Bearden v. United States

• Decision Date: 24 February 1969
• Docket Number: No. 25821.,25821.
• Parties: Leon BEARDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

403 F.2d 782 (1968)

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

No. 25821.

United States Court of Appeals Fifth Circuit.

November 5, 1968.

Certiorari Denied February 24, 1969.

Bruce Dixie Smith, Houston, Tex., for appellant, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel.

Ray Caballero, Asst. U. S. Atty., Ernest Morgan, U. S. Atty., El Paso, Tex., for appellee.

Before RIVES and DYER, Circuit Judges, and MEHRTENS, District Judge.

Certiorari Denied February 24, 1969. See 89 S.Ct. 920.

RIVES, Circuit Judge:

Leon Bearden is now serving a twenty-year sentence for the crime of obstructing interstate commerce. 18 U.S.C. § 1951. His case has been before this Court many times.¹ The present appeal is from the district court's denial of Bearden's second motion to vacate.² The contentions on appeal are stated in the brief of Bearden's appointed counsel, as follows:

"When eye witnesses to the alleged crime were permitted, over objections, to deliberate as and with jurors in the secrecy of the jury room, Bearden was denied his constitutional rights to (a) trial by jury; (b) trial by fair and impartial jury; (c) public trial; (d) confront the witnesses; (e) due process of law.

"Bearden was denied `substantive rights\' at his trial and it constituted plain error when the jury was improperly permitted to view petitioner\'s co-defendant pleading guilty at the beginning of the trial."

The facts alleged in the motion in support of the first contention are the same as those which formed the basis of Bearden's motion for change of venue, the denial of which was affirmed by this Court.³ This Court also ruled against Bearden on direct appeal as to the second contention.⁴ Nonetheless, Bearden's present section 2255 motion is not barred by res judicata for that doctrine is not applicable to habeas corpus petitions or to section 2255 motions. Heflin v. United States, 1959, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed. 2d 407; Salinger v. Loisel, 1924, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; Birchfield v. United States, 5 Cir. 1961, 296 F.2d 120, 122.

That is not to say, however, that every defendant who has been unsuccessful on appeal can compel a re-trial of the same issues in a collateral proceeding, since the courts in post-conviction relief applications may exercise a sound judicial discretion to decline to re-try issues fully and finally litigated in the proceedings leading to judgment of conviction and direct appeal therefrom. Del Genio v. United States, 5 Cir. 1965, 352 F.2d 304 (per curiam); compare Porter v. United States, 5 Cir. 1962, 298 F.2d 461, 464.⁵

Applying the above approach, we conclude that the "prejudicial publicity" issue was adequately neutralized by the trial judge's instructions to and interrogation of the veniremen before the jury selection process was initiated. This same point was fully and finally litigated on direct appeal from denial of the motion for change of venue and was decided adversely to Bearden. While appellant's counsel has argued that a substantially different case law standard has subsequently evolved⁶ compelling this Court to reconsider Bearden's contentions, we find each of the later cases relied on to be distinguishable. The prejudicial publicity which made the trial unfair in those cases occurred immediately before and during the trial and involved editorial comment urging conviction to assuage public outrage. Under some circumstances, observation of an event,⁷ whether on-the-scene or via live television coverage, might not impair the judgment of a prospective juror to the extent that the test of Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, cannot insure selection of a fair and impartial jury.⁸ The Supreme Court has heretofore rejected the theory that any exposure of a juror to information acquired outside the courtroom would make that juror per se partial. United States ex rel. Darcy v. Handy, 1956, 351 U.S. 454, 462, 76 S.Ct. 965, 100 L.Ed. 1331. The rationale is premised upon simple practicality. Reynolds v. United States, 1878, 98 U.S. 145, 155-156, 25 L.Ed. 244, and the burden is on Bearden to show that essential unfairness occurred not as a matter of speculation, but as a demonstrable reality. Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268. We, therefore, adhere to our earlier decision on this issue. Del Genio v. United States, supra.

A re-examination of some of the facts will indicate why we are more concerned with the jury's observation of the son's guilty plea and the judge's comment in his jury charge recapitulating the plea circumstances without any cautionary instruction.

Leon Bearden and his son, Cody, were jointly indicted. They appeared for arraignment together and were individually identified to the veniremen by the court. During a recess for lunch after empaneling the jury, the government agreed to dismiss the original indictment as to the son if he would plead guilty to "juvenile delinquency."

