U.S. v. Aragon ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-8263
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ROLAND ARAGON, ROSS
MARTINEZ, AND RONALD EUGENE
LEVI,
Defendants-Appellants.
_______________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_______________________________________________________
( May 26, 1992 )
Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Appellants, Charles Ronald Aragon, Ross Martinez, and Ronald
Eugene Levi, along with six co-defendants not subject to this
appeal, were charged in an eight-count indictment for their
participation in a pipeline organization which smuggled marihuana
to Washington, D.C., and Canada, using El Paso and Albuquerque as
shipment points. After a jury trial, Aragon, Martinez and Levi
were each found guilty of willfully and knowingly conspiring to
possess more than 100 kilograms of marihuana with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count
1). Aragon and Levi were also found guilty of knowingly and
intentionally possessing more than 100 kilograms of marihuana
with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
(count 2). Additionally, Levi was found guilty of possessing a
firearm during and in relation to a drug-trafficking crime in
violation of 18 U.S.C. § 924(c)(1) (count 5). Further, the jury
found Aragon guilty of knowingly conducting and attempting to
conduct a financial transaction with the proceeds of an unlawful
drug transaction in violation of 18 U.S.C. §§ 2 and
1956(a)(1)(A)(i), and found Levi guilty of aiding and abetting
the commission of that offense in violation of 18 U.S.C. § 2
(count 8). The district court, however, granted Aragon and
Levi's motion for acquittal on count 8.
Appellants contend that the trial court committed reversible
error in refusing to poll the jury regarding the possible
prejudicial effect of a newspaper article appearing after jury
empaneling at the commencement of the trial. The specific
assertion of error is the failure of the court to ascertain what
information, if any, the jurors received, and if they were
exposed to extra-record information, so that the court could make
a finding on its prejudicial effect. In this case a specific and
detailed newspaper article about the defendants and their
activities was published on the front page of the Metro section
of the most widely circulated local paper in El Paso. We must
conclude that the district court's failure to act decisively to
ascertain the impact of the article on the jury constituted an
abuse of discretion. At a minimum, when the trial court was
2
apprised of the existence of this potentially prejudicial article
it should have made the proper inquiries of the jury. Under the
necessary auspices of guarding against the effect of prejudicial
newspaper publicity, and under the exercise of our supervisory
power,1 we reverse for a new trial.2
I. Publicity During Trial
On the first morning of the two-day trial, the El Paso Herald-
Post published an article with a conspicuous double headline: "Pot
trial begins for senator's brother/ Men accused of smuggling
through city."3 The article set out Aragon's familial relationship
1
This case, under well established precedent of United
States v. Attell, 655 F.2d 703 (5th Cir. 1981), United States v.
Williams, 568 F.2d 464 (5th Cir. 1978), and United States v.
Herring, 568 F.2d 1099 (5th Cir. 1978), is a direct appeal of a
federal criminal conviction; and our review is predicated upon
our supervisory power over the district courts. See, e.g.,
United States v. Marshall, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d
1250 (1959) (per curiam).
2
Our reversal of the appellants' convictions on
prejudicial publicity grounds renders consideration of their
other points of error--Bruton violations, Brady violations,
failure to submit requested jury instructions, and insufficiency
of the evidence--unnecessary.
3
Two broad classes of prejudicial publicity cases exist.
