Petition — Akin v. United States

| Supreme Court, U.$.

FILED

NOV 28 1977

j MICHAEL RODAK, JR., CLERK®

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. “| = 4 % 0)

ENNIS MONROE AKIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIP

BERNARD G. WINSBERG

DAVID A. ZIMMERMAN

Attorneys at Law

606 South Olive Street, #1123

Los Angeles, California %0014

Telephone: (213) 627-8727

Attornevs for Petitioner

—

TOPICAL INDEX

Page

PETITION

OPINIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

QUESTION PRESENTED

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

OWNNH HH

I. The procedure employed

by the District Court

in questioning jurors

to determine if they

had been prejudiced

by an inflammatory

newspaper article

found in the jury

room during trial

denied petitioner due

process of law and the

right to a fair trial

guaranteed by both the

Fourteenth and Sixth

Amendments to the

United States Constitu-

tion.

CONCLUSION 23

APPENDICES

A. Opinion Below 24

TABLE OF AUTHORITIES

Coppedge v. United States,

272 F.2d 504 (D.C.Cir. 1959)

cert. denied, 368 U.S, 855

Hall v. United States,

396 F.2d 428 (lOth Cir.1968)

cert. denied, 393 U.S. 986

Mares v. United States,

383 F.2d 805 (lOth Cir.1967)

cert. denied, 394 U.S. 963

Margoles v. United States

407 F.2d 727 (7th Cir. 1969),

cert. denied, 396 U.S. 833

Marshall v. United States,

360 U.S. 310 (1959)

McNabb v. United States,

318 U.S. 332 (1943)

Patriarca v. United States,

402 F.2d 314 (lst Cir. 1968)

cert. denied, 393 U.S.1022

United States v. Accardo,

298 F.2d 133 (7th Cir. 1962)

United States v. Barrett,

505 F.2d 1091 (7th Cir. 1975)

cert. denied, 421 U.S. 964

United States v. Battaglia,

432 F.2d 1115 (7th Cir. 1970)

United States v. Burr, 25 Fed.Cas.

p. 49 (Case No. 14,692g) (1807)

-ii-

Page

19

19

19

21,

22

21

16,

18

1}.

14,

15

13,

14

23

United States v, Hankish,

502 F.2d 71 (4th Cir, 1974)

United States v. Perrotta,

553 F.2d 247 (lst Cir.1977)

United States v. Pollizzi,

500 F.2d 856 (9th Cir.1974)

cert. denied, 419 U.S.1120

United States v. Rizzo,

409 F.2d 400, 402

(7th Cir. 1969)

United States v. Schrimsher,

493 F.2d 848 (5th Cir.1974)

United States v. Thomas,

463 F.2d 1061(7th Cir.1972)

-iii-

15

15,16,

18

19

12,15

19

14

STATUTES

Page

UNITED STATES CODES:

Title 18 U.S.C.§19(b) 2

Title 28 U.S.C.§1254(1) 2

MISCELLANEOUS:

American Bar Association's 2,

Standards Relating to Fair 9,

Trial and Free Press Section 18,

3.5(f£) (1974) 19

-iv-

SUPREME COURT OF THE UNITED STATES

ENNIS MONROE AKIN,

Petitioner,

vs.

UNITED STATES OF

AMERICA,

Respondent.

es es ees ees ss es

PETITION FOR

WRIT OF CERTIORARI

Petitioner, Ennis Monroe Akin,

through his attorneys, prays that a

writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the Court of Ap-

peals in Case No. 76-2022 is not

officially reported at this juncture,

pending an action upon this petition,

and is appended hereto (Appendix A,

infra, pp.24-44).

JURISDICTION

The judgment of the Court of Ap-

peals was entered on September 26, 1977.

Petitioner's Petition for Rehearing and

Suggestion of Appropriateness of Rehear-

ing En Banc were denied on October 28,

1977. A Petition for Stay of Writ of

Mandate pending application for cert-

iorari filed pursuant to F,R.C.P,. Rule

41(b), 28 U.S.C. was denied by that

Court on November 9, 1977. The juris-

diction of this Court is envoked under

U.S. Sup.Ct. Rule 19(b), 28 U.S.C.;

and 28 U.S.C. Section 1254(1).

STATEMENT OF THE CASE

Petitioner was indicted on June 7,

1976 for violating 18 U.S.C. Section

2315, prohibiting the sale and distri-

bution of stolen securities. Follow-

ing trial by jury, he was convicted

and sentenced to the custody of the 1/

Attorney General for 30 months. [597]-

QUESTION PRESENTED

1. Did the procedure employed by

the District Court in questioning

jurors to determine if they had been

prejudiced by an inflammatory newspaper

article found in the jury room during

trial deny petitioner due process of

law and the right to a fair trial guar-

anteed by both the Fourteenth and Sixth

Amendments, respectively?

A. Does the fact that a prej-

udicial newspaper account of

pending proceedings has found

its way into the jury room

during trial necessitate

1/ Bracketed numbers refer to the Reporter's

Transcript of the trial.

individual voir dire examina<

tion to determine if they have

been prejudiced by its con-

tent in conjunction with the

American Bar Association's

Standards Relating to Fair

Trial and Free Press Section

3.5(£) (1974), and in opposi-

tion to the rule enunciated

in Margoles v. United States,

407 F.2d 727 (7th Cir. 1969)?

STATEMENT OF FACTS

On January 27, 1976 certain munic-

ipal bonds were stolen from Municorp of

California. [390] The total face value

of the bonds was $1,491,000; the approx-

imate market value was $1,330,000. [391]

On May 22, 1976 co-defendant Lynn

Kucala was introduced to Nick Carbone

at the Hilton Hotel near Chicago's

O'Hare Airport. [208] One Bob Brown

performed the introduction. [117 and

208) In reality, Carbone was Special

Agent Dean Naum of the Federal Bureau

of Investigation. [117] Naum indicated

he had heard Kucala possessed valuable

securities that were available for

sale. The parties entered into prelim-

inary negotiations for the purchase of

the bonds. [118] Agreeing to meet

Naum later at the bar in the hotel so

Xerox copies of the bonds could be ex-

amined, Kucala departed. [120 and 123]

When they met again, Kucala stated he

was unable to bring the bond copies

with him, but he would call the person

who had them and arrange another time

o3-

for their inspection, [124 and 209]

Kucala called the home of co-defend-

ant Jerome Fusco, but no one answered.

[209,210] Later, Kucala made a con-

tact with Fusco's daughter and pro-

ceeded to Fusco’s residence. [210]

Kucala obtained the copies and returned

to the hotel. [211] Naum examined the

copies and indicated that the people he

represented would pay $170,000 for the

bonds. [125] Kucala stated he would

have to call California and check with

the person he was representing. [126]

Unable to reach this party, Kucala said

he would call Naum later in the evening.

