U.S. v. Herring

• Decision Date: 01 March 1978
• Docket Number: No. 76-3086,76-3086
• Citation: 568 F.2d 1099
• Parties: 3 Media L. Rep. 2038 UNITED STATES of America, Plaintiff-Appellee, v. John C. HERRING, a/k/a Scooter, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1099

568 F.2d 1099

3 Media L. Rep. 2038

UNITED STATES of America, Plaintiff-Appellee, v. John C. HERRING, a/k/a Scooter, Defendant-Appellant.

No. 76-3086.

United States Court of Appeals Fifth Circuit.

March 1, 1978.

Thomas Santa Lucia, Buffalo, N. Y., Albert J. Krieger, Joseph Beeler, Miami, Fla., for defendant-appellant.

D. L. Rampey, U. S. Atty., John D. Carey, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This case comes to us on direct appeal from the appellant's criminal conviction in the United States District Court in Macon, Georgia. The principal issue raised by the appellant concerns the district court's course of action after the leading local newspaper had exposed the existence of death threats against a key prosecution witness. This exposure, on the last day of trial, created the potential of severely prejudicing the jury deliberations in this case. Because we are of the opinion that the trial court's response to this publicity was insufficient to protect the appellant's right to an impartial jury verdict and because we are unable to determine that an unbiased verdict was in fact reached, we must reverse this conviction and remand the case for further proceedings. ¹

I

From the inception of this prosecution, it was clear that this case was bound to receive a great deal of publicity. The appellant, John C. "Scooter" Herring, was at one time a road manager for Gregg Allman, a prominent musician of the rock persuasion who seems to have a penchant for attracting substantial national publicity. ² When it became known that a federal grand jury in Macon was investigating possible drug charges involving Allman, the grand jury's investigation quite understandably attracted the attention of the news media. Media coverage intensified after Herring was indicted ³ and Allman agreed to testify at Herring's trial in exchange for a grant of immunity. By the time the trial began, the public eye, particularly in the Macon area, was sharply focused on the case. ⁴

The jury selection for this trial began on June 21, 1976, in a relatively normal fashion. A venire was assembled and the voir dire examination began. Although the examination of the veniremen revealed that most had heard of at least some aspects of the case through the news media, the district court eventually empanelled a jury which had unanimously expressed confidence in their ability to decide the case impartially on the facts presented at trial. After the jury had been sworn, the trial court gave them the brief admonition that "you should not have any contact with anybody about this case" ⁵ and then excused them for the day. The jury in this trial was not sequestered, and the record reflects no defense motion seeking that course of action.

The actual presentation of evidence began on June 23. Immediately prior to the opening statements of counsel, the district court gave a brief set of cautionary instructions, which included a directive not to "pay any attention to anything other than what you hear in the courtroom. There may be things in the newspaper, there may be reports on television, you might hear somebody on the street talking. Just pay no attention to anything outside the courtroom." ⁶ Aside from this language, no further admonitions were given at any time during the trial touching upon the jurors' potential exposure to publicity in the case. ⁷

After the conclusion of counsel's opening statements, the government presented its case-in-chief, which consumed only two days of the trial. The lengthiest testimony came from the first witness, Joe Fuchs. Fuchs was an ex-pharmacist and an alleged co-conspirator in connection with much of Herring's drug activity. ⁸ Aside from Fuchs, Gregg Allman testified most lengthily.

Allman took the stand on the afternoon of the first day of trial, June 23. ⁹ He testified for the remainder of that day and for a portion of the next. On direct examination, Allman told of meeting Herring in a Macon bar in 1973 and the subsequent development of a mutual friendship. Allman testified that in late 1973 or early 1974, Herring sold him some pharmaceutical cocaine and some Demerol. This was the first drug transaction between Allman and Herring, and it instituted a pattern of activity which continued throughout 1974. Allman stated that he later came to know the pharmacist, Fuchs, as Herring's supplier and that on occasion Allman would deal directly with Fuchs. Usually Allman would place a drug order with either Fuchs or Herring and would pay Herring upon delivery. This arrangement existed until the latter part of 1974, when Herring told Allman that government drug inspectors were "really on" Fuchs.