The first category includes those massive pretrial publicity
"media circus" cases (though often with extensive coverage of the
trial itself) typically necessitating a change of venue because
of extreme prejudice and inflamed community atmosphere. See,
e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16
L. Ed. 2d 600 (1966); Estes v. Texas , 381 U.S. 532, 85 S. Ct. 1628,
14 L. Ed. 2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83
S. Ct. 1417, 10 L. Ed. 2d 663 (1963). The standards governing a
change of venue ultimately derive from the due process clause of
the Fourteenth Amendment which safeguards a defendant's Sixth
Amendment right to be tried by "a panel of impartial,
`indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81
S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). The second category of
3
to a New Mexico State Senator as well as his "history" of drug
arrests and convictions dating to the early 1970's. It also
recounted the appellants' alleged boasting of the smuggling of
thirty-two tons of marihuana through an El Paso marihuana smuggling
pipeline and of their earlier dealings with a reputed "narcotics
kingpin" Gilberto Ontiveros.4 According to the appellants, the
cases primarily involves publicity that occurs during the trial,
necessitating a poll of the jury to determine whether "a
significant possibility of prejudice" exists. The Supreme Court
has examined this kind of publicity in the context of its
"supervisory power to formulate and apply proper standards for
enforcement of the criminal law in the federal courts," Marshall
v. United States, 360 U.S. 310, 313, 79 S. Ct. 1171, 1173, 3
L. Ed. 2d 1250 (1959) (per curiam), "and not as a matter of
constitutional compulsion." Murphy v. Florida, 421 U.S. 794,
797, 95 S. Ct. 2031, 2035, 44 L. Ed. 2d 589 (1975). No contention
has been made that this case falls under the rubric of the first
category of cases. Finally, this Court has recognized a stricter
standard for mid-trial publicity breaches, such as alleged here,
than pretrial ones. See, e.g., United States v. Williams, 568
F.2d 464, 468 (5th Cir. 1978) (noting that "information reported
during the trial seems far more likely to remain in the mind of a
juror exposed to it, and he may be more inclined to seek out this
information when he is personally involved in the case"); in
accord United States v. Harrelson, 754 F.2d 1153, 1163 (5th
Cir.), cert. denied, 474 U.S. 908, 106 S. Ct. 277, 88 L. Ed. 2d 241,
and cert. denied, 474 U.S. 1034, 106 S. Ct. 599, 88 L. Ed. 2d 578
(1985).
4
The full newspaper report read:
The brother of a New Mexico state senator and two other men
accused of marijuana trafficking go on trial in El Paso today.
The men are suspected of smuggling 32 tons of marijuana
through El Paso during the year before their arrest.
Charles Ronald Aragon, 35, the brother of New Mexico state
Senate President Pro Tem Manuel Aragon, was arrested in Las
Vegas, Nev., in December after investigators linked him to an El
Paso marijuana-smuggling pipeline.
Charles Aragon, whose father is a former Albuquerque city
councilman and former member of the New Mexico Board of Pardons,
has a history of drug-related arrests and convictions going back
to the early 1970s.
His latest arrest stemmed from an investigation by the West
Texas Multi-County Task Force and the FBI in October in which
4
inflammatory newspaper article contained information which clearly
went beyond the record.5 It portrayed Aragon as an established
undercover agents sold 245 pounds of marijuana to an El Paso
couple.
Seven people were arrested that day, and several later
cooperated in an expanded investigation, implicating Aragon, who
was living in Las Vegas under an assumed name.
Also set to go on trial before U.S. District Judge Lucius
Bunton are Ross Martinez, 38, of Los Lunas, N.M., and Ronald
Eugene Levi, 50, of Albuquerque.
The men were charged in an El Paso grand-jury indictment of
possessing more than 200 pounds of marijuana, conspiracy to
possess the marijuana, and money-laundering.
El Paso FBI spokesman Terry Kincaid said earlier that
members of the alleged marijuana-smuggling ring had boasted of
smuggling 32 tons of marijuana a year earlier to Washington,
D.C., and Canada using El Paso and Albuquerque as shipment
points.
They had also boasted of having earlier dealings with
reputed Juarez narcotics kingpin Gilberto Ontiveros.
If convicted, the men face sentences of five to 40 years in
federal prison and fines of up to $5 million.
Levi, a retired Air Force sergeant, was one of seven people
arrested in October in El Paso. Also arrested were John Francis
Thomas Dempsey, 44, of Albuquerque, Harry Fortson, 59, and his
wife, Guadalupe, of El Paso; Timothy Jasper Rinard, 38, and his
wife, Alma, 31, of El Paso; and John Morris Mustaffa, 29, of
Buena Park, Calif.
