U.S. v. O'Keefe

• Decision Date: 22 December 1983
• Docket Number: No. 83-3174,83-3174
• Citation: 722 F.2d 1175
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael H. O'KEEFE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1175

722 F.2d 1175

UNITED STATES of America, Plaintiff-Appellee, v. Michael H. O'KEEFE, Defendant-Appellant.

No. 83-3174.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1983.

Rehearing Denied Feb. 3, 1984.

Camille F. Gravel, Jr., Helen G. Roberts, Alexandria, La., Miller, Cassidy, Larroca & Lewin, Wm. H. Jeffress, Jr., Randall J. Turk, Washington, D.C., for defendant-appellant.

John P. Volz, U.S. Atty., Fredericka L. Homberg Jr., Robert J. Boitmann, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE and GARWOOD, Circuit Judges, and EAST ^*, District Judge.

GEE, Circuit Judge:

Defendant Michael O'Keefe was convicted by a jury of one count of mail fraud and two counts of obstruction of justice. On appeal, he claims (1) that the jury was impermissibly prejudiced by information concerning an earlier trial and conviction (2) that the district court's denial of a change of venue deprived him of a fair trial, and (3) that the evidence was insufficient to support any of the three counts. Finding no merit in these contentions, we affirm O'Keefe's conviction.

I.

In 1981, O'Keefe was a general partner in the Bridgeman-O'Keefe-Miranne Metairie Towers Partnership, 20 percent of which was owned by limited partners. The principal asset of this partnership was the Metairie Towers Apartment Building. In the fall of that year, the building was purchased by Apartment Housing Corporation, a company owned by David Burrus and Darryl Berger. In the negotiations for that sale, O'Keefe was the chief negotiator for the partnership.

On the date of the closing, Berger gave to O'Keefe a check for $900,000 made payable to Willows, Inc., a corporation in which O'Keefe had a controlling interest. The words "Demand Loan" were written on the check, and O'Keefe had always referred to the $900,000 as a "loan." Berger and Burrus always considered the $900,000 to be part of the purchase price of the building, however none of the sales or closing documents contained any reference to the $900,000 payment. This $900,000 was not shared with the limited partners, who did not even learn of it until several months after the sale of the building.

In July 1982, a jury convicted defendant of mail fraud and two counts of obstruction of justice. The district court granted defendant's motion for a new trial based upon the prejudicial misconduct of counsel for the government in his rebuttal argument. In February 1983, a second jury again convicted defendant on all three counts.

II.

Defendant maintains that a new trial should be granted because extraneous information was injected into the jury's deliberations. This claim is based on a news story, broadcast on a local news station two weeks after the jury returned its verdict, which suggested that one or more of the jurors in the case had known that a guilty verdict was returned in the first trial. At an in camera evidentiary hearing, the trial judge questioned each of the 12 jurors about the possibility of outside influence on their deliberations.

That hearing revealed knowledge by some jurors of a publicized remark that O'Keefe had made concerning the jury in his first trial. On the day after his first conviction, O'Keefe remarked to reporters that he did not feel that the jury was representative of his peers because it consisted largely of "housewives who did not have high school educations" and who "would have had a hard time grasping the situation." At the in camera hearing, seven jurors remembered hearing this "housewives" comment repeated by another juror. Four jurors, including the juror who admitted repeating O'Keefe's remark, testified that the juror's comment was made after the deliberations had ended. Two jurors stated that the comment was made during deliberations. One juror believed that O'Keefe's "housewives" comment was mentioned by a witness during the trial.

The district judge found as facts that:

(1) One juror, Mrs. Bell, made a comment referring to the "housewives" statement after a verdict had been reached and the jury had returned to the jury room.

(2) Mrs. Bell learned of defendant's remark during the course of the trial when she overheard a comment on the streetcar.

(3) Over the course of the trial and the deliberations no juror knew that defendant had been convicted in his previous trial.

