U.S. v. Coast of Maine Lobster Co., Inc., 75-1431

• Decision Date: 25 June 1976
• Docket Number: No. 75-1431,75-1431
• Citation: 538 F.2d 899
• Parties: UNITED STATES of America, Appellee, v. COAST OF MAINE LOBSTER CO., INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 899

538 F.2d 899

UNITED STATES of America, Appellee, v. COAST OF MAINE LOBSTER CO., INC., et al., Defendants-Appellants.

No. 75-1431.

United States Court of Appeals First Circuit.

Argued March 2, 1976.

Decided May 10, 1976.

Rehearing Denied June 25, 1976.

Richard E. Valentino, Saco, Me., with whom George F. Wood and Smith, Elliott, Wood & Nelson, P. A., Saco, Me., were on brief, for defendants-appellants.

John B. Wlodkowski, Asst. U. S. Atty., Portland, Me., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee.

Richard L. Thornburgh, Asst. Atty. Gen., Crim. Div., U. S. Dept. of Justice, Washington, D. C., James N. Gabriel, U. S. Atty., District of Massachusetts, Boston, Mass., William J. Deachman, U. S. Atty., District of New Hampshire, Concord, N. H., Lincoln C. Almond, U. S. Atty., District of Rhode Island, Providence, R. I., and Julio Morales Sanchez, Atty., District of Puerto Rico, San Juan, P. R., on supplemental memorandum.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Defendants were convicted following a jury trial at Portland, Maine, on some 20 counts of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, involving false promises to ship Maine lobsters nationwide. On appeal the assigned errors all concern matters occurring during trial. Only one appears of any stature. It presents a novel and borderline question of potential prejudice arising from prominent publicity given during trial to statements of the prosecutor's immediate supervisor which, though not referring to a trial in progress, could reasonably be thought to have bearing on it. Because the hazard, being one step removed from that arising from direct comment on a case, is both so resistant to a search for proven prejudice and so easily prevented, we deem this a proper occasion for the exercise of our supervisory power, intending not so much to criticize unthinking conduct in the past as to assure more sensitive conduct in the future.

In the case at hand, defendants had been on trial for a week. The case was to go to the jury on a Monday. On the day before, a Sunday, the United States Attorney, Peter Mills, appeared on a local television broadcast, "At Issue," which had been taped the previous Thursday, the fourth day of trial. In the broadcast, an interview, he expressed his opinion, inter alia, that "(p)eople who commit so-called white collar crimes are not considered very apt candidates for much time in jail." Monday morning, the Portland Press Herald, the widely read local newspaper, carried a conspicuous headline across the top of the front page, "Mills: White Collar Criminals Get Off Easy," together with a picture of Mills. There was a byline, "United Press International." The first half of the article, appearing on the front page, was principally addressed to Mills' opinion that white collar criminals, such as those convicted of income tax evasion, received inadequate jail sentences. While expressing his "utmost respect" for the district judge, Mills felt he could properly make known his differences.

Defendant moved for a mistrial. The court thereupon inquired of the jury, collectively, in open court. It first asked if jurors had seen an article in Saturday's newspaper, not here relevant, and reminded the jurors of its instruction not to read any articles. There being no response to this query, it asked if any juror had heard the Sunday "At Issue" broadcast, and again received no response. It then inquired if any juror had seen that morning's Portland Press Herald. Again the record indicates "(No response)." The court then asked if any juror had read any article reporting on the United States Attorney's appearance on the Sunday telecast. The vice foreman acknowledged that he had read about it in the morning paper. Another juror then said that she had not read the article but had seen the picture. Further inquiry revealed that "a fair number," estimated by the court to be seven or eight, had seen the front page and the picture. At this point the court twice asked the jurors whether anyone had read the article, and whether seeing "the picture or anything else" would have any influence on them, and received no response.

