575 F.2d 26 (1st Cir. 1978), 77-1190, United States v. Gullion

Docket Nº:77-1190.
Citation:575 F.2d 26
Party Name:UNITED STATES of America, Appellee, v. Edward P. GULLION, Jr., Appellant.
Case Date:May 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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575 F.2d 26 (1st Cir. 1978)

UNITED STATES of America, Appellee,


Edward P. GULLION, Jr., Appellant.

No. 77-1190.

United States Court of Appeals, First Circuit

May 9, 1978

Argued Nov. 10, 1977.

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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,

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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.


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...

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