664 F.2d 135 (7th Cir. 1981), 79-1726, United States v. Garza

Docket Nº:79-1726 to 79-1728.
Citation:664 F.2d 135
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Albert GARZA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard ZUMBERGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence CALDWELL, Defendant-Appellant.
Case Date:November 12, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 135

664 F.2d 135 (7th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,


Albert GARZA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Howard ZUMBERGE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Lawrence CALDWELL, Defendant-Appellant.

Nos. 79-1726 to 79-1728.

United States Court of Appeals, Seventh Circuit

November 12, 1981

Argued Sept. 22, 1981.

Rehearing Denied Dec. 2, 1981.

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Page 138

Patrick Reardon, David L. Joslyn, Conklin & Adler Ltd., Chicago, Ill., for defendants-appellants.

Robert L. Simpkins, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before SPRECHER and BAUER, Circuit Judges, and DUMBAULD, Senior District Judge. [*]

BAUER, Circuit Judge.

Appellants were indicted and convicted on charges stemming from a prison escape incident. On appeal they challenge the trial court's rulings on a number of matters, including several pretrial and post-trial motions. We affirm.


Lawrence Caldwell, Albert Garza, and Howard Zumberge were inmates of the federal penitentiary in Marion, Illinois. On February 14, 1979, under cover of thick fog, the trio attempted to escape from the institution by scaling its fences. Caldwell failed and was apprehended atop the inner perimeter fence; Garza and Zumberge succeeded and remained at large for several days. State and federal law enforcement officers finally captured Garza, after a brief gun battle, in a church basement. Zumberge was hiding in the same church but surrendered more peacefully. Zumberge was taken into custody and Garza was hospitalized for a gunshot wound.

All three were indicted on March 28, 1979. At trial, appellants elected to represent themselves pro se, although appointed counsel was available. They were acquitted on three counts and found guilty on the remaining counts.


Appellants' initial contentions concern adverse pretrial publicity which they claim prejudiced the jury. Due process, of course, requires that an accused be tried by an impartial jury free from outside influences. Maxwell v. Sheppard, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Impartiality, however, does not mean complete juror ignorance of issues and events. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). If a juror can put aside his impressions gained from pretrial publicity and render a fair verdict based upon the evidence, the impartiality requirement is satisfied. Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Provenzano, 620 F.2d 985, 995 (3d Cir. 1980), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). Where juror exposure to pretrial publicity can be shown, defendants must still demonstrate that actual prejudice resulted. 1 Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980).

Page 139

After conducting our own independent review and evaluation of the trial court's voir dire examination, we perceive no actual prejudice arising from pretrial publicity. Although the record reveals that many potential jurors were familiar with the case, Judge Foreman's careful questioning and close scrutiny filtered out the biased veniremen. 2 Of those selected, only four jurors had read or heard of the case, and none possessed more than passing familiarity with the escape. 3 Under the circumstances, we cannot say the district court abused its discretion by its approach to the pretrial publicity problem.

Reflecting the same concern, appellants sought a change of venue as well as additional peremptory challenges and challenges for cause, all of which were denied. Appellants, of course, claim these denials were erroneous. We disagree. As to the change of venue motion, the governing authority is rule 21(a), Fed.R.Crim.P., which provides, in part, that

(t)he court upon motion of the defendant shall transfer the proceeding as to him to another district ... if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.

Granting or denying a change of venue motion is within the trial court's discretion.

Page 140

United States v. Lamb, 575 F.2d 1310, 1315 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Appellants argue that there was more than a reasonable likelihood that prejudicial publicity would prevent a fair trial, but the record does not support them. Only a few articles appeared during the trial, few jurors had read or heard of the case, and no allegation is made that any jurors were actually influenced by media broadcasts or reports. Thus, a change of venue was properly denied.

Appellants' claims concerning additional juror challenges, predicated on supposed widespread, prejudicial publicity, are equally unfounded. As we have noted, there was some publicity, but it was hardly so inflammatory and prejudicial as to require any remedy beyond the measures taken by Judge Foreman. 4 Appellants contend that jurors Reed, Barham, Parker, and Waldron should have been excused for cause and that it was error to allow them on the jury. We disagree. The record shows that Reed read about the case and hunted in the area where Garza and Zumberge were captured, but could not recall any specifics. Barham, as we have demonstrated elsewhere, 5 only vaguely recollected the escape and, frankly, seemed more interested in the dogs used to track the appellants than in the appellants themselves. Parker merely had served as a juror on an unrelated murder case. Finally, Waldron's husband had been a prison guard in a state facility roughly sixteen years ago. Although from appellants' standpoint such jurors may not have been optimal, their presence did not constitute an abuse of discretion since each indicated that he or she could render an impartial verdict based upon the evidence.

We dispatch appellants' argument regarding additional peremptory challenges with the observation that such challenges are limited partly because they serve as a tactical tool of defense counsel seeking one biased juror almost as often as they serve to promote fair trials. See Jeffers v. United States, 451 F.Supp. 1338, 1353 (N.D.Ind.1978). Here, as the government points out in its brief, there were only 30 veniremen remaining after challenges for cause, barely enough from which to select twelve jurors if each side exercised their...

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