Margoles v. United States

• Decision Date: 04 March 1969
• Docket Number: No. 16812.,16812.
• Citation: 407 F.2d 727
• Parties: Milton MARGOLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

407 F.2d 727 (1969)

Milton MARGOLES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 16812.

United States Court of Appeals Seventh Circuit.

March 4, 1969.

John P. Diuguid, Louis M. Kaplan, Philip A. Gorelick, Washington, D. C., James M. Shellow, Milwaukee, Wis., for appellant, Carr, Bonner, O'Connell, Kaplan & Scott, Washington, D. C., Shellow, Shellow & Coffey, Milwaukee, Wis., of counsel.

James B. Brennan, U. S. Atty., Richard E. Reilly, Robert J. Lerner, Asst. U. S. Attys., Milwaukee, Wis., for appellee.

Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

CASTLE, Chief Judge.

This appeal arises from the denial by the district court of petitioner's motion to vacate his sentence, under 28 U.S.C. § 2255. Petitioner was convicted in 1960 of attempting to obstruct justice and unlawfully influence a federal officer, in violation of 18 U.S.C. § 1503. The case arose out of an alleged attempted bribe of a federal judge who had previously sentenced petitioner to a one-year prison term after a plea of nolo contendere to charges of income tax evasion.¹ Petitioner's conviction for obstructing justice was affirmed by this court in United States v. Margoles, 294 F.2d 371 (7th Cir. 1961), in which the issues presented on this appeal were not raised.

Specifically, those issues concern petitioner's contention that because of widespread prejudicial publicity regarding the alleged bribery, he was denied his constitutional right to a fair trial. The main question centers around the conduct of the trial judge, toward the prospective and chosen jurors, in taking precautions against the effect of the publicity, both before and during the trial.

Petitioner's defense at trial was entrapment. Thus, the issue presented to the jury turned on the question of whose version of the transaction was to be believed — petitioner's or the Government's chief witness. The jury returned a verdict of not guilty on the bribery count and guilty on the other two counts. Petitioner has served the two concurrent five-year sentences imposed by the district court and his parole expired on October 20, 1966.

Since the existence of prejudicial publicity both before and during the trial present different legal issues, we shall discuss each separately.

I. PRETRIAL PUBLICITY

The pretrial publicity consisted mainly of twenty-four different articles in Milwaukee's two major newspapers, which appeared on sixteen separate days on either the front page or the "second front page."² The combined circulation of these two newspapers reaches the great majority of households in Milwaukee County, where the trial was held. Comparable radio and television coverage is also alleged by petitioner.

Petitioner contends that most of the newspaper articles were harmful to him, that many were inaccurate, and that Government officials assisted the press in obtaining the information used in the articles. Perhaps the primary example of prejudicial pre-trial publicity cited by petitioner is contained in two articles which concerned a letter, made public by the judge who was the object of the attempted bribe, praising the informer who, according to the judge, "unwittingly and innocently became the vehicle for the alleged attempt by Dr. Milton Margoles to bribe" the judge. This article and the letter on which it was based, petitioner claims, destroyed the defense of entrapment, which was petitioner's only defense presented at trial.

Petitioner's counsel did not move for a continuance on the basis of the publicity, although a continuance was requested on other grounds. The trial court, however, began its handling of the case on the assumption that there was possible prejudicial publicity. Although most of the newspaper articles appeared some time before the trial began, the response of some of the veniremen indicated that the publicity surrounding this case was in fact known to at least some of the prospective jurors. Assuming for purposes of this opinion that prejudicial publicity was present, the question before us is whether the procedures employed by the trial court adequately protected petitioner's right to a fair trial.

Petitioner contends that the district court "did virtually nothing to safeguard the accused's constitutional right to have his guilt or innocence determined by an unbiased jury." We strongly disagree. The record discloses that the trial court thoroughly instructed and questioned the jurors on the effect of the publicity. During the voir dire examination, the court began by stating:

"It may be that you have read in the newspapers, or heard on the radio, or perhaps even on television, about this that we are now starting; or learned something about it through conversation with other people. If you have, as a result of such newspaper reports, radio or television broadcasts, or conversations with others * * * formed any opinion or expressed any opinion whatsoever regarding the guilt or innocence of the defendant, you should so indicate. In other words, I will put this question again to you: If, as the result of newspaper reports, radio or television broadcasts, or conversations with others, you * * * formed any opinion or expressed any opinion whatsoever regarding the guilt or innocence of the defendant, Milton Margoles, you should so indicate. * * * I am not indicating by that question that you are disqualified if you formed any opinion with regard to the guilt or innocence of the defendant as a result of what you may have read or heard about this case. I am only asking now whether or not you have formed or expressed any opinion on the subject matter."

After further explanation by the court, some veniremen responded that they had read about the case. All but one of these were ultimately excused from jury duty. That one, Mr. Dix, was examined by the court and later by defense counsel. The following dialogue took place between the court and Mr. Dix:

"The Court: In other words, you wouldn\'t let any views you have heretofore had in your mind about this case — you would not permit that to interfere with your fairness and your impartiality as a juror?

* * * * * *

Mr. Dix: I think so.

* * * * * *

The Court: Regardless of what you may have read?

Mr. Dix: Yes.

The Court: What you thought, or the reactions which you had from the newspaper reports, or any information you got about this case, you could remove that and decide this case on the basis of the evidence and the law that you hear in the courtroom?

Mr. Dix: Yes.

The Court: Any question about it in your mind?

Mr. Dix: No."

There then followed more extensive instructions and questions by the court, including a strong, thorough statement on the presumption of innocence. Similar statements were later made by defense counsel. From the responses given by some of the veniremen, there does not appear to have been any hesitance on their part to answer frankly and candidly. Indeed, both the court and counsel commendably created an atmosphere conducive to honest admissions by the jurors. Those who admitted that they had formed a prejudicial opinion about the case were excused and defense counsel voiced no objection to either the method of examination or to the jurors who were finally selected.

We hold that the procedures employed by the district court at the voir dire examination of prospective jurors were adequate to safeguard petitioner against the effect of prejudicial pre-trial publicity, protected his right to a fair trial, and met the standards set by the Supreme Court and by this Court in dealing with similar cases.

In Irvin v. Doud, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court, in a case involving prejudicial pre-trial publicity, set out the applicable standards:

"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. Spies v. People of State of Illinois, 123 U.S. 131 8 S.Ct. 21, 31 L.Ed. 80; Holt v. United States, 218 U.S. 245 31 S.Ct. 2, 54 L.Ed. 1021; Reynolds v. United States, supra 98 U.S. 145, 25 L.Ed. 244.

"The adoption of such a rule, however, cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner\'s life or liberty without due process of law. Lisenba v. People of State of California, 314 U.S. 219, 236 62 S.Ct. 280, 290, 86 L.Ed. 166. As stated in Reynolds, the test is `whether the nature and strength of the opinion formed are such as in law necessarily * * * raise the presumption of partiality. The question thus presented is one of mixed law and fact * * *.\' At page 156 of 98 U.S.. `The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside * * *. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.\' At page 157 of 98 U.S.. As was stated in Brown v. Allen, 344 U.S. 443, 507 73 S.Ct. 397, 446, 97 L.Ed. 469, the `so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.\' It was, therefore,

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