595 F.2d 1086 (5th Cir. 1979), 78-5244, United States v. Capo

Docket Nº:78-5244, 78-5279.
Citation:595 F.2d 1086
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Floyd CAPO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Lee LUKEFAHR, Stephen Dale Lukefahr and Thomas James Davison, a/k/a Thomas Lukefahr, Defendants-Appellants.
Case Date:May 24, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1086

595 F.2d 1086 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,


David Floyd CAPO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


David Lee LUKEFAHR, Stephen Dale Lukefahr and Thomas James

Davison, a/k/a Thomas Lukefahr, Defendants-Appellants.

Nos. 78-5244, 78-5279.

United States Court of Appeals, Fifth Circuit

May 24, 1979

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[Copyrighted Material Omitted]

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Ken Davis, James P. Judkins, Tallahassee, Fla., for defendant-appellant in No. 78-5244.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Edwin Marger, Diane E. Marger, Atlanta, Ga., for defendant-appellant in No. 78-5279.

Appeals from the United States District Court for the Northern District of Florida.

Before GEWIN, HILL and FAY, Circuit Judges.

GEWIN, Circuit Judge:

David Capo and brothers David Lukefahr, Stephen Lukefahr and Thomas Lukefahr were tried with four other defendants by a jury on one count of conspiracy to possess marijuana and one count of possession of marijuana in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1). The jury convicted appellants but their four codefendants were acquitted. Capo was sentenced to 4 years imprisonment, 2 years parole and a $10,000 fine on the conspiracy count and 3 years imprisonment for possession, the sentences to be served consecutively. The Lukefahrs each received consecutive 5 year sentences and $15,000 fines on each count. On this appeal, appellants claim they were denied a fair trial by virtue of prejudicial pre-trial publicity, prejudicial publicity during the trial and prosecutorial misconduct. After giving careful attention to each of these contentions, we believe appellants were afforded due process and accordingly affirm.

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This case arose from a drug smuggling conspiracy which culminated tragically in the brutal gangland-type murders of four people. In 1976 a government informer, Bobby Joe Vines, planned a drug smuggling operation with a large number of men, including appellants. 1 The conspirators decided to load a large shrimp boat with marijuana and import it into the United States by landing and unloading the boat at the Sandy Creek area near Panama City, Florida.

On Sunday night, January 23, 1977, the plan was put into effect. The conspirators landed at Sandy Creek a seventy foot shrimp boat laden with tons of marijuana. As they were unloading the vessel, two men and two young women, ages 14 and 16, happened innocently onto the scene. Apparently one of the men recognized some of the smugglers. He was shot and killed and the conspirators then fatally shot his three companions. The bodies were taken to a location in Taylor County, Florida, wired to concrete and dumped into a deep sinkhole. These crimes were termed the "sinkhole murders" by the media.

After arrest state murder charges as well as federal charges were filed against appellants. While their trials on the state charges were pending, they were tried in federal court with the four alleged co-conspirators. After appellants were convicted in the instant case, the state charges against them were dropped. According to the briefs two of the four co-defendants who were acquitted of the federal charges were subsequently convicted in state court of first degree murder and sentenced to death.

The trial in the instant case began in January 1978 and consumed 28 days, 10 of which were expended on pre-trial voir dire examination of prospective jurors. The voir dire revealed that as a result of media coverage of the smuggling operation and the sinkhole murders, a significant percentage of the prospective jurors, estimated at 90% By appellants, possessed at least minimal knowledge of the murders, evidence of which was obviously inadmissible in the federal trial, and the connection between the slayings and the drug offenses allegedly committed by appellants. 2

Prior to trial counsel for appellants repeatedly moved pursuant to Federal Rules of Criminal Procedure 21(a) for a change of venue on grounds that the prospective jurors were prejudiced by the pre-trial publicity. The district court denied the motion. Appellants exhausted their peremptory challenges and requested additional strikes, asserting the same grounds. The trial judge refused to grant this request. Appellants' counsel also challenged both the entire venire and individual veniremen for cause on grounds of their knowledge of the prejudicial information. The court granted ten individual challenges for cause during voir dire but denied the others. At the conclusion of the voir dire, a jury of 12 was selected. Each juror had some slight knowledge of the sinkhole murders but each also had repeatedly pledged his or her impartiality during the voir dire examination.

Appellants present three primary arguments for this court's review. First, they assert that the prejudicial pretrial publicity required the trial judge to grant their motions for change of venue or alternatively, the challenges for cause or requests for additional peremptory strikes. It is appellants' contention that these procedural safeguards were necessary to protect their rights to a fair trial against the prejudice arising from exposure of an alleged 90% Of the venire and all of the jurors to local

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media coverage linking the sinkhole murders to appellants' alleged offenses.

Claims founded on prejudicial pretrial publicity must be assessed in accordance with the due process standards established in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The Supreme Court in that decision held that the Constitution entitles a criminal defendant not to a trial by a body of jurors ignorant of all facts surrounding the case, but to an impartial jury which will render a verdict based exclusively on the evidence presented in court. 366 U.S. at 722-23, 81 S.Ct. at 1642-1643.

It is not required, however, that jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.


In determining whether a fair and unbiased jury was empaneled, an appellate court is obligated to make an independent evaluation of the special circumstances involved in the case. United States v. Williams, 568 F.2d 464, 469 (5th Cir. 1978); United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). It has long been recognized as a general rule that a defendant, in order to establish a deprivation of due process, must show that potential jurors were actually prejudiced by the pretrial publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Calley v. Callaway, 519 F.2d 184, 204 (5th Cir. 1975); Gordon v. United States, 438 F.2d 858, 874 (5th Cir...

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