Bronstein v. Wainwright

• Citation: 646 F.2d 1048
• Decision Date: 04 June 1981
• Docket Number: No. 80-5448,80-5448
• Parties: Sanford K. BRONSTEIN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. Summary Calendar. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1048

646 F.2d 1048

Sanford K. BRONSTEIN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 80-5448

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Unit B

June 4, 1981.

Sanford K. Bronstein, pro se.

Joel D. Rosenblatt, Asst. Atty. Gen., Florida Regional Service Center, Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

Sanford Bronstein challenges the district court's dismissal of his petition for a writ of Habeas Corpus on three grounds. First, he contends that he was denied due process of law when the trial court denied his motion for severance. Second, he asserts that he was denied his right to a fair trial as a result of the "inflammatory" pretrial publicity. Third, he argues that he was denied due process of law because of prejudicial prosecutorial misconduct throughout the trial.

We adopt the district court's treatment of these issues as our own. The district court's opinion is appended hereto in full. On appeal, petitioner only raises three of the five issues he raised in the district court. Accordingly, we adopt only parts I, II, and IV of the district court's opinion. The district court's denial of the writ is

AFFIRMED.

APPENDIX

Sanford K. Bronstein, represented by private counsel, has petitioned for a Writ of Habeas Corpus. Petitioner is attacking a sentence of twenty-five years, followed by ten years probation, which was imposed pursuant to a jury verdict of guilty to twenty-one counts of larceny, forgery, and uttering forged instruments as well as one count of conspiracy. Petitioner is currently in the custody of the respondent.

As grounds for relief the petitioner alleges:

1. The state court erred to the substantial prejudice of the petitioner and denied him his constitutional rights to a fair trial and to due process of law in denying his motion for severance.

2. The petitioner was denied his rights to a fair trial and to due process of law as a result of the inflammatory pretrial publicity.

3. The trial court erred, to the substantial prejudice of the petitioner, and denied him his rights to a fair trial and due process of law in denying the motion for a judgment of acquittal to count 64 of the information.

4. The petitioner was denied his rights to due process of law and to a fair trial by inflammatory and prejudicial prosecutorial misconduct throughout the trial.

5. The cumulative effect of the prejudicial pretrial and trial publicity, the allegations in count 64 of the information when all the while the state knew that Harold Simonoff denied culpable conspiratorial knowledge or intent, the tainting of the trial by the evidence allegedly in support of that non-existent and non-established "conspiracy", the prosecutorial strategy and conduct designed to unfairly alienate the jury against the petitioner, together with certain rulings of the trial court, all considered in tandem, unfairly disadvantaged the petitioner and denied him due process of law and a fair trial.

I.

With respect to point one, in this Court's Order, dated December 5, 1979, petitioner was called upon to clarify which constitutional rights, if any, were violated in the state court proceedings, and how such violations prejudiced the petitioner. Petitioner's supplemental brief fails to set forth any allegations of actual prejudice; instead, he argues that the denial of his motion for severance was inherently prejudicial. 28 U.S.C.A. § 2254 provides:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States. (Emphasis added)

In a federal habeas corpus proceeding, a federal court is bound by the state court's interpretation of a state criminal statute. Hall v. Wainwright, 493 F.2d 37 (5th Cir. 1974). The state court has already rejected petitioner's contention that the trial court abused its discretion by denying petitioner's motion for misjoinder. Bronstein v. State, 355 So.2d 817 (Fla.3rd DCA 1978). A state's interpretation of its own laws or rules is no basis for federal habeas corpus relief since no constitutional question is involved. Monk v. Blackburn, 605 F.2d 837 (5th Cir. 1979), Sawyer v. Overton, 595 F.2d 252 (5th Cir. 1979).

Petitioner notes that two of his co-defendants were granted writs of habeas corpus and he relies on these cases to support his own petition. See Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979); Abbott v. Wainwright, No. 78-888-Civ-WMH (S.D.Fla., Nov. 8, 1978) 616 F.2d 889 (5th Cir. 1980). Tifford and Abbott are distinguishable from the present case in that the petitioners demonstrated that the denial of their motions to sever resulted in a fundamentally unfair trial. The petitioners in Tifford and Abbott contended that their co-defendants would testify on their behalf if their motions to sever were granted. In addition, the petitioners submitted affidavits, signed by their co-defendants, which stated that the co-defendants were willing to testify on behalf of Abbott and Tifford. These affidavits specifically stated the exculpatory testimony that would be made.

The affidavits showed that the possibility of the co-defendants testifying was 'more than a gleam of possibility in the defendant's eye,' Byrd, 428 F.2d at 1022, and that the prejudice resulting from the denial of the motion to sever was not speculative. The denial of the severance motion thus made Tifford's trial fundamentally unfair.

Tifford v. Wainwright, 580 F.2d 954, 957 (5th Cir. 1979).

The petitioner in the case at bar has failed to demonstrate how the denial of his motion to sever rendered his state court trial fundamentally unfair. The mere fact that two of the petitioner's co-defendants were granted writs of habeas corpus is unpersuasive. Both Abbott and Tifford demonstrated that joining their trials to the trial of Sanford Bronstein resulted in a violation of due process.

The fact that Tifford and Abbott's convictions, on two counts, were found to be fundamentally unfair when joined with the trial of Bronstein, on sixty-four counts, does not mean that Bronstein's trial was inherently prejudiced. The petitioner must demonstrate how the denial of his motion for severance resulted in a violation of his constitutional rights.

On habeas corpus attack of a state court's denial of severance, '(t)he simultaneous trial of more than one offence must render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C.A. § 2254 would be appropriate.

Alvarez v. Wainwright, 607 F.2d 683, 685 (5th Cir. 1979).

II.

The petitioner secondly contends that he was denied a fair trial and due process of law as a result of the inflammatory pre-trial publicity.

Claims founded on prejudicial pre-trial 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 evidence presented in court.' Id.

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 of the 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. 1971). This burden of proof requires a showing that community prejudice actually invaded the jury box infecting the opinions of the prospective jurors. United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). However, when the defendant proffers evidence of pervasive community prejudice in the form of highly inflammatory publicity or intensive media coverage, prejudice is presumed and there is no further duty to establish actual bias. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Pamplin v. Mason, 364 F.2d 1, 4-5 (5th Cir. 1966). As this court stated in Pamplin:

'Where outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness...