U.S. v. Parker

• Decision Date: 29 June 1989
• Docket Number: No. 88-1524,88-1524
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 327

877 F.2d 327

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne PARKER, Defendant-Appellant.

No. 88-1524.

United States Court of Appeals Fifth Circuit.

June 29, 1989.

Thomas S. Morgan, Midland, Tex. (Court-appointed), for defendant-appellant.

Wayne F. Speck, LeRoy M. Jahn, Michael R. Hardy, Asst. U.S. Attys., Helen S. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, JOHNSON, and DUHE, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant Kenneth Wayne Parker appeals his conviction of two counts of conspiracy. We have examined Parker's asserted grounds for reversal, and, finding them unavailing, affirm.

I. FACTS AND PROCEDURAL HISTORY

Parker was indicted in January 1988 and charged with conspiracy to abduct Susan Lindsey forcibly and cause her to be transported in foreign commerce for purposes of prostitution (Count One) and conspiracy to abduct June Gilkerson forcibly and cause her to be transported in foreign commerce for purposes of prostitution (Court Two), both in violation of 18 U.S.C. Sec. 1201(c).

At trial, the principal evidence against Parker was supplied by co-conspirator David Alderink. Prior to the alleged offenses, Alderink, a probationer, was assigned to perform community service work at the public library in Midland, Texas, where Parker was employed as a maintenance man. The men conversed frequently, and often the conversations focused on selling women into prostitution. These conversations eventually evolved into a plot against a specific woman. Alderink maintained a grudge against Susan Lindsey, the wife of a friend, because Susan Lindsey had previously implicated Alderink in connection with a stolen check. Parker suggested that Alderink could get revenge by abducting Susan Lindsey and selling her into "white slavery". Alderink agreed.

On November 7, 1986, a state district judge entered an order releasing Alderink from custody and transferring supervision of his probated term to the State of Michigan. Alderink, his father, and June Gilkerson, a volunteer at the Midland County "Restitution Center," a halfway house where Alderink resided, were present at this hearing. At this time, June Gilkerson was having an affair with Alderink.

Following Alderink's release from custody, he and Parker traveled to Rockdale, where Susan Lindsey resided. They found the apartment complex where Lindsey resided but called off the plan when they were unable to ascertain which unit was rented by Lindsey. On the return drive to Midland, Parker suggested abducting June Gilkerson in lieu of Susan Lindsey; Alderink agreed.

The following morning Alderink phoned June Gilkerson and asked her to meet him. June Gilkerson told her grandmother that she was going to assist a probationer who was being released. When June Gilkerson arrived for her meeting with Alderink, he entered her car and drove to an agreed point where he asserted he wanted to tell a friend good-bye. Alderink exited June Gilkerson's vehicle, and Parker entered it on the driver's side. He handcuffed Gilkerson, taped her eyes and mouth, placed a sleeping bag over her, and put her in the back of his pick-up. Alderink drove June Gilkerson's vehicle to the motel where his father was staying, and they left for Michigan. Gilkerson's car, purse, shoes, notebook, and car keys were found that night at Alderink's motel. Parker's fingerprints were found on the roof of the car just above the driver's door.

Initially, the police investigation focused on Alderink. They telephoned him, and questioned him on numerous occasions. Two exculpatory statements regarding his whereabouts on November 7, 1986, proved false. In his third exculpatory statement, Alderink asserted that he was with Parker in Austin, Texas, that night. Police questioned Parker about this. Parker denied seeing Alderink and gave what proved to be a false statement, that he was in "Boystown," Mexico. Subsequently, the police arranged a confrontation between Parker and Alderink during which Alderink was equipped with a recording device; Parker at this time held up a note for Alderink to read that stated June Gilkerson had been cremated. Alderink subsequently pleaded guilty in state court to a charge of kidnapping June Gilkerson and received a twenty year term of imprisonment contingent upon testifying against Parker. Parker was convicted on both counts in the instant case and received two consecutive life sentences. Timely appeal followed.

II. DISCUSSION

Parker has directed this Court's attention to a variety of alleged errors which he asserts warrant reversal of his convictions. We have reviewed these allegations and conclude that no reversible error has been shown. Parker's primary grounds for relief are discussed below.

A. Venue

Parker asserts that the district court erred in denying his Rule 21(a) motion to transfer venue. Federal Rule of Criminal Procedure 21(a) indicates that the district court must grant a change of venue when it 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." This rule vests substantial discretion in the district court as to the granting or denying of such a motion; in order to disturb the court's ruling on appeal, an abuse of discretion must be shown. See United States v. Noland, 495 F.2d 529 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974).

In support of his argument that the district court abused its discretion by failing to transfer venue, Parker points to the widespread coverage of June Gilkerson's disappearance and the subsequent investigation. Pervasive, adverse pretrial publicity has the potential to taint the perspective of the community from which a jury panel is selected. When the proceedings surrounding the investigation and prosecution of a particular crime are highly publicized, courts must inquire as to whether the defendant has been denied an impartial jury that will render a verdict based upon the evidence presented at trial rather than on information received from outside sources. See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

Exposure to pretrial publicity, however, does not necessarily destroy a juror's impartiality. Calley v. Callaway, 519 F.2d 184, 205-06 (5th Cir.1975) (en banc), cert. denied sub nom. Calley v. Hoffmann, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). Consequently, a change of venue should not be granted on the mere showing of widespread publicity. Id.

It is no longer necessary for a defendant to show that community prejudice permeated the jury box. Rather, as this Court indicated in 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),

an 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.... 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.

Id. (citations omitted). Parker has documented that this case received extensive pretrial publicity. However, he has not demonstrated that this publicity was in excess of the sensationalism inherent in the crime or that pervasive community prejudice resulted from this publicity. The publicity the case received prior to trial was not inflammatory, nor was it of a nature that would influence a juror's decision. Parker did not confess, he had no prior criminal record, and he was frequently referred to as a "war hero" and a "gentleman." As the Government correctly notes, because the publicity here did not involve incriminating information, it was not the type that would influence a decision by a potential juror. See also, United States v. Williams, 817 F.2d 1136, 1137 (5th Cir.1987) (on petition for rehearing) (noting that where the substance of the publicity cannot be taken as probative of guilt, a serious question of possible prejudice is not raised.)

Additionally, we feel compelled to note that even if the community was saturated with inflammatory pretrial publicity sufficient to raise a presumption of prejudice, that presumption may be rebutted. "[T]he government may demonstrate from the voir dire that an impartial jury was actually impanelled in appellant's case.... If the government succeeds in doing so, the conviction will stand despite appellant's showing of adverse pretrial publicity." United States v. Harrelson, 754 F.2d 1153, 1159 (5th Cir.1985) (citing Chagra, 669 F.2d 241, 250). In the instant case, the voir dire conducted by the district judge was sufficient to ferret out any latent prejudice.

In this case, the trial court denied Parker's motion to voir dire the veniremen individually. Additionally, the trial court refused to submit forty-six proposed questions to the prospective jurors. Parker asserts these rulings by the trial court resulted in a denial of a fair trial because juror prejudice stemming from the pretrial publicity was not adequately explored. We disagree. " '[T]he 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.' ... Therefore, the district court's decision to employ a particular procedure will not be lightly overturned." Chagra, 669 F.2d at 250. A district court does not abuse its discretion as long as it adopts procedures that create a reasonable assurance that any prejudice of the jurors will be discovered, if present. United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976).

The district...