With the jury in the box, father and son were arraigned together. Cody Bearden was instructed on his option to be charged either as a juvenile or as an adult felon, and he expressed his preference for the former. He was then read a newly drafted charge which, but for the preface invoking the Federal Juvenile Delinquency Act,⁹ was substantially identical to the original joint indictment. He stated that he understood the charge and then plead guilty, admitting participation in the kidnapping, interstate transportation of a stolen airplane, and obstruction of commerce. The government was then granted a dismissal of the original indictment as to the son.

Immediately thereafter, Leon Bearden was arraigned; he was read the original indictment, and he plead "not guilty." The jury then heard his case.

At the conclusion of the arguments to the jury, the court charged the jury, including therein a reference to the son's earlier guilty plea,¹⁰ and gave no cautionary instruction to disregard the plea.

In considering this issue on direct appeal, this Court acknowledged the continued vitality of its rule enunciated in Scarborough v. United States, 5 Cir. 1956, 232 F.2d 412, and Babb v. United States, 5 Cir. 1955, 218 F.2d 538.¹¹ Notwithstanding the Scarborough-Babb rule, we held the jury's observation of the son's guilty plea and the failure of the court to give cautionary instructions in the charge were "harmless" error. Fed.R.Crim.P. 52(a).

We observed that the failure of the trial court to give a cautionary charge to the jury to disregard the observed plea might have constituted "plain error" cognizable under Fed.R.Crim.P. 52(b), but for the facts that the defendant made no motion thereon or objected thereto, we had already reversed the life sentence, and the evidence of Bearden's guilt was "overwhelming."¹² That opinion reflected no consideration of the judicial comment on Cody Bearden's plea, although it had been, inter alia, the basis for dissent in the earlier decision vacated for want of equal oral argument opportunity. See Bearden v. United States, 5 Cir. 1962, 304 F.2d 532, 539 (dissent), rehearing denied, 307 F.2d 506, vacated and remanded, 372 U.S. 252, 83 S.Ct. 875, 9 L.Ed.2d 732 (1963). Certainly, the observation together with the judicial comment thereon, reinforces the possibility of the applicability of the "plain error" rule.

While this Court has many times refused to permit error to be raised for the first time on appeal,¹³ it has also consistently emphasized a willingness to carefully scrutinize the record for plain errors affecting substantial rights which are noticeable under Fed.R.Crim.P. 52 (b), notwithstanding lack of objection. See e. g., Rivers v. United States, 5 Cir. 1968, 400 F.2d 935; Alexander v. United States, 5 Cir. 1968, 390 F.2d 101, 103 n. 3. Moreover Fed.R.Crim. P. 30, precluding assignment of error as to any portion of a jury charge not objected to before the jury retires, will not bar invocation of Rule 52(b) where instructions have resulted in a miscarriage of justice. Braswell v. United States, 5 Cir. 1952, 200 F.2d 597. See Herzog v. United States, 9 Cir. 1956, 235 F.2d 664, cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59. See also 8 Moore's, Federal Practice, 2d ed. 1968, ¶ 52.032 p. 52-9. Nevertheless, the advice of Mr. Justice Frankfurter should be considered before disregarding Rule 30 in favor of a sua sponte invocation of Rule 52(b):

"In reviewing criminal cases it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution."

Johnson v. United States, 1943, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704.

On direct appeal, this Court concluded that the jury's observation of Cody Bearden's plea was not proscribed by the Scarborough-Babb rule, 320 F.2d at 103. We agree. Moreover, the inclusion in the charge of the comment on the joint indictment and the son's plea was no more than a chronological narrative, unfortunate perhaps,¹⁴ but the language used in this instance was devoid of prejudicial intent or impact. Compare Trussell v. United States, 6 Cir. 1960, 278 F.2d 478, 480; United States v. Toner, 3 Cir. 1949, 173 F.2d 140. See United States v. Wilcher, 7 Cir. 1964, 332 F.2d 117, 120-121; 4 Barron & Holtzoff, Federal Practice, Wright ed., § 2583, pp. 498-499. Certainly, it fails to rise to the level of judicial unfairness condemned in Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L. Ed. 1321; nor does the comment amount to even an expression of opinion as to guilt of the accused. Cf. Kyle v. United States, 5 Cir. 1968, 402 F.2d 443.

We earlier concluded that Bearden's guilt was established by the "overwhelming" weight of the...