485 F.2d 398 (8th Cir. 1973), 73-1061, United States v. McNally

Docket Nº:73-1061.
Citation:485 F.2d 398
Party Name:UNITED STATES of America, Appellee, v. Martin J. McNALLY, Appellant.
Case Date:September 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 398

485 F.2d 398 (8th Cir. 1973)

UNITED STATES of America, Appellee,

v.

Martin J. McNALLY, Appellant.

No. 73-1061.

United States Court of Appeals, Eighth Circuit.

Sept. 14, 1973

         Submitted June 13, 1973.

         Rehearing and Rehearing En Banc Denied Oct. 2, 1973.

Page 399

         Frederick H. Mayer, St. Louis, Mo., for appellant.

         David Harlan, Asst. U. S. Atty., St. Louis, Mo., for appellee.

         Before GIBSON, LAY and ROSS, Circuit Judges.

         GIBSON, Circuit Judge.

         Defendant Martin Joseph McNally was indicted for and convicted of hijacking two aircrafts, legally proscribed as aircraft piracy. 1 Following the jury verdict, the Honorable John K. Regan sentenced the defendant to two concurrent life sentences.

         On appeal defendant urges four grounds of error, any one of which would require reversal of his conviction.

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         He maintains: (1) the District Court should have granted defendant's motions for a change of venue, for sequestration of the jury, and exclusion and control of the press due to prejudicial pretrial and trial publicity, (2) the District Court should have appointed a psychiatric expert of defendant's choice to aid in the preparation of his defense, (3) the District Court should have granted defendant's motion to suppress evidence due to an illegal search of defendant's house, and (4) the District Court should have allowed the defendant 20 peremptory challenges under Fed.R.Crim.P. 24(b), since the charged crime could have resulted in imposition of a death sentence. Rejecting each argument, we affirm the judgment of conviction.

         The defendant does not challenge the sufficiency of the evidence to sustain the verdict, and properly so, as the largely uncontradicted evidence overwhelmingly points to defendant's guilt. Since legal issues only are raised, a brief summary of the voluminous facts and evidence should suffice.

         On June 23, 1972, at approximately 2:35 p. m., an American Airline Boeing 727 jet airplane, Flight No. 119, having originated in New York, left St. Louis, Missouri, bound for Tulsa, Phoenix, and Los Angeles. At about 3:15 p. m. and when approximately 20 minutes before planned arrival in Tulsa, the defendant, holding a machine gun, accosted one of the four stewardesses and gave her two notes to deliver to the captain. The notes in part demanded $502,000 cash, certain parachuting equipment, and the return of the flight to St. Louis.

         The plane returned to St. Louis and landed at about 4:00 p. m. The women, children, and some men deplaned. The plane refueled and circled St. Louis, awaiting the collection of the money and the equipment. After the defendant was told that the money was not available in St. Louis but was in Fort Worth, Texas, the airplane headed for Fort Worth at 6:45 p. m.

         At about 7:45 p. m., the captain was informed that the money could be collected in St. Louis, and the flight was redirected to St. Louis, where it landed at Lambert Field at 9:25 p. m. for the second time on June 23d. During this time on the runway, a male passenger retrieved the money and parachuting equipment outside the jet. The defendant then allowed all the original crew, except two stewardesses, to deplane; one male passenger was ordered to remain on board as a hostage. The new captain and crew, including a FBI agent disguised as a pilot, boarded the flight for a new destination.

         With the relief crew in command, the same American Airlines Boeing 727 began to taxi for lift-off. In the process, however, a late model automobile, which had broken through the airport security gates, struck the airplane on its underside and disabled it. A private citizen, acting entirely on his own, drove the car about 90 miles per hour into the airplane. After several minutes of high tension and assurances that the FBI was not involved in this misdirected and unfortunate incident, arrangements were made for another American Airlines airplane, a Boeing 727 jet designated Flight No. 821, to accommodate the hijacker's demands. The entourage transferred to this plane, with the hijacker in control. He ordered the plane to proceed toward Canada. At 3 a. m. on June 24th, en route to Canada, traveling at 10,000 feet and 263 knots true air speed and located 43 miles west of Fort Wayne, Indiana, and five miles south of Peru, Indiana, the captain noticed a shift in air pressure according to certain instrumentation, a Transponder system, that indicated to him that the hijacker had parachuted from the airplane. The jet then turned around and eventually landed in Chicago without the hijacker.