[127]

At 9:20 that night, Kucala reached

Naum by phone. [127] Kucala indicated

that his people were willing to accept

$200,000 for the bonds. A “side agree-

ment" was arranged whereby Naum would

tell his people that the securities were

sold for $230,000. [128] The negotiat-

ors would then split the $30,000 differ-

ence of actual sale price and reported

sale price between them. [127,128]

Kucala tentatively agreed to make

the switch in a bank in Indianapolis

the following Tuesday. [128] On Monday,

May 24, 1976, Naum called Kucala confirm-

ing readiness to complete the trans-

action. [129]

At 1:30 A.M. on Tuesday, Mary 25,

1976, Kucala arrived at Weir Cook Air-

port in Indianapolis. [130] Agent Naum

met him at the coffee shop. [131 and 222]

Naum indicated that the transfer of cash

and securities was set for the follow-

ing morning at the American Fletcher

Bank. [223] At this points, Naum was

not aware that Kucala had flown into

Indianapolis with co-defendant Jerome

Fusco. [222] Neither Fusco nor Kucala

had bonds with them on the flight. [223]

According to Kucala at approximately

8:00 that morning he met with co-defend-

ant Fusco and petitioner in Room 242 of

the Airport Hilton Hotel. [225] Kucala

explained to them that he was to meet

"Nick Carbone” in the hotel lobby a

little later and the transaction would

take place soon thereafter. [225]

Kucala did not see the bonds in the room,

but noticed a brown suitcase. [227]

Kucala testified that petitioner indi-

cated that only half the bonds were in

the room, and that he (petitioner)

would have to get the other half. [227]

Then petitioner purportedly made a

telephone call to an undisclosed person

and said, "Come on over". [228] Shortly

after this there was a knock at the

door, and a suitcase was handed to

petitioner. [228] Kucala did not see

who handed the suitcase through the

door. [228,229]

At 8:45 A.M. federal agents ob-

served two individuals in the hotel

lobby who were identified at trial as

co-defendants Beverly Lloyd Hart and

petitioner. [134,135,136] Later, at

9:00 A.M. Naum and two other agents

in their undercover capacity met with

Kucala in the lobby. [133] The other

agents were posing as a Latin business

man, interested in buying the securities,

and his body guard. [133]

Naum introduced Agent Walton as

"Luis Agvirre". [137] Then Kucala

ama &ha amwaanmtbé ao OAemeem & em Ste ham tie r7oI7 7

Kucala indicated enroute that he would

examine the money and if it was in

order, he would return to the hotel,

pick up the securities and come back

to the bank to complete the trans-

action. [137,136]

After arriving at the bank, Kucala

examined the money. [138] Stating that

it was alright, he returned to the hotel

by cab. [138,139] Kucala picked up a

suitcase containing the bonds that had

been checked with the desk clerk. [230]

On his way out Kucala testified that he

asked Fusco and petitioner for "somer

thing to put the money in". [231]

Petitioner handed Kucala an attache case.

[232] Then Kucala returned to the bank,

[233] He was arrested inside while

agents examined the bonds. [233] A

simulated arrest of Agents Naum and

Walton was also performed at this time.

[140]

Some 15 to 20 agents were summoned

to the Airport Hilton Hotel. [141]

Agents Naum and Walton arrived there at

approximately 11:45 A.M. [141]

Agents Richard Bulman and John

Boyer arrived at Noon. [5] They immed-

iately proceeded to hotel Room 242,

[5,6] Agent Bulman observed that the

door to the room was open. [6] He

walked into the room. [6 and 39] Agent

Boyer also walked in and observed

shaving articles in the bathroom. {40}

Then the agents went out into the

hallway and waited until 1:10 P.M.

before going back into the room. [6,7]

-6<

Du. ing the time they waited Bulman

reportedly received information that

"someone had consented to the serach of

the room". [12] Susan Cooper, the desk

clerk at the hotel, testified that it

would be permissible for the agents to

search the room after 1:00 P.M. [47]

She also stated that although check out

time was 1:00 P.M., during the course

of ordinary business, nothing would be

removed from a guest's room at that time

of day. [54] Cooper testified that

6:00 P.M. was the new day for billing

purposes. [55] No one had paid for the

use of the room in question. [49] How-

ever, upon billing, payment was received.

[49]

At 1:10 P.M. the agents re-entered

Room 242 and conducted a search. [7]

Toilet articles, glasses, dishes, cups,

latent fingerprints, and an airline

sticker bearing petitioner's name were

confiscated. [9,10]

During trial on August 20, 1976,

the defense counsel notified the District

Court that the Indianapolis Star had

printed an article quoting Judge Dillin's

comment made at the time of his ruling on

a motion for judgment of acquittal. [454]

The article contained the following

passage:

"However Judge Dillin

ruled he felt the gov-

ernment had very little

difficulty in proving

each and all defendants

guilty beyond a reason-

able doubt." [454]

ote

Defense counsel requested that the

judge interrogate each juror individu-

ally to determine if any or all had

read the article. [454,458] Refusing

to do this, Judge Dillin indicated he

would collectively ask the jurors

whether they had read the article be-

fore any juror would be questioned,

[455] The judge stated that any other

procedure would be "a complete waste

of time". [455] Defense counsel urged

that the pressure already created by

the judge's order prohibiting the

reading of media accounts of the trial

would make them reluctant to admit, in

open Court, that they had read the

article. [455,456, and 458]

Nevertheless, the jurors were

collectively questioned. [459] Two

jurors indicated they had read the

paper. [459] Predictably, neither

admitted reading the article. [460]

However, one juror stated that he had

brought the paper into the jury room

that morning. [459]

REASONS FOR GRANTING THE WRIT

This case presents the opportunity

to reconcile procedures, presently in

diametric opposition, employed by the

several Circuits, to determine if

prejudicial publicity occurring during

trial has resulted in denial of both

due process and a fair trial.

Of the seven Circuits which have

considered the question presented on

facts somewhat homologous to those

ofa

found in the instant case, three adhere

to one posture, while the remaining four

adopt the procedure petitioner urges

this Court to embrace as the law in the

federal Courts of this nation.

The first procedure, subscribed to

by the Fifth, Ninth, Tenth and District

of Columbia Circuits, as well as the

American Bar Association's Standards

Relating to Fair Trial and Free Press

Section 3.5(f£) (1974), demands that

jurors be questioned individually to

determine whether they have been ex-

posed to such publicity, and if so,

whether they have been prejudiced by

it.

The second method applied by the

First, Fourth, and Seventh Circuits

demands only that jurors be questioned

collectively to determine if they have

been exposed to prejudicial publicity,

and upon affirmative response, interro-

gated on an individual basis to ascer-

tain its effect.

The Circuits are in harmony con-

cerning the admonition of jurors to

refrain from reading, watching, or

hearing prejudicial news media accounts

of proceedings during a trial. Indeed,

it is this very admonition which high-

lights the unfair nature of the collect-

ive voir dire process. it is suggested

before this Court, as it was in the

instant case before the District Court,

and Circuit Court of Appeals, respect-

ively, that in the face of repeated

entreaties from the bench to avoid

-3-

publicity during trial, jurors are

reluctant, at best, to admit in open

Court that they have been exposed to

such media bombardment.

An examination of the long line

of decisions dealing with the question

of which procedure should be followed

might well begin with an explanation

of the ruling in the Seventh Circuit's

leading case of Margoles v. United

States, 407 F.2d 727 (7th Cir. 1969)

cert. denied, 396 U.S. 833.

In Margoles defense counsel re-

quested that jurors be interviewed

" so. . each one or all collectively

. . ." 2/ to determine if any had read

newspaper accounts of the trial in

progress. Indeed, the Seventh Circuit

Court of Appeals, in reviewing the

propriety of the District judge's

action in collectively questioning

jurors to see if they read such

articles, stated that ae 7

". . . precisely what .. .[({hej]. ..

had oan for + his motion."3/ It was

from this set of facts, which petitioner

submits amount to an unadulterated

waiver of the right to have the jury

interrogated individually, that the

Margoles voir dire procedure was born.

That procedure demands in unequivocal

language that the jurors must be .

questioned collectively before any in-

dividual examination may begin.

