U.S. v. Blanton

• Decision Date: 07 April 1983
• Docket Number: Nos. 81-5643,s. 81-5643
• Citation: 700 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard Ray BLANTON (81-5644), Clyde Edward Hood, Jr. (81-5645), James M. Allen (81-5643), Defendants-Appellants. to 81-5645.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 298

700 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Ray BLANTON (81-5644), Clyde Edward Hood, Jr (81-5645), James M. Allen (81-5643), Defendants-Appellants.

Nos. 81-5643 to 81-5645.

United States Court of Appeals Sixth Circuit.

Argued Oct. 7, 1982.

Decided Feb. 11, 1983.

Rehearing En Banc Granted April 7, 1983.

Joe B. Brown, U.S. Atty., Aleta Arthur, John Philip Williams, Asst. U.S. Attys., Nashville, Tenn., for plaintiff-appellee.

Tyree B. Harris, Dodson, Harris, Robinson & Aden, Nashville, Tenn., for defendant-appellant Allen.

John S. McLellan, Kingsport, Tenn., John S. McLellan, III, Kingsport, Tenn., Neal P. Rutledge, Washington, D.C., for defendant-appellant Blanton.

William R. Willis, Jr., Robert L. Delaney, Alfred Knight, Nashville, Tenn., for defendant-appellant Hood.

Before ENGEL, and KEITH, Circuit Judges and GIBSON, ^* Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Defendants appeal their convictions for acts relating to the issuance of retail liquor licenses in Tennessee during the administration of the former governor of Tennessee, defendant Leonard Ray Blanton.

I. Facts

The three defendants are Blanton, who served as governor of Tennessee from January, 1975 to January, 1979, James M. Allen, who was a special consultant to the governor for the first six months of the Blanton administration and had served as Blanton's campaign manager, and Clyde Edward Hood, who was a special assistant to the governor from January, 1975 to November, 1977. Defendants were charged on October 29, 1980, in a twelve-count indictment with eight counts of mail fraud, (18 U.S.C. Secs. 2, 1341 (1976)), one count of violating the Hobbs Act (18 U.S.C. Secs. 2, 1951 (1976)), and one count of conspiracy (18 U.S.C. Sec. 371 (1976)). Blanton alone was charged with two counts of tax evasion and filing a false tax return. (26 U.S.C. Secs. 7201, 7206(1) (1976)). On March 12, 1981, a superseding indictment was issued adding one mail fraud count. The tax counts against Blanton were severed. The essence of the charges was that defendants used their positions to see that friends of Blanton would receive retail liquor licenses from the Tennessee Alcoholic Beverage Commission (ABC) and that one person paid Blanton for receipt of his license.

The most important evidence against defendants was the videotaped deposition of Jack Ham. Ham was an immunized witness who was the recipient of a liquor license during Blanton's tenure and who allegedly agreed to give Blanton a cut of the profits in violation of state law. Ham had contributed $1,000 to the Blanton campaign.

Blanton's role in the scheme allegedly was that he directed that liquor licenses be awarded to political friends or persons like Ham who offered a cut of the profits. He allegedly accomplished this by appointing two of the three commissioners of the ABC, including the chairman, S.J. King, and the commission was therefore able to appoint Blanton allies as director and assistant director of the ABC. Blanton allegedly agreed to an illegal twenty percent cut of the profits of Ham's liquor store, with the payment coming in the form of Ham's purchase of allegedly worthless oil stock from Blanton for $23,000. ¹ (This method of payment resulted in tax savings to Ham.) Blanton also allegedly approved a transfer of Ham's liquor license to a more lucrative location.

Allen was alleged to have been in charge of determining the awarding of liquor licenses even though he had no position at the ABC. He allegedly helped set up an illegal ownership of a liquor store involving the ABC chairman and he attempted to acquire a concealed interest in a liquor store under the guise of a lucrative consulting contract (only one payment was made under the contract). He allegedly was responsible for hiring a new ABC assistant director to help control the ABC even though Allen was not even a state employee at the time, and he instructed the assistant director to recommend the transfer of Ham's license to a better location and recommend against the transfer of other persons' licenses to that area.

Hood allegedly planned to acquire an interest in two liquor stores in contravention of various state laws and he received a share of the profits of some of the newly licensed liquor stores. He allegedly told the director of the ABC who Blanton's friends were so that the director would recommend to the ABC that those persons receive licenses. He allegedly helped accomplish the transfer of Ham's license by talking to ABC chairman King and by suggesting a particular person as the assistant director who would persuade the other Blanton appointee on the commission. Finally, he allegedly suggested that Ham pay Blanton's share of the profits by buying the worthless oil stock (although he later advised against the purchase).