El Paso Herald-Post
February 19, 1991
5
The government asserts that Aragon brought forward for
the first time on appeal the argument that the trial court erred
in failing to voir dire the jury concerning this mid-trial
publicity. We carried with the case a motion by the government
to strike appellant Aragon's brief on this issue. Aragon
acknowledges the law in this circuit concerning the untimely
raising of issues. See, e.g., United States v. Sherbak, 950 F.2d
1095, 1101 (5th Cir. 1992) (per curiam) (citation omitted)
(stating that "issues raised for the first time on appeal `are
not reviewable by this Court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice'"). In this case, however, Aragon officially adopted
as his own the mid-trial publicity issue raised in Martinez'
brief. Moreover, Aragon's counsel first raised the issue at the
trial. With regard to Levi, although he did not raise this
argument in his briefs, his counsel at trial also joined the
motion for additional voir dire. Thus, in contrast to the
5
drug dealer with a prior criminal history, a portrayal
unquestionably prejudicial to Aragon. Further, since Martinez,
Levi, and Aragon were charged as co-conspirators, it blackened
Martinez' and Levi's reputations as well. Given Aragon's criminal
history of arrests and convictions, the jury would necessarily tend
to believe that Martinez and Levi must have known about Aragon's
earlier criminal undertakings. Additionally, according to
appellants, the allegations of the purported dealings with the
"narcotics kingpin" Gilberto Ontiveros were devastating and highly
prejudicial. The Ontiveros crime family has great notoriety in El
Paso and has been the subject of many articles.6
On the morning of the commencement of trial, the jury having
already been empaneled, counsel for the appellants requested that
the court conduct additional voir dire to ascertain whether any
juror had read or heard of the article. Despite the highly
prejudicial nature of the publicity involved, the trial court
squarely denied the defense counsel's request for a poll. Without
government's contention, we treat the mid-trial publicity
argument as brought properly before us as to all three
appellants. We deny the government's motion to strike Aragon's
brief.
6
The government unsuccessfully attempts to argue that
Martinez and Levi are mentioned in the article only in the
context of being set for trial; therefore, they clearly cannot
assert prejudicial impact of the article. We find this argument
unavailing. The article stated that "members of the alleged
marijuana-smuggling ring had boasted of smuggling 32 tons of
marihuana." A reader could readily presume that the newspaper
was referring to Aragon, Levi, and Martinez, since the names of
the other arrestees were not mentioned until the end of the
article. A similar conclusion may be drawn from the statement
that "[t]hey had also boasted of having earlier dealings with
reputed Juarez narcotics kingpin Gilberto Ontiveros."
6
even a cursory glance at the newspaper article, the court said:
"Hand it to the clerk right here. Your request is denied.
Anything else? I don't see it, I don't need the paper. I am like
the jurors. They don't read the paper either. I told them not
to."7
7
Our review of this record shows that the trial court had
not told the jurors not to read the newspaper. But the trial
court had admonished the jury they should avoid any newspaper
accounts of the trial.
The exchanges relevant to this issue are as follows:
Jury Voir Dire:
THE COURT: Don't read anything, if there is an account of
this in the newspaper, don't read anything about it. If there is
something on television, don't watch it. If there is something
on the radio, don't listen.
. . .
Proceedings First Day of Trial:
THE COURT: Good morning. What is our problem this morning?
MR. CHESNOFF: A minor one, Your Honor, but if I could make
this newspaper article part of the record and ask the Court to
conduct some additional voir dire this morning. I think that the
source is quoted in the source which is very inflammatory are FBI
agents, members of the prosecution team. And for that reason, I
ask the Court to conduct some additional voir dire to see whether
or not they have been prejudiced in any way or became aware of
this article. If I could approach the clerk, Your Honor, so this
could be made part of the record.
THE COURT: Hand it to the clerk right here. Your request
is denied. Anything else? I don't see it, I don't need the
paper. I am like the jurors. They don't read the paper either.
