawne v. United States

Docket Nº:21914-A, 21914-B.
Citation:409 F.2d 1399
Party Name:Robert Lee GAWNE, Appellant, v. UNITED STATES of America, Appellee. William Thomas BANKS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 27, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1399

409 F.2d 1399 (9th Cir. 1969)

Robert Lee GAWNE, Appellant,

v.

UNITED STATES of America, Appellee.

William Thomas BANKS, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 21914-A, 21914-B.

United States Court of Appeals, Ninth Circuit.

March 27, 1969

Rehearing Denied May 1, 1969.

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William N. Forman, Reno, Nev. (argued), for appellant Gawne.

Richard E. Fray, Reno, Nev. (argued), for appellant Banks.

Joseph L. Ward (argued), U.S. Atty., Julien G. Sourwine, Asst. U.S. Atty., Reno, Nev., for appellee.

Before: BARNES and BROWNING, Circuit Judges, and TAYLOR, [a1] district judge.

BROWNING, Circuit Judge:

Robert Gawne and William Banks appeal their convictions of violations of 18

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U.S.C. §§ 1201(a)(2) (Federal Kidnaping Act) and 2312 (Dyer Act), and of 15 U.S.C. § 902(e) (Federal Firearms Act) (now 18 U.S.C. § 922(e)). We affirm.

I

Appellants moved before trial to transfer the proceedings from Reno to Las Vegas in the District of Nevada on the ground that because of local pretrial newspaper and television publicity, prejudice against them in the Reno area was so great that they could not obtain a fair trial. The district court denied the motion without prejudice to renewal after the selection of the jury. The motion was renewed at that time, and again denied. Appellants contend that denial was error.

Appellants urge that the pretrial publicity may have denied them a fair and impartial jury. 1 It is our duty to make an independent determination whether this was so, based upon our own evaluation of the totality of circumstances disclosed by the record. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); United States ex rel. Bloeth v. Denno, 313 F.2d 364, 372 (2d Cir. 1963) (en banc).

The pretrial publicity reflected in the record consists of eleven news stories and photographs in two local papers, and a television interview of Mrs. Grisham, the kidnap victim. 2 Appellants assert that the public had been conditioned by this publicity to believe Mrs. Grisham's version of the incident (that she had been abducted against her will), and had been prejudiced by statements that appellants were 'ex-convicts' who were wanted elsewhere in connection with the murder of two women. We have concluded that the possibility of prejudice was slight.

The publicity was not intensive, and it reached its peak in late December 1966-- more than three months before the selection of the jury in April 1967. Eight of the news stories and pictures were published in the two local papers on five days during the period December 21 through December 30, and the television interview was apparently broadcast in this same period. A short article appeared on January 10, a photograph of appellants appeared on January 12, and the final story was published on February 11. This material does not impress us as either spectacular or inflammatory. Many of the articles were rather short; some were relegated to back pages. They consisted largely of routine accounts of factual events, without editorial flavoring. The publicity reflected in this record falls far short of establishing such a probability of prejudice that the danger of a biased jury could not be dispelled by voir dire. Cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

In initially denying the motion for change of venue, the trial court informed counsel that in selecting the jury he would make a particular effort 'to determine whether or not the jurors selected do still retain in their memory any prejudicial information that they may have read in any newspaper reports.' Accordingly, on voir dire the court questioned prospective jurors as a group and, as to most, individually as well, about their knowledge of the case. Only two veniremen stated that they remembered more from pretrial publicity than the general nature of the charge as it had

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been read to them by the court. One of them remembered 'a couple of minor details' in addition to the facts alleged in the indictment; the second recalled 'general details' from television...

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