The court then denied O'Keefe's motion for a new trial. ¹

In any trial, there is initially a presumption of jury impartiality. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444, U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). Prejudice may be shown by evidence that extrinsic factual matter tainted the jury's deliberations. Id. Thus, an adequate demonstration of extrinsic influence upon the jury overcomes the presumption of jury impartiality and shifts the burden to the government to demonstrate that the influence demonstrated was not prejudicial. United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975). 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 defendant if members of the jury are exposed to it. United States v. Attell, 655 F.2d 703, 705 (5th Cir.1981).

The trial judge specifically found that the "housewives" statement was made after the verdict had been reached. Such a factual determination is not reviewable unless wholly unsupported by the evidence. United States v. Granza, 427 F.2d 184, 185 (5th Cir.1970). This finding of fact is clearly supported by the evidence. The majority of jurors who heard the comment believed it was made after the verdict. The testimony of the two jurors who believed that the comment was made during deliberations was confused and unclear. Indeed, the trial judge specifically found that the testimony of the "after-verdict" jurors was more credible than the two "during-deliberations" jurors. Finally, in that all seven jurors testified that the statement was made only once in front of all the jurors, there is no reason to believe that the statement was made more than once.

O'Keefe argues that Mrs. Bell's knowledge of the "housewives" comment warrants reversal because Mrs. Bell could have inferred from the comment that defendant was found guilty in the first trial and moreover because the statement insulted housewives and the former jury. The trial court, 560 F.Supp. 420, specifically found, however, that Mrs. Bell did not infer that O'Keefe was found guilty in the first trial. In addition, while Mrs. Bell testified that she overheard the "housewives" comment while on the streetcar, she never stated that she knew that it was O'Keefe who had made the statement. ² Finally, the "housewives" comment was simply not sufficiently "insulting" to constitute prejudice. See, e.g., Goins v. McKeen, 605 F.2d 947, 953 (6th Cir.1979) (the newspaper article at issue contained information "which was both inadmissible and strongly probative of guilt"). An appellate court should accord great weight to the trial court's finding that the evidence in no way interfered with any juror's decision. United States v. Bagnariol, 665 F.2d 877, 887-88 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Consequently, the district court correctly refused to grant a new trial.

III.

O'Keefe next contends that the district court erred in denying his motion for change of venue in that the newspaper, radio and television reports of his first trial saturated the community with prejudicial pretrial publicity.

A defendant is entitled to "a fair trial by an impartial jury which will render its verdict based upon the evidence and arguments presented in court without being influenced by outside, irrelevant sources." United States v. Chagra, 669 F.2d 241, 249 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982). Exposure to pretrial publicity does not, however, automatically render a juror unfit to serve. Id. In order to obtain a reversal of his conviction because of pretrial publicity, a defendant must show that a juror was actually prejudiced by it. United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980).

Prejudice will be presumed when the defendant produces evidence of pervasive community prejudice in the form of highly inflammatory publicity or intensive media coverage. Id. at 1090. This presumption is rebuttable, however, and the government may demonstrate from the voir dire that an impartial jury was actually impanelled in an appellant's case. Chagra, 669 F.2d at 250. If the government succeeds in doing so, the conviction will stand despite appellant's showing of adverse pretrial publicity. Id.

O'Keefe has not demonstrated actual prejudice. Proof of actual prejudice is normally made by reliance upon the jurors' voir dire responses. Id. At voir dire, each juror stated that he or she did not know the result of the former proceedings. The jurors also stated that they could not think of anything that might affect their ability to give both sides a fair trial. While some jurors had heard or read something about the case, mere awareness of the allegations or facts to be presented does not constitute prejudice. United States v. Dozier, 672 F.2d 531, 546 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982).

O'Keefe has also failed to show pervasive community prejudice to establish a presumption of juror prejudice. The principle of presumptive juror prejudice is only rarely applicable. Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981). It has generally been applied only in cases "wherein the press saturated the community with sensationalized accounts of the crime and court proceedings, and was...