2/ Id. at 734

3/.-—s ‘Id. at 734

-10-

"Thus, the procedure re-

quired by this Circuit

where prejudical public-

ity is brought to the

Court's attention during

a trial is that the Court

must ascertain if jurors

who have been exposed to

such publicity had read

Or heard the same. Such

jurors who respond affirm-

atively must then be ex-

amined, individually and

Outside the presence of

the other jurors, to de-

termine the effect of the

publicity. However, if

no juror indicates, upon

inquiry made to the jury

collectively, that he has

read or heard any of the

publicity in question,

the judge is not required

to proceed further." 4/

It is patently apparent then, that

the Margoles holding is tantamount to

legislative action by the Court of Ap-

peals. From a fact pattern which high-

lights acquiescence on the part of de-

fense counsel, the Margoles Court in-

stituted an arbitrary and inflexible

procedure for determination of the ef-

fect of prejudicial publicity taking

place during a trial. This is true even

though the Court paid lip service to its

Own earlier decision in United States v,

Accardo, 5/ a case which crystallized the

/ Id. at 734

/ 298 F.2d 133,(7th Cir. 1962)

4

2

-ll-

proposition that "[{eJach case must, of

course, be decided on its own facts."6/

The injustice of the usage of this

procedure in the instant case is show

cased by the factual distinction between

it and the case before the Court in

Margoles. As noted, counsel requested

—-— er

any form of voir dire examination in

Margoles. At petitioner's trial counsel

cleariy and vigorously argued that the

jury should be questioned individually

to determine if they had read the prej-

udicial article found in the jury room

during the proceedings. [455] In re-

sponse to defense counsel's plea that

pressure created by the judge's admo~

nition prohibiting the reading of media

accounts of the trial might make the

jurors hesitant to admit having read

the article in question, the Court re-

sponded that any other procedure would

be a "complete waste of time". [455,456]

The opinion of the Seventh Circuit

Court of Appeals dramatizes the diffi-

culty that Court experienced in its un-

convincing attempt to reconcile the .

Margoles method with the facts of this

Ceti

case. Citing United States v. Rizzo,

409 F.2d 400,402 (7th Cir. 1969) for the

notion that "a different procedure might

be appropriate under special circum-

stances", //the Court has, in effect,

stated that the unequivocal language

6/ Margoles v. United States, 407 F.2d,727,733

7/ United States v. Akin,No.76-2022 at p.18

(1977)

-12-

of Margoles is to be applied at the whim

of the District Courts in that Circuit.

Petitioner submits that while-Margoles

breathes life by remaining on the books,

the Seventh Circuit Court of Appeals is

powerless to contradict itself in such

a wholesale manner. One procedure or

the other must be the law, and now in

addition to the conflict existing be-

tween the Circuits on this problem, a

conflict has arisen between the deci-

sions within an individual Circuit.

In what appears to be a rather

feeble effort to justify its posture on

this issue, the Court of Appeals cites

a number of its earlier decisions rel-

evant to the disposition of publicity

problems occurring during trial. It is

submitted that none has so squarely pre-

sented this issue as has the instant

case, nor do they shed any light on the

dilemma that the District Courts will

face in the future when confronted

with the situation. Indeed, although

this Court has refrained from granting

its writ of certiorari in the cases

cited by the Court of Appeals, it is

submitted that none of them presented

the precise factual basis found in the

instant case on which this Court could

frame a decision to end the contro-

versy.

First, in the line of cases cited

by the Seventh Circuit as authority for

the proposition that the Margoles pro-

cedure adequately resolves prejudicial

publicity problems taking place during

a trial is United States v. Battaglia,

-13-

432 F.2d 1115 (7th Cir. 1970) Petitioner

submits that Battaglia may be summarily

dismissed as unenlightening. The facts

surrounding the invocation of the Mar-

goles procedure are not recited in the

opinion, and there is no indication re-

garding objection by trial counsel to

the voir dire procedure employed.

In United States v. Thomas, 463

F.2d 1061 (7th Cir. 1972) defendant's

conviction was reversed when, after a

request by counsel for "a hearing to

determine the jury's exposure to... -

[an] article, or for a mistrial," the

District judge refused to poll the

jury. 8/Although the Margoles procedure

rears its head once again,9/it is read-

ily apparent that the case does little

to clarify the individual versus col-

lective voir dire questions presented

here.

Similarly, United States v.

Barrett, 505 F.2d 1091 (7th Cir. 1975),

cert. denied 421 U.S. 964, adds

nothing to a resolution of the instant

problem. In Barrett a prejudicial

newspaper article was published over a

week end break in defendant's trial.

Following the Margoles directive, the

jury was collectively polled to deter-

mine if they had read the article, Re-

ceiving a negative response, the trial

continued without further inquiry. As

noted, in the instant case, the danger

8/ Id. at 1063.

9/ _—s' Id. at 1063.

-14-

of exposure to the prejudicial article

was dramatically greater, since the

article in question had found its way

into the jury room. Again, the Barrett

decision is silent on the collective —

versus individual voir dire problem,

United States v. Rizzo, 409 F.2d

400 (7th Cir. 1969), cert. denied, 396

U.S. 911, another in a string of cases

cited by the Court of Appeals as con-

trolling authority in this case, is

likewise off point. In Rizzo, a radio

broadcast mentioning defendant's con-

fession which had previously been ex-

cluded by the trial Court was the sub-

ject of the dispute. The case differs

from that found here for the simple

reason that the opinion in Rizzo gives

no indication whatsoever that the jurors

were in a position to hear the broad-

cast. Again, in the instant case, the

article damning petitioner was found in

the jury room, and two jurors had in-

dicated they had "looked" at the paper,

[459] Rizzo adds nothing to the reso-

lution of the collective versus indi-

vidual voir dire problem.

Finally, the Court of Appeals notes

that the First and Fourth Circuits have

adopted the Margoles procedure.19/ Peti-

tioner suggests that in light of the de-

cision in the instant case, confusing

even the application of the Margoles

method of juror interrogation, the fact

that other Circuits have followed

10/ United States v. Perrotta,553 F.2d 247

(lst. Cir. 1977); United States v. Hank-

ish, 502 F.2d 71 (4th Cir. 1974)

-15-

Margoles should appreciably enhance this

Court's willingness to put an end to

the disparity existing between the Cir<

cuits on this recurrent and important

discordance,

The Perrotta, (supra)decision evi-

dences the extent to which the Margoles

procedure has misguided the federal

Courts when it is contrasted with ear-

lier decisions eminating from the same

Circuit. During the Perrotta trial the

evening edition of the Springfield

Daily News carried the headline:

"Judge Bars Raid Cash as Gambling Evi-

dence". One hundred sixty three thous-

and dollars in currency previously

seized from the home of a deceased co-

defendant was suppressed because its

probative value was outweighed by its

prejudicial effect. Defendant's con-

viction was reversed because the judge

failed to poll the jury per counsel's

request to determine if the jurors had

been exposed to the article. While

noting that the subject of during trial

publicity was a matter of first impres-

sion in the First Circuit, the Court

adopted the Margoles procedure of col-

lective voir dire in carte blanche

fashion.

An earlier decision of the First

Circuit in Patriarca v. United States,

402 F.2d 314 (lst Cir. 1968), cert.

denied, 393 U.S. 1022 is in direct op-

position to the Perrotta mandate.

Patriarca was a case which grew out of

the widely publicized Valachi hearings.

During voir dire of the jury before

-16-

trial, defense counsel requested that

the judge ask a single question relat-

ing to whether there was any member of

the jury who felt that he would be un-

able to give the defendant a fair and

impartial trial. Upon receiving no

response from the prospective jurors,

and upon counsel's reply of, "Fine,

thank you, Your Honor", the trial com-

menced.

On review by the First Circuit

Court of Appeals this procedure was

assailed as totally ineffective in

ferreting out jurors prejudiced by the

pre-trial publicity. While noting that

error could not be charged when the

District Court complied with the mini-

mal procedure requested by counsel, the

First Circuit nevertheless stated:

"While the Court did all

that was requested at this

juncture, and cannot under

the circumstances of this

case be charged with error

in not inquiring further,

sua sponte, we feel bound

to concede that such a

single question posed to

the panel en bloc, with

an absence of response,

achieves little or nothing

by way of identifying,

weighing, or removing any

prejudice from prior pub-

licity. In cases where

there is, in the opinion

of the Court, a signifi-

cant possibility that

elJe

jurors have been exposed

to potentially prejudicial

material, and on request

of counsel, we think that

the Court should proceed

to examine each prospect-

ive juror apart from the

other jurors and prospect-

ive jurors, with a view

to eliciting the kind and

degree of his exposure to

the case or the parties,

the effect of such expos-

ure on his present state

of mind, and the extent

to which such state of

mind is immutable or sub-

ject to change from evi-

dence. In this we are

in accord with the sug-

gestions of Section 3.4

of ABA, Standards Relating

to Fair Trial and Free

Press, (Tentative Draft,

Dec. 1966), pp.130-137."