         From June 24th through June 28th, 150 FBI agents scoured the area around Peru for the hijacker. On one of those days, a farmer near Peru found the American Airlines' mail pouch containing over $500,000 and notified the FBI. Also discovered in the same area of open fields were a .45 caliber machine

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gun, the parachute given to the hijacker, and clothes.

         Operating on reliable information, the FBI continued its search in Wyandotte, Michigan, close to Detroit and the home of the defendant. On June 28th at about 11:00 to 11:30 p. m., the defendant was arrested in front of his home in Wyandotte. Agents, according to their testimony, surrounded the defendant's home and entered it at 2:45 p. m. on June 29th after a search warrant had been issued. They further testified at a hearing on a motion to suppress evidence that no one entered the home before 2:45 p. m. on June 29th, that lights inside the home did turn off once during the night before the search, and that a timing device that turns off lights automatically was found on the premises during the search. One neighbor testified that someone was inside the house during the early morning of June 29th, and another neighbor testified that the lights inside the house flickered off and on several times during the night. During the search, the agents found certain books and charts connected with aviation, a box of .45 caliber ammunition, a rifle stock, a metal foregrip for a .45 caliber machine gun, and a .45 caliber M-3 cartridge magazine. Over objection, these items were admitted as evidence during the defendant's trial.

         The defendant moved at various times both before and during trial for a change of venue, sequestration of the jury, and exclusion or control of the press during trial. The District Court denied all of these motions.

         Media coverage of this hijacking was extensive, as conceded by the Government. The Government stipulated that continuous radio coverage and spot television bulletins were broadcast during the evening of June 23d and early morning of June 24th. The record contains copies of the St. Louis Post-Dispatch, St. Louis Globe-Democrat, and the television news scripts of KSD-TV and KTVI-TV, all from June 23, 1972, through July 5, 1972. In addition, the Government has reprinted a November 15, 1972, St. Louis Post-Dispatch news article concerning the defendant's mental competency. The defendant has cited to us no articles published or newscasts broadcast during the trial that could be considered prejudicial.

         Undoubtedly, this case attracted broad media attention at the time of the hijacking and subsequent search for the perpetrator. The hijacking of airplanes was indeed topical at this particular time. According to the St. Louis Globe-Democrat of June 24-25th (a combined Saturday-Sunday edition), the United States Attorney for the Eastern District of Missouri had four days earlier "blasted what he called 'appalling security' at Lambert Field." The St. Louis Post-Dispatch reported on Sunday, June 25th, that the Federal Aviation Administration had published on Saturday, June 24th, in the Federal Register that it was considering regulations requiring certain rewiring of Boeing 727 jets so that the rear door could not be opened during the flight. The rear door provides a safer exit for a parachuter and was employed by the defendant in this case. At the time of this hijacking, officials were beginning to implement security measures that are now prevalent in the airports across the country.

         Despite the understandable emotionalism concerning hijacking during the summer of 1972, we find, in reading the newspaper articles and television news scripts, that the journalistic reporting was accurate, objective, and unemotional. Perhaps the very nature of the case aided the objective reporting. No injuries occurred during the hijacking; the hijacker himself was not known, but thought to be dead, for several days; and the FBI quickly apprehended the defendant. Unlike other cases concerning pretrial publicity, there is actually little to say or any prejudicial articles or newscasts to discuss concerning the handling of this incident by the media. The case did receive front-page coverage from June 24th through July 5th, however the reports were objective and certainly not prejudicial.

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          The Government and the District Court were acutely aware of the extensive coverage and took careful precautions to assure a fair trial. An enumeration of some of these precautions demonstrates that the District Court carefully protected the defendant's rights. Without identifying the defendant by name, the District Court first asked all veniremen whether they knew the name of the defendant. Only one eventual juror could name the defendant and connect him with the hijacking, and she said that this would not affect her judgment of the guilt or innocence of the defendant. During voir dire, the District Court asked numerous questions, many supplied by defendant's counsel or defendant himself, concerning pretrial publicity generally, specific news articles, and television broadcasts....

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