800 F.2d 1422 (6th Cir. 1986), 84-1757, United States v. Ebens

Docket Nº:84-1757.
Citation:800 F.2d 1422
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald EBENS, Defendant-Appellant.
Case Date:September 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1422

800 F.2d 1422 (6th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald EBENS, Defendant-Appellant.

No. 84-1757.

United States Court of Appeals, Sixth Circuit

September 11, 1986

Argued Dec. 12, 1985.

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David M. Lawson, Frank D. Eaman (argued), Detroit, Mich., for defendant-appellant.

Maura D. Corrigan, Asst. U.S. Atty., Detroit, Mich., Wm. Bradford Reynolds, Walter W. Barnett, Dennis J. Dimsey, Civil Rights Div., Dept. of Justice, Washington,

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D.C., Dennis J. Dimsey (argued), Bethesda, Md., for plaintiff-appellee.

Before ENGEL, KENNEDY and MILBURN, Circuit Judges.

ENGEL, Circuit Judge.

Ronald Ebens appeals from a judgment of conviction and a twenty-five year sentence following his conviction by a jury of count II of a two count indictment charging him and his stepson Michael Nitz under 18 U.S.C. Sec. 245(b)(2)(F) 1 with violating the civil rights of Vincent Chin, a United States citizen of Chinese descent. Ebens had killed Chin in an altercation which occurred on June 19, 1982.

We cannot permit the judgment to stand because Ebens was denied a fair trial.

Ebens was originally prosecuted in the Wayne County, Michigan, Circuit Court and prior to trial pleaded guilty to the crime of manslaughter. When he was placed upon probation and fined $3,720, public outrage at the perceived lenity of the penalty was extensive, especially within the Chinese-American community. The case was accompanied by massive publicity at both the state and national levels and undoubtedly because of activity on behalf of the Chinese-American community, the United States Department of Justice, overruling the decision of the local United States Attorney not to prosecute, instituted proceedings under the Civil Rights Act in the United States District Court for the Eastern District of Michigan.

We address the issues in the order in which they have been raised by appellant and the facts are further developed as pertinent to each issue.

I.

Ebens claims that the trial court erred in failing to grant his motion for change of venue.

Ebens had originally moved the district court for an eight to twelve month continuance of the trial in order to permit the effect of the extensive publicity surrounding the case to dissipate. Before that motion was decided, Ebens on February 17, 1984, filed a motion for change of venue.

The joint appendix filed in the appellate record contains sixty-eight pages of articles from Detroit newspapers about the Chin matter. Three video tape recordings of television broadcasts were also made a part of the record. As the trial judge noted, the publicity was not only extensive but was all adverse. A Detroit attorney, Lisa Chan, formed a group known as The American Citizens for Justice, and appears to have been instrumental in publicizing the killing, the handling of the case by the Wayne County Prosecutor's office and the sentences given to Ebens and Nitz in the state court. Rallies were held and the publicity

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generated much television coverage including at least two special news stories on the subject and a program over national television as well. The public excoriation of the state trial judge who placed Ebens and Nitz on probation was particularly severe. The headlines can only be described as scathing. One large cartoon, appearing in The Detroit News, even showed the trial judge putting a baseball bat in one ear, as if it were a pencil, and sharpening it with a pencil sharpener installed in the opposite ear.

We have carefully reviewed the extensive record made of the publicity in the case and agree that it was indeed pervasive. The question of venue is made particularly difficult because of the framework in which the prosecution arose. The nearly unanimous public judgment that Ebens and his stepson should have received jail terms and the harsh criticism of the state trial judge, followed by the federal prosecution of defendants based upon the same incident, was bound to lead to a strong public impression that justice had not been done in the state court and that it was incumbent upon the federal government to right that wrong by a second prosecution. Nevertheless we are unable to hold that the trial judge committed error when she determined to proceed to impanel a jury. While it probably would have been advisable for the trial judge to have ordered a change of venue, we conclude that it was not reversible error for her to proceed to impanel the jury. A change of venue would undoubtedly have occasioned great inconvenience both to the defense and to the government. Further, the publicity was so extensive that it was not altogether certain that any location to which the trial might be removed would itself be free from the potential impact of the publicity which had already occurred and that which was bound to accompany the trial, wherever it was held.