[402 F.2d 318]

Petitioner submits that the dram-

atic distinction between the tone of

the Perrotta and Patriarca decisions

is the handiwork of the ill reasoned

Margoles case. Moreoever, since

Perrotta was cited by the Seventh Cir-

cuit in petitioner's case,ll/ it can

hardly be said that the mare's nest of

confusion disseminated by Margoles is

undoing itself.

United States v. Akin,No.76-2022 at

- 18 (1977)

«19@

Indeed, the alternative method ad-«

vocated by petitioner is congruant with

the weight of authority. Collective in-

quiry of jurors to determine if they

have read or heard prejudicial media

accounts of a pending trial is the pro-

cedure embraced by the Fifth, Ninth,

Tenth and District of Columbia Cir-

cuits. United States v. Schrimsher,

493 F.2d 848 (5th Cir. 1974); United

States v. Polizzi, 500 F.2d 856 (9th

Cir. 1974),cert. denied, 419 U.S.1120;

Silverthorne v. United States, 400 F.2d

627 (9th Cir. 1968), cert. denied, 400

U.S.1022; Mares v. United States, 383

F.2d 805 (10th Cir. 1967), cert. denied,

394 U.S. 963; Hall v. United States,

396 F.2d 428 (10th Cir. 1968), cert.

denied 393 U.S. 986; Coopedge v. United

States, 272 F.2d 504 (D.C.Cir. 1959),

cert. denied, 368 U.S. 855.

In addition, as the Seventh Cir-

cuit was imminently aware when it is-

sued its decision affirming petitioner's

conviction, the American Bar Associa-

tion's Standards Relating to a Fair

Trial an. Free Press Section 3.5(f),

(1974) are in accord with the position

petitioner urges this Court to adopt.

"(f) Questioning jurors

about exposure to poten-

tially prejudicial mater-

ial in the course of the

trial; standard for ex-

cusing a juror.

"If it is determined that

material disseminated

-19-

during the trial goes

beyond the record on

which the case is to

be submitted to the

jury and raises ser-

ious questions of

possible prejudice,

the Court may on its

own motion or shall

on the motion of either

party question each

juror, out of the

presence of the

others, about his

exposure to that

material. The exam-

ination shall take

place in the presence

of counsel, and an

accurate record of

the examination shall

be kept. The stand-

ard for excusing a

juror who is chal-

lenged on the basis

of such exposure

shall be the same

as the standard of

acceptability rec-

ommended in Section

3.4(b), above, ex-

cept that a juror who

has seen or heard re-

ports of potentially

prejudicial material

shall be excused if

reference to the

material in question

at the trial itself

would have required

-20-

a mistrial to be de-

clared,"

Futhermore, petitioner urges tiis

Court to exercise its supervisory power

to formulate and apply proper standards

for the enforcement of the criminal law

in the federal Courts. McNabb v. United

States, 318 U.S. 332 (1943). A similar

Situation to that present in the in-

stant case served as a basis for this

Court issuing its writ of certiorari in

Marshall v. United States, 360 U.S. 310

(1959). In Marshall, defendant was

convicted of unlawfully distributing

drugs without a prescription from a

licensed physician. During the trial

two prejudicial newspaper articles were

published. The District Court judge

individually interrogated the jurors to

determine if they had read the articles.

Some of them had read them, although

all jurors polled stated they would not

be influenced by the content of the

articles. The District judge denied

defendant's motion for a mistrial. On

certiorari, this Court reversed defend-

ant's conviction. While paying homage

to the "special facts" doctrine alluded

to, supra, this Court stated:

"We have here the expos-

ure of jurors to infor-

mation of a character

which the trial judge

ruled was so prejudicial

it could not be directly

offered as evidence. The

prejudice to the defend-

ant is almost certain to

aZie«

be as great when that

evidence reaches the

jury through news ac-

counts as when it is

a part of the prose-

cutor's evidence.”

[360 U.S. 312, 313]

Petitioner submits that the same

brand of prejudice meriting reversal in

Marshall is present in the instant case.

In a Situation in which a statement made

by the District Court judge summarily

pronouncing all defendants guilty be-

yond a reasonable doubt finds its way

into the jury room, a more intimate

form of interrogation than "raise your

hand if you've read the article" is

necessary to ensure the juror's minds

have not been poisoned.

CONCLUSION

Long ago then District Judge Mar-

shall stated:

"The great value of

a trial by jury

certainly consists

in its fairness and

impartiality. Those

who prize the insti-

tution, prize it be-

cause it furnishes a

tribunal which may

be expected to be

influenced by an

undue bias of the

mind. I have always

conceived, and still

w32@

conceive, an impartial

jury as required by the

common law, as is secured

by the Constitution, must

be composed of men who

will fairly hear the test-

imony which may be offered

to them, and bring in their

verdict according to the

law arising on it. This

is not to be expected,

certainly the law does

not expect it, where the

jurors, before they hear

the testimony, have de-

liberately formed and

delivered an opinion

that the person whom

they are to try is guilty

or innocent of the charge

alleged against him..."

United States v. Burr,

25 Fed.Cas.page 49 (Case

No. 14,692g), (1807)

Based on the foregoing arguments

and points and authorities, petitioner

respectfully requests that this Court

issue its writ of certiorari to review

the judgment of the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

BERNARD . Php

DAVID A.

DAVID A. RMAN ,

iaeane Petitioner

@23<

APPENDIX

a26e

A

In the

Gnited States Court of Appeals

For the Seventh Circuit

No. 76-2022

UNITED STATES OF AMERICA,

Plaintiff-A ppellee.

ENNIS MONROE AKIN,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. IP 76-82-CR—S. Hugh Dillin, District Judge.

ARGUED MAY 23, 1977—DECIDED SEPTEMBER 26, 1977

Before CASTLE, Senior Circuit Judge, Woop, Circuit

Judge, and MARKEY, Chief Judge.*

Woop, Circuit Judge. Bearer bonds and municipal!

bonds with a face value of $1,491,000 were stolen from

MuniciCorp of California on January 27, 1976.

Defendants-appellants Ennis Monroe Akin and Beverly

Lloyd Hart (hereinafter collectively referred to as defen-

dants) were subsequently found guilty after a trial by

jury of violating 18 U.S.C. § 2315.' Defendant Hart was

* The Honorable Howard T. Markey, Chief Judge of the

United States Court of Custems and Patent Appeals, is sitting

by designation.

1 Jerome James Fusco and Lynn Joseph Kucala were also in-

dicted along with defendants. Kucala pled guilty and testified

on behalf of the Government. Fusco was tried and convicted

along with defendants but has not joined in this appeal.

2 No. 76-2022

found not guilty of the second count of the indictment

which alleged that he had transported stolen securities

In interstate commerce. Defendants on appeal assert the

following: 1) evidence gained from a _ warrantless

search of Akin’s hotel room should be suppressed; 2)

the district court conducted an insufficient voir dire

when during the course of trial a newspaper article con-

taining prejudicial information was found in the jury

room; 3) the prosecutor engaged in prejudicial miscon-

duct; and 4) the record contains insufficient evidence to

support the conviction of defendant Hart.

We find for the following reasons that the convictions

of the defendants should be affirmed.

The facts are briefly as follows:

On May 22, 1976, Dean G. Naum, a special agent for

the Federal Bureau of Investigation who was posing as

Nick Carbone, was introduced to Joseph Kucala. Kucala

was using the name Lenny McNamara. This meeting

took place at the O’Hare Hilton Coffee Shop in Chicago,

Illinois. During this meeting, Kucala indicated that he

had municipal bonds and bearer bonds “taken during a

score in California.” Naum stated that before he could

purchase the stolen bonds, he would have to look at the

bonds and then check with the people he was working

for. Naum stated that he was representing a Latin-

American businessman who was interested in purchas-

ing stolen securities.