So far as the jurors' collective disclaimers are concerned, the record provides no strong basis for confidence that the message of the headline had not been received. Their silent responses, given the total picture, might be thought based less upon full candor than upon a reaction to the court's reminder of their instructions not to read the newspapers. The eventual admission that seven or eight had seen the picture and the front page, which necessarily included the headline, gives us pause. We may well wonder under the circumstances how many, after seeing the head, resolutely put the paper down. Cf. Henslee v. United States, 5 Cir., 1957, 246 F.2d 190, 193, cert. denied, 359 U.S. 984, 79 S.Ct. 942, 3 L.Ed.2d 933 (reversal though no juror admitted having seen newspaper).

Our analysis of the out of court publicity in this case is aided by no precise parallel in other cases. The article made no reference to the defendants or to the pending trial. We confidently assume that this was not an occasion where a prosecutor was seeking a public forum in which to try to influence the jury's verdict. The gist of the article itself was concerned with sentencing, the judge's function. Nor are we implying that prosecutors should not have different views from those of the district judge, or express them publicly and in critical terms. Cf. Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.

Here, however, we deal with publicity over which the chief prosecutor had control both as to subject matter and timing. Cf. Henslee v. United States, ante, at 193. ("A much higher standard prevails" when prosecutor responsible for publicity.) In this case the prosecution of the defendants was the only federal criminal proceeding taking place in the district, and had been so for a week. The alleged crime was mail fraud, a white collar crime. The United States Attorney was well known to the jurors, who had been in service since January, the instant trial being held in July. The banner headline "White Collar Criminals Get Off Easy," accompanied by the picture, had the potential (a) of making a juror think of the case before him as one of a class in which there had been excessive leniency, and a challenge to exhibit appropriate toughness; (b) of perhaps increasing a juror's willingness to convict if he thought a lenient sentence might be imposed; and (c) of making a juror feel that public attention, because of the article, would be more sharply and critically directed to the ultimate verdict in the case at hand. Had a juror read the article itself, as the vice foreman at one point said he had, he might also be tempted, by the assertion of one's right to differ from the judge, not to follow faithfully the instructions. All of this is in the conjectural area of potential for prejudice. But the danger of prejudice can best be avoided if prosecutors are more sensitive to the possible impact of any public statements made by them during a trial.

The ABA Standards Relating to the Prosecution Function and the Defense Function, Approved Draft, 1971, set forth the following standards as to public statements, § 1.3: "(a) The prosecutor should not exploit his office by means of personal publicity connected with a case before trial, during trial and thereafter. (b) The prosecutor should comply with the ABA Standards on Fair Trial and Free Press." The ABA Standards Relating to Fair Trial and Free Press, Approved Draft, 1968, § 1.1, recommended that "During the trial of any criminal matter . . . no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial . . . ." (Emphasis ours.) The commentary on this section,id. at 92, reads: "The reasons for this broad prohibition on the attorney as an officer of the court should be readily apparent. His proper function at this point is to present his case in the courtroom, not to make extrajudicial statements interpreting or explaining the evidence, anticipating his own or his adversary's strategy, or attempting to build a favorable climate of opinion. Moreover, the period of trial in a case that has aroused public attention is the most critical from the standpoint of potential prejudice." See, generally, Berger v. United States, 1935 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. See also A.B.A. Code of Professional Responsibility, July 1, 1969, Final Draft, DR 7-107(D).

While "issues in the trial" and "build a favorable climate" apply most obviously to references to the concrete facts and issues of a particular case, the potential for prejudice can also be triggered by a publicized opinion on an issue, more generally expressed but likely to be associated in the public mind with the issues posed by a trial in progress. For example, a prosecutor's views on mercy killings would not likely be insulated by the absence of specific reference to an active prosecution against a doctor.

We do not hold that the article, in spite of its timing, was sufficiently prejudicial to cause the trial to be constitutionally unfair. There was no certainty, perhaps no more than a possibility, that the jury would be affected. We realize that our opinion may be construed by prosecutors as chilling their own freedom of speech and by defense counsel as a hunting license to seek out any published statements,...