658 F.2d 279 (5th Cir. 1981), 79-5617, United States v. Hawkins

Docket Nº:79-5617.
Citation:658 F.2d 279
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond Eugene HAWKINS, Carlos Gerdes, a/k/a Carlos San Ramon, James Louis Holland, Martin Marion Sneed, Jr., Clyde E. Sneed and Clifford J. Swiere, Defendants-Appellants.
Case Date:September 21, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 279

658 F.2d 279 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond Eugene HAWKINS, Carlos Gerdes, a/k/a Carlos San

Ramon, James Louis Holland, Martin Marion Sneed,

Jr., Clyde E. Sneed and Clifford J.

Swiere, Defendants-Appellants.

No. 79-5617.

Unit A

United States Court of Appeals, Fifth Circuit

September 21, 1981

Page 280

[Copyrighted Material Omitted]

Page 281

John H. Hannah, Jr., U. S. Atty., Tyler, Tex., David P. Baugh, Asst. U. S. Atty., Beaumont, Tex., William C. Bryson, Washington, D. C., for plaintiff-appellee.

James W. Lawson, Joseph S. Oteri, Judith H. Mizner, Boston, Mass., for Hawkins.

Gerald H. Goldstein, Mark Stevens, San Antonio, Tex., for Gerdes.

David B. Bonham, Groves, Tex., for Holland.

Stephen M. Rienstra, Port Arthur, Tex., for Martin M. Sneed, Jr., and Clyde E. Sneed.

Louis Dugas, Jr., Orange, Tex., for Swiere.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

In this case, six defendants appeal convictions and sentences received following a trial on a July 10, 1979 multiple-count indictment charging violations of, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (counts 1-7); possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1) (counts 8-11); importing a controlled substance into the United States, 21 U.S.C. §§ 952, 960(a)(1) (counts 12, 13); engaging in a continuing criminal enterprise, 21 U.S.C. § 848 (counts 14-17); and travelling in interstate commerce with intent to promote the smuggling, possession and distribution of marijuana, 18 U.S.C. § 1952 (counts 18-23). 1

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In essence, the indictment alleged that appellants participated in an ongoing enterprise involving the smuggling from Colombia to Texas of large quantities of marijuana on four shrimp boats. Specifically, the indictment alleged that, using the shrimp boats, appellants arranged for five shipments to be smuggled into Texas, where the marijuana was unloaded on trucks for transportation to various distribution points. Although the indictment charged each of the six appellants with participation in the overall RICO conspiracy, appellants were not each alleged to have actually participated in each of the five shipments.

Although several of the issues presented in this appeal are applicable only to a single appellant, many issues are common to two or more appellants. Because of our disposition of these "common" issues, it is unnecessary to address several of the additional arguments raised by the individual appellants.

I. Pretrial Publicity Hawkins, Holland, Martin Sneed, Jr., Clyde Sneed

As the government conceded both in its brief and at oral argument, this case attracted a significant amount of local coverage by the news media. The alleged conspiracy was described in the local media as the "Texas Conspiracy," and was reported on numerous occasions to be one of the largest illegal drug operations in the history of the State of Texas. On the basis of the publicity surrounding the case, appellants filed pretrial motions requesting, inter alia, examination of each potential juror who had been exposed to the publicity. These motions were denied.

At the voir dire of the panel members, the district court inquired of the panel en masse

(i)f any of you have heard about this case, or have read about it in the newspaper, or heard it on TV or the radio, or have talked with anyone, which has caused you to form an opinion as to the guilt or innocence of the Defendants, and if that is such an opinion as would affect you if selected as a Juror, if so, may I see your hand?

No panel members responded, and the court then stated that

I presume then, that none of you know enough about the case or heard enough about it that you feel that it would keep you from being a fair and impartial Juror or would affect or influence your verdict.