At 3:30 p.m. that afternoon, Kucala produced xerox

copies of tne bonds for Naum’s examination. After ex-

amining the copies of the bonds, Naum offered to

purchase the bonds for $170,000. Kucala tried several

times unsuccessfully to telephone a contact in California

to check on the price.

At 9:20 that evening, Kucala telephoned Naum in his

hotel room and stated that his people would accept

$200,000 for the bonds. A side agreement was arranged

whereby Naum was to tell his people that the bonds

would cost $230,000 while he and Kucala split the $30,-

000 difference. Naum and Kucala tentatively agreed

that the transaction could be consumma on the

following Tuesday in Indianapolis, Indiana.

-26-

No. 76-2022 3

At 1:30 or 1:45 a.m. on the morning of May 25, 1976,

Kucala and Naum met in the lobby of the Indianapolis

Airport Hilton Hotel in Indianapolis, Indiana. Kucala

and Naum then went to a coffee shop at the Indianapolis

airport to discuss the sale of bonds. Naum stated that

the transaction was to be completed in the conference

room of a bank. Kucala replied that he would have to

check with his people to determine if this was accept-

able. Naum and Kucala agreed to meet at 9:00 a.m. in

the lobby of the Indianapolis Airport Hilton Hotel.

Kucala testified that at 8:00 a.m. on the morning of

May 25, he met with defendants Fusco and Akin in

Room 242 of the Indianapolis Airport Hilton Hotel.

According to Kucala, both Akin and Fusco expressed

reluctance about having the transaction take place in a

bank. Kucala also stated that he did not see the bonds

while in room 242. He only saw a brown suitcase.

According to Kucala, Akin referred to the brown suit-

case and stated that only one-half of the bonds were

there and that he would have to get the remainder of the

bonds. Akin then made a telephone call and instructed

someone to “come on over.” Moments later there was a

knock on the door, a suitcase was handed in to Akin and

the door closed. Kucala did not see who handed the suit-

case to Akin.

Shortly before 9:00 a.m on May 25, Naum went to the

lobby of the Indianapolis Airport Hilton Hotel and

waited for Kucala. Naum observed an individual, who

he identified at trial as defendant Hart, sitting diagonal-

ly across from him. In addition, a second individual who

Naum identified as defendant Akin came up to defen-

dant Hart and briefly spoke with him. Kucala entered

the lobby several minutes later.

Special Agent Walton, who was posing as a Latin-

American businessman for whom Naum was working,

and Special Agent Silva, who was acting as Walton's

bodyguard, were introduced to Kucala. Naum, Kucala,

Walton and Silva then drove to the American Fletcher

Bank, Nora Branch. During the drive to the bank,

Kucala stated that he would first examine the money at

the bank and, if all was in order, return to the hotel for

the bonds and then come back to the bank to complete

the transaction.

-271-

4 No. 76-2022

Upon arrival at the bank, Kucala checked the money

and then returned to the Indianapolis Airport Hilton

Hotel for the bonds. Kucala picked up a brown suitcase

at the front desk of the hotel which contained the bonds.

As Kucala was about to leave for the bank, he realized

that he needed something to put the money in. At that

moment, he saw Akin and Fusco walking to the hotel.

After explaining his need, Akin gave Kucala his (Akin’s)

attache case. While still in front of the hotel, Kucala saw

Akin and Fusco with a third individual whom he was

unable to identify at trial. Kucala returned to the bank

and was arrested by agents of the FBI.

After Kucala’s arrest, FBI agents searched room 242

at the indianapolis Airport Hilton Hotel and found the

fingerprints of defendants Hart, Fusco, and Akin.

1. Motion to Suppress.

Defendants moved prior to trial to suppress the

evidence discovered in the warrantless search of room

242 after the arrest ef Kucala. A brief description of the

events leading up to the warrantless search of room 242

follows.

Shortly before noon on May 25, 1976, and after

Kucala’s arrest, FBI agents learned from the desk atten-

dant at the Indianapolis Airport Hilton that defendant

Akin, the occupant of room 242, had not yet checked out

of the hotel. Special Agents Blackketter, Keenan,

Bulmahn, and Boyer then proceeded to room 242 in an

effort to find defendant Akin for questioning. The

agents found the door to room 242 wide open. Agents

Bulmahn and Boyer entered the room looking for a

cleaning maid and left when they did not find a maid in

the room. Agent Bulmahn stated that although he was

in the room for only a brief time, he recalled seeing a

number of toilet articles in the bathroom. Agent

Blackketter looked in but did not enter the room and

then proceeded down the hallway where he saw a clean-

ing maid's cart. The maid informed Blackketter that she

had not yet cleaned room 242 and did not know whether

the occupant of that room had checked out.

-28-

No. 76-2022 +)

Thereafter, Blackketter and Keenan went down to the

hotel front desk while Bulmahn and Boyer stayed in the

hallway outside of room 242. Blackketter and Keenan

asked to speak to the person in charge of the hotel! and

were referred to Susan Kay Cooper, secretary to the

General Manager of the hotel. Ms. Cooper indicated that

she had authority to act in the absence of the General

Manager and brought out the registration card for room

242. The registration card indicated that defendant

Akin had rented room 242 for one night and that he had

checked in on the evening of May 24. The registration

card also reflected that defendant Akin had not yet paid

for either the room or for charges from room service.’

Ms. Cooper did not find any indication that defendant

Akin planned to stay in the hotel for an additional day.

Neither was there evidence that defendant Akin had

nermission to leave the hotel and pay at a later date. In

response to the agents’ request to see the room, Ms.

Cooper stated that they could enter the room if it was

not paid for by 1:00 p.m. Although an individual would

not be billed for an additional day until after 6:00 ne.

Ms. Cooper stated at trial that 1:00 p.m. was the hotel

check-out time. According to Ms. Cooper, the 1:00 p.m.

check-out time enables the maids to make the hotel

rooms ready for the new occupants. Ms. Cooper further

testified that the maids have pass keys and are in-

structed to let the housekeeper know whether a room is

vacant. Ms. Cooper also stated that although people who

rent a room for one day occasionally stay for a longer

period of time, they usually let the hotel know in ad-

vance of their change in plans.

When room 242 was net paid for by 1:00 p.m., Ms.

Cooper at 1:10 p.m. went up to roorn 242 with the FBI

agents. Ms. Cooper found the door to room 242 open,

stopped in the doorway and saw nv signs of occupancy in

the room. Ms. Cooper stated that the rooms are designed

so that luggage or clothing hanging in the closet can be

seen from the doorway. After concluding that the room

was not occupied, Ms. Cooper gave the agents permis-

sion to enter the reom. The agents found various toilet

2 Ms. Cooper at trial testified that a bill for the room was

mailed to Akin on June 2 and that payment was not received

until June 30, 1976.

ie

6 No. 76-2022

articles in the bathroom as well as glasses, cups, dishes

and discarded papers. Several of these articles as well as

latent fingerprints found in room 242 were introduced

in evidence.

The district judge denied the motion to suppress find-

ing that the evidence demonstrated that Akin had

abandoned the hotel room. The lower court first ruled

that room 242 was abandoned at the time of the initial

entry shortly before noon when the agents found the

door wide open and there was neither luggage in the

room nor suits hanging in the closet. In addition, the dis-

trict judge pointed out that the FBI agents chose not to

rely on the abandoned state of the room but rather

refrained from undertaking a search until after the

check-out time when permission was given by Ms.

Cooper.

Although room 242 was rented by and subsequently

paid for by defendant Akin, defendant Hart, as well as

defendant Akin, asserts that the district court

erroneously denied the defendants’ motion to suppress.

Defendant Hart claims that he was standing to contest

the validity of the search of room 242 for two reasons.

First, defendant argues that the Government failed to

challenge his standing in the district court. We find,

however, that on pages 5 and 6 of the Government’s

Response to Defendant Hart’s Pretrial Motions, filed on

July 30, 1976, the Government questioned defendant’s

standing. Defendant Hart, citing United States v. Mul-

ligan, 488 F.2d 732 (9th Cir. 1973), cert. denied, 417 U.S.