I told them not to.
. . .
THE COURT: Members of the Jury, it is just almost 12:00.
We will stand recess as far as you are concerned until 1:30.
Please don't read anything about this, don't watch anything about
it, I don't think you will be watching television. You would
7
II. Possible Prejudice - Court Discretion
The standard for review of the exercise of the district
court's discretion in a case such as this is abuse of that
discretion. United States v. Harrelson, 754 F.2d 1153, 1163 (5th
Cir.), cert. denied, 474 U.S. 908, 106 S. Ct. 277, 88 L. Ed. 2d 241,
and cert. denied, 474 U.S. 1034, 106 S. Ct. 599, 88 L. Ed. 2d 578
(1985). The trial judge has broad discretion in ruling on the
issue of prejudice resulting from a jury's exposure to news
articles concerning a trial. United States v. Marshall, 360 U.S.
310, 312, 79 S. Ct. 1171, 1173, 3 L. Ed. 2d 1250 (1959) (per curiam).
Further, "[i]t is for the trial judge to decide at the threshold
whether news accounts are actually prejudicial; whether the jurors
were probably exposed to the publicity; and whether jurors would be
sufficiently influenced by bench instructions alone to disregard
the publicity." Gordon v. United States, 438 F.2d 858, 873 (5th
Cir.), cert. denied, 404 U.S. 828, 92 S. Ct. 139, 30 L. Ed. 2d 56, and
cert. denied, 404 U.S. 828, 92 S. Ct. 140, 30 L. Ed. 2d 56 (1971).
probably be watching As the World Turns or something, if they
have anything about this trial, don't watch it.
. . .
THE COURT: Now, I have not seen tonight's paper, I have
not, obviously have not seen the morning's paper, I don't know
whether there has been anybody in here sweating it out for the
press or not. If there is an account of it in the newspaper, do
not read it. There will be plenty about the Persian Gulf on
there for you to read, and you can read that, because that
doesn't have anything to do with this case. There probably will
be something about the UTEP basketball team on there. You can
read that, I encourage you to. There is probably going to be
some funny papers that don't have anything with this. Read those
tomorrow before you come. Don't read anything about this case.
8
Our role must emerge in this case, however, because the trial court
has not made any of these determinations.
