U.S. v. Gullion, 77-1190

• Decision Date: 09 May 1978
• Docket Number: No. 77-1190,77-1190
• Citation: 575 F.2d 26
• Parties: UNITED STATES of America, Appellee, v. Edward P. GULLION, Jr., Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 26

575 F.2d 26

UNITED STATES of America, Appellee, v. Edward P. GULLION, Jr., Appellant.

No. 77-1190.

United States Court of Appeals, First Circuit.

Argued Nov. 10, 1977.

Decided May 9, 1978.

Edward F. Haber, Boston, Mass., by appointment of the court for appellant.

George J. Mitchell, U. S. Atty., Portland, Me., with whom Elizabeth M. Edson, Asst. U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and GORDON, ^* District Judge.

MYRON L. GORDON, District Judge.

The appellant challenges his conviction on the third count of an indictment which charged him with interstate transportation of explosives on July 3, 1976, with the intent to have such explosives used to intimidate individuals and damage property, in violation of 18 U.S.C. §§ 844(d) and 2. The jury was unable to reach a verdict on counts 1 and 2, and a mistrial as to those counts was declared by the district court.

Related counts were charged against Everett Carlson and Richard Picariello. Mr. Carlson was tried in September, 1976, and convicted on one count. Mr. Picariello was also convicted on one count after a trial which took place between January 18, 1977 and February 3, 1977. The trial of Mr. Gullion began on February 28, 1977, and lasted until March 17, 1977.

All of Mr. Gullion's contentions on this appeal stem from his belief that there was prejudicial pretrial publicity which resulted in deprivations of due process of law and of a fair trial. First, Mr. Gullion urges that the trial court erred in denying various pretrial motions and in having failed to hold an evidentiary hearing in regard to such motions. Second, the appellant urges that his challenges to prospective jurors for cause should not have been denied by the trial court. Third, Mr. Gullion urges that the voir dire as conducted by the trial judge deprived him of his rights to due process under the Fifth Amendment and to a trial by a fair and impartial jury under the Sixth Amendment.

I. THE APPELLANT'S PRETRIAL MOTIONS

The trial court considered and denied a number of motions brought by Mr. Gullion before trial. On this appeal, Mr. Gullion claims that the rejection of such motions constituted a denial of his rights under the Fifth and Sixth Amendments, but we find no support for such contention.

The appellant urges that he was entitled to an evidentiary hearing on his motions. He proposed to call an expert witness at such hearing who would testify as to the results of a poll taken at the appellant's instance. The district court was not obligated to hold an evidentiary hearing in advance of the voir dire examination. If the latter examination satisfied the trial judge that the effects of the pretrial publicity were not prejudicial, there would be no necessity for his holding an evidentiary hearing. Accordingly, the pretrial motions brought by Mr. Gullion in advance of the voir dire examination did not automatically warrant the holding of an evidentiary hearing. Cf. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

The rule of Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966), does not require a hearing in this situation. No presumption of prejudice arose here because the publicity had been scattered and was already several months old, see Patriarca v. United States, 402 F.2d 314, 316 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969), because the court had already found that it could impanel impartial juries for appellant's co-defendants, and because the poll by which appellant sought to show community prejudice was itself inconclusive at best. There was certainly no showing of probable community hostility comparable to that in Pamplin where a civil rights leader was tried in a small southern town in 1966.

Mr. Gullion moved for a change of venue, which can be granted under Rule 21(a), Federal Rules of Criminal Procedure, if the court determines that there exists in the district "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial" in that district. Such motion is addressed to the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. United States v. Muncy,526 F.2d 1261, 1263 (5th Cir. 1976); United States v. Brown, 540 F.2d 364, 377 (8th Cir. 1976). We find that the trial judge did not abuse his discretion in denying the motion for a change of venue until he could consider the effect of any pretrial publicity at the time of conducting the voir dire of prospective jurors.

A motion for a continuance was also denied by the trial court, and we believe that such denial was well within his discretion. In deciding whether to grant a continuance, a trial court may properly consider the amount of publicity occurring around the date of the trial as compared with the amount of publicity which occurred previous thereto. Patriarca v. United States,402 F.2d 314 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969). The record in the case at bar demonstrates that there was relatively little publicity in January, February and March, 1977, in comparison with the greater amount of publicity which occurred in the months of July through December 1976. Mr. Gullion's trial, as we have noted, took place at the end of February and the first half of March, 1977.

A pretrial motion was filed by Mr. Gullion seeking extra peremptory challenges in addition to the ten regularly authorized by Rule 24(b), Federal Rules of Criminal Procedure. He urged that extra peremptory challenges were necessary to combat the prejudicial pretrial publicity affecting him. While Rule 24(b) permits extra peremptory challenges at the discretion of the court if "there is more than one defendant," United States v. Cortwright, 528 F.2d 168, 175 (7th Cir. 1975), there is no authority in that rule for according extra challenges to a single defendant. The appellant has cited no persuasive authority in support of his contention, and we conclude that the trial court committed no error in refusing to grant Mr. Gullion additional challenges.

Appellant also assigns error to certain comments of the judge and his related denial of a motion for change of venue and for refusing to recuse himself. See 28 U.S.C. § 144. He suggests that the trial judge evinced a personal bias or prejudice against him as a result of the judge's having presided at the trial of Mr. Gullion's co-defendants. To be disqualifying, alleged bias or prejudice must derive from an extrajudicial source. United States v. Grinnell, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). We agree that the trial judge here properly refused to recuse himself since there was nothing from which to conclude that any possible impressions the judge may have had concerning defendant or the crime with which he was charged resulted from an impermissible personal bias rather than from the judge's participation in judicial proceedings. See Wolfson v. Palmiere, 396 F.2d 121, 124-125 (2d Cir. 1968).

II. CHALLENGES OF PROSPECTIVE JURORS FOR CAUSE

Mr. Gullion contends that many prospective jurors should have been excused by the court upon the defendant's challenge for cause as to their qualifications. While some of the defendant's challenges were based on the juror's alleged exposure to prejudicial pretrial publicity, other bases for the challenges were also asserted. Twenty-six challenges for cause were made by the defendant, and fourteen of them related to prejudicial pretrial publicity.

The defendant undertakes a heavy burden in attempting to persuade an appellate court that there was error in a denial of a challenge for cause. As the Court of Appeals for the Second Circuit stated in United States v. Ploof,464 F.2d 116, 118, n. 4 (2d Cir. 1972):

"There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury."

The breadth of the trial court's discretion is also reflected in United States v. Brown, 540 F.2d 364, 379 (8th Cir. 1976), and United States v. Tramunti, 513 F.2d 1087, 1114 (2d Cir. 1975).

We have examined the transcript of the voir dire examination and remain unpersuaded that the defendant has met the burden imposed upon him in this regard. We are unable to detect the presence of any actual bias or falsity in the responses made by the jurors to questions put to them touching on their qualifications. The fact that the jury was unable to reach a verdict in Mr. Gullion's case as to counts 1 and 2 also belies his suggestion of bias.

The case at bar is not reminiscent of the circumstances that existed in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), where eight jurors were seated, even though they had expressed an opinion that they thought the defendant was guilty. See also Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), appeal...