930, also asserts that his motion to suppress is in effect a

claim of « proprietary interest in room 242. We cannot

agree with defendant's argument on this point. The

court in Mulligan ruled that although a car was

registered under a fictitious name, Mulligan was the

true proprietor of the car and therefore had standing to

contest the validity of the search of the car. In the pres-

ent case, however, the record does not show that defen-

dant Hart had any proprietary interest in room 242.

As has often been stated, “suppression of the product

of a Fourth Amendment violation can be successfully

urged only by those whose rights were violated ~ the

search itself, not by those who are aggrieved solely by

-30-

No. 76-2022 7

the introduction of damaging evidence.” Alderman v.

United States, 394 U.S. 165, 171-2 (1969), cited in United

States v. Lisk, 522 F.2d 228 (7th Cir. 1975), cert. denied,

423 U.S. 1078. We find that defendant Hart falls in the

latter category and, therefore, cannot contest the validi-

ty of the search of room 242.

Defendant Akin argues that the district judge erred in

denying the motion to suppress for the following

reasons: 1) the hotel room was not abandoned at the

time of the search; 2) the desk clerk had no authority

to consent to the search of the room; and_ 3) at the time

of the search, defendant Akin retained a reasonable ex-

pectation of privacy in room 242.

_For the following reasons, we find defendant's conten-

tions to be without merit.

“A hotel room can clearly be the object of Fourth

Amendment protection as much as a home or an office.”

Hoffa v. United States, 385 U.S. 293, 301 (1966). Fourth

Amendment protection, however, is dependent on the

right to private occupancy of the room since at the con-

clusion of the rental period, “the guest has completely

lost his right to use the room and any privacy associated

with it.” United States v. Croft, 429 F.2d 884, 887 (10th

Cir. 1970). At the conclusion of the occupancy period,

the hotel manager may enter the room or consent to its

search. United States v. Parizo, 514 F.2d 52, 54 (2d Cir.

1975). The question of intentional abandonment is,

therefore, a necessary inquiry only during the rental

period when defendant has “sufficient control over the

premises to establish a right to privacy therein.” Parizo,

514 F.2d at 55.

We agree with the district judge that the room was

abandoned at the time the F BI agents entered room 242

shortly before noon on May 25. The test for abandon-

ment is whether the complaining party retains a

reasonable expectation of privacy in the premises.

United States v. Wilson, 472 F.2d 901, 902 (9th Cir.

1972), cert. denied, 414 U.S. 868. Abandonment raises

questions of fact and intent of the person who allepedly

abandoned the property. United States v. Minker, 313

F.2d 632 (3rd Cir. 1962), cert. denied, 372 U.S. 953.

- 2\|—-

8 No. 76-2022

Friedman v. United States, 347 F.2d 697 (8th Cir. 1965),

cert. denied, 382 U.S. 946. As the trial judge pointed out,

the door of room 242 was wide open and there was

neither luggage nor suits in the room. We agree with

the district judge that the toilet articles left in the room

could have been easily overlooked by defendant Akin

and do not, therefore, demonstrate that the room was

not abandoned. Nor do we find support for defendant's

assertion that the door was left open by a maid for the

purpose of making the bed. According to Agent

Biackketter, the maid only said that she had not yet

cleaned the room. In addition, although defendant was

not arrested until early June, 1976, there is no evidence

that defendant ever returned to room 242. On the basis

of these facts, we cannot say that the district court’s con-

clusion was clearly erroneous.

In addition, as the district judge pointed out, the FBI

ayents waited until permission from Ms. Cooper was ob-

tained after the 1:00 p.m. check-out time to undertake a

search of the room. At the time Ms. Cooper consented to

the searen, rent frorn the prior day had not been paid

and there was neither an indication of occupancy nor

arrangements for an extension of the rental period.

Since the record supports the district court’s conclusion

that the rental period ended at the 1:00 p.m. check-out

time rather than at 6:00 p.m. when an individual would

be billed for an additional day, Ms. Cooper as the

autherized representative of the hotel had the authority

to consent to the search of the room.

Finally, defendant erroneously relies on Stoner v.

California, 376 U.S. 483 (1964), for the proposition that

Ms. Cooper did not have authority to consent to the

search of the room. The court in Stoner ruled that hotel

employees do not possess blanket authority to authorize

searches of the rooms of hotel guests. Ms. Cooper’s con-

sent in the present case, on the other hand, was given

atter the expiration of the rental term and was,

therefore, proper.

-—

No. 76-2022 9

2. Prosecutor's Opening Statement.

The district judge prior to trial instructed the parties

not to discuss ‘in opening statement who might have

robbed MuniciCorp of the securities. The Government

assented to the court’s instructions but stated that it

would “include in opening argument the fact that the

defendant Hart was at MuniciCorp approximately five

times before the robbery and did have a friend there by

the name of Norton Giffis ...” (Tr 95-6). The district

judge replied, “Well, | assume you will be able to prove

it.” (Tr. 96) Thereafter. in overruling defendant Hart’s

objection to the Government's anticipated opening state-

ment linking defendant Hart to MuniciCorp, the district

judge more fully explained his ruling:

Well, if this place was robbed, if any of these

defendants spent any time there at or about the

time of the robbery, I think the Government can

show that. That's not to say that showing the

defendant had a conversation with somebody, who

somebody else says was a robber, and which hasn't

been proved in a court of law. (Tr. 100-101).

Thereafter, the Government during opening statement

indicated that the following evidence would be intro-

duced:

One last item that will be introduced 2s evidence

is that this man Hart, who was here in Indianapolis

registered under the name of Harris at the hotel,

had a friend who worked at MuniciCorp by the

name of Norton Giffis, and that friend will come

here before you and will testify about the visits that

Mr. Hart made to MuniciCorp out in California.

(Tr. 110-11).

During the course of trial, counse! for defendant

Fusco objected to the anticipated testiinony of Mr.

Giffis. In response to inquiry from the district Judge, the

Government stated that Mr. Giffis’ testimony was

material because it showed that defendant Hart was

familiar with the scene of the robbery. In addition, the

Government stated that Giffis would testify that defen-

dant Hart telephoned him twice on June 13, 1976.

- 33 -

10 No. 76-2022

According to Giffis, Hart allegedly twice asked whether

anyone was looking for him and also stated, “Well, I've

got a beef down in San Diego, and I[ have to turn myself

in to my attorney Wednesday.” (Tr. 320). In refusing to

allow Giffis to testify, the district judge stated that both

the importance of defendant Hart's conection with

Giffis and the purpose of the June 13. telephone

conversation were speculative and neither supported an

inference of guilt. (Tr. 320-24, 357). During argument on

this point, the following colloquy took place between the

court and Mr. Darst, attorney for the Government:

Mr. Darst: Your Honor, we disclosed this to the

Court before opening statement.

The Court: Well, you didn’t disclose the state-

ment to the Court. You just said in a general way

that you had a witness by the name of Giifis who

was going to put Mr. Hart in this place of bus-

iness.

Mr. Darst: That is correct.

The Court: And I naturally assumed that it

wuuld be at a time about the time of the robbery,

!

where it could be inferred, for example, that he was

casing the joint or some such thing. (Tr. 322).

Defendant Hart argues that the Government knew

before trial that Giffis’ testimony did not show a recent

and probative connection between defendant and Muni-

eiCorp. Citing ABA Standards, The Prosecution Fune-

tion § 5.5 (1971)° and Fed. R. Evid. LO5(c),4 defendant

* ABA Standards, The Prosecution Function § 5.5 provides

as follows:

In his opening statement the prosecutor should confine

his remarks to evidence he intends to offer which he

believes in good faith will be available and admissible and

a brief statement of the issnes in the case. It is un-

professional conduct to allude to any evidence unless there

is a good faith and reasonable basis for believing that such

evidence will be tendered and admitted in evidence.

