962 F.2d 439 (5th Cir. 1992), 91-8263, United States v. Aragon

Docket Nº:91-8263.
Citation:962 F.2d 439
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Roland ARAGON, Ross Martinez, and Ronald Eugene Levi, Defendants-Appellants.
Case Date:May 26, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 439

962 F.2d 439 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Charles Roland ARAGON, Ross Martinez, and Ronald Eugene

Levi, Defendants-Appellants.

No. 91-8263.

United States Court of Appeals, Fifth Circuit

May 26, 1992

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David Z. Chesnoff, Las Vegas, Nev., for Aragon.

Clarence D. Moyers, El Paso, Tex. (Court appointed), for Martinez.

Francisco F. Macias, El Paso, Tex., for Levi.

Joseph H. Gay, Jr., Richard L. Durbin, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

Appeal from the United States District Court for the Western District of Texas.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellants, Charles Ronald Aragon, Ross Martinez, and Ronald Eugene Levi, along with six co-defendants not subject to this appeal, were charged in an eight-count indictment for their participation in a pipeline organization which smuggled marihuana to Washington, D.C., and Canada, using El Paso and Albuquerque as shipment points. After a jury trial, Aragon, Martinez and Levi were each found guilty of willfully and knowingly conspiring to possess more than 100 kilograms of marihuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count 1). Aragon and Levi were also found guilty of knowingly and intentionally possessing more than 100 kilograms of marihuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count 2). Additionally, Levi was found guilty of possessing a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1) (count 5). Further, the jury found Aragon guilty of knowingly conducting and attempting to conduct a financial transaction with the proceeds of an unlawful drug transaction in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i), and found Levi guilty of aiding and abetting the commission of that offense in violation of 18 U.S.C. § 2 (count 8). The district court, however, granted

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Aragon and Levi's motion for acquittal on count 8.

Appellants contend that the trial court committed reversible error in refusing to poll the jury regarding the possible prejudicial effect of a newspaper article appearing after jury empaneling at the commencement of the trial. The specific assertion of error is the failure of the court to ascertain what information, if any, the jurors received, and if they were exposed to extra-record information, so that the court could make a finding on its prejudicial effect. In this case a specific and detailed newspaper article about the defendants and their activities was published on the front page of the Metro section of the most widely circulated local paper in El Paso. We must conclude that the district court's failure to act decisively to ascertain the impact of the article on the jury constituted an abuse of discretion. At a minimum, when the trial court was apprised of the existence of this potentially prejudicial article it should have made the proper inquiries of the jury. Under the necessary auspices of guarding against the effect of prejudicial newspaper publicity, and under the exercise of our supervisory power, 1 we reverse for a new trial. 2

I. Publicity During Trial

On the first morning of the two-day trial, the El Paso Herald-Post published an article with a conspicuous double headline: "Pot trial begins for senator's brother/ Men accused of smuggling through city." 3 The article set out Aragon's familial relationship to a New Mexico State Senator as well as his "history" of drug arrests and convictions dating to the early 1970's. It also recounted the appellants' alleged boasting of the smuggling of thirty-two tons of marihuana through an El Paso marihuana smuggling pipeline and of their earlier dealings with a reputed "narcotics kingpin" Gilberto Ontiveros. 4 According

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to the appellants, the inflammatory newspaper article contained information which clearly went beyond the record. 5 It portrayed Aragon as an established drug dealer with a prior criminal history, a portrayal unquestionably prejudicial to Aragon. Further, since Martinez, Levi, and Aragon were charged as co-conspirators, it blackened Martinez' and Levi's reputations as well. Given Aragon's criminal history of arrests and convictions, the jury would necessarily tend to believe that Martinez and Levi must have known about Aragon's earlier criminal undertakings. Additionally, according to appellants, the allegations of the purported dealings with the "narcotics kingpin" Gilberto Ontiveros were devastating and highly prejudicial. The Ontiveros crime family has great notoriety in El Paso and has been the subject of many articles. 6

On the morning of the commencement of trial, the jury having already been empaneled, counsel for the appellants requested that the court conduct additional voir dire to ascertain whether any juror had read or heard of the article. Despite the highly prejudicial nature of the publicity involved, the trial court squarely denied the defense counsel's request for a poll. Without even a cursory glance at the newspaper article, the court said: "Hand it to the clerk right

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here. Your request is denied. Anything else? I don't see it, I don't need the paper. I am like the jurors. They don't read the paper either. I told them not to." 7

II. Possible Prejudice--Court Discretion

The standard for review of the exercise of the district court's discretion in a case such as this is abuse of that discretion. United States v. Harrelson, 754 F.2d 1153, 1163 (5th Cir.), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241, and cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). The trial judge has broad discretion in ruling on the issue of prejudice resulting from a jury's exposure to news articles concerning a trial. United States v. Marshall, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959) (per curiam). Further, "[i]t is for the trial judge to decide at the threshold whether news accounts are actually prejudicial; whether the jurors were probably exposed to the publicity; and whether jurors would be sufficiently influenced by bench instructions alone to disregard the publicity." Gordon v. United States, 438 F.2d 858, 873 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56, and cert. denied, 404 U.S. 828, 92 S.Ct. 140, 30 L.Ed.2d 56 (1971). Our role must emerge in this case, however, because the trial court has not made any of these determinations.

The formula for determining if a voir dire is required because of mid-trial publicity is stated in United States v. Herring, 568 F.2d 1099 (5th Cir.1978). We held that a voir dire is required if there could arise "serious questions of possible prejudice." 8 We then set out a two-step

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inquiry devised to answer whether such "serious questions" exist. First, the district court must look at the nature of the news material to determine whether the material is innately prejudicial. Factors such as the timing of the media coverage, its possible effects on legal defenses, and the character of the material disseminated merit consideration. Second, the court must then discern the probability that the publicity has in fact reached the jury. At this juncture, the prominence of the media coverage and the nature, number, and regularity of warnings against viewing the coverage become relevant. 568 F.2d at 1104-05. See also United States v. Arzola-Amaya, 867 F.2d 1504, 1513 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989); United States v. Manzella, 782 F.2d 533, 542 (5th Cir.), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986).

Every claim of potential jury prejudice due to publicity must turn upon its own facts. Marshall, 360 U.S. at 312, 79 S.Ct. at 1173. The government contends that the record conclusively shows that the El Paso Herald-Post article was not highly prejudicial to the appellants and that the district court's cautionary instructions to the jury negated the possibility that the publicity reached the jury. An after-the-fact analysis must be made to respond properly to the government's assertions. We first determine whether the news material was innately prejudicial. It is well established that "news stories published during the trial that reveal to jurors a defendant's prior criminal record are...

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