United States v. Ringland, 73-1924.

• Citation: 497 F.2d 1250
• Decision Date: 30 May 1974
• Docket Number: No. 73-1924.,73-1924.
• Parties: UNITED STATES of America, Appellee, v. George William RINGLAND, D.O., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

497 F.2d 1250 (1974)

UNITED STATES of America, Appellee, v. George William RINGLAND, D.O., Appellant.

No. 73-1924.

United States Court of Appeals, Eighth Circuit.

Submitted April 17, 1974.

Decided May 30, 1974.

Rehearing and Rehearing Denied June 25, 1974.

William S. Rader, Cape Girardeau, Mo., for appellant.

Frederick J. Dana, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH,^* Senior District Judge.

Rehearing and Rehearing En Banc Denied June 25, 1974.

STEPHENSON, Circuit Judge.

This appeal from a jury conviction in a criminal case challenges the denial of a change of venue because of pretrial publicity and questions the giving of the "Allen Charge" as part of the jury instructions.

Appellant Ringland was convicted by a jury on Count I of distributing a nonnarcotic controlled substance in violation of 21 U.S.C. § 841(a) (1) and on Counts V, VI, VII and VIII of unlawfully failing to maintain accurate records with respect to non-narcotic controlled substances in violation of 21 U.S.C. §§ 827(a) (3) and 842(a) (5). He was acquitted on Counts II, III and IV of distributing non-narcotic controlled substances in violation of 21 U.S.C. § 841(a) (1). He was sentenced to five years' imprisonment followed by a special parole term of two years on Count I. Sentences of one year each were imposed on the remaining counts to run consecutively with each other but concurrently with the sentence on Count I.

Venue. Appellant contends he was unduly prejudiced by pretrial publicity and that because of this publicity he could not receive a fair trial within the Southeastern Division of the Eastern District of Missouri. He charges that the trial court erred in refusing to transfer the case to some other division or district.

The pretrial publicity complained of consisted of a front-page news article, which appeared in the local newspaper, entitled "Search office of indicted osteopath," which described a search and seizure of appellant's office on October 9, 1973, of drugs having a street value of $50,000. The article appeared on October 19, 1973, approximately two weeks in advance of the instant trial which commenced November 1, 1973. The article also indicated that "It was previously reported that the osteopath was alleged to have given drugs to Richard E. Krewinghaus of Cape Girardeau," and that he had been sentenced for a firearms violation and seven drug-related charges. Krewinghaus testified on behalf of the government in appellant's trial.

Docket entries indicate that on October 25, 1973, appellant filed several pretrial motions, including a motion for transfer or, in the alternative, to fix place of trial in St. Louis, Missouri, and that the court ruling was as follows: "Said Motion for transfer etc., denied without prejudice—after Jury Panel has been questioned, may be refiled." No further motion to transfer or objection to the jury panel was made. We are advised by the government in its brief that only 6 of the 39 veniremen stated during the voir dire that they had heard or read anything about the case, and all stated that they were capable of listening to the evidence and giving both parties a fair trial. No challenges for cause were made.

It is our view that the trial court was well within its discretion in denying the motion for a change of venue. Rule 21(a) of the Federal Rules of Criminal Procedure provides that the court upon motion of the defendant shall transfer the proceedings as to him to another district if the court is satisfied there exists in the district where the prosecution is pending so great a prejudice he cannot obtain a fair and impartial trial in the district.

The mere fact that defendant received publicity by itself is not sufficient to require a change of venue. "The proper test is whether the prospective juror `can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" United States v. Woods, 486 F.2d 172, 174 (CA8 1973); United States v. McNally, 485 F.2d 398 (CA8 1973).

Here it is difficult to say that there had been widespread publicity, although it must be conceded that in a comparatively small community one news article could conceivably be sufficient to require a change of venue. The test is what effect did it have on the prospective jurors. Here the trial court in denying the motion to transfer specifically provided that its ruling was without prejudice to its renewal after the jury panel had been questioned. Only six jurors had heard or read about the case and they indicated that they could listen to the evidence and give both parties a fair trial. No further objections were made. Under the circumstances we cannot say that the trial court abused its discretion in failing to change venue.

The Allen-Type Charge. This case was submitted to the jury at approximately 3:00 p. m., on Friday. They were allowed to recess for the evening about 5:30 p. m. They resumed their deliberations Saturday at about 9:30 a. m. At approximately 11:30 a. m., they requested that the instructions be reread. The trial court informed counsel that in addition to re-reading the instructions it would add an...