U.S. v. Blanton

• Decision Date: 28 September 1983
• Docket Number: Nos. 81-5643,81-5644 and 81-5645,s. 81-5643
• Citation: 719 F.2d 815
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard Ray BLANTON (81-5644), Clyde Edward Hood, Jr. (81-5645), James M. Allen (81-5643), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 815

719 F.2d 815

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Ray BLANTON (81-5644), Clyde Edward Hood, Jr.

(81-5645), James M. Allen (81-5643), Defendants-Appellants.

Nos. 81-5643, 81-5644 and 81-5645.

United States Court of Appeals, Sixth Circuit.

Argued June 20, 1983.

Decided Sept. 28, 1983.

Tyree B. Harris (argued), Dodson, Harris, Robinson & Aden, Nashville, Tenn., for Allen.

John S. McLellan, John S. McLellan, III, Alfred Knight (argued), Kingsport, Tenn., Neal P. Rutledge, Washington, D.C., for Blanton.

William R. Willis, Jr., Robert L. DeLaney, Alfred Knight, Nashville, Tenn., John S. McLellan (argued), Kingsport, Tenn., for Hood.

Joe B. Brown, U.S. Atty., Aleta Arthur, John Philip Williams (argued), Asst. U.S. Attys., Nashville, Tenn., for U.S.

Before EDWARDS, Chief Judge, LIVELY, ENGEL, KEITH, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY and WELLFORD, Circuit Judges. ^*

GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

In this case this circuit is required to review en banc the claims of the former Governor of Tennessee and two associates that they have been deprived of a fair jury trial. Their principal claim is that inadequate protective measures were employed by the trial judge in the jury selection We believe that we can and should accept much of the able work accomplished by the panel ¹ which first heard this case. We shall therefore deal afresh and in detail only with the principal claim stated above upon which the original panel, 700 F.2d 298, agreed with appellants and ordered a new trial.

process to guard them against the prejudicial effect of massive adverse pretrial media publicity.

This claim we now subdivide into three questions and provide our answers:

1) Did the District Judge employ the best procedure possible in his voir dire examination of the prospective jurors in this case?

Probably not.

2) Did the trial judge abuse the broad discretion vested in him by the rulings of the Supreme Court of the United States in his impaneling of this jury?

No.

3) Did the voir dire examination of jurors suffice to produce an impartial jury and fundamentally fair trial?

Yes.

We accept the original panel's statement of facts:

"The three defendants are Blanton, who served as governor of Tennessee from January, 1975 to January, 1979, James M. Allen, who was a special consultant to the governor for the first six months of the Blanton administration and had served as Blanton's campaign manager, and Clyde Edward Hood, who was a special assistant to the governor from January, 1975 to November, 1977. Defendants were charged on October 29, 1980, in a twelve-count indictment with eight counts of mail fraud (18 U.S.C. Secs. 2, 1341 (1976)), one count of violating the Hobbs Act (18 U.S.C. Secs. 2, 1951 (1976)), and one count of conspiracy (18 U.S.C. Sec. 371 (1976)). Blanton alone was charged with two counts of tax evasion and filing a false tax return. (26 U.S.C. Secs. 7201, 7206(1) (1976)). On March 12, 1981, a superseding indictment was issued adding one mail fraud count. The tax counts against Blanton were severed. The essence of the charges was that defendants used their positions to see that friends of Blanton would receive retail liquor licenses from the Tennessee Alcoholic Beverage Commission (ABC) and that one person paid Blanton for receipt of his license.

"The most important evidence against defendants was the videotaped deposition of Jack Ham. Ham was an immunized witness who was the recipient of a liquor license during Blanton's tenure and who allegedly agreed to give Blanton a cut of the profits in violation of state law. Ham had contributed $1,000 to the Blanton campaign.

"Blanton's role in the scheme allegedly was that he directed that liquor licenses be awarded to political friends or persons like Ham who offered a cut of the profits. He allegedly accomplished this by appointing two of the three commissioners of the ABC, including the chairman, S.J. King, and the commission was therefore able to appoint Blanton allies as director and assistant director of the ABC. Blanton allegedly agreed to an illegal twenty percent cut of the profits of Ham's liquor store, with the payment coming in the form of Ham's purchase of allegedly worthless oil stock from Blanton for $23,000. ¹ (This method of payment resulted in tax savings to Ham.) Blanton also allegedly approved a transfer of Ham's liquor license to a more lucrative location.

1. A total of $38,000 was allegedly paid for the oil stock. In addition to the $23,000 for Blanton's cut of the liquor store profits, Ham and his nephew, Bert Ham, paid another $15,000 as a finder's fee for Blanton's help in getting a loan on a housing project they were building.