* Fed. R. Evid. 103(c) provides:

(c) hearing of jury. In jury cases, proceedings shall be

conducted, to the extent practicable, so as to prevent in-

admissible evidence from being sugyvested to the jury by

any means, such as making statements or offers of proof

or asking questions in the hearing of the jury.

« B® -

No. 76-2022 1]

Hart asserts that the Government improperly misled the

court into believing that evidence from Giffis’ testimony

would support the inference that defendant was casing

the scene of the robbery prior to the robbery. Defendant

further contends that although the court instructed the

jury that arguments of counsel were not to be considered

as evidence, failure of Giffis to testify left the jury with

the impression that Government evidence linking defen-

dant Hart to the robbery was not being presented

because of opposition by defendant. Defendant Hart

concludes that since only circumstantial evidence impli-

cated him in the crime charged, the Government's

improper remarks were not harmless error.

Where a statement by the Government in opening

argument is not substantiated at trial because of a

subsequent ruling by the trial judge, both the good faith

on the part of the prosecution and the impact of the

statements in the context of the particular trial must be

assessed.’ United States v. Prieto, 505 F.2d &, 12 (Sth

Cir. 1974); United States v. Wallace, 453 F.2d 420, 422

(8th Cir. 1972), cert. denied, 406 U.S. 961. Contrary to

defendant’s argument in the present case, we find in the

record no evidence of bad faith or professional miscon-

duct on the part of the Government since, at the time of

its opening statement, it was not unreasonable for the

Government to believe that Giffis’ testimony would he

allowed into evidence. See Frazicr v. Cupp, 394 US.

§ Mr. Chief Justice Burger recently described the purpose

and scope of opening statement as follows:

An opening statement has a narrow purpose and scope

It is to state what evidence wil] be presented. to make it

easier for the jurors to understand what is to follow, and

to relate parts of the evidence and testimony to the whole;

it is not an occasion for argument. To make staternents

which will not or cannot be supported by proof is, if it

relates to significant elements of the cause, professional

misconduct. Moreover, it is fundamentally unfair to an op-

posing party to allow an attorney, with the standing and

prestige inherent in being an officer of the court, to pre-

sent to the jury staternents not susceptible of proof bui in-

tended to influence the jury in reaching a verdict.

United States v. Dinitz, 424 U.S. 600, 612 (1976) (con-

curring opinion).

- 2S -«

12 No. 76-2022

731, 736-37 (1969). In addition, we do not find that

defendant's case was prejudiced as a result of the

(;overnment’s mentior In opening argument of the antic-

ipated testirnony of Giffis. The Government’s reference

to Giffis’ testimony was brief and not given undue

emphasis. See l'nited States «. West, 486 F.2d 468, 472

(6th Cir. 1973), cert. denied, 416 U.S. 955. In addition,

the jury was expressly instructed not to consider

statements by counsel as evidence. Frazier v. Cupp, 394

U.S. at 735. Furthermore, although defendants objected

to Giffis’ testimony, defendants failed to point out to the

trial judge the alleged error resulting from the un-

substantiated statement in the Government's opening

statement and move for that reason for a mistrial, a new

trial or a curative instruction. As the court stated in

United States v. Wallace, 453 F.2d at 422:

No one should be more cognizant of possible

prejudicial trial error at the time of trial than the

counsel for a defendant. A reviewing court may

consider this circumstance in weighing the alleged

prejudicial effect on the jury. Counsel’s failure to

raise an objection points up the difficulty of our

finding prejudicial effect on the jury.

Finally, we think the Government rather than defendant

was hurt by this failure of proof. See United States v.

Smith, 258 F.2d 95, 98 (7th Cir. 1958), cert. denied, 357

U.S. 919.

Thus, for the foregoing reasons, we find that the

impact of this -tatement on the trial was de minimis. As

the court stated in Frazier v. Cupp, 394 U.S. at 736:

It may be that some remarks included in an

opening or closing statement could be so prejudicial

that a iinding of error, or even constitutional error,

would be unavoidable. But here we have no more

than an objective summary of evidence which the

prosecutor reasonably expected to produce. Many

things might happen during the course of the trial

which would prevent the presentation of all the

evidence described tn advance. Certainly not every

variance between the advance description and the

- 32G-

No. 76-2022 13

actual presentation ccnstitutes reversible error,

when a proper limiting instruction has been

given.

3. Sufficiency of Evidence Supporting Defendant

Hart’s Conviction.

Defendant Hart asserts that the record contains

insufficient evidence to support his conviction. Defen-

dant contends that the Government failed to prove that

defendant was either associated with or a participant in

the criminal! venture.

Viewing the evidence in a light most favorable to the

Government, United States v. Kelly, 527 F.2d 961, 955

(7th Cir. 1976), we find that there was sufficient

evidence for the jury to find defendant guilty of the

crime charged in count l.

First, defendant Hart’s fingerprints were found in

room 242 -long with the fingerprinis of defendants Akin

and Fusco. In addition, hote! reservations for defendants

Hart, Akin, and Fusco were al! rnade by Akin's wife,

Eugenia. The evidence further showed that defendant

Hart registered under the false naine of Harris at the

Indiana Hilton Hotel. The parties stipulated at trial that

Harris’ handwriting matched defendant Hart’s hand-

writing. The evidence also demonstrated that after

defendant Hart was mistakenly given a room on the

first floor of the hotel, he requested to be moved to a

room on the second floor where defendants Akin and

Fusco had rooms because “they were working close

together and they had work to do.” (Tr. 258). Similarly,

Agent Naum saw defendants Hart and Akin conversing

in the lobby of the Indianapolis Airport Hilton Ilote! on

the morning of May 25, 1976. There was also evidence

which showed that telephone calls were exchanced

between defendants Hart and Akin. Furthermore, at the

time defendant Hart was arrested. Eugenia Akin’s tele-

phone number was found in his wallet.

- $7

14 No. 76-2022

The evidence already referred to must be viewed in

the context of additional proof which demonstrated that

an individual in addition to Akin, Fusco and Kucala was

involved in this criminal transaction. For example,

Kucala testified that moments after Akin made his

telephone call, an unidentified individual handed a

suitease filled with stolen bonds to Akin in room 242 on

the morning of May 25, 1976. As has already been

stated, defendant Hart’s room was in close proximity to

room 242, In addition, Kucala stated that he saw an

unidentified man with Akin and Fusco in front of the

[Indianapolis Airport Hilton just before he (Kucala)

returned to the bank with the stolen bonds.

As this court stated in Kelly, 527 F.2d at 965:

we must accept the tenet that all reasonable

inferences supportin x the ve rdic t are in favor of the

government ... and that it is the exclusive func-

tion of the jury to determine the credibility of the

Witnesses, resolve evidentiary conflicts and draw

reasonable inferences from proven facts.

In I ht s the evidenee which we have summarized,

we find that Uiere was sufficient evidence for the jury to

conclude th: at defendant Hart was the fourth participant

in this criminal venture.

4, ejudicial Publicity.

mt he lediavcpolis Star on August 20, 1976. printed an

article with the headline, “Three men refused acquittal

ii bonds case.” The erticle stated in part, “However,

Judge Dillin ruled ne felt the Government had very

little difficulty in proving each and al! defendants guilty

beyond a reasonable doubt.” Defendants requested that

the trial judge question each juror individually and

outside of the presence of each other r as to whether they

hed read this article. The district judge refused stating

that individual interrogation would be appropriate only

if any of the jurors had read the article. The court

«349.

No. 76-2022 15

thereafter collectively questioned the jury and deter-

mined that no juror had read the article in question.°

Defendant Akin argues on appeal that the trial judge's

failure to interrogate jurors individually constitutes

reversible error. Defendant asserts that the collective

voir dire deprived him of the right to a fair trial and the

right of due process of law.