The formula for determining if a voir dire is required because
of mid-trial publicity is stated in United States v. Herring, 568
F.2d 1099 (5th Cir. 1978). We held that a voir dire is required if
there could arise "serious questions of possible prejudice."8 We
8
Though Herring is generally considered to be our leading
case delineating the requisite standard, earlier statements as to
this inquiry exist. In Adjmi v. United States, 346 F.2d 654, 659
(5th Cir.), cert. denied, 382 U.S. 823, 86 S. Ct. 54, 15 L. Ed. 2d
69, and cert. denied, 382 U.S. 823, 86 S. Ct. 73, 15 L. Ed. 2d 69
(1965), we said: "When during the course of the trial[,] counsel
for the appellants brought to the court's attention the
prejudicial newspaper accounts and moved for a mistrial, the
court had a duty to inquire whether the articles had created
prejudice in the minds of the jurors." In contrast to the
instant case, the court in Adjmi, upon the counsel's request,
inquired whether any of the jurors had read the newspaper
accounts about the trial. The court thus satisfied its
obligation to inquire. In Gordon v. United States, 438 F.2d 858,
873 (5th Cir.), cert. denied, 404 U.S. 828, 92 S. Ct. 139, 30
L. Ed. 2d 56, and cert. denied, 404 U.S. 828, 92 S. Ct. 140, 30
L. Ed. 2d 56 (1971), in addressing mid-trial publicity, we set out
relevant factors for the trial court to consider in determining
whether news accounts are actually prejudicial: "(1) the
character or nature of the information published . . . ; (2) the
time of the publication in relation to the trial; (3) the
credibility of the source to which the information is
attributable[;] and (4) the pervasiveness of the publicity, that
is, the extent of the audience reached by the media employed and
the interest evoked." In Gordon, on the day the jury was
empaneled, an article which consisted largely of a routine
account of the factual events of the trial appeared in a widely
circulated local newspaper. Upon appellants' request to poll the
jury to ascertain their exposure to the article, the court read
the article and ruled that it was not prejudicial. Gordon is
distinguishable from this case in a crucial aspect--there the
court performed the proper inquiry. In United States v. Hyde,
448 F.2d 815, 848 n.38 (5th Cir. 1971), cert. denied, 404 U.S.
1058, 92 S. Ct. 736, 30 L. Ed. 2d 745, and cert. denied, 404 U.S.
1058, 92 S. Ct. 737, 30 L. Ed. 2d 745 (1972), this Court reiterated
the necessary query: "[W]hen there has been publicity that would
possibly prejudice the defendant's case if it reached the jurors,
the court should first ask the jurors what information they have
received. Then it should ask about the prejudicial effect and it
9
then set out a two-step inquiry devised to answer whether such
"serious questions" exist. First, the district court must look at
the nature of the news material to determine whether the material
is innately prejudicial. Factors such as the timing of the media
coverage, its possible effects on legal defenses, and the character
of the material disseminated merit consideration. Second, the
court must then discern the probability that the publicity has in
fact reached the jury. At this juncture, the prominence of the
media coverage and the nature, number, and regularity of warnings
against viewing the coverage become relevant. 568 F.2d at 1104-05.
See also United States v. Arzola-Amaya, 867 F.2d 1504, 1513 (5th
Cir.), cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312
(1989); United States v. Manzella, 782 F.2d 533, 542 (5th Cir.),
cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986).
Every claim of potential jury prejudice due to publicity must
turn upon its own facts. Marshall, 360 U.S. at 312, 79 S.Ct. at
1173. The government contends that the record conclusively shows
that the El Paso Herald-Post article was not highly prejudicial to
should make an independent determination whether the juror's
impartiality was destroyed." In Hyde, the news stories in
question essentially "summarized the high points of the days'
events." When the defense brought the articles to the court's
attention, on at least one occasion the court asked the jury as a
whole whether any of them had read the articles. On another
occasion, the defense attorneys themselves declined the offer of
interrogation of the jurors regarding any prejudicial influence.
Again, Hyde is distinguishable from the instant case. In Hyde,
the court took the necessary precautions to determine whether the
jury was exposed to the articles. Further, in contrast to this
case, the articles in question essentially were not prejudicial.
See also United States v. Davis, 583 F.2d 190, 197 (5th Cir.
1978) (setting forth Hyde's factors as an "acceptable procedure"
in addressing prejudicial publicity).
10
the appellants and that the district court's cautionary
instructions to the jury negated the possibility that the publicity
reached the jury. An after-the-fact analysis must be made to
respond properly to the government's assertions. We first
determine whether the news material was innately prejudicial. It
is well established that "news stories published during the trial
that reveal to jurors a defendant's prior criminal record are
inherently prejudicial." United States v. Williams, 568 F.2d 464,
469 (5th Cir. 1978); see also Murphy v. Florida, 421 U.S. 794, 798,
95 S. Ct. 2031, 2035, 44 L. Ed. 2d 589 (1975) ("persons who have
learned from news sources of a defendant's prior criminal record
are presumed to be prejudiced"); Marshall, 360 U.S. at 312-13, 79
S.Ct. at 1173 ("[t]he prejudice to the defendant is almost certain
to be as great when that evidence reaches the jury through news
accounts as when it is a part of the prosecution's evidence . . . .
It may indeed be greater for it is then not tempered by protective
procedures."). Thus, at a minimum, the references to Aragon's
prior convictions constituted inherently prejudicial evidence.
Further, nothing in the record makes any noticeable mention of
the appellants' alleged dealings with the Ontiveros crime family.
The newsstory mention of the crime family connections went beyond
the record and raised serious questions of possible prejudice.
