U.S. v. Williams

Citation531 F.2d 791
Decision Date14 May 1976
Docket NumberNo. 74--3297,74--3297
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William August Halm WILLIAMS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Tyrus R. Atkinson, Jr., Atlanta, Ga. (Court-appointed), George J. Parnham, Houston, Tex., John A. Pickens, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U.S. Atty., William P. Gaffney, Steven W. Ludwick, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion Nov. 28, 1975, 5 Cir., 1975, 523 F.2d 1203).

Before TUTTLE, THORNBERRY and MORGAN, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it. (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also DENIED.

Before BROWN, Chief Judge, WISDOM, GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge, with whom GEWIN, COLEMAN, AINSWORTH and GEE, Circuit Judges, join (dissenting):

It has often been this Court's sad duty to examine a case which from its inception has received the most intense and unrelenting media exposure. See, e.g., Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc), cert. denied, 419 U.S. 1015, 95 S.Ct. 487, 42 L.Ed.2d 289, 44 U.S.L.W. 3559 (1976); Murphy v. Florida, 495 F.2d 553 (5th Cir. 1974), aff'd, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). However, the decision which today we decline to reconsider en banc cannot be seen as merely the latest opinion involving pretrial publicity. The difference between the present case and its many predecessors is the highly unusual route which the panel chose to travel in reversing the judgment below. Despite its many strong suggestions that the trial judge committed error in handling the issue of pretrial publicity, the panel declined to base its decision on that point. The panel was similarly unwilling to say that any other of the host of matters raised by appellant could stand alone as reversible error. Rather, the panel held that one of these alleged errors, i.e., a portion of the prosecutor's closing argument, 'operat(ed) together' with the pretrial publicity to produce a 'tandem effect' which deprived appellant of his right to a fair trial. I find this analysis entirely misleading and unpersuasive. I also feel that the panel decision will necessarily create a deplorable uncertainty for those district judges in our circuit who are unlucky enough to be called upon to try highly-publicized cases in the future. I therefore respectfully dissent from the denial of appellee's petition for rehearing en banc.

I.

The case presented below to the jury had only one issue that was at all in dispute; that issue was appellant's sanity at the time of the offense. It was conceded that appellant abducted Reginald Murphy at gunpoint and held him captive for two days until a ransom was paid. During this time, appellant posed as a 'colonel in the American Revolutionary Army' and lectured Murphy about his own extreme political opinions, or rather delusions, particularly his belief in a vast international Jewish conspiracy which was causing the fuel shortage as well as a number of the world's other problems. Appellant also announced to Murphy that he would use the ransom money to build the 'Army' into a force loyal and powerful enough to make him an important political figure. Soon after Murphy's release, appellant was apprehended and the money was found in his home. Murphy immediately identified appellant as the kidnapper, and this identification was repeated at the trial. In view of the overwhelming and undisputed evidence of his guilt, appellant presented testimony on only one defense, namely that of insanity. This was the only real issue for jury deliberation, and the jury resolved that issue against appellant. In my opinion, no discussion of the questions of law in this case should lose sight of how narrow the factual controversy was. The panel's failure to give due weight to this consideration is basic to its confusing and, to me, erroneous resolution of the appeal.

II.

On the way to its 'tandem effect' holding, the panel discussed several alleged errors and suggested (without deciding) that reversal might be based upon any of them. It will, I hope, clarify matters to treat these issues one at a time and to point out three things which this case is not. First, this is not a case where the trial judge abused his discretion by denying a motion for transfer of venue under Rule 21(a) of the Federal Rules of Criminal Procedure. The record reveals that the publicity given to this case was truly nation-wide in scope. National television networks, widely circulated news magazines, and the major wire services brought the particulars of the kidnapping and its aftermath to the attention of the public in every part of the country. In exhaustive jury selection procedures, which the panel opinion describes as 'meticulous in every respect', the trial judge chose a jury which was virtually untouched by the massive media publicity and which had formed no opinion concerning appellant's guilt or sanity. A Rule 21 motion is addressed to the sound discretion of the trial court, see United States v. Nix, 465 F.2d 90, 96 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972). On this record, and especially in view of the intense nationwide publicity, it would be sheer speculation for an appellate court to conclude that a trial elsewhere would have taken place before a jury less influenced by pretrial media coverage. There is even less reason to hold that the trial judge abused his discretion in finding the likelihood of prejudice too small to necessitate a change of venue. Compare United States v. Chapin, 169 U.S.App.D.C. 303, 515 F.2d 1274, 1287--89 (1975).

