U.S. v. Harrelson, 83-1199

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation754 F.2d 1153
Docket NumberNo. 83-1199,83-1199
Parties17 Fed. R. Evid. Serv. 738 UNITED STATES of America, Plaintiff-Appellee, v. Jo Ann HARRELSON, Charles Voyed Harrelson and Elizabeth Nichols Chagra, Defendants-Appellants.
Decision Date15 February 1985

Charles Campion, San Antonio, Tex., for J. Harrelson.

Thomas G. Sharpe, Jr., Brownsville, Tex., for C. Harrelson.

Charles V. Harrelson, pro se.

Warren Burnett, Larry Zinn, Galveston, Tex., for E. Chagra.

Edward C. Prado, U.S. Atty., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for the U.S.

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

Before GEE, REAVLEY and DAVIS, Circuit Judges.

GEE, Circuit Judge:

This appeal draws before us, on a massive record, the claims for reversal by three appellants of their convictions of felony arising from the murder of United States District Judge John Wood. Several points are common to all appeals and are jointly briefed; others are peculiar to each of the several appeals. We commence our discussion with the former. Before doing so, however, a brief and general statement of background facts is appropriate; others will be noted where material to particular contentions made.

Factual Background

In late May of 1979, Judge Wood was instantly killed by a dumdum bullet fired into his back from a six millimeter rifle capable of extremely high velocity. He was shot while entering his automobile at his townhouse residence in north San Antonio, preparatory to driving to work at the courthouse downtown. Witnesses placed appellant Charles Harrelson at the townhouse complex that morning; further investigation indicated that Judge Wood's murder by Harrelson was arranged by appellant Jamiel Chagra, a gambler and narcotics dealer under indictment for drug offenses, who was to be tried before Judge Wood and who feared his reputation for imposing severe sentences in drug cases.

Other evidence, construed favorably to the guilty verdicts, implicated Chagra's brother Joseph, then a licensed attorney, in the plot. Joseph Chagra turned state's evidence and testified against the present appellants, though not against his brother. Also implicated by Joseph's testimony and other evidence were Jamiel Chagra's wife, Elizabeth, as well as Harrelson's wife, Jo Ann, who procured the murder weapon and assisted in its disposition. Implicated as well was Teresa Starr, the daughter of Jo Ann Harrelson, who traveled to Las Vegas--then the residence of the Chagra appellants--and took delivery of the blood money from Elizabeth Chagra. After initial recalcitrance, Starr also turned state's evidence.

Charles Harrelson, the Chagras, and brother Joseph were charged with conspiring to murder Judge Wood on account of the performance of his duties. 18 United States Code Sec. 1117. Harrelson and Jamiel Chagra were charged with the murder itself, in violation of 18 United States Code Secs. 1111 and 1114. All were charged with conspiracy to obstruct justice in violation of 18 United States Code Secs. 371 and 1503. The Chagra males were also charged with conspiring to possess a large quantity of marijuana, in violation of 21 United States Code Sec. 841(a)(1). Elizabeth Chagra and the Harrelsons were tried together and convicted on all charges. This is their appeal from those convictions.

Jamiel Chagra was separately tried and convicted of conspiracy to obstruct justice and the drug charge, but acquitted of the murder and conspiracy to murder. 1 Jo Ann Harrelson was separately tried on related perjury charges. United States v. Harrelson, 754 F.2d 1182 (5th Cir.1985). Jamiel and Elizabeth Chagra were separately convicted of criminal tax charges. United States v. Chagra, 754 F.2d 1181 (5th Cir.1985). We affirm these convictions in separate opinions today. We likewise affirm all convictions on the instant appeal save that of Elizabeth Chagra for conspiracy to murder in violation of 18 United States Code Sec. 1117, which we reverse for reasons to be assigned.

Joint Contentions
1. Denial of Venue Change

Among the contentions common to all three appeals and jointly briefed is a complaint that the trial court abused its discretion in denying a change of venue sought on the basis of prejudicial pretrial publicity. Such a change is required "if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial...." Fed.R.Crim.P. Rule 21. As the words of the rule imply, that decision is one committed to the sound discretion of the trial court. United States v. Nix, 465 F.2d 90 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972). Much has already been written on this subject, both by the Supreme Court and by us, 2 the principles governing such decisions are well settled, and there is scant need for us to address the subject generally or to approach it along the avenue of first principles. We therefore turn directly to the appellants' specific claims of error.

A. Community Saturation

Appellants first contend that prejudicial pretrial publicity so saturated the venire from which came their jurors as to preclude the empanelling of an impartial jury, seeking to draw their situation within the ambit of such decisions as Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (half of Louisiana parish from which venire was drawn had viewed defendant's televised confession to brutal crime).

We have recently had occasion to address such a contention in a case connected to this one:

[A]n appellant can demonstrate that prejudicial, inflammatory publicity about his case so saturated the community from which his jury was drawn as to render it virtually impossible to obtain an impartial jury. Murphy v. Florida, supra, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Mayola v. Alabama, supra, 623 F.2d at 996-97 [5th Cir.1980]. Proof of such poisonous publicity raises a presumption that appellant's jury was prejudiced, relieving him of the obligation to establish actual prejudice by a juror in his case. Mayola v. Alabama, supra, 623 F.2d at 997. This presumption is rebuttable, however, and the government may demonstrate from the voir dire that an impartial jury was actually impanelled in appellant's case. Id. at 1000-01. If the government succeeds in doing so, the conviction will stand despite appellant's showing of adverse pretrial publicity. Id. at 1001.

United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982).

Assuming, as we do for purposes of analysis, that such community saturation existed here, we have carefully examined the voir dire conducted by the court of the twelve jurors and two alternates. The examination of the venire was searching and sensitive, covering seven court days and more than two thousand pages of transcript. In its course, the court thoroughly and correctly instructed the prospective jurors on their responsibilities should they be selected as jurors and inquired of each, on an individual basis, whether any pretrial publicity had come to his attention and its specific source. Additional and separate, individual inquiries concerned whether the venireman had formed any opinions regarding the guilt or innocence of any appellant, whether any verdict that he might return would be based solely on what he heard in court, whether he had any prior connection with federal court or the criminal law, and the like. Counsel frequently posed additional inquiries through the court.

Some of those who were seated on the jury had little or no prior knowledge of the case. 3 Others indicated a casual acquaintance with publicity in the case. 4 None had extensive knowledge or recollection of media reportage of the matter. We have carefully studied the voir dire examination of each juror and alternate. That examination convinces us that the trial judge was warranted in concluding that the jury he actually empanelled was impartial.

B. Failure to Discover Prejudice

Appellants next contend that the court's questioning of the venire was too cursory to ferret out prejudice, relying on the last method for obtaining reversal on the basis of pretrial publicity noted in Chagra:

Finally, an appellant can establish both that pretrial publicity about his case raised "a significant possibility of prejudice," United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978), and that the voir dire procedure followed by the district court in his case failed to provide a " 'reasonable assurance that prejudice would be discovered if present.' " United States v. Hawkins, supra, 658 F.2d at 283 [5th Cir.1981] (citations omitted). But, "[b]ecause the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). See also United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Therefore, the district court's decision to employ a particular procedure will not be lightly overturned. United States v. Hawkins, supra, 658 F.2d at 283 (citation omitted).

United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982).

We reject this contention. Assuming "a significant possibility of prejudice," we are satisfied, for the reasons stated above, that the procedures followed by the careful trial court provided reasonable assurance that prejudice, if present, would have been discovered.

2. Other Contentions

Appellants make two additional points under this head. The first is that of a supposed failure by the trial...

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