Overall, the publicity clearly crosses Herring's initial threshold;
the substance of the article may be taken as probative of the
appellants' guilt. It is innately prejudicial.
11
In ascertaining next the likelihood that the publicity
actually reached the jury, we examine the prominence of the media's
coverage in conjunction with the trial court's instructions to the
jury concerning trial publicity. The newspaper article was not
published in an obscure manner nor did it detail merely procedural,
mundane aspects of the trial. It referred to the smuggling of over
thirty-two tons of marijuana, to connections to a state senator,
and to dealings with a notorious "narcotics kingpin". Further, in
this case, the jurors were not sequestered, they were not
prohibited by the court from the general reading of newspapers, nor
were they provided with newspapers with the relevant portions
struck from them. The article appeared in the front page of the
Metro section of the most widely circulated local paper.9 Under
our reading of the court's instructions, the jury was merely told
to avoid reading about or listening to media reports concerning the
case itself. We conclude that such a selective prohibition against
reading about the case, done rather quickly and casually by the
court, did not obviate the court's need for inquiry. We disagree
with the government's contention that the trial court's two
admonitions concerning media coverage in this case were "more than
adequate safeguards" to ensure the appellants a fair trial.
This conclusion is not enough; we need to proceed further. In
the absence of a poll, it is impossible to determine whether the
jurors were actually exposed to the article. We would have to
9
The government, at oral argument, acknowledged that
newspaper vending machines surrounded the courthouse.
12
speculate to conclude that no juror saw or heard the account, and
thus, that the appellants were not unduly prejudiced. Herring
dissuades us from indulging in such speculations. 568 F.2d at
1106.10 Thus, having reviewed the conspicuousness of the news
account and its prejudicial content, notwithstanding the court's
general instruction to the jury, we conclude that there was a
substantial probability that the publicity reached the jurors
present.
The government asserts that the record shows conclusively
that the article was not highly prejudicial and that the district
court's cautionary instructions to the jury negated the possibility
that the publicity in fact reached them. The government in its
contention relies upon Harrelson, Manzella, and Arzola-Amaya, three
cases previously mentioned.11
In Harrelson, 754 F.2d 1153, this Court determined that the
trial judge's instructions adequately shielded the jury from
prejudice. There the judge furnished newspapers to the jury which
10
At oral argument, the government conceded that if this
Court indulged in the presumption that the article reached the
jurors, then, at least with regard to Aragon, the trial court's
failure to poll the jury would constitute reversible error.
11
The government also incorrectly contends that the
appellants' reliance on Herring is inapposite. In Herring, this
Court found that the district court's instructions regarding
publicity were inadequate. There the jury was told merely to pay
no attention to any publicity. 568 F.2d at 1101. We found that
under this instruction "a juror could assimilate any publicity in
the case with a firm resolve not to be affected by it, and then
in good conscience believe that he had followed the court's
instructions to the letter." 568 F.2d at 1101 n.6. Appellants,
however, properly do not contend that the Herring facts are
clearly analogous. They simply utilize Herring for the two-step
inquiry it articulated.
13
had references to the trial struck from it. At the start of each
day trial session, the judge asked the jury if they had heard
anything about the case other than from the evidence at trial.
Unlike Harrelson, we find that the trial judge's instructions
failed adequately to shield the jury from contamination. The judge
did not admonish the jury not to read or listen to external news
altogether. Further, the court did not furnish newspapers to the
jury with the relevant references to the trial struck from them.
Most important, under the facts of this case, however, the judge
did not make daily pointed inquiry whether the jury knew or had
heard anything relating to the case other than the evidence
presented at trial. The record shows it made no such inquiry at
all.