We are further persuaded in our holding by our observation that the process for selecting the jury was carried out with exceptional care and sensitivity. Prior to voir dire, each potential juror was required to complete a seven page questionnaire containing forty-two questions. In addition to the usual inquiries bearing upon a juror's potential bias generally, the jurors were specifically asked to set down what they knew about the Chin case and what the source of that knowledge was. Of the one hundred fifty-nine potential jurors who were ultimately examined on voir dire by the court and counsel, seventy-eight were excused for cause, the vast majority of them by the court on its own motion. Ebens' counsel moved to exclude only four jurors for cause. Of the seventy-eight excused for cause, thirty-four were excused because they acknowledged that they were unable to disregard the publicity. Thirteen of the one hundred fifty-nine potential jurors stated that they had not been exposed to any publicity. All of those ultimately seated were carefully questioned concerning their ability to hear the evidence in the case free of any prior knowledge of the case through the media. Of the thirteen ultimately seated, three had no prior knowledge and ten possessed some knowledge but satisfied the court that they would be able to hear the case free of any bias as a result of that knowledge. Each defendant was allotted twenty peremptory challenges. Counsel for Ebens exercised seven peremptory challenges (although the trial judge understood that the defense had exercised only five).

Both government and defense rely upon Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), to support their positions concerning the necessity for a change of venue. The trial court specifically found that the jurors chosen were free of bias. It is well settled that a juror's previous knowledge of the facts of the crime through the media is not itself dispositive of the issue of that juror's qualification to sit. The jury selection process was fair and in accord with the concerns expressed by the majority of our court in United States v. Blanton, 719 F.2d 815, 830 (6th Cir.1983) (en banc), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984), as well as those expressed by

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this writer in his dissent and cases cited therein. While we do not hold that the failure to exercise all of the allowed peremptory challenges, or failure to challenge for cause all of the jurors who were seated, is invariably fatal to a motion for a change of venue, certainly this factor is of great importance in determining whether the jury so selected was capable of meeting the demands of impartiality placed upon it by law.

II.

Ebens next claims that he was entitled to a directed verdict of acquittal. We disagree.

In review of such issues, the court is of course obliged to consider the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Adamo, 742 F.2d 927 (6th Cir.1984), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985). Only if no rational jury could have convicted is it error not to grant the motion. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). Ebens' motion in this regard must be considered in the light of the elements of the crime with which he was charged. His arguments go not to the factual events of the altercation itself and of his wielding the baseball bat which caused Chin's death, but to the specific intent which is inherently a part of the statute.

Ebens was acquitted of count I of the indictment charging him with conspiracy to deprive Chin of his civil rights under 18 U.S.C. Sec. 241. He was convicted of count II charging him with interfering with Chin's civil rights by wilfully injuring, intimidating and interfering with Chin on account of his race or national origin and because the latter was and had been enjoying the privileges and accommodations of the Fancy Pants Lounge, a place of entertainment open to the public, by threatening, beating, and assaulting Chin with the result that the latter died, all in violation of 18 U.S.C. Sec. 245(b)(2)(F).

The incident giving rise to this litigation occurred on June 19, 1982, in Highland Park, a suburb of Detroit. Chin, then twenty-seven years old, lived with his mother in Oak Park, Michigan, another suburb of Detroit. He had come to this country from China in 1961 when he was adopted by a Chinese-American couple. He became a United States citizen in 1965.

To celebrate his upcoming wedding, Chin invited his friends Robert Sirosky and Gary Koivu to meet him at a topless bar at 7:00 p.m. that night. After about...

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