U.S. v. Attell, 80-1897

• Decision Date: 11 September 1981
• Docket Number: No. 80-1897,80-1897
• Citation: 655 F.2d 703
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas M. ATTELL, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 703

655 F.2d 703

UNITED STATES of America, Plaintiff-Appellee, v. Thomas M. ATTELL, Defendant-Appellant.

No. 80-1897.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 11, 1981.

Charles Louis Roberts, El Paso, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

On March 30, 1979, Defendant-Appellant Thomas M. Attell was indicted for conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 846, and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following a jury trial in June 1979, Attell was convicted of possession of cocaine with intent to distribute and of conspiracy to possess cocaine, a lesser included offense of the original charge of conspiracy to possess with intent to distribute. This conviction was reversed on appeal. ¹ Attell's second trial occurred in July, 1980; he was again convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and was sentenced to two years imprisonment to be followed by a ten-year special parole term. On appeal from this second conviction, Attell argues that the trial court erred in refusing to give certain instructions dealing with the defense of entrapment which were requested by Attell's counsel and in refusing to poll the jury regarding the possible prejudicial effect of certain newspaper and television news reports concerning Attell's previous trial which were broadcast and published during Attell's second trial. Finding that the trial court here failed to follow the teachings of United States v. Williams, 568 F.2d 464 (5th Cir. 1978), and United States v. Herring, 568 F.2d 1099 (5th Cir. 1978), we again reverse Attell's conviction.

Attell's second trial began on July 22, 1980; on the morning of July 23, before the jury returned to the jury box and testimony resumed, Attell's counsel informed the court that there was an article in the morning newspaper concerning the trial and that a television news story, broadcast the previous evening, had referred to Attell's previous trial and conviction on the same charges. ² A tape of the television news broadcast was included in the record; in relevant part, the story reported that:

Tom Attel (sic) of El Paso's Attel Produce company is getting his second day in Court for a cocaine conspiracy charge. Attel was convicted a year ago for possession and intent to distribute the drug. The Court of Criminal Appeals granted him a new trial because of the admission of some hearsay evidence of a Government witness. Testimony in this trial will be basically the same except that Attel has traded in Attorney Blu Sanders for Jack Luscombe and Wayne Windle. The Government's side is supported by the testimony of a Drug Enforcement Agent who met with Attel as an undercover dealer in August of 1978.

In United States v. Herring, supra, we set forth a sequential inquiry for the trial judge to employ when publicity relating in some way to the proceedings is disseminated during trial and brought to the court's attention. In a criminal proceeding, the first step is for the trial court to examine the material and inquire whether it creates a significant risk of possible prejudice to the defendant. Although, as we emphasized in Herring, this inquiry is often a complex one, requiring the trial court to weigh factors such as the nature of the defenses asserted, the possible effect of the publicity on any of these defenses and the timing of the publicity, United States v. Williams, supra, teaches that publicity which includes information that the defendant was convicted of the same charge at an earlier trial is a type of publicity which inherently poses a substantial risk of prejudice to a defendant if members of the jury are exposed to it. "Indeed, we are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged." Williams at 471.

The publicity involved here is strikingly similar to that in Williams. The television news story involved here reported that the defendant had previously been convicted of the offenses charged but that a new trial had been ordered because of the erroneous admission of hearsay at the first trial. As we noted in Williams, where a news report had stated that a new trial had been ordered because of "erroneous testimony," Williams at 470, this type of statement could easily suggest to a layman that the defendant had "got off on a technicality." Id.

The only difference between Williams and this case is that in Williams the trial court polled the jury and it was established that several jurors had in fact seen the news reports and learned of the defendant's prior conviction. Despite the highly prejudicial nature of the publicity involved, the trial judge in this case denied defense counsel's request for a poll which would have revealed whether any of the jurors had heard or read the news reports. In this respect, the case is similar to Herring, supra, where the trial court declined to poll the jury concerning their exposure to news reports of threats against a prosecution witness. Although in the absence of a poll, it is impossible to determine whether the jurors were actually exposed to news reports containing references to Attell's first trial, here, as in Herring, supra, we would have to speculate to conclude that no juror had seen or heard these accounts and therefore that Attell had not been prejudiced. Herring cautions against indulging in any such speculation. "In the interests of justice, we must give the defendant the benefit of the doubt in this connection." Herring, at 1106. Therefore, the proper exercise of our supervisory powers requires that the conviction be reversed. ³

On appeal, Attell also challenges the propriety of the trial court's refusal to give the jury instructions defining the term "agent" in connection with Attell's entrapment defense. Apparently, the trial court gave similar instructions to the jury at Attell's first and second trials. Attell raised this argument on his first appeal; however, we declined to consider it then because it was not necessary to our decision. Although our disposition of this second appeal also makes it unnecessary for us to determine whether the court's refusal to give this instruction was reversible error, nevertheless, in the interest of expediting the conclusion of this already protracted prosecution, we shall address the propriety of the requested instruction here.

Attell's entrapment defense hinged on the activities of George Smith. Attell testified that Smith had harassed him for a period of several months in an attempt to force Attell to furnish Smith with drugs and to sell drugs to some "big guys" who wanted to purchase a large quantity of cocaine. Attell stated that Smith's harassment made him fear for the safety of his family and intimidated him into doing an act he would not otherwise have done. Attell testified that it was Smith who scheduled and arranged the meetings...