The circuits are split as to the procedure to be

followed when possible prejudice from publicity arises

during the course of a trial. Our circuit has consistently

6 The district judge asked the jury the following questions:

By the Court:

1 Q. My first question is: How many of you, if any,

subscribe to the Indianapolis morning newspaper—

Indianapolis Star? May I see your hands, please.

(Several hands raised.)

2 Q. Okay. Three, six—seven. How many of you read

your paper this morning, if any?

A. (J-7) 1 glanced at it.

3 Q. You glanced at it. No one else read the morning

Star at all; is that it?

A. (J-9) Just a little bit.

1 Q. Anvone bring it in to the jury room this morn-

A. (J-7) I did.

5 Q. Yours is back there. All right. Anybody else?

(No response.)

6 Q. All right. You have the paper, and glanced at it

Mrs. Rhodes, is it?

A. (J-S) Just the front page.

7 Q. Well, there wus a little item beck on page 7

about this trial which has an inaccurate statement tn It.

Did either one of you ladies read that?

A. (Jurors 7 and 9 shook their heads.)

8 Q. Did not read it all. Okay.

The Court: All right. We are going-—Since this iter is

in there, 1 guess we are going to have to remove your

paper from the jury room. Weil, we will remove page 7.

(Tr. 459-60).

40 «

16 No. 76-2022

required the following procedure as set forth in

Margqoles v. United States, 407 F.2d 727, 735 (7th Cir.

1969), cert. denied. 396 U.S. 833:

Thus, the procedure required by this Circuit

where prejudicial publicity is brought to the court's

attention during a trial Is that the court must

ascertain if any jurors who had been exposed to

such publicity had read or heard the same. Such

jurors who respond affirmatively must then be

examined, individually and outside the presence of

the other jurors, to determine the effect of the

publicity. However, if no juror indicates, upon

inquiry made to the jury collectively, that he has

read or heard any of the publicity in question, the

judge is net required to proceed further.

see alco, United States v. Battaglia, 432 F.2d 1115 (7th

Cir. LOTTO), cert. denied, AQ] U.S. 924: l'nited States v.

Thomas, 463 F.2d 1061 (7th Cir. 1972); United States v.

Barrett, 505 Fd WOOL (7th Cir. 1975), cert. denied, 421

I'S 964: United Stetes v. Rizzo, 409 F.2d 400 (7th Cir.

19609). eert. denied, B26 U.S. 911. This approach has also

wen adopted by the First Circuit in Larted States v.

Perrotta, 093 F.2d 2 (7 (ist Cir. 1977), and by the Fourth

Circuit in United States v. Hankish, 502 F.2d 71 (4th

Cir. i974). Other courts have concluded that each juror

should be qucs ioned SO] arately out of the presence of

r jurors. United States v. Polizzi. 500 F.2d 856

(Sth Cir. 1974), cert. denied, 419 U.S. 1120; Silve rthorne

rs Tnittd States. 460 F.2d 627 (9th Cir. 1968), cert.

denied, 400 US. 1022; United States v. Schrimsher, 493

Yd St8 th Cir. 4): Mares vo United States, 383

Kd 05 (10th Cir. 1967), cert. denied, 394 U.S. 963;

Hall «. United States, 396 F.2d 428 (0th Cir. 1968), cert.

nied, 292 US. 986: Coppedge v. United States, 272

2d 504 (D.C. Cir. 1959), cert. denied, 368 US, 855°. See

+! }

me otne

As has been indicated, the Fifth Cireuit in Schrimsher and

the Tenth Cirenit in Hall expressed a preference for in-

dividual questioning of jurors outside of the presence of other

jurors. In both cases, the collective inquiry made by the dis-

trict judge was found not to be prejudicial error under the

circumstances.

~4\|-

No. 76-2022 17

also, ABA Standards, Fair Trial and Free Press § 3.5(f)

(1968).*

As defendant points out, this case differs factually

from Margoles in that defendant in Murgoles requested

that the jury be polled either individually or collectively

while defendants in the present case requested only that

the jurors be individually questioned. We do not find

that this difference requires this court to adopt a

different procedure.

We are not, as defendant suggests, following an

inflexible procedure which may be inadequate for

certain situations. As this court stated in United States

v. Barrett, 505 F.2d at 1100:

Each case of alleged prejudicia! publicity must

rest on its “special! facts.” United States vr. Jannsen,

339 F.2d 916, 920 (7th Cir. 1964). “The sev erity of

the threat depends upon both the nature of the

information so publicized and the degree of juror

exposure to it. Moreover, the judge’s respouse is to

- ABA Standards. Fair Tria! and Free Press § $.5(f) pro-

vides:

(f) Questioning jurors about exposure to potential

udicia! material *» the course of the trial: standard for ex-

cusing a juror.

If it is determined thet material disseminated during

the trial joe beyend the record on which the ease is to be

submitted to the jury and raises serious quesilons of possi

ble prejudice, the court may on its own motion or shail on

; 1

motion of either party question each juror, cut of the

sresence of the others, about his exposure to thet mate: lal.

The examination shall take place in the presences of

counsel, and an accurate record of the examination sha'l

be kept. The standard for excu: ing a juror who 1s

challenged on the basis of such exposure ¢' ‘} be the same

as the standard of acceptability recommended in seeti

3.4(b), above, Excepn that a juror who has seen or hear

reports of potentially prejudicial mate: jal shall be excuse

if reference to the material in question at the triad ite

would have required a mistrial to be declared.

The court in United States °. Hankish, 502 F.2d at 77, after

considering § 3.5(f) stated, “We believe this recommendation

has merit but goes too far.”

—) ~ eee

_~42-

18 No. 76-2022

be commensurate with the severity of the threat

posed.” United States v. Thomas, 463 F.2d 1061,

1063 (7th Cir. 1972).

Thus, a different procedure might be appropriate under

special circurnstances. See Rizzo, 409 F.2d at 402. We

avree with the First Circuit’s statement in Perrotta, 553

! 2d at 250, n. 6, that a district judge may conclude in

the exercise of his sound discretion and under the

particular circumstances of a case that the situation is

one “where individual inquiry will be the preferred

course from the outset, just as in less sensitive situations

collective inquiry will be more economical of time and

less distracting.”

Ve find + the district judwe under the cireurnstan-

re of this ease did not abure his diseretion in

yi! , ‘ TF ny the ry and vl cedi iz 6€6©no

furthes cle h ned the prejudicial

, corm rp ( ti yf Line | ppolis

( ‘ }! ; \ BB; dj {re ePe4 OL fil the

yj ted that they had seen the

no n to velieve thei

‘ ' ’ rei ) rea

) ‘ rack { i Lt s i. 135,

} i L ile > Was

} (jirt i ' f ff Sia ;

bilo, LLis-l ith | NTO), cert

| i { [ f fan) a 12

i ‘li Cir, 1904) t, dented, 402 U.S. 905.

5. Governmecst'’s Questioning of Witness Kueala.

\iin contends that the Government com-

dit retole error during its direet examination of

Ma fondant Akin arwues that the leading

TwoOn ; i }} ar ‘aia DY co | fo ‘the Government

t

{ div intimated that Kucsaia hed spoken with

Alvin during his newotiations with Agent Naum. After

roviewine the record, we cannot say thet the leading

fuestions asked by the Government prejudiced defen-

lant Akin’s trial. Akin’s name was not mentioned in the

No. 76-2022 19

complained of portion of the transcript. Furtherm re,

we cannot understand how any intimation of Akin:

involvement in the negotiations was prejudicial In tei

of Kucala’s testimony which consistentiy Geseribes

defendant Akin as being deeply involved in this erimina

venture.

Defendant Akin also complains that the Government

improperly refreshed the recollection of Kucala witn

prior statements of Kucala. We cannot find ans

prejudice to defendant Akin in the complained

portion of the transcript.

CONCLUSION

For the foreroing reasons, the conviction 67 Gelenas

Hart and Akin is hereby aflirmed.

A true Copy:

Teste:

Clerk: of the f . t 4

V pope ras for f X\ f

LSA Wwte SFr } 4 j ‘