United States v. Medlin, 16034.

Decision Date29 December 1965
Docket NumberNo. 16034.,16034.
Citation353 F.2d 789
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lawrence W. MEDLIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

R. B. Parker, Jr., and James H. Bateman, Nashville, Tenn., for appellant.

Ronald L. Gainer, Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Atty., Dept. of Justice, Washington, D. C., James F. Neal, U. S. Atty., Nashville, Tenn., on brief, for appellee.

Before CECIL, O'SULLIVAN and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Defendant-appellant, Lawrence W. Medlin, was convicted on the second count of a five count indictment in which he, together with James Hoffa and five others, was charged with attempting to obstruct the due administration of justice in a United States District Court in violation of 18 U.S.C.A. Sections 2 and 1503. Specifically, Medlin was charged with attempting to influence one James C. Tippens, selected for service as a juror in such United States District Court, by informing the said Tippens that he would be paid $10,000 if he would vote for the acquittal of James R. Hoffa in a trial then pending in such District Court.1 The involved indictment, returned in the Middle District of Tennessee, would normally have been set for trial in that district. However, upon motion of Hoffa and others the trial was transferred from Nashville to Chattanooga in the Eastern District of Tennessee. The motion to transfer had been made on the ground that prejudicial publicity had made it impossible for Hoffa and his codefendants to receive a fair trial at Nashville. Thereafter, on January 20, 1964, under direction of an order of this Court (CA 6, 1964, No. 15,719) the District Judge granted Medlin's motion for a separate trial and vacated, as to Medlin alone, the order transferring the trial to Chattanooga. Shortly thereafter the trial of Hoffa and his other codefendants began at Chattanooga. Hoffa was found guilty on two counts and the other codefendants guilty on one count each. James Hoffa had been charged as an aider and abettor of Lawrence W. Medlin in count two of the indictment, but a judgment of acquittal was directed because, the testimony of the accusing witness Tippens having been excluded, there was insufficient evidence. The trial at Chattanooga was concluded on March 4, 1964, and Hoffa and others were there sentenced on March 12, 1964. The trial, conviction and sentencing of Hoffa and his codefendants was the subject of much interest and coverage in all of the news media. The trial of appellant Medlin was commenced at Nashville on March 30, 1964, and terminated April 3, 1964.

The errors claimed by appellant are broadly: (1) that he should have been given a continuance because of publicity arising from the Hoffa trial; (2) that his counsel was denied adequate time to prepare for trial; (3) that his counsel should have been permitted to inform the jurors that Hoffa had been acquitted of aiding and abetting Medlin; (4) that the evidence was insufficient to go to the jury; (5) that a new trial should have been granted because

(a) of improper argument to the jury by government counsel,
(b) instructions on the subject of reasonable doubt were improper, and
(c) he had been denied the effective assistance of counsel because of the physical and mental exhaustion of his attorney during the trial; and

(6) that the grand jury which indicted Medlin was illegally composed.

On March 14, 1964, two days after the sentencing of Hoffa and others, Medlin's case was set to be tried at Nashville on March 30, 1964. On March 25, appellant's counsel filed a motion for continuance. It was bottomed upon the claim that the publicity which had attended the trial, conviction and sentencing of Hoffa and others, and the publicity given to the setting of Medlin's trial foreclosed a fair trial of Medlin's case upon the date set. The motion also asserted that court engagements of appellant's counsel, made prior to the setting of the Medlin trial date, would prevent Medlin from having the effective assistance of his chosen counsel because of the shortness of time to prepare. This motion was denied on March 27. A second motion for continuance was filed on March 30, 1964, reasserting the grounds of the first motion, and adding the averment that in the short time permitted him by the District Judge's setting of a trial date, Medlin's counsel, R. B. Parker, Jr., of the Nashville Bar, had been unable to make sufficient preparation to afford Medlin the adequate assistance of counsel guaranteed by the United States Constitution.

1) Denial of continuance because of prejudicial publicity.

