U.S. v. Thompson, 89-6180

• Decision Date: 13 July 1990
• Docket Number: No. 89-6180,89-6180
• Citation: 908 F.2d 648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dan W. THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 648

908 F.2d 648

UNITED STATES of America, Plaintiff-Appellee, v. Dan W. THOMPSON, Defendant-Appellant.

No. 89-6180.

United States Court of Appeals Tenth Circuit.

July 13, 1990.

Order on Rehearing Oct. 10, 1990.

Gary E. Payne, Oklahoma City, Okl., for defendant-appellant.

William S. Price, U.S. Atty., W.D.Okl., and Thomas M. Gannon, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before McKAY, SEYMOUR, and MOORE, Circuit Judges.

McKAY, Circuit Judge.

This case involves an appeal from the district court's denial of defendant's motion for a new trial.

I. FACTS

Defendant is one of three co-defendants who allegedly defrauded the government in real estate purchases financed with mortgages insured by the Federal Housing Administration. These defendants were found guilty by jury verdict and were subsequently sentenced to twenty-eight concurrent, two-year prison sentences.

After this case was submitted to the jury--but before any jury verdict--a newspaper article about the case was published in the business section of the Saturday Oklahoman & Times. ¹ The article discussed a previous agreement to plead guilty signed by defendant Thompson. The guilty plea was withdrawn before trial and was not admissible in the trial court because the defendant's motion in limine, to exclude any mention of plea negotiations, had been granted. On Monday, before the jury reconvened, defendant's counsel requested that the jury be individually voir dired to determine whether any of the jurors had been exposed to the article. The written motion contained allegations that two jurors had been observed reading the Daily Oklahoman at the courthouse during the week of trial. One other juror was observed reading the Wall Street Journal throughout the week of trial. Therefore, it was assumed that he would be likely to read the business section of the Saturday Oklahoman & Times. On Monday after the article was published, the trial court inquired whether anything had occurred during the weekend that might affect the jurors' ability to be fair and impartial. But, unlike earlier occasions, the court refused to ask the more specific question whether the jurors had read anything about the case. When no juror responded to the court's inquiries, the trial judge allowed them to continue deliberations. After allowing defendant's counsel to make his record, the trial judge denied the motion.

When the jury verdict of guilty was returned, counsel for the defendant renewed his motion to voir dire the jury. The government opposed the motion. The trial court denied the renewed request stating:

The Court will deny the request that it make individual inquiry based upon the fact that the Court has repeatedly admonished and instructed the jurors not to read or listen to anything contained in the news media with regard to this case.

And after each recess, it has inquired of the jury panel as a whole whether anything might have occurred that would in any way influence their ability to continue to serve and no indications have been given by any of the jurors.

The Court will not presume that they have in any way disregarded the Court's instructions not to read the news media, absent some indications to the contrary.

Record, supp. 1, vol. 4, at 1204. ² Defendant later filed post-trial motions including a request for a new trial pursuant to Fed.R.Crim.P. 33. All post-trial motions were denied by the trial court and this appeal followed. Essentially, the defendant claims that a new trial is necessary because the trial court erred in expressly refusing to voir dire the jury on their exposure to the news article.

II. STANDARD OF REVIEW

The district court's decision on a new trial motion is reviewed under an abuse of discretion standard. See United States v. McIntyre, 836 F.2d 467, 472 (10th Cir.1987). In addition, the standard of review for the trial court's treatment of allegations of jury bias is abuse of discretion. "In responding to allegations of juror bias that arise during a trial, the trial court's decision as to how to proceed will not be reversed except for an abuse of discretion." United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir.1986). "Under the abuse of discretion standard, a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986).