The scheme violated Tennessee's laws against an ABC commissioner having an interest in a liquor store, ² public officials having an interest in a liquor store, ³ undisclosed interests in liquor stores, ⁴ and bribing of public officials. ⁵ The federal charge was that the acts (1) constituted a conspiracy to defraud the United States by use of the mails in furtherance of defendants' scheme to violate Tennessee law (18 U.S.C. Sec. 371), (2) when coupled with mailings, constituted mail fraud by defrauding the citizens of Tennessee of the honest services of their government officials (18 U.S.C. Secs. 2, 1341), and (3) violated the Hobbs Act (interference with commerce by threats or violence) (18 U.S.C. Secs. 2, 1951).

The testimony of the chief prosecution witness, Jack Ham, was videotaped pursuant to Fed.R.Crim.P. 15(a) because of Ham's poor health. The videotape was edited and played for the jury at the trial. The government obtained Ham's testimony offering him immunity from federal prosecution and civil tax liability, and the state agreed not to prosecute Ham. The ABC agreed that it would not revoke Ham's lucrative liquor license on the basis of truthful statements he made in judicial proceedings.

The trial was preceded by massive publicity about the case in Nashville, Tennessee, and throughout the state, as one would expect in the trial of a former governor. The record contains over 240 articles from Nashville newspapers adverse to defendants. There are approximately 160 articles which appeared in the six months preceding the trial about the instant prosecution, the prosecution of Blanton's brother, and the prosecution of former Blanton aides. ⁶ There are more than seventy-five other articles which appeared while Blanton was governor concerning his administration. ⁷ There are another twenty-two articles on the deposition of Jack Ham, the last of which appeared four months before the beginning of the trial. ⁸ A large part of the original indictment was published verbatim in the Nashville newspapers. There was also an offer of proof concerning the testimony of news directors of three Nashville television stations about the pretrial publicity. There can be no doubt that there was an extraordinary amount of pretrial publicity concerning this case and other cases involving officials of the Blanton administration and some of Blanton's relatives.

Jury selection began on April 20, 1981. Testimony in the case began on April 22, 1981, and was concluded on May 29, 1981. Closing arguments and jury instructions were completed on June 2, 1981. The court dismissed three mail fraud counts and the Hobbs Act count as to Allen. The jury deliberated until June 9, 1981, and found Blanton guilty on all eleven counts. It found Allen guilty on all the counts the court had not dismissed (six mail fraud counts and one conspiracy count). It found Hood guilty on six mail fraud counts and the conspiracy count, but it found him not guilty on the other three mail fraud counts and the Hobbs Act count. Blanton was sentenced to three years and fined $11,000. Allen was sentenced to two years and fined $14,000. Hood was sentenced to eighteen months and fined $14,000.

II. Adequacy of Voir Dire

The most difficult issue concerns the adequacy of the voir dire on the subject of pretrial publicity.

A. Conduct of the Voir Dire.

The trial court conducted the voir dire en masse. It seated a group of veniremen in the jury box and directed questions at that group, but instructed the rest of the veniremen in the courtroom to listen to and pay attention to the questions as the questions would apply equally to all those selected. During the course of the voir dire the trial court pointed out that the case had been the subject of considerable media attention. It commented that it was sure that all the veniremen had heard about the case, and that some of them may have formed a tentative opinion concerning the probable guilt or innocence of the defendants: The court then said to the veniremen:

[T]he test is, will you be able to put from your minds whatever you may have seen and heard, and any opinion which you may have tentatively reached, and then to decide this case solely on the facts as you determine them to be, on the sole basis of the evidence which will be adduced in this trial after application of the appropriate law?

One juror was excused because she indicated she could not be impartial. As new veniremen entered the jury box to replace the ones who were excused for whatever reason, the trial court would ask them essentially the same question on pretrial publicity. It usually said it wanted to "particularly emphasize" the point. Out of ninety-two veniremen examined, a total of thirteen were excused because they indicated they had an opinion or prejudice they could not put aside. Of these thirteen, four linked their prejudice to pretrial publicity. Seven of these thirteen were excused when they said they had an opinion, without the court inquiring into the nature or strength of the opinion or whether it could be put aside. Twenty-nine other veniremen were excused for cause for...