542 F.2d 186 (4th Cir. 1976), 73-2520, United States v. Jones

Docket Nº:73-2520 and 73-2521.
Citation:542 F.2d 186
Party Name:UNITED STATES of America, Appellee, v. John Edward JONES, a/k/a Liddy Jones, a/k/a Malik Shariff, Appellant. UNITED STATES of America, Appellee, v. Robert Avon JONES, a/k/a Bobby, Appellant.
Case Date:February 09, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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542 F.2d 186 (4th Cir. 1976)

UNITED STATES of America, Appellee,

v.

John Edward JONES, a/k/a Liddy Jones, a/k/a Malik Shariff,

Appellant.

UNITED STATES of America, Appellee,

v.

Robert Avon JONES, a/k/a Bobby, Appellant.

Nos. 73-2520 and 73-2521.

United States Court of Appeals, Fourth Circuit

February 9, 1976

Argued Sept. 8, 1975.

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Howard L. Cardin (court-appointed counsel), Baltimore, Md., and (James J. Gitomer, Baltimore, Md., on brief), for appellant in No. 73-2521.

Robert P. Geary (court-appointed counsel), Highland Springs, Md., for appellant in No. 73-2520.

Andrew Radding, Asst. U.S. Atty., Baltimore, Md. and (Jervis S. Finney, U.S. Atty., Baltimore, Md., on brief), for appellee in Nos. 73-2520 and 73-2521.

Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The appellants, with seven others, were indicted for conspiracy to violate the narcotics laws of the United States, 1 and for possession with intent to distribute heroin. 2 The appellants were found guilty by a jury

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of conspiracy to violate the narcotics laws. John Edward Jones, as a second-time offender, was given a sentence of thirty years, and Robert Avon Jones was sentenced to fifteen years. The appellants make thirteen assignments of error, which we shall hereafter discuss. We, however, find the appeal without merit and affirm.

Prejudicial Publicity

The defendants aver as their third and fourth grounds of error alleged prejudicial publicity, both pre-trial and during trial. They raised their claim of prejudicial pre-trial publicity by a motion for continuance; they made repeated motions for a mistrial during the trial on account of what they asserted was prejudicial in-trial publicity. We find no error in the denial either of the motion to continue or of the repeated motions for a mistrial.

(a) Pre-trial Publicity

Save in that rare case where there is a showing of " inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors" 3 which is certainly not this case the trial court's primary responsibility in dealing with allegedly prejudicial pre-trial publicity whether in connection with a motion for continuance or for a change of venue is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. See Wansley v. Slayton (4th Cir. 1973), 487 F.2d 90, 92-3, cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773. As stated in United States v. Milanovich (4th Cir. 1962), 303 F.2d 626, 629 cert. denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115 (1962). "(W)henever it appears that shortly before a trial public news media in the community have published incompetent and prejudicial information about the case or the defendant, a duty devolves upon the trial court to make certain that the necessary conditions of a fair trial have not been impaired." 4 And this, in turn, depends on "whether it is possible to select a fair and impartial jury," for this is, after all, "(T)he ultimate question." Blumenfield v. United States (8th Cir. 1960), 284 F.2d 46, 51, cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961). It accordingly was not sufficient, as a basis of a motion for a continuance on this ground, to allege simply adverse publicity "without a showing that the jurors were biased thereby." Ignacio v. People of Territory of Guam (9th Cir. 1969), 413 F.2d 513, 518, cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970). And the proper manner for ascertaining whether the adverse publicity may have biased the prospective jurors was through the voir dire examination. 5

At the voir dire examination of the prospective jurors only eight of the prospective jurors stated they had heard of the case or seen any publicity about it or the defendants. All eight were excused and no one who had heard of the case sat on the jury. Even had there been prejudicial pre-trial publicity, it was not thus such as to deny to the defendants the right to be tried by a fair and impartial jury, uninfluenced by any prejudicial pre-trial publicity of any kind. In United States v. DiTommaso (4th Cir. 1968), 405 F.2d 385, 393, cert. denied,

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394 U.S. 934, 89 S.Ct. 1209, 22 L.Ed.2d 465 (1969), this court, in dealing with a similar situation, said: "(M)anifestly, there was no showing (under these facts) that, even if prejudicial, there was sufficient publicity to infect the jury and indicate the need for a change of venue." That is the situation here. The trial court accordingly committed no error in denying defendants' motion for continuance.

