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United States v. Carter

decided: August 7, 1979.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 Cr 909-1 -- John F. Grady, Judge.

Before Cummings and Tone, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Cummings

Defendant was for over fifteen years the Public Vehicle License Commissioner (Taxi-cab Commissioner) for the City of Chicago. On November 21, 1978, he was convicted of nine counts of a 13-count indictment charging him with racketeering activity (18 U.S.C. § 1962), violating the Hobbs Act (18 U.S.C. § 1951) and failure to report income for tax purposes (26 U.S.C. § 7206(1)). The charges were based on defendant's extortion of money from owners of independent cabs in exchange for the necessary transfer of licenses and other favorable treatment.

In this appeal defendant asserts that the district court committed reversible error by denying two requests by defense counsel designed to assure the impartiality of the jury. He urges that the district court committed reversible error (1) by not interrogating the jurors individually In camera as to whether they had been exposed to any prejudicial publicity that occurred during the trial*fn1 and (2) by not sequestering the jury after they had begun deliberating on the night of November 20. We affirm.

Because defendant relies heavily on the facts of this particular trial to support his claims, we will describe the relevant events in some detail. The trial began on Monday, November 13. Before dismissing the jurors for the day, Judge Grady admonished them at length and in detail not to read, listen to or watch anything about the case in any of the media and not to discuss it with anyone.*fn2 The following day both the Chicago Sun Times and the Chicago Tribune reported the events at the trial. Both stories were factual, non-inflammatory and could have told the jurors nothing they did not already know.

On Tuesday, November 14, when the court reconvened defense counsel informed it that a plea agreement had been worked out with the Government. After a delay to have it typed, a lengthy and detailed plea agreement signed by the defendant, three Government counsel and three defense counsel was submitted to the court. In accord with Rule 11 of the Federal Rules of Criminal Procedure, the district judge proceeded to question the defendant in order to establish a factual basis for the plea. The defendant denied receiving some of the money acknowledged in the plea agreement, and while he admitted receiving the rest, he denied that he had demanded it or that he accepted it in exchange for taking certain actions in his official capacity. Judge Grady concluded that the defendant had refused to admit facts necessary to establish extortion, and he therefore refused to accept the plea. The extensive questioning preceding the rejection of the plea took place in open court but not in the presence of the jury. At the end of the interrogation the judge commented to defense counsel "(W)e have wasted and I mean wasted three hours" (Tr. 191). The court then called the jury in, admonished them not to read the newspapers, watch television or listen to the radio at all, and sent them to lunch.*fn3 After lunch the trial continued. When the jurors were excused for the day, the judge again strongly admonished them not to read, watch or listen to any media reports of the case or to discuss it with anyone.*fn4

The following day the Sun Times and the Tribune carried a total of five stories relating to the defendant's unsuccessful attempt to plead guilty and the judge's comment about wasted time (R.65 ex. C-G).*fn5 That morning before the trial began the court held an In camera discussion with counsel regarding the possible exposure of the jurors to the publicity about the attempted plea. Defense counsel began to request In camera individual interrogation of the jurors, but the judge, relying on Margoles v. United States, 407 F.2d 727 (7th Cir. 1969), certiorari denied, 396 U.S. 833, 90 S. Ct. 89, 24 L. Ed. 2d 84, concluded that he would first question the jury collectively. "If any of them say they have read it or seen it, then we go in camera, but not in the event no one has read it or seen it" (Tr. 355). When the jurors were brought in, the judge carefully questioned them as to whether they had heard or seen anything about the case in any of the media or from any other source outside of the courtroom.*fn6 When none responded affirmatively, the trial was continued. When the jurors were excused for the day, they were again admonished as to the importance of avoiding publicity regarding the case.*fn7

After the jury had been excused, defense counsel moved In camera for a mistrial based on the publicity about the aborted plea. The judge denied the motion, relying primarily on the jury's negative response to his interrogation.*fn8 Judge Grady gave as additional reasons for denying the motion the fact that the defendant had apparently intentionally brought the situation on himself*fn9 and his belief that in the context of this case the defendant would not be prejudiced even if the jury had been exposed to the offending publicity.*fn10

From that day until the following Tuesday, the day the guilty verdict was handed down, only one article regarding the trial appears in the record. That article, published on November 16, was an editorial in the Chicago Tribune entitled "Why did it take so long?" The editorial noted the attempted guilty plea and stated that the defendant had been publicly charged with official misconduct seventeen years earlier. It ended by questioning why prosecution had taken so long (R.65, ex. H). That day, and on Friday and Monday as well, the court began each session by interrogating the jury collectively as to whether any of them had read, seen or heard anything about the case (Tr. 532, 635, 869). The response was always negative.*fn11 At the end of the day on Thursday and Friday the jury was again carefully admonished to avoid publicity about the case (Tr. 615, 862).

