Bearden v. United States

• Decision Date: 23 September 1963
• Docket Number: No. 19325.,19325.
• Citation: Bearden v. United States, 320 F.2d 99 (5th Cir. 1963)
• Parties: Leon BEARDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

320 F.2d 99 (1963)

Leon BEARDEN, Appellant, v. UNITED STATES of America, Appellee.

No. 19325.

United States Court of Appeals Fifth Circuit.

July 10, 1963.

Rehearing Denied September 23, 1963.

R. Gordon Gooch, Houston, Tex., Robert S. Pine, El Paso, Tex., for appellant.

Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and RIVES, Circuit Judges.

TUTTLE, Chief Judge.

Appellant was convicted under three counts in the United States District Court for the Western District of Texas, in El Paso, count one charging the crime of kidnapping,¹ count three² charging theft of an aircraft in interstate commerce³ and count six charging the crime of obstructing commerce.⁴ From his conviction appellant took an appeal to this court which affirmed the conviction by a divided court.⁵ The Supreme Court vacated⁶ that judgment of this court under the rule of Elchuk v. United States, 370 U.S. 722, 82 S.Ct. 1574, 8 L.Ed.2d 802, in that government counsel was allowed oral argument when neither appellant nor his counsel was present to present oral argument on his behalf.

Briefly stated, the facts are as follows: appellant and his son boarded in Phoenix, Arizona, a commercial aircraft, which was scheduled to stop in El Paso and then San Antonio, Texas. They had purchased tickets for El Paso. While in flight over New Mexico, appellant and son, with pistols drawn, announced to the pilot and crew that they were taking command of the aircraft, ordered the pilot to make a forty-five degree turn, and told them it was their intention to take the aircraft to Mexico, then Cuba. There was conflicting testimony as to the degree of alteration of the course, if any, of the aircraft. However, the aircraft, if there was any alteration of course, resumed its course immediately after the slight alteration, for the crew convinced the appellant that the plane had insufficient fuel to reach the desired point in Mexico, and that it was mandatory to refuel in El Paso, its next scheduled stop. The appellant permitted this continuation but had the intention of carrying out his plans thereafter. In the meanwhile the authorities in El Paso were made aware of the situation while the plane was in flight, and had law enforcement officers there at the airport to greet the landing. After a long delayed refueling, during which time appellant and his son allowed most of the passengers to deplane, appellant ordered the crew to get under way, but as the aircraft was going down the runway the police in pursuing automobiles prevented its becoming airborne by firing bullets into the tires and engines. The officers soon boarded the aircraft and the appellant and son were taken by force with none injured.

At the trial the son pleaded guilty as a juvenile delinquent and the appellant not guilty as to all counts.

The first point raised on this appeal is that the appellant's motion for change of venue should have been granted, in that he was denied a fair trial in the El Paso division of the Western District of Texas. The basis for the motion was that television and radio carried live in the El Paso area the events subsequent to the landing of the aircraft, which events included the attempted take off of the aircraft and arrest of the appellants. Such widespread dissemination of publicity, which included subsequent broadcasts and newspaper coverage, in the El Paso area precluded the possibility of a fair trial there. Most, if not all, of the prospective veniremen had viewed the events which took place at the airport either on television or, as a few of them had, in person.

A motion for change of venue is addressed to the sound discretion of the trial court and should be overruled only upon a showing of abuse of discretion. Allen v. United States, 4 F.2d 688, 698-699 (7th Cir. 1925). We find that the trial court did not abuse its discretion in this case in refusing to order a change of venue. The court was cautious to question the jury as to any possible bias or formed opinions with regard to the case from the jurors' viewing of the events on live or taped television or reading about them in the newspapers. Appellant's main thrust in his argument here is that the events came over live to the watching audience and that this is quite different from seeing taped news accounts on television at a later date, or reading about them in the newspapers. What difference in live and taped broadcasts there may be to these television viewers is not such as would automatically remove the discretion possessed by the trial judge. All of the jurymen were able to answer the judge's questions with assurance that they could render a just and impartial verdict, and that they had no preconceived notions as to appellant's guilt or innocence in the case.

A recent Supreme Court decision deserves mention here. Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. In that case, a few hours after defendant was arrested and charged with murder, a twenty minute taped "interview" was made of defendant in jail, in which interview he admitted the bank robbery, kidnapping and murder. This filmed interview was broadcast over a television station for three straight days, in the city in which the crimes took place⁷ and where the trial was to be held, the first broadcast day being the day of the arrest. A motion for change of venue was denied and defendant was later convicted and sentenced to death. Three of the jurymen had seen the taped "interviews" in which defendant confessed. These jurors were challenged for cause but the challenges were denied. The Supreme Court reversed, holding that it was a denial of due process of law to refuse the request for change of venue after the people of the parish

"had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged * * * This spectacle * * * in a very real sense was Rideau\'s trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality."

That case is decidedly different from the case at bar. The repeated broadcast of a confession given by a defendant prior to his trial on the one hand and the witnessing over television of the arrest of a defendant on the other would certainly produce completely different impressions on the part of the viewers. In the first case it is hardly conceivable that a defendant would stand a chance of receiving an impartial verdict from a jury made up in whole or part of those who saw the confession. In the latter case this is not necessarily so, and we are persuaded by the language of the Supreme Court in Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751 (1961):

"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror\'s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Live television coverage is a mere extension of the rapidity with which the news media cover crimes. In this case the events were broadcast not only in the El Paso area but nationwide. In such a situation as this, where there was no evidence of any bias on the part of the jurors including those who witnessed in person some of the events surrounding appellant's arrest, we can not as a matter of law hold that the defendant could not have obtained a fair trial in El Paso. The district judge did not abuse his...