"Allen was alleged to have been in charge of determining the awarding of liquor licenses even though he had no position at the ABC. He allegedly helped set up an illegal ownership of a liquor store involving the ABC chairman and he attempted to acquire a concealed interest in a liquor store under the guise of a lucrative consulting contract (only one payment was made under the contract). He allegedly was responsible "Hood allegedly planned to acquire an interest in two liquor stores in contravention of various state laws and he received a share of the profits of some of the newly licensed liquor stores. He allegedly told the director of the ABC who Blanton's friends were so that the director would recommend to the ABC that those persons receive licenses. He allegedly helped accomplish the transfer of Ham's license by talking to ABC chairman King and by suggesting a particular person as the assistant director who would persuade the other Blanton appointee on the commission. Finally, he allegedly suggested that Ham pay Blanton's share of the profits by buying the worthless oil stock (although he later advised against the purchase).

for hiring a new ABC assistant director to help control the ABC even though Allen was not even a state employee at the time, and he instructed the assistant director to recommend the transfer of Ham's license to a better location and recommended against the transfer of other persons' licenses to that area.

"The scheme violated Tennessee's laws against an ABC commissioner having an interest in a liquor store, ² public officials having an interest in a liquor store, ³ undisclosed interest in liquor stores, ⁴ and bribing of public officials. ⁵ The federal charge was that the acts (1) constituted a conspiracy to defraud the United States by use of the mails in furtherance of defendants' scheme to violate Tennessee law (18 U.S.C. Sec. 371), (2) when coupled with mailings, constituted mail fraud by defrauding the citizens of Tennessee of the honest services of their government officials (18 U.S.C. Secs. 2, 1341), and (3) violated the Hobbs Act (interference with commerce by threats or violence) (18 U.S.C. Secs. 2, 1951).

2. Tenn.Code Ann. Sec. 57-1-108(a) (1980) provides: "[N]o person shall be employed in any capacity by the commission, if such person shall have any interest ... in any ... retail dealer licensed as such in the state of Tennessee."

3. Tenn.Code Ann. Sec. 57-3-210(b)(1) (1980) provides:

.... It shall be unlawful for any such person to have any interest in such wholesale or retail business, directly or indirectly, either proprietary or by means of any loan, mortgage, or lien, or to participate in the profits of any such business[.]

4. Tenn.Code Ann. Sec. 57-3-210(f) (1980) provides: "It shall be unlawful for any person to have ownership in, or participate, either directly or indirectly, in the profits of any wholesale or retail business licensed under this chapter, unless his interest in said business and the nature, extent and character thereof shall appear on the application ...."

5. Tenn.Code Ann. Sec. 39-801 (1975) provides:

Its, gratuity, or thing of value, with intent to influence his act, vote, opinion, decision, or judgment, on any matter, cause, or proceeding which may be then pending, or which may be by law brought before him in his official capacity, shall, on conviction, be imprisoned in the penitentiary ....

Tenn.Code Ann. Sec. 39-802 (1975) provides:

Thing of value ... under an agreement or with an understanding that his vote, opinion, or judgment is to be given in any particular manner, or upon any particular side of any question or proceeding which is, or may by law be brought, before him in his official capacity, or that, in such capacity, he is to make any particular appointment, shall, on conviction, be punished by imprisonment in the penitentiary ....

"The testimony of the chief prosecution witness, Jack Ham, was videotaped pursuant to Fed.R.Crim.P. 15(a) because of Ham's poor health. The videotape was edited and played for the jury at the trial. The government obtained Ham's testimony offering him immunity from federal prosecution and civil tax liability, and the state agreed not to prosecute Ham. The ABC agreed that it would not revoke Ham's lucrative liquor license on the basis of truthful statements he made in judicial proceedings.

"The trial was preceded by massive publicity about the case in Nashville, Tennessee, and throughout the state, as one would expect in the trial of a former governor. The record contains over 240 articles from Nashville newspapers adverse to defendants. There are approximately 160 articles which appeared in the six months preceding the trial about the instant prosecution, the prosecution of Blanton's brother, and the prosecution of former Blanton aides. ⁶ There are more than seventy-five other articles which appeared while Blanton was governor concerning his administration. ⁷ There are another twenty-two articles on the deposition of Jack Ham, the last of which appeared four months before the beginning of the trial. ⁸ A large part of the original indictment was published verbatim in the Nashville newspapers. There was also an offer of proof concerning the testimony of news directors of...