T. 14:24. During voir dire by counsel, however, forty-eight of the fifty-six members of the panel, or eighty-six percent of the potential jurors, responded affirmatively to a request for "a show of hands of everyone who has heard or read on the news media, in the newspapers, on the television or radio, or from other individuals, anything about this case." T. 14:90. In light of this response, defense counsel renewed the request for individual examination of the panel members. 2 In denying appellants' request, the district court explained:

(I)t would be improper as an unnecessary question, in the Court's opinion, to ask them what they heard, because that is insignificant and not important. The question is whether or not they have heard anything or know anything about the case, which would cause them to form an opinion, that would affect them if selected as a Juror in the case. So your request is denied.

T. 14:97.

A criminal defendant is entitled to an impartial jury that will render a verdict based exclusively upon the evidence presented in court and not on outside sources. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); United States v. Gerald, 624 F.2d 1291, 1296

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(5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Exposure to pretrial publicity, however, does not necessarily destroy a juror's impartiality. Calley v. Callaway, 519 F.2d 184, 205-06 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911, 95 S.Ct. 1505, 47 L.Ed.2d 760 (1976). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court." Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643 (citations omitted).

Rule 24(a) of the Federal Rules of Criminal Procedure gives the district court broad discretion in determining the appropriate scope and method of jury voir dire. United States v. Magana-Arevalo, 639 F.2d 226, 228 (5th Cir. 1981); United States v. Gerald, 624 F.2d at 1296. The court's discretion extends both to the decision whether to propound questions proffered by counsel and whether jurors should be questioned collectively or individually out of the presence of other jurors. Id.; United States v. Shavers, 615 F.2d 266, 268 (5th Cir. 1980); United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). This broad discretion, however, is limited by the requirements of due process, and the reviewing court must independently evaluate the voir dire testimony of empanelled jurors, as well as the record as a whole, and determine whether the method of voir dire adopted by the district court is capable of giving "reasonable assurance that prejudice would be discovered if present." United States v. Delval, 600 F.2d at 1102, quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). The district court's decision will "not be lightly overturned." United States v. Carroll, 582 F.2d 942, 946 (5th Cir. 1978).

The facts of the case sub judice are strikingly similar to those presented in United States v. Davis, 583 F.2d 190 (5th Cir. 1978). Before trial, the defendant in Davis brought to the district court's attention the scope, which was extensive, and substance of much of the local news coverage that the case attracted. The defendant also filed a motion requesting an individual examination of every panel member exposed to the publicity to determine the extent, frequency, and harmfulness of the exposure. Although the district court determined that every panel member had been exposed to some of the publicity, the court denied defendant's request to examine the panel members individually. Instead, the court inquired of the panel en masse whether any member felt that the publicity impaired their ability to render an impartial decision. 583 F.2d at 196 n.5. None responded.

Noting that the nature and extent of the local coverage in Davis raised a significant possibility of jury prejudice, this Court held that the district court erred in failing to undertake a more thorough examination of the panel members: "Under the circumstances of this case, where the nature of the publicity as a whole raised a significant possibility of prejudice, the cursory questioning by the court was not enough. The court should have determined what in particular each juror had heard or read and how it affected his attitude toward the trial, and should have determined for itself whether any juror's impartiality had been destroyed." 583 F.2d at 196. Specifically, the Court cited with approval the ABA Standards Relating to Fair Trial and Free Press, 3 which recommend that, in these circumstances, the district court examine each juror apart from the other jurors to determine what the juror read and how it affected the juror's attitudes toward the trial. This Court stopped short, however, of holding

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in Davis that separate examination of each juror is always required. Recognizing "the district court's need for flexibility in interrogating jurors as to possible prejudice," 583 F.2d at 197, the Court simply held that, under the circumstances of that case, "the district court did not make significant inquiry into the possibility of prejudice and did not reach its own independent determination whether the impartiality of any juror had been destroyed." Id. at 198.

In United States v. Gerald, 624 F.2d 1291, 1297 (5th Cir. 1980), fifteen of twenty-eight prospective jurors were exposed to pretrial publicity. Although this Court reaffirmed the principle stated in Davis that cursory questioning of the jury is not enough when the nature of the publicity as a whole, together with the surrounding circumstances, raises a significant possibility of prejudice, we noted that,...

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