The trial concluded on Monday afternoon, and the jury began deliberating at 6:00 p. m. At about 9:35 p. m. the judge held an In camera conference with counsel for both sides to determine whether the jury should be sequestered. Defense counsel advocated sequestration on the ground that

"There is a likelihood of more publicity at this point in time. * * * I think the chances of them remaining sanitized is (Sic ) much less at this point in time." (Tr. 1088.)

The prosecutor agreed to sequestration out of "an abundance of caution" (Tr. 1089). The judge, however, exercised his discretion in favor of not sequestering the jury.*fn12 He gave two reasons for doing so. First, addressing the issue of publicity, which was the only reason for sequestration advanced by the defense, he stated that he thought the risk of seriously prejudicial publicity was not great and that "so far they (the jurors) have abided by the Court's strictures on that kind of thing * * * " (Tr. 1090). Later, he noted that the jury was not prepared for sequestration, and commented

"My interest is in insuring a fair trial to both sides and at the same time not doing anything that is terribly oppressive as far as the jury is concerned.

"The latter consideration is motivated not only out of concern for the jury but out of concern for the first consideration because if we discombobulate these jurors, they are not going to be able to view the thing with the same kind of concentration we would hope for under ideal conditions.

"So it seems to me that it is to everyone's advantage to have a jury that is not unstuck emotionally." (Tr. 1093.)

When the court reconvened the following morning, the jurors were again interrogated on whether they had been exposed to publicity about the trial. The response was negative. The guilty verdict on nine counts was returned later that day.*fn13 A post-trial motion for acquittal or a new trial, based on the assertedly erroneous denial of the motion for a mistrial because of the publicity about the attempt to plead guilty and the refusal to sequester the jury, was denied (R.65, 66). We affirm the judgment of conviction.

The Court Was Not Required to Interrogate the Jurors Individually and In Camera.

The defendant concedes that the law of this Circuit, under Margoles v. United States, 407 F.2d 727 (7th Cir. 1969), is that "only when a juror indicates (after the judge questions the jury collectively) that he has been exposed to any of the publicity in question is the defendant entitled to an individual and In camera inquiry of that juror" (Br. 11). Indeed, the Government is correct when it characterizes the procedures set out in Margoles as well-settled. See United States v. Battaglia, 432 F.2d 1115, 1118 (7th Cir. 1970), certiorari denied, 401 U.S. 924, 91 S. Ct. 868, 869, 883, 27 L. Ed. 2d 828; United States v. Barrett, 505 F.2d 1091, 1100 (7th Cir. 1975), certiorari denied, 421 U.S. 964, 95 S. Ct. 1951, 44 L. Ed. 2d 450; United States v. Akin, 562 F.2d 459 (7th Cir. 1977), certiorari denied, 435 U.S. 933, 98 S. Ct. 1509, 55 L. Ed. 2d 531. The Fifth Circuit summarily approved the collective interrogation procedure when the offending publicity, as here, consisted of reports that the defendant had entered and then withdrawn a guilty plea. United States v. Khoury, 539 F.2d 441 (5th Cir. 1976).

While he chose not to address this issue at all during oral argument, defense counsel in his brief urges that notwithstanding these precedents, the circumstances of this case made it reversible error not to interrogate the jurors individually. Although not clearly articulated, the argument appears to be twofold: (1) there was so much adverse publicity that it is inconceivable the jury was not influenced by it, and (2) in any event the specific collective interrogation procedure used here was unlikely to elicit admission by a juror that he had been exposed to outside influences.

The facts of this case do not support the contention that the publicity was so pervasive and hostile that prejudice should be presumed. The cases cited by defendant in this regard are plainly inapposite. Most of them involved sensational murder trials where the accused faced the death sentence and the media was saturated with virulently prejudicial publicity or with reports of the accused's confession. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600; Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663; Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751. In all of these cases, it was conceded that the jurors had been exposed to the adverse publicity, and the only question was whether it was so prejudicial that it must be presumed that the jury could not put it out of their minds. See also Marshall ...

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