Obviously, Allman's testimony was extremely damaging to the defense. Understandably enough, defense counsel's cross-examination of Allman was both lengthy and detailed, and the attack on Allman's credibility was forceful. The defense employed several devices to impeach Allman's testimony, including certain statements made during Allman's grand jury appearance and his admitted use of drugs during the period covered by his direct testimony. Additionally, the defense focused heavily on the direct connection between Allman and Fuchs, and on Allman's admissions that the defendant Herring had actually attempted in 1974 to persuade him to stop using drugs.

A brief redirect examination followed this cross-examination, and Allman then stepped down from the stand sometime during the morning of June 24, the second day of the trial. The government called several additional witnesses and rested its case-in-chief at the end of the day. Up to this point, the trial had proceeded relatively smoothly.

On June 25, however, an unfortunate series of events occurred. On the morning of that day, Macon's leading daily newspaper, the Macon Telegraph, carried a front-page story on Allman under a banner headline that read "ALLMAN UNDER HEAVY GUARD" and bore a subtitle reading "Death Threats Reported." Macon Telegraph, June 25, 1976, at 1A. In the middle of the front page, above the crease, was a photograph of Allman being escorted by several official-looking gentlemen; this photograph was captioned "Gregg Allman with Federal Bodyguards in Bibb Courthouse." Id. The lead story under the headline began as follows: "Threats against the life of Macon rock superstar Gregg Allman have prompted federal officials to shield the key witness from danger by ordering four U.S. Marshals to give him 'protective custody' around the clock." Id. The story went on to report that federal officials had confirmed that Allman had received threats on his life and that "stiff security measures" were in force at the Macon federal courthouse, where Herring's trial was in progress. Id. At one point the newspaper quoted the district judge presiding over Herring's trial as stating that the security measures had been ordered "out of an overabundance of precaution." Id.

The Telegraph 's headline, photograph and article were the first topics of discussion when the trial resumed that morning. In open court, but before the jury had been summoned to the courtroom, defense counsel brought to the attention of the court a copy of the newspaper in question and made the following comments:

I offer that June 25th newspaper in evidence, Your Honor, and ask the Court to ask the jurors if they read that paper, No. 1; if any juror indicates that he has read the article, to inquire further as to whether it influenced him in any degree in his decision of this case, in effect to see if he has prejudged the case as a result of that newspaper article, and if he has, I would ask the Court to inquire even further as to how it influenced him or her and how it may have prejudged him or her, and pursuant to those requests I would reserve then a request further to move for a mistrial in the event any one juror has been unduly influenced prejudicially to my client.

Record, vol. 3, at 356-57. The government did not respond directly to defense counsel's request that the court examine the jury regarding the newspaper article, stating only that it felt that the court's standard pretrial instructions had sufficiently covered the matter and that "that is not sufficient trial publicity to cause a mistrial in this case." Id. at 357. Over defense counsel's objection, the trial court declined to question the jury in order to determine the extent of their exposure to the newspaper article or headline. The district court ordered that a copy of the June 25 Telegraph be placed in the record for appeal purposes, and Herring's trial resumed.

The only defense witness was Herring himself, and he took the stand almost immediately after the events just described. Although Herring's testimony was brief, he did deny furnishing Allman with drugs while Allman was on tour. Herring also denied giving Allman drugs in November of 1973, a date which had surfaced during Allman's testimony. After a brief cross-examination by the government, the defense rested. Following closing arguments and instructions from the court, the jury retired to deliberate. About three hours later the jury returned a guilty verdict against Herring as to each of the five counts in the indictment.

II

We should begin our discussion of the law in this case by emphasizing several crucial points. First, the newspaper article in question here appeared at a critically important juncture in the trial of this case: immediately prior to the defendant's testifying in his own defense. Second, although the content of the article, and the accompanying headlines and photograph, was straightforwardly factual, it would be folly to overlook the gargantuan possibilities for juror prejudice that could flow from this publicity. At the time the article appeared, the jury had just heard Gregg Allman...