(b) In-trial Publicity

After the jury was selected and sworn, they were not sequestered, 6 but the trial judge firmly and clearly admonished the jurors that they were to abstain from reading or listening to anything about the trial or from talking to anyone about it. This admonition was repeated consistently throughout the trial. However, as the trial progressed, the defendants made a number of motions for a mistrial on the basis of what they asserted to be prejudicial reporting of the trial in the local press. On most of the occasions when the motions were made, the defendants contented themselves with submitting to the trial court the press clippings which they charged were prejudicial without pointing out wherein the press articles were unfair or inaccurate. They now appeal, asserting that the trial court was required to poll the jury in order to ascertain whether any juror had seen the press accounts.

We did enunciate in United States v. Hankish (4th Cir. 1974), 502 F.2d 71, 77, and reaffirmed in United States v. Pomponio (4th Cir. 1975), 517 F.2d 460, 463, cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975), the rule that, "when highly prejudicial information may have been exposed to the jury, the court must ascertain the extent and effect of the infection, and thereafter, in its sound discretion, take appropriate measures to assure a fair trial." In carrying out this duty, the court should follow, we held, the procedure outlined in Margoles v. United States (7th Cir. 1969), 407 F.2d 727, 735, cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969). There, the Court said that inquiry should be made whether any jurors "had read or heard" the prejudicial publicity and, if any had, that juror should "be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity. However, if no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity in question, the judge is not required to proceed further." But, in Hankish, we were careful to point out that, "(W)e do not hold that every newspaper article appearing during trial requires such protective measures. Unless there is substantial reason to fear prejudice, the trial judge may decline to question the jurors." 7 It follows then that whenever a claim of in-trial prejudicial publicity arises, the threshold question, or, as the Court in United States v. Pomponio, supra, 8 put it, the "initial determination" for the trial court is whether the publicity rises to the level of substantial prejudicial material. If it does not rise to such a level, the trial court is under no duty to interrogate the jury or to take the steps mandated by Hankish. And whether it does rise to the level of substantial prejudice requiring that procedure is ordinarily a question "committed to the trial court's discretion" and "the scope of this judicial discretion includes the responsibility of determining the extent and type of investigation requisite to a ruling on the motion." 9 And,

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while in reviewing the determination by the District Court of this issue, we must "make an independent evaluation of the circumstances," Sheppard v. Maxwell, supra, 10 we should "accord deference to the judge's informed discretion," United States v. Anderson (1974), 165 U.S.App.D.C. 390, 509 F.2d 312, 324, cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975).

The authorities have marked out fairly clearly what is substantial prejudicial material and what is not, or, as one Court has phrased it, the " degree of prejudice (which) must be shown to trigger the court's responsibility to investigate further (in-trial publicity) by specifically questioning the jury * * *." United States v. Thomas (7th Cir. 1972), 463 F.2d 1061, 1063. With hardly an exception, the cases in which substantial prejudicial publicity during trial was found, the publicity involved "information about the defendant that would not be admissible before the jury or that was not in fact put before the jury in court." United States v. Hyde (5th Cir. 1971), 448 F.2d 815, 849, cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972). 11 This was true in Marshall v. United States (1959), 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, where the assailed publicity consisted of information with reference to prior convictions of the defendant and his wife and was "information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence." 12 In Sheppard v. Maxwell, supra (384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600) the press ran editorials declaring in effect the defendant's guilt, published cartoons suggesting plainly defendant's guilt and created in their barrage of comments and editorials a general community prejudice so strong that when the names of the prospective jurors became known, they...

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