In Manzella, 782 F.2d 533, we affirmed an appellant's
conviction despite the district court's failure to voir dire the
jury after the publication of a newspaper article concerning the
trial. We determined that though the reference to a prior
conviction in the article was prejudicial, the chances of its
actual influence over the jury's decision was "minuscule." 782
F.2d at 543. The inadmissible information constituted one small
paragraph at the end of the medium-length article. Further, we
concluded that the court's admonitions to the jury to avoid trial
publicity were sufficient to convince the jurors to avoid media
coverage. Finally, we commented that "[t]he jury's ability to
discern [the defendant's] innocence of some of the alleged crimes
indicates a fair-minded consideration of the case against him"; the
14
publicity did not lead to a deprivation of the appellant's right to
an impartial jury. 782 F.2d at 543.
By comparison, in this case, the inadmissible information was
not an insignificant portion at the end of the article. It was a
major thrust. Further, the article's influence can hardly be
deemed minor. Moreover, the court in this case failed to impress
adequately on the jury the need to avoid publicity about the trial.
Lastly, to the degree that the jury's ability to convict the
appellant on some counts but not on others might constitute a make
weight indicatory of jury impartiality, this case is to the
contrary. The jury convicted the appellants on all counts.
In Arzola-Amaya, 867 F.2d 1504, this Court ruled that the
trial court properly denied the appellants' repeated requests to
poll the jury regarding mid-trial publicity. Although there was
media coverage throughout the trial, the trial court correctly had
found that it was based upon reports of the trial proceeding.
These reports covered matters which had occurred in the presence of
the jury. 867 F.2d at 1514. Further, the judge's cautionary
instructions to the jury were careful and specific, ensuring that
the appellants received a fair trial free from prejudice. Finally,
we again relied in part upon Manzella: "[t]he jury's ability to
discern a failure of proof of guilt of some of the alleged crimes
indicat[ed] a fair minded consideration of the issues." Id.
In contrast, in this case, the article went far beyond a
record of the trial's daily occurrences. It included substantial
highly prejudicial information which the jury was not entitled to
15
get and did not get in court. We also find that the court did not
give carefully delineated instructions to the jurors concerning
mid-trial publicity. Finally, similar to our comparison with
Manzella, if the ability to discriminate among the charges is an
indicia of impartiality, once again, the jury failed.
We cite United States v. Williams, 809 F.2d 1072, 1092 (5th
Cir. 1987), as much more closely paralleling this case. In
Williams, a month into trial a government witness testified that
the defendants were involved in drug deals even during the trial.
The witness' testimony severely affected the defendants. Their
bail was revoked and they were returned to the custody of the
United States Marshal. The media coverage was extensive, including
"front-page headlines with a color photograph of the [defendants]
being led away in handcuffs and chained together from the
courthouse in one of Houston's daily newspapers." 809 F.2d at 1091
(footnote omitted). We applied the Herring two-step inquiry and
concluded that it was reversible error for the trial court not to
inquire as to the possible contamination of the jury. We first
determined that the initial Herring step was satisfied--the nature
of the publicity clearly went beyond the record and was highly
prejudicial. Similarly, we found that the second inquiry was also
satisfied. The information was not published in an obscure way;
rather, it was published with headlines visible at any newspaper
vending machine. Further, the jury was not sequestered. Just as
in the instant case, the judge in Williams merely instructed the
jurors "not to read or listen to anything pertaining to this case."
16
Here, the trial court was apprised of the existence of a
potentially highly prejudicial article. Without undertaking any
inquiry, the court squarely rejected the appellants' motion for
voir dire. Cognizant of Marshall's teachings that such publicity
cases are fact specific, under these circumstances we find that the
district court abused its discretion in failing to undertake
adequate inquiry into whether the alleged tainting incident
occurred and whether it was prejudicial.
III. CONCLUSION
In this case, general newspaper reading was allowed under
instructions to the jury, although the jury was told not to read
about the trial. The critical article was prominently located on
the front page of the Metro section of the newspaper. The article
went into substantial detail and went well beyond the record. This
newspaper publicity raised a significant possibility of prejudice,
but the district court did not make requisite inquiry into the
possible prejudice. It failed to make its own independent
determination as to the alleged intrusion upon jury impartiality.
Under the specific facts of this case, we reverse for a new trial.
REVERSED.
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