This is also not a case where adverse press coverage so pervaded a trial setting as to deny a defendant his due process right to a fair trial. The circus atmosphere of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and the blatant bias of the jury panel in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), are equally absent from the record in this case. The circumstances disclosed by this record are closely akin to those of Murphy v. Florida, supra, and Calley v. Callaway, supra. As in these two controlling precedents, the trial judge below conducted a searching and sensitive voir dire examination and admitted to the panel only those prospective jurors who were uninfluenced by media coverage and who had no preconceived notions regarding the defendant's guilt. 1 In fact, the testimony of the persons actually empaneled in this case reveals that, if anything, they were less susceptible to bias and less influenced by the media than the jurors in Murphy and Calley. 2 No constitutional error, then, can be found in the jury selection process itself, and the panel opinion acknowledges that appellant has made no showing of actual prejudice on the part of the jurors. In light of such 'indicia of impartiality', a due process claim could survive only if the local media publicity was so inflammatory as to be 'inherently prejudicial.' See Murphy, supra, 421 U.S. at 802--03, 95 S.Ct. at 2037--2038, 44 L.Ed.2d at 596--597. Certainly no serious contention could be made that this was the case. As in Murphy and Calley, the media publicity was primarily factual in nature; indeed, it consisted largely of Murphy's indisputably accurate narrative accounts of the kidnapping. 3 Insofar as these news reports and interviews left the realm of the factual and indulged in speculation, they tended to support, rather than contradict, the insanity defense which was appellant's only hope of avoiding a conviction. 4 Under these circumstances, it would be almost frivolous to claim that the pretrial publicity created prejudice of a constitutional magnitude. 5

Nor could the prosecutor's improper jury argument merit reversal on its own. This remark by the prosecutor, to the effect that appellant was merely feigning insanity and, if acquitted, would be enabled to commit further crimes, was interrupted in mid-sentence by a motion for a mistrial. The jurors were excused and, upon their return to the courtroom, the prosecutor was vigorously admonished in the presence of the jury, which was told to disregard entirely the line of argument which had just commenced. 6 Unlike the panel, I find this abruptly truncated statement far less likely to have influenced a jury than the extended peroration of the state prosecutor in Bruce v. Estelle, 483 F.2d 1031, 1039--40 (5th Cir. 1973). Moreover, any prejudicial effect of these brief remarks was amply cured by the immediate and emphatic intervention of the trial judge. Compare United States v. Barfield, 527 F.2d 858, 860--62 (5th Cir. 1976).

In discussing these individual points, I have not forgotten that the panel relied, not upon any one alleged error, but rather upon a combination of two of them. However, the panel opinion strongly suggests that reversal could have been based upon each of these three factors, considered separately. I have endeavored to show that the panel's dicta are hopelessly at odds with precedent, in particular the Calley and Murphy cases. The confusion which these conflicting appellate pronouncements will create in our circuit is obvious, and is moreover precisely the type of problem which the enbanc procedure was designed to correct. Transfer of venue, the constitutional implications of pretrial publicity, and prejudicial misconduct by the government are important and often-recurring issues, and the district judges who must wrestle with these difficult...

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2 cases
  • United States v. Moorhead, Criminal No. 81-30
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • April 10, 1981
    ...became most intense at the time of the trial. The defendant in United States v. Williams, 523 F.2d 1203 (5th Cir. 1975) rehearing denied 531 F.2d 791, appeal after remand 573 F.2d 348, was the subject of widely publicized and televised appraisals of his personality (as the defense presented......
  • U.S. v. Williams, 77-5007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 22, 1978
    ...six years. Williams' first conviction was reversed, United States v. Williams, 5 Cir., 1975, 523 F.2d 1203, rehearing en banc denied, 531 F.2d 791 (1976). The details of the offenses are there On February 20, 1974, by a carefully planned ruse, and at gunpoint, Williams kidnapped Reginald Mu......

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