Appellant's motion for continuance was supported by newspaper clippings from Nashville and elsewhere concerning the Hoffa trial and the setting of the Medlin trial at Nashville. There was a stipulation that various radio and television stations had carried the same news stories. The District Judge denied this motion holding that whether pretrial publicity would prevent a fair trial could be better determined after the voir dire examination of the jurors. Upon such examination, inquiry was made of the jurors' acquaintance with the publicity and whether any opinions had been formed as to the guilt of Medlin. Each juror questioned on the subject said he was without any such opinion and while various jurors disclosed some familiarity with the Hoffa trial at Chattanooga, there was little indication of the jurors' previous knowledge of any connection between Medlin and Hoffa. No juror was challenged for cause. The District Judge was of the view that the involved publicity had not given much attention to the Medlin case, and concluded that the motion was not well taken. It was proper for the District Judge to defer consideration of the effect of publicity until relevant inquiry could be made upon the voir dire examination of the jury. Hoffa v. Gray, 323 F.2d 178, 180 (CA 6, 1963) cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963); United States v. Kline, 205 F.Supp. 637, 638 (D.Minn. 1962); Wolfe v. Nash, 313 F.2d 393 (CA 8, 1963) cert. denied, 374 U.S. 817, 83 S.Ct. 713, 10 L.Ed.2d 1041 (1963); Mayo v. Blackburn, 250 F.2d 645 (CA 5, 1957) cert. denied, 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813 (1958); United States v. Bando, 244 F.2d 833, 838 (CA 2, 1957) cert. denied, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957). It is likewise the law that disposition of a motion for continuance based upon claimed prejudicial publicity is within the discretion of the District Judge who must evaluate the extent and character of the publicity relied upon. Estes v. United States, 335 F.2d 609, 614 (CA 5, 1964) cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); United States v. Lombardozzi, 335 F.2d 414, 416-417 (CA 2, 1964) cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964); Hoffa v. Gray, 323 F.2d 178 (CA 6, 1963), cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963); United States v. Decker, 304 F.2d 702, 704 (CA 6, 1962); Bearden v. United States, 304 F.2d 532 (CA 5, 1962), vacated on other grounds, 372 U.S. 252, 83 S.Ct. 875, 9 L.Ed.2d 732 (1963), on remand 320 F.2d 99, 101-103 (CA 5, 1963), cert. denied, 376 U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964). It should be noted, relevant to the effect of any pretrial publicity, that upon the opening day of the Medlin trial at Nashville there were but three or four spectators in the courtroom.

It must be recognized that the several indictments and trials of Mr. Hoffa and his associates over the past several years have continuously been given prominence in all news media. Such prominence continues. We are not persuaded, however, that the courts of this country are now impotent to provide a fair trial to Mr. Hoffa and those associated with him. This court has reviewed the publicity that preceded and surrounded Mr. Hoffa's trial at Chattanooga, and found that it did not foreclose the impaneling of a proper jury, nor the conduct of a fair trial. United States v. Hoffa et al., 349 F.2d 20 (CA 6, 1965). Our decision in United States v. Bell, 351 F.2d 868 (CA 6, 1965) involved the trial of another person indicted for attempting to bring about the bribery of jurors in the 1962 trial of James R. Hoffa. We there dealt with facts and contentions so similar to the case at bar that Bell provides precedent for our decision here. We find no abuse of discretion in the denial of continuance on the grounds just considered.

2) Inadequate time to prepare.

The second motion for continuance was filed on March 30, the date set for commencement of the trial, and in such motion counsel averred that he had not had time in which to adequately prepare. He detailed the long hours that he had been required to spend in preparing his prior motion for continuance and in giving some attention to other obligations of his practice.2

The second motion was denied. We find no reversible error in such denial. Counsel who made the motion had been engaged by Mr. Medlin close to a year prior to the trial date and in that period of time had employed numerous pretrial procedures to prepare for presentation of Medlin's defense. Neither in the March 30 motion nor in appellant's address to this court is there set forth anything that counsel might have done by way of legal research, factual investigation, or other preparation that would have enhanced his presentation of appellant's defense. While the time between the setting of the trial and the trial date was relatively short, it was within the discretion of the trial judge to require that the trial proceed. United States v. Decker, supra; contrast Townsend et al. v. Bomar, 351 F.2d 499 (CA 6, 1965). No resulting prejudice to appellant has been shown and we find no abuse of discretion in what was done.

3) Denial of permission to inform the jurors of James Hoffa's acquittal.

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