III. RIGHT TO VOIR DIRE THE JURY REGARDING PREJUDICE

Defendant claims that the denial of his motion to voir dire the jurors individually constitutes reversible error and a new trial should be granted as a matter of law. We agree with the defendant that the article containing information concerning a prior plea agreement signed by Mr. Thompson was highly prejudicial. After the publication of the prejudicial information, the trial court's questions to the jurors were:

Let me inquire, before you begin your deliberations, has anything occurred during the weekend that would in any way affect your ability to continue to serve as fair and impartial jurors in this case? ... Is there any matter that you would wish to call to the Court's attention as perhaps bearing upon your ability to continue to serve as fair and impartial jurors?

Record, supp. 1, vol. 4, at 1202. Under the circumstances of the prejudicial article being called to the court's attention and the allegations that several jurors were previously observed reading the Daily Oklahoman, we conclude that the trial court's general inquiry as to prejudice was not sufficient to satisfy counsel's reasonable request that the jury be asked specifically about the newspaper story. At a minimum the court had a duty to ask whether the jurors had read the article concerning this case.

The facts of this case are essentially indistinguishable from a prior case by this court that we find controlling. In Mares v. United States, 383 F.2d 805 (10th Cir.1967), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969), a newspaper article printed under a bold headline concerning defendant's withdrawn plea of guilty and a confession which had been excluded was published during a trial in which there was no sequestration of jurors. Upon learning of the article, defense counsel called the article immediately to the attention of the court and moved for a mistrial. The court denied the motion. Defense counsel again requested a mistrial and a questioning of the jury concerning their knowledge of the article once the guilty verdict was returned. The court refused both motions. On appeal the government argued that the jurors were carefully admonished on their responsibility to refrain from exposure to publicity occurring during the trial. Nevertheless, we concluded "that the failure of the trial court to ascertain whether any of the jurors had been exposed to the prejudicial article makes a new trial imperative." Mares, 383 F.2d at 809.

The facts of Mares are nearly identical to the present case. In both cases a newspaper article containing prejudicial information that had been excluded from the trial was published during the trial while the jurors were not sequestered. In Mares the article was preceded by a bold headline, but there was no evidence that any juror had actually read the newspaper. In the present case the article was preceded by a headline, appeared on the front page of the business section, and there was some evidence that the jurors may have been exposed to it. In both cases the judge refused to question the jurors concerning their knowledge of the articles. The fact that the article in Mares included a withdrawn guilty plea and a confession--while the article in this case discussed only a withdrawn guilty plea--goes only to the degree of prejudice, not necessarily to the requirement for voir dire. We have already concluded that the article in this case was extremely prejudicial. Thus we hold, in accordance with Mares, that the failure of the trial judge to inquire of the jurors concerning their knowledge of the article was an abuse of discretion.

Other cases relied on by the government are distinguishable. In United States v. Bradshaw, 787 F.2d 1385 (10th Cir.1986), we upheld a trial court's refusal to conduct an evidentiary hearing to inquire about the facts behind a relationship between a juror and two government witnesses. However, Bradshaw did not involve highly prejudicial evidence provided to a juror during trial. Bradshaw involved information that could have, and probably should have, been discovered and discussed during voir dire. The test in such a case is more lenient than in the case of prejudicial information which may have been received by the jurors during trial.

The government urges us to apply United States v. Greschner, 802 F.2d 373 (10th Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987), where we refused to reverse a trial judge who held that an evidentiary hearing was not necessary under facts very similar to the present case. In Greschner, a newspaper article containing prejudicial information, including the criminal records of the defendants, was published during trial. The trial court refused to grant a mistrial or to voir dire the jury concerning the article. We affirmed. The important factual difference between Greschner and this case, as well as Mares, is that in Greschner the matters contained in the newspaper article had already been admitted into evidence. In fact, the Greschner court explicitly distinguished Mares on this ground. Id. at 380-81 & n. 6.

In Greschner we stated that "we will presume that jurors remain 'true to their oath and ... conscientiously observe the instructions and admonitions of the court' " absent evidence to the contrary. Greschner, 802 F.2d at 381 (citations omitted). In addition to the factual differences between ...